Advisory Opinions - Reviewing the Court’s Criminal Law | Interview: Rory Little and Orin Kerr

Episode Date: July 28, 2026

Sarah Isgur and David French discuss new data on questions that the Supreme Court justices are asking, dive into the definition of stipulation, and run through a few questionable subpoenas of reporters. All this before the crime-apalooza interview with University of California law professor Rory Little and Stanford law professor Orin Kerr. You won’t want to miss their discussion on torture. No, this isn’t a euphemism.  The Agenda: –Justice Kagan says court gets a “bad rap” –Nine justices, nine styles –Was it a stipulation or admission? –DOJ subpoenas New York Times reporters over Air Force One reporting  –Get bourbon with old trial attorneys –The Roberts court’s legacy in criminal law Show Notes: – The First Criminal Procedure Revolution –“Torture and Plea Bargaining” by John H. Langbein –Branzburg v. Hayes –Gonzales v. Raich The SCOTUSblog Summit: 2026 Term Preview. Order Sarah’s book here. Advisory Opinions is a production of The Dispatch, a digital media company covering politics, policy, and culture from a non-partisan, conservative perspective. To access all of The Dispatch’s offerings—including access to all of our articles, members-only newsletters, and bonus podcast episodes—click here. If you’d like to remove all ads from your podcast experience, consider b 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. Justice Kagan at the Ninth Circuit Conference. Guys, this is like, you know, there's Memorial Day, the 4th of July, and then Justice Kagan speaking at the Ninth Circuit Conference.

It kind of marks the beginning of the end of summer for me. And she did not disappoint. We've got lots to discuss with that, as well as some great new data on the questions that that the justices are asking that are different. from what their colleagues are asking, as well as diving into exactly what is a stipulation. Is it an admission or is it a stipulation? And those reporter subpoenas,

we finally got to them all before we go to, dun da-da-da-da-da, crime a paloza with professors Rory Little and Orrin Kerrwin. You will not want to miss our discussion on torture. That's right. Medieval torture, real torture. This isn't a metaphor, a euphemism, just the rack, you know, the things.

And David, guess what else? If you're in the Washington, D.C. area or looking for a good excuse to visit, save the date for September 16th. Scotus Blog and Johns Hopkins University are hosting the Scotus Blog Summit, 2026 term preview at the John Hopkins University Bloomberg Center. The in-person program will feature a live podcast reporting of advisory opinions with special guests to be named, a keynote address and a panel featuring Brett Gary, the chief legal officer of Boeing, Brian Kalanan, the General Council of TD Bank,

and Jeff Taylor, General Counsel of ExxonMobil, and so many more conversations, a cocktail reception will follow. Registration will open soon, so keep an eye on your inbox and on SCOTUS blog for more details. Special thanks to our presenting sponsor, Cooley, for making this event possible, with additional support from Latham and Watkins,

Williams and Connolly, Wild Gottschall and Manjee, Pacific Legal Foundation, and DRC litigation strategies. Buckle up, David. It's going to be a good time. That's a boatload of general counsels right there. A boatload. No, we need a word when you have a lot of general counsels, like a murmuration, you know, but like for GCs.

Well, we can't say murder because that's crows. Yes, which, by the way, David, became widely popularized after appearing in the 1486 hunting text, the book of St. Albans. You know, I'm just so glad you knew that off the top of your head, Sarah. I definitely didn't Google it. No way, sir. No Googling happened at all there.

You know, crows were associated with battlefields and cemeteries because they're scavengers. But, okay, I've asked Claude and Chat GPT to come up with some good ideas for what we can call a group of GCs. Let's see what you think, David. Okay. A privilege of general counsels. A red line of General Counsel. I really, a red line of general counsels. Yeah.

It's great. An indemnification of general counsels. Yeah. The indemnification of general counsels. That sounds perfect. I like that. There was also a caveat of general counsels. That was pretty good.

And then this one from chat. And it depends of general counsels. I'm thinking I'm going an indemnification at number one and a red line at number two. Yeah, I think so. Yeah. All right. Well, all that and more at the Scotus Blog Summit, September 16th, go over to Scotus Blog to learn how to sign up. But now we've got a great Crima-Paloosa advisory opinions for you.

Well, David, before we get to our main event today, Crimapalooza, I thought we'd wander around a little bit. first of all, let's start with Justice Kagan at the Ninth Circuit Conference. This is always a highlight. It's like a summer memory, you know, like you go back to the same camp each year and Justice Kagan speaks at the Ninth Circuit Conference and you watch it on C-SPAN at two-time speed, right? Like that's what we all do in our late July. I wanted to play you a short clip from what she had to say. I don't see this as a court that is just like, you know, we're just going to rubber stamp what the current administration does. You know, quite the opposite. I actually think that there are significant times with respect to very significant issues where the court has checked the executive branch. And, you know, you can say it should have, there should have even more justices who did this. You know, it was usually, I think, it's the chief justice with a little bit of a floating cast of characters around him.

but on quite a number of occasions said to this administration, to this president, you can't do that. So I think that that is a bad rap. I think that, you know, is this court very conservative? Does it do a bunch of things

that are out of the playbook of the conservative legal movement that I think are deeply wrong? You know, yes. But is this court the kind of puppet for the current administration, I think definitely not. David, you know, per our coverage of Justice Kagan, I don't think this should actually surprise anyone.

It did make a lot of headlines. But, you know, she talks about the conservative cases, Calais, she talks about, slaughter she talks about. And then she talks about the Trump cases, tariffs, National Guard, Cook and the Federal Reserve. birthright citizenship. I mean, we've been singing this song about the term for a while, but she's making the same point, though, with greater inside knowledge, that, like, yes, she says, this is, and I think these were her words, an ultra-conservative court. And she says,

it is very different than when she first joined, and it was, you know, the five, four, the Kennedy, you know, swing vote court. And she says, but they're doing conservative stuff that I don't like and that I strongly disagree with, hence all of my dissents, but it has nothing to do with, you know, being a rubber stamp, a puppet for Donald Trump. Yeah, and I'm so glad that she said this, that she did this, and did it the right way, which is, of course, she's not agreeing with everything that the conservative jurists decide, of course.

I mean, that's self-evident from all of the writing. But this sort of idea that has locked in with people, And including it sort of into the like smart intellectual set, you can say, well, you know, we all know the Supreme Court is politicized now. And everyone will just kind of nod along. Of course. It's, you know, of course we know that. Everybody knows that. And here's Justice Kagan going, uh, scoreboard guys. Like look at the freaking scoreboard when it comes to signature issues. Now, of course, some of those signature issues that the court. back to Trump administration, but some of them it absolutely did not. And so, you know, I feel like, I feel like we talk about this so much on the podcast that people are going to start going, okay, is there such a thing as five times speed to get through this? I know. But it is worth reemphasizing it with Justice Kagan.

And again, when we say that the court isn't a political actor, that's not the same thing as saying Sarah and David agree with everything the court does. It's just, we just want accuracy here, guys. We just want accuracy. Other newsmaking, she talked about why she and Justice Barrett had been the ones to testify in front of Congress. She's like, because we're the two justices on the budget committee. Why are they the ones on the budget committee? To quote Nate Bargazzi, nobody knows except the chief justice who chose them.

