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- [00:01]
Sarah Isgur
Advisory Opinions is presented by Pacific Legal foundation, suing the government since 1973. Ready?
- [00:09]
David Latt
I was born ready.
- [00:25]
Sarah Isgur
Welcome to Advisory Opinions. I'm Sarah Isger and that's David Latt. From original jurisdiction. We have got along lineup for you. The short conversation about the long conference, the cases that the court granted and denied. We'll move on to the sentencing of Nicholas Roski for the attempted assassination of Justice Brett Kavanaugh. And finally, a conversation about judicial philosophies, methodologies and a fun speech given by Justice Alito on Obergefell.
- [00:58]
David Latt
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- [02:02]
Sarah Isgur
Welcome David Latt to Advisory Opinions. Thrilled to have you back.
- [02:06]
David Latt
Great to be here.
- [02:07]
Sarah Isgur
We have plenty to get through today. First conversation, a short conversation, let's say, about the long conference. Generally speaking, David, the long conference is something we all look forward to. It's when the most number of cases get granted by the court, even though your chance of getting your case granted is the lowest it will be during the year, if that makes sense to everyone. So because they're reviewing so many petitions from over the summer at that long conference that happens usually the Monday before the beginning of the term, they grant a lot of cases, but percentage wise, there's just so many cases that a locket rejected as well. Why is that? There have been some interesting theories. One, of course, as always, is to blame the clerks that you're getting reviewed by the new set of clerks that started in July. And clerks fear more than anything else in the world, aside from scorpions, you know, recommending a case get granted only to have a dig later dismissed as improvidently granted, meaning usually that the clerk missed something, a procedural problem or some reason that it wasn't a good vehicle. So clerks are very grant shy at the beginning of their term. I think that makes sense as far as it goes. But I think at some point also once people knew that their petition was less likely to get granted over the summer, there is some wiggle room, you know, in asking for an extension of time on your brief or getting your brief in before the due date of your brief so that those repeat players who are very knowledgeable on Supreme Court practice avoid the long conference like the plague if they can get their petition to be considered before or after. So it becomes this sort of self perpetuating thing where the most worthy petitions tend not to come up at the long conference. At this point, you know, I have.
- [03:58]
David Latt
To wonder though it seems like it would maybe be marginal to me in the sense that if you have a great case that should be granted cert and you have a circuit split and you have a hot and important issue, it just seems to me that your case is going to get granted. These are, you know, the justices are very, very smart, as are their clerks. And I just don't think that someone is going to miss an otherwise cert worthy case because it was it wound up in the long conference. I mean, maybe you could argue your thing will stand out even more amid all the dreck. I don't know.
- [04:33]
Sarah Isgur
I think that's a fair point. Maybe we'll see the return of the long conference at some point where because so few meritorious cases come into the long conference, you're like, ah, this is the perfect time for us to showcase our case. And around and around we'll go in this ever swinging pendulum of the long conference. Well, this time around some notable cases rejected, though none particularly surprising. First on the order of rejections was Ghislaine Maxwell's appeal of her Epstein conviction. I think we all thought the court has no interest in this case because of who it is. Remember, the court takes questions, not cases. So even though her question presented was somewhere between mildly and pretty interesting, this was about whether a deal made with Jeffrey Epstein that included co conspirators made by one U.S. attorney's office was binding on a different U.S. attorney's office. Whether she was included in that. There were a few problems with it. One, just factually it was not clear that she was included as a co conspirator. It was also not clear that it was ever intended to bind the United States States versus the single U.S. attorney's office. Like the text of the agreement had, you know, multiple readings that were plausible. And again, the Supreme Court wants that good vehicle. This wasn't a perfect vehicle for deciding this question. And of course, under the bad man stays in jail theory, it was definitely not the perfect defendant for whom to decide this question.
- [06:05]
David Latt
Yeah, this is a case with just too much baggage. I think that Maxwell's lawyer, David Oscar Marcus, did a very nice job of trying to make as compelling a case for hearing this as possible. But at the end of the day, oh, goodness.
- [06:21]
Sarah Isgur
Epstein.
- [06:22]
David Latt
I think everyone, at least at 1 First street, wants nothing to do with that. They have enough headaches and they have enough things on their, on their table. They don't need to wait until La Fair. Epstein.
- [06:35]
Sarah Isgur
Okay, next one. A little less in AO's wheelhouse. But live Nation Entertainment got rejected on their consumer antitrust. The lower courts had held that the arbitration clauses were unconscionable and couldn't be enforced under California law. This is one of those, like Ticketmaster lawsuits about inflated ticket prices. So on the one hand, it may not sound sexy, and on the other hand, probably affects more people than a lot of other Supreme Court cases.
- [07:03]
David Latt
Well, you know, it reminds me of this panel I recently moderated at the SCOTUS blog summit with, with three chief legal officers from Fortune 25 companies. And one of the topics we discussed was the declining number of business cases at the Supreme Court. And a lot of these cases may not be, quote, unquote, sexy, but as you were just saying, they affect a lot of people, they involve a lot of money, they're very, very important. And I think you could ask the question of, well, if is the court paying too much attention to so called cultural war issues and not enough to these commercial issues, class actions, antitrust arbitration, a lot of issues that affect commercial litigation.
- [07:52]
Sarah Isgur
And then the last one, which was getting a fair amount of attention, also got rejected from the court. This was Missouri's we don't do federal gun laws case. Missouri passed a state law banning state and local law enforcement from helping any federal law enforcement execute federal gun restrictions within Missouri. And also that if you as a federal employee had ever enforced a federal gun restriction, you were not eligible for state employment. Lower courts enjoined that law preemption. And Missouri initially went to the Supreme Court asking for a stay of that state stay of that injunction. And it was 6:3, with Gorsuch, Alito, and Thomas as the three dissenters. Sort of. Thomas said he would actually grant the stay. Alito and Gorsuch would not have granted the stay. They were agreeing. So actually it was an 8:1 case. But they did write Separately to say that the injunction only applied to Missouri officials, but to the extent private parties could enforce the law, that part of the law was still going into effect. Missouri certainly wanted this to be an example to the rest of the red states for how to have like the most second amendment vibed state in the country and Supreme Court. Nah, docked that one.
