Podcast Summary: Advisory Opinions
Episode: The Federalist Society Takes a Stand
Hosts: Sarah Isgur and David French
Date: November 11, 2025
Overview
In this episode, Sarah and David discuss recent developments at the Supreme Court, review a vibrant and notable Federalist Society National Lawyers Convention, and dissect developments in major First Amendment and Title IX cases. The episode features a special segment with Chief Judge Jennifer Elrod on the ongoing judicial budget crisis and the plight of CJA attorneys. The hosts draw a sharp contrast between leading conservative institutions’ responses to antisemitism and end with discussions of presidential pardons, federal judge retirements, and the practical consequences of Congressional dysfunction.
Episode Structure & Time Stamps
- [Supreme Court Updates: Cert Denials, Grants, and the Passport Case](00:00–06:11, 27:14–35:25)
- Federalist Society Convention: A Stand on Antisemitism
- FedSoc vs. Heritage: Conservatism in Contrasts
- Title IX & Pronoun Cases: The 6th Circuit’s En Banc Decision
- Special Interview: Chief Judge Jennifer Elrod on Judicial Shutdown
- Pardons, Retirements, and Final Thoughts
1. Supreme Court Updates: Cert Denials, Grants, and the Passport Case
Cert Denial in Kim Davis/Obergefell Challenge
- The Supreme Court summarily denied cert in the Kim Davis case—a longshot bid to overturn Obergefell v. Hodges—with no written opinion or dissents.
- Sarah Isgur [03:10]: “It was just in a long, long list of cert denials.”
- David French [03:45]: “Nothing about this was surprising at all… this would have been a surprise completely outside of the realistic set of probabilities...”
- Sarah recounts her brief moment of panic, having misread a headline and momentarily believing cert had been granted:
- Sarah [04:12]: “I realized that I would have to change my entire paradigm of how I understand the court... I went back into the paradigm that I live in.”
Cert Grant: Ballot Counting & Mail-In Ballots
- The Court granted cert on a ballot-counting case that will determine whether federal law requires mail-in ballots to be received by Election Day (27:14+).
Passport Case (Title IX & Gender Marker Litigation)
- The Supreme Court, by a 6–3 vote, allowed the Trump policy (listing sex assigned at birth on passports) to go into effect while litigation continues.
- Discussion focused on harm to transgender travelers, discrimination, and the legal versus policy aspects.
- David [32:28]: “Not surprised at this outcome... If the law is inhibiting accurate identification of people as citizens, then it’s a bad policy.”
- Sarah and David discuss the right to travel as a possible legal avenue, but remain skeptical about a successful Equal Protection claim.
2. Federalist Society Convention: A Stand on Antisemitism
[06:11–17:37]
- Sarah provides a “field report” from the 2025 Federalist Society National Lawyers Convention.
- Notable changes under new president Sheldon Gilbert: high energy, fresh topics, and a sense of “joyful” unity.
- Panel Highlight: “A person without prejudice against any group – The American Tradition of Religious Respect,” convened against a fraught backdrop: the Heritage Foundation’s president supporting Tucker Carlson after his softball interview with avowed antisemite Nick Fuentes.
- Sarah [11:33]: “The Federalist Society did not stand with Tucker. And it seemed quite an intentional... contrast.”
- Ted Cruz gave opening remarks; ten prominent federal (and state) judges spoke, and about 1,000 people attended, standing-room only.
- Moving stories:
- Judge David Stross shared his family’s Holocaust survival.
- Judge Thapar/Oldham (devout Christians) spoke against antisemitism as un-Christian.
- Judge Branch recounted supporting Jewish colleagues after October 7 by traveling to NYU in solidarity.
- Sarah [17:03]: “David, there were a thousand people standing at the end… There were tears in this room.”
Notable Quote:
- Ted Cruz, citing George Washington [16:52]: “Everyone shall sit in safety under his own vine and fig tree, and there shall be none to make him afraid.”
3. FedSoc vs. Heritage: Conservatism in Contrasts
[17:37–26:35]
- David [17:37]: “If you’re going to look at a through-line of conservatism with integrity... the Federalist Society judges were the ones who threw themselves in front of the effort to steal the election in 2020.”
- He calls the Heritage vs. FedSoc contrast "what the conservative movement has become vs. what it can be."
- Stresses the moment’s gravity for Jewish Americans: “We’re now in the age... of the bullhorn, and you need a bullhorn back that says absolutely not.”
- Sarah observes the generational divide within the Federalist Society, with “common good constitutionalists” and “Nick Fuentes-curious types” in law student ranks, but hopes the united front of top judges and Cruz sends a strong signal.
- Sarah [21:02]: “If you want to clerk... that ain’t gonna happen if you’re out there doing the based ritual in your FedSoc chapter.”
- David discusses youth activism, the inversion of institutional authority, and why the structure of legal careers still preserves a healthier hierarchy compared to “woke” or far-right generational revolts.
- David [25:32]: “Your Instagram followers aren’t really relevant to your hourly billing. Right.”
