Advisory Opinions - Abundance Judges

Episode Date: June 5, 2025

Sarah Isgur and David French discuss the hottest case on everyone’s lips—Seven County Infrastructure Coalition v. Eagle County—and how buzz around Abundance Democrats may have influenced the outcome. The Agenda:—Some regulatory papers are longer than the railroads entities were requesting to build—Subbing in recused SCOTUS judges, what could go wrong?—Abortion battles in Texas—Yes, maybe having Steve Bannon's case at the Supreme Court is a good thing—Judges act differently on camera Show Notes:—John Ross' "Short Circuit" newslette Advisory Opinions is a production of The Dispatch, a digital media company covering politics, policy, and culture from a non-partisan, conservative perspective. To access all of The Dispatch’s offerings, ⁠⁠⁠⁠⁠⁠⁠⁠click here⁠⁠⁠⁠⁠⁠⁠⁠. Learn more about your ad choices. Visit megaphone.fm/adchoices

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a Supreme Court case, we've got some circuit cases to get through. Let's dive right in here. NEPA. NEPA is on everyone's lips these days. Every cocktail party you go to, people just won't stop talking about NEPA. And here we have seven county infrastructure coalition versus Eagle County, Colorado.

I mean, it just grabs you right there with the title. You can't put it down. Oh, a hundred percent. I know that the people have been clamoring for our discussion about this case and we've been holding off It's sort of like one of the extended versions, you know, like how in sports talk radio they'll talk about I've got the statistic that will prove LeBron is the goat After this we've been doing that for like days just teasing this for days

No, this is actually one of these cases that almost completely escapes any sort of like serious media attention. But in my view, has some interesting ramifications that I think are quite relevant to a lot of our political discussion. So you would talk about NEPA and what does this have to do with our political discussions. But the case is actually, well, interesting is a strong word. And if David is saying that. No. Okay.

I'll just plow into it and let the listeners judge. I think this is interesting. Okay. So NEPA is the National Environmental Policy Act is a law enacted back in the early 70s when there was a series of these environmental laws passed by Congress in the 1970s. What NEPA did is it imposed an obligation to create an environmental impact statement, an EIS, when you're going to be doing a major project. So it says importantly,

this is the opinion by Justice Kavanaugh. NEPA does not require their agency to weigh environmental consequences in any particular way. Rather an agency may weigh environmental consequences as the agency reasonably sees fit under its governing statute in any relevant substantive environmental laws. In other words, where he's simply stated,

NEPA is a procedural cross-check, not a substantive roadblock. The goal of the law is to inform agency decision-making, not paralyze it. So here's, you're creating an environmental impact statement. The environmental impact statement should be considered by the agency, not necessarily bind the agency.

Now we're going to get to the interesting part and here's why I think this is interesting. So in this case, going back to Kavanaugh, the US Surface Transportation Board considered a proposal by a group of seven Utah counties for the construction and operation of an approximately 88-mile railroad line in northeastern Utah. Under federal law, the board determines whether to approve construction of new railroad lines. The railroad line here would connect Utah's oil-rich, I don't know how to pronounce this, Winta Basin, a rural territory roughly the size of the state of Maryland, to the national rail network. By doing so, the new railroad line would facilitate the transportation of crude oil from Utah

to refineries in Louisiana, Texas, elsewhere. The project would bring significant economic development and jobs to the isolated Winta Basin by better connecting the basin to the national economy. For that proposed 88-mile Utah railroad line, Sarah, Kavanaugh does not say Sarah, that was my interjection. But he could have. He could have. He could have. He knew you were going to read. For that proposed 88-mile Utah railroad line, the board prepared an extraordinarily lengthy EIS spanning more than 3,600 pages of

environmental analysis. So that's comprehensive. But the US Court of Appeals for the DC Circuit, nevertheless, faulted the EIS for not sufficiently considering the environmental effects of projects separate from the railroad line itself. Primarily the environmental effects that could ensue from increased oil drilling upstream

