Advisory Opinions - This Is Not A Vibes-Only Podcast

Episode Date: August 13, 2026

David Lat and Zachary Shemtob return as guest hosts and are joined by Adam Feldman, author of the blog Empirical SCOTUS and the Substack Legalytics, to discuss  an update on birthright citizenship, some new polling about SCOTUS,  and the criminal justice system’s newest heartthrob, Luigi Mangione, who will soon be tried for the murder of UnitedHealthcare executive Brian Thompson.  The Agenda: –Where in the world are Sarah and David? –The Delusions of John Roberts –Is Chief Justice Roberts moderating from the front? –Early and late Scalia –Challenge brought to Trump’s new birthright citizenship order –Previewing the November cases –St. Mary Catholic Parish v. Roy (25-581) –Nielsen v. Watanabe (25-417) –Are Republicans falling out of love with the Supreme Court? –Overruling the 3-3-3 court hypothesis  –SCOTUS shortlist –Mangione plea discussion expected in federal case Friday 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 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 am not Sarah Isker, and that is not David French. I'm David Latt, author of the original jurisdiction newsletter on Substack, host of its companion podcast, and a columnist for Bloomberg Law. And I am joined, as I was for Tuesday's episode, by a co-host. Zach, please introduce yourself.

I remain Zach Shemtob, the executive editor of SCOTUS blog, and an occasional guest on advisory opinions. and I also remain David's husband. Exactly. Our recording on Tuesday did not jeopardize our marriage. And just as we were joined on Tuesday by Amy Howe of Stodas blog, today we have a special guest as well. Zach, can you introduce him?

Absolutely. Last episode we had Amy How on, who does more reporting on the Supreme Court than pretty much anyone else alive. Today we have Adam Feldman, who compiles more data on the Supreme Court than pretty much anyone else alive. Adam Feldman is the creator and author of the blog Empirical Scotus and the Substack Legal Lytics.

He also writes for Scotus blog, and he and Jake Trusscott also put together the very popular Scotus blog stat pack. Adam, please introduce yourself or say hello. Hey, so glad to be here and share the esoteric area of statistics in the Supreme Court with everyone listening today. The people are demanding it. I'm here for that. Exactly. And again, if you are demanding more of Adam after this episode, please check out empirical SCOTUS and legaletics.

So, some of you might be wondering, where are Sarah and David? Sarah is in the middle of her big move from the D.C. suburbs to Texas. David is on a well-deserved vacation. And as you can see on social media, he and his wife, Nancy, are traveling across the country by train on a trip to celebrate their 30th wedding anniversary. So happy anniversary to them. But fear not, AO listeners, they will be back next week. So what are we covering today?

First up, one first street, we will start with the Supreme Court. We'll cover an update on birthright citizenship, an interesting new article about Chief Justice Roberts, the cases that will be argued in November, and some new polling about SCOTUS. The polling will lead us very naturally into our conversation with Adam. As Zach mentioned, Adam really analyzes the court through the lens of data, as opposed to vibes or anecdote or opinion. And so his research on the court is really invaluable, and I think you'll enjoy our conversation with him.

We will turn to the circuit courts in covering a few notable opinions from the federal appeals courts that sit at one level below the Supreme Court. And finally, we have a quick update on the trial of Luigi Mangione, who will soon be tried for the murder of United Healthcare Executive Brian Thompson.

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So let's now turn to the Supreme Court and our first topic, birthright citizenship, which we discussed on the last episode. Zach, there's an update on that. There is. So yesterday, lawyers from the American Civil Liberties Union and a bunch of other civil rights groups brought a challenge to Trump's latest birthright citizenship order to remind listeners that order seeks to deny birthright citizenship to children born to several groups of parents, including alien enemies, foreign government employees, parents who engage in

commercial transactions to have birthright citizens in the U.S. and those in the territories where citizenship is not conferred by federal statute, which is only American Samoa, as far as I'm aware. One thing to note that we didn't last time is that as far as I can tell, there are not time limitations. The prior birthright citizenship order said explicitly that it took effect 30 days after its issuance. There's no such prospective language in this one. And if that's correct, it raises all sorts of due process issues. So that's kind of a side issue, but an important one. In any event, this was challenged before Judge Joseph Laplant. He's a judge. He's a judge in the U.S. District Court of New Hampshire, he may sound familiar to some of our listeners

because he was the judge who enjoin the birthright citizenship order in Trump v. Barbara. So history continues to repeat itself. The plaintiffs are seeking to clarify, they're actually going back to his original order and seeking to clarify that the court's preliminary injunction forbidding birthright citizenship, you know, bans for moving forward, need to be made clear based on this order as well. So kind of an update in that regard. The choice language to me was near the end of the Challenger's brief, where they contend that I'm quoting, if the president issues 100 orders seeking to create new exceptions to the

sacred guarantee of the citizenship clause, all 100 will be equally illegal. And nothing requires this court to contents, the continued assault on this foundational constitutional principle or issue an endless string of what they're saying, birthright citizenship orders. So I think this is likely to be enjoined by the judge. The question is, will the government then seek to go directly to SCOTUS, as it has done in the past, or will it let this play out in the First Circuit? And if I'm not, if I'm not wrong, David, is the First Circuit remains the most liberal of all the circuits? Yes, that's right. At one point, it was composed entirely of Democratic appointees, but now I believe we have one Trump appointee there. The lonely Trump appointee.

Yes, exactly. Now, one thing to note about it is it is the smallest of the circuit courts. It has only six active judges. So again, it's quite small. And yes, Joshua Dunlap, who's based in Maine, he's the one Trump appointee on that court. Yeah. So I think we know what's about to happen before the Mr. Court, Judge, the question is, then what procedural moves will the administration make? And then we're, again, off to the racists. Adam, any thoughts on this one? Oh, just, you know, echo your point about the First Circuit being small. I oftentimes think about the D.C. circuit as kind of on the left end of things,

just in terms of the balance of the court and thinking about a court that has a lot of impact on the nation. but definitely echo your sentiments on the first circuit. So it's interesting. One other just minor observation on this, I think I'm going to actually have a post on original jurisdiction about the most important circuit court after the D.C. circuit. I think everyone agrees that the D.C. circuit is, you know, number two,

but there's a lot of debate about that. Oh, I have a lot to say on this, and I'm sure Adam does as well. Remember back in the day when it was the Second Circuit, so I'm, of course, partial to the Second Circuit. I would admit it probably is no longer in second place. I know, you know, David is a partisan for the Ninth Circuit, having clerked on that, that would also be a candidate. But then, of course, we have the Fifth Circuit, which does all sorts of things. So I think that's a great idea. Actually, you know, Adam, maybe after I do this story, you should come up with various metrics,

because this reader who sent me a very interesting email said, well, you could talk, you could try to measure, you know, certainly you can measure things like caseload or population size of the covered states. But then there are issues of, you know, who winds up before the Supreme Court the most? Who's pushing the law in the farthest direction? You know, for nerds who follow the Supreme Court clerk hiring, what's the biggest feeder court nowadays? Like, in my day, the Sixth Circuit was not a big feeder court. Now it's like huge. So there are a lot of ways to slice that.

