Advisory Opinions - SCOTUS Rules on Illegal Drug Users Owning Firearms

Episode Date: June 19, 2026

Sarah Isgur and David French react to two new Supreme Court opinions on gun ownership while possessing illegal drugs and appeal waivers. The Agenda: —Drugs and the Second Amendment —Rewriting Bruen —Bad plea deals —Overcharging crimes —The Gorsuch-Kavanaugh dynamic —The DOJ and the Hyde Amendment Show notes: —United States v. Hemani —Hunter v. United States 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 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 Isgird. That's David French. Don't forget if you want to join us for the live term review with advisory opinions. We're doing that July 8th in D.C. at the Bloomberg Center. With Johns Hopkins and the ACLU, you can sign up at SCOTUS blog.

While you're there, by the way, sign up for the advisory opinions newsletter and get video transcript. and our own producer, Anna's, summary and hot takes on everything that we said. I mean, we're letting your get away with quite a lot of stuff in this newsletter, David. I don't know. But fun times. So come join us for July 8th term review in person and sign up for the newsletter if you want to see David wear the exact same thing every day. It's a quarter zip, y'all.

It's always a quarter zip. There is nothing wrong with a quarter zip. And on today's podcast, we will go through the Supreme Court opinions that we got Thursday morning, including Hamani, the gun case for drug users. The Hunter case, I know, everyone's getting confused because you're thinking Hunter Biden with the drug case. But nope, nope. The Hunter case is about whether you can waive your appeal in part of your plea bargain of your sentence in a criminal case. What if that sentence turns out to be like,

unconstitutional, bonkers town and something, you didn't know what the sentence would be when you agreed to the plea deal and you waived your right to appeal? Oh no. The Supreme Court weighs in on that with some fun times between justices Gorsuch and Kavanaugh once again. They're on the same side, but they are not on the same side. Well, David, the Supreme Court did not take us up on our challenge to release only duds for Thursday morning, but these weren't exactly the sexiest cases that were left remaining. They were solid mid-June cases, in my opinion. Let's start with Hamani. So this was a gun case, and this was the question over 922 G3. Let me read you 922 G3. I mean, I'm sure most people have it committed to memory, but maybe you don't, David. So this part of the Federal Gun

Control Act prohibits various categories of people from possessing guns. And under its terms, one of those categories is that anyone who is an, quote, unlawful user of or addicted to a controlled substance is automatically banned from possessing a gun. And we talked about dear Mr. Hamani. He is a dual citizen of the United States and Pakistan, born in Texas, spent most of his life there, lived in the Dallas area, but the government conducted a search. of the family home in 2022. Mr. Hermani surrendered a gun he kept in the house and pointed agents to some marijuana on the property. He also consented to an interview telling law enforcement agents

that he used marijuana about every other day. The agents also found cocaine in his parents' closet. He claimed ownership of that as well, though he maintained that his mother had hidden it from him and he had not used any recently. David, we talked about the fact that this guy was suspected of all sorts of terrorism related to Iran, but he was not charged with any of that. He wasn't charged with terrorism. He wasn't charged with drug trafficking. He was charged with 922G3 possessing a gun while being an unlawful user of or addicted to a controlled substance. Now, when we talked about this case, David, and our run-up to the big cases, we mentioned this case. We said that this looked, I mean, they have a choice. There's 922 G3s all over the place, and they chose the gun. And they chose the

guy who was being suspected of terrorism that felt to us like a bad man stays in jail type case. And we predicted that Mr. Hamani would lose based on that. David, have any pair of podcasters in the history of podcasting ever been as wrong as we were on this podcast? This was a unanimous nine zero decision finding for Mr. Hamani and that he could not be dispossessed of his gun and certainly not convicted of any crime for possession of a gun. So, David, why did we get it wrong? Oh, this is such a great question, Sarah. And it's a warning for podcasters everywhere.

Don't get too high on your own supply. We had... Exactly right. We didn't even talk about this ahead of time, David, but that's exactly what happened. It is exactly... We got so in love with bad man stays in jail. a doctrine that doesn't actually exist, by the way, it's just a summary.

It's a way to view, not jurisprudence, but how the court selects the cases that become jurisprudence. That's more precise way of saying it, that as you were saying, that of all of the cases 922G3, you could select, you select one involving a guy who seemed to have a little bit of, you know, affection for terrorists out there. And that's the guy. And so you are thinking, which was not judicial thinking, it was sort of more atmospheric, institutionalism, et cetera, et cetera, that this looked like a Rahimi-style case.

And Rahimi was the guy who was subject to domestic violence restraining order, who challenged his, you know, challenged application of federal law to prevent him for moaning a gun while under restraining order. He was a very bad guy. He had used guns unlawfully a lot, not exactly the kind of guy you want to hand a gun to. And so we had the bad man stays in jail construct, even though, Sarah, if you read the oral argument, the signs were everywhere. And as soon as I saw that it was Justice Gorsuch, I was like, who wrote the majority

opinion, I was like, oh, yeah, of course, this checks out completely. And so, Mayaculpah, guys, Mayaculpah, we looked at atmospherics. we were swayed too much by atmospherics. We got, as I said, high on our own supply. And the reality was, this really was a case, was the mere possession of an illegal drug. Does that mean that I can be sent to jail for also possessing a gun?

