Advisory Opinions - Getting Out of the Redistricting Business

Episode Date: June 5, 2026

Sarah Isgur and David French discuss the Supreme Court’s Alabama redistricting decision, a plea deal from the former national security adviser, and the best legal movies ever made. The Agenda: –⁠June 4 Opinions ⁠ –Alabama’s new maps –John Bolton pleads guilty –Did the media actually get this right? –Gender and the Supreme Court’s culture –Favorite legal movies –Another round of Would You Rather! Show Notes: –⁠The Blessings of Liberty with Jeffrey Rosen - Podcast⁠ Order Sarah’s book ⁠here.⁠ Advisory Opinions is a production of⁠ SCOTUSblog⁠ and⁠ The Dispatch⁠, a digital media company covering politics, policy, and culture from a nonpartisan perspective.⁠ Click here⁠ to sign up for our new Advisory Opinions newsletter, and⁠ click here⁠ to access all of The Dispatch’s offerings, including⁠ audio versions⁠ of all our articles and newsletters. If you’d like to remove all ads from your podcast experience, consider becoming a premium Dispatch member by⁠ clicking here⁠. Learn more about your ad choices. Visit megaphone.fm/adchoices

Ready? I was born ready. Welcome to advisory opinions. I'm Sarah Isger. That's David French. And you know what we're not going to do? Talk about the three decisions the Supreme Court handed down on Thursday morning. David and I simply can't muster the enthusiasm that is required for an advisory opinions episode on three important business docket decisions that were all unanimously decided by the court.

Instead, we're going to talk about. the 6-3, you know, third Calais decision to allow Alabama to use its preferred maps. And then we're going to talk about John Bolton, pleading out to the mishandling of classified information. And then we're going to go to just some fun stuff. Does it make a difference to have women on the Supreme Court, or can we have nine dudes with the same decisions? And what are our favorite legal movies, characters? A lot of you have been sending in that question. And finally, we're going back to the would you rathers. And it's really testing whether we actually believe what we say, because these are hard would you rather's. And I'm so

glad, I mean, I'm not, I wish I had been in this class, but I'm really glad I'm not in this AP government class, because this would have been really a hard day in school. All this and more on advisory opinions. David, before we get going, we have a new podcast that we need to to welcome to the world. Jeff Rosen, the former president of the National Constitution Center, has joined Fire as a senior fellow, and he has a new weekly podcast called The Blessings of Liberty, colon, conversations on the Constitution history and the American idea. Amarica's Constitution over there, our partners, are actually replaying in whole, the first

episode. So if you go listen to Amarca's Constitution, you're going to hear Jeff Rosen talking to drum roll. Justice Neil Gorsuch for that first episode. Am I happy for Jeff Rosen, for the Big Get, for his first episode? I am. Jeff Rosen is brilliant, amazing, and I think his books should be read by everyone. Am I mad at Justice Gorsuch for going on that podcast before he goes on ours? I am. How dare he?

Well, I'm just slightly disappointed, Sarah, because when you said Blessings of Liberty, colon, do you know what I thought was coming next? Drag Queen's Story Hours, you know, because that's, you know, how I think. I mean, this is the number one thing that you get dragged for. So it's pretty funny that someone has literally named their podcast, not just someone. A leading constitutional scholar has named their podcast after the quote that you most often get dragged for. So congratulations, Jeff Rosen. We're thrilled for you. Jeff, by the way, is married to my law school section mate. So, hey, Lauren, congrats. And yeah, check it out over at Marcus Constitution or Fires Podcast, Blessings of Liberty.

Anyway, now. to advisory opinions. Well, David, I'd say we have two big pieces of legal news, neither one of which are the opinions that were handed down Thursday morning, a bit of a bust. And we have this happen every year. We move our podcast for this month to Thursday afternoon so that we can have time in case a really big opinion comes down so we're not missing the news. But sometimes that means that we get nada and we're left with whatever news we had. So two big stories. One, the Supreme Court did in fact reverse that three-judge panel. And so Alabama's new maps will be in effect for the 26th election, not the maps that the federal three-judge panel said were required because they had

intentionally discriminated on the basis of race violating both the 14th Amendment and Section 2 of the voting Rights Act, David, you weekly predicted this, and I weekly got it wrong. Why do you think you got it right? Well, I think the reason that I got it right is the court is broadcasting so clearly that unless you have, you just type it out, you just write it out. Like, we are doing this to discriminate against people on the basis of race, that they're just getting out of the redistricting business. They have pulled the rip cord. They have punched the ejection seat. Whatever. kind of analogy you want to use, it's really clear to me that they're basically just turning to the political branches of government and saying, unless we have crystal clear evidence of racial

discrimination. And I think that even means crystal clear where not just an explanation for the redistricting is race discrimination, but the explanation for this redistricting is racial discrimination. Because it really does seem to me, when you look at the brief per curiam decision, that they're saying, if you can do this in a partisan way and reaches the same result, it's just done. And so it really does feel to me that the racial discrimination part has been largely subsumed into the partisan discrimination analysis, and the partisan discrimination analysis is now sort of punted to the political branches. And that is where we are. So this was a six-three decision along ideological lines. And I did think this was an interesting paragraph where the six-justice majority summarized.