Perhaps also which circuit handles the largest population across the United States. Right. Of course. Which would be the nine. Exactly. So next up, we have a very interesting. article from The New Yorker. On Monday, the New Yorker posted an article that will appear in the August 17 print edition. It's by Margaret Talbot, who is a long-time staff writer over there, and it's

titled, The Delusions of John Roberts. The Chief Justice insists that his Supreme Court isn't biased, even as it keeps making dramatic leaps rightward. I think the subtitle does a good job of capturing the gist of the article. Zach, I know you had some thoughts on this piece. First, I'll give you some choice quotes. So this is quoting from the article, 21 years into his tenure, he being Roberts keeps waking up Groundhog Day style to the same ironic scenario. He's a proponent of maximal presidential authority who was compelled to deal with a president especially likely to abuse it, just like the movie Groundhog Day. For a man like Roberts to whom the label institutional attaches like an epithet in the Odyssey, very cute, perhaps the only thing worse than Trump's

excoriation of the justices is his gratitude when they do what he wants. I actually think that point is quite fair, but then the vast majority of legal scholars interviewed are critics of Roberts. So I have to say, this struck me as kind of a classic New Yorker piece with a liberal agenda feigning, being fair and balanced. And I have, don't get me wrong, very mixed thoughts on Roberts. I am, you know, certainly in many ways can be a critic of the chief, but I don't think this piece gives you exactly a fair portrait, and maybe that's fair in itself because the title kind of gives that away. But again, going to Roberts academic critics, substantive critics, and kind of presenting that as the truth, which the article does, is unfair from the get-go. And then by the way,

those who praise Roberts are mostly his friends, as opposed to, you know, the substantive academic critics. One thing that the article on the merits puts forward is that one, the court is far from unified and Roberts is not entirely in control of it. That is a very dominant narrative. It's not one that I agree with either. I do think it's a bit overplayed. Along with Kavanaugh and Adam can talk quite a bit about this. Roberts was in 95% of the majority opinions last term. and that has remained true over the past few terms. And he's authored pretty much all of its major cases. So I kind of think this narrative of the court is out of control.

You know, Roberts is losing it is one that at the very least is overstated. But Adam, I'm sure you can fill in some of the blanks on that. Yeah, absolutely. I mean, I think what's tricky about this type of question is to look at it from a comparative angle. What would happen if somebody else was in Robert's shoes? It's a 6-3 court. That is something that you can't change around at this point. So to say it's Roberts in particular is a very tricky premise to make because I think

that you have any conservative-minded justice on the balance in that position and you'd have decisions going in this type of direction. So it's very hard to make a comparative point. And if you can't do that, then putting the onus all on Roberts seems like a bit of a stretch there. You know, I think that that's such an important point. And I think one thing that you do so nicely in legaletics and empirical scotus is at the outset, you kind of try to identify a benchmark or a standard for your research. And so if we're thinking about, is the chief justice in control of the court, does he exert enough influence? well, what's your benchmark? How much is enough or sufficient or expected influence,

especially in light of who else we might have had in that chair? For people who are interested in evaluating the chief, I would refer people to an excellent piece for SCOTUS blog that Professor Richard Ray wrote, which I think is a very balanced appraisal, more balanced, I would say, than this New Yorker piece of the chief's legacy. So on Tuesday morning, the justices announced which cases will be argued before them in November. Zach, what are the highlights? So we just got the October calendar. Now, what a treat.

We got the November calendar. So the calendar for the justices' November argument session was released two days ago, and it indicates that the justices will hear seven hours of oral arguments over five days in November, beginning on November 2nd and concluding on November 10th. The highlight, I would say, is St. Mary Catholic Parish versus Roy. In this case, the court is going to consider whether a Catholic

preschools exclusion from Colorado's universal preschool program is a form of religious discrimination that violates the First Amendment. The preschool has argued that the state should have provided with an exemption from rules that would have otherwise required it to admit any student who applied, including, which is at the heart of this, LGBTQ children and the children of LGBTQ parents. A federal appeals court rejected that argument. It concluded that under the Supreme Court's 1990 decision of Employment Division v. Smith, the state's rules did not violate the Constitution. So you could then, you know, have exclusion in this regard because they are neutral, the laws are neutral and generally apply to every preschool, regardless of religious affiliation.

So for those who are not aware of all the madness surrounding Smith, employment division versus Smith is hated on the religious right with the passion of a thousand sons. Ironically, it was written by Justice Scalia, by the way, which I always admired. And there's nothing I admire more when one's, you know, seeming partisan instincts and their legal instincts are at odds. Yeah, Scalia did that a few times in some big cases. He did. I think that later on, he walked a lot of that back. I think there is, in my view, and Adam, maybe you could do an empirical piece on this, a big difference between early and mid-Skalia and late-Skalia. I think late

Scalia became much more partisan-y, as opposed to early Scalia, who was much true to this distinction between law and politics. But that's a conversation, I suppose, for another day. But going back to Smith, absolutely hated. The petition itself in this case asked for the court to overrule Smith, said it should no longer be treated as good law. It's been limited again and again. Get rid of it altogether. For whatever reason, the court gave that a no. And so Smith is unlikely to go down in its entirety in this case, which makes this case a whole lot less exciting than it could be. but I would predict it's going to be just a continued narrowing of Smith until, you know, there's nothing left.

Yeah. It's funny. So I wrote a piece and it's on SCOTUS blog as well, looking at precedent that's overturned and precedent that's diminished. So there might be utility in just diminishing the power of Smith to nearly nothing without overturning it in terms of possibly legitimacy argument for the court, overturning less precedent, If Smith has no power, then whether or not it's formally overturned, you know, it might not be as meaningful aside from a talking point. The court did this with Lemon and the power was diminished and diminished.