And the court was nine zero. This might be our biggest whiff in all of the years of predicting Supreme Court outcome. I think this is our biggest with. Okay, so let's run through it. As we said, it was unanimous, although technically only seven justices were on the majority opinion. Two justices concurred in the judgment only,

and then we had a separate concurrence by Jackson and Sotomayor that were basically like, hey, we still object to Bruin. David, I kind of want to start with the concurring in the judgment only from Alito and Kagan. First of all, I can't think of another concurrence or separate writing that is just Sam Alito and Elena Kagan. But if you had given me 99 years to come up with what a separate concurring in the judgment only from Elena Kagan and Samuel Alito would look like, written by Samuel Alito, 99 years, and I can guess one every minute, I never would have gotten to the Cheech and Chong of the Supreme Court, Sam Alito and Elena Kagan. I mean, right? This is like after Rache and all of our drug distortion, and I'll just let me read you what Sam Alito wrote that Elena Kagan joined onto. Were they

high together when they came up with this? Okay, here we go, Cheech and Chong. In these circumstances, marijuana use today is like alcohol use at the founding. It is widespread and increasingly considered socially acceptable in many quarters. And from a practical standpoint, law enforcement widely tolerates the use of marijuana. As the opinion of the court explains, the habitual drunkard laws that the government cites did not allow officials to disarm all those who regularly used intoxicants, or even just those who sometimes used them to excess. These laws instead threatened disarmament only for those who used an intoxicant rendered them practically incapacitated and incapable of managing their affairs. Those persons drank so much, so often,

that they were incapacitated not only during bouts of drunkenness, but also in a more persistent and pervasive manner. That is the only thing we needed to decide. And so based on that alone, that is how, you know, we would have decided this case. So we concur in the judgment only. This is, this reminds me, David, of when, like, your parents were really strict with you, but then you bring your children, their grandchildren over and they just, like, pour sugar on them in every toy that they see at the store. What has happened to the Sam Alito that I grew up with as a Supreme Court justice. Who, the Sam Alito I knew and loved,

would have required mandatory viewing of Reefer Madness in his dissenting opinion. I mean, come on. So I have two responses to this. First is a question for Nick, our producer. Should we name this the Cheech and Chong of the Supreme Court or the Harold and Kumar of the Supreme Court? Because which pair is more culturally salient

to the largest group of people? So that's question number one. But what's interesting, point number, not really question, but point number two about this is it's very interesting because I think in a very short manner, it made the core point of the majority opinion in like a paragraph, which was quite simply, look, if you're going to look for a historical analog, all of the historical analogs you could find where somebody's got to be really messed up. they have to be really messed up, like in the drunk tank all the time max messed up, can't function in life messed up for the historical analogs that you have chosen, the habitual drunkard laws, to lock in here. But this part was really interesting to me, Sarah. This part here was fascinating.

In attempting to rebutt a Second Amendment challenge, the government need not identify a historical twin or precise precursor. Still, the government must cite analogs that are relevantly similar and that therefore furnish a basis for inferning that a challenge law is consistent with the historical understanding of the right that the Second Amendment codified. Here, the government's analogs are too far afield. This again, and this is with Kagan joining, this is an Alito Kagan, in my view, like reaffirmation of the intermediate scrutiny theory of historical analogs. It's saying you don't have to be precise again, just relevantly similar. And Sarah, what is relevantly similar? That's just judge wins. What the judge deems to be relevantly similar is relevantly similar.

And I agree with the majority's reasoning. I agree with this concurrence, but I'm going to reaffirm. And when we get to the Jackson concurrence, that'll be an ideal opportunity to talk about it. But I'm going to restate and incorporate herein, five years of podcast objections to text history is tradition at this moment. So we're going to spend a little bit of extra time on this Alito Kagan thing because it's unusual and because I think it highlights an interesting divide between Justice Thomas and Justice Alito, even though, right, they're sort of in our group of three together and Justice Gorsuch, for that matter.

Really, all three of them have different ways in which they decide this case. Justice Gorsuch writes the majority opinion. Justice Alito writes a separate concurrence on the Commerce Clause issue and whether Congress has the authority to do 922G to begin with. And then Justice Alito, they're spinning Bruin just a little bit more. But the one I want to focus on for the second is Justice Kagan. She does not join the Jackson Sotomayor continued critique, the David Frenchism of text history and tradition in Bruin.

do I think she totally disagrees with them on it? No, I do not. But here you see Justice Kagan at her most influential. She adds weight to Justice Alito's concurrence, a lot of weight by joining it. If this were just a solo concurrence by Alito, I don't know that we'd even be talking about it. Not really. But with Kagan joining it, you see, I think, how she sees influence on the court. Look, I am going to refashion what Bruin means. You guys are writing some separate concurrence about Bruin? What a waste of time. Instead, find a conservative to align with who is willing to narrow that in this case for whatever reason, and you are rewriting Bruin slowly but surely. You're doing the same thing. You don't need to overturn Bruin to undermine Bruin. And Justice Kagan, you know, we've said

this before. When she joins as a 7-2 opinion instead of 6-3, a lot of folks are going to be willing to do some to get it to be seven, two, instead of six three along ideological lines. And it makes Justice Kagan, I think, quite influential. And here's another example of that in my mind, where she gets to rewrite Bruin, just a little bit, rather than just shouting into the wind, I don't like Bruin. This is so shrewd. If I had to guess that Justice Kagan without Bruin probably would have been in the intermediate scrutiny camp for tears of, of scrutiny. on she would have, I think she would have gone with the mainstream circuit view, which was intermediate scrutiny. And so she's getting it. She's getting intermediate scrutiny through a

different vehicle, through a broad and expansive and sort of permissive reading of text history and tradition as opposed to a strict reading of text history and tradition. And what is she doing? She's putting her thumb on the scale in a pretty shrewd in a pretty interesting way towards the originalism version of intermediate scrutiny. And so at the end of the day, you know, she may well get the kind of first, I mean, I'm sorry, Second Amendment jurisprudence that she'd be, I'm not going to say, happy with, but maybe more or less okay with. And this is a very interesting example, Sarah, and I think you hit the nail on the head. And by the way, you didn't note my actual intentional pun high on your own supply. And you went with the unintentional pun bluntly, but we're just

covering. That's because bluntly was so much more clever. Okay, I want to walk through the majority opinion. And when I'm doing that, I basically like outlined it for you. But I want you to listen. Because remember, Alito and Kagan are agreeing with the majority opinion, but they're only concurring in the judgment, meaning they are not signing on to the majority opinion and just adding their two sense. They are not signing on to this opinion. Ask yourself why. Okay. One.