what they think Calais decided. So I'll read that to you. Calais updated the Jingle's standards. As relevant here, we held that for plaintiffs to satisfy the first Jingles precondition, a plaintiff's alternative map must meet all the state's legitimate districting objectives, just as well as the state's own map. Those legitimate districting objectives we held include the state's specified political goals and any other goal, not prohibitive. by the Constitution. A plaintiff also cannot use race as a districting criterion in preparing the alternative map. To prove the second and third preconditions, a plaintiff must provide an analysis that controls for party affiliation and show that voters engage in racial block voting that cannot

be explained by partisan affiliation. These updates we held were necessary to avoid requiring congressional maps under Section 2 that would be unconstitutional racial gerrymanders. David, it's always hard. It's hard for us to summarize an opinion in one paragraph, but it's really helpful when the court will do it themselves. And I don't feel like that's how we've been summarizing the Calais decision necessarily. And so I think there's a few things to take out of this. The most obvious one is that in order to show racial discrimination, you have to show that the race votes as a block apart from partisanship. This was Alito's point about the primary, right? You would need to show that a white voter in a Republican primary would vote for the white

candidate over the black candidate, not in a general election that they would vote for the white Republican over a black Democrat. Those are not separating out partisanship and racial voting. And David, I guess, you know, the punchline of this, which is not good for a democracy, but again, has nothing to do with race, is that white Democrats will be treated like black Democrats. Or to put it a different way, black Democrats are now going to be treated like white Democrats. And we've seen this through every state, you know, New England doesn't district to allow Republican, to allow for there to be a Republican member of Congress because they are spread out throughout the state and they don't to, partisan gerrymandering. And I guess, David, this has been to your point the whole time

about Alabama in particular being a little bit different on race and partisanship. But do you think that you could satisfy the standard of separating race and partisanship? That paragraph, which I'm glad they included it, even though I don't like it, because I think their reading of Calais is even broader than what my reading of Calais was. Because my reading of Calais would have been, this Alabama District Court decision could have survived. In other words, because what they found in the Alabama District Court was, wait, this was just explicit racial discrimination. We found invidious explicit racial discrimination. And so under that, my initial reading of Calais was, well, if you've got the evidence of the explicit racial discrimination,

section two is still going to lock in. But what they seem to be saying is it's no, no, no, no, it's even more than that. You have to show the evidence of explicit racial discrimination, including that you would not achieve the same result under a purely partisan gerrymander. Even if the gerrymander was racially motivated, if it could also be partisan motivated, then it's going to pass muster. Is that wrong, Sarah? I think that's wrong. Like if you had in the record, as you talked about previously, David, you're dumb racist. If you're a dumb racist said, let's split up the black belt so we can dilute these voters

because of their race, I think we're done because that violates the 14th Amendment. Forget Section 2. No problem. I think what they're saying, though, is absent that, showing that there is vote dilution by race will not be enough unless you can separate partisanship from race. But I do wonder this. let's suppose you have something like the Texas situation, where you had the feds telling the state race, and the state saying partisanship. So you had two different governmental entities. Now, in that case,

it's maybe a bit easier because it was the actual state that was doing the gerrymandering that was saying partisanship, and there was the Trump administration not doing the gerrymander that was saying race. But what happens if you have, say, a few representatives who passed the law who are going, oh, this is all about getting rid of diluting black votes. And then you have other legislators saying, are you kidding me? You know, Bob's totally wrong. We did this for only partisan reasons. In that circumstance, it appears that then the second thing is that you would then show that a map that you could create a map for partisan reasons that does the exact same thing and you're going to pass muster anyway. Yes, but if you are able to create a map that achieves the same incumbent protection goal,

along partisan grounds. Therefore, the only explanation for that map is race rather than partisanship, then you've got a Section 2 violation, if that makes sense. Now, I think, David, your argument that has always been very persuasive to me is, yeah, but there's a chicken and egg problem here. If race and partisanship are completely intertwined, let's say the coefficient is 1, then you will never be able to show a Section 2 violation because of the same. same thing. And what the Supreme Court, I think I agree with you is saying here is like, shrug, political problem. If it really is a one-to-one coefficient, then we're going to presume good faith on the part of the legislature in that case. But if it's not a one in Alabama, I think we've looked

at this, David, but it's something like 0.9. It's very, very high. It would be very hard to draw a map that completes all the partisan incumbent protection goals, but, you know, creates a second majority minority district. That basically would be impossible because of such a high coefficient. And yeah, they're saying, again, like, because partisanship is so intertwined with race, you're never going to be able to unwind that. And therefore, it's a political problem. And this gets back again to that, like, sort of punchline of black Democrats will now be treated like white Democrats in the South, which is, unfortunately, you live in a single party state. And if you're a Democrat, you screwed. And if you're a Republican in a single party blue state, you screwed.

