Advisory Opinions - Blockbuster Cases

Episode Date: July 10, 2025

Sarah Isgur returns to her home state of Texas to join a panel of leading constitutional scholars for a deep dive into the most significant Supreme Court decisions of the term. Alongside experts Jonathan Adler, Daniel Epps, and Frederick Lawrence, she examines key cases and explores the growing influence of politicians and the media on how the court is viewed by the public. The Agenda:—Is there a play in the joints between religion clauses and the First Amendment?—Why is it called United States. v Skrmetti?—The Fifth Circuit is the new Ninth Circuit—Will the court rein in excesses of state criminal justice? This episode is brought to you by Burford Capital, the leading global finance firm focused on law. Burford helps companies and law firms unlock the value of their legal assets. With a $7.2 billion portfolio and listings on the NYSE and LSE, Burford provides capital to finance high-value commercial litigation and arbitration—without adding cost, risk, or giving up control. Clients include Fortune 500 companies and Am Law 100 firms, who turn to Burford to pursue strong claims, manage legal costs, and accelerate recoveries. Learn more at burfordcapital.com/ao. Learn more about your ad choices. Visit megaphone.fm/adchoices

Advisory Opinions is presented by Burford Capital, the leading finance firm focused on law. Ready? I was born ready. All right. Thank you, Jeff and Bobby, for those wonderful introductions. All right. Thank you, Jeff and Bobby, for those wonderful introductions. And thank you to the National Constitution Center for giving us, the Texas A&M Center on the Structural Constitution, this opportunity to partner with you.

Thank you for all of you being here tonight. We're really excited to get started talking about the Supreme Court. So for our first panel, we have 45 minutes, and I could definitely spend 45 minutes just giving you the highlights of everybody's resumes. I'm going to try to do it faster than that. And then we're going to move on to, we're sort of like the classic Supreme Court review panel. So we're going to be talking about some of the sort of big top line merits cases from this year and we will leave questions about the shadow or emergency docket and what it is and what's been going

on there for mostly the next panel I would think. Okay, so first we are joined by Frederick Lawrence. He is the Secretary and CEO of the Phi Beta Kappa Society and he is a distinguished lecturer at Georgetown University Law Center. He is also the previous president of Brandeis University and Dean of the George Washington University Law School. So we are really honored to have him with us. And we also have Jonathan Adler,

who has just recently moved to William & Mary Law School, where I worked for several years before going to Texas A&M, so please give my best to everyone in Williamsburg. Jonathan is the Tazewell Taylor Professor of Law there. He was previously a law professor at Case Western Reserve University School of Law. He is a prolific scholar and media commentator, and in particular for this crowd,

you may know or be interested to know that he's a regular contributor to the Volokh Conspiracy Legal Blog. Also potentially of special interest to this crowd, he is originally from Philadelphia, so a hometown, a hometown scholar. Next we have Sarah Isker, who is an editor at The Dispatch, which recently acquired SCOTUSblog. She is host of the Advisory Opinions podcast, a contributor for ABC News, and I think most importantly of all, a native of the great state of Texas. So she was just giving us barbecue tips in the green room. And then we have Dan Epps, who is a professor of law at Washington University in St. Louis School of Law.

He is a nationally known expert on the Supreme Court where he clerked for Justice Kennedy. He is co-host of the Supreme Court focused divided argument podcast, which is now also a blog. I don't know if you're a co-host of a blog or how you would put that exactly, but a great source for news and commentary on the court. And I'm excited to hear from all of them. They will each be discussing one or two cases for the term. So we'll have this sort of a conversational style and we'll get started with Fred.

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my bio, which is that I've been privileged to be part of this program under prior management for 10 years or 10-15 years here at the National Constitution Center. And it used to exist as a conference call. The first one I did was in 2001. So this is 25 consecutive years, which I think means I get a special pin or something like that. But it's wonderful to be here under new management. Thank you, Texas A&M, and thank you, National Constitution Center.

The two cases that I'm going to talk about briefly involve religious freedom and the Establishment Clause and what the Court used to call the play in the joints between the free exercise clause of the First Amendment and the Establishment Clause. And we'll have to dwell just for a moment on whether there still is a play in the joints between the two clauses of the religion clauses of the First Amendment. So, our first case, Mahmood against Taylor, involved a decision that was made by Montgomery County, Maryland, near my adopted hometown of Washington, D.C., who was concerned that their diverse population, including an LGBTQ population, was not properly represented in

the academic program in their K-12 program, including in the elementary school, and so they wanted to add additional works into their curriculum, including one particular book called Uncle Bobby's Wedding. Now, if you want to read Uncle Bobby's Wedding, I have, but I don't have...my kids are too old and my grandkids aren't up to it yet. The reason I could read it is that it's in the US reports. Uncle Bobby's wedding was excerpted in the majority opinion by Justice Alito for six justices and reprinted in full in the dissenting opinion of Justice Sotomayor. So give me, should we stop right there?