Apply the Bruin test. Does the Second Amendment cover the conduct? If so, the government must provide the restriction that is consistent with historical tradition. Two, the government's theory is extremely broad. The government argued that anyone who unlawfully uses any controlled substance in any amount, whether dangerous or not, is automatically barred from possessing firearms and can be charged with the crime.

Three, historical habitual drunkard laws are not analogous. The government relied on these laws concerning habitual drunkards and Gorsuch et al reject the analogy for several reasons. One, historical drunkards were severely incapacitated. Two, the purpose of those drunkard laws differed. They were about morality and protecting families from financial ruin and vagrancy. Three, they all provided process, right? You lost your liberty only after some sort of judicial proceeding. It wasn't just like, you know, if we now decide that you're a habitual drunkard, we can do something to you. Next up. The court is skeptical of giving government unlimited power to label groups dangerous, right? Because it incorporates the Controlled Substances Act, it means that Congress can, like, in theory, do a total

end run around the Second Amendment by just naming anything to be a controlled substance. and then all of a sudden you could lose your Second Amendment rights. Do I think that's very unlikely? Yeah, totally. But the point is that's not how the Constitution works. So once 922G3 incorporated the Controlled Substances Act, it made it very, your rights rise or fall, like the tide of whatever is in the Controlled Substances Act.

And the proof is kind of in the pudding with marijuana because it's a Schedule 1 drug, now it's a Schedule 3, drug, we're not sure. And so again, your constitutional rights rise or fall with whether Congress thinks marijuana is in what part of the schedule. That doesn't sound very good. And then Gorsuch says this decision does not decide. Whether addicts may be disarmed, whether intoxicated persons may possess guns, whether Congress could enact narrower evidence-based restrictions, whether the government could prove that a particular user's drug use makes him dangerous, or the constitution of felon in possession laws. And so David, let me read you, the money line. In many respects,

this case is a narrow one. We do not address efforts to ban addicts or those presently intoxicated from possessing a firearm. We do not address other prophylactic laws Congress might adopt after determining that users of a particular drug pose a specific special risk of misusing firearms. We do not address 922G1's provision disarming individuals convicted of felonies, often including drug-related ones. We do not even address whether the government could bring a prosecution under 922G3, accompanied by an individualized assessment that the defendant's use of marijuana or any other drug renders him a danger to himself or others. Or proof that a certain drug always renders its users dangerous because of its potency or for some other reason, none of those issues is before us

and we do not pass on them either way. All that is before us is one, if surely ambitious, theory. The government maintains that it may automatically strip Mr. Hamani of his Second Amendment right to possess a firearm because he uses marijuana a few times a week. More than that, because he possessed a gun despite this prohibition, the government insists it may imprison him for up to 15 years and disarm him for life. According to the government, none of this turns on how much marijuana Mr. Hamani uses or what effect it has on him. It makes no difference. Either if he keeps a firearm only in his home or for self-defense, never misuses a gun while intoxicated, and never poses a danger to himself or

others as a result of his marijuana use. The only thing the government must show, it says, is that an individual, like Mr. Hamani, regularly uses any amount of any controlled substance. To square that expansive theory with the Second Amendment, the government invites us to draw an analogy between the present regulation and historical laws addressing habitual drunkards. Those laws, the government contends, demonstrate a tradition of firearm regulation consistent with its efforts to disarm any regular user of any controlled substance without any further showing. But the government's analogy falls under every measure it asks us to consider. The historical laws on which it relies targeted different kinds of people, did so for different

reasons and operated in different ways. And faced with all these shortcomings in the government's submission, we cannot say it has carried its conceded burden of showing its prosecution of Mr. Hamani complies with the Second Amendment. Why do you think Alito and Kagan don't join the opinion. That is a really good question, Sarah. It is the question, and I don't have a perfect answer to it right now. They just wanted the narrow decision. It is based on that narrow decision. I get that there's a lot of other sort of, you know, the purpose of the law. Maybe they don't want that. Maybe they don't want to be diving as intensely into the historical analysis as Gorsuch did, that it's just a much simpler analysis than he undertook.

Stuff about the Controlled Substances Act, like that whole part would be gone, obviously. Or maybe that it's really more in their minds about marijuana, that the Cheech and Chong of the court are like... As they're passing the doobie between the two of them... Should we include this line? Oh, that's a good one. You can tell I've never smoked marijuana by all of them.