At least legally speaking, go to Congress, ban partisan gerrymandering, ratify a constitutional amendment to ban it for all we care, but we are out of that business. Yeah, that is the fundamental takeaway. And I like your very slightly more optimistic reading from my perspective of the Calais paragraph. But I think we're about at 98.73% overlap in our reading of Calais now. And I think overall you then think it is the wrong decision and I generally think it was the right decision. I think my caveat is I think this is legally correct. I think it is politically not great for the country. And I think in the short term, it will be bad for the country. But in the long term,

and I'm saying like 50 years from now, 70 years from now, I think we will look back in this in any decision where we held that the Constitution was race blind and say that that was the right even if it caused problems in the interim because we had not been treating it as race blind and that those growing pains, while painful, were nevertheless morally correct. My issue here really is related to the fact that Calais, the Alabama case, that what we were dealing with are traditional, what were the originally preclearance jurisdiction. These were jurisdictions with a documented extraordinary history. of racial discrimination and voting.

And so they had been stripped for years and years of sort of any sense of the benefit of the doubt. At the extreme level, that was the preclearance requirement. I think that my distinction would be, and this is something I wrote after the original Alan v. Milligan, was that the court was no longer had long ago abandoned preclearance, but was kind of continuing a version of that by exposing the highly polarized, racially,

polarized traditional, traditionally discriminatory jurisdictions to what was in actuality, kind of a form of heightened scrutiny because of that history. And I supported that. I thought that was actually appropriate and consistent with what the 14th Amendment was trying to do. And I think the elimination of any really kind of heightened scrutiny for these preclearance jurisdictions, which by the way include parts in New York City, which had a lot of history of racial discrimination in voting rights. And really is, you know, one of these historical issues, Sarah. How, at what point does the evidence, do we get enough evidence that the racism that used

to just stain every part of voting in the South has now receded to such a point that that extra scrutiny would not be merited? And I'm just not convinced we're there. No, I don't think we're there, but my argument is the Constitution doesn't care. That's just what it says. And it basically says that if we treat everyone fairly, under the law, equally, sorry, fairly is not the right word, equally under the law, that all the rest of these things will stop and that the more you insist on treating some people not equally, whether it's for good

reasons or bad reasons, you will actually perpetuate this problem for longer than if you just cut it out. And yes, it will be politically painful in this short term. And by the way, David, we've gotten some questions of whether this decision could be Plessy v. Ferguson, right, which upheld racial discrimination. The Louisiana Separate Railroad Car Act led to a spike, the largest spike in lynchings in the United States, comes in the two years after Plessy has decided. The Jim Crow era is really ushered in by Plessy. Of course, John Marshall Harlan is the sole dissenter. It's a 7-1 decision. These justices all sign their

names into the fly-leaf of John Marshall Harlan's Bible. It's his portrait that hangs in the conference room when they decide these cases. so which is it, right? Is this, are they in the seven or are they in the one in this case? Could this be Plessy? And my answer to all of you on this is absolutely sure. And maybe not. And like, I guess the lesson for me out of Plessy is not which case is the next Plessy, but are you willing to have the sort of historical humility to acknowledge that you don't know? because those seven people didn't think that that was Plessy, right? They thought they were right.

And Roger Taney in Dred Scott thought he was right. And Roger Taney, like, morally, and especially on the slavery issue, was a more moral person than John Marshall Harlan. So being a good person does not mean that you have the right political opinions or legal opinions. And so, of course, this Calais decision. could be Plessy v. Ferguson, but it also may not be. And anyone who's sitting there telling you that they're sure which one it is, I think has failed the fundamental lesson of Supreme Court history, which is you don't know.

I think that's a great word. And I'd also say that there's an additional ingredient here that, I mean, this is a mixed metaphor, but Congress could be Plessy. Congress is Plessy on two fronts here. One is the original Section 2 is not exactly the world's best drafted statute. Let's just put that out there. So you're interpreting an opaque statute, and that is on Congress. And it's particularly bad because the 14th Amendment specifically, you know, unlike the First

Amendment says, hey, Congress, you've got the power to do legislation, which is sort of a big flashing light to the court that says, hey, give Congress room on the 14th Amendment to legislate. and they just, they produce a crap piece of legislation. So that's Plessy on your Plessy coming and then your Plessy going by once your crap legislation is revealed to not accomplish what you want it to accomplish, whether you agree with the court or don't agree with the court. I think it's pretty safe to say it's not accomplishing what it was designed to accomplish. Then revise it.

But again, that is not in the cards anytime soon. And so once again, it's all down on the court when it's, And as much as I disagree with the court on this, it's just not all to the court. It's just not. Well, David, it's funny you say that because an intrepid listener, his name is Ari Perlstein, just graduated from the College of William and Mary. And he did his college thesis, incredibly, on the problem of Congress not doing its job. And David, he won a scholarship for this research.