And she said she's been on the budget committee since long before Justice Barrett even joined the court. And before that, it was Justice Alito. who joined her on the budget committee. What other news did she make? And she talked about the emergency docket and why she doesn't call it the shadow docket. She's like, I used to use that term when we weren't giving reasoning. I thought that was really unfair to the district judges. You know, so we're not in the shadows anymore.

Done. She's like, some of my colleagues use interim docket because that's the type of relief that we're granting. But David, I actually thought she gave a really good explanation for why she doesn't use that term. She was like, because sometimes it's not just interim. We're signaling how we would decide this in the end. And it kind of ends the litigation. And she's like, so I like emergency docket because that's how we should decide whether to take these in the first place. Is this an emergency?

Right. And she's like, the whole problem is we've been taking too many of them that aren't actual emergency. So I just wanted to be a reminder, basically, that that's what it's supposed to be for. And I was like, oh, okay, yeah. I actually do think that they're granting relief in too many of these, many of which aren't emergencies. Now, remember, they always have to like, you know, Roman style, give the thumbs up or the thumbs down, like no matter what.

So it's not like a cert petition where you can just deny cert. You're either granting the interim relief or denying the interim relief. But nevertheless, like, I take the point. And David, she has also asked at the end what she has. is reading and what she is watching, again, highlight of my summer, what she is reading is the collection of essays by Gordon Wood called Law and Liberty about, you know, how judicial review comes about in the, you know, 1800s and not just, you know, I don't want to get a bunch of emails about it already exists. No, she knows that, that it already existed. How did it get solidified,

baked in, become sort of part, a core part of what the Supreme Court did. And obviously, no one better to look to than Gordon Wood. And she is watching,

because she's going on vacation in Ireland, a Irish police procedural called blue... Oh no. Lights. Blue lights. Yes, she's watching blue lights.

Justice Kagan has heard my recommendation of that show. I'm sure. That's what it was. It's incredible. You're never going to go wrong if you listen

to my streaming recommendations. I mean, let this. be a lesson. No, blue lights is really good. It's really good. Think about like the wire except for Northern Ireland. So David, this is by John Greel. He's a professor at the University of Texas, and he published this in Scotis blog. Let me explain to you what he did. There were 5,095 questions asked during this past term at oral argument. And so he built basically a, you know, a, you know, a database systematically tagged and analyzed every question over the course of a term in order

to understand each justices style. So we have both the percentage of their questions that were on a specific topic and how much more likely they were to ask about that than the other justices. So like both the standard deviation and the overall percentage, this is super fun. It is, I'm so into this and I'm going to be staring at it for a long time. put the link in the show notes. And I'm trying to sort of think through how I think this maps on to our sort of two-dimensional understanding of the justices, like, is this what we would expect or not? What did we learn about the justices based on this? A lot to think about. Justice Kagan asked 46% of her questions on basically pushing back on the answer someone gave a woman after

my own heart. But here's the interesting part. That's already the most. most common thing for a justice to do in oral argument. 36% of the questions from all of the justices would fit into that category. So she's about 1.3 times as likely to ask a pushback question as any other justice. But that also means that Justice Kagan is sort of the, well, I might call her the most institutional justice when it comes to what type of questions to ask. Basically, half of her questions are going to be pushing back on what you just said. Duh.

But here's what gets really interesting. 5% of the court's questions are about the record. You know, the facts in the case, which have generally all been agreed upon, ruled upon one way or the other by the time you get to the Supreme Court. But for Justice Sotomayor, that number is 11%, which makes her 2.3 times as likely to ask about the record. Okay, I'll just go down the rest of the justices.

Justice Alito is about 1.8 times as likely to ask a hypothetical. Justice Thomas is about 1.7 times as likely to ask about, you know, the history behind the practice at question. That tracks. Yeah. Justice Barrett, one point seven times as likely to pick up on someone else's question, which, by the way, I really, I think this is one of the more interesting windows into a justice, because that means you're listening really closely to what other people are asking and not just thinking of your next question, which is what a lot of people do when they're in conversations. So Justice Barrett, definitely winning best listener, I think, of the court, which is a whole personality type. Justice Kavanaugh, 1.5 times is likely to ask about policy consequences. That is interesting that it's one of the conservative justices who is most likely to ask about policy consequences. Yeah.

Very interesting. So the court overall, 16% of the questions are on real-world effects. For him, it's 23%. Justice Gorsuch, one point four times as likely to try to get you to concede ground. Perfect. Yes. That is a personality type and it is exactly his. Chief Justice Roberts, 1.4 times is likely to ask for the limiting principle of your position.

Fair enough. And Justice Jackson, only about 1.3 times as likely to do sort of a Socratic, multi-chain set of questions to get you where she wants you to go. And then, of course, Justice Kagan, 1.3 times as likely as well on that rejection. So interesting, our most institutional justice in many ways and our least institutional justice in many ways, both only 1.3 times as likely to ask, you know, their version of their question. David, I'm going to be chewing on this for a while. I think it's really fun. He has lots and lots more. data, you know, time, purpose, technique, importance. It's really cool. So we'll put that in the show

notes. It's very cool. And actually looking at those different characteristics, not only do for each of the justices, well, let me do this way, none of them does it surprise me? None of them. And then a couple of them, it really tracks with what you would expect. Of course, what we'd expect is shaped by listening to a lot of oral arguments. So this tracks with our actual experience. But very interesting. And, you know, when you think of Kavanaugh and policy consequences, it makes me think of a lot of his concurrences, that a lot of his concurrences really kind of dive into that. What does this mean? How should you interpret this? And, you know, I'm thinking about the gun cases and he had some concurrences, basically. We're not overturning everything here. And then you had concurrence in Dobbs.

like, what about travel? You know, he raises some of these issues and raises and answers some of these questions and his concurrences. And so that really does track. Okay, David, next up in our little grab bag here, there was a headline that just made all the rounds that I saw. And it said, Trump administration admits canceling grants to states that did not vote for him. Federal officials said in court documents that they halted billions of dollars in funding

for energy projects to states, quote, based solely, end quote, on whether they backed President Trump in the 2024 election. Well, David, this is an interesting headline because if you actually go read the, you know, legal documents, I don't know that that's correct. In fact, I'm going to go so far as to say that I do not think that that headline is accurate. They did not admit to cancel grants to states that did not vote for him, they stipulated to canceling grants to states that did not vote for him. And so if this headline seemed kind of crazy to you that they just admitted that and agreed that they based it solely on what state someone voted for, like, that's because that's not really what happened. So, David, I thought we could spend just a second on stipulations. Because on the

one hand, I also don't think it's accurate, what I saw from some of the pushback, that like, that's just not at all what the administration did. And a stipulation is nothing, it's, you know, the opposite of admitting to it. Like, well, no, basically to me, David, let's see if you agree. A stipulation means I don't want to argue about the facts right now because I think I went on the law alone and the facts are going to be a distraction. So I'm going to stipulate your facts for the purposes of what we're arguing about for this motion right now because I think I went on the motion on the law, even if I accept

your facts as true. Now, your facts may be true. They may not be true. I want to argue about those at some other point potentially. Maybe yes, maybe no, depending on where this is in the litigation. But right now, I just win no matter what, even if your version of these facts is totally right. Yeah. Okay. So the way I think you put it well, a stipulation, a stipulated fact is one you're not contesting. And so the actual paragraph reads, DOE accepts that the inclusion of grants in the October notice tranche was based solely on the political identity of the grant recipient state, i.e., whether the recipient's location and or place for performance was in a blue state or a non-blue state. DoE will not contend that it looked beyond the prime grantees to consider

the political identity or geographic distribution of downstream beneficiaries of the grant funds. Okay. So this absolutely could be an admission that all they did was look solely at the political identity of the grant recipient state, or it could absolutely be a stipulation that they're not going to contest that they did because they want to focus on the law. Now, this is a tactic that lawyers sometimes use. Sometimes. Now, I never did, Sarah, I was like, I'm not even stipulating the identity of my own mother. Stipulations are dangerous, man. Stipulations are very dangerous.