And the court never said in very explicit terms that Lemon was overturned, even though it said it for all intents and purposes. And Lemon, even before it was diminished to nearly nothing, had very little power to do much at all. all. This has been a frequent criticism of the Roberts Court, right, that they have all these major precedents that they narrow down to nothing and effectively overturn without saying so. And I wonder if that criticism counts as much of late, because I feel like the more recent Roberts Court has been more open about what precedent they're getting rid of, whether it's Humphrey's executor on. But it remains a criticism and certainly when it comes to Smith. So, yeah, you basically said what I was going to say, that in, uh, Slaughter, the case from last term, involving Rebecca Slaughter and the FTC, they did officially overrule Humphreys. And I also recall with Lemon, was it in Kennedy v. Bremerton? They kind of did acknowledge. Yeah, they kind of acknowledged what we already knew, which was that it was a dead letter. So, you know, the Smith point is very interesting because this came up in a case from a few terms ago. Fulton v. City of Philadelphia.

Philadelphia involving the Catholic Church and adoption agency and LGBTQ parents about, you know, the question is a lot of people don't like Smith, but what do you replace it with? So I think that's, interesting. But I guess to not get the Smith haters hopes up, as you said, Zach, this time they did not raise the possibility by granting us, should we overrule Smith question. The LGBTQ parents, David, causing all sorts of trouble. Yeah, yeah, I know, right? You know, I mean, Also, by the way, like this takes place against a string of cases where the court has ruled on various issues involving schools, religious schools, essentially saying that, look, if you're going to give a certain benefit to private non-religious schools, you kind of have to give it to the religious schools that happen to be, the private schools that happen to be religious. And so, you know, I think that's a strong, there's been a series of cases like that. And this might be the latest in the series. I don't know if either of you has a prediction as to how this is going to come out. I think it'll be decided on fairly narrow grounds, but I think Colorado is going to lose this one as it continues to lose in all of these religious cases. Yeah, I mean, you have Carson versus Macon from a few terms ago where you were moving in this direction.

The court's been pretty consistent. Just in terms of your point, David, that this has been an issue in terms of schools and incorporating religion. I mean, really since almost the middle of the 20th century, this. this type of question, I think it was 1960s when Everson came up the first time. And so there's a long string of cases looking at this and a long lineage. And so this court has definitely pushed in a consistent direction on this general issue. There's another case we want to talk about for November. Yes. And it raises a very similar theme, not for religion, but discarding precedent. So this is the case of Nielsen versus Wadenaubi. The court's going to consider whether a federal

inmate who contends that he was injured in a fight can sue prison officials who we said, according to him, failed to send him to the hospital and refuse several requests for medical treatment. The lawsuit relies on the Supreme Court's 1971 decision in Bivens versus six unknown federal narcotics agents, holding that a private individual can sue a federal agent for violating his Fourth Amendment rights, even when there's not a specific law authorizing a claim for damages, that this is a constitutional claim you can make against federal officers. And by the way, this was written by, I believe, Justice Harlan, the second, who's the namesake for our first child. So I'm a little biased when it comes to this stuff, but I'll do my best.

Anyway, since then, the justices, though, have narrowed Bivens more and more, effectively saying that this precedent only implies in the narrow circumstances of Bivens itself. And, you know, You know, I mean, they've recognized a few, but, but essentially, as I said, they've narrowed it more and more. Again, this is the ability to sue federal agents for constitutional violations. I think, Adam, this business is probably less hated than Smith, though that doesn't say much. But I would imagine Nielsen is going to continue this march to, again, wear it down to pretty much nothing. That sounds like a similar story. Exactly.

And, Zach, what about cases that? have not yet been scheduled for argument, but might be ones for listeners to look out for? So overall, this term is not as flashy or exciting as the next term is not as flashy or exciting as this term. But there are two, which have some significant implications, haven't been calendared yet. The first one is Viramantes v. Cook County. This is whether the second and 14th amendments guarantee the right to possess AR-15 platform and similar semi-automatic rifles. This does not deal with large capacity magazines, which is a separate issue, also considerable importance here.

So in that way, and David French discussed this, you can certainly go back to that episode if you want to hear all about it. But still, it's a pretty big deal on whether there is a constitutional right to possess an AR-15 or similar semi-automatic rifle. The other big one, I'd say, is Kean v. Florida. and this is whether the Constitution demands a 12-person jury when the defendant is charged with a serious felony. This comes from Florida, where they have six-person juries for such things. And so the question of whether there's a 12-person jury is guaranteed by the Constitution is going to make for a really interesting opinion,

and it'll certainly be Gorsuch bait at the very least. Yeah, it's picking up from a prior decision a few terms ago, Ramos. And so this is another one of these issues that it seems like the court kind of has in its cross-errors and not necessarily in terms of pushing in a certain direction, but in terms of clarifying it. And that seems to be kind of at the heart of some of this court's mission is to take specific issues and clarify them in as much detail as it can and then kind of move on to another issue that it finds particularly. interesting and important. And sometimes these are predictable. Sometimes they're not. You have Johnson and Welch from the mid-20 teens where they're looking at the Armed Career Criminal Act. And so, you know, that that seemed indicative at the time of an issue that the court wanted to clarify. And I think possibly this question of jury size is something that they're getting getting the clarity on now. Yeah. I mean, this is a little inside baseball or more than a little inside baseball. But all the five, over the Armed Career Criminal Act, this was a huge thing before the court.

And then it kind of seems to have, I mean, we have had some cases, but kind of fizzled out. But for anyone interested in that subject, there's a whole lot of interesting case law. And it is a total and complete mess. Before we turn to our next topic, let's take a quick break. So looking at the court from more of a 30,000 foot perspective, as opposed to individual cases, Last week, Marquette Law School released its latest poll on the Supreme Court with some really interesting findings. One of the leads on the project was Professor Charles Franklin, who has written for SCOTUS blog. So one top line finding was 74% of Republicans, 35% of independence,

and 22% of Democrats approve of the job the court is doing. So you can see there's a big partisan tilt there with Republicans approving of the court at, you know, basically three times the rate of Democrats. Republicans are more likely to say the court rules for Trump rarely or never than our independence. So it's kind of funny. Each side thinks the court is more in favor of or bias towards the other side. Among Democrats, more than 70 percent say the court rules for Trump often or fairly often. So whether Trump wins or loses a lot at the court seems to be a little bit in the eye of beholder, perhaps. Zach, what are some other things that jumped out to you from this poll? So much jumped out to me from this poll, but I would say a number of other ones, and then you

could stop me if I'm just spouting out too much. But among all adults, it talked about, you know, 54% saying the court is going out of its way to avoid ruling Trump might refuse to obey. The birthright citizenship ruling was the most visible one to the public. So it actually went through a good deal of the different decisions that were issued. It found unsurprisingly, most folks, you know, more folks knew about birthright citizenship than any other decision with 40% saying they read or heard a lot about this decision. Just 15% say they had heard nothing about it. I also thought there was some interesting media information. So this is quoting for attention to the Supreme Court over the last month,

the audiences for MS Now, Newsmax, and BBC are the most likely to say they heard a lot about the court, with more than 45% of each saying so. And then at the opposite end of the spectrum, audiences for local radio, local TV news, And those who depend on social media have heard the least with 33% or less of each saying they heard a lot about the court. Now, I want to just discuss this briefly. People praise and lionize local radio and local TV. I love it too. What's going on here?