So it's specifically regarding the trend of Congress. Congress declining to legislatively override statutory interpretation decisions with which it disagrees. So he sent us his paper, but also this super helpful little graph. He says during the 80s and 90s, Congress overrode roughly 15 and sometimes many more, Supreme Court statutory interpretation decisions per two-year session. But it is now fallen off to such an insane extent that in 2020, 23, the number, I can't tell the difference between whether it's zero or like point nothing. It's so low. And so I will read here from him. My fundamental takeaway from this data is that the

vibrant interbranch dialogue about statutory interpretation decisions which existed before the modern era of hyper-polarization is effectively dead, with the primary losers being the public and, to a certain extent, the Supreme Court, due to how this has affected public perception of it. Because again, David, we've talked about this, right? The Supreme Court isn't the last word on anything in our republic. No matter what, you can ratify an amendment. You can, Congress can pass a law. Like, always there are levers for the political branches to override what Congress decided. But because we don't believe that anymore, Congress is the last word and that it puts a whole bunch of pressure on Congress and the whole system breaks. And I just found this data super interesting. I think we had been sort of intuitively taking it for granted that that was the case. but to actually see the numbers, I think it's more depressing. More. It's definitely more depressing for me. Imagine a marriage where you have a drug-addicted husband and a responsible spouse, and everyone blames this responsible spouse.

Mean mommy. It's the mean-mommy problem. It's divorced dad and mean-money. We have words for this. Exactly. And everyone's blaming mean-mommy, and they're just like, divorced dad is like, oh, you know, Bill. he's you can't expect much out of him. All right, David, when we get back, let's continue our conversation

about how just because someone agrees with you politically doesn't mean they're the good guy in every story. John Bolton, here we come. I want to tell you about a new podcast. It's called In Descent, and it's hosted by Anastasia Bowden. She's an attorney at Pacific Legal Foundation. We've had her on the show before.

She writes a column at Scotus blog that digs into the story, behind Supreme Court dissents. So here's the premise of her new podcast. The Declaration of Independence was America's first great dissent. I love it. The story of American liberty begins with a minority standing against a majority power.

In six episodes, Anastasia traces the thread of American defiance from the Declaration to the Constitution to Supreme Court battles over the Declaration's promise. You'll hear interviews with Pulitzer Prize-winning historian Joseph Ellis, author Richard Brookheiser, journalist Jesse Wegman and more. They have fantastic stories. You can listen to In Descent wherever you get your podcast or visit Indescent.org. All right, David, John Bolton, who was being investigated for

the unlawful retention of classified information, has decided to take a plea deal. And I actually think that the media by and large got this one right. I think partisan Twitter didn't get it right, but almost every journalist I saw always understood that this case was different. Yes, there are some weaponization vibes to it. Certainly, John Bolton had been Donald Trump's national security advisor and one of his chief critics. After leaving office, Trump had targeted him, tweeted about him, tried to prevent him from publishing his book, all of that. And yet, it doesn't mean he didn't unlawfully retain classified information. The investigation had been started during the Biden administration, and they had decided not to bring charges, and then the Trump administration, you know, picked that up and brought charges.

So, David, this one's sort of a nuanced story, right? On the one hand, I think you can tell it either way. The Biden administration dropped the charges because he was a political ally who was doing helpful, you know, stuff for them in the media. Or the Trump administration brought the charges as a means of political retribution against an end. Either way, the evidence was there. And frankly, I think the most likely explanation probably is both. In my mind, the question really wasn't so much, did this guy mishandle classified information? It was, did he do so in a way that met the sort of the mens rea requirements? And that was the open question. And to be clear, while National Security Advisor, he was emailing himself, but to a non-government email, summaries, diary entries, basically, of information that had been, that was classified. That email was then hacked by the Iranians. He was sharing that email with his daughter and wife who were able to access and therefore read classified information, even though it

wasn't the classified documents themselves. And David, I get so many questions. I want you to continue your point. But also, I guess I don't mind making an example if you're the national security advisor, even if you're just sloppy. Again, you have to meet the legal requirements. I'm not saying cut any corners. But this isn't like speeding where everyone's going 60 and I decided to pull you over. Like, no, no, no, I'm pulling you over because you were the national security advisor. Right. And actually, that's the way it should happen. We should have a higher bar for the more powerful people. I mean, a higher conduct bar that they have to demonstrate, not a high, higher prosecution bar, but a higher conduct bar. And again, I keep going back to that this was

an investigation that began before Trump. You know, look, whenever you have a corrupt administration, you're always going to have in your mind, would this have happened but for the corruption? Maybe, maybe not, but there's also a separate question of, is it good this happened? I feel pretty confident that if Bolton was a Trump loyalist, he's not prosecuted. I think that's the case. But then does that mean that fairness dictates that nobody can be prosecuted or nobody should be prosecuted? I mean, you start to see the challenge that you get into. And so I just have to, for a moment, retreat to the facts of this case, the actual facts of this case, tell me that justice was done. And his guilty plea seems to indicate that he didn't have much confidence that he could go out

and make a vindictive prosecution kind of defense. And it would be, I think, given the fact that it was, the investigation was begun before the Trump administration, I think the ability to make a vindictive prosecution defense would be minimal. Just, it'd be really tough. Two things can be true at the same time. John Bolton can be right about his concerns and warnings related to Donald Trump's handling of classified information and national security decisions. And John Bolton can mishandle classified information in a criminal manner. There's lots not to like here. I feel like the whole podcast is been there's just lots not to like here, and we can't exactly figure out what to do about it. All right, David, we're going to turn to some other listener questions now. Here's from a listener.

