Advisory Opinions

Kannon Shanmugam, head of Paul-Weiss' Supreme Court practice and friend of the pod, gave a speech recently pushing back against critics who question the judiciary's legitimacy. He joins Sarah and David to discuss the importance of trust in institutions to the rule of law. The full speech follows.

The Agenda:

—Questioning legitimacy is a team sport

—Kanon's speech: revering the court

—Good faith ... but wrong

—Court packing cycle and term limits

—Disagreement galore! (Could it all just be outcome bitterness?)

—The criticism isn't just meritless—it's dangerous...

Sarah and David highlight four cases from the Supreme Court's 2023-2024 October term and a 5th Circuit case uncovering librarians’ motivations.

The Agenda:

—Gender affirming care ban: parents’ rights or police state power?

—Free Speech Coalition v. Paxton

—Psychiatric care and the death penalty

—Why do we have a Utah ad?

—MUSTE standards

—Mayor Eric Adams and gross stuff

Advisory Opinions is a production of The Dispatch, a digital media company covering politics, policy, and culture from a non-partisan, conservative perspective. To access all of The Dispatc...

Sarah and David look over the case of Marcellus Williams, whom the state of Missouri executed on Tuesday after he was sentenced to death for the 1998 murder of Felicia Gayle.The Agenda:

—Controversial speakers galore

—Marcellus Williams case: justice or murder?

—A cop and a prosecutor walk into a bar … or rather, this AO episode

—Should you join FedSoc? Why are we even asking this question?Show Notes:

—World Prison Population List

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Notre Dame law professor Sherif Girgis joins Sarah and David to discuss his latest law review article, “Originalism’s Age of Ironies.” But first, the two respond to Rep. Alexandria Ocasio-Cortez’s confusion over international law.

The Agenda:

—AOC’s questions regarding Israel

—What is liquidation?

—Living constitutionalism lacks a clear defense in modern discourse.

—The role of judges in interpreting law

—Asking AI Justices Gorsuch and Kavanaugh questions

—Princeton requests corrections

Advisory Opinions is a production of The Dispatch, a digital media company covering politics...

Sarah and David sparked controversy with their recent speaking event near Princeton University’s campus. The two decide to quell culture war squabbles by discussing ‘Maverick’ Trump-appointed judges.

The Agenda:

—Sarah and David's Princeton appearance

—Intellectual energy on the legal right

—Egregious due process decisions

—Banning conversion therapy

—Should “WAP” by Megan Thee Stallion expel a pharmacy student?

Advisory Opinions is a production of The Dispatch, a digital media company covering politics, policy, and culture from a non-partisan, conservative perspective. To access all of The Dispatch’s offerings—in...

Sarah and David go to Princeton, where they grapple with the attempt of elite universities to remain politically neutral. (Hahaha.) And is there another Supreme Court leak? Really? Also: Where are we on the supposed TikTok ban?

The Agenda:

—Institutional opinions

—TikTok ban at the D.C. circuit

—New York Times: How Roberts Shaped Trump’s Supreme Court Winning Streak

—The use of AI in law

—What’s next for TikTok?

—New Title IX regulations

—Supreme Court reforms

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Adam Feldman of Empirical SCOTUSand Optimized Legal Consulting joins Sarah and David to discuss the concept of a 3-3-3 Supreme Court and the challenges of measuring ideology.

The Agenda:

—The role of Chief Justice John Roberts

—Similarities and differences between political and judicial conservatism

—The jurisprudence of Justice Amy Comey Barrett

—The prevalence of unanimous decisions

Show Notes:

—Adam Liptak's writeup in the New York Times

—Feldman’s 2023 stat review

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Sarah and David discuss the recent school shooting in Georgia, which is raising questions about parental responsibility and the limits of legal liability.

The Agenda:

—Georgia school shooting

—6th Circuit punts campaign finance question to Supreme Court

—Body cam footage hasn't done everything we wanted it to

—Debating the scope of the Second Amendment

Show Notes:

—Buckley v. Valeo

—McConnell v. FEC

—Cruz v. FEC

Advisory Opinions is a production of The Dispatch, a digital media company covering politics, policy, and cult...

Sarah details life under a wicked curse and David defends his position in The Dispatch's fantasy football league. Oh, and today's legal theme for the podcast is the First Amendment.

The Agenda:

—Role of public defenders

—Criminal justice reform

—Horrific TikTok algorithms and Section 230

—Gray areas of Section 230

—The back and forth with Sarah Palin's defamation case

—Should the dues from the Oregon Bar Association go toward anti-Trump op-eds?

Show Notes:

—Last Tuesday's Advisory Opinions episode

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Sarah and David break down the latest update in Jack Smith’s January 6 case against Donald Trump before speaking with Yuval Levin about his book, American Covenant: How the Constitution Unified Our Nation―and Could Again.

The Agenda:

—Jack Smith’s superseding indictment

—Not thinking alike but acting together

—Federalist No. 10

—Underestimating how unified we are

—Proceduralism is not amoral

—Restringing narrow majorities

—Congress, do your job

—The federalism solution

—Supreme Court reforms

—Reforming Article I

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Sarah and David catch up on the latest case in Second Amendment jurisprudence before talking with Matt Martens about his new book, Reforming Criminal Justice: A Christian Proposal.

\The Agenda:

—Matt’s faith

—The prosecutor-to-defense-attorney pipeline

—The plea bargaining system

—The issues with eye-witness testimony

—Brady violations

—Should prosecutors have absolute immunity?

—Racial discrimination in the justice system

—Defending people we don’t like

Show Notes:

—United States v. Williams

Advisory Opinions is a production of The Dispatch, a digital...

David Lat joins Sarah and David to break down recent Supreme Court trends and discuss Lat’s legal fiction novel, Supreme Ambitions.

The Agenda:

—Is the shadow docket problem solved?

—Supreme Court approval rating

—Stabilizing the Supreme Court

—Lat’s pick for most interesting justice

—Who will win the text, history, and tradition fight?

—Advice for law students

—Lat’s book, Supreme Ambitions

—Stranger than legal fiction

—Male authors writing female protagonists

—Lat’s favorite legal writing

—The return of crime proced...

Writing with quill pens, quartering Secret Service agents, and shooting 18th-century guns. A.J. Jacobs joins Sarah and David to discuss his book, It's All Relative: Adventures Up and Down the World's Family, and his experience living by the Constitution. But first, this podcast can’t escape a little bit of legal news, including a shocking decision by the Supreme Court.The Agenda:

—SCOTUS blocks Biden’s Title IX Rule

—Focusing on culture war, not politics

—“Curtilage” and a 9th Circuit ruling

—Living by the Bible and then the Constitution

—Stoning adulter...

Former White House counsel Bob Bauer joins Sarah Isgur and David French to talk about his new book, The Unraveling: Reflections on Politics Without Ethics and Democracy in Crisis. They also discuss the role of a presidential attorney, whether Special Counsel Robert Hur crossed a line by reporting on President Joe Biden's cognitive decline, and what it was like to prep the president for his fateful debate.

The Agenda:

—The impact of undergraduate majors on job prospects after law school

—Geofencing raising Fourth Amendment concerns

—Do universities have legal obligations to protect stud...

In this three-guest special episode (wait, does David count as one? Are we still doing that?), Noah Phillips, former Federal Trade Commission commissioner and co-chair of the antitrust practice at Cravath, joins Sarah and David to discuss the reality of antitrust law. Then, John Inazu, the Sally D. Danforth Distinguished Professor of Law and Religion at Washington University in St. Louis, joins to discuss his book Learning to Disagree: The Surprising Path to Navigating Differences with Empathy and Respect.

The Agenda:

—The religious discrimination case against Dave Ramsey 

—Texas can keep floating barrier to defend...

Our August-themed legal book discussion is postponed for one episode, but don’t fret: There’s more than enough legal news to fill a show, thanks to gun rights and antitrust cases.

The Agenda:

—Maryland’s assault weapons ban is constitutional

—Text, history, and tradition as … rational basis review? Or something.

—Original jurisdiction and Missouri’s attempt to put forth a stupid case

—Is Google the best search engine?

—Boycotts vs. price fixing

Show Notes:

—Learning to Disagree by John Inazu

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Sarah and David kick off the Advisory Opinions August book series and invite Professor Keith Whittington on the pod to discuss his new book You Can't Teach That!: The Battle over University Classrooms. But first the two dig into David’s conversation with Justice Neil Gorsuch.

The Agenda:

—Justice Gorsuch: Go to law school.

—Defining originalism

—The Supreme Court children’s book

—The history of academic freedom

—The government speech doctrine

—Balancing academic freedom with job responsibilities

—Private vs. public universities

—The constitutionality of...

Justice Kagan makes remarks to the 9th Circuit and President Biden proposes SCOTUS reforms. The usual slow-moving summer legal news drag is disrupted by a number interesting cases and eye-raising comments.

On the docket:

—To stand or not to stand at a desk

—Justice Kagan says Supreme Court reforms are "fair"

—The Supreme Court’s caseload

—Are justices friendly?

—President Biden’s proposed reforms

—Leonard Leo says "Dems are destroying a court they don't agree with"

—Removing Chevron deference

—Title IX cases launch across th...

Sarah and David welcome special guest Anthony Sanders, director of the Center for Judicial Engagement at the Institute for Justice, to eviscerate Justice Oliver Wendell Holmes Jr. Plus: David’s rant on Presumed Innocent.

The Agenda:

—Judicial engagement

—Social Darwinism and “putting to death the inadequate”

—Progressive forgiveness for progressives

—First Amendment

—Civil rights and judicial abdications

—Holmes’ defense of sterilization

—The difference between judicial progressives, liberals, and libertarians

—Spoiler alerts for Presumed Innocent

Show Notes:

—Kelo v. New London

—Institut...

Sarah and David are joined by Notre Dame law professor Derek Muller, who teaches “Presidential Nominations in a Time of Uncertainty,” to discuss the legality of swapping out (presumptive) party nominees, the potential consequences of doing so, and the complexity of state election laws at-large.

The Agenda:

—Can Kamala Harris inherit Joe Biden’s PAC money?

—Will Republicans successfully keep Kamala off the ballot?

—What’s up with Ohio?

—Could Donald Trump replace J.D. Vance?

—What does “natural-born citizen” mean?

—Should political parties be state associations for p...

Sarah and David answer listener emails, covering everything from judicial federalism, to the Supreme Court’s upcoming tech term, to potential SCOTUS reforms.

The Agenda:

—Constitutionality of the special counsel

—The Nixon precedent

—Independent judgment of lower courts

—Predictability and the rule of law

—The Texas pornography case: children’s rights or adult’s rights?

—Injunctions as extraordinary relief

—Biden’s proposed SCOTUS reforms

—The grossness of ethics violations

Show Notes:

—Atul Gawande’s The Checklist Manifesto

—United States v. Nixon<...

Judge Aileen Cannon dismissed on Monday the charges brought by special counsel Jack Smith against former President Donald Trump for mishandling classified documents. So, um, what just happened? Sarah Isgur and special guest David French discuss.

The Agenda:

-Why Judge Cannon thinks Jack Smith's position is illegal.

-Rating the decision, from solid law to bonkerstown.

-What will the DOJ do now?

-Trump's Law of Felicitous Circumstances.

-When will Adaam finally let the Grizzlies into his heart?

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Sarah, Steve, Jonah, and David French discuss the assassination attempt against former President Donald Trump during a Pennsylvania rally over the weekend.

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Could Joe Biden sue a faithless delegate? Would Brown v. Board exist if a supermajority had opposed integration? Is the next generation of lawyers doomed? In a special live recording at the American Enterprise Institute, Sarah and David contemplate a series of worst-case hypotheticals and answer audience questions. Bonus: originalist David French (somewhat) defends the Warren Court.

Agenda:

—Bound, free, and faithless DNC delegates

—How the 12th Amendment could cause a 13th-hour, three-way race for president

—What the 25th Amendment might mean for Vice President Kamala Harris

—The legitimacy of a count...

Kannon Shanmugam and his summer associates return to Advisory Opinions to look back on the SCOTUS term and discuss the state of “text, history, and tradition.”

The Agenda:

—Big themes from this SCOTUS term

—Was this the administrative law term?

—Should we stop thinking about SCOTUS “terms”?

—The health of the First Amendment

—“The media now owns Amy Coney Barrett”

—Justice Thomas’ dissent in Rahimi

—Sarah’s summary of this term

—Questions from summer associates

Show Notes:

—Loper Bright Enterprises v. Raimondo

On today’s super-mega-extravagant episode, Sarah and David celebrate America’s birthday by gifting everyone a magnificently long podcast. First on the docket: more analysis of the SCOTUS immunity decision.

The Agenda:

—Facial challenges in Moody v. NetChoice

—Welcome, Father of the Pod

—Should prosecutors be totally immune?

—No more bad science!

—Ongoing debate over Section 230

—Romney: Corporations are people too!

—Donald Trump’s Florida and Georgia cases

—Is the pod over yet? Nope!

—Dred Scott vibes

Show Notes:

—Husband...

Sarah and David break down the Supreme Court decision in Trump v. United States.

The Agenda:

—Unanimous decision on Moody v. NetChoice

—SCOTUS stat pack

—Three buckets of immunity

—Immunity takeaways: yes, no, and maybe

—Presidential immunity and accountability

—The role of the electorate in holding presidents accountable

—Does the Constitution prevent despots and tyrants?

Show Notes:

—David's NYT op-ed on SCOTUS and the pro-life movement

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We're not talking about Trump and Biden, but we are discussing something that could make double-hater voters less worried about the future of presidents and executive power: the final stake through the Chevron doctrine.

The Agenda:

—Chevron is overruled

—Jarkesy decision

—How "old think" plays out in the two above decisions

—Sarah's offended by Sotomayor

—The non-Trump January 6 case

—Are homeless people being targeted by SCOTUS? No

Show Notes:

—Nick Kristof's piece for the Times

—Ohio v. Environmental Protection Agency

—Mo...

Sarah and David return for a truly prolific episode covering another SCOTUS decision day and revisit where they stand on originalism and its faults.

The Agenda:

—Doctrine coded vs. culture-war coded

—Did the government coerce social media companies in 2020?

—David, you ignorant slut

—Interpreting “corruptly”

—The accidental release of Idaho abortion case

—Is SCOTUS strategic in its opinion release schedule?

—The problems with originalism

—Trump immunity case delay

Show Notes:

—National Rifle Association of America v. Vullo

—Bantam Books, Inc...

In a special live recording from San Francisco in late May, Sarah interviewed former Supreme Court Justice Stephen Breyer about his judicial philosophy, the future of the court, and accepting dissent in America.

The Agenda:

— How snails explain the Supreme Court

— To recuse or to not recuse?

— The Court’s public approval and its response to public approval

— Rule of law

— Unenumerated rights

— Humor in the Court

— Audience questions

Show Notes:

— Stephen Breyer’s Reading the Constitution

— The Education of Henry A...

The Supreme Court has decided 8-1 in favor of the government in United States v. Rahimi. Sarah and David break down the decision before getting to a few sleeper cases from the day.The Agenda:

—“Y’all misunderstood Bruen”

—History is instructive, not binding

—18th-century policy vs. 21st-century problems

—The future of gun control

—“Bad man stays in jail” doctrine

—Trump’s SCOTUS nominees in a second term

—“SCOTUS should have never taken Rahimi”

—Sleeper cases

Show Notes:

—Sarah’s “bad man stays in jail” tweet

—C...

Awaiting a week full of emergency pods, Sarah and David discuss latest round of SCOTUS opinions and take a look at a religious expression case.

The Agenda:

—Your foreign earnings are taxable

—Malicious prosecutions, do they fall under the charge-specific rule or any-crime rule?

—The Fifth Circuit was wrong

—Defining expert testimony

—Louisiana's Ten Commandment's law

Show Notes:

—Georgia Tech sued over speech code

—History of the Lemon test

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Sarah and David discuss how the media’s focus on outcomes ignores the Supreme Court’s complexity and restraint. Plus: tips for the lawyer ready to quit.

The Agenda:

—Bump stocks and executive overreach

—Upcoming SCOTUS cases

—Who’s the least powerful justice?

—Hidden ideological diversity in SCOTUS

—DOJ’s enforcement of the FACE Act

—How to quit your law firm: tips on professional risk management

Show Notes:

—Vidal v. Elster

—Empirical SCOTUS’ Power Index

—Mifepristone case

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David Lat takes over the guest chair and joins Sarah to discuss recent SCOTUS decisions.

The Agenda:

—SCOTUS bumps bump stock case to Congress

—Lily Ledbetter and the last time Congress did their job

—Mifepristone decision

—Trump too small? Maybe, but you can’t trademark it

—Justice Gorsuch and Justice Jackson’s playful relationship

—NLRB and defending the administrative state

—Justice Alito is secretly recorded

—Young Thug’s messy court trial

—Predicting SCOTUS decisions

—Sentencing and appeals in the Hunter Biden saga<...

Sarah and David discuss the laws of war in response to Israel’s successful hostage rescue operation in Gaza before turning to the latest First Amendment drama from the 1st Circuit.

The Agenda:

—Laws of war and the Israeli hostage rescue operation

—Materially disruptive speech and t-shirts

—Health check on the Constitution

—Far-right says freedoms are under attack

Show Notes:

—David’s critique of Israel in the NYT

—Angry cheerleader case

—Justice Brennan opinion in 1970s book banning case

—Tinker v. Des Moines

—...

No Rahimi decision yet … but Sarah and David have the next best thing: math! The two dive into Sarah’s recent POLITICO piece in which she and Dean Jens used data to analyze the Supreme Court.

The Agenda:

—The three-body problem

—Was Dobbs v. Jackson Women's Health Organization radical?

—Moneyballing the court

—“Right to counsel” at the 9th Circuit

—Racial discrimination in contracting

—Test cases are test cases

—Judge Newsom’s “unusual” concurrence

—Judge Easterbrook on fonts

—The health of the Constitution

Show Notes:

—T...

Sarah and David detail Hunter Biden’s legal predicament and discuss the impact it will have on the political landscape. Is this coercive bargaining in action?

The Agenda:

—Food poisoning etiquette

—Hunter Biden's federal case

—Prosecuting Donald Trump

—Abortion opinion out of Texas Supreme Court

—Insights into the Supreme Court’s decision-making process

—SCOTUS watch

Show Notes:

—Steve Calabresi for the Volokh Conspiracy

—Sarah's piece for the New York Times

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Akhil Amar, Sterling Professor of Law at Yale University, joins Sarah and David to read between the lines of the Constitution to find and define unenumerated rights. Be sure to check out his books, America's Unwritten Constitution: The Precedents and Principles We Live By and The Words that Made Us: America's Constitutional Conversation, 1760-1840. And stick around after the interview for a brief Alito flag update.

—Akhil Amar’s two-tier theory of jurisdictions

—AO episode with Judge Newsom mentioning unenumerated rights

—Ezra Klein's article on the Second Amendment

—District of Columbia v. Heller

In an emergency live dispatch, Sarah and David discuss the historic verdict in Trump's New York hush money case. Expect to hear sentencing expectations, appeal efforts, and how voters will reach.

Show Notes:

-Mike and Sarah’s Collision newsletter on the outcome of the case

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Sarah gives us a taste of her interview with retired Supreme Court Justice Stephen Breyer before she and David dive into the latest SCOTUS ruling on racial gerrymandering.

The Agenda:

—Justice Breyer and the Major Questions Doctrine

—Alexander v. South Carolina State Conference of the NAACP

—Conduct vs. speech and Morgan Wallen’s Nashville bar

—Random swipes at text, history, and tradition from David

—Approving a SCOTUS nominee from opposing parties?

—Amending the amendment process

—Codifying the judicial filibuster

—Justice Samuel Alito flag watch

Is Justice Alito a secret election denier? Is his wife chronically online? Were these allegations the point of a New York Times article about hanging the American flag upside down? Or is this a nothingburger? Sarah and David discuss.

The Agenda:

—Appearances of impropriety

—Husbands: What would you do if someone called your wife the C-word?

—Asserting executive privilege over audio recordings

—No, Zina Bash did not make a white power symbol

—Nixon tapes and Biden’s interview

—The opposite of a nationwide injuction

—Tacos are sand...

Do judges have an important role to play in society beyond judging? Judge Lee Rudofsky takes the affirmative, while Orin Kerr disagrees in this special AO episode debating this topic. Sarah and David also discuss the latest SCOTUS cases.