- [09:17]
David Latt
Well, it is interesting. We are going to have these recurring battles or questions of state versus federal authority. We see this percolating a bit in the immigration context where states are passing their own immigration laws. So this is going to be an area of continued activity. And it's interesting. Often when you think about federal versus state stuff, you think the Democrats say control the White House and you're dealing with red states or the Republicans control the White House and you're dealing with blue states. But sometimes you might have a situation where you have a Republican federal government and you have a red state trying to do something or do more. So again, it's certainly an interesting overall area. Even if the court did not take.
- [10:03]
Sarah Isgur
This particular case well, there were other cases that I'm sure were mildly interesting. On the deny list. It was a 39 page order and over 30 pages of it was just cert denied, cert denied, cert denied. Then you have another two pages of habeas corpus denied, habeas corpus denied, and rehearings denied. So all in all, 39 pages of denied. Now let's talk about what got granted. Big one that everyone's talking about is this Hawaii case. For those that remember our AO episode on the Spirit of Aloha, this is actually not that case. Many times these cases do come back and we're like, remember that time. This is related to that case, but it's not the same case. So in that Spirit of Aloha case, the guy gets arrested hiking when he accidentally slashed whatever, traversed some private property with a gun and did not, had never applied for a license. He then tried to argue that the licensing scheme was unconstitutional. And they're like, yeah, you have to apply for the license to argue that it's unconstitutional. So David, when that case got to the court, it was cert denied. But in that one you had Justices Thomas and Alito with a statement respecting the denial of cert, where they basically said like, yeah, this is coming up on like a, an interim posture. The guy wants to stop his prosecution on the front end. Why don't you come back to us on the back end? But also state court, state Supreme Court of Hawaii, we're watching you and what you've done here is egregious and we hate you. I mean, that's basically what it said. It was, though a little more like we hate you because you hate us. Here's a. Here's a line from it. The Hawaii Supreme Court spent the bulk of its opinion explaining why the Hawaii Constitution does not confer an individual right to bear arms. Why, with its analysis that doubled as a critique of this court's Second Amendment jurisprudence, the Court specifically took aim at our focus on original meaning. Bemoaning the policy consequences, the Court asserted that an originalist interpretation of the Second Amendment disables the state's responsibility to protect public safety, reduce gun violence, and safeguard peaceful public movement by putting firearm restrictions mostly out of bounds. And 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. On the Hawaii Supreme Court's view, a sounder approach to constitutional interpretation would give due regard to the spirit of aloha and would preclude any individual right to bear arms or at least subject it to levels of scrutiny and public safety balancing tests. So that opinion was, I will grant you, a little bit bonkers town because there's like a whole lot on spirit of aloha and there's like one or two paragraphs on the Second Amendment. But to maybe the theme of this podcast, it was not the best vehicle because sort of the posture that it came up in and the fact that the guy hadn't ever applied for the license. You had Thomas and Alito saying that that doesn't prevent someone from attacking the constitutionality once they've been arrested. But nevertheless it felt a little bit off. Okay, so here's this case that they've granted cert on. This is seeking an injunction against Hawaii's law. And California, by the way, has the same law. And I think three other states where if you're on private property, it doesn't matter whether you have a concealed carry license. The private property. In Hawaii, you must have explicit permission from the private property owner to carry on private property. In California, that explicit permission must be posted in writing. Oral permission or private written permission is not sufficient. And this covers private property and then bans entirely insensitive places. And we certainly talked about sensitive place laws in the past. David French is a fan, by and large. So David Latt, what do you think of this case? Are you surprised that they granted another Second Amendment case this term? Are you surprised they went with this one? How do sensitive places fare? And you know the argument from the Second Amendment, folks, is this, this private property loophole, so to speak. Basically, they call it the, you know, the anti bruin or the unbrewing of the Second Amendment, wherein like so much, is private property that you would never really be able to conceal carry if every single place you'd go into or walk on, you wouldn't be able to private carry unless there's a concealed carry. Sorry, unless there's a posted sign telling you you can, which nobody's going to do.
- [14:43]
David Latt
And so this is the question presented whether the Ninth Circuit erred in holding that Hawaii may presumptively prohibit the carry of handguns by licensed concealed carry permit holders on private property open to the public unless the property owner affirmatively gives express permission to the handgun carrier. I just want to highlight the open to the public language. So, for example, one of the things that came up before the 9th Circuit is a bank and whether or not if you have a concealed carry permit, can you bring your gun into a bank if the bank itself does not want you to do that? Because there is this distinction between, I guess you could call it private, private property, private property not open to the public, like my house or something, versus private property that is actually freely open to the public. And maybe a bank is, is stacking the deck against Second Amendment supporters because people just think of bank robberies. But what about a mall, for example? You know, there, it's very, very public in a mall. I believe there is a circuit split on this issue specifically because there was a case out of New York called Anton Yock v. James Tish. James being the Attorney General in New York and New York, like California and Hawaii, had passed a post Bruin gun law that did a lot of things. And one of them regulated carry, concealed carry on private property open to the public. And I believe the 2nd Circuit actually went the other way, as noted in Judge Graeber's opinion in Walford. So I guess there is a split on that issue. The other thing that's interesting is they seem to be, I guess you could kind of say, taking their time on the Second Amendment stuff in this sense. If you look at Walford V. Lopez, the 9th Circuit opinion, this is a pretty sizable opinion. It is, I think, something like 84 pages. And it was unanimous. So that's 84 pages of majority opinion. And it actually goes through a whole bunch of provisions of California and Hawaii law. And so the court decided to take this very specific issue and it decided to take it as to private property open to the public. So Kind of going to a point you've made on this podcast before. The court doesn't take just kind of cases writ large. It decides particular questions here. It really bit off a very discreet question. It didn't decide to take on the whole. Well, let's just review the entirety of these Hawaii and California laws. It's taking on this very specific, discrete issue.