The question I'm interested in pursuing with you guys is whether having women justices on the Supreme Court makes or doesn't make a difference. Sandra A. O'Connor famously said that a wise woman and a wise man would make the same decision. Yet, one of O'Connor's clerks responded to this. The clerk, also a woman, said, judges have to say that. There is no question that because she was a woman, it informed her decision-making. A man could not have written Hogan. She wanted to believe that she was an independent thinker, that she had no gender inclination, but I don't know how a woman could say that seriously. The Hogan case involved gender rights. So, David, I have lots of thoughts on this, but this cuts to the heart of what it means to be a legal conservative, because

you're sort of required to believe that there is no difference between a wise female judge and a wise male judge. This was the attack on Justice Sonia Sotomayor talking about, you know, being a wise Latina, that she would bring different experiences, implying that her outcomes would be different because she was Latina. David, do you think that it matters if we have nine men on the Supreme Court. For more than one reason, which I think as a, let's see, is there anyone we can talk to who's written a bestselling book about the life and culture of the court? Oh, yes, Sarah Isger, are you on the line? I am on the line. You are on the line. Oh, fantastic. We've got Sarah Isger on the line, folks. Well, so there is this one part of my book

that I cut. So I think I've mentioned this. My book was like way, way, way over the word limit. And so I had to cut a bunch of stuff. And to be honest, most of it, the vast, majority, I didn't miss it all. But there was this one story that sort of stuck in my craw that I was kind of bummed that I had to cut. And so when this question came in and David sent it to me, I was like, no way! And I sent him the book page that got cut. Said, David, can I read it to you? Yes. In fact, that's why we brought you on the show here today, Sarah, was to talk about this outtake from your book. Justice Sotomayor recalled some advice she got from the late Justice suitor. He said, I know life on the court became so much easier for me when I had an epiphany one day,

and that was I get very upset and angry when I was a dissenter because I couldn't convince my colleagues of my views, and it just drove me crazy. And he said at a certain point, I realized, you know, they are as passionate about the Constitution, about our laws, about our democracy as I am. We are all people of good faith. We may disagree on what the best answer is for those values, but it's never from bad faith. And he said that this eased his tension tremendous. It didn't used to be this way. In public remarks, Justice Sotomayor remembered a time when her colleagues were sitting around at lunch discussing Professor Noah Feldman's book, Scorpions, the Battle and Triumphs of FDR's great Supreme Court justices. During FDR's time, the court was famous for their personal

disputes, and Justice Oliver Wendell Holmes said the court was like nine scorpions in a bottle. So, as they all sat around the table eating lunch that day, one justice asked, why did it change? Another justice offered a chief justice. Another one mentioned a different chief justice. According to Sotomayor, it was then Justice Ruth Bader Ginsburg who spoke up in her very quiet but commanding voice to say, it was when a woman came to the court. And of course, she was right. It was Sandra Day O'Connor who changed the court. From Sotomayor again. Justice O'Connor was very much the middle of the court, but she was also the bridge builder on the court, and she insisted that the justices have lunch together. And if somebody missed too many lunch meetings, she would go to their office. And a number of my colleagues told me this story, she would walk in unannounced, plop herself opposite you and say, why have you been missing lunch? And whatever lame excuse you gave her, she would look at you and say, Not acceptable.

You have to. We are part of one court. And that means we will always be civil to one another and friends to one another. And she would pick that justice up and drag them to lunch. Sandra Day O'Connor was the OG institutionalist, perhaps. So while that got cut, That's what I was hoping you were going to immediately go to when I said the culture element, or there are just cultural elements.

And that, look, we don't have to get into, are all women one way, all men another way? No, let's not do that. We all know that all women are not one way and all men are not another way. But there are generalities you can draw. There are differences in an approach in the aggregate. And so when you do have a mixed gender court, you're going to have a different culture there. You just will.

You just will. And you're going to have a different spectrum of experiences. And so I'm a big believer in Cass Sunstein's Law of Group polarization, which basically says when like-minded people gather and deliberate, they tend to become more extreme. And the like-mindedness, I think, isn't just a matter of ideology. It's a matter of experience. It's a matter of perspective.

And so I do think there is a very, value, a tremendous value, one that I can't trace to any given case outcome, but a tremendous value in having the different perspectives that exist by having a court that does reflect a lot of the different perspectives and experiences of American society. I can't say specifically in any given case how that alters things, but what I will say, it is a net positive for any group of people who deliberate together to have a variety of interests and perspectives. That is a net positive. It is a firewall against group polarization. So yeah, I think it makes a difference, but it's not the kind of difference that maybe identity politics would say, which is, well, women are going to rule a

certain way and men are going to rule another way. That's not what I'm talking about. I'm talking about the collective, the entity of the court will be different with expanded perspectives. And not necessarily in the most predictable of ways. Well, Judge Chabria has entered the chat, friend of the pod. So let me read an email that he sent. Hi, Sarah. At our event in San Francisco, which was a lot of fun, by the way, I expressed my strong agreement with your call

for more experiential diversity at the Supreme Court. Afterwards, a couple of people from the audience expressed skepticism that the kinds of people you and I want on the court, state elected officials, for example, would have the chops for the job. This made me think. I bet Sarah and David and their listeners could come up with a great list of nominees. For my part, I can easily identify three people from San Francisco alone who mostly meet your

criteria and easily have the chops to do the job. They are in alphabetical order. One, Rob Bonta. Rob got his JD from Yale and then did a district court clerkship in New Haven. He worked, with me actually, at the law firm of Kecker and Van Nest, and then later worked, also with me, this is Judge Tropria, as a trial lawyer in the San Francisco attorney's office. He was a city councilman in his hometown of Alameda while at the city attorney's office. Then Rob was elected to the California State Assembly, and a few years ago, Governor Newsom appointed him to be the California Attorney General. So that's number one, a state attorney general. Number two, David Chu. David got his JD from Harvard and his MPP from the Kennedy School.