or increased oil refining downstream. So the court comes in here and basically says, no, no, no, no, no, no, no, no, no, no, no, this is not what the EIS is designed to do. The EIS is designed to inform, to not bind. And this is a conclusion that has reached unanimously here. It's Kavanaugh with the opinion, Roberts, Alitoito Barrett joins, Sotomayor filed an opinion concurring in the judgment to which Kagan and Jackson joined, Gorsuch no consideration. And the reason why I want to highlight this, Sarah, is this is actually quite relevant

to a lot of our conversations about the abundance agenda. Have you been following the abundance conversation? I mean, we've talked about it some on DispatchPod. Oh, I have. And this is like, I had this question. Is this case unanimous? Is this case unanimous if there hadn't been a year of conversation out in the ether about abundance

and about this phenomenon of we cannot freaking build anything. I saw something yesterday online that was that there was a the paperwork for preparing the study of a three mile rail line that if you extended the paperwork out that it would be longer than the rail line. And so that's why I think this is interesting. Is this a sign that, whoa, whoa, wait a minute, perhaps the encouragement of the bureaucratic process has gotten a little bit out of hand and this is reaching consensus level thinking perhaps, Sarah? That's why I wanted to highlight this case. Okay. So let's talk for a second about what abundance Democrats are. This reminds me so much of what The Right was going through, you know, circa like 2010 to 2012. You have the book Young

Guns come out by Paul Ryan, Eric Cantor, and Kevin McCarthy. I mean, those are some names, right? And the idea was like your party's in the wilderness and you're trying to come up with the new hotness. That's a little bit what this abundance agenda is for Democrats. It's young thinkers within the party identifying what makes their party so intellectually unpopular, if that makes sense. The idea here is that Democrats have become the party of the groups, which you've heard

before. Basically in the end, to make every group happy is to not do anything. You want to build that new housing project? Well, you've got to make these 20 groups happy. You never will. So the housing project never happens because you're not allowed to do the housing project until all 20 groups are happy. That's impossible and around and around we go. That is this rail project, right? It's only 80 miles. You have 3,600 pages of an environmental impact statement and then the groups say, yeah, but it's not just about the actual

impact of the rail line which is of course all that's being approved here right you need to look at the impact of increased oil production on climate change across the world I mean it gets ridiculous right if you've got to do that then all of a sudden every project has an environmental impact on literally everything because you know a butterfly flaps its wings and so what abundance that, then all of a sudden every project has an environmental impact on literally everything because a butterfly flaps its wings. What abundance Democrats say is Democrats can still be for a large government and government safety net, but you have to be for the government actually doing things competently and well

and reasonably quickly rather than just being mired and bureaucratic. No, so think of abundance Democrats as yes big government Yes, actually doing things Whereas their diagnosis is the current liberal state of affairs is yes big government No to ever actually building anything new creating like the government doesn't do anything except stop projects. Yeah. So I hear you, David. However, there's like a part of administrative law here that this seemed more like to me, which is the Administrative Procedure Act. And by the way, I've gotten

so many notes that I on this podcast always say Administrative Procedures Act, plural. I mean, it should tell you something about our listeners, how many emails I get that's like, actually, Sarah, it's singular procedure Administrative Procedure Act. So I am going to try to get that right from now on because I do want to be right. I'm not sure it matters, though. So, you know, when it comes to the APA, you always end up in a place where someone can come up with something you did wrong, basically. This feels like a version of the court reigning in those excesses. And maybe the APA and NEPA are kind of abundance versions in the administrative state. I think it's a really interesting take.