Give me 30 seconds to tell you about Uncle Bobby's wedding and the fact that it's interesting that the majority and the dissent don't seem to be able to agree on what the facts of the case were. And that's actually relevant to what we're talking about here. Uncle Bobby's Wedding is a book about a young girl named Chloe and her favorite Uncle Bobby. Uncle Bobby's getting married and Chloe is very concerned about losing her favorite uncle. Over the course of the book, most of which is pictures, she discovers that she's not losing an uncle, she's gaining a second uncle. Uncle Bobby is marrying his boyfriend, Jamie.

Arguably, a child reading that book at a certain age would miss the same-sex marriage piece and would get the Chloe losing her uncle piece of the story. Other children would take it in different ways. That's at least was my take on it. But of course, my take on it is not really what's relevant. And I'm not sure the justices take on it is relevant either. What might really be relevant is what the teachers or parents take on it. So the case arises from the fact that parents in the school district said that they didn't

want some of them, didn't want their children exposed to certain kinds of books, and so they wanted the right to opt out from those books or opt out of their children being present when those books were being read, but they wanted to be notified in advance when certain books were being read. Initially, the school system said they would do that and then it became administratively unworkable or so they said. And so they said they couldn't do that anymore. And so they would just have these books as part of the curriculum.

Parents could respond at home as they wished. It was challenged on grounds of religious freedom and the majority of the court, in an opinion by Justice Alito, articulates the religious freedom argument using Wisconsin against Yoder in 1972 case that some of you will recognize as the Amish education case that forcing Amish children to go to a secular school would be a violation of their religious principles. And Justice Alito says similarly in this case, this would be forcing children to violate their religious principles.

It's a violation of the free exercise of religion of the families. Justice Clarence Thomas concurs and adds a reference to Pierce against Society of Sisters, a 1920s case involving the Oregon law years ago that would have required everyone to go to public school, it would have been impossible to have parochial schools. The history of that case probably suggests that that law really was an anti-Catholic school statute. The court struck it down in a unanimous opinion by Justice James McReynolds. If you have a taste for irony, James McReynolds is probably best known today for being the

most vicious anti-Semite who ever sat on the United States Supreme Court. He refused to shake hands with Louis Brandeis and even refused to sign the letter to Brandeis when he stepped down from the court congratulating him on his tenure. But I digress. The dissenters in an opinion by Justice Sotomayor, say that public schools are schools that are more than just educational institutions, they are civic institutions. They're the ways in which children are exposed to a wide range of views, a wide range of opinions, and that it would be administratively unworkable for every conceivable religious

group, every conceivable group in society to get advanced notice about different pieces in the curriculum, if parents want to object to something in the curriculum, they can certainly take it up with the teacher in conference time. They can take it up with their own students and talk to them about it in the morning and in the evening. And of course, they can also take their kids out of those public schools and send them to private schools. The fact that there's thunder right now may or may not be relevant to what I'm saying.

So a 6-3 decision upholds the religious argument of the parents who claimed that their children should not be required to be in class when those books are read. One last piece, particularly for the lawyers in the room, technically what I said is a little overstated because the procedural posture of this case is an injunction that was denied below that now was granted by the Supreme Court. So really all the court said is there's a likelihood of success on the merits for those parents.

But I think we can read from that what the court's view on this decision would be. The other case I think will take us less time to talk about. It's a four-four decision because Justice Amy Coney Barrett recused herself. And so the decision of the court is really a non-decision. It affirms the decision of the Oklahoma Supreme Court by an equally divided court.

This was a decision in Oklahoma that applying the Oklahoma Constitution and an Oklahoma statute said that a charter school could not be a religious institution. Oklahoma has a charter school program. There's a board that certifies charter schools, and there was an overtly religious institution that sought a charter school that was denied. They challenged us on religious grounds.

What makes this case particularly interesting, and we don't get a decision this time. But again, it goes back to this play in the joints, and we see the issue is, on the one hand do we say that if Oklahoma is going to have a charter school system, which of course they don't have to, but if they do, then they can't discriminate on religious or non-religious institutions. That's what the dissenters in the Oklahoma Supreme Court said, and four justices in the Supreme Court must have said. We don't know who they are. A great parlor game in Washington to guess who's in the four and who's in the four.

