Music
I was born ready.
Music
[upbeat music]
Sarah Isgur
Welcome to Advisory Opinions. I’m Sarah Isgur, that’s David French, and have we got an episode for you. Last Branch Standing is out on bookshelves. You can go to a real bookstore and go buy it. How crazy is that? I mean, mostly for me, probably less so for you. But it really is true. Finally, we will revisit Stephen Colbert and corporate personhood, because we actually have never gone into that much, and what better reason to do so than Stephen Colbert’s citation of Santa Clara County from the 19th century. Also, Justice Sotomayor makes a rare public and personal comment about Justice Kavanaugh. We’ll discuss whether it’s in bounds or out of bounds. And the Great Seal Wars are upon us. All of these circuit courts have way too many seals going on. Seals, you know, like the thing that sits over them and that they stamp stuff with, I guess. I’m not sure what the seals do, to be honest. We’ve got some fun circuit cases, bathtub gin, and sparkling sports betting, all of this and more on Advisory Opinions. Okay, David, well, first things first. I am in New York today. The book tour is starting. Eh.
David French
So are you just on the road for the next, I don’t know, two, three weeks? What’s, what’s the schedule looking like?
Sarah Isgur
So Monday, I am recording with Ross Douthat on his podcast, Interesting Times, and if you have not watched the Ben Sasse interview that he did, you are missing out. It- it’s like maybe one of the most incredible podcasts of all time.
David French
Oh, it’s, it is … Everybody is talking about it, and it’s one of those few things where everyone is talking about it, and it, it still is not sufficient to convey, like, just how amazing it is, and Senator Sasse is
Sarah Isgur
… I, I just … I can’t imagine. I c- I can’t imagine walking through this the way he has been walking through it, and they go very deep, and they also talk about, like, public policy. [laughs] It’s, it’s wild. It’s, it, it’s really remarkable. It’s unlike anything I’ve seen.
Sarah Isgur
And of course the opening question is, “Why are you here?”
Sarah Isgur
You know, “You’re a man with weeks to live. You could do anything with your time. Why are you speaking to journalists?” And I just thought that was, um,
Music
clarifying. Uh, so okay, so I’m doing that, but it won’t be nearly as good, because how could it be? So that’s a bit of a, like, you don’t wanna follow that act. Uh, I’ve got The View, I’ve got Morning Joe, lots of radio and podcasts, Politics and Pros in DC on Saturday. Then I’m going up to Harvard Law School on Monday. You and I are gonna be at the University of Denver on Tuesday, and then I’m taping Bill Maher at some point. So, you know, check out sarahisgur.com if you’re trying to figure out where in the world Sarah is. Um, but David, I’ll admit, like, I’m, I’m pretty nervous.
David French
[laughs] No, it’ll be fun. It’ll be fun, and just think while you’re doing it, “Thank the Lord I don’t have to do this on Zoom for five to seven hours a day.” [laughs] That w- that was my September 2020. That was September 2020 for me, and it was
David French
not fun at all. [laughs]
Sarah Isgur
And speaking of that, David,
Sarah Isgur
I went on America’s Constitution from our extended SCOTUSblog universe with Professor Akhil Amar and Andy Lipka, and we had the most amazing conversation, so they’ll be putting out snippets of that for like, I don’t know, the next like five months. Um, we, we talked for so long. It was amazing. It was really, really fun. So check out America’s Constitution for that. David, here’s my plan for today. I’ve got some questions from our last few episodes and/or comments, and then it’s a circuit extravaganza. So I wanna do a little bit of both. Let’s start with some news.
Sarah Isgur
Justice Sotomayor recently was out and about speaking publicly, and she had this interesting comment that is making the rounds. I will read here from David Lat’s Original Jurisdiction.
Sarah Isgur
She was talking about the Nome versus Perdomo case. This was about those, uh, immigration stops in the Los Angeles area, and she said of it,
Sarah Isgur
“I had a colleague in that case who wrote that these are only temporary stops. This is from a man whose parents were professionals and probably doesn’t really know any person who works by the hour.”
Sarah Isgur
David goes on to write, “She didn’t name this colleague, but she didn’t have to. The only justice who explained his Perdomo vote was Justice Brett Kavanaugh, who wrote a concurrence stating that while, quote, ‘apparent ethnicity alone cannot furnish reasonable suspicion,’ it can be a relevant factor, along with other salient factors. Based on this concurrence, progressives started referring to such immigration stops as Kavanaugh stops.” And then he continues, “Yes, justices go after each other in opinions, but they typically leave it on the page, i.e., don’t bring up their grievances in other contexts. So it’s striking to see a justice criticize a colleague outside a written opinion in a public appearance and in somewhat personal terms. This led the editorial board of the Wall Street Journal to accuse Justice Sotomayor of profiling Justice Kavanaugh in terms of making assumptions about him based on his demographic background as a white male from a well-to-do professional family.”Parentheses from David Lat, “And her assumptions might not be correct. As a teen, Kavanaugh had summer jobs in both construction and lawn care, where he might have met people who work by the hour, and not $4,000 an hour.” Uh, shout out to our friends in big law. David, we have criticized the people calling these Kavanaugh stops because Kavanaugh was actually doing everyone a favor by actually explaining his vote, unlike the rest of the majority. It wasn’t a majority opinion, it was only a concurrence, and yet, you know, Justice Sotomayor dissents it in that case. Because he’s the only one who wrote, she’s the only one for him to sort of dissent against in that sense. But here we are many months later, she’s criticizing him publicly. Uh, how are you gonna grade this on a scale of, I don’t know, a- appropriate to inappropriate?