- [17:41]
Sarah Isgur
All right, the other case that they granted, they only granted five and three of them are not AO level at this point. But the other one that I think is kind of fun is a Fifth Amendment takings case. And for some reason, David, I am just so into Fifth Amendment takings case. This one does not disappoint. It is Michigan. The last fun one was Minnesota. But, you know, they're all some reason in the Midwest. What's wrong with these states? So there's a long story that probably isn't worth getting into here, but let's just say I don't even think these people owed this tax, but it was a $2,000 tax lien on their property. That again, there's lots of reasons to think they never owed the tax. The tax commissioner seem to have like a personal beef with them or something because they went to court and won. And the tax commissioner was like, okay, fine, I can't apply those rules to those years, but I can apply it to this year because technically you didn't sue on that specific year, even though it would require the exact same legal analysis. So they owed $2,000. The tax collector sends this to the whatever person who forecloses on property in Michigan, and they foreclose on this property for the two tax lien and sell the property at private auction for. Or public auction, sorry, for $74,000. The person who buys that at the auction immediately turns around and sells it for $194,000. How much does the state owe the tax debtor? Is it $74,000 minus $2,000, or is it the $194,000 minus $2,000 that is, is it just the amount you sold it for, or is the fair market value the amount? And if you sell it at auction for something less than the fair market value, that's on you. You don't get to keep the windfall, though, if you manage to have a bad auction and it's clear that the fair market value is something else. And does this violate the 8th amendment's excessive fines? Which is another interesting question that the court has not reached yet. Although Justice Gorsuch seems hot to trot on that eighth Amendment question. David, I'm super into this case, even though on the, like, scale of cases that affect people's lives. Yeah, I think this one's pretty low on the sheer numbers. But screw these people. Like, the facts here are egregious, both leading up to the taking, and then after the taking, they sell it at public auction for something they know is below fair market value and then reap the windfall of that. As long as you can, like, have this in between time the same time. Like, what if the market has a dip? Is the state supposed to hold on to the property until they can sell it for more? What happens if they just can't get the fair market value at the auction? Doesn't that mean it's not fair market value? Isn't that what an auction's all about, is trying to get to the fair market value? Again, I'm super unsympathetic to that, but there is like a very practical problem here. Isn't the public auction the thing that determines fair market value?
- [20:48]
David Latt
Yes, that is, you're right, that is the issue. And it is not unusual. It's probably actually pretty common for auctions to be the way for a government to dispose of property. But I do agree with you about the facts here being egregious. And I think a lot of times in these types of cases, people just look at the facts and they imagine themselves in the shoes of the property holder. And, and if the vibe is sort of like, wow, you got a raw deal, you know, it's. Maybe it's a variation or analogous to the, you know, bad person stays in jail. This is sort of like the, you know, ripped off property owner gets relief. So I don't know. It is interesting what rule you can come up with that is going to be administrable, you know, by government which end up with this property. So, yeah, this case comes out of the sixth circuit you mentioned. It involves Michigan. It's Pung v. Isabella County.
- [21:53]
Sarah Isgur
All right, we're going to leave the long conference. By the way, note, we actually did get quite a few grants from the long conference in the last few terms. This was only 5. I went back to some previous terms where if you consolidate the consolidated cases, the grants were as low as three. I don't know. I'm not sure we should be like, gearing up for the long conference the way that I've been doing, because it's like this feeling like, oh, the summer's over, school's back in session. I'm so pumped to see my friends. But the long conference feels like homeroom, like nothing's really happening anymore. I don't know. When we get back, we'll talk about the sentencing of the would be Justice Kavanaugh assassin.
- [22:40]
David Latt
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- [24:08]
Sarah Isgur
All right, David, I want to refresh people's memories on the facts here. Nicholas Roski was on the front lawn of Justice Brett Kavanaugh's house at 1am with a black chest, rig, tactical knife, Glock 17 pistol with two magazines, ammunition, pepper spray, zip ties, a hammer, screwdriver, nail punch, crowbar, pistol, light and duct tape. He was. He saw the two marshals. I also believe the two marshals saw him and walked down the street. He called his sister, who then persuaded him to call 911 to turn himself in. That went to was going to go to trial. In the end, Nicholas Roski pleaded guilty. So we just had the sentencing. The prosecution sought 30 years, at least 30 years. And the judge sentenced Roski to 97 months. Eight years. Stated reasons for that one. While Nicholas Roski is the name on the indictment and the legal name of the person who was charged. During the course of these proceedings, Nicholas Roski requested to be referred to by female pronouns and by the name Sophie. Though again, the legal name hasn't changed and the legal title of the case hasn't changed. So on this podcast, we're still going to use because the case is Nicholas Roski. But I'm now quoting from the judge in sentencing two justifications. One, a lesser sentence was warranted because Ms. Roski, who had no prior criminal history, had abandoned her plan at the final moment, surrendered to authorities, told them about the plot, and was genuinely remorseful. Second, because of an executive order issued by President Trump mandating that transgender women be held at male only federal facilities, this could interfere with her continuing to receive gender transition care. And then there was this line, David, that I think people found particularly upsetting. The judge said, I am heartened that this terrible infraction has helped the Rosky family accept their daughter for who she is. So, David, the original plot included targeting three Supreme Court justices to be assassinated. This got pretty far along. If the marshals hadn't been there on the front lawn, this could have turned out very differently. I gotta say, I find eight years pretty outrageous.
- [26:42]
David Latt
I think a lot of people view this sentence as not sufficient. And not surprisingly, attorney Pam Bondi referred to it as woefully insufficient, arguing that it does not reflect the horrific fact of the case. And Bondi declared that the government would be appealing. And it's interesting, you know, the review on appeal is pretty deferential. It's essentially for reasonableness. I think there's a case here that this was not a reasonable sentence.