I mean, there's a very famous case, CLS versus Martinez, and we have a particular listener, Hey, Casey, that hates this case, maybe more than I do. And I hate this case with a white hot burning passion. But this was a case in which arguably it turned on a stipulation at the trial court regarding the stipulation was regarding the viewpoint neutrality of a particular university policy, and there was a stipulation to neutrality, which turned out to be extraordinarily misguided, extraordinarily, so extraordinarily misguided that when I debated the outcome of the case

at Harvard Law School, Charles Freed, who was moderating the debate, turned to me and gave me the first question, who is the idiot who agreed to that stipulation? which puts me in a really uncomfortable spot because the person's not at all an idiot. They were making a tactical decision to try to focus on a particular legal theory that they in good faith believed was going to win the case and that other elements and other forms of proof are going to be distracting, weaker, etc. I can't, you know, I don't know all of the reasons. but a stipulation is sometimes tactical.

It is oftentimes essentially the same as an admission. And by the way, it often, for these purposes, is done to prevent discovery as well. Exactly. If you just stipulate it because you think you're going to win on the legal case, you can also ward off any discovery, which maybe you're like, there's like a 60-40, you know, we'd lose on this anyway. 40% chance we'd win on it. But in the meantime, they're going to get all this discovery.

It's going to be super messy. It's going to show all these other really bad things that are super unhelpful. So let's just stipulate to it. We prevent discovery. And I think we have a 80% chance of winning on this legal question, but only a 40% chance of winning on this fact question, stipulate the fact question, get to the 80%. You know, mathematically it makes a lot of sense.

But the problem is with litigation, there's often a vibes problem. Yeah. Yeah. Well, and the reason why I was so cautious with stipulations is once you've stipulated, you've stipulated. It's done. It's done. And so while it is not always the case that you have actually admitted to these facts, sometimes you're doing it for tactical considerations, it is also the case there that once you've stipulated, you can't then go running around going, no, no, no, that really didn't happen. Okay. So once you've stipulated, so once you've stipulated, you can't then go running around going, no, no, no, that really didn't happen. Okay. So once you've stipulated, maybe you did it tactically, but running around and saying those are not actually the facts of the case. And even doing so in public, in public is often a really bad idea. Judges will sometimes call you on that. Like, ho, counsel, I saw your press conference and I'm reading the stipulation. Which is it, counsel, because stipulation is a court document. It is a representation to this court that you're not contesting these facts.

And so, yeah, I think it's very important to be as precise as possible with this. It is not a, it is possible. It is not an admission. But it is also probable that it is not wholly disconnected from the actual facts of the case. Again, that's why I simply would have argued in that editorial room, you need to put the word stipulates. I know that's not an ideal word, but the word admits is not correct. Stipulates is the word. And these words have legal meaning.

And I get, I really do get the notion to try to not have legalese in court and descriptions of court proceedings. I get it. I get it. I battle this all the time. Sarah, I battle it all the time. And in that circumstance, though, in some circumstances, you just have to have the legalese with an explanation. with an explanation of what it means. You have to add the sentence or two sentences.

David, we'll be right back to continue talking about the Trump administration, and specifically those subpoenas that were issued about the Katari plane incident. What's going on? And what does press mean in the First Amendment? Anything? Now streaming on Disney Plus, the Hulu original series Furious follows FBI agent Alice Black, played by Emmy Rossum on the hunt for a mysterious and calculating serial killer. Both walk their own paths toward justice,

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This fever dream of youth, beauty, sex, and mystery is a must see. FX's The Shards, streaming August 5th on Hulu on Disney Plus. Sign up now at Disneyplus.com. All right, David, speaking of the Trump administration, we promised that we were going to cover these subpoenas to reporters that the administration sent out based on reporting about the plane that Cutter gave the president and security concerns around that. Within two days after those headlines about reported security concerns,

causing them to pull the plane out of service to do some retrofitting, a bunch of reporters got subpoenas because, you know, how did they get that information? and this led to a whole bunch of, well, wait, how are they able to subpoena reporters and is this, you know, some new gate opening to hell? David, I actually worked on this issue a ton at DOJ, as you might imagine. And there is a DOJ policy about when you can subpoena reporters. I actually at one point was tasked with trying to amend that policy to sort of rebalance it in the modern era. The DOJ policy longstanding had been that you need to more or less exhaust your other

avenues before you subpoena a reporter. Now again, that's not mandated by law. That is just the policy of the Department of Justice. And then different people would sort of define exhaustion differently. You know, if a document leaked and a thousand people had access to that document, do you need to go interview 999 people before you subpoena the reporter? Or, you know, 50 of them, blah, you know, what is that number to be actual exhaustion, stuff like that? Here, though, since it was two days later, they had done no exhaustion whatsoever. And I just thought, well, gosh, a whole bunch of people are like reporters have some privilege against testifying. Maybe we should correct people on that thought because, well,

Well, we don't know. Nobody knows, as Napar Gatsy says. In 1972, the Supreme Court decided a case called Brandsburg versus Hayes. And David, what I love about this case is it has a whole lot in common with two other cases that we've talked about frequently on this pod. Rache and bong hits for Jesus. That's not the name of the case. It's just what I like to call it. Oh, one of my favorites. And David, when you start walking through many of these other cases, you will notice rations about the Commerce Clause. Bong Hits for Jesus is about student speech. Doesn't matter because what do they have in common? Drugs. And so does Brandsburg versus Hayes.

A reporter basically does some undercover investigation about pot dealers in his area. Yeah. Oh boy. And the police then subpoena him because he has a photo for the newspaper of like hands in the pot. the hashish as the story tells it. This is 1972. Oh, was it pronounced hashish or hashish?

I've always said hashish. Interesting, okay. You always found things incorrectly, so I feel like I just probably am right. I'm sure a listener with experience will correct us. So the police were like, tell us whose hands those are, and the reporter was like, First Amendment protection. Press is included in the First Amendment. Congress shall make no law.

And the Supreme Court was like, nah. Yeah, right. And I just wanted to read you this part, before I get to sort of the modern pieces of this, if there is no First Amendment privilege to refuse to answer the relevant and material questions asked during a good faith grand jury investigation, then it is a forciory true that there is no privilege to refuse to appear before such a grand jury until the government demonstrates some, quote, compelling need, end quote, for a newsman's testimony. Right.