Now, that one definitely wasn't a coincidence. In Washington, D.C., to guess who they are for an equally divided court, undoubtedly Justices Thomas, Alito, and Gorsuch, and almost certainly Justice Kavanaugh, although we don't know. Or do we say, as the other four justices must have said, undoubtedly justices Sotomayor, Kagan, and Jackson, and probably the Chief Justice would be the fourth, do we say that Oklahoma is permitted under the Establishment Clause and under its state Establishment Clause

to say, no, the religious institutions are different and we don't fund religious institutions and have religious charter schools. So it really depends on whether we see this as an Establishment Clause case straight up, in which case it does, in traditional terms, appear to be an establishment of religion to have an official public funding of a religious charter school, or do we look at it as a free exercise cum

discrimination case where religious institutions are being treated differently? Probably the best thing we can say on an opinion that comes out for for or stay tuned and watch this space for further developments, maybe, because we don't know why Justice Barrett recused herself. It may be that given her own family circumstances and belief structure, she thinks these are the kinds of issues, this particular issue is one she will have to recuse herself on. Wait and see. Come back next year and we'll find out together.

Thank you, Fred. Well, so I'd love to ask you if you wouldn't mind making a prediction about where the court might be heading on religion clause issues in general or maybe in particular about what might be going on with employment division versus Smith, which the court sort of set aside in the Mahmoud versus Taylor case. And I'd love to hear from any other panelists on this question as well. Again for one's taste for irony,ment Division against Smith is a Justice Scalia opinion, in which he articulates the view that a neutral decision, a neutral, generally

applicable law that incidentally affects religion does not raise a religious freedom case and does not get strict scrutiny. Had that been applied in the Machman and Taylor case, if the argument there is that, as Justice Sotomayor said, there's actually not a religious freedom argument here. It should be evaluated on a basis of rationality, is there a rational basis to what the school system is doing? Because there's no religious freedom argument here, given that it's an incidental impact on religious practice.

I think if one had to bet, first of all, that case comes down 6-3, taking employment division close to the vanishing point. And then I think predicting how a 4-4 case would come out if the ninth justice is added back is always a risky business. But based on where the court has gone, the court has shifted away from a jurisprudence that looked much more heavily on the Establishment Clause. And as Justice Sotomayor said in dissent, not this term, last term, the Establishment

Clause appears to be reaching the vanishing point. Because if we look at claims as saying we can't treat religion differently, then states that do any particular conduct have to treat religion the same way with respect to that. The argument used to be that we treat religion differently because the Establishment Clause of the First Amendment says we have to treat religion differently. But if we take it out of an Establishment Clause analysis and put it in either to a free exercise or a free speech analysis, as the Court has done

in prior cases, then the play in the joints may be replaced by the ever-shrinking, vanishing Establishment Clause. Anyone else want to chime in on where the Court seems to be heading in the religion clause area? I guess I'd just say historically, to your point, what we had 70 years ago and before that was a problem of government favoring some religions

over other religions, which is why I think you see a very robust establishment clause in the middle of the 20th century. The problem we have now, of course, the argument would go, is that we have religion versus non-religion being favored, which is why you see the free exercise clause becoming much more robust here in the 21st century. So I think culture explains as much of the difference as the court, because of the laws and state funding

actually being disputed. Possibly. The question is, does the greater power include the right to freedom? the laws and state funding actually being disputed? Possibly. The question is, does the greater power include the lesser power? The greater power is the power to say, we're not going to have charter schools at all. State could certainly do that. But does that include a lesser power to say, we're going to have charter schools, but this

is how they have to apply with respect to religion? Court seems to be saying, no, in this case, you have the greater power, but you don't have the lesser power. Right. And then the Establishment Clause context though, it would be if you have the charter schools, you can't allow Catholic charter schools, but not Jewish charter schools. But under the Free Exercise Clause, if you're having charter schools, you can't say we have secular charter schools, but not religious charter schools.

And that may be a shift in, well, when you say culture, I think then it begs the question of which part of the culture. I mean, there's clearly very different views on how religion ought to play a role, not in societal life generally, but in public life and in publicly funded life. And I think it still begs that question. All right. So let's move on to Jonathan. Jonathan's going to be discussing United States versus Skirmety.