David French
I’m putting it pretty strongly on the inappropriate side. You know, look, I don’t have a problem with maybe discussing what you wrote in a dissent perhaps, you know, further explaining the words you wrote on a dissent. I don’t have a problem with that. I mean, I can see how … I- I appreciate the David Lat, uh, formulation of keep it on the page. I kind of look at ex- further explaining a dissent as in the spirit of keeping it on the page, which I generally agree with, but this gets a little personal feeling, uh, to me, Sarah. It … Maybe they know each other well enough to where she can make assumptions or, or make educated guesses about, you know, what his parents experienced and sort of their broader experience. I don’t know, but it was just, to me it’s not even a close call. It was over the line in its personal nature. You know, it’s one of those things that occurs that just kind of chips away at … You know, I keep thinking of my wife Nancy’s statement, exclamation with the Judge Van Dyke opinion, “Not the judges too.” Everything, everything that’s chipping us towards that not the judges too, or inching us towards not the judges too, uh, I don’t like. I don’t like it. So I, I felt it was pretty strongly on the inappropriate side of the ledger. What about you?
Sarah Isgur
I just don’t like when someone else makes an assumption, and she’s, she is sort of saying that she doesn’t know any of this for a fact. You know, she just says, “And probably doesn’t really know any person who works by the hour.” That’s the part I object to, but here’s the other thing I’ll say, David. When you’re speaking at public events, when you’re answering questions from the audience, sometimes you are going to say something that you regret saying. It doesn’t mean you don’t mean it, doesn’t mean that it’s not reflecting, you know, uh, uh … Sometimes you misspeak, don’t get me wrong. But sometimes you actually do say what you mean, but in hindsight you’re like, “You know what? I, that was the wrong venue. I didn’t need to say that out loud. This was about a coworker.” And I, I guess I, uh, sort of feel like maybe that’s what Justice Sotomayor’s feeling today. She didn’t mean to have this sort of attention on this. She certainly didn’t mean to focus on Justice Kavanaugh, but we don’t know that. This is another assumption that I’m making, because it is so out of character for the justices to criticize someone else in public. And again, in like personal terms. I’m willing to make, like, sort of the assumption that that wasn’t thought out ahead of time.
David French
I think all of us, every one of us who does the, you know, is out there in public, is asked a ton of questions, and you answer on, you know, while kind of on your feet, so to speak. Sarah, I can think of half a dozen times, say, in the last 12 months that I’ve left a venue with kind of a sinking feeling in my stomach, like I, I didn’t love the way I answered that, but also nobody’s reporting every word that I say, you know? [laughs] So, so I get the, I get the luxury of a mulligan or two. Now, that’s not to say that some mulligans that we say couldn’t go viral, but that would be weird. Everything that a Supreme Court justice says in public is, is imminently viral. It’s practically pre-viral. Um, so yeah, I c- I can easily imagine that she would want a mulligan on this one. But I guess my assessment is not, is Justice Sotomayor going rogue? It’s more, does she need a mulligan for this? Yeah, this is the kind of thing you’d u- you’d use a mulligan for.
Sarah Isgur
All right. Another thing from a previous episode. We talked about Stephen Colbert’s extensive coverage of SCOTUSblog in his interview with John Mulaney. First of all, some of you didn’t know who John Mulaney was. There’s lots of things on this podcast that I regret not explaining in full while we’re doing it. That ain’t one of them. At the point that I talk about someone being on Colbert, I think it’s up to you to either know who that is or assume that it’s someone pretty famous. Second, John Mulaney is a former SNL writer and famous stand-up comedian, yada, yada, yada. But David, we talked about Stephen Colbert sort of off the top of his head, like, “What’s your favorite oral argument?” And Mulaney, you know, flimflams around for a second, and then Colbert references this 1883 case, Santa Clara County, and we’re like, “What the what?” And we did get a lot of comments on this. Let me read you one of them. “If I had to guess, Colbert probably knew about Santa Clara County from Adam Winkler’s book, We the Corporations, a book that I’m sure would catch Colbert’s attention.” And David, I have gone down the rabbit hole on this, and [laughs] I’m pretty into it. Stephen Colbert, this is, like, his thing, which maybe I vaguely knew somewhere in the back of my head, but I didn’t remember it certainly at the time we were recording. He went so far as to try, unsuccessfully as it turned out, to get the question of corporate personhood on the South Carolina ballot, and also formed a super PAC which asked whether voters would be comfortable letting Mitt Romney date their daughter’s corporation. He’s super into corporate personhood. [laughs] So yes, this case in question, Santa Clara,
Sarah Isgur
well, did it establish corporate personhood? Because basically the case has nothing to do with corporate personhood, but the header-Says that the court establishes court, uh, corporate personhood under the 14th Amendment, meaning that the Equal Protection Clause of the 14th Amendment prevents states from treating corporations differently than people, like for tax purposes at this point is what we’re talking about. The header was not a holding of the court, but then there’s this whole history about how the justices did in fact talk at conference about this question. They took a preliminary vote on it even, and the guy who writes the headers was a former railroad executive and wanted this thing out there. And so he adds this header, maybe with the permission of the chief justice, who dies just a few months later, and, like, we’re off to the races with this header that’s nowhere found in the decision itself. And so we keep citing Santa Clara County for a holding that it never made. And David, I just wanted to spend a minute on this because we’ve never talked about corporate personhood on this podcast, even though we’ve talked a lot about, for instance, Citizens United, uh, which is premised on the idea that a corporation has First Amendment rights. Okay, so David, from just, like, a legal philosophy standpoint, well, let’s just do some, like, history of corporations, I suppose, uh, for a second. I’m going to read here from an NPR story I thought was really helpful and quick. “Corporations are a number of persons united in one body for a purpose. They date back to medieval times. You could think of the Catholic Church as probably the first entity that could buy and sell property in its own name. Later on, in the United States and elsewhere, the advantages of incorporation were essential to efficient and secure economic development. Unlike partnerships, the corporation continued to exist even if a partner died. There was no unanimity required to do something. Shareholders could not be sued individually, only the corporation as a whole, so investors only risked as much as they put into buying shares.” That, by the way, I think is the real reason why corporations become the de facto way to, to transact business in the world. “By the 1800s, the process of incorporating became relatively simple, but corporations aren’t mentioned anywhere in the Constitution, leaving courts to determine what rights corporations have and which corporations have them. After all, Coca-Cola is a corp- corporation, but so are the NAACP and the National Rifle Association, and so are small churches and local nonprofits.”