That sentence has been pulled apart six ways to Sunday by the different circuit courts. And let me just tell you some of the words, right? It said, good faith grand jury investigation. Compelling need for a newsman's testimony isn't what's necessary. What if it's not good faith? What if it's even more than a compelling need, et cetera, et cetera? Okay, so that brings us to now where we have the Fourth Circuit saying, there is no First Amendment testimonial privilege absolute or qualified that protects a

reporter from being compelled to testify by the prosecution or the defense in criminal proceedings about criminal conduct that the reporter personally witnessed or participated in absent a showing of bad faith, harassment, or other non-legitimate motive, even though the reporter promised confidentiality too. his source. That was in the James Risen case about the trial of Jeffrey Sterling, who was accused of disclosing classified information about a CIA operation related to, this sounds very modern, Iran's nuclear program. Evergreen. Evergreen. Always five minutes away. The second circuit, on the other hand, this is now reading from Jack Goldsmith,

basically recognizes that the government may enforce a subpoena against a journalist in a criminal investigation only if it can make a clear and specific showing that the information is highly material and relevant, necessary, or critical to the maintenance of the claim and not obtainable from other available sources. Okay. So those are different and kind of flip the burden maybe a little bit or allow a door for the government to walk through potentially. The good news, David, is, It doesn't matter in this case because the administration appeared in front of Judge Subramanian recently and got taken to the woodshed. Oh, yes. I mean, the absolute woodshed and in a move that you know was only slightly voluntary agreed to withdraw the subpoenas in question.

Yeah, they were caught in some misstatements and inaccuracies. and that's never a good position to be in as a litigant. You know, it's interesting, Sarah. I had a couple of thoughts on this. I saw how thoroughly the DOJ was taken to the woodshed on this. Those cases are the kinds of cases that make me miss the practice of law. Like every now and then, I'm like, man, I kind of wish I was in the courtroom and not commenting on the courtroom about this.

Just really gripping interesting stuff. But then second, at some point, and I don't want it to be with my colleagues' liberty on the line, we really need to have greater clarification on the freedom of the press in the First Amendment. It is a whole separate freestanding freedom here. Here's what it says. Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof or abridging the freedom of speech or of the press or the right of the people peaceably to assemble

and to petition the government for redress of grievances. So the freedom of the press is something different from freedom of speech. It is a thing. It has weight to it. It is right there in the First Amendment. And we just don't have clarity on what that weight is separate and apart from the freedom of speech.

I don't like it when different elements of the First Amendment get collapsed into free speech. So, you know, we've had an issue with free exercise religion after Employment Division v. Smith. Then one of the ways to win a free exercise claim was to say, oh, this is speech, this is expression, maximum protection. And so what is freedom of the press and how is that distinctly protected by the First Amendment? And now I do not think that the fact that I work for a press organization like the New York Times gives me superior freedom to like say Jane Smith in rural West Texas with her substack reporting on what's happening in the local town council, right? The fact that she doesn't get a paycheck from a media company, she's still doing journalistic work and should receive the protection of a journalist under freedom of the press. And so I am both sobered by what the law, the confusion around the law, because that puts, especially when you have an angry administration, that puts the liberty of a lot of reporters

who are doing their work in good faith according to sort of customs that have been established for a very long time and jeopardy of their very liberty, of being imprisoned. And so this is a very serious issue for the liberty and freedom. of people who are doing really everything they should do as journalists to inform the public of things of things that are actually happening in government. And so I'm very keen for the Supreme Court to look at this language of the First Amendment and tell us what freedom of the press is because it is not simply freedom of speech. So, right, you have two issues. You have one trying to force journalists to share their sources and then holding them in contempt if they, you know, they're

subpoenaed, they're on the stand and they say, I will not answer that question. They're held in contempt. That's when you end up sitting in jail until you're willing to testify. We've seen many reporters do that. That is different, for instance, than arresting a reporter under, let's say, the Espionage Act for publishing classified information, which also is an interesting an outstanding question. But David, the question for this specific case was sort of a none of the above. This was all about that good faith language that the Supreme Court included in Brandsburg, that 1972 case. And the fact that the administration subpoenaed these five journalists two days after they published these articles, Judge Subramanian basically like, this is not in good faith.

you're trying to chill their speech and from them doing their jobs. And I don't maybe know the full extent of what the press clause means in the First Amendment, but a show means that. If it means anything at all, it means you can't immediately start subpoenaing reporters after they publish an embarrassing article about an administration. For the purpose of harassing them. For the purpose of harassing them, just send a message.

If it means anything, if it means if you can't rule on the administration, that basis, just get out the eraser and erase or of the press from the First Amendment. All right, David, when we get back, we start Crimeopalooza with professors Rory Little and Oren Kerr. And David, fun fact, by the way, we're going to talk about the two-witness rule that existed in medieval times, gave rise to torturing potential suspected criminals, and just worth noting that two-witness rule got put right into our Constitution. If you look at treason against the United States shall consist only in levying war against them or in adhering to their enemies, giving them aid in comfort. No person shall be convicted of treason unless on the

testimony of two witnesses to the same overt act or on confession in open court. I mean direct lineage from this article that we're going to talk about torture and the plea bargaining system. You know, it's so interesting because that they would put treason in the constant, define it and define it in that way and provide an evidentiary standard. And, you know, I think one of the reasons why they went out of their way to do that is allegations of treason were just tossed around. And when you're talking about, say, disagreeing with the king, that's treason, right? It's allegations of treason.

We're tossed around like throwing croutons on a salad back in the day. And this is sort of saying, no, no, no, no. Disagreement is not disloyalty. Disloyalty is X, Y, and Z that has to be proven in a particular way. It is one of those anti-monarchical parts of our Constitution, for sure. we need to make the Constitution more anti-monarchical and get rid of the pardon power. Well, this Law Review article that we're going to be talking about makes the case that because they had a two-witness rule back in the day, it was sort of at a societal level, allowing too many

criminals to go free. And so they had to create this sort of workaround. You know, you squeeze a balloon and the air goes out the other side. And that's why you have so much torture going on in medieval times because you had to have that confession if you didn't have the two witnesses. And comparing that to the plea bargain system where basically the Warren Court creates all of these procedural protections for criminal defendants, it squeezes the balloon on one end. What comes out the other? The modern plea bargaining system. So when we get back, crime-a-palooza. Buckle up. Professors Little and Kerr, thank you for coming to advisory opinions for Crim Law Fest. Now, Professor Little, you wrote a piece for Scotus blog that was

sort of like, you know, let's do crime law for the term, some high-level analysis. But this was kind of fun. You looked at the 16 pure, quote-unquote, criminal law decisions. 11 of those produced results in favor of a criminal defendant or a criminal defense position. And this isn't really what people would think of, of a, you know, conservative 6-3 court ruling in favor of the criminal defendant 11 out of 16 times, that's quite a bit. We talked about the chief in the last episode with Professor Ray. Will you just sing me a few bars on the conservative court, what it means to be conservative, and in particular the role that the chief has played in these cases? Well, that's a really good question. What about the conservative court ruling for criminal

defendants? This is not the first term. Last term, it was 10 out of 14 criminal cases. came out in favor of the defendant or defense position, the chief justice, this term, was in the majority of all 11 of those cases. And yet he didn't write in any of them, which means he was assigning the opinion. He was assigning the opinion. So who do you assign these cases to? Well, interestingly enough, a large number of them were assigned to what I call the wildcard justices that is not the three libs, not so do my or not. not Kagan, not Jackson, but, you know, either Barrett or Kavanaugh or Gorsuch, not himself, not the chief. And, you know, Justice Gorsuch, of course, wrote concurring opinions in some of the other cases.