Show Notes:

—Judges write letter saying they won't hire law clerks from Columbia

—Kerr: Do Judges "Have an Important Role to Play in Our Society" Beyond Judging?

—Code of Conduct for United States Judges

—Staying Off the Sidelines: Judges as Agents for Justice System Reform

—Appearances by Sitting U.S. Supreme Cour...

Sarah and David start things off with a discussion of Trump’s trials and how he might respond to the outcome of the election. Are David’s concerns overblown?

The Agenda:

—Trump’s New York trial

—Chilling speech over anti-Israel protests and one law school dean's private dinner party

—Mocking Michael Cohen

—Civil forfeiture SCOTUS ruling

—AYER ruling

—When prison guards shave a Rastafarian's dreads

—Firing gay teachers

Show Notes:

—Trial of Ted Stevens

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Eleventh Circuit Judge Kevin Newsom takes over the role as professor to teach Sarah and David the implications of jurisdiction stripping and the balance of power between the branches of government. We’ll sum the lesson up as … Congress, do your job.

The Agenda:

—Judges say they won’t hire from Columbia Law School

—Explaining the exceptions clause

—Constraints over jurisdiction stripping by Congress

—Marbury powers

—Congress taking a more active role in constitutional interpretations

Show Notes:

—David for the NYT: The Magic Constitutionalism of...

Judge Edmund Sargus from the Southern District of Ohio joins Sarah and David to take on originalism and different means of constitutional interpretation.

The Agenda:

—Brown v. Board of Education and the different judicial philosophies that can be applied to the case

—Originalism vs. common law traditionalism

—Challenges and limitations of textualism and originalism

—Landmark cases and the Supreme Court’s decisions shaping societal progress

—Interpreting ambiguous constitutional terms like ‘equal protection’ and ‘due process’

—Thus ends DEI

Show Notes:

—Plessy v. Ferguson

—Rutan...

It’s a silent spring in Texas as Pornhub pulls out of the state in an act of protest over a law requiring age verification measures. Sarah and David go through the legal battle between the explicit site and Texas AG Ken Paxton.The Agenda:

—Sarah’s high

—Texas law requiring age verification to access pornography online

—The tiers of scrutiny in constitutional law

—The role of text, history, and tradition

—Going through the Antisemitism Awareness Act of 2023

—Understanding the differences between Medicare and Medicaid can be challenging, even...

David returns after a brief food poisoning hiatus to discuss two oral arguments heard before the Supreme Court: Trump’s immunity case and Idaho’s case on abortion bans. But first, a request from The Dispatch’s resident Wilson-hater.

The Agenda:

—Are solo podcasters sociopaths?

—Proposals for changes on the Israeli Supreme Court

—Absolute immunity for presidents

—The role of the executive vesting clause

—Reviewing Idaho’s abortion ban

—Time, place, and manner restrictions on college campuses

—Answering questions and issuing corrections

Show Notes:

—Pre...

The Supreme Court this week heard oral arguments for Donald Trump’s immunity case, and David has thoughts. However, he was too sick to join today so Sarah had to go solo (Ruminant style!), recapping the legal and political implications of the case, assessing the strength of the arguments and their significance for the future of our political system, and trying to imagine where we go from here in this bizarre election cycle.

The Agenda:

—Good and bad news for Trump

—What presidential acts are immune?

—Impeachment and conviction

—Going throu...

Sarah and David discuss oral arguments in Grants Pass v. Johnson, a Supreme Court case addressing the issue of homeless people camping on public property, as well as and the 4th Circuit ruling that blocked West Virginia's law blocking transgender athletes from participating in sports.

The Agenda:

—SCOTUS hears Grants Pass v. Johnson

—Necessity defense and cannibalism

—4th Circuit ruling on trans sports ban in West Virginia

—SCOTUS rules on Title VII case

—Biden expands Title IX ruling

—Campus due process and Columbia protesters

Show Notes:<...

There’s not much worth discussing yet in Donald Trump’s criminal trial in New York, so Sarah and David focus on the Supreme Court and a case on Idaho’s law restricting gender-transition treatment for minors. Plus: Murmurs about Clarence Thomas’ brief absence.

The Agenda:

—Election law crimes, tax crimes, and falsification of business records

—Challenges of broad injunctions

—Idaho’s Vulnerable Child Protection Act

—SCOTUS exhausted with emergency docket applications

—Justices call to retire universal injunctions

—January 6 arguments before SCOTUS

—SCOTUS declines to intervene in a poli...

Co-authors Jack Goldsmith and Bob Bauer join the podcast to discuss their book, After Trump: Reconstructing the Presidency, and the need to reform presidential power. But first, a protest and a dinner party at a Berkeley Law School dean's house. Did the location qualify as a public forum? Sarah and David evaluate.

The Agenda:

—Dean of Berkeley Law School and a Palestinian Protest: 1A protection?

—How to go about civil disobedience

—Reforming the Insurrection Act

—The need for bipartisan support in reforming presidential powers

—Did Donald Trump abuse the pardon...

Sarah and David explain the jury questionnaire in Alvin Bragg’s case against Donald Trump before getting into the weeds of the origins of originalism.

The Agenda:

—How to select a jury for Trump

—Celebrity trial jury instructions

—Biden swings again at student loan forgiveness

—Did the Warren court birth originalism?

—Originalism vs. platonic idealism

—More questions from a high schooler

—How do judicial ethics actually work?

—The myth of the 6-3 court

—The most important SCOTUS decisions

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Things get heated in Trump’s classified documents case. In a court filing this week in Donald Trump’s classified documents case, special counsel Jack Smith challenged Judge Aileen Cannon by vowing to appeal any decision that included the Presidential Record Act in jury instructions. David and Sarah discuss Smith's public move and what it means for the case.

The Agenda:

—Sarah's recaps her defamation law musical experience

—Justice Sotomayor's age raises questions about the right time for Justices to retire

—Is Trump's defense counsel actually good?

—Jack Smith's frustration...

Sarah and David dive into two op-eds challenging the Federalist Society and the call for lawyers to uphold the tradition of liberty under law.

The Agenda:

—Mayfield v. Butler, retaliation, and political targeting

—Risks and challenges facing the Federalist Society

—Did Trump-era advances in jurisprudence come at a deep civic cost?

—The Thomas’ article on the judicial filibuster

—Will Peter Navarro’s attempts to evade jail time succeed? (Spoiler: No)

—Sarah and David answer work-life balance questions

Show Notes:

—Villareal v. City of Laredo

Federal Judges Roy Altman, Lee Rudofsky, and Amul Thapar join Sarah and David to discuss their recent trip to Israel along with 11 other federal judges that focused on the question of the day: Is Israel complying with international law as it pursues its war against Hamas in Gaza?

The Agenda:

—The purpose of the judges’ trip

—Walking through the locations of the October 7 attack

—Gruesome tactics by Hamas

—Military authority in Israel

—Israel’s legitimacy as a nation-state

—Debunking the “Israelis as colonists” narrative

—David’s JAG exper...

Sarah and David discuss the legal arguments and media spin around the Mifepristone abortion pill case.

The Agenda:

—Mifepristone at the Supreme Court

—SCOTUS and the 5th Circuit

—Arresting a 72-year-old woman

—The "Burning Man" festival of Alaska

—Red brief, green brief, orange brief too

—The stigma of the green bubbles and the DOJ's antitrust case against Apple

Show Notes:

—Oral argument transcript, FDA v. Alliance Hippocratic Medicine

—Federal Judge Roy J. Altman speaks on his recent trip to Israel

—Sar...

In this double-guest special, David Lat shares his original reporting on the exodus of Judge Aileen Cannon’s clerks and its implications for Trump's classified documents case. Judge David Proctor of the Northern District of Alabama then joins to explain the history and function of the federal judiciary and its committees, including the Judicial Conference.

The Agenda:

—Do younger clerks just not understand hard work?

—Judge Cannon’s declining reputation

—Delays in Trump’s documents case

—How the federal judiciary came to be

—Rule-making process for the Federal Rules of Civil...

Sarah and David dive into the battle (one that at times stumps our resident SCOTUS wonks) between the 5th Circuit and the Supreme Court on Texas’ deportation legislation.

The Agenda:

—Texas’ SB4, explained

—Important legal glossary

—The issue with administrative stays

—Why the delay at the Fifth Circuit?

—Opinion in chambers from Justice Roberts

—FBI No-Fly List Case

—First Amendment and Government Coercion

—NRA free speech battle

—Listener feedback

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Sarah and David discuss Justice Amy Coney Barrett’s opinion in Lindke v. Freed—released last week by the Supreme Court—and the test for state action on social media. Is there a constitutional right to commenting on state officials’ accounts?

The Agenda:

-Predicting SCOTUS votes for Net Choice

-Slime in the ice machine

-Justice Elena Kagan’s compelling reasoning for saying “and” means “or”

-Terrorism distortion and special needs exceptions to the Fourth Amendment

-The 5th U.S. Circuit Court of Appeals is overwhelmed

-An emergency petit...

Sarah and David react to the Robert Hur’s congressional testimony, but first Sarah responds to a recent article that claimed she was assisting Hur in his testimony (and thanks the loyal listeners who came to her defense).

The Agenda:

—David’s thoughts on the Hur hearings

—Lessons in media training

—Differences between the Trump and Biden documents cases

—Partisanship making people awful

—Complaint by Jewish students at MIT

—Blood libel at MIT

—Free speech or no speech on campus?

—Positive racial discrimination?<...

Despite a slow start to the week in legal news, Sarah and David have a tightly packed episode today starting with a dissent from denial from Justice Thomas on bias response teams at a Virginia university.

The Agenda:

—Bias response teams

—ACLU vs. NLRB

—Florida's Stop Woke Act naw-dogged by Eleventh Circuit

—Texas' law on minor access to explicit content at the Fifth Circuit

—TikTok: Welcome to the culture war

—Kevin Newsom's speech on text, history, and tradition

—Be careful with tradition

—Understanding...

David takes the first ten minutes to respond to Twitter trolls over his latest New York Times article before he and Sarah revisit their arguments over the Supreme Court’s per curium ruling on the Trump-Colorado case.

The Agenda:

—Defending the Supreme Court

—Erasing the Constitution

—Confusion over the Trump ruling

—Consequentialism vs. originalism

—Judicial restraint and originalism

—Erasing Chevron

—SCOTUS hears bump stock case

—Explaining the string cheese factors

Show Notes:

-Kevin Williamson: Slate Publishes Gun-Control Fiction

-Advisory...

The Supreme Court issued an unanimous decision on Monday dismissing efforts to block Trump from the Colorado ballot. Sarah and David review the ruling and then go on to  disagree about pretty much everything. Stay tuned for a feisty debate.

The Agenda:

-Colorado cannot remove Donald Trump from its ballot

-SCOTUS not touching the "Did Donald Trump engage in insurrection or aiding the enemies of the United States?" question

-Also not touching, "Is Trump an officer?"

-5-4 ruling on who can enforce Section 3 of the 14th Amendment

Sarah and David have some legal catch-up to do but first on the docket is some rank punditry on Donald Trump's endless legal saga.

The Agenda:

—Why is there a delay on Trump’s cases?

—David explains NetChoice v. Paxton

—McElrath v. Georgia update

—No Labels considers Nikki Haley

—Dr. Phil’s our guy

—Home Depot and free speech

—NCAA name, image, likeness rules

—AO dating app update

Today's episode is supported by Burford Capital. Follow the link to learn more: http://bur...

Former U.S. Assistant Attorneys General Stephen Boyd and Jody Hunt, as well as U.S. Attorney for the Northern District of Alabama Prim Escalona join Sarah Isgur for a live recording of Advisory Opinions at the University of Alabama.

The Agenda:

—An update on the Alabama IVF ruling

—To go to law school or not to go?

—Private practice vs public service

—Relationship and mom advice in high-stressed jobs

—Audience QA

Show Notes:

—Chevron Deference discussed on Advisory Opinions.

Today...

Judges Jennifer Elrod and Charles Eskridge join Sarah and David to explain the “inns” and outs of a special networking group for attorneys.

The Agenda:

—SCOTUS declines to hear TJ High School case[should we spell out?]

—Harvard, antisemitic cartoons, and free speech

—Biden’s authority to shut the border

—The Inn of Court explained

—Taylor Swift-themed parodies

—Sarah sings for a second

Show Notes:

-Contact sam@smglawgroup.com for more information on the Houston showing

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Sarah and David dive into an Alabama Supreme Court case designating embryos as minors and explain how this might affect abortion policy at large.

The Agenda:

—Has Alabama banned in vitro fertilization (IVF)?

—Sarah’s experience with IVF

—The post-Roe world

—Climate scientist wins $1 million defamation case

—Fani Willis and Nathan Wade take the stand

—Donald Trump’s corporate death penalty

—AO advice column: marrying a lawyer

Show Notes:

—David Lat's Original Jurisdiction

Today's episode is supported by Burford Capital. Follow t...

Do people have a right to gun ownership even if it conflicts the “spirit of Aloha”? Sarah and David dig into a 53-page opinion from the Supreme Court of Hawaii that teeters on the edge of defiance.

The Agenda:

—Clarifying public accommodation and the anti-Zionist bookstore

—Carrying a gun without a permit v. the Second Amendment

—The Law of the Splintered Paddle

—Bruen makes an appearance

—Trump's briefs (to the Supreme Court)

Show Notes:

Today's episode is supported by Burford Capital. Follow the link to learn more...

Memory issues, ghost writers, and presidential prosecutions. Media outlets are cherry picking bits and pieces from the Hur Report on Biden’s handling of classified documents, but Sarah and David spend a full episode analyzing its legal standards and implications.

The Agenda:

—Disclosing biases

—Standards of evidence

—Biden’s too old

—Can we get the full recordings?

—No security clearance for the ghost writer

—Partisan brains reading the report

—“No Zionists Allowed” in a bookstore

Show Notes:

—The Hur report

Today's epi...

Sarah and David cover the oral argument at the Supreme Court regarding the Colorado Supreme Court’s decision to block Trump from the ballot in the state.

The Agenda:

—David’s unpleasant déjà vu

—All the ways Colorado will lose

—The textualist approach

—What process is due?

—Non-Mutual Collateral Estoppel

—David responds to Justice Kagan

—Griffin’s case

—U.S. Term Limits, Inc. v. Thornton

—The advocates

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The D.C. Circuit Court of Appeals has unanimously decided that Donald Trump is not immune from prosecution. On today's emergency pod, Sarah and David react to the decision's substance and how the timing affects the election.

The Agenda:

—Timing is everything

—Word of the day: estoppel

—Will SCOTUS take the case?

—The opinion’s flaws

—Whatis a president immune from?

—What is an official act?

—The parade of horribles argument

—Why the Colorado disqualification case is relevant

—The New Yorker: Sarah Isgur's...

Sarah and David invite District Judge Vince Chhabria on the pod to explain the state of multidistrict litigation and answer the question: Why does he listen to Advisory Opinions?

The Agenda:

—Justice Breyer’s jurisprudence

—Judging vs. personal value judgments

—David’s cringe a cappella group name

—Constitutionality of magistrate judges

—How to fix forum shopping

—MDLs, explained

—The pros and cons of MDLs

—How to become a judge

—Judge Chhabria’s clerk hiring process

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Judge John K. Bush of the Sixth Circuit Court of Appeals joins Sarah to discuss the method and merits of the "history and tradition test." But first, Sarah and David dive into some Supreme Court gossip.

The Agenda:

—Addressing Justice Sotomayor's comments

—David's gross speculation

—More immigration talk

—The problem with Remain in Mexico

—Why we have hate crimes

—Tiers of scrutiny

—The problems with "history and tradition"

—How to become a clerk for Judge Bush

—How Judge Bush judges judging

Sho...

Sarah and David dive deep into the state of immigration law and Texas Gov. Greg Abbott's legal battle with the Biden administration.

The Agenda:

—Amicus briefs for funsies

—The asylum system problem

—How to fix the crisis at the border

—The border deal in the Senate

—Civil War cosplay

—National Guard and Texit detour

—Football vs. politics redux

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Sarah and David discuss ~vibes~ from a recent emergency docket ruling on razor wires along the Texas border plus Judge Newsom's latest concurrence on discrimination and religious advertisements.

The Agenda:

-Judge Kyle Duncan ruling and a SCOTUS reversal

-Judge Kevin Newsom and religious advertisements

-Raising highways in Texas

-No Labels sending a letter to the DOJ

-Fifth circuit divided in free speech case

-Honoring former Solicitor General, law professor Charles Fried

-Is it okay to cry at work?

Show Notes:

Sarah and David brave the tundras of the Vanderbilt campus to discuss left-leaning bias in pro-bono cases before diving into the details of Fulton County DA Fani Willis’ possibly salacious hires.

The Agenda:

-Left-leaning bias academic study

-Trouble in paradise for Fani Willis

-Top 10 tips from an Indiana Law Clerk

-Defining “colorable” and “to cabin”

-Alec Baldwin and new standards for Hollywood sets

-Chevron listener question

-Live Q&A

Show Notes:

-Pierson v. Post

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Sarah and David appease a couple listeners’ requests before getting to the Loper Bright Enterprises v. Raimondo oral argument.

The Agenda:

—Words of the day: certiorari and conversion

—Epic Games, Inc. v. Apple Inc.

—Supreme Court humor

—Congress (and the courts) do your job

—Texas’ READER Act blocked by Fifth Circuit

—Responding to listeners’ comments

Show Notes:

—Kisor v. Wilkie

—Pierson v. Post

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Sarah and David discuss a cert grant relating to homelessness in San Francisco and Massachusetts’s Eighth Amendment. But first, Sarah announces her pending litigation against Fairfax County.

The Agenda:

—Robinson v. California

—The different types of justice

—A no-fly list dispute

—The law of war: Houthis

—How do we beat pirates?

—Anti-straight discrimination

—DeSantis v. Warren

Show Notes:

—Niz-Chavez v. Garland, Attorney General

—Smith v. Arizona

—Sheetz v. County of El Dorado

Sarah and David address a few corrections from Tuesday’s episode before turning to the oral argument on Trump’s prosecutorial immunity.

On the Agenda:

—Can presidents order Seal Team Six to assassinate rivals?

—Who is going to win this case?

—Did we just fix qualified immunity? (No.)

—Political advertising at the Ninth Circuit

—Should I go to law school? Pt. 97

Show notes:

—Marbury v. Madison

—Mississippi v. Johnson

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Sarah and David attend to AO housekeeping before diving into some creative 20th Amendment theories. Plus:

—The distinction between law violation and norm violation;

—Trump’s prosecutorial immunity and legal yay's;

—The role of Congress in determining eligibility for office;

—A prosecutor working for both sides of the bench;

—Judge Ho concurs in an employment discrimination case;

—More employment discrimination out of the 11th Circuit; and

—The misguided war on the SAT.

Show notes:

- Lake Beach 

Learn more ab...

David and Sarah are back from a hearty break and catch up on cases from last year and various legal topics, including judicial salaries and the death of Justice Sandra Day O’Connor. Stay tuned for:

—David and Sarah’s low confidence in the outcome of the Jarkesy case;

—No love lost for the Sacklers;

—A good attempt at avoiding the income tax;

—Maine skipping due process; and

—A lawsuit that could eviscerate the realtor business.

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Sarah joins David Lat's Original Jurisdiction to review 2023's best (and worst) legal cases and lawyers and make some hopeful (and less hopeful) predictions about the coming year.

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In this emergency pod, Sarah and David discuss the Colorado Supreme Court’s decision to disqualify Donald Trump from the state’s primary and general election ballots. They take listeners through:

—How they speed read court opinions;

—The self-execution of Section 3 of the 14th Amendment;

—The concept of non-justiciability (and how to pronounce it);

—Problems with congressional drafting;

—Debating incitement; and

—What will SCOTUS do?

Show Notes:

-Prof. Will Baude on Section 3, Insurrection, and Trump

-Coup de Target

-Incitement of Insurrection<...

Sarah and David respond to listener comments about last week’s Texas abortion case. Then the two discuss:

-Why to bet on the side of Jack Smith’s delay

-The “president shoots a postal worker” hypothetical

-Sarah plays detective on the second biggest SCOTUS leak

-SCOTUS appointments and holding onto power

-A right to compete but not to win?