Obviously the lineup here, Gorsuch by the way, recused, which leaves up with a eight-person court, but here it's a unanimous one. So it's actually not a big deal. Although, well, footnote David, we got a lot of input on what the court should do in the case where one justice is recused. Because in the last time we talked about that, it was 4-4 for the St. Isidore case, and that affirms the lower court opinion. Here, it's 8-0. So when you think about what should happen when a justice is recused, you've got to take both into account, right? Oftentimes, a justice is recused and you never even notice, not you David, but like one never even notices because it doesn't matter to

the outcome at all. Like here, where it's unanimous, at least in the judgment. But we have Judge Willett from the Fifth Circuit who wrote an entire article about state courts and what they do in the case of recusals. We can put that in the show notes because it's really something, David. It's like a full survey and basically none of them allow for the ties that the US Supreme Court has. There was an idea by one listener that perhaps when a justice is recused, he or she gets to pick a lower court judge as his or her replacement. So like, I don't know, maybe Justice Kavanaugh picks Judge Sutton. David, it reminds me a little of what we have in the Department of Justice. If for some reason the attorney general, for instance, isn't available or is recused from a decision, there's a whole chain of command, if you will, that kicks into effect.

And if that next person's recused, who does it go to from there or unavailable? So yeah, the attorney general can change that at any time. Each year, they can come up with a new list of the order of succession in the case of recusals or unavailability in national security emergencies, for instance. So that's the one idea. Another idea was that the court itself kind of has a senior justice who's randomly picked. So in this case, you would now be selecting between Justice Kennedy and Justice Breyer who would come back and sit in the case of a recusal.

And then of course- Because they will sit often, and Souter did this a lot, sit on circuit court panels. So it's not as if retired justices never get off the bench. That's right. And the last idea, of course, being that we've had this for other things, but like maybe you just take every chief judge and put them into a bowl and then you just draw a name out of the hat and one of the chief judges from a circuit comes and sits at the Supreme Court. I don't know, David, any of those sound good to you? Oh, Sarah, Sarah, Sarah, Sarah. The suggestion that the Supreme Court justices pick a circuit court judge to replace them is the most genius thing I've ever heard in my life. And I think

the only problem that it has is it was not ambitious enough because I'm envisioning something like, you know how the NBA for its all-star game tried to revitalize it by having a team captain pick, have a draft of the other players. So LeBron and staff would draft players, for example, televised fantasy draft of recusal judges. Well, it wouldn't be a fantasy draft, real draft. And you have the commentary, you have everything. It's, oh great, it's the Thomas pick. Is Thomas gonna go with Bumate, or is he gonna go with Ho?

We're gonna have like draft experts are gonna go straight to you, Sarah. We've got Sarah Isger in Washington. What is the Thomas camp thinking right now, Sarah? The Bumate is going to be fearless. Oh, though he has these descents that are so sharp. I mean, just imagine this. This would be incredible.

So I'm fully in the camp of the recusal draft, televise it, turn it into an event, like host it in like a downtown complex. I mean, what could go wrong? I mean, this is perfect. If this is your first time tuning into advisory opinions, everything David just said is not his real opinion. I just love it. But David, in all seriousness, if you did something like that, I do wonder if it would show the cards of a justice and who they'd like to replace them potentially. Or would the justice pick senior people who will never become Supreme Court justices because they're too old, for instance, and therefore it doesn't tip their hand on who they would want to replace them? Because there's always been this speculation when a justice is nearing retirement, they're sort of of that age, maybe they look like

they're not having fun anymore. Someone from the White House says, you know, hey, look, if you leave now, here's who we're going to pick. Doesn't that sound nice to you? So why don't you go ahead and retire now? Now, there's no evidence, certainly in the last several decades, that that has happened. There's some evidence that it used to happen, or that the justice, my God, reaches out to the White House and says, I'll retire, but only if you pick so-and-so. We certainly saw some of these shenanigans at the lower courts of potentially a judge saying, I want this person to replace me. And when they don't pick that person, the judge un-retires, which you and I said, it's bad when the election happens and you un-retire. But it's also bad when you think you get to pick your successor.