Sarah Isgur
So what do we do with all of that? Well, so we’ve got the Santa Clara case, so that’s, like, the 14th Amendment, which it actually didn’t hold, but the header says so, so fine. Corporations and railroads specifically want equal treatment under state tax laws. But what gets really fun is when we start doing the Bill of Rights with something that is not, you know, a breathing person. Okay, so in short, corporations don’t have a right against self-incrimination, but they do have a right against warrantless search and seizures because, like, obviously you don’t want the police to just be able to s- [laughs] storm down the doors of some company and take all their computers and their files, which they could certainly do if a corporation had no Fourth Amendment protections. Anyway, David, you fast-forward to a case like Citizens United, and we’re talking about the First Amendment, and the question is, do you only have free speech as an individual, or can you form one of these corporate entities,
Sarah Isgur
and can that entity speak because it’s made up of those individuals? Citizens United, by the way, was a nonprofit, a la NAACP and National Rifle Association or your church, though the Kennedy opinion declines to make any distinction between for-profit and nonprofit entities. And David, I guess I just was curious, like, what are your thoughts on corporate personhood? Doesn’t this seem a little weird that in order to have corporate personhood, we have to go through amendments and, like, pick and choose which things make sense and which things don’t? Like, why shouldn’t a corporation, if there’s a ban on warrantless search and seizure, have a right against self-incrimination? That feels like a bit of a weird line to me.
David French
It does feel like a interesting line. I guess since corporate liability, even corp- cor- corporate, a finding of corporate criminality doesn’t actually deprive a human being of liberty, so that would diminish the, the actual underlying in, you know, Fifth Amendment interest there. So yeah, you know, this is something that is very interesting to people when they first start law school, often, the difference between a person, if you read a statute and it says person, that’s generally gonna include a corporation. For it to only be human beings with flesh and blood, it ten- tends to say natural person. So this is something that’s been embedded for a very long time,
David French
and I honestly, the more I’ve thought, thought it through,
David French
the more I’ve wondered what the alternatives are. In other words, I, I definitely understand the sort of notion where you rebel when you hear, like, that famous Mitt Romney statement, which is the reference, “Corporations are people too, my friend.” Well, you, [laughs] you can’t date your daughter’s corporation, you know? That, that, that, that there’s some obvious… There’s ways obviously in which, you know, that’s a, feels like an absurd statement, but at the same time, is a corporation an entity that exercises rights? I think if you’re talking about corporate personhood, I think it’s unfortunately unfortunate that we landed on personhood as the term, because we’re really talking about
David French
an entity that exercises rights, and person is sort of the, the box that we jam it into.But the idea that a, a corporation is a preexisting, currently existing, future existing entity that bears its own interests and rights, I think just is a matter of common sense, and that we would want to protect those entities in the exercise of rights, because in many ways, especially in a modern economy, if, say, for example, First Amendment rights were only and entirely personal, your power as an individual would actually be far more diminished than you realize. Because one of the ways in which people magnify their voices and the way they would– which they enhance their voices in the public square is by joining together with other people to do it. And if you’re gonna join together with other people to do that, well, then it makes sense to allow them to have the liability protections of the corporate form and the perpetual existence of the corporate form if you’re wanting to advance a cause or an idea beyond your lifespan and your life cycle of participation in politics. I mean, all of this just, it makes sense, but it also, I think, at some level, there’s, like, this invisible line where people will say, “Yeah, you know,
David French
the New York Times is a for-profit company. It feels weird that the New York Times would not have free speech rights ’cause its entire purpose is to speak.” And, and then you get to, like, Microsoft, and something in your, in your brain clicks over differently. Like, it’s just like, “Wait, I got you with the New York Times, but Microsoft? Really?” But then you, you s- kind of slow down and you think about it and you say, “Well, it’s a, it’s a, it’s an entity that has its own interests, that has to… that for the, for it to prosper, for it to be something that is going to be a, a vibrant concern going forward, it needs to be, of course, through its people thinking institutionally beyond the lifespan or tenure of any given executive or person.” And so from my standpoint, it’s, it really is kind of a matter of common sense that becomes more commonsensical the more you think about it.
Sarah Isgur
I also have to say, Stephen Colbert, I think, is brilliantly smart, if we’re just, like, talking IQ tests, my God. But it is a little bit weird for someone who works for a large corporation [chuckles] to come out swinging against corporate personhood, because I’m not sure he fully appreciates, to your point, David, what the alternative is. You know me, I’m all about the trade-offs. I agree, this whole thing’s pretty weird. But the question isn’t whether this is weird and whether I like it. The question is, what could we replace it with? And the actual first corporate personhood Supreme Court decision is Trustees of Dartmouth College v- versus Woodward in 1819, in which New Hampshire tries to convert Dartmouth into a public university. [chuckles] And Dartmouth is like, “No, no, we have a private corporate charter.” And the Supreme Court holds that that is a contract protected by the US Constitution’s contract clause, even though Dartmouth is not a person who signed the contract, but rather a corporation. And so, like, [chuckles]
Sarah Isgur
literally a state wouldn’t have to respect any contracts signed by the corporation that Stephen Colbert works for. The corporation would have no First Amendment rights. The police could come in at any time to Stephen Colbert’s office there, because he, of course, uh, does not have an interest. That’s the corporation’s office.