He and I clerked for the same night circuit judge, James Browning. David was an assistant district attorney in San Francisco, ran his own nonprofit, and then was elected to the San Francisco board of supervisors, whereupon he became my client. He was elected president of the board almost immediately after taking office. David then served as a member of the California State Assembly, and a few years ago was appointed by San Francisco Mayor London Breed to be the San Francisco City Attorney. So, a big city city attorney. Number three, Scott Wiener. Scott got his JD from Harvard and clerked at the New Jersey Supreme Court. After spending some time in private practice, he worked for 10 years as a trial lawyer in the San Francisco City Attorney's Office. He was then elected to the San Francisco

Board of Supervisors, and after that, to the California State Senate, where he has been a leader in tackling the state's housing crisis. He is currently running for Nancy Pelosi's house seat. The only downside to these candidates from your perspective is that they went to Harvard and Yale, and two of them did federal clerkships. But they check all the other boxes, and perhaps their school's clerkships would help give people comfort. So, David, we talked about the sort of hypothetical of Ted Cruz, not that we were saying it was, Ted Cruz specifically, but this idea of, yes, having someone who is a great lawyer who happens to hold elected office would be a plus, not a minus. So here we have, I mean, we're just looking at San Francisco, three off the top of his head.

What do you think? If a Democratic president nominated one of these guys to the Supreme Court, would you say that person is qualified? Supreme Court. of the United States. That's a tough one for me, Sarah. That's a tough one. Supreme Court. So you want someone who is served, like, so for instance, if they were appointed to a circuit

court and served for three years on the circuit court. Yeah, much more comfort, much greater degree. So it doesn't even have to be much time on the circuit court? Not even much time, but... Just literally they did it. Well, I would want to see their opinions. I would, you know, because Amy Coney-Barrant didn't spend a lot of time on the court, but she wrote some consequential opinion.

and you got to see her in operation as a judge. You got to see her judicial temperament. You got to see her approach. So there was at least some data there. I'm getting, I'm very skeptical of the vault to the top sort of approach. Like, I mean, I don't, I'm not going to compare these people to Graham Platner, but let me bring like the Grand Platner situation. The defenders of him would say, well, he had a rough time, but, you know, now he's got, like four years of being just this awesome dude.

So now we put him in the U.S. Senate. Can we have some way stations? Can we have some steps before you become one of the most powerful people in the world? Those people are not scantled. I feel bad for even mentioning Plattenor's name and connection with them. But you get what I'm saying.

It's not an insult to very, very, very accomplished people to say, not right to the Supreme Court. You can have a step. I agree with your general sentiment that we don't want to just pluck some random talented attorney and put them on the Supreme Court. However, I think if you're a state attorney general, that is sufficient. That is a statewide office that you have been elected to. You have been vetted to the extent we're going to vet people. So I think that is sufficient for me. I don't think that everyone needs to have been a circuit judge. Obviously, Elena Kagan was. She was the U.S. Solicitor General. Rehnquist was not a circuit judge. He was at the Department of Justice as well. Now, again, I just want to be clear. I take your point to the extent I'm disagreeing with it. It is weekly.

But I do think there are plenty of jobs beyond federal judge that one can vault straight to the Supreme Court from. I think AO listeners would agree that you disagree with me weekly all the time. Weekly with an E and weekly with an A. State Attorney General, given the right additional credentials. And I do like the way he because I would be one of those people because you know I'm a, I like the professionalization of the court. Right. That's the other thing.

You're a little bit on the other side of this from me because you like all the good writing and whatever. So I disagree with you weekly on that as well. But I do like the idea of hyper-accomplished people coming from different backgrounds. So having both the hyper-accomplishment, which I think has net, net good for the court. and different backgrounds, which I think the court needs. All right, David, when we get back, two more questions, that for some reason are, like, one of these questions is coming in hot and heavy from, like, a lot of listeners.

I don't know if it's just summer. Top movies or television shows about the law. Now, we've gotten some are, like, what are the most accurate? Some are, what are the most fun? Summer, what are your favorites? Whatever, whatever. We're just going to talk about the TV shows and movies. And then, David, there were some would you rather

that we left on the table from a few podcasts ago of that amazing high school teacher who came up with this AP study guide that was just would you rather so you have to kind of know the underlying thing. And we're going to do some more. So we'll be right back. All right, David, lots of versions of this question coming in, I guess, because it's the start of summer, the legal movies that you love. And can I just throw out Adam's Rib right off the bat? And if you haven't seen Tracy and Hepburn in Adams Rib, This is one of the best lawyer movies ever, and I love it. I have never seen Adams Rib.