I get the social media. Social media is corrosive and terrible, even though David, you know, disagrees with me on that to a certain extent. And so I could see why that would generate general ignorance of the court. I was surprised by the local rating local TV, other than the fact that maybe it's, you know, which is a good thing, it's covering, as the name says, local things and therefore paying less attention to the Supreme Court. So maybe there is, there is some value on that. But I thought that was quite notable, actually. So then let's get to the rulings themselves. Of the 13 rulings by the Supreme Court,

this term included in the survey, a majority of the public favors the court's decisions in 11 cases and opposes the rulings in two. So let me just repeat that. So according to this poll, at least, of the 13 major cases, the public agreed with the court, at least politically, in 11 of those, and disagreed on two. Why is the court then still so unpopular? This is an interesting, interesting point. And I think we're going to get into something related a little bit later in today's discussion. So I'm not going to get into the weeds of ideology. But it's an interesting question that comes up a lot between volume and salience. And so some of the most salient decisions of this term did not go in the conservative direction. They didn't go for the Trump administration.

And birthright citizenship is a great example of that. But when you look across the term, the bulk of the decisions that were split decisions, where you had at least one dissenting vote did move in a direction that could be considered conservative. And so if you look at the salient cases, then that's one matter of perspective. If you look at all the cases across the term, that's another one. And so it really seems to be how folks like to observe the cases, what their perspective is that might dictate their views on the court in general and on specific decisions as well. So I'm curious, Adam, from your perspective as a researcher, how do you evaluate salience, which I think often people think of as most relevant, exciting, interesting, hot button, I don't know what have you, because this is a recurring issue on AO where Sarah and David often criticize people for identifying cases as salient or politically charged. And if they come out a certain way, then they sort of toss that out the window. So if you're sort of scoring salience on the front end ex ante in advance of these cases being decided, what factor is?

do you look at? I think salience can be looked at in two different ways. I think there are actually two different types of salience at least. One is salience to the public and another is salience in terms of the legal issue at stake. So it might be something that they're looking at cases where, of course, looking to overturn precedent in something that could affect a lot of people, right? You have some of these cases that have a lot of downstream effects, but they might not carry that kind of weight for the general public. And so that would be like a legally salient. matter, but politically or publicly salient matters are things that get a lot of news coverage. And so in political science, oftentimes it comes down to analyzing the types and prominence

of news coverage of major cases. And especially if it's generalized across the board, if you have newspapers across the country that are covering this on their front pages, then that's one way to think of salience to the public. That's when we think of how the public's getting its information now. You went back to social media a minute ago. So it's not like it was even probably 25 years ago where this was stuff that was getting covered on television or in the newspaper. But if there's kind of generalized knowledge through the national news of these cases and prominence in that, I think that's one gauge of salience that carries a lot of weight. So on salience, I will just point out, Zach mentioned earlier that the birthright citizenship case

was the most widely recognized in this Marquette poll. My aunt from Thailand, hi Tita Elma. She recently visited us in New Jersey, and even she was familiar with the birthright citizenship case. And I think maybe she had seen a post or story. I did an original jurisdiction that I had posted on Facebook. Now, you know, she's my aunt, so maybe she follows these things more than most,

and she's a very educated person, and she has a PhD. But anyway, birthright citizenship. It made its way all the way to take. Thailand. And I would think tariffs as well, to a certain extent, given the stress that the president put on them. And going back to the cases and, you know, salience to a certain extent, another really interesting thing with this poll is they, you know, broke down not only that the public supported 11 of the 13, but then how much they supported each case. And by far the

winter here was where the public support of the court's opinion the most was in the Chattry case, which was about GPS locations for police. The public favored that ruling limiting police access to cell phone location data, 81%. Yeah, I mean, that's interesting for a couple of reasons, one of which is that it's not one of the most talked about cases of the term. So, you know, to have that kind of favorability is interesting. I'm curious who's really favoring this. But on another level, it's a split decision that didn't go in the, at least where you had the majority of the conservative justices in the majority. And so, you know, if we're thinking along the lines of the positions of the people that were pulled generally and that you have the independence

and the liberals leaning in one direction and you have a decision. And you have a decision. that on the balance, at least, I think, could be determined as ideologically neutral, if not in a particular direction, then maybe that has some weight given the other statistics in the poll. Yeah, and just to throw it out more. So the tariffs case, you had 66% favoring it. In terms of Trump restricting asylum seekers, it was 51%. So really quite close. perhaps to me the most interesting, though, were those cases where the public diverged from the court. And as I said, there were only two of them, but they were the president's ability to remove the heads of independent agencies. So the slaughter case at 51 percent.

And the ruling permitting political parties to coordinate with candidate campaigns at 53%. So it seems like the public, you know, for the most part, they were in. favor where the court went, but when it came to campaign spanding and removal of the heads of independent agencies, that's where they diverged. Now, I must say when it comes to unitary executive theory and the ability to remove the heads of independent agencies, it is a really complicated issue. So I don't know, unlike some of the other cases, and these are all, of course, complicated, but, you know, it just seems like obviously it's reactive to a great extent and all about presidential power and too much presidential power being a bad thing. Political, you know,

campaign spending, campaign finance laws, all that stuff, I think do remain generally popular with the public, at least abstractly. So I wasn't too shocked by that one, but also an interesting finding. Any final thoughts on this poll, Zach, before you dive into your discussion with Adam of his methodology and some of the most interesting findings of his? Yeah, I mean, some final interesting things were that Justice Thomas is both viewed most favorably and least favorably among the justices. Justice Barrett has seen declines in both favorable and unfavorable opinion. One might think what could be happening there is she's getting some support among liberals and losing support among conservatives. So I thought that was particularly interesting.