Sarah Isgur
Like, really? That doesn’t… I don’t like that more than I don’t like this.
David French
I’ve been fighting over this for decades. I mean, for decades. This is a p- kind of a perennial fight, and a lot of it really does sort of boil down to, well, we don’t like what the corporations argue. And a lot of this is, okay, well, how do I find… And, and I’m not saying this about Colbert, but I’ve been in these arguments a ton, and a lot of it kind of boils down to this. I don’t like what they’re doing and saying, how can I, how can I add a but to the I love free speech but that diminishes my political opponent’s ability to weigh in on the public square? And, and that’s a lot of what’s happening here in, I think, in just sort of in the larger public debate is the good corporations were gonna find a way. We’re gonna find a way that the NAACP… We’re gonna find a way. We’re gonna find the carve-outs for The New York Times, et cetera. But the bad corporations, like a Microsoft or a ChatGPT or whatever, obviously there’s, you know, that’s sort of obviously different. That’s just different. But then when you start to parse it, what is the way? What is the measure and the metric that says that, say, The New York Times has a set of free speech rights and, you know, a ChatGPT or a Google or a Microsoft doesn’t?
David French
Do you then parse it and say, well, when The New York Times is speaking in– as a news gatherer, it has rights, but not when it’s speaking as a corporation? But what is the entity that has the rights and how, uh… When you just really start to think, think it through, and then you think it through, and you go back and reread Citizens United, Citizens United is not a radical opinion in any way, shape, or form. I mean, there, there’s just nothing radical about it.
Sarah Isgur
All right, well, Citizens United, the case about whether you’re allowed to criticize a candidate before an election if Congress says so
Sarah Isgur
by putting out anything from a corporation, movie, pamphlet, book. I mean, Penguin Random House would not… could, in theory, Congress could prevent Penguin Random House from publishing a book, the last page of which says, “So don’t vote for Republicans,” without Citizens United. It makes no sense to me why people hate that decision so much. When we get back, I’ve got a bee in my bonnet. It has been stinging me for some time now, and you’re all gonna hear about it. It’s Sarah’s Circuit Court Festivus.When we return. All right, David, I have a bee in my bonnet about something, and, like, the bee continues to sting me, so I am going to tell you all about it. Uh, we have two new circuit nominations out of the administration. Former Ohio Solicitor General Benjamin Flowers was nominated to the Sixth Circuit. Benjamin Flowers, by the way, was the solicitor general for the vaccine mandate case, for those who remember that. He, um, tested positive for COVID and did not argue in person. Uh, husband of the pod was the other, um, advocate on that side and did argue in person. I’ve met Benjamin Flowers and his wife. They are lovely. Congratulations to the Flowers family. Matthew Schwartz is the other nominee to the Second Circuit. I don’t know Matthew. I’m sure you’re great, too. Here’s the point, though, David. [laughs] Both clerked for the Supreme Court. Flowers clerked for Scalia, and Schwartz clerked for Alito, and I just had this visceral reaction when I saw this. Again, uh, they are both eminently qualified, all of that, right? This has nothing to do, uh, with my deeply held affection for Benjamin Flowers and my lack of knowledge of Matthew Schwartz, who I’m sure, again, is absolutely wonderful. Sorry. Sorry, Matthew. You realize what we’re doing here, right? Like, circuit judges must have clerked for the Supreme Court, and justices must be circuit judges first.
Sarah Isgur
And in order to do any of this, you have to have clerked for multiple judges. And to do that, you almost certainly have an Ivy League or equivalent law degree, probably an Ivy League or equivalent undergrad degree. You have to have the sort of background that allows you to spend multiple years clerking, uh, financially speaking, versus going to a law firm, and you have to have sort of the wherewithal to know that that’s how you get onto this conveyor belt in the first place. And David, I just feel like we are narrowing this so, so, so much. As I’ve pointed out, three of the current justices replaced the justices that they clerked for. The chief replaced the chief. Kavanaugh replaced his former boss, Kennedy. Jackson replaced her former boss, Biden. When we talk about Fifth Circuit Judge Andy Oldham being on the shortlist to replace Alito, oh, guess who he clerked for? When we talk about Judge Jim Ho or Naomi Rao being on the shortlist to replace Justice Clarence Thomas, guess who they clerked for? David, at some point, we’re gonna know who… Like, it’s gonna be down to three people 10 years before that justice ever retires because of the pedigree one has to have and how few people we’re even allowing to get into the pipeline for that pedigree, and especially the multiple clerkships thing. And I guess what I’m particularly bee-in-bonneted about is that the Supreme Court justices are the ones who set the incentives for this system for the multiple clerkships. If they simply said, “I don’t take clerks that have clerked for more than one circuit judge.” By the way, I don’t actually have a huge problem with the like, “I wanted to clerk for a district judge and a circuit judge.” Fair enough. Those are very different experiences. But I’m seeing resumes with two, sometimes three circuit judges. Sometimes they’re on the same circuit, David. And there’s only a set number of circuit judges, right? So every time someone has a multiple circuit clerkship resume, that means another person didn’t get to clerk at all. That’s one fewer ambassadors to the world from the judiciary, uh, and I don’t know why the Supreme Court is not just allowing it, but encouraging it.