-Please clean your washing machines

Show Notes:

-Why We Fight So Ferociously Over the Supreme Court

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Sarah and David give listeners another action-filled pod, starting with a controversial abortion case in Texas before breaking down special counsel Jack Smith’s petition to the Supreme Court. Plus:

—Why justices aren’t doctors

—Texas’ abortion law is not working

—What does being pro-life mean?

—An extremely rare move by Jack Smith

—David’s (informed) rank speculation

—Is conversion therapy covered by the First Amendment?

—The number one movie of all time: Glory (1989)

—David discusses Nancy’s announcement

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It's a marathon episode as Sarah and David try to figure out:

-Will WilmerHale charge the university presidents for their testimony prep?

-Is the ACLU making a comeback in NRA v. Vullo?

-What’s up with Trump's gag order?

-How to correct a chief justice

Show Notes:

-Students Call for Genocide, Presidents Smirk-

-NYT: One Law Firm Prepared Both Penn and Harvard for Hearing on Antisemitism

-SEC v Jarkesy

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The university presidents of Harvard, MIT, and Penn testified before Congress on antisemitism in their schools. It didn’t go well. Sarah and David talk Title VI implications, and:

-David feels gaslit

-The parents of a young Kansas City Chiefs fan threaten to sue Deadspin for libel

-Acheson and why mootness is easy and standing is hard

-Happy holiday housekeeping

Show Notes

-Harvard ranked last in free speech 

-U.S. Department of Education Reminds Schools of Their Legal Obligation to Address Discrimination, Including Harassment

...

Judge Kevin Newsom of the 11th Circuit Court of Appeals joins Sarah and David to reminisce on past times and talk nerdy topics. Let Judge Newsom explain his concurring opinions and:

-Lunches spent reading Supreme Court oral arguments

-Humblebrags

-Hiring (life-saving) clerks

-Why he’s a skeptic of standing

-Jurisdiction stripping

-Why Judge Newsom can’t be a podcast host

-Over aggressive judging and why it’s bad for democracy

-What makes good writing

-Adjudicating Alabama

Show Notes:

-Tra...

On today’s episode, David and Sarah break down the most interesting Supreme Court argument of this term and what it means for the future of double jeopardy law. But first, they have to shout out the dating site that is the AO comment section. Also on the docket:

-Mistrials vs. double jeopardy

-Federal rights and state interpretations

-The coolest word you've never used

-David calls for thoughtful comments

-How to lose with valor at SCOTUS

-Fifth circuit on the brain

-A second bite of th...

Sarah and David return from their Thanksgiving feasts to serve up a very nerdy episode on fed court law. Enjoy:

-David giving a lowdown of the Voting Rights Act

-Hacking minority districts

-Laws created by court precedents versus laws created by statutes

-Any standing experts out there?

-Undoing the Warren Court

-Section Two Rights vindicated in civil court

-Reporters: Don’t go to activists for legal analysis

-Elon versus Media Matters

-Match maker Sarah, make me a match

Show No...

Sarah and David have a big ol' pod today, wherein they discuss a First Amendment case involving risqué drag shows at a burger joint, hunter harassment laws, and challenges to Donald Trump's ballot access. Spoiler: Sarah was right. Also:

-Masked protesters and Anti-Klan laws

-Bad facts make bad laws

-Lawyers and Non-germaine activities

-David's window-dressing ignorance

-Boudreaux's Butt Paste

-Trump's ballot access in Colorado

-Guys: you gotta get married.

Show notes:

-Hamburger Mary's at SCOTUS

-Hunter Harassment laws challenge

Sarah and David respond to comments on Bari Weiss’ Federalist Society speech. The two then turn to the latest Supreme Court news, including:

-A new ethics code

-Condescension of the unelected

-Trump Too Small oral argument

-David’s thoughts on CLS v. Martinez

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Bari Weiss recently gave the Barbara K. Olson Memorial lecture at the Federalist Society, in which she detailed the horrific aftermath of Hamas’ October 7 attack against Israel, the ensuing “battle of ideas,” and the left’s morally perverse showing therein. Given the subject matter, we decided to devote today’s episode of Advisory Opinions to reairing her speech. her speech.

Show Notes

-Full speech

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Two gun cases that aren’t gun cases take over today’s episode as Sarah and David analyze two cert grants from the Supreme Court. Sarah also breaks down new reporting on clerk hiring in the judicial world. Stay tuned for:

-nerd prom

-Campus culture around Israel and Palestine (PS Sarah’s DMs are open)

-Sarah’s bump stocks hobby horse

-The perfect case of why everything is wrong with the political system

-State actors having strong feelings about gun control

-Having conversations about word choice and tone

The Supreme Court deliberates whether state actors should be allowed to block private users on social media and Sarah and David have thoughts. Plus:

-The first amendment rights of government employees

-Clarence Thomas has a question

-Trump's new attorneys (guess who's not in the running)

-The CCP is already here

-Worst Halloween candy?

Show Notes:

-Garnier v. O'Connor

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The Connecticut Supreme Court weighed in on a suit stemming from a sexual assault hearing at Yale University that raised tensions between due process protections for accused students and victim blaming. Sarah and David analyze the political background of related cases. Plus:

-States vs. Meta

-David breaks down the law of armed conflict and the Gaza invasion

-“Well-regulated” and its force and effect on the second amendment

-It's oral argument season at SCOTUS

Show Notes:

-Khan v. Yale University

Learn more about your...

Sarah and David take a break from the news to answer listeners' questions: How should fans approach the hosts in public? Does intent matter in constitutional law? Would making it easier to amend the Constitution fix everything? Also:

-Policy solutions vs. social solutions

-The issue with JD/MBAs

-The First Amendment and the Israel-Hamas war

-Ethics among lawyers

-Congressional review of judicial review

-Exclusionary rules

-Legal career changes

-Dworkinism

-Get a lawyer

-Civil asset forfeiture

-Most accurate...

Sidney Powell may be the best lawyer ever, SCOTUS might finally have a tech term, and David’s humble brag didn’t get past anyone. Sarah and David fly through a mix bag of legal topics including:

-Presidents coercing social media platforms

-Plea deals from fraudsters

-“Cheese-bro”

-David brings up trans issues

-Sarah brings up feminism

-Law firms dealing with “unlawful” affirmative action practices and fellowships

-A gun case

-ANOTHER gun case (but with ghosts, kind of)

-Employment division triggers David

...

Live from the University of Virginia and before a strangely happy group of law students, Sarah and David cover a range of topics from a convicted rapper who blames AI, disruptions at the Supreme Court, the Fifth Circuit becoming the new Ninth Circuit, and ethics with Amy (Justice Barrett). The hosts then take a series of questions from UVA students. God blesses this podcast.

-Does Sarah know her husband's phone number?

-AI briefs and ineffective counsel

-SC justices interrupting female attorneys

-Justice Barrett's opinion on SC ethics

-Relationships on...

What do the 6th, 9th, and 11th circuit all have in common? Well, they're all part of this episode's circuit palooza! But don't fret, there's also:

-One city manager's revenge

-a gag order for a former president

-David makes Sarah regret asking the difference between a clip and a magazine

-California’s magazine ban has no likelihood of success

-There’s levels of scrutiny to this

-Sarah’s judicial writing crushes

-a listener's question!

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Sarah and David return to their regularly scheduled Supreme Court programming, specifically to a racial gerrymandering case out of South Carolina (Sarah has copious notes). The two also have a lot to say about the insanity coming out of elite law schools. But first David revisits law of war to explain the international rules of siege warfare. Then:

-Supreme Court justices speaking statistics

-Non-justiciable gerrymandering

-Bonkers law student statements

-Some cancel culture clarity

-Ideological hot houses at elite institutions

-Harmonizing grace and morality

Israel declares war on Hamas after the terrorist organization murders hundreds of civilians. But now, with Israel already carrying out attacks in Gaza, things are about to get litigious. David French analyses the meanings and implications of the Law of War and debates Sarah Isgur whether International Law is even a thing. Plus if you want to hear David explain the moral dimension of war law, join The Skiff for a short impromptu follow up discussion.

-Military tribunals

-Ukraine/Russia comparison

-The complicated, interesting, and weird details of the Acheson Hotel case

Are you ready for this? Partners at Williams and Connolly Lisa Blatt and Sarah Harris share what it was like to argue before Justice Antonin Scalia, the pros and cons of careerism, the hunger for victory, the dangers of wearing cowboy boots in court, and why life is just a never-ending series of tradeoffs. Also:

-Texas Sarah vs Tennessee Sarah

-Justice Ginsburg's tip for arguing before the Supreme Court

-Different forms of originalism

-Miffy's (mifepristone)

-Arguing with Justice Alito

-Women in law

-Poor David

Prof. William Baude joins Sarah and David to explain why he thinks Trump's actions in 2020 might be constitutionally disqualified from running for president again.

Show notes:

-Prof. Michael McConnell, Responding About the Fourteenth Amendment, "Insurrection," and Trump

-The Sweep and Force of Section Three

-AO episode about the law article

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Sarah's back from her first maternity leave ever to for a live recording at Georgetown University Law School. Together with host emeritus David French, they preview the 9 most dramatic cases coming before the Supreme Court this term. Also: tips for law students and a live Q&A (at least as long as our batteries work). Here we go:-Kavanaugh didn't flip his vote (surprising few)

-We called it (on Alabama)

-Welcome to the South Carolina case!

-Rahimi: The one we've been waiting for

-Hearth and home: down with redundancies and repetitions!<...

The David and David show closes out with a First Amendment send-off. They discuss:

-A fifth circuit case involving racist accusations and the well-known Journal of Schenkerian Studies

-Book People versus Texas Laws Written in Crayon

-A student organization’s fight for drag queens on campus

-Balancing freedom of speech and explicit content

Show Notes:

-Yascha Mounk for The Atlantic: Stop Firing the Innocent

-Federal Circuit order suspending Judge Newman

-David Lat's Original Jurisdiction news roundup

Le...

Hello, AO listeners! This episode is a little bit different. Your regular hosts, Sarah and David, are unavailable—Sarah on parental leave, David on the road—so I (David Lat) have conscripted my husband, lawyer and legal commentator Zachary Baron Shemtob, to serve as guest of a guest. Zach shares his (strong) opinions on two hot topics, the Trump gag order and AO listeners’ favorite subject, text/history/tradition. We also cover a noteworthy Sixth Circuit case about the retroactivity of the First Step Act and the big Google antitrust trial. We hope you enjoy this very special episode. Sarah...

Prompted by Hunter Biden's indictment, David and David go through a slew of second amendment cases to try and figure out which kind of gun control is constitutional. The two also discuss:

-An attempt to get a gag order on Trump

-Friend of the pod smackdown

Show Notes:

-Special counsel asks for 'narrow' gag order for Trump in election interference case

-Are Felon Gun Bans Constitutional?

-French NYT Opinion Article: The Most Interesting Element In The Hunter Biden Indictment

-Calabresi: President Trump Can Not Be...

The David and David show looks at Speaker McCarthy's call to open an impeachment inquiry against President Biden. They also break down a big win for the Fellowship of Christian Athletes in Ninth Circuit free speech case. And...

-Trump cases update

-New Mexico Gov v. the US Constitution

Show Notes:

-How Trump’s DOJ gave Biden a major assist on impeachment

-OLC opinion on House vote for impeachment

-Trump Seeks Recusal of Judge in Federal Elections Case

-Trump demands recusal by Judge Chutkan

-J...

It's a grab bag show for David & David: Mark Meadows takes the L in Fulton County, the Fifth Circuit issues an injunction against the Biden administration, and Argentina is forced to make a $16 billion payout. Plus: Vanessa Oterro, founder of the Media Bias Chart, joins the show to drop some data on why you should definitely keep tuning in to Advisory Opinions.

Show Notes:

-Judge Jones' Ruling in Meadows Case

-Poem David French was referencing (probably)

-Media Bias chart

-Argentina's $16 billion payout

Learn more ab...

Exciting news from host-in-absentia Sarah Isgur. Partisan gerrymandering. Cameras in courts. David French and guest-host David Lat have so much to cover in so little time. Here we go:

-New arrivals

-Purdue Pharma update

-Should the Trump trials be televised? (The Davids disagree)

-Wisconsin's judicial elections mess

-Alabama's ongoing redistricting wars and systemic racism

-Elon Musk goes after the ADL

Show notes:

-2020 DOJ press release on Purdue Pharma and the Sackler Family

-Just Security on Judge Jones's...

After David Lat is publicly inducted into the AO family by undergoing a fan-based correction, he and David French run through an eclectic mic of legal topics, starting with an update on a heated chess lawsuit. Join the two as they discuss:

-Chess settlesment

-Mark Meadows’ risky testimony

-Amy Coney Barrett’s not so news-worthy comments

-Trump’s trial date conundrum

-Hardball playing out at the North Carolina Supreme Court

-Sackler family’s unpopular bankruptcy appeal via Purdue Pharma

Show Notes:

-Past AO episode...

The DnD show begins as David Lat returns to co-guest host in Sarah's absence. David and David discuss a strange First Amendment case out of the Fifth Circuit involving terrorism and COVID zombies, and:

-Jan. 6 fake electors case

-Non-delegation at the Sixth Circuit

-Some drama with Big Law

-Breaking News: Trump court date set

Show notes:

Georgia amicus brief opposing removal

Bailey v. Iles (Fifth Circuit free-speech case)

Allstates Refractory Contractors v. Su (Sixth Circuit nondelegation case)

Chris Geidner on Allstates<...

Will there be a legal and cultural consensus on transgender affirming healthcare? Why don’t female deputies get a full weekend in Dallas County? And what will Sarah’s baby’s name be? Sarah and David explore these questions and a smorgasbord of legal topics in a end of summer circuit round-up, including:

-Merit based and race neutral admissions process in Fairfax County

-Law firms discriminating on basis of race

-Fifth Circuit apocalypse case on mifepristone

-Standing doctrine mess

-9th circuit limiting transgender people’s participation in sports

-11...

Can Donald Trump be disqualified from holding public office? Sarah and David host a friendly debate with Michael McConnell, a former circuit judge and current Stanford law professor, over whether Donald Trump “engaged in insurrection or rebellion” or not. Also:

-Hunter Biden plea deal update

-Removal jurisdiction

Show notes-

-Prof. Michael McConnell, Responding About the Fourteenth Amendment, "Insurrection," and Trump

-The Sweep and Force of Section Three

-David's NYT equivalent of a double bird

-NYT: Inside the Hunter Biden Plea Deal

Learn m...

Professor Bradley Rebeiro joins Sarah and David to examine Frederick Douglass and the political theories that influenced his thinking. But, before the interview, the two go through a docket of trending political topics, including:

-DC’s picky protest arrests

-A 96-year-old judge’s continued tenure

-Hunter Biden: Deal or no deal?

-Trump’s Georgia troubles, revisited (already)

Show Notes:

-Bradley Rebeiro, Frederick Douglass and the Original Originalists

-Bradley Rebeiro's profile at BYU

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A grand jury out of Fulton County, Georgia has brought RICO charges against Donald Trump and 18 co-defendants. Sarah and David explain the 98-page indictment, how it holds up to the others, and Trump's interesting defense strategy. Plus:

-David issues a very important correction

-Will Trump be able to pardon himself?

-Georgia RICO vs. federal RICO

-Will this case stay in Georgia?

-What if Trump wasn't lying?

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First Amendment attorney Ari Cohn joins Advisory Opinions to present the complexity of age restriction policies. But first, Sarah and David update listeners on a barrage of legal activity, including:

-Section 3 of the 14th amendment and the GOP’s saving grace?

-Kansas newspaper suing over police raid

-Hunter Biden’s special counsel (and horrible parenting)

-What can and cannot Trump say?

Show Notes:

-Conservative Case Emerges to Disqualify Trump for Role on Jan. 6

-The Sweep and Force of Section Three

- Listen to the...

David and a particularly congested Sarah plan to forward this especially packed AO straight to the Supreme Court. Does the Eighth Amendment enshrine a felon's right to vote and do people really think Jews have horns? Plus:

-Trump protective order battle

-Ghost gun regulation

-Southwest Airlines attends religious liberty training

-Butterfly knives and commercial firearm sales

-Ohio ballot initiative

-College football names

-What if Saturn was where our Moon is?

Show notes-

-David's NYT column: I Don’t See a ‘Rogue’ Suprem...

UC Berkeley law professor Orin Kerr joins David and Sarah to explain how Fourth Amendment jurisprudence applies to a digital age. Do you have an expectation of privacy online? Can terms of services null your right against unreasonable searches and seizures? But first Sarah generously offers David time to rant about certain legal takes surrounding Trump’s most recent indictment. Plus:

-David’s (recent) paintball career

-What is general public use?

-Are pole cameras unconstitutional?

Show notes-

-Section 241 and the First Amendment in the Duke Law Journal

-Pro...

Special counsel Jack Smith brings another round of charges against Donald Trump, this time concerning the former president's attempts to subvert the results of the 2020 election. How does this indictment compare with the previous two? Will prosecutors be able to prove Trump was knowingly lying about the election? Does the indictment change anything for Trump? And is the country ready for this trial? Plus:

-Naming the co-conspirators

-Weighing up the other indictments

-Trump's campaign boost

-An encouraging end note on our justice system

Show Notes:

-The Collision...

Justice Samuel "Spicy" Alito returns to the pages of The Wall St. Journal with a flaming-hot interview and Sarah and David are here to unpack it. (And we all thought this is going to be a short pod!) Plus:

-The rise of judicial voters

-Why flying United is bad (according to Hugh Hewitt)

-Who's paying for Trump's legal fees?

Show Notes:

-Alito's interview in the Wall Street Journal

-Original Jurisdiction with David Lat

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Sarah Isgur and David French answer questions around the legal troubles of Donald Trump and Hunter Biden, including:

-Drained swimming pools and deleted documents

-How is Hunter Biden in good standing with the DC Bar?

-David’s 10PM runs

Show Notes:

-"It's Seven Grandkids Mr. President"

-Has the Supreme Court fixed qualified immunity doctrine yet?

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Three qualified immunity cases are thoroughly analyzed in a particularly depressing AO episode, but first David and Sarah talk through an injunction on asylum seekers some are calling “Trump-Lite”, plus:

-Broken immigration systems

-Say it with me folks, “Congress, do your job.”

-Too much too soon too fast

-Courts not complying with qualified immunity statutes

-Does Congress have better things to show rather than Hunter Biden revenge porn?

-Advice to prospecting law students

-Small town gossip and country songs

-Sarah’s victory lap around Hun...

It is NOT the doldrums of this podcast. Sarah and David have prepared a sufficiently full pod starting with Trump's looming federal indictment. Also:

-Alabama's creative response to SCOTUS

-Did Alabama defy the ruling?

-New study of college admissions: being rich might be helpful

-Listener questions about the Two Bronze Doors 

-We'll see you in a few minutes...

This episode is sponsored by FIRE. FIRE's mission is to safeguard and uphold the right of all Americans to freedom of speech. Be a part of the front line of a...

Sarah and David reach peak AO and fulfill their promise of delivering something stratospherically nerdy. Judge Charles Eskridge for the Southern District of Texas has written a 56-page history of the Supreme Court building... and specifically its 17-foot, 13-ton bronze doors. Judge Eskridge tells the story depicted on the door's eight panels and what it says about our history of ordered liberty.

This episode is sponsored by FIRE. FIRE's mission is to safeguard and uphold the right of all Americans to freedom of speech. Be a part of the front line of a growing movement by joining t...

Amanda Tyler, the Shannon C. Turner Professor of Law at Berkeley, joins Sarah and David for post-SCOTUS term talk. They finally give Mallory v. Norfolk Southern Railway Co. some love, and also:

-General jurisdiction and interstate commerce

-Graphics in opinions

-Habeas Corpus: Is Lincoln the good guy or the bad guy?

-Justice Ruth Bader Ginsburg

-Advisory Opinions spinoff?

-Amanda Tyler's profile at Berkeley

This episode is sponsored by FIRE. FIRE's mission is to safeguard and uphold the right of all Americans to freedom of speech...

Kannon Shanmugam rejoins Sarah and David for another SCOTUS opinion wrap-up and barbecue showdown for this live taping in front of a lucky audience of summer associates. The trio discuss the implications of SCOTUS cases versus the notoriety of them and:

-Sarah and David’s SCOTUS beefs

-Sarah’s impasse for longer arguments and more cases

-Attire for oral arguments (don’t forget the lucky suspenders)

-A review of Judge Jackson’s first term

-Barbecue and burger debates

-Summer Associate questions

Show Notes:

-Matt Le...

