Sarah returns showered, somewhat unpacked, and with an epiphany – creating maybe the “weirdest” Advisory Opinions ever recorded. Specifically, Sarah (together with ChatGPT) drafted a one-act play on District of Columbia v. Heller. David assumes the role of Justice John Paul Stevens. Sarah casts herself as Justice Stephen Breyer (she loves his voice too much to pass it up). And standing in for the majority’s author: Christopher Scalia of the American Enterprise Institute, playing his father, complete with a pipe. After the curtain falls, the three break down what ChatGPT got right in the first draft, what they “edited the heck out of,” and whether the Stevens position could have worked as originalist doctrine or just as an effective rebuttal. The full transcript is linked here for any high school teachers who want it.
Agenda
- [1:15] A listener question on Heller, and Sarah’s answer to it
- [4:06] Casting Justice Scalia
- [6:07] One act, three justices
- [34:05] What AI got right and wrong
- [44:29] A handgun or an M4?
- [47:00] Justice Breyer, fully vindicated
- [59:27] The next case we should stage
- [1:02:27] Shul is Yiddish and Friends of the Earth is SCOTUS precedent
Episode Takeaways
- The play itself: Heller: A One-Act Play for Three Justices opens with Dick Heller, a licensed special police officer barred by DC law from keeping a handgun in his home and moves straight into the fight over the prefatory clause of the Second Amendment. Scalia’s view is that the clause announces a purpose without limiting the operative right. Stevens argues the framers named exactly one purpose, which has to mean something.
- Breyer’s Massachusetts problem: Breyer enters the conversation, arguing that public-safety regulation of firearms is not a modern invention. Boston, Philadelphia, and New York all restricted the firing of guns within city limits. Massachusetts required powder to be stored on an upper floor for fire safety. If the concern today is crime and not fire, why isn’t a trigger-lock rule the modern equivalent of the powder-upstairs requirement?
- Scalia versus balancing: Breyer’s position is that constitutional rights are routinely regulated, so the question is proportionality. Scalia’s is that any test asking whether an enumerated right is worth its social cost would make every individual right a suggestion. Breyer asks why Scalia’s test still allows legislatures to ban felons from possessing guns and sensitive place laws.
- What AI got right, and what Chris cut: Chris says the model captured the “nuts and bolts” of his father’s argument but missed the nuance on precedent and came up with analogies his father never tried out. Sarah’s own edits focused on another issue – Breyer’s “writing voice” and “speaking voice” are far apart, so she swapped opinion language for oral argument language to make him sound like himself.
- Promise and peril of the chatbot: David’s read is that this exercise is a near-perfect illustration of where AI currently sits. No team of associates could have produced this draft overnight, but while a first read looks good, a knowledgeable read creates a nagging feeling of “not quite right.” Sarah’s more optimistic framing is to think of it as a high school assignment, where there are no associates available and staging ten-minute versions of major cases is a genuinely good way to make students steelman the losing side.
- Was Stevens right? David, having given the Stevens position all his acting chops, admits he can’t make it work as doctrine. If the individual right is tethered to militia service, what does that mean now – that an M4 with burst-fire capacity is protected while a handgun isn’t? He thinks Stevens’ single best point is that state constitutions of the era expressly said “in defense of themselves” and the Second Amendment didn’t. Chris’ theory is that Stevens was deliberately fighting fire with fire, writing an “originalist rebuttal” on his father’s terms, and he wonders whether a more characteristically Stevens approach would have handled the practical problems better.
- Breyer, fully vindicated: Sarah’s final takeaway is that Breyer is the easiest of the three to steelman, because he openly states that balancing is unavoidable. Somebody has to decide these things and there are nine of them for a reason. In Breyer’s view, Scalia is only pretending to restrain judges while Stevens is offering a bright-line rule that doesn’t function. And Breyer may get the last laugh. Since Heller, she argues, the Court has been balancing in cases like Rahimi whether it likes the label or not.
- Corrections and next time: David issues two quick corrections – “Shul” is Yiddish, not Hebrew, and the Friends of the Earth standing case referenced in the ballroom discussion is Supreme Court precedent, not the D.C. Circuit’s. As for a sequel, Sarah wants Citizens United v. Federal Election Commission (almost exclusively so she can make husband of the pod play Justice Anthony Kennedy). David offers one obvious pick (Roe v. Wade/Dobbs v. Jackson Women’s Health Organization) along with Youngstown Sheet & Tube Co. v. Sawyer – a case he’s teaching this semester and one he suspects doesn’t roll off the average American’s tongue.
Show Notes
- District of Columbia v. Heller
- United States v. Miller
- Antonin Scalia, A Matter of Interpretation
- “Originalism and Stare Decisis,” Notre Dame Law Review
- Chris Scalia at the American Enterprise Institute
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