And then the final thing I'll say is there was another poll, a Gallup poll, which showed that support for the court is now dropping among Republicans. This is likely based on the decisions issued against the Trump administration. And so some of the reason that the court is so historically unpopular now is likely because they have made both sides angry. that sounds about right and you know some some people would say that if you're upsetting both sides of the political aisle that that might not be a bad thing yeah i mean i i hope they continue to do it i i totally agree with that i get a lot of mail at original jurisdiction from liberal readers who think i'm too conservative and conservative readers who think i'm too liberal and i know at zach you at scotus blog also here from both sides so yeah i agree with that point if you're getting flack if you're not

If you're not getting flack from one side or the other, maybe that means something. Yeah, and related to this, and this is an obsession of mine, is that, you know, every poll also shows. And many commentators say, like as an article of faith, judges, justices should not decide politically. But, and this is in line with the Gallup poll. But then when they decide against one's political outcomes, they're, you know, It's terrible. They're, it's terrible. You know, they're against the decision. So if you think judges shouldn't decide politically, but then somehow the outcome in every major case you agree with lines up with your political beliefs, sorry, but you're kind of full of it. Adam's,

no comment from Adam. I stay out of the weeds of these normative questions. That's part of the You do the year above. Of laboring in the statistical aspect. I get to talk without editorialized much. In the abstract realm of statistics, a few from these earthly concerns. Yes, there we go. Well, that's a good note, I think, on which to turn to some of Adams' research, which is, again, based on data, not just his particular opinions. Other than the things we've just discussed, what number or something?

Statt surprised you most about October term 2025? So something interesting that really stuck out to me is the fact that this was a very strongly ideological term when we look at volume, which we mentioned before, over 22% of the cases came out along six to three lines. So, you know, you had a lot of cases that were ideologically split, but you also had a lot of unanimity. The unanimity didn't drop this term from what it's been previously. Around 45% of the time the court has been unanimous over the last couple decades, and it was 44% this term. So you have a high degree of ideological friction, and you have a consistent degree of unanimity. And yet, as we were speaking

about before, you know, you have people on the left feeling one way about the court, people on the right feeling another way. And the court's doing what it has been doing for the last, last period. Now, the ideological six three splits were up this term. But that's been kind of a wavy row over the last number of terms, definitely since Justice Barrett joined the court. And so the term where the court decided Dobbs and Bruin was a term where there was a lot of ideological friction. It went down since then and back up this term. So I think, you know, the, the, the, the, adjacency of lots of ideology and yet the normal amount of unanimity is very interesting to think about juxtaposed to one another. And I'll just add a third element to that, tying back to

what we discussed, there's this, you know, fraction on the court, higher degree of six-three decisions, yet Roberts remains pretty much in control. Again, we're going back to the 95% stat. So that adds to me, at least, even more complication to the current court. Yeah. So Roberts, as the majority opinion assigner, whenever he's in the majority, retains a good degree of control, even if he's not writing, because he gets to decide who the author is. Now, there's politicking that goes on within the court, and sometimes the initial votes aren't the final votes. And so there are things going on behind the scenes that the public may not know about. But ultimately, if Roberts can maintain a position in the majority and have some kind of input in it, then what

whether or not he agrees entirely with the position that the court's going, if he can have some influence that might have some impact on him wanting to be in the majority rather than dissenting because he can actually possibly assert some of his views there as well. So it's interesting. This brings us to a question that will be of great interest to advisory opinions readers. So Sarah has argued both in this podcast and in her fantastic book, that we have a 333 court. That is, you have a Thomas Alito Gorsuch conservative wing. You have the Democratic appointees of Sotomayor, Kagan, and Jackson.

And then you have this middle of the chief and justices Kavanaugh and Barrett. So as someone who's looked at every data point on the court imaginable, what's your take on the 333 thesis? And answer carefully, lest you curse Sarah's wrath. Yes. But I'm— Yeah, you'll never be invited back. Exactly. I am also very genuinely interested because, you know, intuitively 333 makes some sense to me. I think that there are plenty of other ways to explain the court. But yes, as David said, as someone who's really dug into it, what's the deal here? So this is, you know, of course I defer to Sarah. No, I was actually on with Sarah and David a while ago and talking about this point in particular. And I think actually my positions change a little bit now that I've gotten into some of the different weeds of the Supreme Court. And I'm starting to align more with a position that Rory Little, another Scotus blog contributor, has spoken about the court.

written about that it might be a 4-3-2 court where you have a, you know, Thomas and Alito agreeing very often in similar ways on the far right. You have the leftmost justices, the trio, Sotomayor, Kagan, and Jackson, agreeing very often in similar ways on the left. And then you have these justices in the middle. And this is where I think the sticky point is, right? We're only talking about, I think, maybe one justice, not maybe, we're talking to one justice difference, right? And so it's do we stick Gorsuch on the far right with Alito and Thomas or in the middle? And so in the 3-3 model, you have Barrett, Chief Justice Roberts, and Kavanaugh in the middle. But Gorsuch is an interesting one to think about because this is something I've written about

before. But he's the justice that aligns with the three justices on the left the most in five, four, and cents. And these are in particular areas, one of which a court has taken an interest to Native American law. And so he oftentimes falls into a dissent with liberal justice along these issues, some criminal issues, some administrative law issues, where he's citing with some or all of the liberal justices, including Justice Jackson. There's several decisions where the two of them are in dissent together. And so, you know, this has got me thinking that maybe it's really issue area specific. And so, you know, when you have these civil liberties cases, you oftentimes have six three decisions. They're, you know, predictable in a lot of instances. The fact that

the court was going to go six three in the transgender sports case, I don't think was surprising to many people who follow the court regularly. And so if we think about this in terms of issue areas, then Gorsuch, I think, you know, really could be defined as somebody that's in the middle, at least in terms of somebody who could be a swing justice in certain cases. You know, the other three oftentimes get defined as swings or medians. And I think that that's, you know, its own kind of discussion, which we could get into, but it's a bit of a rabbit hole. But, you know, I think that Gorsuch could be conceived of as somebody in the middle, even if he's not jurisprudentially aligned all the time with Roberts, Kavanaugh and Barrett. And I think that that might be

the sticking point for some folks who define the court as 333, is that Corsuch isn't identical to Roberts, Kavanaugh and Barrett, who are in the majority of the most. But he also is not totally aligned with the justices on the right, where there's a clear distinction that he's in one of the three on the far right. So is it like a three, three and a half? To, and a half court? Yeah. I mean, it's hard to split the baby in this one. Maybe 4-3-2 or 3-3-3-3 depending on the issue, it sounds like.

Yeah, it's complicated. But I'm leaning towards this characterization of having this 4-3-2 court where Gorsuch isn't necessarily identical to the other three in the middle, but plays a role in the middle that could define him as part of the middle of the court. Or maybe it's a 3-221 court, or Gorsuch is sort of the wild card. Before jumping into our next topic, let's take a quick break. Get your tickets now for the dog stars. It's no surprise how fast civilization can disappear.

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Out. Okay, tough guy. and Guy Pearce. Arm up. The Dog Stars, directed by Ridley Scott. In theaters, August 28th, get tickets now. This actually gets me to the next topic, which is something you wrote a fascinating post about that. I'm guessing you might have gotten a lot of angry male about.