And hopefully he'll tell us why it's called United States versus Skirmety. I will. And I want to connect it to the cases we just heard about a little bit, because I think one thing that we see in the Mahmoud case in particular and Skrimeti as well is the court avoiding confronting broad claims about parental rights as parental rights and rather trying to deal with cases that implicate parental rights in other ways. So in the Mahmoud case, by focusing on the parental right to direct the religious upbringing of children, not parental rights more broadly, and then as I'll explain in a moment, in Scrimetti,

avoiding the parental rights claim altogether. So the Scrimetti case involves a statute, a state statute from Tennessee, which about half the states have equivalent statutes that prohibit the use of puberty blockers, hormone treatments, and surgery for sex transitions for youth, for minors. Without regard for whether or not a doctor has prescribed such treatments, without regard to what the wishes of the parents are. So Tennessee, again, like approximately half the states

in the country, has adopted such a law, and some families challenge that law. And they initially raise two sets of claims. One set of claims is a parental rights claim. As parents, we have a right to direct the upbringing of our children. If we believe with a doctor's cooperation or a doctor's approval that these sorts of treatments

are appropriate for our children, the state should not be allowed to interpose itself in that. And then a second claim, which is an equal protection claim, which is to say these laws are barring treatments for certain children with certain gender identities or seeking certain sex-related outcomes and that that violates the equal protection clause in one of a couple possible ways. The United States joins this case on the equal protection claim, not on the

parental rights claim. And this, the parents lose in the United States Court of Appeals for the Sixth Circuit and the United States files a petition for certiorari solely on the equal protection claim. That is the petition that is granted. The ACLU on on behalf of the parents, files a petition for certiorari on both equal protection and parental rights claims. And after the Scrumedy case is decided, the parental rights claim is certiorari is denied. So the court takes up this question

solely on whether or not the Tennessee statute violates equal protection. And there are kind of a couple ways or slices at this question that the court engages in. By a vote of six to three, the court ultimately upholds the law, says that the state law does not violate the equal protection clause of the 14th Amendment in an opinion by Chief Justice Roberts.

And it goes through several steps. The first is to say this is not, this law which prohibits these treatments for these diagnoses in youth is not a classification based on sex. And some of you may seem to be puzzled about that because a few years ago there was this case called Bostock where in a different context involving Title VII of the Civil Rights Act, a majority of the Supreme Court had held that discrimination against an individual because of their transgender status

was discrimination on the basis of sex for the purposes of Title VII. Supreme Court in Scrimetti says that's, Legal Protection Clause does not have the same text as Title VII, that's not the basis. And the Chief Justice says that what the statute is actually doing is drawing a distinction based on age, because these treatments are prohibited to youth, to minors,

but not to adults, and based on medical treatment. That is to say, throughout the regulation of medicine, we typically think of particular procedures or particular medications not merely as things you do or as substances, but as things that are prescribed or administered for a particular purpose, right? So when you approve drugs you approve them for a particular purpose, that's why we have a whole area of off-label usage. And so the Chief Justice's opinion says those are

the distinctions the statute draws. So we don't have to answer the question whether or not this law would be constitutionally valid if we thought it was drawing a distinction based on sex and therefore triggering intermediate scrutiny. Instead we can say it's just a drawing distinction on these other bases and can be set up to rational basis. Chief Justice also says, for five of the justices, Justice Alito does not join this part of the opinion, that the statute is not drawing a distinction based on transgender identity or transgender status, again,

based on youth and on treatment. Justice Alito was not convinced by that, so did not join that part of the chief's opinion. So the court did not have to confront the question of whether or not a law that expressly distinguishes between transgender individuals and others would trigger any form of heightened scrutiny as a quasi-suspect class. But a quick spoiler alert, the court has two cases on the docket for next term where it's

not going to be able to duck that question in both of them because one of them, these involve transgender participation in women's sports. And the court has taken two cases on that next term. So the Chief Justice basically says this is state regulation of medical treatments focused on youth. That's something we let states do all the time. We apply rational basis.

That just requires the state to have essentially a plausible justification for what it's doing. There's a lot of debate about the value and safety of these treatments for children. That's really an easy call. Justice Thomas, or Justice Barrett writes a separate opinion joined by Justice Thomas, saying, well, if we were to ask the question, are transgender individuals a suspect class that would trigger heightened scrutiny? We would have said no.

And Justice Alito, in his separate opinion, also says that. So we know there are three justices that would have simply said, we have strict scrutiny for race, we have intermediate scrutiny for sex, but transgender status does not trigger heightened scrutiny. We just apply rational basis. Three justices not

taking a position on that question this year, but presumably will have to next year. And then three justices in dissent. The dissenters, interestingly enough, all three of them rejected the majority's view that this was not a statute that should be subject to heightened scrutiny. But only two justices, Justices Sotomayor and Jackson, were willing to say the statute would fail that test. Justice Kagan did not join that portion

of Justice Sotomayor's opinion, saying instead, this is such a detailed, complicated, fact-bound area of law, it's quite possible the state would be able to satisfy this higher level of scrutiny, and we should send it back for that. So on that part of it was seven to two.