that. Like, I don't even know what I'm doing. I try to inhale a cigarette for my 30th birthday and failed. I don't know how to do it. So maybe it really is, okay, wait a minute, this is marijuana, you know, because they had to the extent that there's any really extended discussion at all in this very short opinion, it's like, I mean, why are you doing this with weed when booze, you know, booze is just as intoxicating, if not more than marijuana? Why are we doing this? So is it because it's a marijuana special? I don't know. It is interesting because I literally read their concurrence

as the Cliff Notes version of the majority. Okay, let's talk about Justice Thomas's concurring opinion, meaning he does join the majority opinion. He writes separately to say, Congress cannot regulate the possession of everything that ever traveled across state lines. As an original matter, the Commerce Clause authorizes Congress only

to regulate the buying selling of goods and services trafficked across state lines. It gives Congress no power to regulate activity wholly separated from business, such as gun possession. The power to regulate commerce can by no means encompass authority over mere gun possession anymore that it empowers the federal government to regulate marriage, littering, or cruelty to animals throughout the 50 states. Because 922G, not G3, note you, all of 922G, felon in possession, all of it. okay. Because 922G criminalizes possession of firearms apart from any purchase or sale of goods and services across state lines, I doubt that it could be an exercise of Congress's Commerce Clause

powers as an original matter. Now, as to our doctrine, it must either regulate. One, the use of the channels of interstate commerce. Two, regulate and protect the instrumentalities of interstate commerce or persons or things in interstate commerce. Or three, the one that's remotely relevant here, regulate activities that substantially affect interstate commerce. And then David, he goes on to explain why 922G does not regulate activities that substantially affect interstate commerce unless you actually make it an element of the crime that the gun as part of this transaction, not that the gun was, for instance, made in Pennsylvania and then you, 10 years later, bought it out of Walmart in Texas, but that like you bought it in

Pennsylvania and then drove it to Texas or whatever, like that this transaction involved interstate commerce. David, we have cited many of the lower court judges flagging this. Most notably, I think we read quite extensively from Judge Willett on the Fifth Circuit flagging this problem, but Judge Ho has done it as recently as 2022. We have a lot coming from Judge Batchelder as like 1996 is when Alice Batchelder had been flagging this problem. DeMoss, I mean, some of the, oh, Scanlan, these are some big names in circuit court lore, let's just say. And so a bunch of lower court judges have been like, hey, does anyone think this is weird? How is this part of Congress's power? And there has a

been a case that's made it to the Supreme Court, David, I 100% promise you there will be soon-ish. Like, do I think it's next term? Maybe not. And nobody joined this Thomas concurrence. But, and normally I'd say, like, oh, there's only one vote for this. I don't think that's the case here. I think this is just a law review concurrence I'm going to start calling them, where it's like, wouldn't it be interesting if invitation for cert petitions here concurrence? So I think there are certainly, there's certainly more than one vote on this court. to strike down this. So this is the Hive Mind podcast

because I was just about to say this is a Larview article, a classic Larview article as concurrence by Thomas with the twist. So I tend to think of like the platonic form of Thomas Larview article as concurrence was in Dobbs when he went on this whole privileges or immunities versus due process,

which I'd sense like zero appetite, zero appetite in the Supreme Court for them to take on privileges or immunities is the real source of unenumerated rights. This was a hybrid, in my view, of a classic law review concurrence and a concurrence that is instructive for lower courts because I'm with you, Sarah. I think it's definitely, I'm not going to say it's a 50% chance, but we're way above non-zero chance that we get a Commerce Clause opinion around 922G. at some point in the next 10 years, because there's just, there's a lot of chum in the water about it. You've got a lot of, not just, you know, not that any appellate judges or randos, but you've got, you've got lots of, like, non-rando court opinions in the courts of appeal about this very issue. So it's very interesting. It's a law review concurrence that's not

quite a law-view concurrence in my view. All right, David, when we get back, we're going to talk about the Hunter case. This is about appellate waivers in criminal proceedings, which may not sound sexy, but you are about to get the Gorsuch trip around the sun when it comes to coercive plea bargaining. Like, if you thought that tariff concurrence was a festivist opinion, hold on to your riches. We'll be right back. All right, David. Petitioner Munson Hunter the third entered into a written plea agreement with the government after he was charged with 10 counts of bank and wire fraud for a year's long scheme costing various financial institutions about half a million dollars.

Under the agreement, Hunter pleaded guilty to one count of aiding and abetting wire fraud. In exchange, the government agreed to dismiss the other nine charges and to refrain from prosecuting Hunter in the future for the conduct they described. The agreement also included an appeal waiver, applying to both Hunter's conviction and to his still-to-be-decided sentence. So after that was all signed, the district court then, you know, accepted the plea. There's going to be some back-and-forth. Is this knowing involuntary? Blah, blah, blah. Then we're going to get to the sentencing. the district court sentenced Hunter to serve 51 months in prison, followed by three years of supervised release. The release conditions would include the medication requirement to which Hunter had objected.

At the sentencing hearing, David, much of the discussion focused on a condition of supervised release that the probation officer recommended go into effect once Hunter completed his prison sentence. According to the office's pre-sentence report, Hunter suffers from symptoms of anxiety and depression and has refused medication to treat his symptoms. The report thus proposed that while on supervised release, Hunter be required to participate in a mental health treatment program and to take all mental health medications that are prescribed by his treating physician. Hunter objected to the mandatory medication part of that condition,

saying that he should not be forced to medicate. He said, you know, I don't drink, I don't take drugs, I don't even curse. Like, this violates a fundamental constitutional right to not be medicated. against my will, and the judge sentenced him to 51 months in prison, followed by three years of supervised release, and the release conditions would include the medication requirement to which Hunter had objected. So he appeals, but remember, he signed that appeal waiver. And so the question for this case is, is that appeal waiver good? Does it apply to, like, a mandatory medication? What else could a judge put into a sentence that that person, again, you agree to the

appeal waiver at the plea bargaining stage before you've been to the sentencing. So you don't know what sentence you are agreeing not to appeal. The decision of the court is 8-1. Justice Kagan writes it, Justice Thomas dissents, and we get, you know, a lot of concurrences. We get one from Justice Gorsuch, joined by Sotomayor and Jackson. That's the one that's like, plea bargains bad. We get one from Kavanaugh, joined by Alito and Barrett. That's like Gorsuch bad, plea bargains, good. Then we get one from Barrett in which she says, I read your dissent, Justice Thomas. Did you read my law review articles? And she cites two different law review articles written by A period Barrett. And then you have Justice Thomas filing a dissenting opinion asking, do any of you guys even know what plea bargains are?

