Advisory Opinions – The Immunity Episode (February 26, 2026)
Podcast by The Dispatch
Hosts: Sarah Isgur and David French

Episode Overview

This episode, aptly named "The Immunity Episode," dives deep into the legal concepts of sovereign, absolute, and qualified immunity—why courts grant them, how they operate in practice, and their philosophical and partisan underpinnings. Hosts Sarah Isgur and David French also reflect on the State of the Union, recent Supreme Court cases, especially an immunity dispute over the U.S. Postal Service, and offer a lively Q&A from their visit to Florida State University’s First Amendment Clinic. Along the way, they discuss the ideological divisions, institutional tendencies of justices, how executive power and judicial philosophy intersect, and practical ramifications of congressional gridlock and evolving legal doctrines.

Key Discussion Points and Insights

1. State of the Union: Attendance & Institutionalism

• Who Showed Up: The Chief Justice, Kagan, Kavanaugh, and Barrett attended, reflecting what Sarah dubs the "institutionalist axis" of the court. Sarah notes, “The four justices are the most institutionalist justices on the court. Gorsuch, obviously like the least institutionalist…” (02:02)
• Institutionalism vs. Ideology: The discussion introduces the "333 court" concept, dividing justices not only by ideology but by institutional tendencies (those who uphold norms and traditions).
• Legacy of the Event: David critiques the tradition as “a legacy of Woodrow Wilson” and shares how his views on Wilson were influenced: “Now I’m just fully aware of who Woodrow Wilson was. And this is just another account in the indictment.” (04:12)

2. Recent Supreme Court Immunity Case: U.S. Postal Service

• Case Recap: A Black apartment owner alleges the Postal Service halted her mail delivery due to racial discrimination; she sued, but the question became whether Congress had waived the Postal Service’s sovereign immunity in such cases.
• Split Decision: 5-4 split (Gorsuch with liberals). Majority (Roberts, Alito, Thomas, Kavanaugh, Barrett): no waiver of immunity; Dissent (Sotomayor, Gorsuch, Kagan, Jackson): should be able to sue.
  • Sarah: “This was actually a really interesting lineup because it was 5, 4 along ideological lines with Gorsuch once again in the foursome.” (04:41)
• Core Issue: The meaning of “loss” and “miscarriage”—should courts interpret these terms in a “plaintiff-favorable” way under the FTCA, as the dissent urged, or broadly as the majority held?
  • David: “Thomas gave loss and miscarriage a pretty generous definition and the liberal three and Gorsuch did not.” (10:35)

3. Why Immunities Split Along Ideological Lines

• Historical Perspective: Current divisions are partly a legacy of 40-50 year-old judicial philosophies—legal conservatism was once more statist and corporatist, prioritizing institutional barriers over government accountability.
  • David: “Legal world is perhaps a lagging indicator to changes in the political world… All of the pool of people that [Reagan] can select as federal judges have come up in the older world.” (13:33)
• Sarah Questions the Paradox: If conservatives want smaller government, why do they like more immunity? They debate whether these are trailing ideological indicators or shifting rationales over time.

4. Gorsuch, Kavanaugh, and Consistency on Executive Power

• Who’s Consistent Across Administrations? Gorsuch is consistently anti-executive power, regardless of the administration; Kavanaugh is more pro-executive power, and thus may look more left or right depending on presidential party.
  • Sarah: "During the Biden administration, how often were we talking about Justice Kavanaugh as the swing justice... now we have the first major test of presidential power with a Republican in office. And all of a sudden we're like, where did this right winger come from?" (15:21)
• Personal & Philosophical Differences: Despite similar backgrounds, Gorsuch and Kavanaugh sharply diverge in jurisprudence—Gorsuch’s libertarian antipathy towards concentrated power and his affinity for underdogs set him apart.

5. Qualified Immunity in Practice: Critical Reflections

• Recent Case: NRA v. Vullo: Despite the Supreme Court affirming First Amendment protections in a dispute over government coercion of insurance companies doing NRA business, the official in question received qualified immunity due to lack of “clearly established” precedent.

  • Sarah: “You may like the First Amendment a lot, but you know what they [the Court] like even more? Qualified immunity.” (22:08)
  • David: “There had been other case law and around this... it wasn’t as if the idea that coercing somebody with your official position... was new.” (23:01)

• Doctrine Problems:

  • The test (“was it clearly established?”) lets courts skip deciding if there was even a violation.
  • Sarah: “As long as it wasn't clearly established, we never decide whether it was a constitutional violation... What are we doing here?” (24:56)

• Sarah & David’s Diverging Fixes:

  • Sarah likes some qualified immunity (with a better test), David wants more fundamental change or Congressional reform.