- [27:14]
Sarah Isgur
So I think that's tough. Right. On this abuse of discretion standard, Generally speaking, when you're talking about federal sentencing, the times where your sentence gets overturned is because the judge didn't calculate your sentence under the federal guidelines correctly, or now you have to calculate them correctly. You don't have to then stick to them. But if you calculate them correctly but don't want to stick to them, you have to give reason. So the other reason that sometimes these sentences get sent back is because the judge didn't really say why they were departing. Usually upwards. Usually it's the defendant who is appealing the sentence. So obviously this won't fall into either of those categories. Is it abuse of discretion? Not under that first reason. Right. There's just no way, like the idea, like, you don't have a criminal record and you abandon the plan, you cooperated with authorities, blah, blah, blah. Not Abuse of discretion. It's that second reason that you, because of President Trump's order, you won't be able to receive gender affirming care potentially in your hospital. So I'm giving you a lesser sentence. Well, that may be abusive discretion, actually your policy differences or that prison will be hard on someone. Prison's pretty hard, man. I wouldn't recommend it. Even so, I don't know, I think this is going to be difficult. The part that I think, though, David, if you are someone who has complained about threats against the judiciary under this administration and that those threats have gone up are concerning, are a threat to the rule of law. But then you turn around and are fine with an incredibly lenient, outside the guideline, downward departure sentence for someone who, I mean, came very, very close and was fully prepared to assassinate a federal judge. What are we doing here? You're just not okay with people like threatening federal judges who you like their decisions. That can't be the standard.
- [29:17]
David Latt
I think there's a decent chance that this judge is told, try again, because you're right, the standard is very forgiving to the trial judge. This is after a series of cases that made the federal sentencing guidelines no longer binding. They were binding for many years and so a judge had to stay within this narrow range of months. Now they don't have to do that. But again, this may not be the so often when they're talking about the standard of review in sentencing, they talk about procedural reasonableness or substantive reasonableness. Procedural reasonableness goes to whether or not the judge kind of messed up some step, for example, incorrectly calculated the guidelines range or something like that. Or, you know, there might be a procedural defect where, for example, a defendant is not allowed to address the court. They're supposed to be allowed to address the court. This so called allocution, you know, things like that substantive reasonableness is kind of like, okay, looking at the bottom line sentence, is that a, you know, fair and reasonable sentence? I think the sentence just seems really low.
- [30:31]
Sarah Isgur
So I wanted to hear outrage from the same crowd that talks about threats to the federal judiciary, like they should be outraged about this. And I'm not hearing much at all. But David, I have a pet theory as to why we're here. Or rather I want to apply previous pet theory to this situation, which is the end of the judicial filibuster is really bad for the judiciary and arguably the rule of law. So this judge, with whom I know nothing, about whom I know nothing, probably is a wonderful judge. Right? I just, I have no idea. This is not about this specific judge. However, this judge was confirmed, nominated, and confirmed after the end of the judicial filibuster for lower court judges. She was confirmed during Joe Biden's term. So actually after the judicial filibuster was gone. For every type of judge in the federal government, when you don't need votes from the other side, it's going to change the type of person who wants to be a judge, the type of person who can get confirmed as a judge. And my theory goes, some of the behavior you will see from judges who might want a promotion in the future because you're no longer worried as a federal judge, let's say you are a district judge, but you think I'd make an excellent circuit judge, just hypothetically? Again, I have no idea if this applies to this judge at all. The better way to do that circa 2005 was to keep your head down and sort of go to events, be known by the people you know who make these decisions. But you don't really want a paper trail of any kind, because when you actually go up for that confirmation hearing, like, you don't want them to really be able to ask you anything. Now in 2020, 2025, whatever version of the world you want to use, post filibuster, you're not worried about getting votes from the other side. You're worried about your own side sniping you for being insufficiently committed to the cause. And so you want to stand out for being the most committed to the cause. And I worry that things like this, that make judges the shiny blade of grass that's standing out help them in a post filibuster world in a really negative way. Yup.
- [32:48]
David Latt
I will not disagree with a word of that. I think that this is definitely something that makes this judge stand out. And if you had a Democratic president and Democratic control of the Senate, I could see this judge being hailed as a hero of sorts. So, again, you know, we'll. We'll have to see how that goes. I do feel that there has been this shift in the past couple of years in terms of public sentiment on, you know, sort of transgender issues. And this remains a very hot button issue. You've talked on some recent episodes about Supreme Court cases in this space. So, yeah, like, to kind of carry the banner for your side onto the field of battle in the culture wars. That does make you stand out when people are thinking about judges for possible promotions.
- [33:47]
Sarah Isgur
And to be clear, it's not because this involved Justice Kavanaugh that I think this. It's because of the statement on the transgender status that I think would make this judge potentially stand out. The Justice Kavanaugh part gives it the news hook, if you will. You wouldn't get a lot of news coverage over a sentence like this without that. But, yeah, I think this is. I think it's bad all around. All right, when we get back, we will talk about a speech that Justice Alito gave a few days ago on insecure originalists, as well as, I don't know, do a little glossary of different judicial philosophies that people can ascribe to these days. We'll be right back. Going online without Express VPN is like walking your dog in public without a leash. Most of the time, you'll probably be fine, but what if one day your dog wanders a bit too far and gets dog napped by someone? Whenever you connect to an unencrypted network, like in cafes, hotels, or airports, your online activity isn't protected. ExpressVPN protects you by creating a secure, encrypted tunnel between your device and the Internet, keeping hackers and snoops out. So why is ExpressVPN the best VPN? First, it's incredibly secure. The encryption is so strong that even with a supercomputer, it would take over a billion years to break through, meaning your data stays safe from hackers. Second, it's simple to use. Just open the app, hit one button, and you're instantly protected. No complicated setup. No tech expertise required. If I needed this product, it's what I would use. Secure your online data today by visiting ExpressVPN.com advisory that's E-X P-R-E-S-S V P N.com advisory to find out how you can get up to four extra months free. ExpressVPN.com advisory all right, David Latt, we are back to talk about Justice Samuel Alito's speech at the Antonin Scalia Law School. That's George Mason Law at the C. Boyden Gray center for the Study of the Administrative State. Now, David, this was open to the press, and it was not off the record. But I do want to be clear that I am using notes from someone who was attending in the audience. There was also media reporting on it. But some of the notes, of course, are a little more in the weeds that I like, versus some of the reporting that focused on Justice Alito's statements on Obergefell. But let's start with the Obergefell part. So, David Latt, you are married to Zach Shemtaub, of SCOTUS blog fame, Obergefell paves the way for your marriage. Are you concerned that this court could overturn Obergefell? Are you concerned that Justice Alito wants this court to overturn Obergefell?