These are not peerages, hereditary peerages. You're a judge. Your time is done. Anyway, David, interesting that we have another recusal here. But NEPA, man, this is, I mean, we're joking. NEPA is the hotness right now. And for the court to say NEPA basically has no teeth, if you will, like as long as you wrote your environmental impact statement, we're done. It is interesting. It is consequential. But just to circle back, just to demonstrate to new advisory opinions listeners that I do have an actual opinion on the recusal issue. My question is, are any of these alternatives constitutional except for bringing back the retired Supreme Court justice? I could imagine a retired Supreme Court justice that that would be a constitutional way

of dealing with recusal. I don't know that you could have constitutionally even a senior judge or a chief judge of a circuit pull up to reach a Supreme Court, to join a Supreme Court panel. That would be, I think my preferred outcome would be random selection of chief judges. If you could just start from a blank slate. But I do wonder, they're not confirmed for that position. They're not Senate confirmed for that position. Would that be constitutional?

So see, I have a serious opinion about this. I'm curious why they haven't done the senior judge justice thing, actually. Yeah. done the senior judge justice thing, actually. But yeah, to your point, David, there are constitutional questions here. Just to read everyone the text of Article 3, where we're sort of drawing this problem potentially, the judicial power of the United States shall be vested in one Supreme Court and in such inferior courts as the Congress may from time to time ordain and establish. The judges, both of the supreme and inferior courts, shall hold their office during good behavior, and shall at stated times receive for their services a compensation which shall not be

diminished during their continuance in office." Here's the part that matters. Shall be vested in one supreme court, meaning that when a justice is confirmed to be on the supreme court, like we're done. That is the Supreme Court and you can't like move people in and out, including potentially even the senior justices as well. Once they're off, they can sit on those lower courts, you know, by designation, but they're off the one Supreme Court. All right, we'll take a quick break to hear from one of our sponsors and when we get back, Supreme Court. All right, we'll take a quick break to hear from one of our sponsors and when we get back, it's time to dive into the circuit courts. We've got Steve Bannon, we've got abortion. It's a whole thing.

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You know, the old joke, the great thing about America is everyone gets their decade in court. So we're still in the decades. So yeah, absolutely. Let's talk Steve Bannon. So if you remember, the select committee on January 6th subpoenaed Steve Bannon to testify. He refused citing executive privilege. They held him in contempt and referred that criminal contempt to the Department of Justice, which then prosecuted Steve Bannon.

He was found guilty. He appealed his conviction to the DC Circuit, which upheld his conviction. This then was appealed to the en banc court, meaning declined to hear the case en banc. However, David, we have a lot of separate writings here. We have a statement by Circuit Judge Katzis on the denial, a statement by Garcia Pilar Wilkins Pan, and then we have a dissent from denial from Henderson, Rao, and Walker. It's that dissental that's very interesting to me, David. They raise some really, I don't know,

questions that I hadn't fully considered. And by the way, to note that Katzis was not part of the dissental is also interesting. Katzis often considered sort of the most old school conservative. He is a Trump appointee, but like very old school conservative judge on the DC circuit.

Rao and Walker probably representing a little bit more of the new school on conservative judges. So that's your X axis lineup there coming down the pike. David, initial thoughts on these arguments that you wanna run through that you particularly were into? Yeah, well, you know, the core issue here was what does willful mean in the context

of proving this criminal case? Willfully withholding the, or willfully failing to respond to a subpoena. Does that mean essentially I'm failing to respond on purpose? In other words, it's willful in the sense that this is something I'm doing intentionally or is it willful in the meaning that I know I'm breaking the law? In other words, I am doing this on purpose and in open defiance of the law. I honestly think Sarah, if you're looking at this case and looking at these arguments, I think Rao et al. make a pretty good argument. If the case law has been moving for a very long

time towards willfulness as I know I'm breaking the law versus willfulness as I am doing this on purpose. And some of the distinction here and why this would really matter is let's suppose you're receiving advice of counsel and advice of counsel is saying this is unconstitutional subpoena or this information as in the argument in this case is subject to privilege. And you're relying on advice of counsel, how much should you be vulnerable to prison if your advice of counsel turns out to be bad? And so I thought this was actually pretty darn thought-provoking and very interesting.