you complete young idiots. Okay, David. So, this is the holding of Justice Kagan's majority opinion. We approve the majority view among the courts of appeals that an appeal waiver is unenforceable when it would result in a miscarriage of justice. That rule, properly understood and applied, sets a high bar. The waiver may be set aside only if the sentence is marred

by the kind of egregious error that would bring the judicial system into disrepute. error must be obvious, not what a judge could reasonably make, and it must be the type that would undermine public confidence in the judiciary. Hunter and the government here dispute whether, under the right legal standard, his appeal can go forward. Recall that Hunter wants to challenge the district court's requirement that while on supervised release, he take all mental health medications that his physician prescribes. In Hunter's view, the right to be free from coerced medical treatment is fundamental, and the district court infringed on it without a sufficient basis.

In the government's opposing view, a sentencing court may demand that a defendant take medication when he has suffered from mental health problems as the pre-sentence report found Hunter had done. In keeping with our usual practice, we decline to decide in the first instance how that dispute should come out under the miscarriage of justice approach we adopt today. The Court of Appeals did not address that question because its circuit precedent required a narrower inquiry, and we are, as we usually say, a court of review, not of first view. It is therefore now up to the Fifth Circuit to decide whether enforcing Hunter's appeal waiver would result in a miscarriage of justice. David, have you ever heard a better application of we decide questions, not cases? Thank you for visiting the Oracle. Bye-bye.

Just a tremendous piece of writing from Cheech. I found this case very interesting because it strikes me, again, this is one where I'm going to agree with the majority in the same way that I did agreed with the majority. And in our gun case, this seems to me to be obviously correct, this sort of idea that an extraordinary miscarriage of justice can be essentially pre-ratified by a plea bargain strikes me as plainly, obviously unconstitutional. Let's get to the fun stuff here. Once again, the fight. between Gorsuch and Kavanaugh, right? So, like, when we talked about how Gorsuch and Kavanaugh

were only on the same side in closely divided cases, 50% of the time last term, this wouldn't even count as one of those, right? Because they're on the same side. This is an 8-1 decision, but they are writing these concurrences just sniping at each other, and I, for one, I'm here for it. Okay, so here's Gorsuch. In our times, the jury trial has given way to a conveyor belt of plea bargains. At least some responsibility for that development lies with this court. When confronted with coercive prosecutorial tactics designed to induce defendants to take plea deals, the court has often condoned those practices, or let them pass in silence. Today, the court begins to correct course. It rules that prosecutors may not always leverage their plea bargaining power

to induce a defendant to forego the right to contest his sentence on appeal. I agree and write separately to outline how we got here and some of the work still ahead. And he basically goes on to say, this is a great opinion. Because if read correctly, it covers and then it's like all plea bargains. Like there is no such thing as an appeal waiver for a sentence, any sentence really that could have anything possibly wrong with it. And he goes through the history of coercive plea bargains. And like if you work at any libertarian think tank or organization, you're going to have, I don't know quite know quite how many, like 15 pages, you're going to need to fit on that tattoo you're getting on your inner thigh or whatever. It's going to be long, is my point. And it's going to be

awkward to explain at swim parties. But nevertheless, I assume you'll be getting the whole thing. Here's Justice Kavanaugh's opening. So remember, it's Gorsuch, Sotomayor and Jackson. It's Kavanaugh, Alito, and Barrett. I joined the court's opinion in full. The court's opinion sets a high bar for the miscarriage of justice exception to render an appeal waiver unenforceable. The court describes the exception as applying in extreme cases to sentencing errors that are egregious and obvious and that undermine public confidence in the judiciary. I appreciate Justice Gorsuch's thoughtful concurrence, but I respectfully disagree with his understanding of the miscarriage of justice exception? As I read it, his concurring opinion would set a lower bar for the miscarriage of

justice exception than the court's opinion does. In my view, therefore, the concurrence may not be entirely consistent with the court's opinion. In any event, the court's opinion, of course, speaks for itself. I love it. I'm here for it as well, and consider me on Team Gorsuch. This is such a good example of your bully point, David, if you would like to make that again and use this entire concurrence. By the way, I floated this theory. that I'm about to share to Justice Gorsuch himself, he was digging it. Is this before or after he told you that he doesn't want you to psychoanalyze him? This is after, but yeah, but I did it anyway.

So essentially the theory of the jurisprudential theory is that Gorsuch, all other things being equal, when push comes to shove, however you're going to want to do, when matters are in doubt, he's going to rule against the bully. And if you look at this and you can look at a lot of his jurisprudence, this is a consistent theme. So let's look at his Native American jurisprudence, for example. This is a justice who is arguably the most friendly to Native American legal rights of any justice in the entire history of the United States. And I think, you know, I've floated that theory by a number of progressive critics of the court, and they agree with it. They say, okay, I don't like Gorsuch on a number of counts, but on Native American rights, he's been the best.

A lot of his, if you read what he says about the administrative state and the very skeptical way in which he approaches the administrative state, So if you look at his first book that he wrote, that is story after story of the big bullying state essentially oppressing, bankrupting the little guy time and time again. So that's the administrative state portion. Then if you're going to look at criminal law, criminal law, time and again, he's going to, he's the guy who's reviving, you know, the rule of lenity that, you know, essentially the tie goes to the defendant. He has been very skeptical.

