Podcast Summary: Advisory Opinions – "Will Temporary Protected Status for Immigrants End?"

Date: March 19, 2026
Hosts: David French and Sarah Isgur
Special Guest: Judge Stefanos Bibas (3rd Circuit)
Podcast by: The Dispatch

Overview

This episode, recorded live at the University of Pennsylvania Carey Law School, dives deeply into the Supreme Court’s unusual move to expedite cases regarding Temporary Protected Status (TPS) for immigrants from Haiti and Syria. Hosts David French and Sarah Isgur analyze the legal arguments, procedural posture, and potential implications of the TPS litigation, before moving into a wide-ranging conversation with Judge Stefanos Bibas about the creation of a “Defender General” office, judicial humility, and speculative “what if” scenarios in Supreme Court history.

Supreme Court and Temporary Protected Status: Procedural and Substantive Issues

[04:11]–[19:34]

Case Background and Current Posture

• The Biden administration attempted to end TPS for about 350,000 Haitians and a few thousand Syrians.
• Lower courts (D.C. and 2nd Circuits) blocked these moves. Some other circuits have sided with the administration.
• The Supreme Court took the rare step of granting "certiorari before judgment," adding the issue to its merits docket for full briefing and argument, set for late April.
• In the interim, nothing changes for TPS holders; protection remains in place.

Key Legal Issues Discussed

• Statutory Clarity:

  • David French ([06:16]): “The underlying statute seems pretty clear, Sarah. Here is a quote: ‘There is no judicial review of any determination of the Secretary of Homeland Security with respect to the designation or termination or extension of a designation of a foreign state for TPS.’”
  • David notes this language appears to bar courts from reviewing TPS removal decisions, regardless of their wisdom.

• Distinctions Argued in Lower Courts:

  • Some courts try to distinguish between “termination” and “vacature” or focus on the government’s process rather than the end result.
  • French ([06:16]): Questions if these are meaningful distinctions given the statute's breadth.

• District Court’s Critique of Trump's Secretary of Homeland Security:

  • Sarah Isgur ([10:05]): Reads from the D.C. district court, which accused the Secretary of preordaining her decision out of “hostility to non-white immigrants,” disregarding statutory consultative requirements, and ignoring economic contributions of TPS holders.
  • Memorable quote ([11:25]): "If history of this Supreme Court had started in 2020...it's hard for me to imagine a paragraph that they find more galling coming from a district court, that that district court is putting in their own policy preferences..."

Evolution of Supreme Court Attitudes

• Roberts Court "Part One" vs. "Part Two":
  • Sarah Isgur ([13:26]): Contrasts the earlier Roberts court, which closely scrutinized government process (as in DACA and Census cases), with the current, more deferential and less “process-obsessed” iteration.
  • French ([13:26]): Agrees, noting the Roberts 2.0 Court doesn’t have the same impatience with procedural corner-cutting, especially with clear statutory directives.

Emergency/Interim Docket Discussion

• Cert Before Judgment – Procedures and Concerns
  • Isgur ([14:19], [15:12]): Expresses both approval of pulling urgent cases out of the shadow docket, but growing unease with the increasing frequency of the Supreme Court “reaching down” for cases, bypassing lower court development and potentially blurring when they should intervene.
  • French ([17:04]): Stresses preference for most cases to percolate in lower courts, using cert before judgment sparingly.
  • Isgur ([17:52]): Warns this trend will incentivize more litigants to demand cert before judgment, conflating mere government policy delays with true emergency.

The "Defender General": Balancing Advocacy at the Supreme Court

[23:22]–[29:59]

What is (and isn’t) Being Proposed?

• Current Proposal:
  • Creation of an office to advise and collaborate with federal public defenders on Supreme Court litigation—not a true “defender general” who picks cases and steers strategy like the Solicitor General does for the government.
• Judge Bibas ([23:46]): “It is not going to be an institution that has ability to say no to individual defendants or take over their cases against their choice... In terms of leveling the playing field in individual cases, there already are a lot of people willing to volunteer and take these cases.”

