Podcast Summary: Advisory Opinions – "The Right-Wing Shake-Up"

Podcast: Advisory Opinions (The Dispatch)
Episode: The Right-Wing Shake-Up
Date: December 23, 2025
Hosts: Sarah Isgur and David French

Episode Overview

In this episode, Sarah Isgur and David French break down major shake-ups in the conservative legal movement, particularly the mass departure from the Heritage Foundation. They explore ramifications for the broader right-wing legal ecosystem, discuss significant Supreme Court interim docket activity (including a recent denial of stay in an immigration judge case), critique legislative attempts to force more Supreme Court transparency, and dive deep into the First Amendment through recent circuit court decisions on church autonomy and “land acknowledgments.” The episode wraps up with lively responses to listener hypotheticals about the suppression of evidence and Supreme Court oral argument representation.

Key Discussion Points & Insights

1. The Heritage Foundation’s Legal Exodus

(Starts at ~00:50)

• Background:

  • Josh Blackman has resigned as senior editor of the Heritage Guide to the Constitution, joined by the departure of the entire Meese Center and others to Mike Pence’s Advancing American Freedom (AAF).
  • A major driver was Heritage President Kevin Roberts’ controversial video seeming to align with far-right figures like Nick Fuentes, sparking a crisis of association for legal conservatives.

• Significance:

  • Heritage had become deeply integrated into the conservative legal network, running “clerk school” for law clerks and producing influential scholarship.
  • The shake-up means Heritage is no longer regarded as a key legal policy hub on the right.

• David’s Analysis:

  “The conservative movement…was not a set of silos, like individual organizations…The better way to look at it would be like a jigsaw puzzle…so that if one person pulls out, you’re losing a lot more than the one person.” (03:58, David French)

  • He notes that the separation now engulfing the right is more spectacular than anticipated and reflects a broader unraveling of decades-old institutional cooperation.

• Sarah’s Take:

  “I think the Heritage Foundation will turn into VFA—Vance for America—and become a quasi-policy arm for the campaign…It just happens to also have the name of this previous organization.” (09:07, Sarah Isgur)

• Role of Federalist Society & AAF:

  • Sarah is pleased the Federalist Society did not fill Heritage’s void due to its non-advocacy mission, while AAF now houses the legal conservative advocacy space.

2. Supreme Court Interim Docket: Immigration Judges Case

(12:19)

• Case Recap:

  • Immigration judges were restricted from speaking publicly without DOJ approval; a challenge argues this policy violates the First Amendment.
  • The 4th Circuit questioned whether the Merit Systems Protection Board (MSPB) was operational, raising jurisdictional issues. The Supreme Court denied a government stay.

• Significance:

  • Notable for rejecting Solicitor General’s request—rare, given the government’s usual track record on the shadow/interim docket.
  • Will Baude (SCOTUSblog):

    “Perhaps the Court is moving back to assessing irreparable harm with more nuance and precision. As it should.” (16:35, paraphrased by Sarah)

• Hosts’ Analysis:

  • David explains this is a “choose your own adventure” regarding executive power constraints—is it better for courts or a statutory scheme to constrain executive action?
  • Sarah notes the practical implications: the Supreme Court is signaling that not every loss by the government requires an instant halt from the Justices.

3. Should Congress Require Shadow Docket Transparency?

(20:09)

• Legislative Proposal:

  • The “Shadow Docket Sunlight Act” would mandate full Supreme Court opinions and voting disclosures for all emergency or interim orders.

• Sarah’s Critique:

  “Practically, this makes no sense on the ground…what’s the law supposed to be while they’re writing this?…it doesn’t make any sense to me.” (22:13, Sarah)

• David’s Response:

  “We want more writing. We would love to see more explanation. But that’s a should, not a must… [There] are some separation of powers issues here.” (23:01, David French)

• Both agree the unintended consequences could exacerbate, not solve, existing problems with the Court’s emergency docket.

4. First Amendment Roundup:

a. Church Autonomy Doctrine (D.C. Circuit) (24:57)

• Case Details:

  • Litigation against the U.S. Conference of Catholic Bishops over donors’ expectations for where their funds would go (Peter’s Pence collection).
  • Central question: Does church autonomy doctrine provide immunity from suit, or is it merely a defense?

• Judge Bumatay (9th Circuit), Judge Rao (D.C. Circuit):

  • Both have called for greater clarity, arguing such lawsuits risk unconstitutional judicial intrusion into church governance.
  • Quote (from Judge Rao):

    “Because state interference can include the process of judicial inquiry, the church autonomy defense is best understood as a constitutional immunity from suit.” (32:39, Sarah quoting Judge Rao)

• Hosts’ Assessment:

  • David: “It is just absolutely the case that if you are diving into discovery and you are having judges looking over the shoulders of pastors, elders, deacons, it is very difficult to do that without also interfering with ecclesiastical matters.” (34:42)
  • Both predict the Supreme Court will soon need to clarify the contours of church autonomy.

b. Land Acknowledgments and Free Speech (Ninth Circuit) (36:00)

• Case:

  • University of Washington required faculty to “recommend” a land acknowledgment. Professor Stuart Reges parodied it instead, sparking controversy and litigation.