I already noted how narrow the opinion was. I think there's two ways of interpreting this, right? One is that's the chief justice specialty. He likes to put together majority opinions that are as narrow as he can convince five justices to agree to. And as we know in recent years, sometimes he's able to do that, and sometimes he's not. He's on a court with a lot of folks

with strong opinions of things. The other possibility is that on this particular issue, the chief justice was trying to avoid having to answer these questions about, are classifications based on transgender status for constitutional purposes, in effect, classifications based on sex, and or do such classifications

on their own require heightened scrutiny? It may just be that those are particular questions he did not want to answer, but as I last thing, as I already mentioned, there's a circuit split on those questions. The court has two cases for them next term. So we're gonna find out the answer to what the court thinks on those questions pretty soon.

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And maybe you can talk some about like the connection to substantive due process, right, and the sort of different political valence that that can have. It's a fascinating question to be about what they'll do. I think one of the reasons the court hasn't addressed it is because depending on the case, it cuts in different directions. So in the Skirmetty case, we might see the parental rights skewed in what we might characterize

as a progressive direction in the sense that it was in favor of parents getting treatment for youth with gender dysphoria to allow them to get these treatments. There is a case next term that the court has only accepted on First Amendment grounds involving something that's referred to as conversion therapy. So psychiatric therapy for youth.

But basically, parents that think their children are incorrectly believed that they are gay or incorrectly believe they are transgender, some states have banned psychiatric treatment for minors for that purpose. The court has only accepted that on the First Amendment grounds, but there the parental rights claim arguably cuts in the opposite direction. So I think the justices don't really know what parental rights leads to.

It also, parental rights claims, if they're not tethered to religion, rely upon substantive due process. And we know post-Obs, a lot of justices really don't like substantive due process, think that's something that Pandora let out of the box and they want to put it back away. And so I think the justices are kind of afraid of that question because on the one hand,

there are both very strong progressive arguments for parental rights, very strong conservative arguments, family-based arguments for parental rights. But once you arguments, family-based arguments for parental rights. But once you let that go, who knows where it goes. And so I think it's fascinating that there are all these cases that implicate parental rights, and the court's trying to resolve them on something other than having to turn to due process. All right.

So Sarah, being from Texas, has agreed to talk with us about guns and about a case coming from the Fifth Circuit. Love the and about a case coming from the Fifth Circuit. Love the Fifth Circuit. Clarked on the Fifth Circuit. Fifth Circuit was the circuit with the most decisions overturned this term, which is interesting of course because it's the most conservative circuit. So in some ways the Fifth Circuit is the new Ninth Circuit.

And I think it says something about where the court is and the assumptions that people made about what a 6-3 court would really look like. And I think it says something about where the court is and the assumptions that people made about what a 6-3 court would really look like. So in many ways, my case is boring. And so we're gonna use it as like illuminating larger themes about the court. This was a 7-2 decision about whether the Gun Control Act that Congress passed that allowed the ATF

to regulate any weapon which will or is designed to or may readily be converted to expel a projectile by the action of an explosive, yada yada. The ATF then used that statute to regulate so-called ghost guns. These are the gun kits. They're like Legos, but they make glocks. And they're increasingly used in crimes because you don't have a serial number,

you can't trace the gun, very hard for police to catch you, very good for crimes, or for father-son bonding, I guess, as a student at Columbia raised his hand and told me. So, 7-2, the court said, look, the statute's pretty clear. We think the ATF is given authority to do this. This was a facial challenge, meaning that it was not about any particular gun kit. It was whether the ATF could, whether there was any gun kit that the ATF would be able to regulate with this power. So 7-2, they said, yes, it's an opinion written by Justice Gorsuch with Justice Alito and Thomas both dissenting.