And look, we mainly saw the dissentals, and the dissentals were voluminous, and I would like to see a more full response to the Rao opinion, but I found it pretty compelling. I don't know, what were your thoughts? Okay. So I was into the willful conversation. I do find the whole thing fascinating,

but I got really in to this question of first impression, as Judge Rao puts it. Is the proper composition of a congressional committee essential to its authority to issue a subpoena, or is it merely a procedural requirement that can be forfeited in a criminal contempt of Congress prosecution? So here the resolution that created the select committee provides quote

The speaker shall appoint 13 members to the select committee five of whom shall be appointed after consultation with the minority leader The speaker only appointed nine members and did not appoint a ranking minority member. This violated the resolution as the House now acknowledges C brief for the House of Representatives as amicus curi here. Now, remember David, there's a reason for that. The minority in this case, the Republicans refused to help facilitate putting members on the committee and all the people that they asked declined. And so Pelosi still created the committee and all the people that they asked declined. And so Pelosi still created the committee, but then the only Republicans on it were picked by her,

Liz Cheney obviously being the most famous of those. Okay, but David, all of that's beside the point. There was a resolution that created this committee because it's a select committee, right? It has to be created sort of within the body of the house. And that resolution says there shall be 13 members. And you know, this minority part. If that then select committee

didn't follow its own resolution, can it issue subpoenas that then you can be held in contempt for? I don't know. Or is that like the House's problem and it's kind of a political question whether they followed their own resolution as long as they acknowledge the committee, then it is a subpoena that can be enforceable with criminal contempt? I mean, this goes to a whole question of whether in fact like a subpoena by a committee is

the same as a subpoena like from the House of Representatives as a whole. I mean, there's a lot of like, what is the separation of powers issues around the executive branch prosecuting congressional subpoenas? And of course, David, as Judge Rao also points out, this doesn't really happen in real life, as in before the last several years. There used to be accommodations when the executive branch didn't wanna comply. Here you have this very weird situation where the executive branch, now under Joe Biden, didn't care that the potential witness

was claiming executive privilege. Normally, executive branches across administrations are all for executive privilege and they will want to expand it as much as they can and therefore they would never prosecute someone who was claiming executive privilege because they themselves want that privilege as well. But as Judge Rao points out, not no mo. We have the prosecution of Steve Bannon, obviously. You then have the same thing happen to Merrick Garland, although that wasn't prosecuted because it was still under the Biden administration. And so her point is like time to resolve this one way or the other. That's what the en banc court is

for because eventually this has to go to the Supreme Court. I don't know. I'm pretty into this question. I think it's interesting. This is a case I think I wish they'd taken on bonk. It does raise very interesting questions, and I don't think it's out of the question that the Supreme Court will take it. And by golly, Sarah, can I just go ahead and put on my Nostradamus hat that if the Supreme Court takes the Steve Bannon case, then a lot of people are going to be like, oh, look at the Supreme Court carrying water for MAGA.

No, these are very important and interesting legal questions, both on the willfulness point and on the composition of the committee point that you raised. These are interesting legal questions, and I'm not quite sure yet how I come out on them. Yeah, I'll tell you, I want to say this gently, I want them to take a case where the stakes are so small, which to me is the Bannon case. You know what I mean? He served his time. It's not ongoing. The whole thing's kind of done. This is not going to be about Steve Bannon. It's going to be about Merrick Garland or the next person to get subpoenaed. And now's the time to do that in the calm of a case that's already over, like the Bannon case. So I think the Supreme Court should

take it. I don't know whether they will take it because of all of those political overtones. They may want to wait until it's not a Steve Bannon, if you will. But the problem is sort of by definition, when we're talking about defying congressional subpoenas and executive privilege and separation of powers, it's always going to be political. So the only way to resolve this case is to decide which political case you're taking. And again, at least here, I actually think the temperature is lower than they may think because, you know,

Bannon's kind of done. Now, it's kind of a bummer that Trump's currently in office. Like imagine that it was, you know, President JD Vance, and we're talking about the Bannon case. That would be even more attractive, but, or, you know, President Newsom, like, ooh, then definitely take the Bannon case. I think the only sort of political reason not to take it is, you know, well, Trump's back in office.