• Ruling:

  • Ninth Circuit held the parody was protected speech.
  • David celebrates the “decisive legal defeat” for compelled speech and the chilling of campus free expression.

    “It was all illegal from the start. Like, a lot of this stuff was flat out illegal from the start. It didn’t have a ghost of a chance in federal court.” (36:32, David French)

• Reflection:

  • Sarah and David caution that, while the litigation tide has broadly vindicated speech rights, institutions must avoid swinging between “extreme censorship” and “extreme bigotry.”

5. Listener Hypotheticals & Q&A

a. Evidence Suppression and the “Fruit of the Poisonous Tree” (44:31)

• Scenario from Mr. E’s High School Forensics Class:

  • Police search a garage for a stolen vehicle, illegally open a small locked cabinet, and find a human hand and incriminating videos.

• Issue:

  • Would evidence be admissible, or would the “poisonous tree” doctrine mean the killer walks free?

• Hosts’ Analysis:

  • Principles: The evidence would likely be suppressed unless “inevitable discovery” or “independent discovery” exceptions were met.
  • Quote:

    “Is it actually possible that you cannot prosecute somebody you know is guilty because all the evidence is tainted? The answer is yes… It does actually happen.” (47:26, David French)

• Memorable Moment:

  • High schooler’s question: “Would the guy get the hand back?” hosts’ delight at the lawyerly thinking demonstrated.

b. What If No One Defends a Case at the Supreme Court? (49:55)

• Smith v. Allwright (1944):

  • Texas officials declined to appear, allowing Thurgood Marshall’s arguments against the white primary to go unopposed.

• Modern Practice:

  • Now, if a party refuses to defend, the Supreme Court appoints an amicus (often a seasoned appellate lawyer) to ensure adversarial argumentation.
  • Sarah decries the excessive professionalization of Supreme Court advocacy, with fewer “generalists” involved.

• Would You Defend a Heinous Cause?

  • David pushes Sarah: Would she serve as a court-appointed advocate for a white primary?
  • Sarah’s Candid (and humorous) Response:

    “I would defend it. I think that’s how the Supreme Court thrives—with zealous advocacy on both sides. And, David, I really like steel manning arguments, so I would enjoy it as an intellectual exercise, if I’m being honest.” (54:39, Sarah Isgur)

  • Both reflect seriously on the moral complexity and importance of legal representation, drawing analogies to criminal defense and First Amendment cases.

Notable Quotes & Memorable Moments

Heritage Foundation Shake-Up:

• “The conservative movement…was not a set of silos…The better way…would be like a jigsaw puzzle…if one person pulls out…you’re losing a lot more than the one person.” (03:58, David French)

Supreme Court's Shadow Docket Denial:

• “Perhaps the Court is moving back to assessing irreparable harm with more nuance and precision.” (16:35, summarizing Prof. Will Baude)

Land Acknowledgment Parody:

• “It was all illegal from the start…didn’t have a ghost of a chance in federal Court.” (36:32, David French)

Fruit of the Poisonous Tree:

• “Is it actually possible…that you cannot prosecute somebody you know is guilty…? The answer is yes…It absolutely does happen.” (47:26, David French)
• Student question: “Would the guy get the hand back?” (44:31, Mr. E’s student, cited by Sarah)

Who Would Defend a White Primary?:

• “It would be a far more interesting intellectual exercise to come in on the side of white primaries than on the side against them. Again, intellectually, because I disagree, obviously, from a policy standpoint...” (54:39, Sarah Isgur)

Timestamps for Key Segments

• Heritage Foundation Legal Exodus: 00:50 – 12:19
• Supreme Court Interim Docket (Immigration Judges): 12:19 – 20:09
• Shadow Docket Transparency Legislation: 20:09 – 24:57
• Church Autonomy Doctrine: 24:57 – 36:00
• Land Acknowledgments & Free Speech: 36:00 – 44:31
• Listener Hypos (Fruit of the Poisonous Tree, Supreme Court Representation): 44:31 – 59:58

Conclusion

Sarah and David expertly dissect the chaos on the right, the evolution of legal institutions, and the nuances of current First Amendment controversies. Their listener Q&A highlights how high-level legal debates intersect with real-world implications, students’ curiosity, and foundational questions of justice and advocacy. As always, the show sparkles with intellectual rigor, wit, and a candid look at the state of American law and politics.