So what you're seeing here is not just somehow the liberals are controlling the agenda for criminal cases, but in some sense the chief is controlling who rights, these opinions. That is, are they going to be really broad or narrow? And in some sense, it's the case selection to before the term begins in some sense that somehow determines this. In other words, I think you have justices on the liberal side, let's think, or maybe in the middle. We're looking for cases where the court can agree on criminal results. Part of my idea here, haven't yet published this, is that I actually thank all the justices, all of them, care about fairness. And if they can locate cases where they think there hasn't been fairness in some

sense, they are not afraid to rule unanimously in four of these cases on a view that some people might call pro-defense. So I think the idea of liberal conservative needs to be shifted a little bit in this area. Well, is it liberal and conservative? Are we needing to add in another term libertarian, because it feels as if this is libertarian-ish. Yes, libertarian, of course, is the word that leaps to mind when you think about Justice Gorsuch. He has publicly disavowed being associated with the word. He doesn't like to be called a libertarian, but a lot of his opinions have that same.

You know, you all have talked about, you know, he doesn't like to rule in favor of bullies. he sometimes sees the government as the bully. And it's certainly true in the criminal law area where, yes, it is a stressing of individual fairness in some sense, rather than some collective image of conservatism. Professor Kerr, what was the biggest case of the term? Chattree. This is the Fourth Amendment's geoffence warrant case. Holy cow, huge ruling that you've read almost nothing about.

but lower courts, get ready, because it's coming. It has all sorts of language favoring broad interpretations of the Fourth Amendment. And if we're talking about what liberal, conservative means, Chattree sounds like a 1966 opinion, not a 2026 opinion. In fact, I think it might be the most rhetorically broad Fourth Amendment ruling from the Supreme Court since Boyd v. United States in 1886. It is just written in a warrant court on, you know, a doubled language. It is really, really broad and points ahead to lots and lots of interesting cases going forward with the Fourth Amendment new technology.

Okay. So you teach this like Fourth Amendment stuff for a living. That's what you get paid to do. How will your syllabus change in the world we live in now with Chatri running about as a little opinion child? So I think I'll spend a full day on just Chattree and then talking about all the different ways that it might or might not play out. And I should say I've been spending the last month or so writing an article on this question, which I'm hoping to send out in a couple of days, basically the different readings of it. But basically, what I'm planning on doing is laying out the opinion and saying, okay, people, like, here are 10 different technologies that governments are trying to investigate cases in these, what's protection? what's not protected. And there are a lot of questions that lie ahead because it's, it's a very, very broadly phrased opinion. It's all about privacy and it's all about the court kind of, what I think of it is the high point rhetorically of the Fourth Amendment has been Justice Brandeis's

dissent in Olmstead versus United States. It said, you know, any unjustified government intrusion that violates the privacy of the individual is violates the Fourth Amendment, or the ultimate, and the Supreme Court had sort of alluded to Justice Brandeis' opinion before and said, yeah, Brandeis had some good ideas. They've never gone anywhere near what he actually claimed the standard was. Chattray did it. Chattray does this in a five-justice majority opinion, interestingly signed by Justice Kavanaugh, very surprising vote. So that's how I'm going to teach it. It's going to be a wild ride. So when you're talking to your students, what's the next piece of technology that you're thinking of after Shatry?

What is the next frontier? So the big questions are going to be immediately, just in the case is currently pending, automated license plate readers. Can the government access an automated license plate reader database? It's not obvious even that warrants are allowed for any of these things. That was part two of Chathri that the court didn't address. But is it constitutional to have automated license plate readers, to query automated license play readers.

Just more broadly, how do you apply the Fourth Amendment to the Internet? Can the government find out who was behind a particular account? Maybe that requires probable cause. Maybe actually everything on the Internet requires probable cause or getting any records about anybody in any setting violates privacy. The court talks about the standard being what is the ordinary use of a cell phone. It's sort of the standard. If it's an ordinary use of the cell phone, it's not disclosed.

in a voluntary sense, they would eliminate privacy. So I don't know what counts as ordinary use of a cell phone, but that could, I mean, we do everything on a cell phone. So that I don't know if there's going to be a jurisprudence of what's ordinary and not ordinary, but that's what courts are going to have to try to figure out. I just want to add one thing about this. So one of the things that I use my cell phone for is my banking. I bank through my cell phone.

I deposit checks. I check my bank balance. And Orrin is, of course, right. this case leads you to wonder, well, what about bank records that are on my cell phone? And here we have a 1976 precedent called Miller. So I think Chattray throws into doubt a number of precedents. Miller says, you have no expectation of privacy in your bank checks because you send them to the bank voluntarily. That precedent has got to be in direct tension now with Chattray. So there's going to be a bunch of questions that's run through your Crim Pro course about

where does Chattray lead you on some of these older cases? Well, it strikes me that, and Rory, get your reaction to this, that essentially what the court has done is completely rejected this sort of default opt-in, like this thing and all of its settings, which are sort of default opt-in to sharing everything, doesn't mean that you have default opted in to the government participating in that process as well, that it is the transponder view, that this is like a little radio transmitter,

just transmitting everything with no expectation of privacy. That just seems to be done, right? Well, right. Let me make another connection for you. There's a case called Hunter, which I think is the other biggest case of the term, where Justice Gorsuch writes a concurring opinion and says he questions voluntariness in our guilty plea plea bargain structure. He writes a recurring opinion in Chattry, where he says, I fully agree with what the court has held, but I have a different approach.

These two concurring opinions in Chattrian and Hunter are going to, if lower courts follow Gorsuch's lead, which they have done in the past. There are going to be major questions, not just in the Fourth Amendment area, consent searches and things like that, but in criminal justice in general, where we all. often rely on defendants, quote, voluntarily waiving their rights. Going back to the question of disclosing on your cell phone, I mean, in the physical world, you have no privacy when you go outside. You only have privacy in certain things in your person's houses, papers, and effects, classically, your house being the most protected thing. And even in your house, if you invite somebody else inside, you don't have Fourth Amendment protection in there. So in the physical world, you actually only have Fourth Amendment protection

in a few specific ways. Chadri suggests that, Maybe cell phones are sort of super privacy things that if you're doing it on a cell phone, it's in your private world. And so, you know, it could be your bank records. It could be emailing somebody. It could be texting somebody. And, you know, of course, we're all thinking, you know, emails texting somebody, you know, what's for dinner tonight or, you know, should I get something at the store or something like that?