It kind of like, you know, Bannon's still fluttering around. But I think the question of whether, you know, the select committee had to be formulated per its own resolution, or if that's just up to the House to decide whether their committee is formulated correctly, because they could always just pass a new resolution, like so interesting to me. Yeah, it is interesting. All right. Next up, shall we do a little abortion?

Rephrase and reframe. Oh, fine. This comes out of the Fifth Circuit. This is a panel with judges Richmond, Oldham and Ramirez with judge Andy Oldham writing. David, this one's kind of messy. Do you wanna walk us through it? Yeah's kind of messy. Do you want to walk us through it? Yeah, it is messy. So basically what you have is a statutory regime in Texas

that where there are programs that have been implemented to provide, and I'm quoting from the opinion here, reproductive healthcare services to indigent women across the state, healthy Texas women and the family planning program. The programs are part of the state's effort to assure that no women across the state. Healthy Texas women and the family planning program. The programs are part of the state's effort to assure that no money from the state

was used to fund abortion. There is a pro-life organization, a prominent pro-life network called the Heidi Group that applied to become a contractor for these programs. And it did with the goal of providing, quote, quality life-affirming healthcare to Texas women. And essentially this is a pro-life group applying to operate as a state contractor.

As it was operating as a state contractor is roughly under the jurisdiction of the Texas Health and Human Services Commission. And this story is really kind of a story of the Texas, the THHSC and the Heidi getting crossways with each other. With the THHSC believing that Heidi was mismanaging the contract, that it was mismanaging funds under the contract. There was an employee, a former employee of Heidi who became disgruntled after she was fired. And Heidi, and this is a good lesson

for all those HR managers out there, terminate all access to electronic systems when an employee leaves, do it right away. So this employee's, former employees still had access to the systems of the Heidi group. And so she reaches out to state regulators, state regulators, and starts to provide information from Heidi to these state regulators. The state regulator, one person in particular, encourages this and asks for more of this information. And so the question came once this all came to light

and the former employee was caught was, wait a minute, is this a Fourth Amendment violation here? If you are using a disgruntled former employee to accomplish what you indirectly, which you could not accomplish directly, are you violating the Fourth Amendment? I mean, THHSC could investigate Heidi and go through all of the necessary judicial processes to secure internal information from Heidi.

That's beyond dispute. Of course it could do that. But can it use a disgruntled former employee to circumvent that? Well, and the answer turns out to be, well, not necessarily if you are in and creating a kind of agency relationship where that former employee is essentially acting on your behalf. And I thought this was interesting because, Sarah, it has, I don't think it's, you know, it's not groundbreaking. It's not a groundbreaking finding. I think it's a very sensible finding. Like, you cannot circumvent the Fourth Amendment if by working through a private party. So, and the court found that not only is that violate Fourth Amendment rights, it's clearly established and not entitled to qualified immunity.

So it's one of those interesting cases because in one way it's almost like a movie script or a TV script, disgruntled employee starts feeding you information. Okay, that can work if you're a member of the press, but if you're a member of the government, this is not your bonanza. I mean, now, if it drops in your lap and you never ask for it, but once you start creating that relationship, you haven't gamed the system. You've violated the system. And by the way, special shout out to John Ross over at Short Circuit. If you're interested in seeing more about circuit cases, they have an amazing newsletter for Short Circuit where John writes

one sentence for each of these cases that are usually pretty hilarious. For instance, David, this was my favorite from this week, a case that we're not going to talk about. Plane clothes Mount Vernon New York officers grab sexagenarian pedestrian and, without identifying themselves, cuff him and hustle him into their unmarked car as he yells himself hoarse begging bystanders to call 911. Oops, he's not their suspect. Second circuit, these things happen. I love that. That's fantastic. Yeah. So this newsletter usually has, you know, whatever it is, 10 or 15 circuit cases with these short little pithy paragraphs.