As I said, I mean, that was really quick, right? We're done with the case. But I thought we could talk a little bit about Justice Gorsuch potentially being one of the more interesting justices on the court. So just to run through some stats here from this term on the opinions of the court, 9% had the three liberals in dissent and 6% had the trio of Gorsuch, Thomas, and Alito in dissent. Now if you include the five Forbes as well,

that's 15% with all three liberals in dissent and 15% with only conservatives in dissent. So sort of like the Fifth Circuit, right? If you're too far to the right, they're not going. And if you're too far to the left, they're not going. The center of the court has probably shifted a bit to the right, but it is not all the way to the right by any means. Justice Gorsuch is a really interesting part of that Thomas Alito Gorsuch threesome, because he doesn't quite fit in with them. He is far more libertarian.

with them. He is far more libertarian. He writes the most separately. He wrote three solo dissents. Just Gorsuch by himself. Nobody else is with him. And he comes by his dislike of the government. Honestly, if you remember, his mother was the director of the EPA that like, you know, Anne Gorsuch, director of the EPA, refuses to turn over documents to Congress, then Reagan tells, like changes his mind, tells her to, she resigns amid the turmoil, yada, yada, yada, Morrison v. Olsen, where Ted Olsen is then being investigated

by an independent prosecutor at that point, which is like one of the biggest separation of powers cases. So Gorsuch, you know David French came up with this to explain Gorsuch and how you can guess how he's gonna come out in any given case. He votes against the bully. A lot of the time the bully is gonna be the government but not always. If you've brought your case in bad faith or some other such thing, like that's fine. This is kind of a good example of that. You're making a Glock and then like sending someone a Glock minus a screw and then sending them the screw with instructions for how to put the screw in and it takes about 25 minutes to like file something down. Justice Gorsuch is like, are you kidding? This isn't even a real argument.

Also, this is one of those cases where he breaks from Thomas and Alito. So it's 7-2. We saw an unusual number of 7-2 decisions this year. Most of the time it was Kagan joining with the six conservatives, but this was sort of a fun example where Gorsuch breaks from Thomas and Alito. We've seen that happen before in other high profile cases. Gorsuch and Thomas break over Bostock, the case that you mentioned earlier

about employment discrimination. Gorsuch and Thomas break over Rahimi, a Second Amendment case about domestic violence restraining orders in the Second Amendment. And they break over, what was that? Oh, and here, obviously. So I think Justice Gorsuch, Justice Barrack gets all the attention as like the most interesting justice in the world,

and she is, and that's great, and of course it's fascinating. But Justice Gorsuch is sort of your sleeper, interesting justice, because he's part of that most conservative wing. But where he breaks, he breaks against the government. And that makes him at least the second most interesting justice. Thank you, Sarah. Well, I'm interested to hear what other people think about, you know, sort of this perennial

question among commentators, but maybe what this term says about it. Do we have a 6-3 court? Do we have a 3-3-3 court? Maybe in some cases we have a 7-2 court where Justice Gorsuch is with the left side in the middle of the court. And then a piece of pushback that people will often give to someone who says, we have a 3-3-3 court, it's not a 6-3 court or something like that, is that you can't just look at what the outcomes are, right? You have to look at what cases the court is choosing to hear

and how that sort of shifts the overton window on the court. So I'd love to hear any responses that you want to start, Sarah? I just get in like a little bit of a rage about the like, yeah, but for the big cases, it's 6-3. Because if you notice, most of the time people define the big cases after we get the outcome. So they wait until it's a 6-3 outcome with the liberals on the dissenting side and then say, look, it's a big case.

We had a day where we had three unanimous opinions written by Jackson, Sotomayor, and Kagan, and they were, I mean, aptly dubbed the God, Gays, and Guns cases. So I find the big cases, at least, to be a frustrating way of looking at the court. If, you know, if you want to send me a list of your big cases at the beginning of the term, before you know the outcome, then I think we can discuss those, pick our big cases, and then see how they turn out. But you know, in last term, we had the court upholding section two of the Voting Rights Act,

so it wasn't a big case anymore because they upheld section two, but it would have been a big case if they hadn't. I find that sort of ends justification frustrating, even though I don't think 333 is perfect by any means. I don't think 6-3 is either any means. I don't think 63 is either. Have you ever been searching about what to do on that really weird toe fungus you have? In incognito mode, of course.

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So I would gently push back on the idea that we can sort of categorize the court as more conservative, less conservative by looking at whether they're reversing the Fifth Circuit or not, in part because we have to also think about how the ball is moved in the lower courts, right? To the extent that the Fifth Circuit is really going out and taking positions that would have been not conceivable or really not considered plausible positions 10 years ago, yeah, the court could still be moving quite aggressively to the right while still stamping out

outliers that are even further to the right. I mean, I think, I mean, the thing that's definitely true about that is that the Fifth Circuit has had a knack for teeing up cases that the court has to take, right? So generally, for example, if a federal statute is struck down, federal program is held to become unconstitutional, the court's taking that case. And the Fifth Circuit's been more aggressive

in teeing up some of those, and in some cases has gone farther than the courts willing to go. But we've seen a remarkable number of cases that, and this relates to Sarah's point, that before we got the decisions, people talked about certain cases that they might be big cases, or they might be divisive cases,

and they come out nine zero, because as a legal questions, they were actually quite easy, and it was courts that were outliers in the other direction that had just kind of not decided to do their homework in terms of reading the applicable precedent.

