Advisory Opinions Firing Squad vs. Suffocation
Oct 28, 2025
The podcast dives into the Eighth Amendment and a prisoner's request to die by firing squad, sparking a debate on humane execution methods. They also analyze recent legal actions regarding the National Guard in Portland and dissect the implications of horizontal stare decisis on judicial predictability. The hosts explore the pros and cons of the spoils system while considering who should present the tariff case at the Supreme Court. Lastly, they examine how presidential policies have influenced migration flows and the lasting impacts of such actions.
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Episode notes
Panel Precedent Trades Flexibility For Predictability
- Horizontal stare decisis (panel precedent) limits panels from re-evaluating circuit law unless en banc review occurs.
- Both hosts noted it preserves predictability but can entrench poorly reasoned first-mover decisions.
Value Predictability Over Panel Flexibility
- Preserve horizontal precedent when predictability matters for daily legal practice and business planning.
- Use en banc review sparingly to correct genuine systemic errors while protecting stability.
Reviving The Spoils System Has Mixed Legacy
- Reinstating Myers-style presidential removal power would revive a nineteenth-century spoils system and politicize many federal roles.
- Sarah's listener note highlights historical benefits like party-building and moderation but acknowledges modern accountability limits.