Highly recommend and thank you, John, because we certainly rely on it as well. All right, so David, we'll take a quick break and then I want to talk to you about cameras in the courtroom. There's a new study out that purports to actually give us at least a data-based answer. We'll be right back. Give us at least a data-based answer. We'll be right back. Now we'll hear from Aura Frames. What do you get the man who already has everything or says he doesn't need anything? Skip the ties and get your dad something he'll actually love, an Aura Digital Frame. You guys already know I've gotten my dad,

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Terms and conditions apply. Summer is Tim's ice latte season. It's also hike season, pool season, picnic season, and yeah, I'm down season. So drink it up with Tim's ice lattes, now whipped for a smooth taste. Order yours on the Tim's Ice Latte's, now whipped for a smooth taste. Order yours on the Tim's app today at participating restaurants in Canada for a limited time. All right, David, I wanna talk about cameras in the courtroom.

There is a new study that is making the rounds at some of the hottest conferences in town, the American Law and Economics Association for instance, written by Aaron Kaufman, assistant professor of political science at NYU's Abu Dhabi campus. Lucy Williams and Dane Thorley are both associate professors of law at Brigham Young University Law School. Okay, so David, I'm gonna read you a portion of this because it's pretty interesting. There was a natural experiment, as they describe it at the U.S. Court of Appeals for the Ninth

Circuit. The Ninth Circuit implemented a short-term, quasi-random camera rollout and then a sudden, full-circuit adoption of video cameras and live feeds. So they used this progression to study how judges react when they are on camera compared to when they are not. I mean, David, this is like perfect. This is the way you want studies, like a quasi-random introduction of a new feature. It's why our 50-state system is incredible for data scientists because when one state and a neighboring state have different laws, you can do a great job measuring the effect of a new law usually. Okay, so let's get to the findings. First, our research provides preliminary support for the off-sided theory that cameras

change judicial behavior. For many years, critics have argued that introducing recording devices in courtrooms might induce performative judging. Prior to the study, though, there was little empirical backing for that hypothesis. And here's the money part, David. We find that compared to cases where they are not on camera, judges tend to speak longer and take up a larger share of proceedings compared to the attorneys. We also see that judges in camera cases interrupt attorneys' arguments more frequently as proxied by attorney's speech, which decreases in overall length and individual utterance length in camera cases.

However, our identification strategy is inherently limited and these results are model-dependent, possibly due to imbalances in the pretreatment characteristics of the treatment groups. When our models include interactions between the existence of cameras and those same judge's characteristics, we find that cameras have greater effects on certain types of judges more than others. White and male judges interrupt attorneys more when they are on camera, especially when those attorneys are non-white. So David, obviously this is preliminary,

it's not a perfect experiment, and certainly I think does not tell us what it would be like at the Supreme Court level, for instance. I think circuit courts and circuit court judges just behave quite differently in general than they would at the Supreme Court. I've argued that it would be far worse at the Supreme Court if there were cameras because I think it would change the types of judges who get picked to be Supreme Court justices and it would change the type of advocates who get picked to be Supreme Court justices, and it would change the type of advocates who get picked.

And so when you have different players because of the cameras, and then you add the cameras, it's going to be sort of a double effect of more performative people and then more performative because of the cameras itself. What do you think, David? Does this add anything to your worldview on cameras in the courtroom? No, I think this is really important. And I think why it's really good data is because it's a further reminder,

one of the mantras of this podcast is that judges are people too. And that human beings, we respond to incentives. We do. Now, you can fight against it. You can have sort of the self-awareness and integrity to know that, hey, I'm a person, I'm vulnerable to incentives just like anybody else,

and you can try to combat the way, if the incentive is pulling you in a direction that you think is bad, wrong, whatever. But often the way incentives work is it's not necessarily all that deliberate or all that intentional. It's not as if someone sits there and says, the camera's on, it's go time. It's there's a subtle change.

