Advisory Opinions — Podcast Summary
Episode: Supreme Court Justices Spar Publicly
Date: March 12, 2026
Hosts: Sarah Isgur & David French

Episode Overview

In this episode of Advisory Opinions, hosts Sarah Isgur and David French dive into multiple high-profile topics involving the Supreme Court, focusing on public disagreements among the justices, shifts in public trust, and recent and pending cases. They also explore a fascinating Fifth Amendment case on tax forfeiture, discuss the confrontation clause in criminal trials, and end with memorable appellate law moments—complete with taxidermied marmots as hypothetical weapons in legal arguments.

Key Discussion Points

1. Public Trust in the Supreme Court and National Institutions

Timestamps: [03:06] – [10:33]

• Decline in Trust: Sarah highlights NBC polling that shows American confidence in the Supreme Court has dropped steeply since 2000, mirroring wider institutional decline.

  • "So there are now 38% have very little or none at all. That's up from 13% back in 2000." [06:40]

• Comparison with Canada: The U.S. is unique among major nations for holding negative views about its own people.

  • "The US was the only country where a majority rated their fellow Americans as somewhat bad or very bad." — Sarah, [03:56]

• Cultural and Media Drivers: David suggests this trend is more than just "the algorithm" but comes from deeper societal and media polarization.

  • "There's gatekeepers who make sure...if you say anything nice... you are absolutely gang tackled." — David, [05:23]

2. Supreme Court Justices: Civil Public Disagreements

Timestamps: [10:33] – [21:45]

• Event Recap: Sarah covers a recent joint appearance by Justices Jackson and Kavanaugh, where they debated the "shadow docket" and the Court's handling of Trump-related emergency applications.

• Notable Quotes:

  • Justice Jackson: “I just feel like this uptick...is a real unfortunate problem...it affects how lower court judges approach cases.” [11:10]
  • Kavanaugh: “None of us enjoy this...” and, “We have to have the same position regardless of who is president.” [13:02]

• Hosts’ Take on Public Disagreement:

  • Both hosts are “torn”—Sarah likens it to the proliferation of concurring opinions that may weaken institutional voice, while David notes the value in transparency but worries about the risk of public sparring going awry.
    • “I think there is some real value in getting the justices' individual thoughts...it could be illuminating... But...something happens, and it just kind of devolves...” — David, [14:06]
    • “It’s a trade off...I think it is better for the Supreme Court to have justices from different ideological paths speaking together.” — Sarah, [19:12]

• Substantive Dispute:

  • Both justices dislike the frequency of emergency (shadow docket) applications, but Jackson blames the Court's willingness to reverse lower courts; Kavanaugh argues they're just responding to the legislative gridlock.
    • “Justice Jackson thinks changing lower court rulings invites more emergency apps...Justice Kavanaugh’s like, look, we’re getting more because Congress isn’t doing it.” — Sarah, [20:38]

3. The Supreme Court and Presidential Clashes

Timestamps: [24:49] – [30:13]

• Trump Criticizes the Court: This week, Trump said, "I think the Supreme Court ought to be ashamed of itself for a lot of reasons...They have hurt this country so badly because they haven't had the guts to do what's right." [24:49]
• Historical Perspective:
  • Sarah posits that friction with powerful presidents is what forged the Court’s institutional strength—"stress wood" that helps withstand future storms.
  • David: "The court is the only one...that seems to play the long game." He worries, however, that persistent attacks do short-term damage to the Court's reputation, even if it “overcomes the slings and arrows” over time. [28:30]

4. Fifth Amendment Takings Clause Case: Pung v. Michigan

Timestamps: [32:18] – [41:37]

• Case Facts:

  • Michigan seized and auctioned a man’s $194,000 home for ~$2,000 in unpaid taxes (which a judge had ruled he might not owe). The home sold for $76,000 at auction, but the owner was only compensated in the amount of the auction surplus, not full value.

• Key Issues:

  • Does the Fifth Amendment require compensation at fair market value, not undervalued auction price?
  • The Sixth Circuit said the auction price was sufficient; SCOTUS is now grappling with the unfairness.