Sarah and David catch-up with non-SCOTUS cases starting with...

-A multi-million dollar lawsuit involving Musk's Twitter deal

-A bold move by a judge blocking state actors and social media workers meeting over protected speech

-Tennessee’s latest push in the culture war with a ban on gender-affirming care

-A bullied child, a MAGA hat, and the First Amendment

Show Notes:

-David French for The Dispatch on convincing versus coercion

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In this special episode of Advisory Opinions, Sarah follows Judge Alan Norris, a Sixth Circuit judge, on a trip to Gettysburg, Pennsylvania. The Legal Eagles, a group of Judge Norris' colleagues and law clerks, accompany him on an annual trip to relive the bloodiest battle of the Civil War.

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For Advisory Opinions' purposes, the Supreme Court term is over. Sarah and David return to share their end-of-term thoughts and feelings, David's crankiness about the student loan forgiveness commentary, look to the next term and:

-Student loan forgiveness is dead

-D.O.E. v. Brown

-Compelled speech in Colorado

-NYT: I Teach at an Elite College. Here’s a Look Inside the Racial Gaming of Admissions

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In a contentious decision, the Supreme Court shuts down affirmative action in universities... or does it? How impactful, really, is the decision in Students for Fair Admissions v. Harvard? It's complicated. After weeks (months? Years?) of anxious anticipation, Sarah and David dig into this term's blockbuster decision:

-Is this a big deal?

-They justices can't agree about the universe of facts

-Harvard's response

-The arbitrariness of check boxes

-A different kind of affirmative action

-Justice Thomas' concurrence (and legacy)

-Justice Sotomayor's dissent

...

As the term rushes to an end, the Supreme Court wades eagerly into a mooted case in order to close the door on the "independent legislature doctrine." But does it matter? David and Sarah disagree. Also:

-Nobody expects the Marbury v Madison citations

-What counts as threats online? (Or: Is recklessness subjective?)

-NYT v Sullivan holds strong

-Supreme Court bingo: The Countdown

-Supreme (court) ignorance

-"You only defend justices Thomas and Alito because they're conservative." Nope.

Show Notes:

-Marquette Law School Poll<...

Sarah Isgur and Guest-host David French return from the Advisory Opinions live event for some Supreme Court bingo. Plus:

-Opinion lightning round

-Justice Alito's Op-Ed in the WSJ

-Transgender care for minors at the District Courts

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Did Hunter Biden receive a sweetheart deal from the DOJ? How are other people treated under similar circumstances? And what’s with DOJ’s timing? In this live recording among the young scholars at American Enterprise Institue, Sarah Isgur and David French ponder these questions and:

-Donald Trump’s “with hunt” versus Biden investigations 

-Indictments as instruments of intimidation 

-David and Sarah’s favorite dessert

-Mr. Smith Loses

-David’s no opinion of Keetan

-Interesting bankruptcy case

-Fights over ice cream

-Is Justice Go...

Judge Amul Thapar joins Sarah to discuss his book: The People’s Justice: Clarence Thomas and the Stories That Define Him.  While today's SCOTUS decisions won't be discussed (snoozers!), the two have a lot of ground to cover:

-Odessa Pink perseverance, legal hardships, and keepsakes

-Mary Jane Smoking Hippies

-Is Trump The Most Popular Person in the World Ever?

-AO in Dehli

-Scalia v Thomas

-Legal eagles liking each other?

-Guac offs

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Should Judge Cannon recuse herself from the Trump case? What's the legal standard on willful retention of documents? Will the Finding Nemo Seagull defense serve Trump? What about gag orders? Sarah Isgur and David French keep you up to date on the trials and tribulations of Donald J. Trump.

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Did Alabama violate the Voting Rights Act? How do you pronounce Gingles? And what are the tea leaf predictions for the Harvard discrimination case? Join Sarah and David to answer these questions and:

-Who’s the lucky dog in the Jack Daniels case

-Is Justice Gorsuch overcharging his friends on Venmo?

-What happens when David puts on his woke hat?

-Will there be an emergency pod coming up?

-Who the hell is Mupp?

Show Notes:

-Allen v Milligen

Learn more about yo...

In an emergency pod, Sarah Isgur and David French review the indictment against Donald Trump which was unsealed on Friday: what is and isn't in the indictment, and how does this case compare with those of Hillary Clinton and Joe Biden.

Show Notes:

-Trump Classified Docs Indictment, Annotated

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After a brief trademark SCOTUS update, Guest Host David French and Perennial Guest David Lat break down the trickiness of vouchers for religious charter schools. Plus:

-Text history and tradition versus strict scrutiny in 2nd Amendment cases

-Top profits for law firm partners

Show Notes:

"Trump too small"

Religious Charters in Oklahoma

Some felons can possess firearms

David Lat’s Substack

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SCOTUS refuses to serve up the good stuff with the latest round of opinions released. Sarah and David discuss the chipping away of labor rights and subjective beliefs over violating the False Claims Act. Also on the docket:

-Aliens upon us?

-Whistleblowers in Sarah’s DMs

-Are Diversity Statements illegal?

-Angry cheerleader’s legacy

-Hunter Biden’s messy 2nd amendment issue

-Joe’s Hail Mary campaign throw, according to The Messenger

Show Notes:

-Virginia Tech speech police questioned by skeptical Fourth Circuit

-Angry...

With a 9-0 frown, the Supreme Court rejects the EPA's expansive definition of "wetlands." David and Sarah also discuss the growing Jackson-Gorsuch alliance, Ken Paxton's impeachment, and the art of due diligence via ChatGPT.

Show notes-

-Tyler v. Hennepen County

-Sackett v. Environmental Protection Agency

-Eleventh Circuit Prison Case

-David Last Newsletter Original Jurisdiction

-Raffi Melkonian Twitter

-The Appellate Wanderer

-Fifth Circuit First Amendment Case

-Ken Paxton Articles of Impeachment

-ChatGPT Case Filing

Sarah and David react as SCOTUS weighs in on social media regulations. Sigh. Also:

-Justice Jackson cutting to the chase

-Patent Act and dad jokes

-Reader Comments

-Judicial side eye for banning platforms for speech

-West Virginia and the abortion pill

-Constitutional rights and admission standards

-Happy Memorial Day weekend

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-Ukraine, through the eyes of Mr. French

-The Andy Warhol copyright skirmish

-The Progressive Justice League turns on itself

-Title 42 and civil liberties: The Gorsuch statement

-The future of Justice Jackson

-A Republic of Suffering

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David Lat stands in for Host Emeritus once more to help Sarah catch up on the latest Supreme Court decisions. Too, they take a detour on penmanship.

-Why the justices make us wait

-On Puerto Rico's sovereign immunity and Kagan's stylistic quirk

-Durham Report

-Judge Newman, age, and lifetime tenure

-New law school rankings just dropped

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While host emeritus is off for a week on a mysterious mission, David Lat of Original Jurisdiction rejoins Sarah to sift through the latest Supreme Court decisions. On the docket:

-Gettysburg update

-Attempting to answer when individual members of Congress can go to court

-The unsatisfying end to Pork Producers

-Buffalo Billion, New York, and federal wire fraud

-Setting the table for Title 42

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Sarah returns from her tick-filled trip from Gettysburg to discuss the E. Jean Carroll civil lawsuit against Donald Trump. Also:

-Santos detained

-Sci-fi hot takes

Show Notes:

-David French NYT Column: A Guilty Ex-President

-Subscribe to The Dispatch and watch an exclusive live Remnant with Jonah, Steve Hayes, and Chris Stirewalt

-The Gettysburg Address

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Damon Preston, public advocate for the commonwealth of Kentucky, joins Guest-Host David French to break down the Jordan Neely incident. While some New Yorkers view it as the result of growing violence in New York, others as mere vigilantism... but what are the legal elements? This special one-topic episode will try to make some sense of the available reporting.

Show Notes:

- Subscribe to The Dispatch and watch an exclusive live Remnant with Jonah, Steve Hayes, and Chris Stirewalt

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The feud between the governor and the mouse has more nuance and legal curiosities than it might seem at first glance, and David and Sarah are here for it. But also:

-Is the debt ceiling "unconstitutional"?

-History and Tradition revisited (listen to this week's week earlier episode for the full discussion)

-Trigger warning for one of the most gruesome 4th Amendment analysis taken up by the pod.

Out of context: "These people could have been in drawers."

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A case before the Supreme Court may bring the axe to the long zombified Chevron deference. Sarah and David also take a look at:

-North Carolina’s flip-flops on gerrymandering delaying the inevitable

-A 94-year-old’s legal fight against property seizure gets a hearing

-Is the distinction between History and Tradition a bait and switch?

-Supreme Court Ethics are in the news again... (yikes)

-Q&A from 1L’s

Show Notes:

-In Ruling with Major Political Implications that Potentially Moots U.S. Supreme Court Decision in Moo...

Is it unconstitutional to push religion in a state that favors religion generally? Two bills in Texas are igniting the debate over the establishment clause and religious coercion. Plus:

-Brother Jesus!

-The angriest bee in Scott Lincicome's bonnet also known as The Jones Act

-E. Jean Carroll's rape case against Trump begins

-Justice Gorsuch in the latest rounds of SCOTUS media hit pieces (edited) 

Show Notes:

-Backstory on homeless lawyer's crusade against the 10 Commandments

-Politico's hit piece on Gorsuch

-Critiques of Gorsuch's piece

It’s a SCOTUS packed pod featuring an Alito dissent going into his ~feels~. Plus, AO is getting ready for the much-anticipated Tech Term(s), and Sarah needs David's reassurance that everything will be alright. On the docket:

Show Notes:

-Josh Blackman's article for Reason magazine

-Justice Clarence Thomas dissent in Elliott V. O'Mara

...

BREAKING! Sarah’s buckets have finally arrived at the Supreme Court. Also: Fox News agrees to pay and pay and pay... but won't tell you about it.

Today's buckets:

-You can’t leave our relationship

-Bonus: Footage of New York and New Jersey debating the validity of their pact

-Accommodation versus discrimination, undue burden versus substantial cost

-Groff's gonna lose... probably (are religious freedom activists tired of winning?)

-The AO buckets have arrived

-DeSantis to eliminate unanimous jury sentencing for the death penalty

-Fox...

Justice Alito stays the Texas abortion pill ruling, leading to Sarah and David going full law nerds as they push back on bad reporting and evaluate the legal versus real world consequences. Also:

-A snarky(?) Gorsuch

-Sarah's favorite recent opinion

-Updated takes on Alvin Bragg and Jim Jordan

-*Sigh* Clarence Thomas

-David’s insight into the Pentagon leaks

Show Notes:

-NYT Opinion Piece on ethics of SCOTUS Justices

-National Constitution Center: Interpretation of Speech and Debate clause

Learn mo...

Manhattan DA Alvin Bragg’s latest PR stunt is a fight against Jim Jordan and Republican grandstanding. Sarah and David tear through the 50-page lawsuit before getting to a special guest interview with Andrew Brasher, former Solicitor General of Alabama.

Show Notes:

-Bragg goes after Jordan: merit + lots of nonsense

-The cruel unfairness of debating someone who's good at debating, see: Isgur v Goldberg on Nazis marching in Skokie

-A sidebar on actually listening to opinions different than yours

-Judge Brasher on SGs and career paths.

-The cl...

Federal courts, bad incentives, culture war exhibitionism, and abortion distortion… And the week's only started. But Sarah and host emeritus are here for you to make sense of:

-Dueling abortion rulings in Texas and Washington state

-Clarence Thomas’ friendship with Harlan Crow

-Transgender cases and the winding down of shadow dockets

-Gov. Greg Abbott wants to pardon a convicted murderer under Texas' "Stand Your Ground" law

Show Notes:

-Assessing the Legal Claims in Alliance for Hippocratic Medicine v. FDA

-Mifepristone and the rule of law

Sarah and David are back for a Wednesday (!) episode to give the people what they want: a review of Trump’s indictment. The verdict? Not great. Also:

Show Notes:

-What You Need to Know About the Trump Charges

-Social Media Influencer Douglass Mackey Convicted of Election Interference in 2016 Presidential Race

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The AO train keeps rolling after Saturday’s emergency pod with an episode chock-full of legal conundrums, fatal contracts, and (one) happy ending.

-Weird vibes on SCOTUS case about immigration and the First Amendment

-Tennessee's anti-drag statutes... (Or: David is very, very tired)

-Fox and defamation

-A goat’s fatal fate

-One commenter comes after David over campaign finance laws

-A question concerning personal jurisdictions

-A special shout out to one circuit judge (#TeamWillettWranglers)

Show Notes:

-Video: Sarah Isgur recorded live at H...

Sarah and David return to Harvard Law School to beguile the next generation with stories of squirrel rescues and FedSoc of yore. Oh yes, and to discuss the Trump indictments.

-FedSoc: Generations

-What we don't know about the Trump indictments

-Sarah and David, criticized

-Stretching the facts // Stretching the law

-What happens now?

-Alan Dershowitz reminiscence

-DeSantis and the Questionable Circumstances Exception Standard

-Q&A

Bonus discussion: Jonesing for Sarah's explainer on anti-perpetuity? Check it out on The Dispatch Podcasts YouTube...

Sarah and David spin through a carousel of cases, argue about theoretical swastikas, debate the merits of true crime content, and even bring on returning guest Christopher Bogart to discuss commercial litigation (and why you should really care!). The journey includes:

Sarah and David divide and conquer in an especially busy episode. Following a bright announcement from host emeritus, we delve into...

Show Notes:

-There's a problem with banning TikTok. It's called the First Amendment

-Stanford Dean: Diversity and Free Speech Can Coexist at Stanford

-The Secret Joke At The...

With possible Trump indictments looming, Sarah and David meet face to face to discuss. Will the Manhattan D.A. set a precedent on prosecuting a former president based on a shaky theory of law?

Show Notes:

Sentencing Memorandum for Michael Cohen

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Stanford Law School students want to have it both ways on speech rights, which means you get to enjoy a firey sequel to Tuesday's epic, infinity-long episode! Plus...

 -Your comments on the Stanford Squeeze, answered

-Stanford dean getting the Game of Thrones walk of shame treatment

-Sarah is on a journey

-A brief aside on Amy Wax

Show Notes:

-Article: Law Schools Must Stop Intolerance From Disruptive Students

-Wax's Grievance Letter

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By now you've probably heard about Judge Duncan's bad day at Stanford Law School. No worries if not, because this Marvel-length special episode will leave no question unanswered. To complete the autopsy, Sarah and David are joined by Original Jurisdiction's David Lat and the man of the dark hour himself, Fifth Circuit Judge Kyle Duncan. They discuss the Stanford standoff and the ongoing trend of student disruptions, the response from Stanford administrators, whether shouting down speakers is a form of speech, how the judge responded to the students and whether he thinks federal judges should boycott the school, and...

David and Sarah are coming to you from live from the University of Kentucky answering the most pressing legal questions:

-Is wokeism a religion?

-Can an employer only hire like-minded people?

-Will Biden push ESG investment practices?

-What does Gruyere cheese have to do with the law?

-When should schools outsource discipline to the criminal system?

-What was one NYT author thinking? Or smoking?

-And will David possibly reveal his darkest secret yet?

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The saga continues with an episode that really should come with its own trigger warning for being just too sexy. Take a deep breath…

-Safe spaces of yore (David's establishment clause victory)

-The Finality Question, or: Losing My Jurisdiction

-A death row case creates strange bedfellows and scrambles Sarah’s grand theory of the Roberts court

-David can’t wait to tell you about this Bank Secrecy Act case

-Is anyone still listening?

-What happens when you pick the wrong boyfriend?

-Gorsuch is annoyed

-Exc...

Are you ready for a MOHELA good time? Sarah and David try to read the tea leaves as SCOTUS scrutinizes Biden's student loan forgiveness and the future of the Consumer Financial Protection Bureau. Also: terrorism on Twitter and cert grant update. The saga begins.

Show Notes:

-Biden v. Nebraska oral argument transcript

-David Lat: On the need for diverse viewpoints

-David Lat: More thoughts on intellectual diversity

-Twitter v Taamneh oral argument transcript

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Podcast-skeptic Judge Neomi Rao joins Sarah and David on the sidelines of the National Constitution Center’s Conference to talk circuit decisions, career path rejections, and tips for young clerks. But first: a primer on the most important office you’ve never heard of.

Show Notes:

-The Hedgehog and the Fox in Administrative Law

-Judge Rao's Dissent

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Judgmental looks. Angry scoffs and murmurs. Maybe even kicks at your back. All because you dared to recline your airplane seat. But isn't it your right to recline? Sarah and David charge into this heated -- and ever urgent -- legal question about ownership with Michael Heller, Professor of Real Estate Law at Columbia Law School, and James Salzman, Professor of Environmental Law at UCLA Law School, about their book Mine!: How the Hidden Rules of Ownership Control Our Lives. But first: SCOTUS updates and the disappointing sizzle of the anticipated Section 230 case.

Show Notes:

...

Former VP Mike Pence is challenging a special counsel subpoena. David and Sarah look into the “speech or debate” clause cited by his defense team and its merits. Plus, a challenge to Connecticut schools transgender policy, more social media and first amendment clashes, and a little love shown to the fourth amendment on this post-Valentine’s day episode.

Show Notes:

Pence to fight special counsel subpoena on Trump’s 2020 election denial

US appeals court will rehear challenge to inclusive Connecticut transgender athlete policy

Court Blocks N.Y. Law Mandating Posting of "Hateful...

Ron DeSantis wants to make open and slacken up national libel laws and, as always, it gets complicated. Sarah and (host emeritus) David try to help out. Also: Meta  gets sanctioned!

Show Notes:

-Advisory Opinions: The Problem with "History & Tradition"

-Fl. Gov. DeSantis floats legislation that would make it easier to sue news outlets

-Reuters: Sarah Palin's legal fight with NYT

-4th Circuit panel grants Stein injunction against criminal charges

-Reuters: Meta, law firm Gibson Dunn sanctioned in Facebook privacy case

-DOJ says end o...

Friend of the pod David Lat challenges Sarah and frequent-guest David to think through the implications of different types of anonymous speech. Where is the line between a whistleblower in need of protection and a rumor-monger?

Also:

-The worst SCOTUS decisions, ranked (by Twitter-bound, partisan PoliSci majors).

-Given ChatGPT’s poor grasp of legal history, will we win the coming war against the Cylons? [Producer note: David is wrong. The answer is no.]

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In an episode dedicated to our most reasonable and law-abiding listeners, Sarah and David examine a Fifth Circuit's ruling that took the Bruen test to the next level. Following "history and tradition," the court found that barring domestic violence offenders from owning a guns is unconstitutional.  Our hosts have thoughts. Also: can our hosts take on the Murdaugh murder case?

Show Notes:

-CNN: Law barring people with domestic violence restraining orders from having guns is unconstitutional, court rules

-Murdaugh Murder Case: New Evidence 

-Trailer: Low County, The Murdaugh Dynasty

Face to face at last, The One And Only Host Sarah Isgur and Untitled Tennessean David French exchange rants about NY prosecutors' untested legal theory for indicting Trump and about Biden's approach to ending emergency law (we believe the technical term is “¯\_(ツ)_/¯”).

Also:

-Should “sincerity of belief” factor into religious freedom decisions?
-The vexing cake speech debate continues!
-A judge flunks on the Constitution
-Tingley v. Ferguson: Is therapeutic speech… speech?
-One Catholic father is cleared by the DOJ
-And…why Justice Kavanaugh concurs

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Have you been feeling too optimistic about the state of free speech recently? Don’t worry! For AO’s 300th episode (!), Sarah and David wade through some of the latest, most migraine-inducing attempts to stomp, quell, restrict, and penalize free inquiry and expression.

On the docket:

-SCOTUS update.

-In Texas, an influencer-slash-journalist brings together right and left in defending free speech against qualified immunity.

-California really, really wants to ban “misinformation…” Now, if only it could figure out how to define it…

-Hamline University’s getting sued… for religious discrimination?<...

Honor, thy name is the Pence staffer who found classified documents and resisted the urge to accidentally let them slip into a shredder. In addition to covering the latest in the Trump-Biden-Pence-Carter documents drama, David and Sarah discuss what’s shaping up to be one of the most egregious cases of spy corruption in American history.