He's very skeptical here of the big coercive plea bargaining. So time and time again, if you have the underdog, if you have the little guy being subjected to the coercive power of a huge administrative state, the coercive power of federal prosecutors, the coercive power of the federal government and the military over history with Native Americans, he's constantly siding with the underdog. And I would also add in here, and some listeners are going to disagree with this, I would add dobs to that. There's few more powerless people in the whole world than an unborn child. And so I look at Justice Gorsuch as the anti-bulley justice. And this fits, as you said,

just very neatly into that construct. The part of Justice Gorsuch's concurrence that I think is actually the most important is his retelling of the history of plea bargaining and the Supreme court's involvement in it. As in each time plea bargaining really starts jumping in terms of percentage, it's because the Supreme Court has blessed some part of it. And particularly during the Warren or early Burger Court years when the Supreme Court was maybe more in that platonic guardian phase of like, I think we can make a system that's we know best. And Gorsuch is like, yeah, well, you created this. So that's the part that I'm going to be rereading, I think. Like when I go back and check Hunter, it won't be for the sort of like egregious and blah, blah, blah, it's going to be the Justice Gorsuch history. But also, David, Justice Thomas's dissent is no joke. I mean, the cheese stands alone as Justice Thomas usually does. I went back and looked, by the way, over the last 20 or so years, how many terms Justice Thomas was the justice the least likely to be in the majority, it's like every other term for a lot of those years. It's crazy how often he is just

hanging out by himself. And yet we think of him as being so influential, because he is, I mean, but like, not because he's in the majority, God knows. Not only is he not in the majority the most, literally the least often. And so over the course of his entire tenure on the court, compared to everyone else's course of entire tenure, mind you, he's been on longer, though that should actually mean the law of large numbers would move him to the middle, he is the justice least likely to be in the majority, which I think is just really interesting. Okay, he is who he is. So let me read you his take on this. Munson Hunter deceived others to make himself nearly half a million dollars. The government

charged him with 10 counts of fraud. If a jury had convicted him of all 10 counts, Hunter could have received a 300-year sentence. Instead, Hunter knowingly and voluntarily made an agreement with the government. Under the agreement, the government would dismiss nine counts. In exchange, Hunter would plead guilty to the remaining one and waive his right to appeal his sentence unless it exceeded the statutory maximum, a 30-year prison term followed by up to five years of supervised release. Thanks to the agreement, Hunter received a 51-month prison term, followed by three years of supervised release, less than 2% of the prison time to which the indictment exposed him. Now Hunter wants to keep his reduced sentence, but take back the appeal waiver,

and the court holds that he may be able to do so. I see no basis for excusing Hunter from his appeal waiver. Defendants could not appeal federal criminal sentences at all for more than 100 years after the founding. Only then did Congress create the statutory right to do so. Like many constitutional and statutory rights, the right to appeal can be waived by the defendant, and once that choice is finally made, the defendant is bound by the decision. The court today creates a miscarriage of justice exception to this rule, but it cannot identify any source of law for its exception.

Neither the contract law principles that Hunter invoked nor this court's supposedly supervisory power gives it the authority to override Hunter's appeal waiver. Without any source of law to justify its decision, the court appears to rest on its policy concerns that holding defendants to their waivers may sometimes lead unfair results or make federal courts look bad.

But policy concerns... How is that tone of voice implied by the text? It is good. But policy concerns are not rules of decision in courts of law. Because I would decide Hunter's case based on law rather than policy, I respectfully dissent. Really? Is it respectful? Okay. So, David, this is the part that I found pretty interesting. I, as a policy matter, as a in my heart matter, I get Justice Gorsuch's point totally about the

way the system is working right now. I don't love it. But the fact that a criminal defendant couldn't even appeal their sentence for 100 years at all, waiver or not waiver, means that you do not have a constitutional right to appeal your sentence, which to me means you definitely have the ability to waive the right to appeal your sentence, if that all makes sense. Now, the majority points out some like really egregious hypotheticals of, you know, a judge, letting an orangutan pick your sentence out of a jack-a-lantern, and then you would have, you know,

waived your right to appeal. But as Justice Thomas points out, there are, you know, other potential ways maybe to get there rather than like these appeal waivers, perhaps. And that being said, David, we also got an email from an actual prosecutor. And I just wanted to run through that real quick and get your whole response to Justice Thomas plus prosecutor. Here's his argument. I think the reason we have so many plea agreements now is because our justice system is top to bottom, light years better than even 50 years ago. Back in the day when we had a much higher percentage of trials, we didn't have such things as government paid defense attorneys. Gideon wasn't decided until 63. We didn't have Miranda warnings until 66.

We didn't have Batson until 86. We also didn't have DNA, security video recordings, dash, body cams, cell phone location data, text messages, emails, live streaming, cell phone video recordings, IP addresses, etc. We also didn't have modern procedural rights, especially pre-trial discovery, which defendants now have access to when they are deciding whether to go to trial or seek to accept a deal. No man-made system is perfect. A very small percentage of people are wrongfully convicted, although they are often ultimately exonerated by our modern techniques, DNA, etc. And as with any exercise of executive power, there is the possibility of abuse, coercion, especially when a prosecutor offers a ridiculously low sentence to avoid an extremely high possible

outcome, you know, plead guilty to a misdemeanor in exchange for not seeking the death penalty, etc. But guardrails to prevent that already exist, my plea offers have to be reviewed approved by my supervisor and, depending on the case in the plea deal, additional levels of supervisors above him. And the judge on the case has to approve and accept any agreement. That prevents 99% of improperly coercive plea deals in my unscientific opinion. So, David, who's right? Is this actually a sign of a good system that we have so many plea deals? The government is bringing those cases, which it has dead to rights, and everyone is better off just, you know, saving our judicial resources? Or is Gorsuch right that the court has created the algae bloom

in the reflecting pool of, you know, the criminal justice system? So many more criminal laws, all of these incentives to plead, not the resources to actually take these cases to trial and a conveyor belt that once you've been charged, you're pleading out. So I think Gorsuch is right with the modification, with the helpful modification by the prosecutor in this sense, that I don't think Gorsuch is saying that plea bargaining just as a concept is unjust. He's talking about the coercive plea bargaining. Coercive plea bargaining can take many forms. One of them is a, hey, we're going to, or unjust forms of plea bargaining, we're going to offer you a sweetheart deal because we want to pocket a conviction. That's unjust.