It was about what it means to call it justice ideological. And you try to evaluate of the nine justices who is the most or the least ideological. And again, this may be partly depending on your benchmark or in the eye of the beholder or what have you. But tell us about what you found. By the way, I had spoken to Adam about this piece. We were anticipating we would get a lot of flak because you're saying, oh, who is the most ideological justice? Who is the most political justice? And everyone, you know, goes crazy about that stuff.

Adam told me he did not get a lot. And I told him the problem was the piece was too nuanced. Everyone wants the hot take, you know, so to my o'er is when we come to the. down to it is the most partisan. Alito is the most partisan, but Adam just wouldn't take the bait and made it a little more complicated. So, yeah, there's some interesting points here, and it is kind of funny that where I thought I'd possibly be offending folks on the left and the right and would get some pushback on that. I actually had a lot of agreement from people on the left and the right, where people coming and saying, yes, this looks like kind of an accurate depiction

of the court. For this piece, I broke down and thank you. Zach for pushing actually getting this piece done because it was sitting and cooking for a while there. If we look at the shadow docket, the emergency application docket, you have one picture of the court where actually the far right seems the most ideological. When we look at the cases argued on the merits, you push some of the justices on the left towards the most ideological problems. So you have this differentiation, and I think that that's part of it, that there is not necessarily consistency between the cases that get heard on the merits where there's oral arguments

and those that don't. But you also have this question, and this is going back to what we talked about previously, of how do we measure ideology? Because people tend to think of the cases that are seen as the most salient as the ones that are really the bulk of what the court's doing, and that's not the case. The court's deciding 44% are decided this past term, 44% of the cases unanimously. So when we talk about a highly ideological court, I think that gets lost in the mix unless we say that ideology is really a function of the cases that the people follow the closest, in which case it really does get to be

more prominent. You have Dobbs, you have Bruin, you have the affirmative action cases, You have transgender sports cases. And so cases that get a lot of coverage, the court's moving in a six three direction a lot of the time. Now, Trump versus Barbara was quite the opposite, where you have a five four that moves in the non-conservative direction. So I think it really depends on the eye of the beholder. And especially if we're thinking about the emergency docket, we're thinking about the merits docket. And then if we're thinking about the question of volume or we're thinking about the cases that are most in the public spotlight. But if we're just looking at the aggregate, then, yes, you have justices on the left who are, at least by the measure that I looked at in the most ideological box.

But if we look at the emergency application docket, you have the justices on the right that are the farthest ideologically. So it's complicated. I guess that's the bottom line here. I'm kind of weighing this, but could one characterize it as, listen, this is a conservative court. At the end of the day, you know, there is certainly more conservative decisions and on major issues, not all major issues, than many others. And when it comes to certain justices on the court. They are more ideological than others. And then again, that doesn't mean by ideology, I don't necessarily mean that they're partisan. I just mean that they vote in a certain way, which leads to a certain outcome, which is favored by the left or the right. And those more

ideological justices are, you know, on the right, you have Thomas and Alito on the left. And again, I'm using right and left in scare quotes in this way, but you have Sotomayor and Jackson and and Kagan to a certain extent. And then you have, you know, this goes back to our earlier point, those in the middle. But as you said, it's then case by case is where I think people get frustrated. I think to me the bottom line here is whenever someone tries to very simply characterize the court, it's just not correct or it's going to miss out on a lot of nuance and things of that nature. It's not as simple as everyone wants it to be. Yeah, I mean, when we talk about ideology, it's a kind of tricky contested subject

because it's hard to say that a decision about religious liberty that's on the left or the right is comparable to something that's in economic activity on the left or the right or ERISA, some of these areas that the Supreme Court decides a fair amount of cases in. But if we're saying these are kind of apples to apples, that every decision that's coded as conservative is equally weighted, then it gives a very different portrait of the court than if we look at the cases that are most in the spotlight. And so in political science, we code each case as conservative or liberal. And so for this piece that I wrote, I was looking at those codings in particular where you code every case. But every case isn't necessarily equal. And saying that something's conservative or liberal in one case is not necessarily

meaning that it's conservative or liberal and the other. And that's where you have someone like Justice Gorsuch, who, you know, I think is considered by many as a predominantly conservative justice, which I don't think is an inaccurate characterization. But he clearly sees jurisprudence in some areas as dictating outcomes in one way. in cases in other areas in the other direction. So it's not always as easy as just saying everything can be split along this one dimension. And then if we wait them equally, it gives us this portrait of a justice as a whole. I think we should just use ERISA as the metric.

And then it will finally be... There are definitely some Supreme Court experts who would agree with you there. Yeah. And then all will be revealed. There we go. I mean, my personal opinion is that the court, I think, does some of it. its best law work in these cases involving ERISA and tax and the bankruptcy code and other statute-based issues. I think that's where you see these unusual coalition. So going to your

point, Zach, about how you like it when political and legal views diverge on a lot of these cases, maybe there is no political view. And so as a result, you get to see the justices doing law, I think it's Justice Kagan likes to say. So I actually kind of like these cases. Yeah. Another interesting thing to think about. And actually, this was first talked about in the paper that I remember reading by Lee Epstein, political scientist and co-authors, talking about how unanimous decisions can also have

an ideological aspect to them. And that's not something that's talked about a lot. But I think you get more attention is that the power of concurrences, even though they're not changing the majority of the court, right? It's not changing the opinion that actually gets written into law. This court, these justices, love to write in terms of having their say in cases, even unanimous cases, where they're expressing different positions on the law. And so when we're coding ideology now, at least, I and most others aren't looking at concurrences in terms of part of the spectrum of what makes that justice more less ideological. But really that, you know, helps to clarify their positions on issues,

maybe more than a binary coding, liberal or conservative. And so I think that that's an interesting nuance to think about is that we're talking about things in terms of liberal or conservative as one or the other. But really, there's a whole spectrum out there. And oftentimes that gets expressed in separate opinions that agree with the decision of the court, but they don't agree with the reasoning. Yep. And again, I think nuance is really an important theme, and I would recommend that listeners check out Adam's work if you appreciate research and scholarship on the court that is based on data and nuance. If you don't like data and nuance, though, you should just ignore Adam's work. I'm sure I could come up with something interesting to keep people glued to the screen.