Plus:

-A Georgia grand jury updates
-A headscratcher case of wrongful arrest
-Some thoughts on Florida’s crackdown on College Board’s African American Studies AP curriculum

Show Notes:

Classified documents discovered at home o...

If somebody understands the challenges of appointing special counsels, it's Deputy Attorney General Rod Rosenstein. He joins Advisory Opinions to talk (and reminisce) about DOJ drama. Also: Sarah and David have some tepid SCOTUS updates.

Show Notes:

-NYT: Investigators Seize More Classified Documents From Biden's Home

-The Dispatch Podcast: The Biden Files

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The Supreme Court saves the day (or at least, this episode) with a slew of last-minute cert grants. A consolidated immigration case; a legal battle between a 93-year-old woman and the state of Minnesota over a foreclosed condo; a search for the line between free speech and death threats; and, for good measure, David lets out a bee that’s been buzzing in his bonnet since law school over a religious accommodations case. Plus: so long sans serif!

Show Notes:

Pugin v. Garland, Garland v. Cordero-Garcia

Tyler v. Hennepin

Counterman v. Co...

As they consider the meaning of Robert Hur’s appointment as Special Counsel, Sarah and David cast a wish to the universe that top officials be held accountable for mishandling classified documents (or that they just stop doing that). They also discuss whether collegiality is declining among Supreme Court justices, take the pulse of religious liberty in the law, briefly discuss Fairfax county’s “war on merit” controversy, and offer a simple-to-follow definition of academic freedom.

-”Should have no impact”

-Steven Mazie on SCOTUS collegiality

-The president of Hamline University responds

-The lates...

Following Sarah's personal tribute to the incomparable Will Consovoy, Sarah and David wade through the news about Biden's mishandling of classified documents and wonder about its implications on the Mar-a-Lago case. Then, David checks in the Georgia grand jury about Trump's alleged election interference, and a Sarah reviews two SCOTUS arguments, one concerning attorney-client privilege and union strikes. Finally, Sarah and David joyfully examine the true value of noncompete clauses.

Show Notes:

In Memory: Will Consovoy

NYT: Biden Lawyers Find Classified Material At His Former Office

The Dispatch: Dueling Documents Case<...

We got some exquisite First and Second Amendment content for you today. David and Sarah discuss a Fifth Circuit decision to strike down the Trump administration ban on bump stocks. They then discuss whether a teacher has a right to wear a MAGA cap even if it engenders emotional reactions.

Show Notes:

Fifth Circuit Majority Opinion on Bump Stock bans

Gorsuch's dissent

Judge Elrod's musical talents

Summary from 9th U.S. Circuit Court of Appeals on MAGA hat and free speech

NYT: A Lecturer Showed a Painting...

In this first episode of the new year, Sarah and David bring a smorgasbord of topics to the table. They cut through the confusion in the legal battle over Title 42 and the question of lingering pandemic law. Also: Comedian Jeff Ross makes headlines by unwittingly getting involved in a death penalty case, and the 11th circuit court of appeals hears a heated case involving a Florida school's transgender bathroom ban.

Oh and yes... David makes a bittersweet announcement.

Show Notes:

Supreme Court Ruling over Title 42

Texas death row Supreme Court appeal...

Vaccine mandates! Title 42 and border policy! Twitter Files updates! Electoral Count Act! “The Imperial Supreme Court”! FedSoc/Sate showdown! Sarah and David are marathoning through topics in the hope of placating the wrathful law gods and preempting a Christmas-time emergency pod. (Knock on wood.)

Show Notes:

-Adam Liptak’s New York Times piece on the supremacy of the judicial branch

-Mark Joseph Stern’s interview with Judge Pryor for Slate

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Sarah and David look at the latest Twitter Files revelations, and consider whether they point to First Amendment concerns. They also look at the first case about transgender athletes making its way to the Supreme Court. Sarah then breaks down the grammatical debate happening in the comments section with a closing statement on why she was right, although rather unintentionally.

Show Notes:

-Philip Hamburger’s Wall St. Journal piece

-Title IX

-Kevin Stroud talks history of the English language on AO

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It’s a lighting-round AO! David and Sarah start with updates on the Loudoun County scandals, the travails of Biden’s student loan forgiveness plan, and the sanctioning of Stop the Steal lawyers. They then turn to the least palatable of topics and discuss Section 230 and social media’s liability (or lack thereof) in the spread of child pornography.

Show Notes:

-Challenges to Biden’s student loan forgiveness reach SCOTUS

-The 10th Circuit sanctions Stop the Steal lawyers

-Reason’s Elizabeth Nolan Brown on Twitter, sex trafficking, and Section 230

-David on...

Oral arguments on Biden's immigration (in)action push the Supreme Court to decide on the meaning of "shall," and to wrestle with the upshot of two government branches unwilling to do their jobs. David notices that Loudoun County is gaining national notoriety (again!). Plus: Can legal wins for religious freedom lead to a culture war cool down?

Show Notes:

-David's Loudoun county aside

-David's religious freedom aside

Producer note: if you're ready to get serious about your spicy takes...

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In an all-star hearing, the Supreme Court considers a melange of legal and philosophical arguments concerning the “independent state legislature” doctrine. But first, David and Sarah revisit 303 Creative and debate the Tough (with a capital T) line between law and morality. Also: Should Judge Cannon be impeached?

Out of context: “For the record, Sarah, there are Mean Girls in Dune.”

Show Notes:

-J. Michael Luttig for The Atlantic against the Independent State Legislature doctrine

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Finally, the Supreme Court hears arguments on Creative 303, the case that asks whether a web designer can refuse to provide her services for a gay wedding. And the hearing was... a mess! Also: The 11th Circuit shuts down the Special Master's review of Mar-a-Lago documents. David and Sarah sum up the ruling as “predictable, even quasi inevitable," while debating whether or not it "dunked" on judge Cannon.

Show Notes:

-303 Creative Oral Argument

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The AO marathon continues as David and Sarah catch up on Supreme Court hearings. In this feature-length episode, they explore the line between lobbying and bribery, raise eyebrows at the historicity of the "independent legislature" argument, and debate the extent to which the 303 Creative case is about speech. Also: the Jan. 6 prosecutors may have caught their white whale.

Show Notes:

-Oath Keepers founder convicted

-303 Creative’s oral argument

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It's censor v. censor, as politicians, academics, and journalists from left to right fight over who gets to block whose free speech. Plus: David and Sarah reconsider their comments about the alleged Alito leak.

Show Notes:

-Novoa v. Diaz

-Villarreal v. Laredo, Texas

-Reason Magazine on the stakes of Villarreal’s lawsuit

-David’s piece on the meaning of religious freedom

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As rumors swirl about another Alito leak, David and Sarah examine DC’s corrosive obsession with “access.” They also discuss the DOJ's appointment of a special counsel for the Trump investigations, revisit their discussion of protective orders, and ask whether we should care about law schools pulling out of the US News & World Report. 

Plus: get your bingo cards ready!

Show Notes:

-AO Bingo

-Lincoln’s Thanksgiving proclamation

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Haggard and sleep deprived, Sarah and David buckle down for an extra-long episode that covers student loans, court sanctions, gay marriage legislation, more FedSoc speculation, and [deep breath] the founding principles of the United States. Ready thy popcorn.

Show Notes:

-Sanctioning Trump's lawyers

-Codifying gay marriage

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Things get visceral as David and Sarah discuss Haaland v. Brackeen, the Supreme Court case that may determine who gets to adopt a Native American child. Then, having picked up their dropped jaws, they parse a federal court's ruling that deemed it unconstitutional to prohibit gun ownership based on a history of domestic violence.

Plus: Sarah provides some FedSoc gala gossip.

Show Notes:

-Haaland v. Brackeen

-Gabriel Malor, no snark

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Yes, David and Sarah share their post-election thoughts (including the Trump question), but they also talk some law! From Judge James Ho (the scourge of Yale Law School) nudging SCOTUS to recognize an unenumerated right to make a living, to New York state’s gun laws hitting a wall in court… the takes are a-flowing. But none more shocking than David’s all-time top two songs.

Plus: David ruefully performs a post-mortem to his midterm pre-mortem.

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On today's combative pod, David and Sarah revisit the Stacey Abrams lawsuits and check in on the state of election laws. They then turn to the question of expressive activity and whether a state can force a beauty pageant to include transgender contestants. They conclude with an examination of Washington state's approach to "unconscious bias" in trials.

Plus: the duo offers a few pronunciation meae culpae.

Show Notes:

-David on Stacey Abrams’ election challenges

-Green v. Miss United States of America

-Henderson v. Thompson

-Scientific American on th...

Time to talk about Harvard. Returning to the affirmative action debate, David and Sarah consider the differences between UNC and Harvard, unpack the justices’ questions and comments, and ask what kind of diversity Harvard hopes to promote, if at all. They also discuss the preemptive backlash to Justice Amy Coney Barrett’s upcoming book, and the attack on Paul Pelosi.

Show Notes:

-Court filing detailing the break in to Nancy Pelosi's house.

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Two universities defended their admissions process before the Supreme Court on Monday. Starting with the University of North Carolina (with a Harvard tease), David and Sarah grapple with – and at times disagree about – the difficult questions at the heart of the hearing: how should we understand diversity? Is seeking justice for centuries of slavery and discrimination compatible with race neutrality? Who should bear the brunt of righting a historic wrong?

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Yes, David and Sarah will be teasing their initial thoughts on the Harvard case and the likelihood of the Supreme Court changing the game on affirmative action... but only after checking in on the real legal scandal currently gripping the nation: cheating allegations in the chess world.

Show Notes:

-Grutter v. Bollinger

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Scandal of scandals! Things get weird after a 19-year-old grandmaster is accused of cheating in a chess tournament against a world champion and David and Sarah are here for it. Plus: Let’s talk CFPB funding and a court decision that gets a direct ticket to SCOTUS.

Out of context: “a limited public figure for the purposes of Donkey Kong.”

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In today’s packed episode, David and Sarah check in on the Durham investigation after recent failures to reach convictions. They then turn to updates on the special master and the Mar-a-Lago case, and on the growing list of challenges (of varying quality) to Biden’s loan forgiveness plan. Not enough? They conclude with an overview of the Texas Pete Hot Sauce lawsuit.

-Texas Pete lawsuit

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What options does the former president (and his legal team) have in response to the subpoena? Did Judge Ho’s response to critics mollify Sarah’s concerns? And what does Clarence Thomas think about Prince? Plus: how early should you get in line for a chance at attending a Supreme Court hearing?

-Andy Warhol Foundation v. Lynn Goldsmith

-Judge Ho’s speech on Cancel Culture

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In an episode dedicated to our pig friends, Sarah and David are joined by two guests from The Humane Society of the United States: Vice President for Farm Animal Protection Josh Balk and Chief Counsel Jonathan Lovvorn. Josh offers insight into the fight against animal cruelty and Jonathan, who chaired a defense of California’s pig farming regulations before the Supreme Court this Wednesday, discusses whether the courts can (and should) resolve moral questions.

Show Notes:

-National Pork Producers v. Karen Ross

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Recording live at George Mason University, David and Sarah open with a critical WAP correction to last week’s show, followed by updates on The Onion amicus brief and the never-ending Yale drama. Plus: Amy Coney Barrett takes on Common Good Constitutionalism and the Fifth Circuit decides a “zero-pence case” on religious coercion.

Show Notes:

-Fifth Circuit decision on Freedom From Religion v. Wayne Mack

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An Alabama redistricting case receives a contentious Supreme Court hearing, weighing race neutrality against a history of racial discrimination. Donald Trump files an emergency request with the Supreme Court and it’s… technical. Oh, and did we mention The Onion’s amicus brief? Also: stick to the end for a letter from the best compliance supervisor in America.

Show Notes:

-The Onion’s amicus brief

-Merrill v. Milligan

-Trump’s emergency request

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Trump’s legal drama — Judge Cannon returns! Ken Paxton opines! Fraud alleged! — will be discussed at last... But first, Sarah and David preview what promises to be a spicy term for the Supreme Court (with not one, but two Section 230 cases!). They then pass through a culture war cul-de-sac via Judge James Ho’s clerkship boycott of Yale law students, and conclude with a tribute to Judge Laurence Silberman. 

Plus: the committed listener will learn the truth about how Sarah ended up in The Federalist Society.

Show Notes:

-David’s amicus brief

-Twitter a...

From the first legal challenge to President Biden’s student loan forgiveness program to a bad precedent in the making involving the NRA, from nation-wide injunctions to budding Supreme Court friendships — today’s show is packed with non-Trump content! (For a hard look into the ex-president’s legal woes, tune in again on Monday!). Also: Sarah and David put on their tin foil hats as they try answering once and for all whether our devices are listening in on us.

Out of context: “I don’t like this outcome, Sarah.”

Show Notes:

-Frank Garrison v. De...

Sarah and David tape a live episode at the University of Michigan in Ann Arbor, Michigan and they have a special guest: Sixth Circuit Court of Appeals Judge Chad Readler. After making it very clear on how to pronounce the judge’s name, David and Sarah discuss what the judge look for in clerks, his career as a judge and at the Department of Justice, and Wolverine football. Stick around to the end to hear where the judge comes down on David and Sarah’s great law school debate.  

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Texas joins an amici brief in Donald Trump’s Mar-a-Lago case, and Sarah and David ponder… why? Plus: a listener’s astute follow-up question about Yeshiva University gets the full AO treatment.

Show Notes:

-David’s French Press on “Segregation Academies”

-Trump’s response to DOJ’s motion for partial stay

-Red states amici brief for Trump v. USA

-Class action lawsuit against Ron DeSantis

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Back in the saddle, Sarah and David explain the Supreme Court’s decision on Yeshiva University v. Youth Pride Alliance (spoiler: this isn’t over yet). Plus: Who gets to censor who in the battle between Texas and tech platforms?

Show Notes:
-Yeshiva University v. Youth Pride Alliance
-NetChoice v. Ken Paxton
-Donald Trump v. the United States
-Ilya Somin Reason Magazine piece on Texas’ social media law
-Andrew Sullivan on monarchy and pre-Enlightenment institutions

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While David is still away on his well-earned vacation, it’s time for some career advice! Megan L. Brown – partner at Wiley Rein LLP – joins Sarah to talk about choosing (and getting hired by) the right law firm. How to get your best self across in interviews? How to judge a firm’s work culture? Is it wise to inquire about a firm’s work-life balance? And, most importantly, should you take career pointers from Netflix’s Partner Track? All shall be answered.

Oh, and by the way, the views expressed in this episode are Megan’s and Sarah’s, t...

A federal judge ordered the appointment of a special master to review the sensitive documents seized at Mar-a-Lago. Orin Kerr, law professor at the University of California, Berkeley, joins Sarah to break down the ruling. Then, Sarah is joined by Thomas Lee, former associate chief justice of the Utah Supreme Court, for another discussion of corpus linguistics.

Show Notes:

-A Corpus Linguistic Analysis of 'Foreign Tribunal'

-Corpus Juris Advisors

-Judging Ordinary Meaning

-Data-Driven Originalism

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David and Sarah are here to make sense of the latest back and forth between the Justice Department and Trump’s legal team over classified documents found at Mar-a-Lago. Plus: a closer look at the legal merits of the student loan forgiveness plan and two religious liberty cases.

Show Notes:

-DOJ response to Trump's special master request

-OLC opinion on student loan forgiveness plan

-Fellowship of Christian Athletes v. San Jose Unified School District Board of Education

-Yeshiva University v. YU Pride Alliance

Lea...

David and Sarah are joined by Will Baude, professor of law at the University of Chicago Law School, to discuss his review of Adrian Vermeule's new book Common Good Constitutionalism. What is “common good constitutionalism” and can David and Will convince Sarah that it’s a thing? Is international law real? And does anyone have standing in any upcoming legal challenges to President Biden’s student loan debt relief plan?

Show Notes:

-The American Prospect: What Common Good?

-Reason: The "Common-Good" Manifesto

-Ius & Iustitium: The Bourbons of Jurisprudence

-Reason...

David and Sarah are joined by ​​Bruce Friedrich, founder and CEO of the Good Food Institute, to discuss cultivated meat and the next agricultural revolution. What’s the difference between plant-based meat and cultivated meat? What’s the environmental impact of reimagining meat production? If it’s August, it’s our meat episode.

Show Notes:

-Bruce Friedrich’s TED Talk

-Good Food Institute

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David and Sarah discuss two Florida free speech cases and a very strange North Carolina one too about whether a court can strike down legislation if some of the legislators were elected from gerrymandered districts. And there's a very special guest at the end with a song to share.

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Bret Devereaux is an ancient and military historian at the University of North Carolina at Chapel Hill, and is here to discuss military tactics of some of fiction's biggest battles from The Lord of the Rings to Game of Thrones. Can David contain his excitement? Does Sarah understand anything being said?

Show Notes:

-A Collection of Unmitigated Pedantry

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Ed O'Callaghan, partner at WilmerHale and former principal associate deputy attorney general, joins David and Sarah to discuss the news that the FBI’s search of former President Donald Trump’s home is part of an investigation into possible violations of the Espionage Act. What does that mean? How does this all work?

Show Notes:

-French Press: Apply the Hillary Clinton Rule to Donald Trump

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Kevin Stroud, creator and voice of the History of English podcast, joins David and Sarah for an exciting deep dive into the history of the English language and the roots of legalese. Stroud traces the complex history of Old English, Old Norse, French, and Latin words within the American legal system, and details the story behind the first written Old English code of law. Plus: What roles do poetry and alliteration play in the court? And why does language evolve so much over time?

Show Notes:

-History of English podcast

-Law o...

Sarah and David get together for an emergency episode to discuss the FBI’s search of former President Donald Trump’s home at Mar-a-Lago on Monday. What does it all mean? How does a federal investigation of a senior official work, and what happens next? Plus: some possible theories and explanations that might shed some light on the events of yesterday.

Show Notes:

-TMD: The FBI Raids Trump’s Home

-Andy McCarthy in National Review: ​​The FBI’s Mar-a-Lago ‘Raid’: It’s about the Capitol Riot, Not the Mishandling of Classified Information

...

Sarah and David tackle the events of last week: the verdict in the Alex Jones case, and the story of Breonna Taylor and the court’s surprising indictments of several police officers. Should there be monetary limits on punitive damages? And why, in this day and age, does everything need to be entertaining? Plus: Our hosts explore what court precedent actually lurks behind the concept of shouting “Fire!” in a crowded theater.

Show Notes:

-New York Times: What To Know About Breonna Taylor’s Death

-French Press: Supreme Court Precedent Killed Breonna T...

Sarah and David have a lot to talk about as the midterm primaries wrap up and federal lawsuits are filed stateside. What is former President Trump’s role in the midterm elections, or does he even have one? Also on the agenda: near-total abortion bans and pro-life amendments face a difficult path in Idaho and Kansas, and Justice Samuel Alito goes to Rome.

Show Notes:

-The Sweep: What We Learned

-Blake Masters campaign ad

-Washington Post: Justice Dept. sues Idaho over near-total abortion ban coming Aug. 25

-Idaho Sta...

It’s August, and so David and Sarah are taking a break from court coverage and legal issues. Steven Pressfield, author of A Man at Arms, joins Sarah and David to kick off the month with a deep dive into what it’s like to write historical fiction set in the ancient world. Pressfield explains his mechanisms for creating fascinating stories and three-dimensional characters. What is the key to bringing history back to life? Plus: Steven gives some tried-and-true advice to aspiring writers.

Show Notes:

-A Man at Arms

-Steven Pressfield’s books...

Arkansas federal district judge Lee Rudofsky joins Sarah and David to give a guided tour of corpus linguistics, a recent but fascinating tool for jurists. How do corpus linguistics help define constitutional concepts and definitions? Plus, our hosts pick apart an article about the possible leaker of the Dobbs v. Jackson Women’s Health opinion.

Show Notes:

-Wilson v. Safelite

-New York State Rifle & Pistol Assn., Inc. v. Bruen

-Salt Lake City Corp. v. Haik

-Muscarello v. United States

-United States v. Rice

-CN...

Former federal judge John Michael Luttig joins Sarah and David to detail his involvement in the events leading up to January 6, 2021. He reveals the story behind his tweet thread on January 5 that ended up on the front page of the New York Times, and the problems with the Electoral Count Act of 1887. Plus: Luttig walks us through his comprehensive, published study refuting election fraud claims in the 2020 election.