Limits of the Model

• No Centralized Selection Power – Unlike the SG’s office, cannot prevent “bad vehicle” cases from reaching the Court.
• Role of Outside Groups:
  • Bibas ([29:20]): Notes that savvy defense groups already coordinate amici and target sympathetic cases to catch the Court’s attention.

Key Quote ([29:50]):

• Judge Bibas: “It’s always a good thing to make sure that the other side is well lawyered, but I have a hard time seeing [a defender general office] as transformative.”

Judicial Humility and the Dangers of “Black Robe Syndrome”

[30:05]–[41:11]

What is "Black Robe Syndrome"?

• Definition:
  • Judges letting their status go to their heads, expecting deference not only in court but everywhere.
• Memorable Anecdote
  • Judge Bibas ([30:05]): Shares a story of a Louisiana judge pulling rank in a traffic stop and being censured for it. “We have to watch out for black robe syndrome… we are public servants.”

Judicial Restraint vs. Judicial Activism

• Isgur ([31:20]): Outlines the tension within the legal right between favoring judicial restraint (humility, minimalism) and judicial engagement (aggressively enforcing rights).
• Judge Bibas ([32:35]): Advocates for a neutral methodology and warns against interpreting the law through a “winning side” lens.

Consequentialism, Minimalism and “Turnabout Is Fair Play”

• French ([34:14]): Raises the Alito-Ginsburg debate—should judges moderate decisions based on potential consequences or act incrementally?
• Judge Bibas ([35:34]): Cautions that while incremental changes (Burkean minimalism) have value, consequentialism isn’t the right primary judicial lens. Maintains that humility should transcend politics—judicial power can shift, and today’s winner may be tomorrow’s loser.

Key Quote ([40:11]):

• Judge Bibas: “If I had a chambers environment where clerks were afraid to say, ‘Hey, Judge, I think you’re making a mistake,’ I’d worry I’d make a lot more mistakes... We all take an oath to do justice and if we come to understand better, then we should eat crow or change our minds.”

Marvel’s What If: Supreme Court Edition

[42:34]–[57:29]

Three counterfactual scenarios exploring “butterfly effects” in Supreme Court history:

1. What if John Marshall Had Died Early? (Bibas)

• Impact:
  • Supreme Court would have lacked strong leadership; states’ rights and nullification might have prevailed; judicial review would be weaker; the institutional independence of the Court would be jeopardized.
  • Isgur ([45:05]): “That’s what builds institutions… when you have a Chief Justice lasting for as long as Marshall did.”
• Key Takeaway:
  • Marshall’s long tenure cemented the Court’s co-equal role and independence.

2. What if Plessy v. Ferguson Had Struck Down Segregation? (Isgur)

• Impact:
  • Isgur: “Nothing changes.” Law alone couldn’t move public sentiment or politics; desegregation lagged behind landmark rulings for years even after Brown v. Board.
  • French ([51:35]): Disagrees—argues a strong ruling closer to the Civil War Amendments could have checked Jim Crow’s spread.
• Key Takeaway:
  • Legal victories require political and cultural momentum to be truly effective.

3. What if Roe v. Wade Had Been Decided Narrowly? (French)

• Impact:
  • Perhaps no modern religious right; less polarization on abortion; different evolution of party politics and Supreme Court confirmations.
  • Isgur ([57:09]): Wonders if “tribalism and partisanship” would have channeled itself around another issue regardless.
• Key Quote ([57:20]):
  • French: “There was very little judicial humility in Roe—and there is 50 years of consequences.”

Listener Q&A: Judicial Selection, Originalism and Specialized Courts

[61:10]–[75:07]

On Professionalization and Broader Paths to the Bench

• Isgur ([67:37]): Criticizes narrow credentialing of Supreme Court justices today, noting that earlier courts were far more diverse in experience and background.
• French ([70:30]): Values professionalism but calls for broader experience—practitioners, elected officials, criminal defense attorneys, state court judges.
• Bibas ([69:37]): Agrees broader experience (trial work, elective office) has value; warns against missing “breadth” by focusing on Beltway credentials.