- [36:45]
David Latt
No, I am not particularly concerned about a possible overruling of Obergefell, and I'm not alone in that. In the LGBTQ community, I had a podcast interview with Shannon Minter, who's a very well known LGBTQ rights litigator. And even Shannon didn't think that Obergefell itself is getting overruled. So this was, as you mentioned, the 2015 ruling that made same sex marriage the law of the land. And in this speech that Justice Alito gave, his quote was, and I'm quoting here, in commenting on Obergefell, I am not suggesting that the decision in that case should be overruled. Close quote. And then he went on to repeat some criticisms of the decision, criticisms that were included in his dissent in Obergefell. But I think it's important to note that saying I'm not suggesting that Obergefell be overruled is not the same as saying, if the viability of Obergefell came before this court, I would vote to uphold it. I think what he also said in this same talk was, well, Obergefell is a president of this court and it is entitled to the benefit of stare decisis or respect for what has come before, respect for precedent. And that is very obviously true. He's not stating anything controversial in that. But I guess what I'm saying with Obergefell is, look, you need five votes. And even if you might have three or, I don't know, maybe even four votes, I don't know that you have five for overruling it. And I don't even know, again, if the court wants to get into this, because remember, you have to get the four votes to grant cert. It'll be interesting. I guess. It was not resolved at the long conference. But Kim Davis, that clerk from, I believe, Kentucky who didn't want to issue same sex marriage licenses, she has a case before the Supreme Court where she actually frames her case as really kind of a religious liberty case. But she actually has a point in her brief saying Bergenfell should be overruled. And if there was a hunger on the court for doing that, they could grant her case. But I don't know that there is such a hunger.
- [39:27]
Sarah Isgur
So Obergefell was decided five, four, I believe. We'll see if you agree with me, that if Obergefell itself for the first time came before this Court, the outcome would have been different today. However, that's not the question. The question, now that this is a precedent of the Court is does it meet the stare decisis factors to follow even an incorrectly decided decision? And I mean incorrectly because some. I think a majority of Justices would have decided it differently, that even though it was decided incorrectly, we uphold it because of these stare decisis factors. And just to remind everyone. Right. Precedent. Stare decisis, however you want to think about it, is not about upholding cases that were correctly decided. Otherwise, we would just decide them the same way. Stare decisis only matters. Precedent only matters if you think the case was wrongly decided. So if you think the case was correctly decided, don't yell about precedent. It doesn't work very well. The people on the other side of Brown vs Board of Education tried the precedent argument for Plessy. Well, it's precedent. It's been around for 50 years. I don't think anyone is sitting around going, ooh, they really should have weighed those stare decisis factors differently. So what are those stare decisis factors that are relevant here? Was there a reasoning? Even if I don't, I wouldn't have ascribed to that reasoning. But it is a. Is it a reasonable reasoning? Like, was it grounded in something? And it was. It was grounded in the Equal Protection Clause. You know, Justice Kennedy provides that fifth vote, et cetera, et cetera, does lead Justice Scalia to have his famous dissent about, you know, if I were to join that opinion, I would hide my head in a bag. But the big one for Obergefell, of course, is reliance. Now, when it came to Dobbs, the reliance argument from the one side was that women have organized their lives around the ability to abort an unwanted child if they get pregnant. But the reliance argument that the other side made was, no, the reliance is nine months long, max. Like, once you are pregnant, you thought you could get an abortion, and now you can't. So, like, during the course of this litigation, we've basically wiped away the reliance interest, and the Court decided on that side. The same, by the way, really happened in Brown v. Board of Education. The reliance interest in having segregation was basically something like, we built all these schools to be segregated, and that was found not to be a particularly impressive reliance interest. Obergefell's so different on the reliance interest because, of course, people literally have families and children and, you know, don't have power of attorney letters because they don't need them because they're married. So it's automatic. Like, the Reliance interest is huge on Obergefell, maybe more so than any precedent I can think of currently at the court.
- [42:23]
David Latt
Yeah, I totally agree with you. Now, Kim Davis in her petition says, well, she, she graciously says, well, all you couples who are already same sex married, well, you can stay married. You kind of get, you know, legacied in, as they say. But yeah, the Reliance interests are still huge. And you can think of other contexts not involving just people who are already married, where people are relying on the existence of same sex marriage. So I, I think that is a big difference. And also remember Dobbs, Justice Alito's opinion in Dobbs has this language which refers to how this opinion should not be construed to cast doubt on the viability of certain other opinions. And I think that language in Dobbs was widely read as referring to something like Obergefell. So I am not personally too worried about that. I think what we will continue to see is religious liberty stuff, you know, but I don't think Obergefell itself is going to be revisited. And, you know, fun tidbit. Justice Kennedy's memoir is coming out next week and there's been some early reporting on it. I have a copy, but I have not yet read it. But there's been some reporting, I think Nina Totenberg, Seth Stern, a couple of other people have pulled out some highlights. And one of the highlights is that apparently after the paper bag insult that Justice Scalia included in his dissent, he. This was quite a bit later, but he actually came by Justice Kennedy's chambers to apologize for that and they hugged it out. And interestingly enough, and sadly, Justice Scalia passed away shortly after that, I think maybe a week or two later. So I think Justice Kennedy was glad that he was able to mend fences with Justice Scalia over that language before Justice Scalia passed.