But have you seen Spencer Tracy and Catherine Hepburn, like their whole schick? Like they were the Meg Ryan and Tom Hanks of their time, but better. So this is when you're going to disagree with me strongly, not weekly. What is about to happen? The number of old movies I've seen is very small. Pathetic, David. I know, I know. I know.

Casa Blanca. Have you seen Casablanca? I have, of course, they've seen Casablanca. Bridge on the River Kwai. Yes, but only once a very long time ago. Yeah. If it's a war movie, Sarah, there's a much greater chance. A bridge too far, the longest day, midway than...

Philadelphia's story. Not seen. Okay, that is my favorite movie, David. My single top, number one favorite movie is the Philadelphia story with Catherine Hepburn. Really? I thought it was Zero Dark 30. Oh, that's... You're making me...

I mean, no, zero dark 30 is the movie that I binge. Different category. Here are my movies. I've got two moving towards three. Well, three really. So one of them, I'm not going to call this the best legal movie, but absolutely ridiculously compelling because of the performances. Do you remember primal fear?

Yes, with Richard Gere. And Edward Norton, it is absolutely just so freaking rewatchable. And the other one, now this is the JAG officer in me and the, you know, the military history buff, Breaker Morant. So this is a 1980 movie about three Australian lieutenants who are court-martialed for executing prisoners. And it is very well done, just very well done. But I have to say my favorite, and this completely contradicts what I just said about old movies, but 12 angry men is just so, so good. It's just so good.

You know, we had to watch that in school in high school on one of those days that the teacher, obviously, we assumed, had a hangover. And at first, you're like, I'm going to fall asleep. Like, this is, I mean, you're in high school, right? Like, this is, it's cold, over-air-conditioned Houston public school. But, man, you start getting into it, and then you realize you're really paying attention. and then when you get towards the end, I mean, that is a build-up. I got to say, not realistic, et cetera. You never get someone to admit that they ordered the code red in real life,

but a few good men. And it's just really is that climactic confrontation. When you have two spectacular actors, Jack Nicholson, who really embodied the how dare you question me while living under the protection that I provide ethos, that a lot of people have, you know, a lot of people have. I mean, the way he embodied that and that exchange is just, I could watch it five, I could watch it ten times a year,

just that exchange alone. Okay, I'm going to take a totally different tact on this and do best fictional lawyers. So right off the bat, this is a tie maybe? Maybe it's not a tie. Number one, Jack McCoy from Law & Order as played by Sam Waterston. Number one, best fictional lawyer, number closely followed by number two, which is Adam Schiff, who plays his boss in Law & Order. Very different portrayals of lawyers, but both, I think,

idealistically realistic, if that makes sense. I mean, Adam Schiff is a cranky SOB, and there's something both idealistic and realistic about that. Number three, and this is three with 50 exclamation points next to it. Ainsley Hayes from the West Wing the blonde Republican sex kitten, where she plays the Republican who is hired into the council's office in the Bartlett White House and just crushes it as a lawyer and wins over the respect of her colleagues. If there is, you know, any fictional character that I have aspired to be, David, since that show was on air, it is definitely. Ainsley Hayes. Let's see. Next up, oh, got to be, we're now at number four, Matthew McConaughey from A Time to Kill,

which I know it's not a remake of To Kill a Mockingbird, but it kind of is in a lot of ways. It basically takes to kill a mockingbird and changes everything about it except the emotion. And I think it's a really wonderful, hard-to-watch movie. Yeah, it is wonderful. It is hard to watch. I was not prepared for this part of the test. So I don't have a fictional lawyer. Wait, no, because you're going to agree on my next one.

Number five, my cousin Vinnie. Oh, yeah. Obviously, right? That is the next best fictional lawyer is Joe Pesci. And everyone will tell you, I think this is a little overblown, that that's the most realistic legal movie when it comes to civil procedure, basically. I mean, it's actually a criminal case. But the idea of how you do evidence and trial work and stuff,

that it's like the most realistic. Okay, let's not give it too much credit. But, you know, if you're trying to learn trial tactics, there's worse movies to watch. Well, and that will lead me to a category of one, one human being that occupies this, best expert witness and fictional, and best fictional expert witness in the history of cinema is Marissa Tomey.

It is like a little primer and criminal procedure, and it's funny because Vinny doesn't know any of it, you know, with the prosecutors handing him over the case files. He's like, look what I got. I got the case files. No, you get those. You just get those. It's discovery.