Originalism and Technological Change

• Judge Bibas ([62:04]): Original meaning often “runs out” when dealing with modern questions (e.g., AI), so courts must reason by analogy but can’t always anchor every decision in specific 18th-century concepts.
• French ([63:34]): Warns that AI companies will not be able to shield themselves from liability by blaming the AI—the law will hold humans and corporations responsible.

Should the U.S. Split Criminal and Civil Appeals (Texas Model)?

• Isgur ([72:47]): Texas's two Supreme Courts (civil and criminal) are highly specialized.
• Bibas ([73:09]): Points to federal patent appeals as mixed—specialization can lead to tunnel vision; there’s value in cross-pollination and oversight.
• French ([74:11]): Worries different appellate tracks could develop diverging approaches to fundamental rights.
• Isgur ([75:07]): Notes risk of judge-shopping and confirmation “silos” if specialization increases, potentially undermining judicial impartiality.

Notable Quotes & Moments

• On TPS Statute’s Breadth:
  • French ([06:16]): “The statute is what it is.”
• On Supreme Court’s Process:
  • Isgur ([15:12]): “Maybe less is more...less writing, less transparency, actually will turn out to have been better.”
• On Defender General:
  • Bibas ([29:50]): “I have a hard time seeing it as transformative.”
• On Judicial Humility:
  • Bibas ([40:11]): “I have to be willing and in print repeatedly I’ve admitted I made a mistake or I changed my mind.”
• On Plessy Counterfactual:
  • Isgur ([49:29]): “I think the answer is nothing. I think nothing changes.”
  • French ([53:02]): “I think it would be more impactful than you might think...the best Supreme Court opinions have a legal effect, but they also have a powerful moral effect.”
• On Roe v. Wade’s Legacy:
  • French ([55:13]): “If Roe v. Wade is just decided a little bit differently, how different is our history?”
  • Isgur ([57:09]): “I’m not sure the Federalist Society starts. Bork doesn’t get borked. I mean nothing. Like all the things of our modern Supreme Court history.”
• On Professionalization:
  • Isgur ([67:37]): “My God, how much we have narrowed it.”

Episode Structure & Key Timestamps

| Segment | Start | |--------------------------------------------------------------|------------| | Opening, fundraising update for the Supreme Court Hometown Program | [02:06] | | Supreme Court & TPS deep-dive | [04:11] | | Cert before judgment & shadow docket discussion | [14:19] | | Defender General segment with Judge Bibas | [23:22] | | Black Robe Syndrome & judicial humility | [30:05] | | Marvel’s What If: Supreme Court alternate histories | [42:34] | | Listener questions: originalism, career paths, court specialization | [61:10] | | Show wrap-up and sign-off | [75:07]+ |

Tone & Style

Engaged, thoughtful, occasionally humorous (“Grok’s freshman dorm room phase”—[63:34]; “right to bear marms”—[71:30]). The conversation is serious about legal doctrine, but accessible and often self-critical about the idiosyncrasies of modern legal institutions.

Summary Takeaways

• The Supreme Court’s approach to TPS litigation will test statutory clarity and procedural minimalism, with the current bench likely to give significant weight to straightforward statutory grants of discretion.
• Institutional reforms like the “Defender General” may provide incremental help but are unlikely to create true parity with the Solicitor General as a repeat player.
• Judicial humility, both as a personal ethic and as a systemic value, is crucial for the legitimacy and wisdom of courts—especially in an era of high stakes and culture wars.
• Counterfactuals reveal the tenuous contingencies of Supreme Court history—personalities, timing, and political context matter profoundly.
• Modern judicial professionalism is both a strength (high quality legal process) and a potential weakness (limited diversity of perspective and career background).

Ideal for:

• Listeners interested in how law, politics, and courts intertwine
• Those looking to understand both the technical, procedural debates at the Supreme Court and the broader philosophical stakes about judicial power
• Anyone curious about legal history and the hidden “what ifs” of constitutional law