6. Broader Implications: Congressional Power, Filibuster, and Doctrine Drift

• Why Doesn’t Congress Fix Immunities? Partisans always hope to retain power and thus resist limiting executive authority.
• Philosophical/Pedagogical Note: Government immunity for itself undermines public trust; if government provided services have no accountability, faith in them erodes.
  • David: “For my big government friends, if you want government to work efficiently, you should be against immunities.” (27:09)

7. Florida State University Q&A Highlights

Court Civility & Dynamics (32:52–37:39)

• Civility Markers: Respect in oral arguments, not cutting each other off, sharing personal interests.
  • Sarah: “The biggest civility marker is that when a more senior justice is trying to talk, basically, are they all bending over backwards to allow each other to ask questions?” (35:29)
  • David: “If you’re sharing Slow Horses [a TV show], that is the definition of willing the good for the other.” (37:32)

Student Speech & Government Speech (38:47–41:46)

• Distinction discussed between government and student speech in schools and limits of restricting club messaging.

Legislative Veto, Filibuster, and Congressional Dysfunction (41:59–56:04)

• INA v. Chada and Legislative Veto: With legislative veto gone, presidential power is far less checked.
• Filibuster: Should it stay or go? A nuanced fix: allow a filibuster in one session, but after a new Senate, a majority can pass blocked legislation (idea from two Harvard Toms).
  • David: “I’d love a solution... if you can muster majority sentiment for two consecutive [Senate] terms, that should be enough..." (46:07)
• Agencies and Inaction: Both increased agency action and gridlock stem from and reinforce the filibuster and Congressional dysfunction.

What Happens if the President Defies the Supreme Court? (56:55–62:02)

• Ultimate Recourse: Impeachment and conviction are the only constitutional remedies. All other enforcement relies on executive compliance.
  • David: “The remedy is impeachment and conviction... it’s voluntary compliance.” (57:13)
• Historical Perspective: Supreme Court strength comes from its role as a countermajoritarian institution surviving and even growing through periods of defiance.
  • Sarah (quoting Jackson): “In spite of its apparently vulnerable position, this court has repeatedly overruled and thwarted both the Congress and the executive…” (60:21)

Notable Quotes & Memorable Moments

On the ideological split over immunity:

“It’s interesting that it was those four [justices at the State of the Union]. I agree with your analysis... The four justices are the most institutionalist justices on the court.” – Sarah Isgur (02:02)

On the legacy of Woodrow Wilson:

“Now I’m just fully aware of who Woodrow Wilson was. And this is just another account in the indictment.” – David French (04:12)

On qualified immunity absurdities:

“[Qualified immunity] reminds me of some of the more greatest hits of absurdities... The dog attacked you when you were laying down and on your knees is different from laying down.” – David French (23:01)

On executive power and judicial consistency:

“During the Biden administration, how often were we talking about Kavanaugh as the swing justice? ...Now, with a Republican in office, all of a sudden we're like, where did this right winger come from?” – Sarah Isgur (15:21)

On Supreme Court’s moral force:

“It has been an angry collision with the most dynamic and popular presidents in our history... With no might except the force of moral judgment, [the Court] should attain actual supremacy as a source of constitutional dogma.” (Jackson, quoted by Sarah, 60:21)

Important Timestamps

• 00:02 – Opening, State of the Union attendance, “institutionalist” axis
• 04:41 – Supreme Court’s USPS immunity case recap
• 10:36 – Canons of construction, split over statutory interpretation
• 12:00–15:21 – Why immunities break down on ideological lines, lagging indicators in judicial ideology
• 15:21–17:35 – Gorsuch vs. Kavanaugh, executive power, and partisan swings
• 22:08–29:59 – Qualified immunity, NRA v. Vullo, critiques and potential fixes
• 32:52–62:02 – FSU Q&A: Supreme Court civility, student speech, filibuster reform, enforcement of Supreme Court orders

Conclusion

The Immunity Episode offers a rich, dynamic, and accessible tour through the thorny doctrinal and philosophical issues surrounding legal immunities in America—balancing colorful real-world cases, partisan shifts, and the sometimes counterintuitive alliances and splits on the Supreme Court. The episode closes with a lively and substantial Q&A, reflecting on everything from internal court dynamics and institutional design to practical problems in constitutional enforcement. As always, Sarah and David deliver sharp legal analysis laced with humor, thoughtful critique, and deep knowledge of the American legal tradition.