Or we're going to overcharge. We're going to throw charges into the indictment like croutons on a salad to give, that raise the specter of hundreds of years of prison to try, or, you know, dozens of years of prison to try to coerce you into a agreement. with a much smaller prison sentence. At the same time, it is, I think, absolutely correct, as the prosecutor said, that the improvement in policing methods, pretrial discovery means that even in a non-coercant environment, you would have a boatload of plea bargains.

I think you would have an absolute boatload of plea bargains, even if you did away with overcharging, even if you had constraints and guardrails preventing the kinds of sweetheart deals that lead to this, there would still be, it's not an all or nothing. It's not the case that if you go down the Gorsuch Road, that you're clogging the criminal justice system with countless trials. No.

In fact, you might actually only see the impact on the margins. But those margins really matter because those margins, each margin is a case involving a human being, confronting the power of the state, and it matters on the margins. And so I think that that's where I'm much more on the Gorsuch side, but with acknowledging the reality of what our prosecutor friend wrote in, which is an awful lot of these cases are, by the way, open and shut.

They just are. And if you can give a modest incentive to a slightly better, a slightly shorter sentence to induce a plea bargain rather than clogging the system with open and shut cases, okay, that's okay. But I think that prosecutor's perspective is important to correct those who might think, well, if we did away the coercive plea bargains, it's just trial after trial after trial, after trial. And I don't think that's the case at all.

We'll get to one other potential avenue that people who have been unjustly charged might have, that the different Hyde Amendment. But David, we'll be right back after these messages, but you know what we're not going to talk about? We're not going to talk about Rooker Feldman. That was the third case decided Thursday morning. It was 5'4. It was a barn burner of a case about something that basically never comes up that doesn't matter called the Rooker-Feldman doctrine that we're not going to talk about about basically when you have a state, when you lose in state court and you want to go to federal court to complain about the state court, can you do that while your state court proceeding is pending? Can you definitely not do it after it's done?

Is Rooker-Feldman, you know, been secretly? Is it a zombie precedent? Again, I can't tell you how much I didn't care, but also it kind of looked like the justices, while they cared enough to be five, four, also didn't, I didn't feel a lot of passion in this opinion. But the lineup was interesting. Sotomayor, Thomas Alito, Kavanaugh, Jackson versus Barrett, the Chief Justice, Kagan, and Gorsuch. Barrett may be at her finest in dissent as the former civil procedure law professor that she is. Sorry, justices Sotomayor and Barrett. We, it's not going to happen. When we get back instead, we'll talk about that Hyde Amendment, and when you get taxpayer dollars after DOJ indicts you for something and then plays shenanigans. David, let's just start with the headline here. Taxpayers may pay legal bills of activists in dropped case over ICE protests near Chicago.

The Department of Justice will not fight a demand by people charged and since abandoned criminal cases stemming from anti-ice protests in Chicago that the federal government pay their legal bills. The highly unusual move appears to be a gesture by the top federal prosecutor in Chicago, Andrew Boutros, to quell the controversy over his office's handling of the Broadview Six. A group of activists and local Democratic politicians indicted on felony conspiracy charges last year over a protest at an immigration and customs enforcement facility in South Chicago. This is a write-up from Josh Gerstein over at Politico. David, this was after the judge in the case found prosecutorial misconduct relating to the prosecutors

doing shenanigans with the grand jury, striking people from the grand jury who they didn't think would vote for them, talking to the grand jurors outside of the court. Here's from the judge in the case, I do believe deeply in the presumption of regularity and that most government attorneys are doing the best they can to do the right thing. That trust has been broken. We all took the government attorney's word on a great many things. I, at the time, was operating on a presumption of regular grand jury proceedings, which these clearly were not. Given that, the former defendants, the people who were charged, asked for attorney's fees from the government. And DOJ is basically at this point being like, yeah, we won't contest that. We'll pay your attorney's fees. And I'm pretty

mad about it, David, which is weird, because I'm not happy that they did shenanigans, obviously. but here you have DOJ bringing politically motivated charges for a press release that they knew they wouldn't get convictions on, doing shenanigans, undermining both DOJ, the presumption of regularity, just people's faith in the rule of law in general, and then they're using taxpayer money to pay the people that shouldn't have been indicted in the first place. I'm at a loss. I'm really mad.