4. Title IX & Pronoun Cases: The 6th Circuit’s En Banc Decision
[35:25–47:45]
Sixth Circuit En Banc Pronoun Case
- Case involved a school that barred students from misgendering transgender and nonbinary peers; parents/students argued it compelled speech and constituted viewpoint discrimination.
- Sarah [40:45]: Outlines Judge Batchelder’s concurrence: compelled speech, viewpoint discrimination, and Tinker’s application only to disruption, not compelled speech/viewpoint cases.
- David [38:29]: Urges listeners to read the case for a primer on post-Tinker student speech law and First Amendment/harassment law intersections.
- David [45:13]: “Protecting students from harassment is still mandatory... those two things have to exist side by side.”
- Helpful frameworks for harassment vs. protected speech:
- Eugene Volokh’s: One-to-many speech is almost never harassment, one-to-one can be.
- David [47:45]: “Is it one-to-one, is it time, place, manner—these help us discern the difference between free speech and harassment.”
5. Special Interview: Chief Judge Jennifer Elrod (5th Circuit) on Judicial Shutdown
[47:45–64:13]
Judicial Shutdown and its Consequences
- Judge Elrod explains the deep impact of Congress’s budget failures:
- Court workers, law clerks, IT, and staff are unpaid or furloughed.
- CJA (Criminal Justice Act) attorneys, who represent indigent criminal defendants (60% of such cases), haven’t been paid since July 2025.
- New Mexico: some CJA attorneys refuse new cases, cases stalled or threatened with dismissal—justice at a standstill for accused and victims.
- Judge Elrod [55:41]: “The noble ideal cannot be realized if the poor man charged with crime has to face his accusers without a lawyer to assist him.”
- Sarah [56:55]: “If we don’t have an attorney... you simply get to go free unless we fund this program. And that is not fair to victims, and it’s certainly not fair to the larger public.”
- On the “chief judge” role:
- Judge Elrod [61:00]: “It was not a popularity contest... You were the most senior judge who has not yet reached 65... You serve your court, you don’t boss your court.”
6. Pardons, Retirements, and Final Thoughts
[66:18–72:13]
Presidential Pardons
- Trump issued pardons to Rudy Giuliani, John Eastman, Jenna Ellis, etc.—even where they face only state charges.
- David [66:41]: “There is no public corruption law right now that applies to friends of Trump... It’s hard to think... how dangerous this is.”
- Both hosts advocate a constitutional amendment requiring Senate confirmation for presidential pardons.
Federal Judges Retiring or Resigning
- Discussion of Judge Wolf’s resignation to allow for criticism of the administration—cited as the honorable way.
- David [69:47]: “This is the way. Honorable. It’s done in an honorable fashion.”
Judicial Appointments and Future Vacancies
- Some Republicans urge aging judges to retire before 2026 to guarantee replacement with Republican picks.
- Sarah notes that Trump’s circuit appointments have been "fantastic, by and large."
- David expresses wariness about Trump’s overall posture toward the judiciary.
On Perpetual CR Funding
- Both unequivocally oppose the idea of automatic/futureless government funding, arguing it shields Congress from its most basic constitutional responsibility.
- David [65:03]: “Could you imagine a greater gift to the grifters of Congress... than permanent government funding?”
Notable Quotes & Memorable Moments
- Sarah [04:12]: “I realized that I would have to change my entire paradigm of how I understand the court...”
- Ted Cruz/George Washington [16:52]: “Everyone shall sit in safety under his own vine and fig tree, and there shall be none to make him afraid.”
- David [19:12]: “We’re now in the age... of the bullhorn, and you need a bullhorn back that says absolutely not.”
- Sarah [21:02]: “...if you want to clerk... that ain’t gonna happen if you’re out there doing the based ritual in your FedSoc chapter.”
- Judge Elrod [55:41]: “The noble ideal cannot be realized if the poor man charged with crime has to face his accusers without a lawyer to assist him.”
- David [66:41]: “There is no public corruption law right now that applies to friends of Trump...”
- Sarah [68:45]: “Let’s give Congress some extra work here. Last updated, a judge in Massachusetts retired or quit... This seems like the right way to do it.”
Tone & Style
Engaged, direct, and deliberately unvarnished—the hosts clearly stake out positions on legal rigor, institutional responsibility, and the moral crisis of the moment, especially regarding antisemitism and judicial independence. They mix personal anecdotes, legal history, and current events with humor and the earned gravitas of deep professional experience.
For Listeners Who Missed It
This episode is essential for anyone interested in the intersection of law, politics, and the real-time evolution of American conservatism. From Supreme Court maneuvers to the existential questions facing institutions and the judiciary, the hosts provide clear analysis, behind-the-scenes color, and no-nonsense moral clarity. The segment with Chief Judge Elrod is invaluable for understanding how Congressional dysfunction is undermining both criminal justice and the rule of law at a granular level. The episode also offers actionable insights for legal professionals and students grappling with contemporary challenges in the conservative legal movement.