Alaska v. a Charter Plane and a Six-Pack of Beer | Advisory Opinions

Sarah and David try to steelman Alaska’s forfeiture of a bush pilot’s $95,000 floatplane over a passenger’s six-pack of beer in an excessive fines case the Supreme Court just granted, before turning to a divided U.S. Court of Appeals for the 7th Circuit en banc ruling that lets a university off the hook for readmitting a star athlete after his sexual-assault acquittal.

Harvard Law professor Richard Re joins to make the case that Chief Justice John Roberts has spent the last few years moderating a court that’s moved right without him, then walks the hosts through Alexander Bickel’s “passive virtues” and what a court-packing threat from the left might do to a chief still playing a long institutional game.

Agenda

[1:28] Alaskan charter plane seized over a six-pack
[18:49] Title IX and due process
[34:23] Is Roberts moderating from the front?
[42:34] Alexander Bickel and “passive virtues”
[53:00] The left and court-packing

Episode Takeaways

A six-pack, steelmanned: The Supreme Court granted cert on whether Alaska’s forfeiture of bush pilot Ken Jouppi’s $95,000 floatplane – seized after a jury convicted him of knowingly flying a six-pack of beer into a “dry” village, a misdemeanor capped at a year in prison and a $10,000 fine – is grossly disproportionate under the Eighth Amendment’s excessive fines clause. Sarah tries to make the state’s case (he’d been investigated before and these villages ban alcohol precisely because they lack the police force other towns rely on), but neither she nor David is fully convinced the seizure survives proportionality review, and Sarah pegs the odds of reversal at roughly 70 percent given the cert grant itself.
Deliberate indifference, not disappointment: A divided 7th Circuit, sitting en banc 8-4, held that the University of Wisconsin owed sexual-assault survivor Isabelle Arana nothing beyond the no-contact order it already gave her when it readmitted the acquitted student – because Title IX liability requires showing the school was deliberately indifferent, not merely that a survivor wanted more done.
The chief moderates from the front: Re argues Roberts has moved through three postures since 2018 – the swing vote after Kennedy’s retirement, the dissenting moderate once Justice Amy Coney Barrett gave the right five votes, and now a chief who joins and often assigns himself the majority to control it from the inside, including the “pea soupy” ambiguity Re says was deliberately built into the presidential-immunity opinion in Trump v. United States. His grade for the chief’s tenure so far: an A-minus.
Impassivity comes in different flavors: Drawing on Bickel’s “passive virtues,” Re distinguishes the Warren Court’s institutionally unified delay on certain topics from the Kennedy-era uncertainty, and from today’s Court in which it may be more impassive virtues on display.
Court-packing as the next threat: Sarah, David, and Re close on whether a justice could time a retirement to forestall court-packing if the political tides turn in 2029. Re floats a public, party-blind retirement pledge as the least partisan-seeming option; Sarah counters that any known retirement date just gives colleagues a new incentive to hold cases until the seat turns over.

Show Notes

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