Advisory Opinions | The Dispatch
Episode: "SCOTUS Long Conference and 'Insecure Originalists'"
Release Date: October 7, 2025
Hosts: Sarah Isgur, Guest: David Latt (Original Jurisdiction)

Episode Overview

This episode provides an in-depth look at the U.S. Supreme Court's recent "long conference," discussing both high-profile cert denials and notable granted cases, including significant Second and Fifth Amendment disputes. The hosts also tackle the sentencing in the attempted assassination of Justice Brett Kavanaugh and unpack Justice Alito’s recent speech on originalism, addressing the ongoing debates over judicial philosophies.

Key Topics & Discussion Points

1. The SCOTUS Long Conference: How It Works and What Was Decided

(Segment starts at 02:07)

• What is the Long Conference?

  • Occurs just before the SCOTUS term starts, addresses hundreds of cert petitions from the summer.
  • Most cases are denied; it's both the time when the largest number of cases are granted and the point at which the grant rate is lowest.
  • Why? New law clerks are risk-averse, "grant shy" out of fear of missing procedural flaws. Experienced litigators often try to avoid submitting at this time to maximize their chances.
  • "[Repeat players] avoid the long conference like the plague...it becomes this sort of self-perpetuating thing." – Sarah Isgur (03:22)

• Is the Effect Real?

  • Latt questions whether this effect is overstated: "If you have a great case...your case is going to get granted...Maybe your thing will stand out even more amid all the dreck." – David Latt (03:58)

2. Notable Cert Denials

(03:58–10:03)

• Ghislaine Maxwell’s Appeal

  • Sought to challenge her Epstein-related conviction.
  • The question involved whether a DOJ deal with Epstein barred prosecution of co-conspirators in other districts.
  • Rejected as a poor vehicle: factual ambiguities, unclear inclusion of Maxwell, and general SCOTUS unwillingness to take a "bad man" case.
  • "[T]his is a case with just too much baggage." – David Latt (06:04)

• Live Nation (Ticketmaster) Antitrust Appeal

  • Lower court found arbitration clauses unconscionable and unenforceable.
  • Highlights tension between "sexy" culture war cases vs. business issues in SCOTUS caseload.
  • "A lot of these cases may not be, quote, unquote, sexy, but...they involve a lot of money." – David Latt (07:03)

• Missouri's 'Second Amendment Sanctuary' Law

  • Law banned Missouri officials from helping enforce federal gun laws.
  • Lower courts enjoined it; SCOTUS denied stay.
  • Only Thomas (fully), and partially Alito & Gorsuch dissented; the rest declined.
  • Reflects ongoing federalism battles, especially as states push the bounds on gun and immigration laws.
  • "This is going to be an area of continued activity...even if the court did not take this particular case." – David Latt (09:16)

3. Notable Cert Grants

(10:03–21:52)

• Hawaii’s Concealed Carry Law & Second Amendment ('Sensitive Places')

  • SCOTUS granted cert on whether states can presumptively bar concealed carry on private property unless owners post explicit permission.
  • Circuit split: Hawaii/California vs. New York's approach.
  • Discussion of “spirit of Aloha” arguments in Hawaii’s Supreme Court and how they clashed with SCOTUS’s originalist view.
  • "It denigrated the need for public carry, in particular rejecting as un Hawaiian a federally mandated lifestyle that lets citizens walk around with deadly weapons." – Sarah Isgur quoting from a previous SCOTUS statement (12:30)
  • "The court doesn't take just kind of cases writ large...It's taking on this very specific, discrete issue." – David Latt (16:54)

• Fifth Amendment Takings: Michigan Property Sale

  • At issue: After a $2,000 tax lien foreclosure, the property sold at auction for $74,000, then resold for $194,000. How much does the state owe the original homeowner? The excess after taxes/fair market value?
  • Also touches on 8th Amendment worries ("excessive fines").
  • "[T]he facts here are egregious...if the vibe is, wow, you got a raw deal...ripped off property owner gets relief, so I don't know." – David Latt (20:47)
  • Case: Pung v. Isabella County (Sixth Circuit)

4. The Sentencing of Nicholas Roski (Attempted Kavanaugh Assassin)

(24:08–33:47)

• Facts Recap

  • Roski found outside Justice Kavanaugh’s house armed and equipped; ultimately called 911 and surrendered after his sister's intervention.
  • Pleaded guilty before trial.
  • Sentencing: Prosecution recommended at least 30 years. Judge sentenced Roski to 97 months (~8 years).
  • Cited: Roski’s remorse, lack of prior criminal record, voluntary abandonment, and surrender. Also, President Trump’s executive order affecting transgender prisoners (Roski identified as transgender).
  • "[T]his terrible infraction has helped the Rosky family accept their daughter for who she is." – Judge, as quoted by Sarah Isgur (25:56)
  • Discussion on whether the sentence is "woefully insufficient" (Pam Bondi's words) and likelihood of it surviving appeal.
  • "I find eight years pretty outrageous." – Sarah Isgur (26:42)

• Appellate Prospects

  • Abuse of discretion standard; downward departure justified under federal law if properly explained.
  • "I think there's a decent chance that this judge is told, try again..." – David Latt (29:16)

• Policy/Philosophical Angle

  • Sarah posits that end of filibuster has affected judicial incentives—judges may feel the need to stand out for promotion within their own party, not appeal to both sides.
  • "[Y]ou want to stand out for being the most committed to the cause. And I worry that things like this...help them in a post filibuster world in a really negative way." – Sarah Isgur (32:30)

5. Justice Alito’s Speech: 'Insecure Originalists' and Judicial Philosophies

(36:44–68:05)

Obergefell & Precedent

• Alito’s Remarks: Not suggesting Obergefell should be overruled, but criticized its rationale as before.
• LGBTQ Legal Community's View: Overruling Obergefell seen as unlikely, both by David Latt and major rights litigators.
  • "In commenting on Obergefell, I am not suggesting that the decision in that case should be overruled." – Justice Alito, as quoted by Latt (37:23)
• Reliance Interests: Unlike abortion, reliance here is significant and deeply personal (family structure, legal rights, etc.).
  • "[T]he Reliance interest is huge on Obergefell, maybe more so than any precedent I can think of currently at the court." – Sarah Isgur (41:27)
• Court's Composition: Five justices are needed to overturn; both hosts see this as extremely unlikely.