- [44:28]
Sarah Isgur
It's so easy to forget that these people see each other and work together and have lunch together so much. I mean, as Justice Barrett said, it's an arranged marriage with no option for divorce. It can be easy to just read the words and think of it like a Twitter burn or something. But, like, you got to see that person the next day and sit and talk with them about like, their, you know, how their grandkids are doing. And like, that's going to be pretty awkward if you kind of insult someone personally like that. And the head in the bag thing was pretty personally insulting. Okay, let's expand this conversation out to Justice Alito's jurisprudence in general. He has referred to himself as a working originalist, a judge who strives to achieve originalist aims while working within the framework of our legal system. A common sense originalist, maybe a practical originalist. These are all terms that have been used to describe him. But I think the overall point here, he would push back on some of these late stage problems with originalism by saying you're trying to have originalism solve too much, to do too much. You think it provides answers to every question. Originalism 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, like, hold on to originalism white knuckled and, you know, shake the Magic 8 ball until it gives you the answer that you need, no matter how ridiculous that may be. And, you know, we've seen him in cases like, I forget whether it was the KYLO case about the infrared heat seeking or the Jones case about the GPS tracking, but in one of them, oh, no, maybe it was the violent video game case. Anyway, he and Justice Alito did not really share their views on originalism in one of the oral arguments, Justice Scalia and Justice Alito, right, they're like, they can be lumped in together by a lot of people, but actually they saw each other as not particularly compatible originalists in a lot of cases. And so Justice Scalia asks some questioned oral argument, and Justice Alito famously jumps in and says, what Justice Scalia is trying to ask is, what would James Madison have thought of video games and did he enjoy them? And, you know, it gets this big laugh in the crowd. But that's sort of actually Justice Alito's originalism in a nutshell, which is, look, at some point these analogies get so strained, and you do have this problem of how general or how specific the analogy is supposed to be. And like, originalism can't do all of that for you. At some point, you've got to use some common sense. Now, on the other side of that coin, I think he was also criticizing the common good constitutionalists who are like, f. Originalism. This is stupid. We should just sort of look to the skies and decide what the common good is that we think should be implemented on American society. Something much closer to living constitutionalism for the right. And Justice Alito's point to that is like, no, no, no, no, no. That's for insecure originalists. You're not secure enough to say, like, look, we go to the original understanding at the time of ratification. It is a contract. But if the contract runs out you use your brain. And Justice Gorsuch has said this too, right? Like there's going to be some amount of judging involved. That's just the way it's going to go. If this were a formula and we were mathematicians, this would all be much easier. We're not. And that's why we don't always get to the same answers. And that's why in a case like Rahimi, you've got somehow 27 concurrences in an 8:1 decision. So, David, what were some of your fun takeaways from this before we go through a glossary of judicial philosophies that we can maybe assign judges or professors to?
- [48:17]
David Latt
So I think your bottom line on Justice Alito's speech is correct. I think his argument is that some originalists are trying to make originalism do too much work or solve every problem. And he wants to take a more pragmatic approach where, yes, you do look at the original public meaning of some language, but maybe you also look at outcomes. And if an outcome is wrong, maybe you don't necessarily say, well, I'm going to be outcome oriented and rule a certain way because I like or don't like the outcome. But maybe it means that you made a misstep in your legal analysis, sort of check your work. There is also the issue of precedent or stare decisis. So I think what he wants to do is instead of treating originalism like this overarching philosophy that can resolve every case, I think he wants to use original public meaning as a factor in judicial decision making and a very, very important one, but not the sort of holistic, all controlling system for resolving anything. Now I think that the version of justice, sort of justice, Alito originalism, and I, you know, like whatever you would call this, I think it's kind of open to some of the same criticisms that originalists make of non originalist philosophies, because if you end up taking into account all of these other factors, then isn't it just judges making stuff up? And again, we can argue over the value of judicial restraint in originalism. And some people have sort of moved away from the sort of originalism 1.0 idea that, well, judicial restraint is a really important part of this. But I think all originalists share an aversion to not just making stuff up. And when I was reading the notes you shared with me about the Alito talk and about all the different factors that can come into play, it kind of occurred to me this is starting to sound briarian. This is kind of starting to sound like. Oh, like yeah. When people ask Justice Breyer, well, what's your philosophy? Well, I do a little bit of this and I do a little bit of that and I sprinkle in some paprika. Like it sounded kind of a lot like that. And let me actually kind of. If you were to sort of level a criticism of Justice Alito, I think a lot of folks on the left would say that he is of the conservatives, the most result oriented and progressives will challenge you. Find me a case where Justice Alito sided with the liberals, with other conservatives on the other side or find me a case where he voted against the conservative policy outcome. And I think it is probably fair to say that of the six Republican appointees, Justice Alito has probably voted for the outcome that would be regarded as liberal or progressive or Democratic or whatever. He's probably done that the least of all if them. And so you do have to wonder, well, is the reason that he does this because he doesn't follow originalism to where it leads, including some results that say benefit criminal defendants? You know, Justice Gorsuch, Justice Thomas there are originalists, self, self proclaimed identified originalists and they vote for criminal defendants way more than Justice Alito. So I think the criticism of the Alito philosophy is it's just too malleable and it just allows a judge to get to the results that the judge likes.
- [51:50]
Sarah Isgur
Yeah. Adam Feldman over in Empirical SCOTUS has some interesting stats that back up exactly what you said, David. Not only looking at where he sides with his fellow justices, but also looking at the types of cases he overturns from the lower court and who made up those judges on that panel even there at Bears out as well. Describing Justice Alito as a Burkean originalist I think is going to be the best way to predict your Justice Alito outcomes, which is. Right. This idea from Burke is that you don't go back to first principles. You don't always decide on theory. If something's been there, it's sort of the Chesterton's fence of judicial philosophies. 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, revolutions in politics are bad. Aim small. Ms. Small is the Burkean originalist. So here are the six areas that Justice Alito said originalism could go wrong. Number one, the common sense point we talked about, like don't accept outcomes that are insane. It probably just means you were doing originalism wrong. To your point, David, that's gonna though result in a lot of like, well, I don't think this outcome is good, so I must have been doing originalism wrong. Number two, absence of explicit text is not decisive. The structure of the Constitution exists. It's not always just about text. Three, icarian originalism, as in Icarus flying too close to the sun. Don't lose sight of what provisions meant to those who adopted them. Now, this is originalism in its most pure form in many ways. But I think he's here making the point of originalism versus textualism, if you will, or what Justice Barrett has said about original expectations don't control. I think Justice Alito is like, yeah, sometimes they do. Okay, number four, archaeological originalism. He does not like digging back through old 17th century cases to justify results. Using an example of Torres versus Madrid. A woman's driving a car. She tries to ram the police. Police shoot her. She drives 75 more miles and seeks medical attention. Was she seized under the fourth Amendment when shot? And the majority relied on a star chamber case from 1605 where a bailiff arrested a debtor by touching her with a mace to take her to debtors prison. Alito disagreed with the majority's use of this obscure case to justify what he viewed as a result that defied common sense that touching a suspect resulted in a seizure without actually seizing the suspect. Okay, number five, where originalism goes wrong, Originalism unmixed with non originalism. He thinks you can do both together. And number six, philosophical originalism, the philosophy of the founding era as a substitute for what founding era legislatures thought. I mean, but we just run into so many problems there, as we always do when we talk about originalism. David. But let me run you through some other types of judicial methodologies. And maybe methodology is a better term than philosophy. Okay. Living constitutionalism. This is the idea that the Constitution evolves with each succeeding generation, and it is up to the judges of that generation to apply the broad principles laid out in the Constitution to a modern society's problems. Chief Justice Earl Warren, right? He's like, you're living constitutionalist. Constitutionalist. Do you think there's anyone on the Court today who would say they're a living constitutionalist?