Show Notes:

-Judge Luttig’s January 6 testimony

-Judge Luttig’s January 5 tweet thread

-Lost Not Stolen: The Conservative Case that Trump Lost...

David and Sarah return to discussions they had with their last guest, professor Akhil Amar, including living constitutionalism and the question of whether to let voters or jurists decide issues of justice. Then our hosts dive into the University of Pennsylvania controversy concerning the limits of academic freedom at the private Ivy League institution. Plus: the Biden administration’s bid to clarify abortion protections in the Emergency Treatment and Active Labor Act.

Show Notes:

-AO: Akhil Amar Talks Liberal Originalism

-University of Pennsylvania Law Dean’s Report Regarding Amy Wax

-Bi...

Sarah and David kick off the week with an exciting discussion of liberal constitutional originalism with Akhil Amar, author of The Words That Made Us: America’s Constitutional Conversation, and constitutional law professor at Yale University. Our guest gives a dynamic perspective of the decision in Roe v. Wade, as well as dives into the nitty-gritty of the varying modes of constitutional interpretation. Who gets to decide what the common good is? Are philosophers really as smart as they think they are?

Show Notes:

-The Words That Made Us: America’s Constitutional Conversation

...

David and Sarah cover a full spectrum of cases and interesting news today. First up: Will a judge order Elon Musk to buy Twitter? Our hosts address the Texas res judicata case (pronunciation courtesy of a Latin expert); Boycott, Divest, Sanction (BDS) laws; and an abortion travel case. They also answer a question from listeners about the Second Amendment and militia precedent.

Show Notes:

-Twitter v. Musk complaint

-Skiriotes v. Florida

-Fisher v. University of Texas at Austin

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David and Sarah are joined by Kannon Shanmugam, partner at Paul Weiss, for their now traditional end-of-term Supreme Court case roundup. Was this the most significant Supreme Court term of our lifetimes? Plus: it wouldn’t be a traditional episode with Kannon Shanmugam without another round of barbeque reviews.

Show Notes:

-TMD: The End of ‘Pen and Phone’

-Washington Post: A firm’s split with its star gun-case lawyer shows what ails the left

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David and Sarah begin by going through SCOTUSblog’s end-of-term Stat Pack. Then Hiram Sasser, executive general counsel for First Liberty Institute, joins for a deep dive into the Kennedy v. Bremerton School District Supreme Court case. Hiram, who was co-counsel on the case, explains the story and talks about Coach Joseph Kennedy from a more personal point of view. How did the facts become so muddled throughout the process? Our hosts have a lively debate about how the case could have—or should have—been handled.

Show Notes:

-SCOTUSblog Stat Pack

-Kenn...

Last week the Supreme Court ruled to limit the Environmental Protection Agency’s power to regulate carbon emissions. David and Sarah are here to discuss the decision’s fallout and what it means for the rest of the administrative state. Plus: What did the Supreme Court say about Migrant Protection Protocols? And, understanding the controversial election-law case that the Supreme Court agreed to hear.

Show Notes:

-West Virginia v. EPA

-Sarah in Politico: “Why Is Congress Broken? Because the Other Branches Are Doing Its Job”

-Biden v. Texas

On Wednesday, the Supreme Court ruled that Oklahoma state authorities can prosecute non-Indians who commit crimes against Indians on Indian reservations. Narrowing its 2020 decision in McGirt v. Oklahoma. David and Sarah then debate the case for prosecuting Donald Trump after this week’s surprise January 6 hearing. They also look at a surprising death penalty decision from last week.

Show Notes:

-Torres v. Texas Department of Public Safety

-Oklahoma v. Castro-Huerta

-French Press: “The Case for Prosecuting Donald Trump Just Got Much Stronger”

-Nance v. Ward

Le...

The Supreme Court has been making waves with two recent religious liberty cases, Kennedy v. Bremerton School District and Carson v. Makin. Sarah and David delve into the Kennedy opinion, involving a high school football coach who was fired for praying on the field. The case overruled the Lemon test, used in First Amendment cases for decades, but there’s still much to be decided in the future. Plus: More on the political fallout from the Dobbs v. Jackson Women’s Health ruling.

Show Notes:

-Kennedy v. Bremerton School Dist.

-Advisory Opini...

The outcome might not have been surprising, but the official release of the Dobbs v. Jackson opinion on Friday was still earth shaking, as it overturned Roe v. Wade and a half-century of precedent on abortion. Sarah and David convened an emergency podcast, diving headfirst into the details of the majority opinion written by Justice Samuel Alito, the concurrences by Justice Clarence Thomas, Justice Brett Kavanaugh, and Chief Justice John Roberts, and the liberal dissent. What does this case mean for us and where do we go from here?

Show Notes:

-Dobbs v. J...

The Supreme Court struck down a New York law that placed strict limits on carrying a gun outside the home, ruling that Americans have a broad right to carry a handgun in public for self-defense. David and Sarah are together in DC, at The Fund for American Studies, to break it all down. Plus, we have a Supreme Court decision dealing with Miranda violations, and questions from law students from around the country.

Show Notes:

-Vega v. Tekoh

-New York State Rifle & Pistol Assn., Inc. v. Bruen

L...

Sarah and David breeze through a few Supreme Court opinions released Tuesday to focus on United States v. Taylor, and how Maine is more rural than Alaska (go figure). David points out that Carson v. Makin, which held that Maine’s “nonsectarian” requirement in schools violated the Free Exercise Clause, is yet another victory for religious liberty in the U.S. And finally, a casual discussion of toddler yoga, skirt skepticism, and how to have fun at your job.

Show Notes:

-United States v. Taylor

-Carson v. Makin

-Peltier v. Char...

Sarah and David tackle six rather technical Supreme Court opinions released on Wednesday, including Ysleta del Sur Pueblo v. Texas, involving a Native American tribe. Plus: What does the term “mare’s nest” actually mean? Sarah sheds some historical insight and discusses the primary results in South Carolina and Texas with David. They also briefly cover the Southern Baptist Convention and a recent lawsuit in Florida: Does the right to life trump a religious exemption to have an abortion?

Show Notes:

-Ysleta del Sur Pueblo v. Texas

-The Sweep: The Value of a Tr...

David and Sarah give a rundown of two Supreme Court opinions this week: Shinn v. Ramirez and Denezpi v. United States. They discuss an interesting phenomenon called stochastic terrorism as they cover the attempted murder of Supreme Court Justice Brett Kavanaugh. The gun safety legislative package reached bipartisan compromises in the Senate, but will the House be a bigger hurdle? Our hosts think so.

Show Notes:

-Shinn v. Ramirez

-Denezpi v. United States

-Strickland v. Washington

-AEDPA Act of 1966

-French Press: "There Is No Right P...

Early Wednesday, police arrested an armed man only a block away from Supreme Court Justice Brett Kavanaugh’s home. The man, who was charged with attempted murder, said he wanted to kill Kavanaugh and reportedly was carrying a pistol, a knife, and pepper spray. David and Sarah discuss the dangers of releasing public officials’ personal information online and the darker story behind the false sexual misconduct allegations at Kavanaugh’s 2018 confirmation hearing. They also dive into Justice Clarence Thomas’ opinion in Egbert v. Boule, and tackle questions from the mailbag.

Show Notes:

-Washington Post: “Ma...

David and Sarah breeze past three boring Supreme Court cases before answering listener questions on everything from the Ninth Amendment to hearsay rules and to a brutal discussion of their greatest disappointments. It's a potpourri podcast as a prelude to the avalanche of Supreme Court cases that awaits us all.

Show Notes:

-Siegel v. Fitzgerald

-Gallardo v. Marstiller

-Southwest Airlines Co. v. Saxon

-Gallup: “Abortion Poised to Be a Bigger Voting Issue Than in Past”

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David and Sarah cover a wide variety of topics, from the Amber Heard/Johnny Depp verdict, to the acquittal of Michael Sussman on charges of lying to the FBI in a case brought by special counsel John Durham, to a Pennsylvania election law dispute, and of course the Supreme Court’s decision in the Texas social media case. They end with a discussion of a new Gallup poll about abortion rights and a discussion of the many problems of issue polling.

Show Notes:

-NetChoice, LLC v. Paxton

-Sarah in Politico: “What Alito...

David and Sarah talk about the Southern Baptist Convention sex abuse scandal, including the role that lawyers play in compounding the injustice of sex abuse in religious institutions. They also talk about an interesting insurrection election eligibility decision in the 4th Circuit and circle back to red flag laws. They also discuss the nature of courage and cowardice under fire.

Show Notes:

-Southern Baptist Convention sexual abuse report

-David in The Atlantic: “The Southern Baptist Horror”

-Cawthorn v. Amalfi

-French Press: “Pass and Enforce Red Flag Laws. Now.”<...

David and Sarah talk about the terrible school shooting in Texas and explore various gun control proposals, including red flag laws. They also talk about a new Second Amendment case and its potential relationship to the First Amendment. Next up is the Florida social media law regulation. They end with a brief look at a Pennsylvania election law case that could decide the 2022 Republican Senate primary.

Please note this episode was taped the evening of the school shooting in Texas. Technical difficulties delayed its release.

Show Notes:

-French Press: “Pass and Enf...

At long last, David and Sarah address the biggest issue in America today--the state of the Johnny Depp/Amber Heard defamation trial. They also talk about Ted Cruz's Supreme Court win, ask whether the Fifth Circuit destroyed the Securities and Exchange Commission, discuss an interesting case against Alaska Airlines, and end with a bit of legal/political potpourri.

Show Notes:

-Axios: “America more interested in Depp-Heard trial than abortion”

-Patel v. Garland

-Federal Election Comm’n v. Ted Cruz

-Jarkesy v. SEC

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It’s a special edition of Advisory Opinions as David and Sarah talk to Chief Judge Jeffrey Sutton of the 6th Circuit Court of Appeals. The discussion ranges far and wide but includes a focus on a subject we don’t talk enough about: state constitutional law.

Show Notes:

-“51 Imperfect Solutions: States and the Making of American Constitutional Law” by Judge Jeffrey Sutton

-“Who Decides?: States as Laboratories of Constitutional Experimentation” by Judge Jeffrey Sutton

-Revisionist History: “The Tortoise and the Hare”

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David and Sarah spend serious time talking about social media censorship, modern "public squares," and the ability of Texas and Florida to moderate Twitter and Facebook. They also dive into the legality of picketing at home, answer listener questions, and start a conversation about abortion and philosophy that they'll finish live and in-person in Miami on Monday.

Show Notes:

-Manhattan Community Access Corp. v. Halleck

-Washington Post: “Yes, experts say protests at SCOTUS justices’ homes appear to be illegal”

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Sarah and David talk more about the leaked draft opinion in Dobbs, but this time with a First Amendment twist. Activists have encouraged protesters to demonstrate outside the homes of the conservative Supreme Court justices. Does it violate the First Amendment to ban protests outside a justice’s home? Is it dangerous and foolish even if it’s lawful? Also, they track the political fallout and discuss three very different polls. Each of them is interesting. One of them is an outlier.

Show Notes:

-Washington Post: “How the future of Roe is testing Roberts...

David and Sarah spend more time on the leaked draft opinion by Justice Samuel Alito on Dobbs and ask the question: If Alito's opinion holds, what does that mean for gay marriage? They also discuss last week's Supreme Court ruling that the city of Boston violated the First Amendment by refusing to fly a Christian group’s flag and then discuss "After School Satan" more than any podcast in human history. They finish with a discussion of a great concurrence in an infuriating case.

Show Notes:

-G-File: “Why Joe Biden Hates Saying the A-Wor...

In an emergency podcast, David and Sarah discuss the leak of Justice Samuel Alito’s abortion opinion. Why did someone leak it? What are the ramifications for the Supreme Court? What should we make of Alito's opinion? What are the political consequences? All that and more in an unprecedented emergency pod for an unprecedented Supreme Court leak.

Show Notes:

-Politico: “Supreme Court has voted to overturn abortion rights, draft opinion shows”

-TMD: “Supreme Court Reportedly Poised to Overturn Roe v. Wade”

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David and Sarah talk about the Supreme Court as they discuss the fate of Trump's Migrant Protection Protocols, talk about yet another win for the First Amendment, and revisit Coach Kennedy's prayers. Then they move on to analyze one of the wildest and strangest qualified immunity cases yet and the prospects of Florida's social media censorship bill. Sarah ends with a potpourri of topics, including tales from the White House Correspondents Association dinner.

Show Notes:

-Shurtleff v. Boston

-Biden v. Texas

-David in The Atlantic: “Let Coach Kennedy Pray”

...

It's a glorious podcast today as David and Sarah talk about a praying football coach, Miranda rights, and the hottest Supreme Court justices. They answer a key constitutional question: how undead is the Lemon Test?

Show Notes:

-SCOTUSblog: “Can you sue the police for Miranda violations?”

-Kennedy v. Bremerton School District

-PBS: “Chief Justice Roberts’ emotional tribute to retiring Justice Breyer”

-Hottest Supreme Court justices?

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Sarah and David talk about the First Amendment, 14th Amendment, Puerto Rico, and progressive legal philosophy. They start with a big Supreme Court case that makes David fall asleep, move on to Clarence Thomas' musings, and then finish with an enlightening and interesting conversation with Steve Vladeck, law professor at the University of Texas, about the shadow docket, Kagan originalism, and much, much more. Oh, and David ends with a movie recommendation. Since his pop culture recommendations are infallible, you'll want to listen to the end.

Show Notes:

-City of Austin v. Reagan N...

David and Sarah dive into the nationwide injunction ending the Biden administration's travel mask mandate, with Sarah adopting a "nope, yep, yep" approach to the decision and David countering with a "nope, yep, nope." They also discuss Gov. Ron DeSantis and the First Amendment and conclude with a rather amusing example of Uber getting exactly what it asked for… and not liking it at all.

Show Notes:

-Decision that struck down the federal mask mandate

-David Latt: “Musings On Mizelle's Mask-Mandate Magnum Opus”

-Ilya Somin: “Federal Court Rules Against CDC Trans...

In a glorious pod about which songs will be sung and tales will be told, Sarah and David talk about our puzzling and arbitrary death penalty, briefly discuss a pronoun case, and then talk about change. Why aren't we the people we were 10 years ago? Finally, they ask and answer the question: Do we need more trial lawyers on the Supreme Court?

Show Notes:

-Supreme Court order list

-Love v. Texas

-French Press: “American Racism: We’ve Got So Very Far to Go”

-National Review: “How the Supreme C...

David and Sarah start with a short talk about Elon Musk and his quest to buy Twitter, then talk about a fascinating 6th Circuit concurrence that's the best two-page explainer of nationwide injunctions that's available anywhere, and they wind up with an extended discussion of library book bans, and how to judge what's best for kids.

Show Notes:

-House passes bill to honor Sandra Day O'Connor and Ruth Bader Ginsburg

-Arizona, et al. v. Biden, et al.

-PEN America: “Banned in the USA: Rising School Book Bans Threaten Free Exp...

Sarah and David address the very interesting announcement that Elon Musk won’t be joining Twitter’s board, including the clues about the reason that are not-so-hidden in Twitter’s announcement. They also discuss the acquittals in the alleged kidnapping plot of Michigan Gov. Gretchen Whitmer, and they talk to Catholic University law professor Joel Alicea about his new law review article, “The Moral Authority of Original Meaning.” Sarah ends the podcast with an interesting question.

Show Notes:

-Joel Alicea: “The Moral Authority of Original Meaning”

-“Why We Are Restless: On the Modern Que...

David and Sarah talk about a fascinating Supreme Court case that no one is discussing, unleash again on Yale Law School, and then spend the last few minutes on Sarah’s game show idea—a revolutionary combination of social science and dating advice. Plus, book recommendations!

Show Notes:

-Louisiana v. American Rivers

-Thompson v. Clark

-“Rethinking Sex: A Provocation” by Christine Emba

-David in The Atlantic: “Consent Was Never Enough”

-Christine Emba: “Consent is not enough. We need a new sexual ethic.”

-“Powers and Thro...

David and Sarah have much to discuss in today's podcast. They walk through a troubling 4th Circuit decision on race-motivated changes to a Virginia school's admissions policy, discuss a huge defamation verdict against Oberlin College, dive into the Disney wars in Florida, and finish with a quick (fake) legal battle over the titanic Duke/UNC clash at the Final Four.

Show Notes:

-Coalition for TJ v. Fairfax County School Board

-Gibson's Bakery v. Oberlin College

-UNC law students got results

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David and Sarah dive back into the free speech controversy at Yale and parse the difference between a statement being “disappointing,” “so disappointing,” and “bonkers town disappointing.” Then they talk about whether Trump committed a crime when he demanded that Mike Pence follow John Eastman’s legal advice. They end with a bit of fragrant Supreme Court potpourri that smells slightly like bacon.

Show Notes:

-A Message From Dean Gerken on the March 10 Protest

-Eastman v. Thompson

-Berger v. North Carolina State Conference of the NAACP

-Andy Warhol Foundati...

David and Sarah welcome a special guest, Seth Kretzer, the lawyer who argued and won Ramirez v. Collier, the Supreme Court term’s biggest religious liberty case (so far). Sarah and David also talk about Ginni Thomas’s texts, vaccines at the Supreme Court (again), free speech, and Will Smith.

Show Notes:

-David in The Atlantic: “The Worst Ginni Thomas Text Wasn’t From Ginni Thomas”

-Houston Community College System v. Wilson

-Ramirez v. Collier

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David and Sarah discuss Ketanji Brown Jackson’s Supreme Court confirmation hearings and a disruption at Yale Law School. They drill down on claims that Judge Jackson is soft on child porn crimes and amplify their objection to both intolerant students and cowardly administrators. Throughout the podcast, a courageous Sarah fights through COVID to podcast in the face of adversity.

Show Notes:

-The Dispatch: “Ketanji Brown Jackson Weathers a Marathon Day Two”

-National Review: “Senator Hawley’s Disingenuous Attack against Judge Jackson’s Record on Child Pornography”

-National Review: “Ho-Hum: The Cases...

On today’s podcast, David and Sarah discuss red state crime rates versus blue state crime rates, environmental law as a vehicle for rescuing the American constitutional structure, why senators make better presidential candidates than they used to, and the evolutionary psychology behind bad gamer behavior.

Show Notes:

-Axios: Dem group points to "Red State Murder Problem"

-Massachusetts v. Environmental Protection Agency

-SCOTUSblog: Greenhouse gases and “major questions”: Justices to hear argument on EPA’s power to tackle climate change

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David and Sarah hit a ton of topics in today’s podcast, but with an emphasis on state law, including some terribly drafted state laws. They start with the latest on that abortion law in Texas, move on to an abortion law in Missouri, and then discuss the avalanche of misleading commentary about Florida’s so-called “don’t say gay” law (including how "don't say gay" is itself misleading). They wind up talking about teachers' free speech rights, pronouns, and critical race theory.

Show Notes:

-Baby Got Brief lyrics

-New York Times: “Mos...

On today’s episode, Sarah and David spend serious time discussing the Supreme Court’s latest voting rights decision, then they launch into their long-awaited, much anticipated analysis of Ketanji Brown Jackson’s “most controversial” opinion (spoiler alert: it’s not that controversial). They end with a chat about free speech on campus and why the culture matters.

Show Notes:

-Revisiting the History of the Independent State Legislature Doctrine

-Eradicating Bush-League Arguments Root and Branch: The Article II Independent-State-Legislature Notion and Related Rubbish

-Merrill v. Milligan

-Moore v. Harper

On today’s podcast, David and Sarah talk about five, yes, five Supreme Court opinions, including cases involving criminal law, state secrets, and social media moderation. They mainly focus on a fascinating case that asks, when are ten crimes one crime?

Show Notes:

-Wooden v. United States

-United States v. Tsarnaev

-Cameron v. EMW Women’s Surgical Center, P. S. C.

-United States v. Zubaydah

-Supreme Court Order List

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On today’s episode, David and Sarah start with a Supreme Court update that features cases about adoption and religious freedom before moving on to an extensive discussion of a court filing contesting John Eastman's claims of attorney-client privilege. Does this filing indicate that Donald Trump committed a crime? Also David and Sarah briefly discuss international law and whether European Union membership for Ukraine would mean that the EU would have to fight for Kyiv. Finally, Sarah ends the podcast with the first date story the listeners all wanted to hear.

Show Notes:

-Eg...