David French
Okay, so there’s several, several strands here
David French
that I am in violent agreement with and still feel queasy about from a very instrumentalist sta-standpoint. Like, okay, let me tell you why I feel queasy about agreeing with you right now. Because this handing of the baton from classical liberal to classical liberal [laughs] is very much good at this moment. If you’re talking about President Trump, you need to be looking at more people who are outside the traditional pipeline. I’m sitting there going, “No, President Trump, no, no. Do not be doing that.” The pipeline is good right now. But
David French
that’s very shortsighted. You’re absolutely correct over the longer t-term, I think, and what you’re describing here is something that is almost like a transformation of the judiciary into, like, the House of Lords. A, like, there’s some hereditary element, except it’s not. It’s hereditary within the clerk family, not the biological family, [laughs] that, that once you’re a, a clerk, you’re a member of the peerage, and you have that, that potential. Now, with this being the reality, I mean, think of the pressure this is putting on, like, judicial-minded one else.
David French
Y-you know, you’re 20-something, and think of the weight that those grades have to put you onto this tread… You know, well, it’s not a treadmill, to put you onto this path, the yellow brick road to, you know, a potential judicial appoint- that how much of that is settled in your mid, late 20s. Wow. [laughs] That’s, that’s a lot. That’s a lot. And
David French
when you think of it like that, because those first-year grades are so, so, so important to knowing if you’re gonna get on this path, when you think about it, think about how much even more that narrows the pool because not everybody walks into law school and sort of bursts in like the Kool-Aid Man from the commercials, and they’re like, [laughs] you know, “Here I am.” No, it takes them a minute to get their feet under them, and sometimes it takes them being a lawyer to really grow into their, you know, grow into their, their role as a lawyer and potentially as a judge. So I, I’m in violent agreement that we have a path that is very narrowThat is narrowing even further into these clerk families. It’s sort of a clerk family House of Lords. And at the same time, this other voice inside my head is saying, “Yeah, we can start reforming all of that in somewhere around 2029.” But you’re right, you’re right. That’s, that’s the bad side of me, Sarah, saying that.
Sarah Isgur
I know I’ve said this before. I will read from Last Branch Standing. “We aren’t just picking thoughtful, smart, well-connected judges to join the Supreme Court as we once did. Remember what happened to Harriet Miers, one of the most experienced, trailblazing litigators in the country? Flatly rejected by her own side. Why? We’re not looking for accomplished lawyers anymore. We’re now picking from a highly select group of people who have trained for this job. Their resumes all look remarkably similar these days, regardless of their ideology, don’t you think? Eight went to Ivy League law schools. Six clerked on the Supreme Court. Eight were federal circuit judges. None have held elected office. Justice Alito is the only justice to have served in the US military. Justice Kavanaugh and Gorsuch could be twins based on their resumes, [laughs] including going to the same high school, clerking for the court the same term for the same justice, years, similar number of years on the circuit court, appointed by the same president to the Supreme Court. Compare this court to the one that decided Brown versus Board of Education in 1954. Five had received degrees from public law schools, and one didn’t even have a law degree. None had clerked. Only one had been a lower court judge, only one, David, one out of nine. On the other hand, eight had served in the military. Five, five had held elected office, one governor, three senators, and a congressman. Two had served as attorney general. [laughs] In short, it was a bunch of guys who would never make it past the first round of today’s judicial vetting process.” [sighs] I think we’re losing something, David. I think, I think that’s important.
David French
I absolutely, absolutely agree with you. Even if that, the system we right- we have right now is operating as a kinda nice firewall against …
David French
I mean, by narrowing those choices, you’re narrowing those choices [laughs] away from some pretty toxic characters, but it is not … And if you zoom out even a little bit, it’s just not, it’s not the way to run the railroad.
Sarah Isgur
All right, David, it’s time for our circuit court extravaganza, and I wanna start with the Great Seal Wars. And I’ve been rewatching Arrested Development, and for some reason, that strikes me as really funny because of all the seal puns in Arrested Development. If anyone remembers, Buster’s hand is bitten off by a seal. [laughs] And then Lucille becomes a joke because his mother’s name is Lucille, and his girlfriend’s name is also Lucille, and it sounds like loose seal. Anyway, David,
Sarah Isgur
the Seal Wars are upon us. So I have a source that tells me that the Fifth Circuit is considering revisiting its seal. And I thought, “Okay, sure. Every now and then you need to, like, give it a, a, you know, freshening up, if you will.” But no, that’s actually not why the Fifth Circuit [laughs] is potentially looking to redo its seal. It’s because if you go on the internet, there are at least six seals that you can find [laughs] on the internet that are all
Sarah Isgur
really different, and frankly, some of them are totally bizarre. Uh, I will note that the eagle in some of the seals has black nail polish,
Sarah Isgur
like really stark [laughs] black nail polish. In some, the clouds are white. In others, the clouds are red, like the circle around the stars is red. And so everything on the seal, David, is supposed to signify something, right? So there’s 13 stars surrounded by, quote, “A glory breaking through a cloud, indicating a new nation taking its place among sovereign powers.” That’s the Great Seal of the United States, on which the various circuit seals are based. But the Fifth Circuit has evolved into a blood red glory, [laughs] which instead of a cloud, like, if the clouds are all red, and you’re breaking through, that sounds like something else from the Bible, not, uh, a new nation taking its, its place among sovereign powers. Um, and then so David, I am now looking at all the seals from all the circuits [laughs] and how many there are. The First Circuit has at least two seals that are totally wildly different from one another. One is, like, very, uh, gray, and then the green branch in the eagle’s talon really sticks out because the rest is, you know, very gray. The eagle’s wings are gray. The background is gray, all of that. And their other one is, like, blue ombre, [laughs] like dark br- blue to light blue with a tan circle around it. [laughs] I don’t know what’s going on with that one. The United States Court’s Ninth Circuit Judicial Circuit, first of all, that’s just weird that those are the words on it. It’s just, like, a woman out on the prairie. There’s no eagle. There’s no scales of justice. By the way, that First Circuit seal, the one that I told you about, the ombre blue one, there’s also, like, just, uh, scales of justice that are, like, superimposed that maybe almost look off-center on that one. Like, they definitely don’t belong there. It’s just, like, shoved in. The Court of Appeals for the Tenth Circuit one I’m looking at, it’s only orange and white, but it’s, like, outline color, so you can’t even really see or read that one. The Eighth Circuit looks like it was designed by the Oregon Trail graphic designers, and there’s two. They both look like Oregon TrailOh, and then there’s this other one that, uh, is that even a seal, 8th Circuit? Okay, we will try to put these all in the show notes, uh, but the point is, you circuits have a seal problem, except for the 6th Circuit. Only can find one for you. It’s quite tastefully done. It looks like a seal. Congratulations, 6th Circuit. I will credit your chief judge, Jeff Sutton, for that entirely. Um, I’m sure nobody else had anything to do with it.