There's just a subtle transformation in the entire environment as a result of the existence of the camera. And so it does not surprise me at all that there is a distinction between arguments with cameras and without cameras. And I'm with you completely, Sarah. I think you would start to have situations. Now, what's interesting about the Night Circuit study,

it's not like people are hanging on every word of Night Circuit oral arguments nationally. This is not part of, we don't have a culture yet in this country of viral oral argument moments. Like we have, you can have a viral moment in a house committee hearing, like as we saw with the college presidents last year. We don't have that culture,

but if you do have cameras in the courtroom, that culture will emerge. I mean, just think about what Twitter will do and how Twitter will change it, how viral social media moments would change the way that lawyers interact with judges, that judges interact with lawyers. Now, again, I know that we've had a lot of cameras everywhere in state courts for a long time, but we also know that national politics is just different from sort of the state and local politics.

And maybe this is a conversation we should have on the Dispatch podcast one day, Sarah, but it is very interesting to me if you look at the difference between the Republican Congress in Washington and Republican houses and senates, Republican state legislatures, and much of red America. A lot of these Republican state legislatures and much of red America. A lot of these Republican state legislatures and much of red America are doing interesting innovative policy things. I mean, there's just this whole Mississippi miracle

about teaching reading, for example. And so the local politics, to some degree, is more sensible. It's not when national politics gets involved, but then the intensity around the national controversies, I think is what would also amplify every effect you're talking about. All right, David, we're used to setting records

and how long our podcasts accidentally go, but today, I think it's easy. We just call it a day. We talked about the things we came to talk about, and we'll give back this you know, this 20 minutes or so to our listeners. And don't worry, we're going to take it back here in short order because we are quickly entering emergency pod season where you're going to potentially get third advisory opinions episodes in some weeks. So if you're looking for another podcast

to listen to, you could definitely check out Jonah Goldberg's interview with Stephen B. Smith from Yale, all about Leo Strauss and why he's a friend of liberal democracy. I mean, David, if this podcast wasn't nerdy enough for you, I'm just trying to make sure you know where to go next for some real nerd, if you haven't gotten enough of Harry Jaffa's, you know, quotes and quirks over here at AO. I mean, whoever has filled their cup of nerdery, it's just like, there's always endless need, right Sarah?

Also, I definitely thought he was interviewing Stephen A. Smith, the ESPN guy who's thinking of running for president, and I thought, wow, that's gonna be an interesting conversation between Jonah and Stephen A. Smith. But this is Stephen B. Smith. And next week, perhaps we'll be talking about Stephen C. Smith. But fun note for anyone who's still listening to this podcast. So I've talked before about how the justices go by their initials. So like AMK for Anthony Kennedy. And it comes from likeices go by their initials, so like AMK for Anthony Kennedy.

And it comes from like they sign with their initials and then the clerks use that to talk about their bosses because it's awkward to always say like, you know, Justice Kennedy, blah, blah, blah. So AMK gets replaced by BMK because Brett Kavanaugh's middle initial is also M. Now the problem is, and I'm very upset about this, that he doesn't go by BMK, he goes by BK. So we've already ended my tradition, but nevertheless, for future generations out there,

I'm really looking for a CMK to replace, to fill that seat of AMK and BMK. That's a high emission, Sarah. All I want in life, that's it. All right, that's enough of advisory opinions. We'll see you next week. There are opinions coming out Thursday morning, but I don't know, David,

I'm not feeling it for this Thursday. I'm hoping it's a chill, chill Thursday. That's what I'd like. I'm expecting a chill Thursday, but we'll see. We'll see. We'll see.