- [55:25]
David Latt
No, I kind of used to joke about this philosophy as well. This is the belief in the living, breathing, stairmastering Constitution. I just think that nobody wants to be associated with that, even very pragmatic justices. And look, I know that she has sort of walked it back or put some caveats on it, but remember What Justice Kagan said at her confirmation hearings, we are all originalists now. And again, you can overread that. And again, she has cabined it a bit. But I think what she's saying is, look, even I am not going to get up here and tell senators, oh, I believe in a living Constitution. I think any judicial nominee, not just for the court, but for lower courts who said that today, will get voted down.
- [56:12]
Sarah Isgur
Okay, formalism. This is the idea that a judge has to start from the very beginning, right? Think jurisdiction, standing, statutory authority. The most formalist opinion from the court maybe in history, but certainly modern history I can think of is the universal injunction case, Trump v. Casa, about the birthright citizenship order that Justice Barrett wrote. And I think Justice Barrett is the epitome of a formalist justice. I feel like 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 of the rise of judicial formalism. Do you think there is something uniquely conservative about formalism?
- [56:56]
David Latt
I think so, in the sense that, look, conservatism is very committed to the rule of law and to doing things the right way. And I think formalism adheres to that and embodies that. And I think one of the things that I personally like about Justice Barrett as a jurist is I think you could describe her as a lawyer's justice or a judge's justice. She wants to get things to make sense doctrinally. She wants the pieces of the puzzle to fit together nicely. I am all in favor of crossing those T's and dotting those I's. So, for example, in terms of formalism and the universal injunction issue, well, a lot of people say, well, what's the big deal? You can just get there by class actions. Well, it is a big deal because if you agree with her opinion in Trump v. Casa, one thing is allowed under the laws and Constitution of the United States, and one thing is not. And so I would probably describe myself as a formalist. And I think you're absolutely right that Justice Barrett is maybe the foremost formalist on the court today.
- [58:11]
Sarah Isgur
Who's the foremost originalist?
- [58:12]
David Latt
I suppose you would probably say Justice Thomas, because I guess, you know, he's been arguing for it longer than anyone, and I think he is so known for the history stuff, and a lot of people think of originalism as the history stuff. So I probably say him. But look, if you want to, you know, but there are lots of flavors, and I think this whole issue of the finer Points and disagreements of late stage originalism. I think you can make a case for, you know, not Justice Alito or the Chief, partly because of reasons we've already given. But I think all of the remaining four Justices can stake a claim to my version of originalism is best.
- [59:01]
Sarah Isgur
I think back when I was in law school, we were told originalism is for the Constitution, textualism is for statutes. But really they're the same thing. It's just, you know, we don't say originalism because what if the statute was passed, like, 10 years ago? That's sort of a weird phrase for it. But what you are doing is the same activity. It's just the text of a statute or the original meaning of the words of the Constitution. I don't know that that's what we think of as the difference between originalism and textualism anymore. A. Do you think textualism is now inherently different than originalism? And who's your textualist?
- [59:35]
David Latt
I may actually be somewhat sympathetic to your original version of the distinction because you're looking for original public meaning. And if you're dealing with a statute, well, you're looking at the original public meaning at the time that the statute was passed. Now, of course, for this, I kind of think of Bostock v. Clayton county about employment discrimination laws as to LGBTQ people. And of course, you had Gorsuch on one side, and he calls himself an originalist. And then you had, say, Justice Kavanaugh on the other side of that, and he calls himself an originalist.
- [60:11]
Sarah Isgur
But, David, let me. Let me break this out a little more. Like, I think that distinction was a really easy way to think about the difference between originalism and textualism. And I think today that originalism is about Justice Thomas's text, history, and tradition. You're looking at those historical analogues. What were the laws being passed that would have used the same words? What did they think they were doing? Whereas textualism now is like, well, we don't care what their expectations were. The text says what it says. And so those historical analogues may not do us a lot of good if the text, like equal protection of the laws means that. Or in the Bostock case, because of sex. Sorry, if you didn't think you were including gender identity or sexual orientation, but the text says what it says. I think that's a textualist argument more than an originalist argument, because to me, an originalist would say they did not think this included gender identity and sexual orientation. If you wanted to include that, no problem. But Congress just needs to amend Title vii.