On today’s podcast, David and Sarah discuss a new case striking down a high school admissions policy in Virginia, digress into a talk about the power of Ukrainian courage, and then return to the law to talk about Clarence and Ginni Thomas and conflicts of interest. They finish with an extended discussion of the role of legislation in regulating the dissemination and discussion of ideas in public schools.

Show Notes:

-Coalition for TJ v. Fairfax County School Board

-Volodymyr Zelenskyy on the Ukrainian version of Dancing with the Stars

...

On today’s podcast, David and Sarah take a trip to New Haven to speak with the law students of Yale University. It’s another packed show. The Supreme Court heard oral argument in a case that dealt with whether a state can defend a rule when the United States stops doing so. Plus, they discuss public-accommodation law and a redistricting lawsuit in Arkansas, but that’s not all, sparks fly when our hosts open the floor for questions.

Show Notes:

-Arizona v. City and County of San Francisco, California

-303 Creativ...

Today’s podcast is more fast-paced than the NBA All-Star game. David and Sarah talk about the Supreme Court and immigration, Trump and free speech, vaccines and drama in the Fifth Circuit, qualified immunity, and no podcast would be complete without a quick conversation about treason. Buckle up, this pod never slows down.

Show Notes:

-Fifth Circuit opinion

-Eleventh Circuit opinion

-Scott’s law review article: “Qualified and Absolute Immunity at Common Law”

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On today’s podcast, David and Sarah are amazed by developments in the Sarah Palin trial, and they explain why. They discuss some excellent commentary on the latest Durham allegations, and spend some time talking about Florida's "don't say gay" law and wonder whether it might have constitutional problems. They end with the Rule 22.4 discussion that the people demand.

Show Notes:

-Andrew’s piece: “Making Sense of the Latest Clinton-Trump-Russia Court Filing”

-Julian Sanchez’s thread on the Durham filing

-Letter asking Justice Gorsuch to block New York City’s vaccine man...

On today’s episode, David and Sarah pop from topic to topic, including a discussion of a very strange letter, a brief foray into the Electoral Count Act, a few observations about the Trump top secret document revelations and the most recent John Durham filing. They wrap up with Olympic nonsense. The Russians are at it again.

Show Notes

-Judge Clemon's letter to President Biden

-J. Michael Luttig: “The Conservative Case for Avoiding a Repeat of Jan. 6”

-Latest John Durham filing

-Reuters: “Anti-doping agencies, IOC brace for drawn-out...

It's a day of disagreement! David and Sarah walk through a critical Supreme Court voting rights case, and come out in a different place. They walk through the Sarah Palin trial, and come out in a different place. But then, unity reigns when Sarah concludes the podcast by dunking on Russia and hanging on the rim.

Show Notes:

-Merrill v. Milligan

-Purcell v. Gonzalez

-Section 2 of the Voting Rights Act: Vote Dilution and Vote Deprivation

-Slate: “Sarah Palin Takes the Stand”

-Washington Post: “Palin trial exposes...

On today’s episode, David and Sarah dive into multiple issues. Is Ketanji Brown Jackson still Biden's frontrunner? Also, she wrote her first D.C. circuit opinion. What does it say about her jurisprudence? They also talk about an odd case about Yelp reviews before turning to more serious subjects--deadly no-knock raids and once more about NFL coaches, and how cultures can develop unfair systems.

Show Notes:

-Reason: “Judge Ketanji Brown Jackson's First Circuit Court Opinion”

-Politico: “Former clerk rewrites SCOTUS contenders’ Wikipedia bios”

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On today’s podcast, David and Sarah talk about all aspects of Brian Flores's lawsuit against the NFL, with a deep dive into law and culture. They then turn to he who shall not be named and pour water on a specious vision of the apocalypse. They wind up with an impromptu discussion of Whoopi Goldberg, Roseanne Barr, grace, and accountability.

Show Notes:

-Brian Flores's NFL lawsuit

-David in The Atlantic: “The NFL Has a ‘Good Ol’ Boy’ Problem”

-New York Times: “Cawthorn Challenge Raises the Question: Who Is an ‘Insurrectio...

On today’s episode, Sarah details yet another animal rescue because of course. Then David and Sarah dive into the Electoral Count Act and a mixed-up, messed-up Supreme Court case about pulling books from school libraries. And finally, can Sarah get David to talk about Rep. Madison Cawthorn?

Show Notes:

-Sarah rescues a hawk

-Wall Street Journal: “Congress Sowed the Seeds of Jan. 6 in 1887”

-New York Times: “Book Ban Efforts Spread Across the U.S.”

-Board of Education, Island Trees Union Free School District No. 26 v. Pico by Pico

On today’s podcast, David and Sarah respond to all the questions about Justice Stephen Breyer's retirement and replacement. Who are the leading candidates? Why is all the talk about Justice Kamala Harris or Justice Michelle Obama a bunch of rubbish? Do we expect any real change in the philosophical composition of the court? They wind up with a discussion of seditious conspiracy and all the reasons why it's tough to charge anyone with trying to overthrow the government.

Show Notes:

-Laurence Tribe: “No hiding behind Pence's skirt on the Supreme Court nomination”

-O...

On today’s podcast, David and Sarah celebrate 200 episodes with a discussion of two key college admissions cases the Supreme Court took up. Plus, they preview Sarah Palin’s defamation trial, and look at a circuit court judge’s unusual opinion.

Show Notes:

-Students for Fair Admissions Inc. v. President & Fellows of Harvard College

-CNN: “Why the Sarah Palin v. New York Times trial will be an 'excruciating experience' for the paper”

-Judge VanDyke’s Ninth Circuit opinion

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On today’s podcast, David and Sarah break down "Maskgate," the claim that Justice Neil Gorsuch refused to show basic courtesy to Justice Sonia Sotomayor by refusing to wear a mask and find the claims wanting. They ask, "When a report seems to fall apart, what should a reporter do?" They also talk about how Sarah is setting Supreme Court precedents, wonder if a Satanist flag will soon fly over Boston, and discuss for just a few seconds Ted Cruz's very, very boring case at the Supreme Court. They close, however, with a dash of English cultural history that yo...

On today’s episode, David and Sarah take a quick look at an intriguing cert grant at the Supreme Court and then dive into a fascinating discussion about amending the Constitution with University of Texas law professor Sanford Levinson. He thinks the Constitution has some structural problems, and David and Sarah walk through his critiques. By the end, they ask, is there any constitutional reform that can save us if we’re determined to be dysfunctional?

Show Notes:

-Sarah in Politico: “It’s Time to Amend the Constitution”

-Levinson: “The Iron Cage of Vener...

It's an emergency podcast! (Well, at least in part). David and Sarah recorded a mailbag podcast Thursday morning, complete with fretting about when the Supreme Court would rule in the vaccine mandate cases. Then, SCOTUS ruled! So this podcast keeps the mailbag and cuts the fretting. Instead David and Sarah spend the first half walking through the vaccine opinions. It's exactly the kind of conversation that everyone loves, a deep discussion of administrative law.

Show Notes:

-NFIB v. OSHA

-Biden v. Missouri

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On today’s episode, David and Sarah do a deep, deep dive into the vaccine mandate oral arguments at the Supreme Court. Sarah walks us through the HOP's (husband of the pod) arguments, and she and David decide the vital question of which basketball analogy to use to describe the likely outcome. They also take a quick look at the health care worker mandate and make their predictions.

Show Notes:

-Biden v. Missouri oral argument

-Nat. Fed'n of Indep. Bus. v. Dept. of Labor oral argument

-Wall Street Journal art...

On today’s episode, David and Sarah start with a husband-of-the-pod update, debate a federal district court judge’s ruling temporarily granting more than two dozen Navy SEALs a religious exemption from the Navy’s COVID vaccine mandate, and spend the lion’s share of their time talking about the infernal Electoral Count Act and saving America from electoral chaos.

Show Notes:

-U.S. Navy SEALs 1-26 v. Joseph R. Biden, Jr.

-French Press: “Stop Screwing Around and Reform the Electoral Count Act”

-Reason: “How Justices Scalia, Sotomayor, and Breyer Inscribe...

David and Sarah talk about everything from COVID, to goat rescues, to the Supreme Court, to TikTok in this wide-ranging first pod of 2022. Do you wonder how you rescue a goat? Why is John Roberts the most popular federal official in the land? Is it lawful to discriminate on the basis of race in medical treatment? What's it like to live with a person who's set to argue the biggest SCOTUS case of the new year? Are kids on TikTok fair game for the media? If these are your questions, this podcast has the answers.

S...

On our last podcast of the year, Sarah takes you to the 2021 National Lawyers Convention at the Mayflower Hotel in Washington, D.C., and introduces you to a dozen judges from all levels of the judiciary. You get a little law, singing, bourbon and bullets, and some important advice for law students. Did you expect David and Sarah to end the year any other way?

Show Notes:

-Give someone a Dispatch subscription this Christmas

-"We'll Be Back" by Judge Elrod and Judge Eskridge

-Read David in The French P...

On today’s podcast, David and Sarah dive back into vaccine mandates, as the CMS mandate for health care workers and the OSHA guidelines for private businesses head to the Supreme Court. Then it’s First Amendment and compelled speech time at the 5th circuit with a student from Sarah’s rival high school from back in her football orchestra days. This case has it all: free speech, communists, and Bruce Springsteen. It's also a conversation about the similarities— and differences—with one of David’s long-time favorite cases: West Virginia v. Barnette.

Show Notes:

-6th Cir...

In today’s episode, Sarah and David discuss the Supreme Court's decision not to enjoin the New York vaccine mandate for health care workers and focus on a very interesting, super-intriguing dissent. Then, they have a conversation with Virginia Solicitor General Michelle Kallen about the Equal Rights Amendment, its ratification by Virginia, and whether the ERA is now part of the Constitution. Finally, with the help of a listener, they finally realize that Sarah's name is a sentence.

Show Notes:

-Dr. A v. Hochul

-Virginia v. Ferriero

Lea...

If you woke up this morning thinking about Jussie Smollett, the Texas abortion law, California gun rights, and California vaccine mandates, then this is the podcast for you. David and Sarah dive into a legal issue that might overturn Smollet’s conviction, analyze the Supreme Court’s decision to permit a very narrow facial challenge to S.B. 8, discuss Gavin Newsom’s swing-and-miss, and wrap up the main portion of the pod with a discussion of vaccine mandates in San Diego schools.

Show Notes:

-Whole Woman’s Health v. Jackson

-9th Circui...

David and Sarah have another action packed pod. First, the US Solicitor General weighs in on whether the Court should hear the case about whether Harvard’s admission policy violates race discrimination laws. Then they talk about a case that was argued this week at the Court that looked at (once again) whether states could refuse to allow voucher money to go to religious schools. Then the 9th Circuit had some feisty dissenting opinions when it upheld California’s ban on high capacity magazines for guns. And lastly, should judges be able to pick their replacements?

Sho...

On today’s podcast, David and Sarah discuss charges in Michigan against a school shooter's parents, the possible demise of a key Supreme Court precedent (not Roe), and an intriguing new appeal to the Supreme Court. At the end of the podcast, Sarah answers her critics. Does she get as spicy as Alito?

Show Notes:

-Timeline of Michigan school shooting

-NPR: “Parents of Michigan school shooting suspect are charged with involuntary manslaughter”

-Sue and Settle report

-New York Times: “What Does the U.S. Owe Separated Families? A Politic...

It's an almost-all-Dobbs podcast, as David and Sarah discuss the oral argument that surprised the nation. Could Roe v. Wade and Planned Parenthood v. Casey actually fall? David and Sarah talk about the court's decision-making process from here and the history of judge-flipping post-argument, and they identify the key moments in yesterday's argument. Also, they give their listeners a vital challenge--and if they can meet that challenge, then Advisory Opinions will be the indisputable flagship of the Dispatch podcast fleet. Listen to learn what the challenge is.

Show Notes:

-Dobbs v. Jackson oral a...

On today’s podcast, David and Sarah open with the puzzling case of Project Veritas and James O'Keefe. Why is a New York appeals court appearing to let stand a prior restraint on the press? They then answer a fascinating reader mail question before wrapping up with an extended discussion of self-defense in the context of an incredibly troubling Texas shooting that was caught on tape.

Show Notes:

-Near v. Minnesota

-New York Times Co. v. United States

-University of Richmond Law Review: “The Meaning of Life (or Limb)”

-R...

On today’s episode, David and Sarah take a deep dive into the Kyle Rittenhouse verdict with Damon Preston, Kentucky's Public Advocate and a criminal defense attorney with almost 30 years of experience. They discuss self defense law, the difference between the Rittenhouse trial and the trial of Ahmaud Arbery's killer, and the ways in which the criminal justice system could be reasonably reformed. Also, David exults in Mississippi's stinging defeat at the Supreme Court as the court turned back the Magnolia State's greedy attempt to keep Tennessee from drinking water from its own wells.

Show Not...

On today’s show, David and Sarah bring Neil Weare, president and founder of Equally American, on the pod to teach us interesting things about the Constitution and history, with an emphasis on the unique history of American territories. And then Sarah and David dive into the controversies at Yale Law School and try to answer the question, "What the heck is going on?"

Show Notes:

-French Press: “An Airing of Grievances Against Diversity Training”

-Reuters: “Yale Law students 'blackballed' for refusing to lie about professor, lawsuit says"

-Reason: “More Shenan...

On today’s podcast, David and Sarah dive into vaccine mandates, religious exemptions, and the Civil War. They analyze a recent court ruling blocking the Biden OSHA mandate, and then discuss what a “sincerely held religious belief” is in the eyes of the law. Finally, they conclude with a discussion of the Constitution, Abraham Lincoln, and whether he was an authoritarian who “broke” the Constitution before it was rebuilt by the Civil War amendments.

Show Notes:

-5th Circuit extends stay of OSHA vaccine mandate

-Noah Feldman: “This Is the Story of How Linco...

On today’s podcast, David and Sarah talk to Erin Busby, Supreme Court co-counsel for John Ramirez in a critical death penalty religious liberty case. They walk through oral arguments and discuss the mysterious "silent justice." Then David and Sarah talk billboards. Yes, billboards. And they wrap with a discussion of misconceptions of self-defense and the Kyle Rittenhouse case.

Show Notes:

-Ramirez v. Collier oral argument

-City of Austin, Texas v. Reagan National Advertising of Texas Inc. oral argument

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On today’s podcast, David and Sarah briefly preview key Supreme Court arguments before diving into the 5th Circuit's stay of the new Biden administration vaccine regulations, discuss the role of race in jury challenges (with an emphasis on jury selection in the Ahmaud Arbery murder case in Georgia), and finish with the latest developments in John Durham's investigation of the Trump-Russia investigation, complete with thoughts on the infamous Steele dossier.

Show Notes:

-5th Circuit blocks OSHA's vaccine mandate

-The Dispatch: “A Vigilante Killing in Georgia”

-National Review: “The Unwr...

On today's episode, David and Sarah are on the road at the Howard H. Baker Jr. Center for Public Policy on the campus of the University of Tennessee. Before a live audience they discuss Supreme Court oral arguments in New York State Rifle and Pistol Association v. Bruen, a case challenging a New York law that places strict limits on carrying guns outside the home. Plus, David and Sarah share more thoughts on the Texas abortion law case before the Court, and they take audience questions.

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On today’s episode, David and Sarah react to the oral arguments in the Texas abortion law cases. The Supreme Court heard three hours of arguments in two different cases and from four different advocates. But after all of it, Sarah and David agree: it’s a mess…and it still doesn’t have anything to do with Roe v. Wade. They also discuss the latest grants, denials, and opinions coming down from the Court.

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On today’s show, it's a battle of Generation X versus millennials versus Generation Z as Sarah and David shout, "You kids get off my lawn!" But before the cultural rant, they explore parental rights in public schools, discuss the mixture of church and politics, and talk about the Kyle Rittenhouse case and the law of self-defense. Then, and only then, does Sarah lament "kids these days."

Show Notes:

-TMD on ‘gain of function’ research

-NPR “The Johnson Amendment In 5 Questions And Answers”

-French Press “When the State Kinda Sorta Parent...

On today’s episode, David and Sarah celebrate the Supreme Court finally bending to their will and then preview the upcoming oral arguments regarding SB 8, the Texas abortion law. They then move on to a discussion of a wild case involving videotaping police, highlight Liberty University's problems with sexual assault, and then wonder whether an important free speech case is dead or just "mostly dead."

Show Notes:

-United States v. Texas

-SCOTUSblog on oral arguments in the Texas abortion law case

-303 Creative v. Elenis

-Kristen Waggoner le...

It’s weeping and gnashing of teeth for David in today's podcast as the Supreme Court deals a devastating blow to his dreams of abolishing qualified immunity. But Sarah saves the AO crew from despair by conducting another Supreme Court symphony regarding the Biden commission. Come for the despair, stay for the analysis, and relish a deep dive into Supreme Court reform.

Show Notes:

-Supreme Court order list

-Presidential Commission on SCOTUS

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What do court packers have in common with Hugo Chavez? Take a listen to this action-packed pod to find out. Sarah conducts a symphony of Supreme Court commission analysis, including guiding a walk through American legal history to explain the commission’s surprisingly conservative comments. David discusses the legal issues roiling the nation’s most controversial school district.

Show Notes:

-Presidential Commission on SCOTUS

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On today’s episode, we get a Supreme Court update from Sarah and not one but two entire Ted Talks from David. They cover a very obscure (yet interesting!) constitutional case, and then discuss two viral stories--one involving an elementary school and juvenile justice system in Tennessee, the other involving an absurd act of unfairness at Yale Law School. Our hosts talk poverty and privilege in the same pod. Oh, and Sarah winds it all up with a discussion of laches and estoppel that you don't want to miss.

Show Notes:

-ProPublica “Black Chil...

It's executive privilege day on Advisory Opinions! After a brief update on the Texas abortion litigation, David and Sarah "dive right in" to a discussion of the January 6 commission subpoenas and the power of Donald Trump to use executive privilege to block testimony. Our hosts also talk about how "parents and pals" help debunk a Brett Kavanaugh conspiracy theory. And they wind up with a crazy clemency case that's likely to leave a man in prison because a Donald Trump sentence was just too ambiguous.

Show Notes:

-5th Circuit abortion ruling

In today's pod David and Sarah discuss a federal district court injunction against Texas's heartbeat bill, dive into the deep waters of Mississippi's unbearable aquatic greed, and discuss whether ten robberies is one "occasion" for crime or, well, ten. But that's not all! They also engage in a brief but spirited debate about whether the DOJ's letter about threats against school board members. The pod finishes by talking about manners. In an interesting way. We promise.

Show Notes:

On this week’s episode, Sarah is back from the Galápagos Islands just in time for the Supreme Court’s fall term. David and Sarah jump right in, starting with a rather spicy speech from Justice Samuel Alito. Our hosts also discuss a case with conspiracy theorist Alex Jones, a professor who is suing UCLA, and the high court’s upcoming cases.

Show Notes:

-From SCOTUSblog: Alito blasts media for portraying shadow docket in “sinister” terms

-Why I Am Suing UCLA, by Gordon Klein at Common Sense with Bari Weiss

-Just...

In a special edition of the podcast, David interviews his former colleague Greg Lukianoff, president of the Foundation for Individual Rights in Education. The two discuss the state of free speech on college campuses and why it’s not just a higher education issue, but one that also impacts workforces and the United States in general. And of course, lacking Sarah’s moderating influence, there are also some (relatively minor) descents into nerdery over Star Trek.

Show Notes:

-The Coddling of the American Mind: How Good Intentions and Bad Ideas Are Setting Up a Ge...

In today’s episode, Sarah and David discuss a number of situations where events have proven their predictions true, starting with a challenge to the Texas abortion law and ending with a complaint over critical race theory. In between, our hosts also dissect the legal arguments underpinning the push to get Vice President Mike Pence to overturn the 2020 presidential election and discuss a new bill that would reign in presidential powers.

Show Notes:

-Alan Braid, Texas abortion doctor, sued over ban

-John Eastman memo

-Reuters story on critical race th...

On today’s podcast, David and Sarah discuss a host of thorny legal issues starting with an indictment against a lawyer who lied to the FBI when he alleged communications between the Trump Organization and a Russian bank. They then dig into a Second Amendment amici brief, a defamation case, and the issue of misleading headlines. Listen to the end to hear Sarah explain how to get away with murder (or somewhat less sensationally, how to get away with interstate mail fraud).

