Advisory Opinions Podcast — “Political Distortions”

The Dispatch — December 18, 2025
Hosts: Sarah Isgur (A) & David French (B)

Episode Overview

In this episode, Sarah Isgur and David French take a deep dive into some lesser-known constitutional clauses and explore recent legal developments with far-reaching consequences. They break down a Supreme Court “cert grant” regarding Batson challenges and jury racial discrimination, discuss domestic violence and the militia clause in federal law, analyze the rare invocation of the Bill of Attainder clause, and examine themes of “political distortions” in the legal process, including those related to abortion, drugs, and the Trump administration. The episode also features a robust discussion about how legal norms have been twisted in recent years, highlighted by the "Trump distortion" and the evolving tone within public discourse on contentious civil rights issues.

Key Segments & Timestamps

1. SCOTUS Cert Grant: Jury Strikes & Batson Challenges

[00:17–11:53]

Main Points:

• The Supreme Court granted certiorari in a death penalty case involving Batson challenges (racial discrimination in jury selection).
• Batson Framework:
  1. Defendant must show a prima facie case of racially discriminatory strikes.
  2. State provides race-neutral reasons for the strikes.
  3. Court decides if discrimination occurred.
• In this case, out of five Black potential jurors, four were struck by the state; defense repeatedly tried to preserve their Batson objection.
• The Mississippi Supreme Court found the Batson claim waived since the defense did not formally argue the prosecutor’s race-neutral reasons were pretextual.
• The Supreme Court’s review is limited to whether this finding (of waiver) was reasonable.

Notable Insights:

• David French:
  “Here you have the trial court ... basically, ‘yeah, preserved, noted. Let's go.’ ... If the trial court says preserved, you know, I'm feeling pretty good about the fact that I've preserved it.” [07:34]
• Both hosts share litigator’s anxiety about preservation of rights and the shifting standards between state and federal processes.
• Discussion of how unique or niche this procedural issue is, but how important it becomes in the life-or-death context.

2. Supreme Court’s “Relisting” Habits & Prosecutorial Racism

[09:24–11:53]

Main Points:

• The unusually long process of the case being “relisted” (delayed) eight times before cert was granted.
• David: Points out the prosecutor in question, Evans, has a history of striking Black jurors—previously overturned in the “Curtis Flowers” case.
• The pattern of behavior and prior Supreme Court decisions discussed.

Notable Quote:

• Sarah Isgur:
  “Some of those [race neutral] reasons did strike me as race neutral.” [11:29]

3. The Slaughter Case: The Funniest Justice & Transcript Correction

[12:02–13:21]

Main Points:

• Justice Kavanaugh— formerly misattributed to Gorsuch— earned a laugh in oral argument; SCOTUS blog had to correct the transcript.
• Running joke about the “laugh tracker” for Justices, highlighting the shift in Court personalities.

4. The Trump v. Illinois National Guard Case & the “Three Dockets” Phenomenon

[13:21–17:23]

Main Points:

• Discussed the Supreme Court’s multipart handling of the Trump National Guard in Chicago case:
  • “First docket” — Pre-interim measures.
  • “Interim docket” — Emergency orders.
  • “Merits docket” — Final resolution.
• Noted that so-called emergency matters have been delayed for months, exposing “first docket” as a new category of slow, high-stakes waiting.

Theories:

• David:
  “I don't think the court wants this case at all. ... Part of me wonders if ... the National Guard gets withdrawn ... and we'll moot out this whole thing and pretend this never happened.” [16:06]
• The Supreme Court’s reluctance to weigh in on executive powers when it might be avoided.

5. Judge Bybee’s “Master Class” on the Domestic Violence Clause

[17:23–29:04]

Main Points:

• 9th Circuit Judge Bybee publishes post-en banc vote statement exploring the Domestic Violence Clause (Article IV, Section 4) as a limiting principle.
• Highlights early American history on federal troop deployment, federal-state cooperation, and the Founders' intentions to restrict federal power in peacetime.
• Emphasizes the originalist reading and Founders’ debates informing the text.

Memorable Quotes:

• David French:
  “What emerges: if what you were dealing with was ... disorder or lawlessness, then ... the feds would only intervene when state governments asked them...” [20:29]
• Sarah Isgur:
  “This case in particular struck me as a very good candidate for that kind of [text/history] investigation.” [23:42]
• Extended appreciation for the inclusion of historical context and the practical difficulty of writing well-researched opinions on emergency dockets.

6. Bill of Attainder & Planned Parenthood (Deep Constitutional Cuts)

[29:04–35:35]

Main Points:

• Congress passed a law defunding Planned Parenthood and its affiliates. Plaintiffs challenge under the Bill of Attainder clause (Art. I, Sec. 9, Cl. 3).
• Rare Use: Court has struck down statutes as bills of attainder only five times.
• First Circuit (liberal panel) upholds the law, reasoning that forward-looking, conditional withdrawals of federal funds are not “punitive” bills of attainder.
• Broader point: Courts defer more to Congressional action now, possibly because effective lawmaking is so rare.