Alito’s Approach to Originalism

• Brands himself a “working originalist,” “common sense originalist,” or “practical originalist”—willing to use originalist tools, but not at the expense of absurd outcomes or ignoring other doctrines (structure, precedent, outcomes).

• "[O]riginalism is, you know, a place you go, you learn some things, and then you may still need to keep going on, but you don't...hold on to originalism white knuckled..." – Sarah Isgur (45:00)

• Famous quip in oral argument: "What Justice Scalia is trying to ask is, what would James Madison have thought of video games and did he enjoy them?" – (46:21)

• Six Originalism Pitfalls Identified by Alito:

  1. Avoiding obviously absurd outcomes (common sense check)
  2. Recognizing constitutional structure beyond explicit text
  3. 'Icarian' originalism (don’t get lost in abstraction)
  4. Overreliance on obscure history ("archaeological originalism")
  5. Refusal to mix in non-originalist reasoning where needed
  6. Substituting political philosophy for historical understanding
  • "[S]ome originalists are trying to make originalism do too much work or solve every problem. And he wants to take a more pragmatic approach..." – David Latt (48:17)

• Critiques and Contrasts:

  • Is Alito’s approach too malleable or result-oriented?
  • Other justices (esp. Gorsuch, Thomas) use originalism to support criminal defendants more than Alito, indicating differences even among conservatives.
  • "[H]e is of the conservatives, the most result oriented...find me a case where Justice Alito sided with the liberals..." – David Latt (50:12)
  • Statistical perspective: Alito as a "Burkean originalist," favoring precedent and gradual change (Chesterton’s Fence analogy).

6. Judicial Methodology Glossary and Current Supreme Court Approaches

(55:25–68:05)

• Living Constitutionalism: Constitution evolves with society; rare for justices to invoke this label today.
• Formalism: Process-driven approach; epitomized by Justice Barrett, who's seen as a "lawyer's justice."
  • "I would probably describe myself as a formalist." – David Latt (57:24)
• Originalism vs. Textualism: Once distinct for Constitution (originalism) and statutes (textualism); now, distinction is muddier. Some (Thomas) focus on text, history, tradition; others on public meaning of the text even if "expectations" differ.
• Legal Realism and Legal Positivism: View law as shaped by social forces and human decisionmakers, not natural or static; largely rejected by current justices—though all acknowledge judges are affected by human factors to some degree.
• Pragmatism/Pluralism: Associated with Justice Breyer; blending standards, practical solutions, less bright-line rules. Liberal justices (Kagan, Jackson, Sotomayor) lean pragmatic, though labels less emphasized in confirmation hearings.
  • "If you ask her, say, do you subscribe to Justice Breyer's approach?...I think she would kind of say yes." – David Latt (67:05)

Notable Quotes & Moments

• On the Supreme Court's caseload:
  "The Supreme Court wants that good vehicle. This wasn't a perfect vehicle for deciding this question." – Sarah Isgur (04:32)
• On reliance:
  "The Reliance interest is huge on Obergefell, maybe more so than any precedent I can think of currently at the court." – Sarah Isgur (41:27)
• On sentencing Roski:
  "If you are someone who has complained about threats against the judiciary...but then you turn around and are fine with ... an incredibly lenient, outside the guideline, downward departure sentence...What are we doing here?" – Sarah Isgur (28:34)
• On Alito's philosophy:
  "If something's been there for a long time, you're probably like, yeah, that's probably a good idea. Like revolutions in the law...are bad. Aim small. Ms. Small is the Burkean originalist." – Sarah Isgur (52:31)
• On formalism’s rise:
  "I think formalism is on the rise in legal conservative world, David, maybe because of Justice Barrett, or maybe she's the symptom and she's the result..." – Sarah Isgur (56:56)

Timestamps for Key Segments

• 02:07 – SCOTUS long conference mechanics and culture
• 03:58 – Notable cert denials (Maxwell, Live Nation, Missouri's gun law)
• 10:03 – Cert grants (Hawaii carry law; Michigan property takings)
• 24:08 – Sentencing of Nicholas Roski (Kavanaugh plotter)
• 36:44 – Alito's speech on Obergefell and secure/insecure originalists
• 52:31 – Taxonomy of originalism and judicial methodologies
• 65:05 – Legal realism, pluralism, and liberal justices’ philosophies

Final Thoughts

This episode blends SCOTUS process, current cases, a moment of scandal in the judiciary, and the perennial debate about how justices judge. Rich in both insight and practical subtleties of law and legal reasoning, it’s especially valuable for listeners interested in the philosophy of constitutional interpretation. From the technical to the topical, Isgur and Latt deliver both analysis and behind-the-scenes candor, with meaningful takeaways for legal junkies and casual Court watchers alike.