It could be in the criminal cases. It's, you know, a threat that is sent to somebody or contacting a minor to set up a sexual act or something. these are criminal cases that the government's investigating. It might be that those are all considered private by virtue of them occurring on cell phones, which would mean that sort of anything you do on your device, that sort of notion of what's the balance that the internet is going to strike as compared to the physical world, what's the network balance, may just be the answer is it's all more private rather than not private at all.

Okay. This has all been a trick to get you guys to come here and talk about how, you know, pro-criminal defendant, pro-fourth Amendment, and all these things that the Supreme Court is, and for everyone to feel really good at home about, like, what a great world we live in, that we are protecting so many of these rights, and that we have a Supreme Court that's neither conservative nor liberal on these things. It's just fairness, all of that. And in doing so, I wanted to talk about a 1978 law review article called Tortoise. and plea bargaining by John Langbine.

So I'm going to summarize this and maybe somewhat poorly. But here's the gist as far as I'm concerned. That when we think back to the medieval ages and the ways that they would use torture in their criminal justice system, we have this very snobby, haughty take about how much better we are morally because we would never do such a thing

because torture is so stupid. but that actually if you go study why they did that, it was because they created a criminal defense system that was so protective of criminal defendants that in fact, the society couldn't deal with that. You were not able to convict guilty people at a high enough rate. You were being too protective. And so, for instance, they required two witnesses to all these serious crimes.

Well, guess what? There aren't two witnesses to a lot of crimes. So all these people who, like, we know did it, are going free and committing more crimes. And so they brought in torture as a way to fix the to witness problem that they had made to protect criminal defendants. Is that what we're doing now? Are we going to create a system that is so protective that then there becomes a sort of societal level incapacity? and therefore you have all of these workarounds, safety valves, etc., because at the end of the day,

there is simply a sort of human lizard brain percentage, roughly, of guilty people who must go away in any system. Does that making sense? Like, they came up with torture. I get we're not doing that. But, like, if you create a system that is too fair, too concerned with the rights of the accused, the system ends up getting distorted.

Sort of like campaign finance, right? You end up with super PACs when you try to get money out of politics. You end up with torture when you try to have a two-witness requirement. What do you end up with when your cell phones now are this, you know,

huge new scope of privacy where plea bargaining, you know, basically is the form of torture, right? It's the system we came up with that fixes all of these criminal justice issues, but we keep adding more and more rights of the defendant. And so Langbean argues that plea bargaining is actually the same thing that they came up with for torture. We came up with plea bargaining. Professor Kerr, have I summarized this

in a way that you would have given to your students? You know, this argument comes up most directly in the more modern era with Bill Stunce's argument that the Warren Court's Criminal Procedure Revolution by giving defendants so many rights actually sort of encourage the waiver of those rights. You know, Once you make a criminal trial something where there's so many opportunities for a criminal defendant to move to suppress evidence, to all these rules that the government has to follow, that pushes the government to work around that through pleas. And so I think there is kind of a natural, what I would think of as like equilibrium, which is like, you know, as the government has more burdens, they're going to look for ways to

get around that. But I think the courts are actually quite sensitive to this themselves. So I think you see in the cases, if it looks like the courts' precedents have been limiting the government too much, they will tend to themselves back off of that standard, and they will tend to limit their prior ruling. So when we talk about what the Chattri case might do, it's possible that courts will interpret it that way, but I suspect lower courts actually will be looking for off-ramps, given some of the broader language.

So I think it's actually kind of self-regulating when it comes to the Supreme Court. They are practical. I think, if anything, a big lesson that I would draw from this term in the Fourth Amendment setting, the two big Fourth Amendment cases, almost no role for originalism. And in particular, there's another case, Case v. Montana, where there was at least you'd imagine a huge role for originalism because it was an issue on which the common law authorities had spoken extremely clearly. and eight of the nine justices had zero interest in originalism. One justice, Gorsuch wrote on originalism, had no interest in those common law rules,

which you would have thought was the governing standards. So it's a very practical court when it comes to these issues, and I think they kind of self-correct when it comes to these standards. Professor Little. Oren and I are like a good originalist. That is, he and I agree on all the premises and all the precedents and all the beginnings, and then we interpret these historical points, and we come to different conclusions on some of these things. Let me just say, here's the opening line by Justice Gorsuch in the

Hunter case. He wants to address, in this concurring opinion, coercive prosecutorial tactics designed to induce defendants to take plea deals. And then he says the court has condoned these, but it's time for starting a new path. Now, that's Justice Gorsuch, writing with justices Sotomayor and Jackson, interestingly. Justice Kagan didn't join because she wrote the majority, but I think she would have joined. That's four justices that are questioning the plea bargaining system. And I want to say Bill Stuntz's book was seminal, but Jerry Lynch, who's a senior judge on the Second Circuit, actually wrote an article three years before Stunce's book, where he said, he's the

former chief of prosecution in the Southern District, Jerry Lynch says, hey, the entire criminal justice system has become an administrative system run by prosecutors. And we decide what to charge. We decide how that's going to go for sentencing. We tell judges sort of where the fair deal is. And then we determine sentencing guidelines for these people. And it's all administrative, which is the fascinating concept. David, when you get into, is the government a bully. And so justice Gorsuch seems to be questioning all of these premises. And I do think this term, if it has a lesson, one lesson, it is that I think that justices are struggling themselves with foundational concepts. Justice Gorses would say his belief about plea bargaining is an originalist view. And it's the shift

in the 1960s, the 1920s that has changed the system. There's a fascinating new article in the Harvard Law Review by a woman named Emma Kaufman, where Emma Kaufman says, look, you've got to go back to the middle of the 19th century when jury trials were the norm. And plea bargain was not accepted by state courts. And it wasn't until, you know, the late 1890s in the early 20th century where plea bargains became something that judges were willing to accept. So this term looks like, for criminal law, It could be a turning point in a number of areas. Orange right, I think, that the court tends to self-correct. And so I'm not sure you'll see these leaps forward immediately.

But I think lower courts are going to run with, there's a lot of lower court judges who want to run with the ball. You know, this raises the question, what is coercive plea bargaining? Because, you know, I would say, we get a lot of feedback when we talk about plea bargaining from prosecutors and some defense attorneys who would say, look, I get what you guys are saying, but the bottom line is the vast majority of the cases that we have, the facts aren't really in that much dispute. There is, what happened here is a known thing. And so plea bargaining is just going to happen. This is just going to happen. It would be ridiculous to take many of these cases to trial. But then they would say everybody's against coercive plea bargaining. But the devil's in the definition, right? I think you could. easily sort of outline a clear example of it, a grotesque overcharging of an outmatched defendant,

basically having a sort of Damocles of a hundred years in prison hovering over their head, and then they're offered a sweetheart, like these kinds of grotesquely obvious deals. But what is the definition? How do we know we're shading over into a process that's basically just a nod to reality versus administration? administrative abuse. Professor Kerr, just start with you. No, wait. I want to ask David a question first.

Who, me, David? Yeah, you. You're the only David. Okay, the only David. Okay. I know that's rare on this podcast, actually. David, would you trade the criminal defense protections to get rid of plea bargaining or to put it another way?