Notable Quotes:

• Sarah:
  “... all those past cases were about individuals. This is about a corporate entity. Can you do a bill of attainder against a corporate entity? ... Not a lot of historical precedent for that.” [32:30]
• David:
  “The idea that a forward looking loss of federal funding is a bill of attainder, wow, that would be an extension. That'd be big.” [33:45]

7. Abortion Distortion, Drug Distortion, and Legal "Distortions"

[35:35–39:21]

Main Points:

• “Abortion distortion”: The law treated abortion inconsistently, sometimes suspending neutral principles.
• Now, even liberal circuits are unwilling to craft special rules for abortion providers—possibly signaling a move toward less “distorted” jurisprudence.
• Similar concern with legal “drug war distortion” historically making bad law.

8. Conservative Circuit Rulings on Unpopular Laws (Corporate Transparency Act)

[35:35–39:21]

Main Points:

• 11th Circuit (conservative panel) upheld the Corporate Transparency Act, unpopular with conservatives.
• Instances where courts rule against expectations based on partisan makeup highlight the value of principled judging.
• Sarah:
  “That piece of artwork also going on the refrigerator.”

9. Ross Douthat & Chase Strangio: Culture, Law, and Strategic Overreach

[39:21–43:47]

Main Points:

• The hosts reflect on Ross Douthat’s “Interesting Times” podcast conversation with Chase Strangio (trans rights legal activist).
• Strangio displays a newfound tone of reasonableness and openness to criticism, in sharp contrast to earlier, more combative advocacy style.
• Both hosts reflect on the lessons from past overreach by social movements—such as resistance to civil unions before Obergefell—and how failing to compromise during uncertainty can backfire when tides shift.

Memorable Quotes:

• David:
  “Bullying, I think creates a kind of sugar high ... But over time, people really don't like it, they really hate it and they're going to get built in resentment and anger. ... It's not that you lose your reach goal ... you often lose a lot of the ... underlying goodwill.” [41:47]
• Sarah:
  “You need to show a lot of good faith if you're the side who was being the bully and now wants the compromises.” [46:24]

10. Trump Distortion in Legal Writing: Brief Introductions

[47:52–52:03]

Main Points:

• Recent critiques of the Solicitor General’s introductions in appellate briefs are framed as a “Trump distortion”—people object not inherently due to the content, but because it’s associated with the Trump administration.
• Judges from the 11th Circuit wrote a letter defending the merits of strong introductions in briefs.
• “Good for the lawyer, good for the judge.”

Notable Quotes:

• Sarah:
  “Introductions are bad because Trump introductions are bad. But David, that’s not true. Introductions are great.” [48:38]
• David:
  “If you can't write a good introduction, you can't write a good brief.” [49:22]

11. Trump Distortion in Judicial Ethics: The "Leave the Room" Rule

[52:10–56:24]

Main Points:

• Judicial complaint filed against Judge Bove for attending a Trump speech where he made partisan remarks.
• Sarah argues for a “bright line rule” (official events ok, campaign events not) rather than a vague standard requiring on-the-fly judgments.
• The “Trump distortion” is that norms and expectations keep shifting in response to Trump’s conduct.

Notable Quotes:

• Sarah:
  “What I don’t want is a rule that says ... you need to listen really carefully, because if someone says something that's too ... offensive ... You have to stand up and leave. ... That to me feels like Trump distortion ... and I would much rather have rules that we keep into place.” [53:17]
• David:
  “Bright lines infinitely preferable. Would I want Bove to leave if an event becomes partisan? ... Must he leave? ... No.” [54:30]

12. The Weaponization of Complaints & The Dangers of Radicalization

[56:24–57:37]

Main Points:

• Increased use (“weaponization”) of judicial and bar complaints for partisan purposes—trend is escalating.
• Both hosts caution against scorched-earth tactics and the cycle of escalation.
• Calls to maintain norms and avoid “radicalizing” in response to norm-breaking.

Notable Quotes:

• David:
  "Not every should is a must. ... If someone treats you in an extremely bad way, you should not radicalize ..." [57:07]
• Sarah:
  “Unless it's about severability. Then you should radicalize.” (with laughter) [57:10]

13. What’s Next & Closing Thoughts

[57:37–58:11]

• Sarah predicts the Supreme Court will rule on the National Guard/Trump case soon, possibly before the holidays.
• Teases future episodes on the “church autonomy” doctrine if time permits.

Notable Quotes — Quick Reference

• David French on Batson preservation:
  “The person who determines whether the litigator has followed the proper steps to preserve a Batson challenge is ... the trial judge. And if the trial judge says, you've done it ... what are you supposed to do as a litigator?” [07:34]
• Sarah Isgur on constitutional history:
  “This is why we do text history and tradition. This case in particular struck me as a very good candidate for that ... George Mason warning the Virginia ratifying convention...” [23:42]
• David French on overreach:
  “Bullying ... creates a sugar high ... but when the anger finally comes ... you often lose a lot of the ... goodwill.” [41:47]

Episode Takeaways

• Deep constitutional issues still have significant, real-world policy implications.
• Well-written opinions and advocacy (including in brief introductions) serve legal clarity—regardless of politics.
• Social and legal movements risk lasting backlash from overreach and closed rhetorical circles.
• Norms, clarity, and bright-line rules are essential, especially in volatile political environments.
• Weaponization of formal complaints for political reasons erodes the justice system and public trust.

For readers new to Advisory Opinions, this episode stands out for its willingness to get into the weeds of legal doctrine, the seriousness with which it treats history, and its wry, self-aware humor about the ways law and politics are constantly distorting each other in our times.