Yep, you've got to start the hot takes, Adam. I'm tired of all these complicated studies on amicus briefs and what ideology means. It's time to go all out. Look, you are on advisory opinions, and I think that the listeners of this podcast, at least, do prefer nuance and things that go beyond hot takes. I think another thing that listeners appreciate is how this podcast will also delve into the work of circuit courts, which I think sometimes kind of gets ignored because we all pay attention to the Supreme Court, and then the exciting trials and drama that happen in trial courts we pay attention to,

or at least, you know, TV news shows do. So I think there's that circuit court level that often gets overlooked, but the dispatch and advisory opinions and SCOTUS blog, to some extent also do a great job of covering it. So let's just talk quickly about a couple of interesting circuit rulings. First, some of you might remember the 2023 case of Jack Daniels' properties v. VIP products. This was a fun trademark case argued for Jack Daniels by the inimitable Lisa Blatt, who's been on AO a few times. It involved a claim by the spirits maker that this squeaky dog poop themed toy called Bad Spaniels was diluting or infringing on the Jack Daniels trademark. The toy was a dog toy, it's like a kind of chew toy thing. It was designed to look like a bottle of Jack Daniels. It really mimicked the look, and it had text reading the old number two under Tennessee carpet instead of old number seven Tennessee sour mash whiskey. So the question before the court in the Supreme Court case, to sum up very roughly, was whether parodies get any kind of special treatment under trademark law, the court basically said no. And then after Lisa Blatz,

when the case went back to the lower courts. And in the latest chapter, just last week, the Ninth Circuit ruled in a unanimous opinion by Judge Mylan Smith that Jack Daniels failed to show dilution by tarnishment. So again, to kind of hammer on the AO greatest hits and big themes in honor of Sarah and David in absentia, Sauer likes to remind us that the Supreme Court decides questions, not cases. And this is a good example of that. Here, the court back in 2023, resolved a very specific legal question in favor of Jack Daniels. But then when you hashed it all out and you looked at more of the facts and other legal doctrines that were not necessarily at issue in the court, Jack Daniels are lost. And I'm guessing lost in the end.

And I'm guessing this is the end. I suppose they could seek cert again. But now the case is starting to get a little fact bound. And I don't know. Any thoughts on this? I mean, it also shows, at least to me, the difference between one's initial reaction and then when one gets into the law, because, you know, one could certainly argue that this was tarnishment in what you referenced David. But of course, it's a whole lot more complicated than that. You need to show all sorts of different things. And that's what happens at the lower court level. So I think it's another good lesson in, okay, when we first read it or first read about something, we may say, oh, it should go in a particular direction, but we obviously haven't seen the data speaking to, you know, Adam in a different realm or the facts writ large. And so it's when it gets to the trial court that that is hashed out and it may come out a different way than we initially anticipated.

It's an interesting tangent to this case, just talking about Lisa Blatt, who is one of the most successful attorneys before the Supreme Court in recent years. And so, you know, from a statistical standpoint, if you have Lisa in your corner, that's a very strong signal that you have a good chance of winning a case. And if we look at just the numbers in terms of arguments, for somebody who wasn't the actual solicitor general of the United States. in the past, she's one of the attorneys that's argued the most. So she's not quite up there at the Paul Clement counts of arguments. But if we look in terms of volume and success, Lisa's really

at the top of the list. It's interesting. Everyone likes to throw around the title, the 10th Justice. Oh, is it the Solicitor General? Is it this? Is it that? Like, you know, maybe Lisa Blatt is the Justice Whisperer. And fun fact, for those of you who follow my Supreme Court clerk hiring updates on original jurisdiction. Some of you may have noticed that there is one Rachel Blatt clerking for Justice Kavanaugh in the future. And yes, that is Lisa's daughter. She and Lisa Blatt and her husband David Bly, who's a partner at Williams and Connolly. They're a pretty high-powered legal couple, and they have at least one child who will be clerking for the court. Second, the Ninth Circuit issued an opinion in people of the state of California, the

meta platforms. As some of you may have seen in the news, the social media companies have been facing thousands of lawsuits across the country, alleging that they've made a product that's harmful to young people, especially in terms of their mental health and that it's addictive. Some of the judgments in these cases have been staggering, like a $567 million judgment out of New Mexico the other week. So before the Ninth Circuit, the meta, the company, Facebook, Instagram, tried to argue that Section 230 of the Communications Decency Act,

which gives immunity to internet service providers for various things, bars these claims. And in a unanimous opinion by Judge Jacqueline Wynn, the Ninth Circuit said, no, Section 230 provides a defense to liability, but it's not an immunity from suits. So maybe it'll protect you from being held liable in the end, but you can still be sued. And so right now, these cases, which are in an interlocutory or kind of in-between posture, these cases can go forward for now. And we'll see how that goes. Personally, we were, Zach alluded earlier to social media. Not a huge fan of these social media liability suits. I'm not sure products liability is the right way to think of these cases.

We're not talking about tobacco or opioids. And we should certainly have a national conversation about young people in social media. But I don't know whether, you know, hitting these companies with, you know, $600 million judgments is the way to go about making policy. I think there might be some due process concerns. And I don't mean that necessarily in the constitutional lens, but the idea that in advance these companies didn't know it. But I don't necessarily have as much of a problem with it from a tort law perspective. The point of tort law is that it changes and evolves to deal with analogous situations. And I think to a certain extent that's happening here with the media companies. So this obviously goes into a much larger debate. But yes, So the listeners know, David and I have had many dinner disagreements on this particular issue. And then last stop, among the circuit court cases in State of Mississippi, the Department of Energy, a unanimous panel of the Fifth Circuit, in an opinion by Judge Andrew Oldham,

vacated a rule that the Department of Energy issued during the Biden administration. This rule adopted new and amended energy conservation standards for stoves and cooktops. And as listeners generally know, when an agency issue is a new rule, that has to go through this whole elaborate process with particular deadlines and time tables called notice and comment where the public gets to weigh in on the rule. And consumers and companies can say what they like or don't like about the rule. But here, what the Biden administration did was it kind of did notice and comment and then it didn't really like that. So it issued what's called a direct final rule, or DFR, which allows

the administration or the agency to bypass some of the strictures of notice and comment. Six red states sued challenging the Biden administration's ability to do this. The Fifth Circuit, one of the most conservative courts in the country, and Adam has certainly written about this, agreed with the challengers saying that the DFR process is for non-controversial rules, and this one is not a controversial rule. And the thing that got some social media attention was the opening line of Judge Olden's opinion. And I'm just going to quote it here.