David French
So I, I can’t say that I’m as interested in the seals as you are, um, but, [laughs] but it does raise a question. With the judiciary as an independent branch of government, there is a question as to how much can Congress regulate the judiciary? Now, we know, you know, for example, that it can restrict jurisdiction of the courts, et cetera. It can define how many jus- judges, but it can’t remove them absent impeachment, et cetera. There are limits to what Congress can do. Could Congress pass and enforce, I mean, it could pass anything it wants, but enforce a uniform circuit court seal act
David French
that requires each one of them to adopt a single, a- adopt and to maintain a single seal according s- to specific aesthetic guidelines? Must include Lady Justice, must include eagle, et cetera. What do you think, Sarah?
Sarah Isgur
Yes, I think they could, actually. It has nothing to do with the administration of justice itself or the resolution of any cases. It has to do with the administration of the courts, and in that sense, it looks much more like funding the courts, in my opinion. So, like, if we are giving you money to print anything with this seal on it, the seal cannot have
Sarah Isgur
red clouds or a random scales of justice or Oregon Trail graphics. That feels like something, um, like an … That is not an unconstitutional condition on the funding [laughs].
David French
Yeah, I, I think I’m with you. I think I’m with you, but a- as you were talking, I was thinking, okay, I mean, I’m moving to the remedies question here ’cause it … We- we’ve got seal chaos. I mean, I don’t think there’s any, any question-
David French
… about that.
Sarah Isgur
It’s seal chaos.
David French
It’s, it’s, it’s just bedlam out there, and so who can introduce some sanity into all of this bedlam, and that, that’s what, why my mind started thinking along those lines.
Sarah Isgur
Well, congratulations to the 5th Circuit in advance. We look forward to seeing the final seal, uh, and what fonts you choose so that we can then critique them from our cheap seats here in the stands. And David, we’re gonna take a break here. When we get back, we’re gonna talk about bathtub gin, thumbs up, thumbs down. For 150 years, you haven’t been able to do it, but starting now in the 5th Circuit, I don’t know, maybe you can. David, our first case is a 5th Circuit case. It is written, of course, by my former judge, Judge Edith Holland Jones, but this was making the rounds on the internet, and I’ll just read you the intro. “For more than 150 years, Congress has prohibited home distilleries as an adjunct to the law establishing a federal excise tax on distilled spirits. In December 2023, a nonprofit organization and several of its members challenged the law as unconstitutional. The district court agreed with them, and we concur that, while venerable, the statute violates the Constitution’s taxation and necessary and proper clauses.” So David, get that still going. Also, by the way, this is the most Judge Jones things ever. “We concur that,” comma, “while venerable,” comma, as in, “I do not approve of distilling bathtub gin.”
David French
[laughs]
Sarah Isgur
“Nevertheless.” [laughs]
David French
Are you sure? Are you sure? I mean, you know her, you know her better than I do.
Sarah Isgur
She’s not a teetotaler, but yeah, she’s-
David French
[laughs]
Sarah Isgur
… she’s, she’s not doing any, uh, bootlegging these days. So David, this is from your, like, home, you know … This is your home people, so to speak. This is a bourbon guy who, uh, he’s a connoisseur. He’s a certified bourbon steward, certified because he mastered the art of tasting spirits and learned the science behind distilling and aging alcoholic spirits. He also is legally approved to install stills in professional places, et cetera. Like, this guy knows what he’s doing, and he wants to make bourbon at home for his brothers and friends. Sorry, his brother. He has a brother. Anyway, love the facts of this case. David, if you have any insights on distilling, let us know, otherwise, dying to hear your take on the taxing power and Necessary and Proper Clause as applied to something we haven’t even thought about for 150 years. It’s not a conversation at my cocktail parties about the tyranny of the federal government preventing, you know, home brew.
David French
Yeah, so I mean, even though this is a 5th Circuit case, this is also Kentucky’s favorite case right now, especially Eastern Kentucky. A lot of bootleggers breathing a huge sigh of relief, begging the 6th Circuit to take this up so it encompasses them. No, the … This is fascinating because if they’re talking about in-home brewing, your first thought would be
David French
Interstate Commerce Clause. You know, if you’re going to be challenging an in-home brewing prohibition, I mean, bathtub gin is not interstate commerce, right? Unless, of course, you’re putting it in the back of the Pontiac and you’re heading across town with the, you know, with the revenue agents in hot pursuit, and you’re crossing your state lines to sell your bathtub gin. But no, is it … You would think, sort of as a common sense matter,
David French
that bathtub gin, where, where’s the regulatory authority here? It can’t be interstate commerce, right? But then that brings us to, you know,
David French
our f- favorite Wickard v. Filburn, the interstate commerce cro- clause involving growing your own wheat, which was backyard wheat instead of bathroom gin.