• Memorable Quotes:

  • Justice Barrett (via Sarah): “It seems like there was some real unfairness to your client…I mean, frankly, reading the briefs, it sounds to me like the tax assessor was like Inspector Javert. But it was even worse because Jean Valjean hadn't stolen the bread.” [34:20]
  • Justice Gorsuch went full libertarian, asking why the state couldn’t just seize a chair or a car instead.

• Hosts’ Take:

  • David notes, “Bad facts could make bad law…You couldn’t design [this case] better in a lab that auction can create injustice.” [36:27]
  • They observe an ideological role reversal, with liberal justices less sympathetic and conservatives more open to addressing the unfairness.

5. Right to Counsel During Testimony: Villarreal v. Texas

Timestamps: [43:30] – [46:44]

• Case Summary:

  • Can a criminal defendant consult with counsel overnight during a break in their own testimony?
  • SCOTUS unanimously says: Defendants can consult overnight, but not to shape ongoing testimony.

• Historical Note (Alito’s concurrence):

  • Defendants were not allowed to testify in their own defense until 1987. [44:46]

• Hosts’ View:

  • “I think the outcome in this case is just so common sense and right.” — David, [45:51]

6. Appellate Law Fun: Lisa Blatt and Marmots

Timestamps: [46:44] – [50:57]

• Lisa Blatt in Hunter Oral Argument:

  • Memorable moment: “I'm just trying to get Justice Alito's vote. And what I'm trying to say to Justice Alito, I care about the rest of you, too.” [47:10]
  • Chief Justice Roberts gets a laugh: “It might be easier if you were medicated too for my job.”

• Judge Josh Deahl’s Marmot Hypothetical:

  • In a D.C. gun case, Judge Deahl writes:
    • “While you could bludgeon somebody with a taxidermied marmot or beat them with a non stick frying pan, a ban on stuffed rodents and regulations on Teflon cookware do not implicate the Second Amendment…” [49:15]
  • David quips: “Very effective last ditch self defense measure, I would say. If you've got nothing but the taxidermied marmot, don't consider yourself helpless.” [50:20]

Notable Quotes & Memorable Moments

On American Political Culture:

• “There's gatekeepers who make sure that's the case. So if you say anything nice or kind about somebody that you disagree with these days, you are absolutely gang tackled.” — David French, [05:23]

On the Public Supreme Court Disagreement:

• “This was hardly a knockdown drag out…I had a friend in the audience…just a respectful disagreement.” — Sarah Isgur, [13:02]
• “I think there is some real value in getting the justices' individual thoughts and sort of seeing how that dynamic plays out. So I have to say I'm legitimately torn about this.” — David French, [14:06]

On Fifth Amendment Case:

• “You couldn't design it better in a lab that auction can create injustice.” — David French, [36:27]
• “Justice Gorsuch was at his peak libertarian, anti government bully..." — Sarah Isgur, [39:07]

On Appellate Law Humor:

• “While you could bludgeon somebody with a taxidermied marmot or beat them with a non stick frying pan, a ban on stuffed rodents and regulations on Teflon cookware do not implicate the Second Amendment…” — Judge Deahl, as read by Sarah Isgur, [49:15]

Episode Structure (Key Segments & Timestamps)

• [03:06] — Declining trust in the Court and other institutions
• [10:33] — Recap of Jackson-Kavanaugh public discussion
• [24:49] — Trump’s criticisms and historical context of Court-presidential clashes
• [32:18] — Fifth Amendment ‘takings’ case: facts, oral argument, implications
• [43:30] — Villarreal v. Texas: right to counsel during testimony break
• [46:44] — Supreme Court humor: Lisa Blatt, appellate moments & marmots

Conclusion

The episode exemplifies David and Sarah’s ability to break down complex legal issues with clarity, humor, and keen historical insight. Whether parsing subtle differences in Supreme Court procedure or reveling in appellate eccentricity, they balance deep expertise with accessibility—with just enough levity (and marmots) to keep listeners engaged.