Advisory Opinions – "Sotomayor vs. Kavanaugh?"

Podcast by The Dispatch | April 14, 2026
Hosts: Sarah Isgur (A), David French (B)

Episode Overview

This episode explores three main themes:

• A rare and pointed public criticism by Justice Sotomayor of Justice Kavanaugh—and the broader norms of Supreme Court collegiality.
• The curious (and sometimes comical) saga of corporate personhood, with discussion on Stephen Colbert's fascination and key Supreme Court precedents.
• A whirlwind tour of quirky and significant cases from federal circuit courts, including judicial "seal wars", home distilling regulations, and the newest frontier in sports betting law.

Along the way, the hosts reflect with their trademark combination of legal depth, historical context, and snappy wit—plus some honest concern about the pipeline of elite judicial appointments.

1. Justice Sotomayor’s Public Critique of Kavanaugh

Main Discussion: [03:53–10:28]

Background

• Justice Sotomayor recently made comments at a public event regarding the Noem v. Perdomo case (regarding immigration stops in LA), specifically critiquing a colleague—who, without naming, was clearly Justice Kavanaugh.
  • Quote: “I had a colleague in that case who wrote that these are only temporary stops. This is from a man whose parents were professionals and probably doesn’t really know any person who works by the hour.”
• This public critique broke with longstanding Supreme Court norms, where disagreements typically stay “on the page” (i.e., in written opinions).

Hosts' Analysis

• David [06:59]:

  "I'm putting it pretty strongly on the inappropriate side... To me, it's not even a close call. It was over the line in its personal nature."

• Sarah [08:17]:

  “I just don’t like when someone else makes an assumption...that’s the part I object to.”

  • Adds that public events sometimes lead to regrettable off-the-cuff remarks: “Sometimes you actually do say what you mean. But in hindsight, you’re like, you know what? That was the wrong venue. I didn’t need to say that out loud.”

Memorable Moment

David references his wife Nancy’s alarm at increased partisanship: Not the judges too! (“Everything that's chipping us towards that—not the judges too—are inching us towards. Not the judges too. I don't like it.” [07:39])

Context & Norms

• The hosts agree that the comment likely crossed a line, though both allow for the possibility of a “mulligan” since speaking publicly can lead to regrettable moments—especially for Supreme Court justices, whose words are “practically pre-viral.” [09:31]

2. Stephen Colbert, Santa Clara County, and the Origins of Corporate Personhood

Main Discussion: [10:28–24:18]

Key Issues

• Stephen Colbert’s deep interest in “corporate personhood” (e.g., Santa Clara County v. Southern Pacific Railroad) and attempts to get a ballot question on it.
• The mythology around the 1883 Santa Clara case: The supposed establishment of corporate personhood in its case header, not its actual holding.
  • Quote: “So, we keep citing Santa Clara county for a holding that it never made.” [12:23]
• The real historical evolution and ambiguity around corporate rights in the U.S.—touching on different constitutional protections (speech, search/seizure, self-incrimination).

Legal and Philosophical Take

• Sarah:

  “Why shouldn’t a corporation...have a right against self-incrimination? That feels like a bit of a weird line to me.” [16:38]

  • Notes differing treatment for Fourth and Fifth Amendment rights.
• David:

  “Is a corporation an entity that exercises rights? ... The more I've wondered what the alternatives are.” [16:54]
  “It’s unfortunately unfortunate that we landed on personhood as the term, because we’re really talking about an entity that exercises rights and person is sort of the box that we jam it into.”

  • Points out: Individuals use associations (corporations) to amplify their voices, raising the stakes if only natural persons could have rights.

Notable Quote

• “Corporations are people too, my friend. Well, you can’t date your daughter’s corporation. You know that there’s...obvious ways in which that feels like an absurd statement.” – David [16:54]

Citizens United and Free Speech

• Both hosts reiterate that Citizens United is widely misunderstood—and not nearly as radical as presumed.
• Sarah notes:

  “Penguin Random House could, in theory, Congress could prevent...from publishing a book the last page of which says, so don’t vote for Republicans without Citizens United. It makes no sense to me why people hate that decision so much.” [23:48]

Key Takeaway

The concept of corporate personhood is, indeed, “weird”—but attempts to replace it create even stranger (or more dangerous) alternatives.

3. Judicial Pipeline and ‘Clerk Family’ Elitism

Main Discussion: [27:25–35:36]

The Issue

• The growing pattern: Circuit court judges and Supreme Court justices are frequently former Supreme Court clerks, often with Ivy League degrees and multiple clerkships.
  • Sarah: “Circuit judges must have clerked for the Supreme Court, and justices must be circuit judges first...You have to have sort of the wherewithal to know that that's how you get onto this conveyor belt in the first place.” [27:25]

Consequences

• Creates a narrow, insular pipeline—dubbed by David a “clerk family House of Lords” [33:49]
  • “Once you’re a clerk, you’re a member of the peerage and you have that potential.”
• Reduces diversity of background, perspectives, life experience.
  • Sarah reflects: “Compare this court to the one that decided Brown v. Board of Education...” [33:49]
    • In 1954, justices had vastly more diverse backgrounds (including elected office, military service), few had clerked or served as judges.
• Notable Quote:

  “I think we’re losing something, David. I think that’s important.” – Sarah [35:36]

4. Circuit Court Extravaganza: Seals, Bathtub Gin, and Sparkling Sports Betting

Main Discussion: [35:59–59:54]

a) The “Great Seal Wars”

• Sarah discusses the chaotic and inconsistent universe of circuit court seals (“seal chaos” [41:31])—focusing humorously on the Fifth Circuit’s plans to resolve having “at least six seals that are all really different” [35:59].
• Sarah: “The 8th Circuit looks like it was designed by the Oregon Trail graphic designers.” [39:20]
• David wonders if Congress could legislate uniform seal designs. Both agree—yes, probably, as it’s akin to funding/administrative matters not core adjudication.

b) Bath Tub Gin and Distilling Laws: 150-Year-Old Law Struck Down

Case: Fifth Circuit rules 19th-century law banning home distilling unconstitutional. [42:51–53:32]

• Written by Judge Edith Hollan Jones (“We concur that, while venerable, the statute violates the Constitution’s taxation and necessary and proper clauses.” [42:51])
• The law, meant to facilitate tax collection, outright banned home distilling of spirits.
• Hosts dissect:
  • Commerce Clause argument abandoned (not interstate commerce).
  • Taxing power: Congress can’t ban something just because it’s hard to tax.
  • Necessary and Proper Clause can’t “turbocharge the taxing power”.
• David: “This is a kind of a judicial override on congressional policymaking...Isn’t there just a giant amount of deference here?” [51:27]
• Memorable:
  • “Bathtub gin is not interstate commerce. Right. Unless...you’re putting [it] in the back of the Pontiac and...crossing your state lines...with the revenue agents in hot pursuit.” – David [45:05]
• Both debate whether the Supreme Court might take the case, given the age of the statute and the core congressional powers at issue.

c) Sparkling Sports Betting: “Event Contracts” vs. Sports Gambling

• Third Circuit case: Contracts for bets on sporting events, when regulated through the CFTC as “event contracts,” are federally preempted and shielded from state gambling laws.
  • Sarah: “To you, the consumer, they are identical. You win or lose money based on the outcome of a game...But under [federal law], it’s a derivative contract.” [56:56]
  • Notable and witty description by the Institute for Justice:

    “It’s only an events contract if it’s regulated in the CFTC region of DC. Otherwise, it’s just sparkling sports gambling.” [56:54]

• Hosts agree the issue is significant and likely Supreme Court-bound due to implications for state police powers and regulation of sports betting.

5. Short Circuit Newsletter: Amusing Case Highlights

[53:32–56:56]

Sarah shares two outrageous or amusing recent cases:

• An 11th Circuit employment discrimination case involving a PowerPoint slide stating “ideal sales candidates would be American and Caucasian”—“Jaw on the floor. We can’t believe this is the case that we’re doing.” [53:37]
• The wittily described Third Circuit sports betting event contract case (see above).

Notable Quotes & Memorable Moments

• On Justice collegiality:
  “Every one of us...who is out there in public...Sometimes you actually do say what you mean. But in hindsight...that was the wrong venue.” – Sarah [08:17]

• On the modern Supreme Court pipeline:

  “We have a path that is very narrow, that is narrowing even further into these clerk families. It’s sort of a clerk family, House of Lords.” – David [33:49]

• On corporate personhood:

  “I think at some level there’s like this invisible line where people will say, yeah, you know, the New York Times is a for profit company. It feels weird that the New York Times would not have free speech rights because its entire purpose is to speak. And then you get to like Microsoft and something in your, in your brain clicks over differently.” – David [16:54]

• On the circuit seals mania:

  “I am now looking at all the seals from all the circuits and how many there are...The 8th Circuit looks like it was designed by the Oregon Trail graphic designers.” – Sarah [39:20]

• On the sports betting case:

  “It’s only an events contract if it’s regulated in the CFTC region of DC. Otherwise, it’s just sparkling sports gambling.” – Institute for Justice, read by Sarah [56:54]

Timestamps for Key Segments

• 03:53 – Justice Sotomayor’s public comments on Kavanaugh: Is it out of bounds?
• 10:28 – Stephen Colbert, Santa Clara County, and corporate personhood
• 23:48 – Citizens United, free speech, and what’s really at stake
• 27:25 – The shrinking, elite Supreme Court/circuit judge pipeline (“clerk families”)
• 35:59 – Circuit seal wars: Confusion and comedy among circuit court emblems
• 42:51 – Bathtub gin and the Fifth Circuit’s striking down of a home-distilling ban
• 56:54 – Third Circuit: “Sparkling sports gambling” and federal preemption over state betting laws

Final Notes

• The episode weaves sharp legal commentary with wry humor, grounding technical discussions in relatable contexts.
• Both hosts consistently look for underlying principles, unintended consequences, and the broader meaning for the law and democracy.
• The episode closes with teasers for future explorations of AI and prediction markets in law.

For more detail, subscribe to Advisory Opinions or check out saraisger.com and thedispatch.com.