Sarah Isgur
Yes, it was the bathtub gin of the field. [laughs]
David French
Exactly, the bathtub gin of the field. And backyard wheat was fell to- held to impact interstate commerce enough to be brought into better regulation. And so obviously the Fifth Circuit cannot overrule the Supreme Court on if, you know, backyard wheat is close enough to bathroom gin. So it’s can’t overrule it, so how are they gonna strike this down? And the reasoning here is really interesting, and I just
David French
don’t know that it’s gonna hold up, but I also don’t know that it’s not, in the sense that, you know, I’m not sure of the circuit court lay of the land here, how many conflicts we have, if we have any, uh, if this would be the kind of case that would be, you know, the Supreme Court isn’t an error correction court, but would they make an exception in this, in this basis? But I found the reasoning really interesting ’cause she basically is saying, “Okay, this isn’t a legitimate use of taxing, the taxing power because it’s not actually raising revenue.” So what they essentially did is they wanted to tax spirits, but it’s very difficult to tax spirits if it’s bathroom spirits. So rather than
David French
figure out how to tax bathroom spirits, we’re just gonna ban bathroom spirits so that all of the spirits are coming from a distillery, and we know how to tax the distillery. So in essence, that it’s a use of the taxing power as a justification for a, a criminal prohibition. And then Jorda- she waxes eloquent about sort of the Necessary and Proper Clause, that that’s not gonna then provide an independent additional justification. And I don’t know, Sarah, as much as I am in sympathy with the outcome for my Kentucky brethren, it struck me as very policy-minded as a- an opinion. So I don’t know, uh, you know, I know this is, this… We, we were just talking about Clark family.
David French
This is the, this is the queen of your Clark family here.
Sarah Isgur
The queen bee, literally. Uh, we all just, we all live to serve. Okay, let’s break these down, ’cause you have the Commerce Clause, the taxing power, and the Necessary and Proper Clause. So the Commerce Clause question is interesting, David, because n- unlike Wickard, Wickard was about a limitation on how much wheat you could grow,
Sarah Isgur
and Wickard was like, “Yeah, but this doesn’t count because I’m just using it for personal consumption.” And they were like, “No, no, it counts because what we’re trying to do is regulate the amount of wheat grown across the country, and if you’re growing wheat, even if it’s for your personal use, you’re not buying wheat from the market, um, and it affects the amount of wheat consumed by the country as a whole.” I think you and I are anti-Wickard generally, but that’s not a crazy notion either. Like, of course it affects the amount of wheat bought. If you’re growing your own wheat, you’re not buying wheat. That’s just true. Whether that’s interstate commerce is a different thing, but, like-
David French
Yeah. Yeah. We’re, we’re both anti-Wickard, like, [laughs] it-
David French
But the Fifth Circuit just can’t overturn it.
Sarah Isgur
Yeah, but fair enough. The difference here is that they’re not regulating the amount of liquor or banning bourbon, and then someone saying, like, “Well, but if I make it myself, Congress can’t criminalize, for instance, you know, making bourbon or something a la, you know, Prohibition era.” So this is why… So the government abandons their Commerce Clause argument by the time you get to the Fifth Circuit. They argued at the district court. The district court was like, “Nah, dog,” and they were like, “Never mind. We’ll just stick with taxing and necessary and proper.” So while it gets mentioned in this decision, short shrift because it’s not actually a viable argument anymore. It’s forfeit. Okay, taxing power. I think I totally agree that Congress cannot rely on a taxing power to ban something because it would be more difficult to tax.
Sarah Isgur
Really? We’re in the year 2026, my friends. You tax all sorts of things that are difficult to find, and some of them probably go without being taxed. But it doesn’t allow you to ban them because it would be hard to tax them. That seems particularly weird. So for instance, uh, if someone is buying a still or the things necessary to make a still, maybe you tax those, or maybe that would give you a clue that that person might be distilling things. I don’t know, um, but I, I thought that was right. Uh, writing on the Necessary and Proper Clause certainly limits the reach of the Necessary and Proper Clause. But with these facts, which again, the argument is, well, Congress is trying to tax spirits, and this is necessary to aid the taxing of spirits. So it still kind of comes back to that taxing power, David. And in that sense, I don’t think you can rely on the Necessary and Proper Clause to beef up your taxing power. I think the Necessary and Proper Clause should be necessary and proper to, uh, you know, carry out some obvious constitutional function, not that it s- turbocharges the taxing power. The taxing power needs to live and die on its own power. Does that make sense? Am I explaining this well?
David French
Yeah, yeah. The thing that’s interesting to me is Congress has the taxing power. It’s broadly granted in the Constitution, and in this case seems to be broadly granted, but I won’t say stupidly applied because it may be 50 years ago it’s harder to figure out how to ta- you know, tax bathroom gin. It’s easier to figure it out now. So maybe applied in an antiquated way, needing to be updated. It’s just hard for me to see from the text of the Constitution, and then the necessary and proper discussion, it’s hard for me on the taxing power to see how they’ve violated the taxing power by doing it in a nonsensical way. It feels like when you’re talking about an explicit grant of power, you, I mean, for it not to be a sort of a judicial override on, on congressional policymaking, what’s sort of the standard of review here? It’s not 14th Amendment. We’re not in the rational basis, intermediate scrutiny, et cetera, but-Isn’t there just a giant amount of deference here if this is a core enumerated power of Congress, uh, would be one of my questions, which is not to pass judgment on its propriety, but just, I mean, this is core. This is Article 1 here. Uh, in this, don’t we just kind of stay away? And then the necessary and proper argument, again, you know, as I was reading through it,
David French
I found myself nodding along, like I agree with the words on the page as a matter of sort of ought and should, but not necessarily as a matter of can and must, if, if that makes sense.
Sarah Isgur
It would be interesting to see whether the Supreme Court takes this. There’s no circuit split, so one thing they may do is just let it percolate and see if anyone else wants to bring this lawsuit in a different circuit that could come out differently. Um, but on the other hand, you have an act of Congress that has stood for 150 years and a circuit court, you know, wading into some, as you are noting, David, some pretty, like, heavy core congressional powers, which may rise to the level all by itself. But I just gotta say, I don’t think you can ban something because it’s difficult to tax. Sorry, that… No.