The Biden administration proposed numerous regulations to make home appliances more expensive and less useful. That's the opening sentence. And I wasn't a particular fan of this. I think while you could argue that the administration's rules might have had the effect of making appliances more expensive and less useful, that certainly wasn't their stated purpose. And so this intro read to me is a little overly political. I don't know what you guys think. I mean, I don't know about the stated purpose of the rules. Would you have then had an issue with it, David, if it had said, if Oldham had said the Biden administration proposed numerous regulations that made home appliances more expensive and less useful? I would prefer that, but again, I think judges and judicial opinions usually kind of identify the issue in a pretty neutral sounding way and then go through the facts. And then to the extent that they get to something that reads as a little more ideological or political. I think that kind of comes later. And it just as a matter of judicial persuasion, I think a reader, look, the people on the right are going to love this opinion, the people on the left are going to hate on it.

But if you're trying to get that moderate middle, this seems like you've kind of loaded the dice a little. Well, I think the overarching issue in play here, something certainly in play here, is that, as we know, Judge Oldham is a shortlist contender for the Supreme Court, specifically. You beat me to the punch there. Yeah, yeah. And Adam, you can certainly. you know, continue after, but, but I was just going to going to say that, as we all know,

he is likely interested in Alito's seat. If Alito were to retire, who knows when that will happen at this point. And so, yes, given that, it does appear that he's throwing out plenty of red meat. And even if what he said here, you know, was to be accurate. And again, I don't know about that. Just the appearance of writing in this way, the way in which he did it, especially given what, you know, the situation we're currently dealing with, yes, I think is pretty troubling and far from ideal. But sorry, Adam, I beat you too. Any thoughts you have on Judge Oldham's opinion? Well, I was going to speak more to this issue of Oldham thinking about the possibility of Justice Alito's seat here, which, you know, this is not uncommon. It's something I just wrote

about on legal edicts, this notion of auditioning for the Supreme Court. And, you know, that judges that think they might have a chance at a nomination oftentimes move in a direction that could point them towards that nomination, and especially when there's been a lot of discussion. So Judge Oldham at very least has an incentive to stake a position that might put him in the good graces of the current administration. And then when we look at who has, who has, has been nominated recently to the Supreme Court, the last number of justices, aside from Justice Barrett, you have a lot of former clerks for the justices that have departed as the nominees. And so my take has been for a long time that if Justice Alito departs, then his former clerk,

Justice Oldham, has a very good chance at the nomination. If we go back to Justice's Horsuch, and although he took Scaliase, you know, years after. But then Kavanaugh was a Kennedy clerk, Orsuch was too. And, you know, Jackson, who was a briar clerk. So you have a lot of these former clerks taking the seats of the justices that were on the court prior. And so I think there's a good opportunity there for Judge Oldham. I'd say he's likely the number two seed after Sauer. I think the Solicitor General is as likely risen in this regard being, you know, in a certain extent, Trump's guy. But I certainly agree that Oldham is a top seat. Yeah, Sarah would be interesting because he would be kind of similar to Kagan, somebody who hadn't judged before and was Solicitor General going as a nominee. I mean, I think about this more as the seat that's vacated. And so I think the two that are discussed the most under Trump are either Alito or Tom. And I really do think that it depends which justice departs as who gets the nomination.

And so, you know, I think that, yeah, I think Sauer has, he's on the list. But I think Judge Ho has a very strong possibility of the nomination if Justice Thomas departs. Ho is a Thomas clerk. So I've been kind of following the possible nomination process if there's a vacancy based on the seat that's vacated rather than having a nominee that is necessarily at the top of the list. So it's interesting. Judge Ho and Judge Oldham have sometimes crossed swords in the Fifth Circuit in terms of disagreeing on various issues, despite both being quite conservative and both Trump's SCOTUS short-listers. But in this panel, State of Mississippi, the DOE, the opinion was by Judge Oldham and it was joined by Judge Ho.

So that's interesting. Sorry, I'm not surprised that Ho allowed Oldham to write this and not did not necessarily, who knows, but did not necessarily push back. Well, there was no separate concurrence, I think, you know, which Judge Ho is, you know, want to do. So, you know, that was interesting. There was a concurrence by Judge Haynes, but I don't believe there was a concurrence by Judge Ho. So last topic for today that we'll cover really quickly in the trial courts, but a very high-profile trial court case. This is the trial of Luigi Mangione, the 20-year-old man charged in the killing of former United Healthcare CEO, Brian Thompson. That trial is beginning very soon, September 8,

and in a ruling released on Tuesday afternoon, Justice Gregory Caro of New York Supreme Court, announced that the jury in Mangione's case will be anonymous. So, Zach, before you You took the helmet Scotus blog. You were a criminal defense lawyer who practiced in New York. What does it mean for the jury to be anonymous? So, Justice Caro, and by the way, they're called justices on the New York Supreme Court. It's very confusing. The New York court system, you know, the New York Court of Appeals is actually the highest court.

The lowest court, not quite the lowest court, but when it comes to criminal matters, off the lowest court is the Supreme Court. And they call them justices. So all over the place, don't think too hard about it. The here, Justice Caro, who by the way, is known to be a no-nonsense, experienced, very intelligent judge, although he's very tough on crime. He issued an order saying that the jurors' names and addresses will only be revealed to the attorneys. He said that given the extraordinary public attention and the documented evidence, instances of threatening or hostile behavior by individuals outside the courthouse.

The court finds that disclosure of jurors' names to the public poses an unjustifiable risk of interference with the administration of justice. I should also say that about 20 Mangionistas, I'm probably pronouncing that wrong, as they call themselves, have sat in court showing support for him. I cannot imagine that this was very helpful to Mangione's cause before Justice Caro, who who is quite no nonsense. So I don't think they're being particularly helpful in that regard. But as I said, his decision, which I think makes sense to a certain extent, although certainly if I were in criminal defense attorney mode,

I would be fighting it tooth and nail. But his decision to just give this information or allow this information to the prosecution and the defense makes sense. As the names were being revealed to the attorneys, there is some very interesting case law in New York. York, which some years ago overturned a trial judge's decision to limit this information even to defense attorneys. So even defense attorneys in that case were not given the jury's names. New York then passed a law a few years ago allowing this under certain circumstances. This remains

pretty controversial. And I don't think a court has actually heard it at this point. But again, this decision kind of split the difference. So I don't think it will be an easy appeal for Mangione's defense counsel if it comes to that. There's also interesting issue. I didn't quite see it in the order, whether the names could be shared with Mangioni himself. I'm assuming so, and certainly again, if I were the lawyer, I would say, I need to, you know, I want to share this with my client. As a former criminal defense attorney, I could come up with a million other questions, but I'll leave it at that. Well, thank you so much for joining us for this episode of advisory opinions. Thanks to Zach Mycoast.

And thanks to our wonderful guest, Adam Feldman. Again, please check out his work at Legalitics and Empirical Scotis. And again, we all look forward to the return of Sarah and David next week. Thank you.