The case involving from the Sixth Circuit about whether or not there's a different standard in employment discrimination cases based on whether the person claiming discrimination is part of a relevant majority or minority, a racial group or sexual group or whatever else. I mean, there was no way to read the relevant case law to say that there is a different standard.

The state wouldn't even defend that position when it got to the court, and a lot of people talked about that case as if it was gonna divide the court. And no, it was nine zero. But it was nine zero because the law was relatively clear on that. But I think the last thing I'll just say is,

as the court's docket is shrinking, we're getting a higher percentage of cases coming for the court that are outliers in one direction or another. The court's spending a lot more time kind of cleaning up outliers, and it's not taking the extra two dozen cases it would have been taking 15 years ago. That would have given us a fuller picture of kind of the sorts of questions before it. And I'm among those that think that's a problem, you know, there's plenty of work, plenty of cases for them to hear and the nine of them could handle more than 50 a year.

That's just worth also underlining that a court that gets to choose its own docket is going to be very hard to draw trend lines about because you have to start with which cases they're accepting or rejecting in the first place before you can get to what opinions they're issuing. I think the first big surprise for anyone clerking on a court of appeals is the sheer number of cases that are not only three zero on a panel of three, but sort of straightforwardly three zero. And that's a court that can't choose its own cases. So when a court can choose its own cases, you get these sort of highlighted differences.

But at the risk of being a little bit of a skunk at the picnic here for the all sort of, you know, there's a lot more agreement than we think, there is a tone of some of the dissenting language and the response to dissents that has been a higher temperature than we've seen maybe ever or certainly in some time. Justice Sotomayor has become the master of the phrase before the I descent. I mean, it used to be I descent or I respectfully descent, but now we have a whole series with Fear for Our Democracy I descent from last term and several of those this year. And of course, in the birthright citizenship case, the back and forth between Justice Barrett

and Justice Jackson, which for court watchers was nothing short of stunning, that kind of ad hominem language from justices who, certainly in the case of Justice Barrett, we don't think of that way. Justice Jackson's a little new to the court to actually know what we think of or don't think of. So we'll see where this goes in future terms, but this is not nine people all singing from

the same hymnal at this point. In scrimmity, I think that Justice Sotomayor said in sadness, I dissent. So this discussion about the court's shrinking docket and how it's taking fewer cases is a good segue to Dan's case because it's especially relevant in the criminal procedure area where the court has been hearing fewer and fewer cases. So Dan is going to tell us about a case that I think he told me he thinks is the most interesting crim pro case of the term. So I'd love to hear what you think about it.

So one thing I've been quite interested in as the court's membership has shifted over the last eight years is how is the criminal procedure case law going to look different? In part, that's because I teach in those areas and it bears directly on how much more work I have to do in terms of prepping my notes. But I think that the court has long had an important role in reigning in some of the excesses of state criminal justice. And my question was, as the court moves in a more formalist direction, are they still gonna be willing to kind of, again, stamp out those outliers?

And I think over the... My thesis had been, and some writing I'd done, that, you know, that's what it's gonna look like. Criminal procedure is not gonna be in full bloom the way it might have been even during the Kennedy court where Justice Kennedy would sort of bring the sort of sense of fairness, you know, in a way that was not as tied to kind of like the minutia of the original understanding of particular constitutional provisions. This case, though, Glossop v. Oklahoma is a slightly different data point that maybe cuts

in the other direction, in that it looks like sort of one of these older cases where the court comes in, kind of speeds over some procedural and substantive roadblocks just to get at the, seemingly to get at the result that seems kind of just to people. And very long procedural and factual history. The case has bounced around in the federal court system and the state court system for decades.

It's based on a capital murder charge from a killing in 1997. The defendant, Glossop, has been twice convicted. The first trial was overturned. It's a murder that everyone acknowledges he didn't personally commit. It was committed by a guy named Justin Snead. And Snead, at one point, basically became a witness for the state and said that Glossop had paid him to commit the killing.

And this was really the key and really only piece of evidence tying Glossop, other than some circumstantial evidence, tying him to the killing. And it's a case that has kind of became a cause, Celeb. There's been a lot of talk about how the, you know, a lot of kind of procedural unfairness happened at the trial. There have been multiple independent investigations that have occurred.