And the details here when you dive in on this are really, really bad, Sarah. So you have the Broadview Six were a collection of democratic lawmakers and activists, progressive activists, who were arrested. And there was a press release, Todd Blanche, now the nominee for Attorney General, announces this in Washington, D.C. These six people are arrested, accused of impeding and attempting to injure the person or property of a federal official, enforcing, trying to enforce immigration laws. Serious charges are brought. then, I believe in it was in March, the Broadview Six become the Broadview Four. They dismiss two of the six, and then they narrow the charges against the other four, which then leads the defense to ask the court for grand jury transcripts, to review grand jury transcripts, to make sure

that the grand jury was properly instructed on the one remaining charge. The prosecutors then produce grand jury transcripts for the court that are redacted, Sarah. There are redacted. They don't have everything in there. So the court says, I want to see the whole thing. So then when they see the whole thing, what does the court find? Well, the court finds on the good ledger that the grand jury was properly instructed on the underlying charge. But on the bad ledger, there were three things they did. Number one, something called vouching, which is when a prosecutor basically tells the grand jury, well, if you're worried about the evidence, just trust me. Like, I wouldn't bring it to you if I didn't think that I could.

could get in. Well, that's improper. You go based on the evidence, not your personal commitment to the prosecutor. Number two, they were interacting with the grand jury outside the grand jury room. They were engaging in shenanigans outside the grand jury room. And then number three, they dismissed grand jurors who indicated they didn't like the charges. So rather than returning a no bill or rejecting the, they said, no, if you're, if you, you can't, you can't decide this. And they knocked them off the grand jury and then exacerbated all this in the eyes of the judge by then redacting all the evidence that this occurred. So then this happens. And the judge then says, all right, I want the attorneys who participated in this process to appear before me personally in court. So they appear before her

personally. She says she's never seen anything like this, that, and there's a brief recess, and then the prosecutors come back and dismiss the whole case. And so, yeah, Sarah, this was really bad. But then what makes it worse, okay, it's bad enough to have a single case of meritless prosecution. But the Chicago Sun Times has been keeping a database, a tracker of all of the cases brought against protesters. Okay. Are you ready for some numbers, Sarah? So there was around roughly 30 or so that were brought for non-immigration-related criminal charges. out of the Midway Blitz protests.

Two, guilty pleas, five deferred prosecution agreements, and two that are still pending. 24 other cases just failed. 20 were just dismissed by the prosecution. Grand juries refused to indict in three, and one was acquitted by jury. So here you have, now think about this in historic Department of Justice terms, Sarah,

and you can speak to this better than I can. is it normal for the Department of Justice to get two guilty pleas, five deferred prosecutions out of about 30, 30 plus cases? I'm saying no to that. I'm saying no to that. And in one of those cases, this was a famous case involving a woman who was shot five times by police, charged with assaulting police officers. Then when the body camera footage emerged, found out that called a domestic terrorist in a press release by the DOJ, body camera footage emerges. None of that's true. Her case was dismissed voluntarily with prejudice. So it's a bad scene out there, Sarah. It's a bad scene. And I will say this. I will say I've got a little bit of hope. It's getting better. I'm very angry that they're agreeing not to contest attorney's fee charges, but that's the right call. Yeah, yeah. Sorry. I'm mad because taxpayer money

is getting paid so that they could put out a press release because there was political pressure to bring these cases, not that they shouldn't pay the money. Totally. And then also the U.S. attorney who was overseeing the office when all these shenanigans were happening is now announcing sweeping reforms to internal grand jury practices. And so my theory is this, and you tell me if you think that I'm wrong, if this was this time last year when sort of there was maximum arrogance and sort of maximum aggression, these reforms would not be being made. You fast forward. I think a a lot of the air is going out of the tires on a lot of this, with the Trump administration facing a lot more headwinds,

even from its coalition that it's faced in the past, the sort of idea of this big vibe shift is done over. I do wonder if this is a sign that regular order is going to come back. I don't know. I'm just trying to pull some sort of silver lining out of this dark cloud, but this was bad with a capital B. We shall see next time on advisory opinions, perhaps undermining your point, we'll talk about the legality of the memorandum of understanding

in the Iran quote deal, end quote. Professor Jack Goldsmith of Harvard Law School making the case that this whole thing isn't even legal, but can anyone stop the president? And have we, I mean, we've talked so much about Congress doing its job in the domestic sphere. We haven't even really talked about how the same exact thing is happening and maybe with much bigger consequences on the foreign policy stage, Congress having left the field entirely, not having a veto-proof majority now means that presidents alone do foreign policy and the pendulum swings, whether it's the Iran deal or Paris Climate Accords, where every four years we have a different foreign policy, fun times. And we got more accommodation stuff.

We're basically never leaving that topic. I got an email from a student, David, who asked for an accommodation for the, two weeks postpartum? No, definitely not. That's not. We don't accommodate that. I mean, you can't like sit or, you know, keep all of your bodily fluids inside your body at your own command. But no, that we're not accommodating anything like that. So we'll talk about more accommodation and accommodation of theories. I've had a couple law professors write in as well. But David, before we hopped on this podcast, I had about 15 minutes where I'd finished reading everything, but we weren't starting yet.

And I went to a white rug that I have that was vomited on last night by a certain six-year-old. It's pretty hard to clean vomit out of a shag rug. I'll tell you that. But, you know, if I told you that your six-year-old is going to vomit somewhere in your house, you know it's going to be the white shag rug, right? Like, it has to be.

Well, you're in the middle of a move, so you don't have to move the rug. That's literally what Scott said. He was like, look, this problem has been solved. I'm going to go back after this pod and continue cleaning vomit. And I just, I mentioned that because sometimes it can seem like I must lead a very glamorous, high intellectual law-filled life where I read Supreme Court opinions and have these incredible conversations with David French. And I just think it's important for you guys to know I'm picking out, are they chicken nugget remnants? They're orange.

I'll just tell you that. It's orange and it's really gross. And that's what I'll be doing right after this. Well, you're doing that the day after we were cleaning up vomit from a dog on a white rug. So, hey, we're just united in this. All right. See you next time on advisory opinions. 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.

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As always, if you've got questions, comments, concerns, or corrections, you can email us at advisory opinions at the dispatch.com. We read everything, even the ones that say David's right. That's going to do it for our show today. Thanks so much for tuning in. We'll see you next time.