This Is Not A Vibes-Only Podcast | Advisory Opinions

Sarah and David are off again this week – David is celebrating his 30th wedding anniversary with a cross-country train trip, and Sarah is in the thick of her move from the DC suburbs to Texas – so David Lat is back at the wheel, joined by SCOTUSblog Executive Editor Zach Shemtob and special guest Adam Feldman, creator and author of the blog Empirical SCOTUS and the Legalytics Substack. They open with an update on the second birthright citizenship fight, a New Yorker profile of Chief Justice John Roberts that Zach isn’t buying, and a look at the justices’ freshly released November argument calendar.

From there, a new Marquette Law School poll on the Court’s popularity leads into a data-driven conversation with Adam about how many blocs actually make up the Court and how to measure judicial ideology (which includes a rant from Zach on the difference between law and politics). Things close with a trio of circuit court rulings – the Jack Daniel’s dog-toy trademark fight, Meta’s Section 230 defense, and a Biden-era appliance rule – and news that the jury in Luigi Mangione’s murder trial will be anonymous.

Agenda

[1:41] Where in the world are Sarah and David?
[3:18] Birthright citizenship update
[8:08] Chief Justice Roberts and The New Yorker
[12:39] Previewing the November cases
[23:29] Marquette Law School poll
[39:37] Questioning the 3-3-3 court hypothesis
[53:57] Circuit court roundup
[1:03:28] SCOTUS shortlist
[1:07:43] The upcoming Mangione trial

Episode Takeaways

The birthright citizenship sequel continues: ACLU-led challengers took Trump’s newest birthright citizenship order back to Judge Joseph Laplante – the same New Hampshire judge who enjoined the original order in Trump v. Barbara – asking him to make clear his injunction covers this one too. Zach flagged that, unlike the first order, this one has no stated effective date, raising due process questions of its own. Next stop, probably: the notoriously liberal (and tiny) U.S. Court of Appeals for the 1st Circuit.
The New Yorker’s Roberts takedown: Margaret Talbot’s piece “The Delusions of John Roberts” argues the chief is losing his grip on a court lurching rightward. Zach called it “a classic New Yorker piece ... with a liberal agenda feigning being fair and balanced,” noting Roberts sat in the majority 95% of the time last term. Adam’s take: On a 6-3 court, almost any conservative chief would produce similar results, which makes Roberts a tough target for a comparative critique.
November’s argument calendar has been set: The justices will hear seven hours of argument over five days starting November 2. Headliner St. Mary Catholic Parish v. Roy asks whether excluding a Catholic preschool from Colorado’s universal pre-K program over its LGBTQ-admissions stance violates the Free Exercise Clause – although the Court declined to use it to reconsider Employment Division v. Smith, the precedent the religious right loves to hate. Nielsen v. Watanabe, meanwhile, continues the slow narrowing of Bivens claims against federal officers. Not yet calendared but worth watching: Viramontes v. Cook County (is there a 2nd Amendment right to an AR-15?) and Kian v. Florida (does the Constitution require a 12-person jury in serious felony cases?).
The Marquette poll, unpacked: 74% of Republicans, 35% of independents, and just 22% of Democrats approve of the Court’s work – yet of the 13 major rulings surveyed, the public actually agreed with the outcome in 11. The two exceptions were the Slaughter removal-power case (51% opposed) and a ruling letting political parties coordinate more freely with campaigns (53% opposed). The runaway favorite: Chatrie v. United States, limiting police access to cell-phone location data, at 81% support. David, Zach, and Adam try to figure out what, exactly, is going on here.
Is it really a 3-3-3 Court? Adam gently pushed back on Sarah’s favorite 3-3-3 framework, arguing the data increasingly point to a “4-3-2” Court (or maybe a “4.5-3-2.5” Court) – Justices Clarence Thomas and Samuel Alito reliably on the far right, Justices Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson reliably on the left, and Justice Neil Gorsuch functioning as a genuine, if unpredictable, swing justice depending on the issue. Adam also showed that ideology looks different depending on how you measure it: The emergency docket pushes the Court’s right flank further right, while the merits docket pushes its left flank further left.
Circuit roundup: On remand in the Bad Spaniels case, the U.S. Court of Appeals for the 9th Circuit ruled Jack Daniel’s failed to prove trademark dilution even after winning its Supreme Court fight over a parody – proof, David said, that “the Supreme Court decides questions, not cases.” A separate 9th Circuit panel held that Section 230 is a defense to liability, not immunity from suit, letting social media harm claims against Meta move forward. And the U.S. Court of Appeals for the 5th Circuit vacated a Biden-era DOE stove-efficiency rule for skirting notice-and-comment, with Judge Andrew Oldham’s opening line – accusing the rule of trying to make “home appliances more expensive and less useful” – drawing extra scrutiny given his standing as a leading contender for a future Alito seat.
Anonymous jury in Mangione trial: Ahead of the September 8 jury selection, Justice Gregory Carro ruled that the jury in Luigi Mangione’s murder trial will stay anonymous to the public, citing “documented instances of threatening or hostile behavior” outside the courthouse from Mangione’s vocal supporters. Zach, a former criminal defense attorney, discussed some issues this raises.

Show Notes

P.S. Have a question for Sarah, David, David Lat, or Zach? Reply to this email. Your Q’s may appear in future episodes.