But the one part that was not, there's no way the lawyer's girlfriend, even if she grew up in a garage, it's going to be certified as an expert. It's just no way. But she was the greatest fictional expert witness in cinematic history. All right, David. do some would you rather's. So I'm going to start with this one. Would you rather win Tinker v. Des Moines or win Shank v. United States. And just to remind everyone, Tinker v. Des Moines is the 1969 Supreme Court case that said that public school students do not, quote, shed their

constitutional rights to freedom of speech or expression at the schoolhouse gate. And that the students who were wearing black armbands in protest of the Vietnam War were protected by the First Amendment. Shank v. United States, much older. This was the World War I 1919 case about Charles Schenck and Elizabeth Baer, socialists who were distributing leaflets declaring that the draft violated the 13th Amendment prohibition against involuntary servitude. The leaflets urged the public to disobey the draft. but advised only peaceful action. They were charged with violations of the Espionage Act,

both convicted of violating this law, and the Supreme Court, by a 7-2 majority, held that the Free Speech Clause of the First Amendment does not shield advocacy urging conduct deemed unlawful under the Espionage Act. So, David, are you going to overturn one of the greatest wrongs in First Amendment history or lose one of the greatest rights? Here's what I love about these hypotheticals.

they were almost like diabolically designed to be, to just be massive tradeoffs. Because on the one hand, there's an easy answer to that. You overturn the case that would send people to prison for their speech, Shank. However, Shank was discarded pretty quickly. So this was a blip in constitutional history, whereas Tinker, much lower stakes,

nobody's going to prison. And also you're talking about something that is, lower stakes as well, student engagement in K through 12 education as opposed to adult participation in a debate about war. So I'm going to have to go with Shank, but it's so hard. It's so hard. Do you know what's so annoying about your answer? I was coming in hard on Tinker, and literally in 90 seconds you've persuaded me, I'm wrong. That is a terrible feeling. It didn't even take you long, right? You just immediately dismantled every thought that I had and now I completely agree with you and don't even think it's that hard. Like you've convinced me it's just obviously the right answer.

Okay, but this leads you to the next would you rather. Would you rather have Woodrow Wilson never become president or have Congress do its job? And by the way, shout out. Like this is a real thing that a teacher used in his classroom. And I just love that this was one of the would you rather, is because it presumes that his students have already been taught, you know, Woodrow Wilson as the villain in American history. So, David, Woodrow Wilson never becomes president, which actually was a close election, or have Congress do its job. I'm going to go Wilson, and here's why. I feel like Wilson botched the end of World War I. And so let's remove from the board, like, it's not just that he was an oppressive American president, re-segregated

the federal government through political opponents in jail. I think that he ended up botching in the denouement of World War I. And as a result of that, and this look, and listeners, I invite your vehement to disagreement. I invite it. That it helped put us on the path to World War II, that had he not botched World War I, and had the Western powers, in many ways, not botched the end of World War I, then I don't know that we have World War II. If we don't have World War II, you know, the issue, he was president in an absolutely pivotal hinge moment of history that did not turn out well. And so that, that's why, that's why I say. But it is not an easy call, because current Congress is, I mean,

awful. If I pick Congress doing your job, which is my first instinct, then it actually undermines my case of why Congress doesn't do its job, which is at least in part because of the progressive era and reimagining of how government works that Woodrow Wilson implemented. So, right? So do I really believe what I'm saying or not? If I really believe what I'm saying, if I really think that Woodrow Wilson was the problem,

and I can just like, poof, disappear him, then I would get both, right? I would get rid of all the bad Woodrow Wilson and Congress would be doing its job right now, unless I think some other progressive era president would do the trick. But, I mean, David, I don't know if, so Woodrow Wilson is elected in 1912. That election actually wasn't particularly close. But in 1916, the swing state is California, and it comes down to like a few hundred votes. And if those few hundred votes have gone for Charles Evan Hughes, Woodrow Wilson would have been a first term historical footnote of a president, really. And you would have gotten all your World War I wishes granted, maybe. I mean, 1916, I mean, it's better. And like all those leaflets and shank and all of this stuff, I might get my Congress to your job anyway. Like it's really, and we see this throughout history, right? It's the president's second term that causes the most violence, if you would. will to the American system. And no exception for Woodrow Wilson. It's that second term that does you in

every time. Well, David, this has been an exciting episode of advisory opinions where we refuse to talk about the decisions that the Supreme Court actually handed down on Thursday morning. And just so listeners understand why, it's not that they weren't important, but frankly, it's not, you know, a trucking arbitration case. It's not like that sexy. No, I mean, these were economically important cases about, you know, whether AT&T and Verizon can have a jury trial when the FCC finds them like $100 million. Whether the SEC can obtain disgorgement without a finding of monetary damages. And whether patent something generic drugs, blah, blah, blah, skinny. skinny labeling, dot, dot, intellectual property.

I'm sorry, guys. They were all unanimous. They're all important business docket cases. I had a friend here last night who is a big time litigator, and she was pretty excited about several of these. And normally her excitement would infect me with excitement, but it didn't. I couldn't do it. All right.

Well, on the next advisory opinions, who knows? knows. Circuit Palooza could be anything. The world is our oyster, David, and we'll see you next time. Okay, David, that's it for us today. If you like what we're doing here, there are a few easy ways to support us. You can rate, review, and subscribe to the show on your podcast player of choice to help new listeners find us. And we hope you'll consider becoming a member of the dispatch, unlocking access to bonus podcast episodes and all of our exclusive newsletters and articles. You can sign up at the dispatch.com slash join. And if you use promo code, A-O, you'll get one month free and help me win the ongoing, deeply scientific, internal debate over which Dispatch podcast is the true flagship. And if ads aren't your thing, you can upgrade

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