David French
I just have this image in my brain of driving through, like, the hollers outside of, like, Hazard, Kentucky, and outside a house it says, “Gone to El Paso.” Got a bunch of people relocating from Eastern Kentucky to West Texas right now.
Sarah Isgur
Well, you know, we have those signs all over Texas. You can get them on mugs, anywhere, at Buc-ee’s, uh, and it’s a quote from Davy Crockett, and it says, “You may all go to hell. I will go to Texas.” Supposedly, he, he painted that on his door when he left. Uh, David, we have many more interesting circuit cases, including pronouns from the Eighth Circuit in schools coming out. It’s a, it’s the opposite law of the Ninth Circuit. You’re not allowed to use pronouns. You must tell parents if their child is transitioning. And so why is this okay if the Ninth Circuit isn’t? We’ve got the library books. They’re back in the Eighth Circuit as well. The Fourth Circuit on religious exemptions for vaccine mandates. And David, I want to end this podcast, though, reading just a couple entries from the Institute for Justice’s Short Circuit newsletter, which for some reason this week just extra slayed me. Okay, nobody on staff here at Short Circuit is an employment lawyer, but we suspect that having your human resources manager make a PowerPoint presentation indicating that, quote, “Ideal sales candidates would be American and Caucasian preferred ethnicity,” is what experts in the field would call pretty bad. Anyway, this 11th Circuit case, which throws in some misconduct by the plaintiff’s trial counsel, as well as, like, half a dozen facts just as bad as the PowerPoint thing, turns out how you’d probably expect. Uh, David, I went and read this case, and not lying, the facts are just so egregious. They just kept writing down, “Only white people need apply,” and their justification was they wanted to reach a white customer market, so they wanted white employees for that. When a Black employee, potential employee applies, when they do the background check, they note that he has a criminal record. And so they say they revoke the offer based on the criminal record, and then they hire a white guy with four or something arrests, uh, and a much more extensive criminal record. And the question is, um, yeah, the question is employment discrimination in the 11th Circuit. You c- this isn’t even gnaw dog. This is like jaw on the floor, we can’t believe this is the case that we’re doing. There is nothing legally interesting about this case, David, except that it’s the year of our Lord 2026. This is another one from [chuckles]
Sarah Isgur
uh, Short Circuit, and this case actually is worth a moment of our time. This is a Third Circuit case, uh, two to one. There was a dissenting judge.
Sarah Isgur
It’s only an events contract if it’s regulated in the CFTC region of DC. Otherwise, it’s just sparkling sports gambling.
David French
[laughs]
David French
That is fantastic.
Sarah Isgur
Okay, so let me explain the case, but I love that description so much, and when we get to the end of explaining this case, I think you will all agree that that’s an incredible description because actually that is the holding of the case. Okay, so the Third Circuit held that, uh, the district court properly entered a preliminary injunction barring New Jersey from enforcing its gambling laws against Calci’s sports event contracts because Calci showed a reasonable likelihood of success on its claim that the Commodity Exchange Act preempts state laws in this setting. Calci’s contracts are swaps traded on a CFTC licensed designated contract market, and the act gives the CFTC exclusive jurisdiction over such trading, so New Jersey cannot directly interfere with these swaps. And David, if you’re curious about the difference between a sports event swap and a sports bet, to you, the consumer, they are identical. You win or lose money based on the outcome of a, you know, game. But under the CFTC’s, uh, Commodity Exchange Act, an event contract is a type of derivative contract whose payoff depends on a specified event or occurrenceAnd the third circuit was like, “Yep, that’s what Kalshi is doing.” A sports bet, by contrast, is a wager placed with a sportsbook under state gambling law. You are betting against the house or another gambling counterparty under a state licensing regime. A sports event swap is instead a feder- group- federally regulated derivatives contract listed on the CFTC regulated exchange with trading, clearing, and exchange rules governed by the Commodity Exchange Act rather than ordinary state sportsbook rules. Uh, so yeah, David, they’re the same thing, and that’s why the description becomes so amazing. [laughs] And let me just read it to you again because I love it so much. It’s only an events contract if it’s regulated in the CFTC region of DC, otherwise it’s just sparkling sports gambling. [laughs] Because really it’s just that the CF- like Kalshi got the stamp of approval from the CFTC and now none of these states can touch it. That’s the end result of this case. And David, this one’s a big deal. This one will go to the Supreme Court in some way, shape, or form because we are talking now about pretty big swaths of the economy, of state economies, and a core state police power to regulate sports betting.
David French
Yeah, it’s a very interesting case actually, and I agree with you, this is likely to go to the Supreme Court, and I, I just can’t get over that description. That’s fantastic. But,
David French
um, we, we need… W- we have talked about AI. We need to talk more about it ’cause we keep getting really good, thoughtful questions from, from listeners about AI. We need to talk about prediction markets. This is something that needs to be on our radar screen as well because,
David French
you know, there’s increasing momentum that I’m very happy about to regulate prediction markets because not only are they just a absolute cesspool of insider corruption, they’re an emerging national security risk that I can explain further next time on Advisory Opinions.
Sarah Isgur
So you know what, David? We’ll leave it there. We’ll touch on all of this, those other circuit opinions, questions about AI and Chiles that you guys sent us, and in the meantime,
Sarah Isgur
Last Branch Standing is actually out. You can go get it at a bookstore. Please buy my book. [laughs]
David French
And congratulations, Sarah, on it’s out.
Sarah Isgur
The baby is out in the world. Yeah. All right. See y’all in the next episode. [outro music]