Like, it seems obvious looking back to the medieval times. Yes, of course we would trade the two witness requirements. to get rid of torture. But like, that's the equivalent now. Are you willing to get rid of all of the different protections that we have for criminal defendants to get rid of plea bargaining? Because, I mean, that's the theory. Yeah, no way.

Yeah, yeah. No way. I think that in all likelihood... But this is how evolution works, right? If you're not willing to get rid of the distortion, you're always going to end up with the distorted. Well, the question is, is a plea bargain inherently a distortion? and I don't think it's inherently a distortion any more than a settlement in a civil case

is inherently a distortion of the civil litigation. So you're rejecting the premise, which is fine. Yes. Yes. I'm rejecting the premise. I don't think a plea bargain is inherently a distortion of the process. Sorry. I mean, it's, I mean that the plea bargains have arisen because of the criminal defense protections. And therefore, if you're upset about the world of plea bargaining, you can tinker with that all you want, but you're, going to end up with this system because it's coming from this other thing. I, okay, this might be a diversion where we're wasting our professor's time here,

but I would say one of my questions, if you're looking back to older practices where there were no plea bargains at all, were you dealing with a similar volume of criminal complaints, for example, was, is our system able to handle? Do we literally have the capacity to handle hundreds and hundreds and hundreds and hundreds of trials in non-controversial factual settings. So in that circumstance, I just wonder about the literal practicality of a universal trial system with a crime rate and a number of crimes that we have in modern life. So that would be my question. Is this even, is this a purely academic conversation because there's just not a capacity

to have thousands upon thousands upon thousands of criminal trials. I just want to say, David, there's a rain. You can't paint with a broad brush. It's not all, plea bargains are not all the same. Of course. Defendants who are threatened with a death penalty, if they don't plead, feel coerced. On the other hand, as a former prosecutor, I've had defendants beg me for a plea bargain. Couldn't we please plead this one count away, which involves a gun, for example,

and I'll get a mandatory X, or it involves a child, in which case I'm going to be registering the rest of my life. Could we play? And they're begging for a bargain. And it seems wrong to turn that down when they want a bargain if it seems fair to society, etc. So you're right that the numbers are way higher. It also used to be that jury trials did not last.

It seems like a lot of the things we don't like in society are the result of, some good intentions, right? Plea bargaining is the result of a lot of criminal defense protections. Homelessness is the result of not institutionalizing people against their will. Illegal immigration is the result of really well-intentioned asylum laws after World War II when we turned away Jews. And so it just comes back to this torture history, which I think is so fascinating that, like, well-intentioned stuff can lead to things you don't like.

Campaign finance reform, get money out of politics, leads to super PACs. But no one's willing to acknowledge this. And Professor Kerr, I've so derailed from what David actually asked you, but that's what I'm super into right now. So let me complicate the picture. I think there are a lot of dynamics going on here. So with plea bargaining, for example, one big problem of this, at least in the federal system, I think also true in state systems, is.

you know, if you're a politician, giving extra, creating extra punitive laws and adding extra punishment to laws to give a good hammer for prosecutors to get better plea bargains is like a thing you might do to be reelected.

So a lot of times, prosecutors will have very serious tools that they can bring forward and say, well, the default, like if I just charge everything that has been seen here, there's this mandatory, and there's that mandatory.

And so are we going to strike a deal? Well, striking a deal is always presupposing some baseline of criminal liability. And if the legislature is willing to keep upping the baseline, then you're going to need to have deals in order to have some sort of fair punishment. But that's because the baseline has been adjusted that much. And how do you address that? Well, you know, one answer is to say you always have a trial, but then do you always have a trial on the most serious possible crime that was committed with this heavy mandatory?

worry. What do you do when basically the legislatures in charge of figuring out the punishments? And they come up with a system where it turns out they actually really like giving prosecutors this very heavy hammer. So I think with all these systems, there's just a lot going on and a lot of complicated dynamics. And I think the role of the courts, they usually see just like a little piece of this. And they say, oh, like this little piece is unfair. Very hard for them to get like a broader sense of here's what can be changed and here's what can be changed. Because a lot of times it's it's up to some institution that the courts have absolutely no control over. You know, let me tell you a funny story that kind of illustrates pre, pre, pre, pre, pre, pre, pre, you know,

sort of the metastisization of plea bargaining. I live next door to an older gentleman when I was living in Columbia, Tennessee, he was one of our state judges, one of our trial court judges. And he talked about, he was very fond of telling. And by the way, just if you want one of the best evenings of your life by an old southern lawyer or an old southern trial judge, small town, a bourbon and just ask for some war stories because they'll blow your mind. But he was talking about how he would, as a prosecutor, sort of essentially kind of not just, he wouldn't just try cases in his county, he would sometimes ride his circuit and try cases. And one day he gets a call from a judge, a local trial judge, and he says,

hey, I need you to come down and try this murder case. And he's like, Judge, I don't know anything about it. And he goes, no, it's fine. We got all the witnesses lined up. We've already sworn in a nice little jury for you. Just walk in. You'll be fine. And he was right.

It was an open and shut murder case, just absolute open and shut. And one of these that possibly or almost certainly would have been, would have pled out. Almost certainly would have pled out. Like there was virtually nothing to litigate here. And, you know, I do think that there were, there was such a thing, much more of a thing years and years ago, of a trial that would last an afternoon or a trial that would last, you know, just one full day or a few hours. And I do think that we could be more efficient in our trials. I would actually like to see more trials. But I don't think there's any way at all to have the volume of prosecution that we have in this country without a plea bargain. system. It's very difficult to even imagine. And I would love for listeners who are prosecutors and

defense attorneys to say, no, David, you're totally wrong. We can swear in 12 people and do this at volume. But I'm very skeptical of that. To add one anecdote to this, I was a juror in a criminal case three or four years ago, which was remarkable in itself that I was picked to be on jury. That's amazing. But it was a, I guess, it was a four-day trial, three, three or four-day trials and then two days of deliberating and the amount of resources that went into this one quite simple case. I mean, it was basically an assault, a couple witnesses, not really that complicated. It was very well done.

This is in state court, mind you, too. This is not a federal case. And just the judge's time and the lawyer's time and the amount of resources and it was very, very well done. But you think about doing that at scale and it'd be basically impossible. Okay. Closing thoughts on, you know, what, if anything, you see the trend line of the Roberts Court as opposed to the Supreme Court, you know, going back to John Marshall if you want to? Probably not. For your area of the law, for Crimm law, for Fourth Amendment in particular,

you know, did this term add? Did it change direction? I mean, it feels like Chattree is a bit of a shift, if not a direct change. But like, what is the Roberts Court going to be remembered for doing on criminal law as I think, you know, the Warren Court? Obviously, we have very specific themes coming out of the Warren Court on criminal law. Professor Little, what did you learn this term? Well, you know, it's hard to predict the future. Pogo said the future lies ahead of us. There were, by my count, at least six cases, which were based on constitutional.