One was commissioned by the legislature. One was commissioned by the Attorney General's office. And that have concluded the trial that led to his current incarceration and death sentence was riddled by various forms of procedural irregularities and unfairness. What really sets this up, though, is this is one of many, many rounds of back and forth in the state court system. The defendant finally got his hands on this box of evidence

that the state had been holding onto for a couple decades, basically. And in that box, there was a note. That was a note taken by one of the prosecutors of an interview with Snead, the key witness. The note is a little cryptic, but it sort of may be the most plausible reading of it, is that in it the witness indicates that he had been prescribed lithium by Dr. Trumpet, who is actually, we

think, is Dr. Tromka, who is the only psychiatrist that would have been able to describe lithium in the correctional facility where the witness was housed. And long story short, this is the premise of a claim that the prosecutor put on false testimony because he testified that he had never been diagnosed with bipolar disorder or anything like that. And basically, this went to the state courts. The attorney general actually of the state said,

you know what, he's right. We agree that he should win on this claim. The Oklahoma Court of Criminal Appeals said, actually, no. We think that you shouldn't have conceded error. This is not grounded in the law. It comes up to the Supreme Court, and the Supreme Court decides, in an opinion by Justice Sotomayor, to issue a win for the capital defendant

in kind of as broad a win as you might see, in a way that really struck me as kind of surprising. And it did so by kind of, I don't want to say running roughshod because I think the court made good arguments, but proceeding past a number of speed bumps. So the court said, yes, this is not clear, but we think that the state court decision was grounded in federal law. The Supreme Court can't rule on an issue of federal law if there's an independent state ground that prevents that issue from being reached. The court says, no, we're going

to read this as a resolution of a federal question. And the court then says, you know, the state court misapplied federal law about when it's a constitutional violation for a prosecutor to put on false testimony from a case called Napieu. And then goes further and says, beyond that, we're going to just look at the evidence ourselves, and we're going to just decide that this actually was a constitutional violation. Maybe the facts could be read different ways. But we think, no, this is just a constitutional violation,

and actually we're just gonna order a new trial right now. Justice Barrett writes a partial concurrence, partial dissent, in which she says, look, I agree that the state court misapplied the law, I agree that there is federal jurisdiction here, but the court is going way too far in just declaring this is actually resolving the disputed factual

issues and saying the remedy is a new trial. That majority opinion is Justice Sotomayor joined by the other liberal justices and joined by Chief Justice Roberts and Justice Kavanaugh. And then you have a fairly predictable dissent by Justice Thomas joined by Justice Alito and Justice Gorsuch is recused because he had previously ruled on an earlier issue in this case when it was coming up through the 10th Circuit more than a decade ago.

So I just find the case really interesting because it suggests maybe there still is some appetite for the court to come in in these cases that get the most attention. There's a lot of people saying, look, there's a lot of kind court to come in in these cases that get the most attention, which there are a lot of people saying, look, there's a lot of kind of smoke around this case. We think that this guy got a really raw deal,

and at least a couple of the conservative justices are willing to say, okay, let's just fix this. I think that would have happened more often, 10 years ago, but maybe it's still gonna happen occasionally. Really interesting. So that sort of leads into my question. I was wondering, do you think that this case is sort of unique in the sense that you have, you know, the attorney general's office confessing error and that's why the case came out the way it did? Do we think this is like a one-off or do we think that there's important implications for, you know, criminal procedure more generally generally or what people call the death docket

at the Supreme Court. If you maybe wanna tell us what that means, the death docket. Yeah, I mean, so the court is, one of the most significant things the court does in the kind of shadow docket or the emergency docket is to rule on these last minute procedural requests, requests for states of execution by capital prisoners,

almost all of them are denied. But that's just an important part of the court's job. It's an important part of law clerk's job at the court to kind of be there until midnight to rule on these things. I don't think this portends a radical change. Those last minute stay requests are overwhelmingly denied. So I don't think that suddenly next term we're going to see many of them being granted

and the court taking a bunch more of these cases. Maybe you can say it does suggest that somebody like Justice Kavanaugh is not going to be quite as formalist in some of these crimp pro cases. He's willing to maybe make the kind of Gorsuch move of saying, you know, who's the bully here? And maybe there's gonna be the occasional case that gets so much attention,

where at least a couple of them will say, not here. Another example of that is the Flowers case from a few terms ago, where the defendant had been tried and convicted six times. And, you know, he kept getting his convictions overturned. And finally, the Supreme Court said, too much. Like, just let this one go. All right, we are over time.

So if you all would join me in giving our wonderful panelists a round of applause. Thank you all. All right. Thank you. Thank you. Thank you.