- [61:13]
David Latt
That, of course, was the whole issue in Bostock where people were saying, well, you could say, I forget who was. Maybe it might have been Justice Alito who said, oh, well, you know, you're like a pirate ship, but you're flying the flag of the good guys. Like, oh, Justice Gorsuch, you're claiming to be an originalist, but not really. And people kind of said, well, he's kind of taking a more textualist view on the basis of sex, because of sex. But let me kind of give you my sort of pet theory on Bostock. So take the case. And again, Kylo or Kelo, this was the case about, you mentioned it earlier. This is the case about Fourth Amendment searches and thermal imaging. And Justice Scalia, who voted for the criminal defendant in that case, said, look, thermal imaging is a search. And even if they didn't have thermal imaging at the time of the founding, he imagined, well, would we, would the founders have viewed it as intrusive or a search? If you could see, you know, when the lady of, again, this is gendered. This is Justice Scalia, not me, when the lady of the House is drawing her bath. Like, if you had technology back then that revealed that, wouldn't we regard that as a search? So now fast forward to Bostock. Now, actually, if you look at transgender history, yes, there actually was some transitioning back then, but it was, it was, it was really not a thing back then. So here's my kind of theory. You can be an originalist when it comes to statutes, but if the issue being contemplated was just, you know, it's one thing if you do something that, you know, the language, the original public meaning of the language rules out. But I think you can argue that with Bostock, the legislators weren't even thinking about, you know, gender identity at the time. Now, if you ask them as an opinion poll, well, do you think transgender people, you know, should. Should get employment protections? And, you know, if you said, oh, you know, in 50 years or, I don't know, however many years there's going to be this ability to do this, well, then, you know, they were more conservative back then. So, yeah, they probably would have voted against it. But that's almost like a separate question. The original public meaning of the, that language in Title 7 did not resolve the Bostock question. It was like the thermal imaging in the Fourth Amendment. It was to be determined. So I don't, I think that I would use sort of Kylo, Kelo analog to look at Gorsuch's opinion in Bostock. Nobody was Thinking about transgender things at the time the law was passed, the.
- [63:42]
Sarah Isgur
Question then to me becomes like, okay, well, then which side gets the status quo? Do we read it in and let Congress take it out, or do we read it out and let Congress put it in? Either way, Congress could change this tomorrow if they wanted to. So for anyone who hates Bostock, go to Congress. Or if you're mad at the judges, the answer was, well, the judges should have let it go to Congress. I don't know. I get those cases are a big deal because Congress doesn't do anything anymore, but this goes to the Congress, do your job point. They wouldn't be a big deal if Congress actually reacted to Supreme Court decisions that they used to all the time. Okay, I want to touch on really quickly just two law professor theories. What I think now are called, would be referred to as law professor theories, legal realism. This is the idea that there is no objective methodology for determining what a law means that actually restrains the biases of judges. So stop trying to make fetch happen. In legal positivism, laws are created by people through governments and societal forces. They don't exist absent human structures. We'll put on the other side of that natural law, like just the opposite of legal positivism. All humans are born with a sense of moral morality and ethics, regardless of their society and time. Laws, therefore, are justified by these inherent moral truths. Do you think any justices would say that they're legal realists or.
- [65:06]
David Latt
I don't think any current justice would describe themselves as a legal realist in this sense. But I kind of think of legal realism as having sort of a strong form and a weaker form. I think the more modest claim of the legal realist would be, look, judges are people, too, and priors and prejudices and human factors. Like, for example, whether your colleague insulted you by saying, stick your head in a paper bag. Human factors will affect judging. And I think that was sort of the initial insight of legal realism back in the day, that it's not just all up in the ether, but I think the strong form of just. Well, it's just judges making stuff up. I mean, now you're kind of. It's almost sort of like this sort of postmodern thing of, well, it's all just power at the end of the day, and judges can do whatever the heck they want. And that kind of super strong version of legal realism I think everyone would reject.
- [65:58]
Sarah Isgur
All right, so then let's move on to the liberal side of judicial methodologies. Justice Breyer, of course, has described you know, pluralism, practicalism, as you said, it's a little bit of everything. Pour in what helps. Standards are good. We don't need bright line rules for everything. And Justice Breyer lives for a great standard and a 5 part test. Better if it's a 9 part test. Honestly, do you think that any of the current justices on the Court subscribe to the Justice Breyer model? And if not, what modifications would they make? What terms would they use? Because whereas we hear from five of the conservatives that they are originalists, again, not from the Chief justice. What are Kagan, Jackson and Sotomayor? What do they say they are?
- [66:44]
David Latt
So I think they might actually not be averse to some kind of label of pragmatism or practicalism or what have you. I think that that is regarded as an acceptable theory. Now, I think critics of it would say, well, that's just judicial activism, but you've sort of put lipstick on your pig there. But I think that, I think that those terms, practicalism, pragmatism, what have you, I think they are not so out of favor or out of fashion that, you know, people would say you're, you're crazy to accept them. Now, look, if you're at a confirmation hearing, I would probably still advise you against using them. But, you know, take Justice Jackson, who clerked for Justice Breyer. I think that she would probably, if you ask her, say, well, do you subscribe to Justice Breyer's approach? That's pragmatic, that's practical. I think she would kind of say yes. And again, I'm reminded of her dissent in casa, the universal injunctions case, where she kind of says, I'm roughly paraphrasing, very roughly, you know, if there's a right, there has to be a remedy for it. That's a very pragmatic approach. That's not getting hung up on the formalism or the niceties. It's basically saying, yeah, if there's something wrong out there, well, judges can fix it.
- [68:06]
Sarah Isgur
All right, David Latt, this has been a real treat to have you. Thank you for joining Advisory Opinions.
- [68:14]
David Latt
Thanks again for having me, Sarah.
- [68:15]
Sarah Isgur
That's it for us today. If you like what we're doing here, there are a few easy ways to support us. You can rate, review and subscribe to the show on your podcast player of choice to help new listeners find us. And we hope you'll consider becoming a member of the Dispatch, unlocking access to bonus podcast episodes and all of our exclusive newsletters and articles. You can sign up atthedispatch.com join and if you use promo code AO, you'll get one month free and help me win the ongoing, deeply scientific internal debate over which Dispatch Podcast is the true flagship. And if ads aren't your thing, you can upgrade to a premium membership@thedispatch.com premium. That'll get you an ad, free feed and early access to all episodes to gift memberships to give away, access to exclusive town halls with our founders and a place in our hearts forever. As always, if you've got questions, comments, concerns or corrections, you can email us at Advisory opinions the dispatch.com we read everything, even the ones that say David's right. That's going to do it for our show today. Thanks so much for tuning in. We'll see you next time.
- [69:23]
David Latt
Sam.