law this term in the criminal law area. This is a court that is interested in the Constitution, and they agreed in all of these cases, except for one, which was the venue of where you can try a case, even that I think was actually pro-defendant. So let's say all six were pro-defense. I think the court is going to be in criminal law areas focused on constitutional law and going back in a originalist way and re-examining cases that didn't seem to be tethered to text in history. This is Justice Gorsuch's major push in lots of different areas. Let's change the way we look at cases, especially those that arise under the Constitution and figure out how it was being done in 1790 and whether that makes sense today. Chatri, you know, it's really not the first case

of its kind, the Katz case in 1967 decided that Olmstead, the old case that Warren mentioned, should be overruled and that wiretapping is subject to a warrant requirement. And then the legislature stepped in and wrote somewhat complicated procedures for getting a wiretap warrant. When I was a prosecutor, I used to say, your greatest protection is not the Constitution. It's how complicated the procedures are that Congress invented. So you're seeing a court which is prepared to re-examine doctrine in criminal law areas when it's constitutionally based, particularly not necessarily to alter it. And so I think you're going to see that happen. Cases bubbling up. Second Amendment, obviously, which both came out in favor of the defendant

in gun cases. And the liberals might say, well, those aren't liberal because, you know, we don't like guns, but they were pro-defendant. The Fourth Amendment both came out in favor of the defendant. Case actually did not come out in favor of the defendant, but it came out in favor of crafting a narrow exception for emergencies in the Fourth Amendment, which in some sense reflects well on the protection of the Fourth Amendment. And then you're seeing a lot of federal statutory cases, and here they're trying very hard to hold Congress to the words that it wrote. Again, you can see Justice Gorsuch's influence here, and whatever words they wrote, they're going to enforce them unless they see some very serious problem. So in the sentencing area, for example, both those cases

came out against the defendant because the words of the statute seemed to, I mean, there were good arguments on both sides, but they seemed to go exactly where the court said they should go, and they were decided eight to one against the defendant in one of them, six to three and the other. So we'll see. Professor Kerr, isn't this weird, though? Like the entire existence of the conservative legal movement, if you look at the creation of the Federalist Society in 1982 and what, you know, the few years before that,

was a reaction to the Warren Court. And in particular, a backlash to a lot of the criminal procedure decisions of the Warren Court. So isn't it weird that in the year our Lord 2026 with six conservative justices that are all federalist society, either members or highly adjacent as the chief justice, that this is the conversation we're having, that they also are highly pro-criminal defendant, criminal procedure protective? Wasn't the whole point? Screw these guys and throw them in jail and lock away the key?

I don't think that was the point, but I think that, as I recall, I think it's important to realize criminal law and criminal procedure issues are just not salient to the current Supreme Court. There's stuff they really care about. There's, you know, the major separation of powers issues, the major con law issues that you read about on the front page of the New York Times, they really care about that. Second Amendment, they really care about. But like routine criminal law, criminal procedure stuff is just not on their radar screen as like the biggest areas to folks. focus on. And I think those are the areas where interesting things happen, where surprising things happen, and where it's less certain as to where the votes are going to go. We have this sort of

mentality of, oh, it's going to be six to three, you know, the Republican appointees versus Democratic, that's not happening in criminal law. And I think it's just because it's not something they're that focused on. And it's just less unpredictable, or it's just less predictable, rather, as to what might happen. And so it's not that they're super in favor of criminal defendants. I think they're just more mixed and it's just unpredictable. It's more quirky in the criminal law docket than it is in other areas of the document. This also became, I mean, it's one of the main reasons Nixon won in 1968.

It was a huge politically salient issue toward the end of the war in court. It doesn't feel politically salient really at all, even to the extent that crime is still politically salient. Criminal procedure issues and rights of criminal defendants is not something we're seeing, you know, bubbling up on cable news and Twitter-a-ati stuff. So yeah, maybe that's, it's a two-for for the court. They actually get to just do law. My fear is that the justices will read my column that says, oh, they're pro-defense. They'll listen to your podcast. And I have to believe, I got to say, Sarah, sorry, sorry for this plug, but your book is so fantastic that I got to believe every law clerk up there is reading it and listening to your podcast. And they're going to

hear this and they're going to say, wait a minute, we don't like this pro defense tag that these so-called scholars are putting on us. So we'll see. And Sarah, I just have to tell you a little anecdote. In 1982, I was the note editor, the deciding note editor for a student at the time named Steve Calabrese, who was founding this weird group, not at Yale, but at a different school called the Federalist Society. And I'm both happy and proud to say that we approved Steve's note. And he went on to be one of the originators of the Federalist Society, which I've been a member of, by the way. Thank you for joining us for criminal law Palooza. So much to chew on.

Look forward to seeing how your classes may change a little this semester. And maybe we can do it again next year for, you know, O.T. 26 criminal Palooza. Sounds great. Crime Palooza? That makes it sound like we're doing the crimes. But we'll come up with a good name. But that might draw, like, if we call the podcast Crime Palooza, you know, people could want to tune in. How do I rob a bank?

Yeah. Exactly. Turn your phone off. Don't bring your phone. Leave your phone at home is like the number one rule of criming. I don't care what Chatree says. Don't bring it for all of your federal crime in particular. Thank you guys.

Thank you. Well, David, that was fun. It was. I enjoyed our little plea bargain slash torture discussion, which is a, it is not a comparison that would have like just sort of rolled out of my mind unprompted. But it is very interesting. Well, I just think when you think about Chattray and how much privacy protection everyone just got from third parties, right? The government, you know, doesn't hold these things.

A third party holds them, not you, not the government, whatever. that's going to make potential law enforcement a lot, lot harder. Will society accept that? And if not, you know, if you're squeezing the balloon with Chattray on the one side, what exactly is that going to lead to? You know, the plea bargaining system from the Warren court, okay, I don't know. Is Chattray going to lead to all sorts of exceptions to Chatsary? We're like, oh, the police can use it for this or this reason.

Because otherwise, you know, a whole lot of crime happens on the phone. too. Yeah. No question about it. And I mean that the inability of a criminal to leave their phone at home is probably the grazed advantage that law enforcement possesses right now. Like if you're a moron, I don't know why that's a privacy interest. You're the one who chose to bring your phone with you because you couldn't remember the way to the bank you wanted to rob and you needed Google Maps. I don't know that you should get a privacy interest for that. Yeah, it's a authority case. It really is. I mean, I do not like the idea of sort of the 24-7 surveillance.

I hate it. It's one of the reasons why, of course, I don't have TikTok because I still don't trust that deal, which, by the way, we haven't talked about how that was a lawless chapter in American history, no, wasn't it? My gosh. It continues, David. I know. I know.

It will. Lawless chapter turning into lawless appendix. I mean, it's, yeah. Oh, gosh. But yeah. I don't like the idea of that constant surveillance, but I also know that if I don't like it, if I don't want it, I have, I can prevent it.

It's just that do I want to make that sacrifice? And I think if you're asking a bank robber, we do in fact, we don't in fact want them to be able to Instagram from outside the building or whatever. Yeah, it's going to be very interesting. Totally crazy for the next episode. We have lots of circuit cases to talk about. Never fear.

Last time we talked about university and sexual assault allegations. Oh, but we're going to come back because there's more this time at Princeton. What due process is required. And, David, this case, I am just all over with. A school administrator has books on the window sill behind him. Is that government speech? Is it his speech? And can it create a hostile environment for students?

Can he be fired for the books he keeps on his shelf? Let's discuss. Yeah, we, we, I cannot wait to talk about that.