SHOW NOTES

Indictment: U.S. v. Michael A. Sussmann

Second Amendment Am...

In today’s episode, Sarah and David give you everything you need to combat half-baked hot takes about the Biden administration’s vaccine mandate as they discuss whether the Occupational Safety and Health Administration (OSHA) has the statutory authority to issue its rule. They then indulge in an exploration of the Commerce Clause. Lastly, our hosts discuss new legal updates to the abortion heartbeat law, as well as some potpourri.

Show Notes:

-President Biden’s executive order requiring COVID-19 vaccination for federal employees

-Explanation of Biden’s EO in The Morning Dispatch...

In today’s episode, Sarah and David discuss a fiery concurrence from Judge James Ho in the U.S. Court of Appeals for the 5th Circuit’s opinion upholding a Texas ban on certain abortion procedures. They then discuss an indictment related to the Ahmaud Arbery killing, a death penalty case with religious liberty implications, and a Donald Trump Jr. defamation case. Lastly, listen till the end to hear about the cult (which centers around a current Supreme Court justice) that our hosts are vying to join.

Show Notes:

-The 5th Circuit’s opinio...

Late Wednesday night, the Supreme Court, in a 5-4 decision, refused to block a Texas abortion law that went into effect earlier in the day. Sarah and David engage in a very detailed discussion of Whole Woman’s Health v. Jackson, equipping intrepid listeners to combat any bad legal hot takes they might encounter. They cover what this means for states that want to challenge constitutional rights, for women in Texas with nonviable pregnancies, and, the million dollar question: what this means for the right to abortion established by Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Ca...

For today’s episode, Sarah is joined by special guest Ben Folds, storied American singer-songwriter, musician, and podcaster. They discuss how failure is baked into doing science, how Folds’ song about the Mueller investigation is the perfect place to start for the law-curious, and the song-writing process.

Show Notes:

-Mister Peepers by Ben Folds

-Still Fighting It by Ben Folds

-A Dream About Lightning Bugs: A Life of Music and Cheap Lessons by Ben Folds

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Mitchell Berman, professor of law at the University of Pennsylvania’s Carey Law School, joins our hosts for a fascinating discussion on the jurisprudence of sports. In a wide-ranging discussion, David and Sarah adjudicate everything from how unwritten traditions are enforced in games to how robot umpires are changing the landscape. And of course, no sports law discussion would be complete without a dive into the Olympics.

Show Notes:

-The Jurisprudence of Sports by Mitchell Berman

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In today’s episode, Sarah takes listeners along on a wildlife rescue mission that involves a baby turtle, a surprise rain storm, and mosquito netting. But don’t worry, it has a happy ending. Our hosts then turn to the Biden administration’s proposal to tie mask mandates to civil rights law and the latest development on the “remain in Mexico” policy. Finally, Sarah and David discuss the Texas Supreme Court ruling that is bad news for Texas Democratic lawmakers trying to avoid arrest.

Show Notes:

-The Dispatch Live on Afghanistan

-New York...

On this episode, our hosts are joined by Matthew Barzun, an American businessman, diplomat, and longtime political fundraiser. Sarah and David dive into his paradigm-shifting book, The Power of Giving Away Power, and what it teaches about leadership. Along the way, they also discuss everything from what Barzun learned during his time fundraising for former president Barack Obama’s 2008 presidential campaign, to the etiquette of bowing to royalty while working as an American ambassador abroad.

Show Notes:

-Matthew Barzun’s book, The Power of Giving Away Power: How the Best Leaders Learn to Let...

In a jam-packed episode our hosts explore everything from vaccine passports on cruise ships to a shaky argument that eviction moratoriums violate the Third Amendment’s prohibition on quartering soldiers. First up on the docket, Sarah and David dive into attempts by Sidney Powell, Rudy Giuliani, and Mike Lindell’s to dismiss Dominion’s defamation lawsuit against them. Be sure to listen to the end for their analysis on whether a topless sunbathing case meets the intermediate scrutiny test.

Show Notes:

-Dominion defamation lawsuit

-Preliminary injunction on vaccine passports in Florida

...

In this episode, David and Sarah continue their August tradition of looking outside the world of legal nerdery with Jonathan Rauch, a senior fellow at the Brookings Institution, and author of the book The Constitution of Knowledge. Rauch has been warning about the dangers to free speech for a long time. What is the state of free speech? And how much of a threat is illiberalism?

Show Notes:

-Rauch’s book The Constitution of Knowledge

-Rauch’s book Kindly Inquisitors

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In today’s episode, David and Sarah discuss the Biden administration’s flip-flop on extending the eviction moratorium and how it’s almost certainly an unconstitutional violation of the nondelegation doctrine. They then take on the legal implications of Andrew Cuomo’s sexual harassment controversy, with Sarah explaining why Cuomo’s office was a textbook case of a severe and pervasive hostile work environment. Next, our hosts review a ruling from the 7th Circuit upholding Indiana University’s vaccine mandate and discuss how Twitter posturing on vaccines doesn’t always hold up in court. Finally, David and Sarah talk Facebook and a...

Today on the pod, it’s a guest for whom David has been waiting for—Avi Loeb, an astrophysics professor at Harvard University who thinks it might just be possible that aliens have visited earth. Loeb talks about his research into Oumuamua, the first known interstellar object that’s passed through our Solar System, and gives his thoughts on the recently released UFO report from the Office of National Intelligence. Loeb also tells David and Sarah about his scientific philosophy—how science is like a fishing expedition where you throw out a hook and see what happens.

Sh...

Could it be time for the Supreme Court to revisit Masterpiece Cakeshop? In today’s episode, David and Sarah discuss a ruling from the 10th Circuit requiring a web developer to create a site for a same sex wedding and what that means for the ongoing debate about compelled speech and religious liberty. They then chat about some new developments involving the lawsuit against Alabama Rep. Mo Brooks for his involvement in the January 6 riot and yet another story involving Amy Chua at Yale Law School.

Show Notes:

-10th Circuit Ruling on Co...

On today’s pod, the discussion is (almost) all about abortion jurisprudence. After a brief look at Taking Offense v. California—a California Court of Appeal for the Third Appellate District case striking down a California law criminalizing long-term care workers repeatedly misgendering their residents—David and Sarah dive into Mississippi’s challenge to Roe v. Wade, which directly asks the Supreme Court to overturn the almost 50-year-old precedent. How did the Mississippi attorney general frame the argument? How likely is it that the argument succeeds? What would American governance look like in a post-Roe world?

Show N...

On today’s episode, David and Sarah talk about the recent Supreme Court term with Kannon Shanmugam, a Supreme Court litigant and a partner at Paul Weiss LLP. Our hosts ask Shanmugam what it’s like to argue cases remotely, how much the Supreme Court has changed during Amy Coney Barrett’s first term, and about the court’s judicial philosophy on issues like free speech and qualified immunity. Shanmugam talks about the cases he argued this term and explains how he chooses which clients to represent pro bono.

Show Notes:

-Borden v. United S...

It’s a First Amendment-themed pod today. First, David and Sarah discuss the city of Anaheim’s decision to cancel an America First rally with Matt Gaetz and Marjorie Taylor Greene, and how it’s a textbook example of a free speech violation. They then dive into a ruling from a very divided 9th Circuit about a high school coach who was fired for praying publicly with students after football games. Next, they chat about an 8th Circuit case involving University of Iowa and its selective enforcement of free association policies for Christian groups. Finally, David and Sarah talk about...

It’s an (almost) Supreme Court-free podcast episode today. First, David talks about a ruling from the 4th Circuit striking down federal prohibitions on adults under 21 purchasing firearms, and Sarah gives her thoughts on whether the decision will stand. Then, our hosts dive into the latest in the Michael Avenatti saga, a ruling from a federal judge sentencing him to two and half years in prison for extortion. Finally, Sarah and David chat about a new Tennessee law requiring businesses to notify their customers about their transgender bathroom access policies.

Show Notes:

-Hirschfeld v...

In today’s podcast, David and Sarah talk about the recent Supreme Court term and how Trump’s justices have changed the ideological makeup of the court. After some SCOTUSBlog stats analysis, Sarah explains how she would categorize the Supreme Court’s jurisprudence this year, and why a lot of commentators are leaving out part of the story when they discuss the justices’ ideological leanings. Plus, a dive into an anti-critical race theory lawsuit out of Evanston, Illinois, where elementary school students have been getting simplistic and controversial “anti-whiteness” training.

Show Notes:

-SCOTUSBlog statistics

-Deemar v...

After some brief thoughts about Trump’s lawsuits against Facebook, Twitter, and Google, Sarah and David chat with a special guest: Peter Canellos, editor at large at Politico and the author of a new biography of Justice John Marshall Harlan. Tune in to hear Canellos share some of his research on a man whom he describes as “America’s judicial hero,” a justice who went from Southern slave owner to staunch segregation opponent. Our hosts ask Canellos about Harlan’s famous dissent in Plessy v. Ferguson and what Harlan’s legacy means for the country today.

Show Notes:

On today’s not-quite-emergency pod, Sarah and David have thoughts to share about the Supreme Court’s orders from last Friday. David discusses the ins and outs of the Arlene’s Flowers case, where the court denied an appeal from a flower shop owner that refused to design arrangements for a same-sex wedding, and analyzes how Supreme Court justices don’t always rule the way people predict. Then Sarah goes into a slew of other orders from the court on qualified immunity for university admins, religious liberty for the Amish, defamation against public figures, and eminent domain. Plus, David and Sara...

On today’s podcast, David and Sarah start with a discussion about Bill Cosby’s getting released from prison after his sentence was overturned by the Pennsylvania Supreme Court on due process grounds. Our hosts then turn to the two big final decisions from the Supreme Court on voting rights and anonymous donor disclosures, cases that divided the court along ideological lines. Sarah explores the ins and outs of Elena Kagan’s dissent in Brnovich v. Democratic National Committee, while David explains how Americans for Prosperity Foundation v. Bonta isn’t the conservative victory some news outlets have claimed. Finally...

We’ve got a lot more first rate Supreme Court analysis for you in today’s pod. David and Sarah break down the most recent cert grant announcements and the court’s refusal to hear some contentious cases involving interstate conflict, transgender bathroom access, and marijuana. They then dive into the Supreme Court’s opinion in Lombardo v. City of St. Louis, which asked a lower court to reevaluate whether police used excessive force in kneeling on the back of a handcuffed suspect who later died. Also, Sarah gives her thoughts on Cedar Point Nursery v. Hassid, a property law disp...

There was a big win for student free speech at the Supreme Court on Wednesday. In today’s pod, David and Sarah talk all about the long-awaited decision in Mahanoy Area School District v. BL, where the court ruled in favor of a high school cheerleader who was suspended from her team after posting a profanity-laden Snapchat. Our hosts discuss what Justice Stephen Breyer’s ruling means for free speech for students going forward and how much of an impact on schools it will actually have. They then analyze Samuel Alito’s concurrence and Clarence Thomas’ lone “curmudgeonly” dissent. Plus, a quic...

Student athletes have reason to celebrate after Monday’s big Supreme Court NCAA decision. In today’s episode, David and Sarah discuss the ins and outs of National Collegiate Athletic Association v. Alston, a unanimous ruling that paves the way for college athletes to receive compensation beyond scholarships as long as it is tied to their education. Our hosts talk about how the case will set a precedent for the future, and analyze a concurrence from the court’s very own basketball coach, Justice Brett Kavanaugh. Also on the podcast, Sarah walks through two other Supreme Court rulings on securi...

The big Supreme Court rulings have finally arrived! On today’s podcast, David and Sarah discuss two unexpected majorities in California v. Texas, which upheld the constitutionality of Obamacare (again!), and Fulton v. City of Philadelphia, which unanimously protected the religious liberty of Catholic Social Services after the city of Philadelphia excluded CSS from its foster parent program for refusing to certify same-sex couples as foster parents. Our hosts analyze how the Supreme Court denied standing to the states challenging the ACA and then dive into two spicy opinions from Alito. Plus, some “palace intrigue” discussion about whether Alito was de...

In today’s jam-packed episode, David and Sarah discuss the Supreme Court’s invitation to the Biden administration to weigh in on a pending challenge to Harvard’s affirmative action policy. Our hosts also untangle two criminal cases that united the justices unanimously in favor of the government, one on felons possessing firearms and another on sentence reduction. Then, Sarah shares insight from her own time at the Department of Justice into why a New York Times story that the Trump-era Justice Department seized the data of congressional Democrats might be overblown. They also explain why the DoJ appears to be...

With a lot of big Supreme Court decisions on the horizon, David and Sarah discuss an unexpected concurrence from Justice Thomas in Borden v. United States, a case about how broadly the government can define “use of force.” Our hosts also review a decision from the 20th Judicial Circuit of Virginia about a school that suspended a professor for not using students’ preferred pronouns and an announcement that the Texas Bar Association will investigate Ken Paxton for his lawsuit to overturn the 2020 election. Finally, they chat about a controversy at Yale Law School involving the infamous “tiger mom” law professor...

Today on the podcast, our hosts walk us through a bit of Supreme Court drama involving Sonia Sotomayor and some historical revision of a 1987 Supreme Court immigration case. They then dive into last week’s 94-page ruling from a federal judge striking down California’s assault weapons ban, a decision that includes references to COVID vaccines and the Swiss Army knife in its robust defense of gun rights in America. Finally, David and Sarah discuss whether civic education can reduce negative partisanship in America.

Show Notes:

-United States v. Palomar-Santiago

-United Stat...

On today’s podcast, David and Sarah engage in a riveting discussion about the meaning of the word “so,” specifically in conjunction with the Supreme Court’s ruling in Van Buren v. United States, which deals with the legality of accessing a confidential government database for improper reasons. Our hosts then walk us through a free speech controversy at Stanford Law School involving a local Federalist Society chapter and a parody flyer, including discussing some previously hidden context. Finally, they review the 6th Circuit Court ruling striking down racial considerations for COVID loans.

Show Notes:

-V...

After our hosts catch us up on the latest goings on at the Supreme Court, Sarah tells about another copyright case involving none other than the great Andy Warhol. Plus, David and Sarah chat about the legality of former National Security Adviser Michael Flynn’s call for a coup, an updated indictment involving the Oath Keepers and their January 6 activities, a lawsuit against Florida’s Big Tech law, whether public schools should ban critical race theory, whether you should defer law school if you have the chance, and so much more!

Show Notes:

-Tue...

We’ve got another action-packed pod for you. On today’s episode, David and Sarah get listeners up to speed on all the latest legal topics, including a case involving a New Jersey pipeline, Georgia’s anti-BDS law, Florida’s new social media law, a case involving transcendental meditation in an Illinois public school system, ongoing congressional negotiations surrounding qualified immunity, and more! Alec Dent and Ryan Brown also join the show to reminisce on their cicada eating experience earlier this week.

Show Notes:

-PennEast Pipeline Co. v. New Jersey

-David’s latest F...

On today’s podcast, Sarah and David give their predictions on how the Supreme Court might rule next term in Dobbs v. Jackson Women’s Health Organization, the abortion case challenging a Mississippi law that prohibits most abortions after the 15th week of a woman’s pregnancy. Our hosts also chat about Texas’ new pro-life law, Justice Elena Kagan’s spicy dissent in Edwards v. Vannoy, the Mississippi Supreme Court case they talked about earlier this week, the University of North Carolina board of directors’ decision to block tenure for Nikole Hannah-Jones, and mugshots. Plus, they provide some listener wine pairing...

The Supreme Court on Monday agreed to hear oral arguments for what will likely turn out to be one of the most intensely followed abortion cases in decades: Dobbs v. Jackson Women’s Health Organization. The case challenges the constitutionality of Mississippi’s Gestational Age Act, a 2018 law that prohibits abortions performed after the 15-week point in a woman’s pregnancy (with limited exceptions). David and Sarah walk us through the likely outcomes of the case and explain how it fits in with the court’s jurisprudence on abortion related questions. Also on today’s podcast, our hosts chat about Cani...

Atlantic reporter McKay Coppins joins the show to chat about his latest profile of Brett Kavanaugh, which tracks the Supreme Court justice’s journey from his contentious 2018 Senate confirmation hearings to the bench. After what David calls a “frank exchange of ideas” about the piece, our hosts give us their take on a federal judge’s decision to dismiss the National Rifle Association’s bankruptcy case, the Facebook Oversight Board’s decision to uphold the platform’s ban on Donald Trump, and lower level judicial confirmation hearings.

Show Notes:

-Coppins’ Atlantic profile of Brett Kavanaugh...

Today, our hosts are thrilled to be joined by Federal Court of Appeals Judge Gregg Costa of the 5th Circuit. In today’s extra-nerdy pod, our esteemed guest gives Sarah and David his expert take on serial clerkships, amicus briefs, nationwide injunctions, and more. Plus, he offers up an inside scoop on how he approaches his judicial philosophy, what he thinks is the proper role for legal advocates in the courtroom, and why “the hardest job [he] ever had was before law school teaching fourth grade.”

Show Notes:

-Judge Costa’s case against second...

The Supreme Court wrapped up oral arguments for the term on Monday, so our hosts brought in an exciting guest to keep the legal nerdery barreling full steam ahead for our listeners. On Thursday’s episode, Sarah is joined by Jonathan Ellis, an assistant to the solicitor general of the United States. Tune in to hear Jonathan chat about what it’s like representing the U.S. government in front of the Supreme Court, how many cases he argues per term, how the solicitor general goes about assigning cases, briefs, and arguments to assistants, and more! Plus, Sarah shares a fu...

Today’s episode is the jackpot for Supreme Court bingo players, as our hosts play a guessing game as to which justices will write some of the court’s most anticipated forthcoming opinions. Also on today’s episode, David and Sarah chat about two cases involving racial classification in the dispensation of government relief to “socially disadvantaged” farmers and ranchers, and debate which Supreme Court cases AP U.S. history students should be required to commit to memory. Plus, Sarah shares a fun story about her experience camping outside of the Supreme Court building to hear oral arguments for D.C. v. He...

After reflecting on The Dispatch’s interview with former President George W. Bush this week, David and Sarah discuss Justice Stephen Breyer’s controversial pronunciation of the word “amicus,” Justice Brett Kavanaugh’s Second Amendment jurisprudence, and Justice Neil Gorsuch’s majority opinion in Niz-Chavez v. Garland, Attorney General. Stay tuned to hear our hosts chat about Supreme Court oral arguments for a First Amendment lawsuit involving a high school cheerleader.

Show Notes:

-Out of Many, One: Portraits of America's Immigrants by George W. Bush

-George W. Bush Paints E Pluribus Unum on the...

Buckle up, AO fans. There is a lot to cover on the Supreme Court front and David and Sarah talk about all of it on today’s episode. It starts with a definitive breakdown of the new Supreme Court portrait, then goes from a case that the Supreme Court will hear regarding the Second Amendment, to a case having to do with Guantanamo Bay, ending with the big First Amendment case being argued today. Plus, Sarah and David discuss the Netflix documentary about the college admissions scandal, Operation Varsity Blues, and why it’s damaging to tell kids that what...

Today, David and Sarah give us their reactions to the Derek Chauvin trial verdict, talk about potential issues on appeal, and break down Minnesota state law on the competency of a juror as a witness. Also on today’s episode, our hosts chat about an interesting court filing involving Texas Attorney General Ken Paxton and a talk about whether the law can or should protect employees from political discrimination.

Show Notes:

-Last week’s Advisory Opinions episode on the ins and outs of the Chauvin trial

-Minnesota 606(b)

Le...

On today’s episode, Sarah and David walk us through Monday’s Supreme Court orders and oral arguments before diving back into the mailbag, where they respond to listeners’ questions about expert witnesses, sanctuary cities, vaccine passports, and immunity grants. Plus, David revises and extends his Friday Dispatch Podcast thesis on culture’s distortion of masculinity.

Show Notes:

-Monday’s Supreme Court orders

-Sanchez v. Mayorkas

-Hemphill v. New York

-Jacobson v. Massachusetts

-Friday’s Dispatch Podcast episode

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On today’s episode, David and Sarah discuss the ins and outs of Derek Chauvin’s murder trial, including why Chauvin didn’t take the stand and whether he’s likely to be convicted. Plus, our hosts chat about House Democrats’ latest court-packing bill—what Sarah calls “a press release in the form of legislation”—former Brooklyn Center police officer Kim Potter’s fatal shooting of Daunte Wright, and an en banc 6th Circuit case involving abortion.

Show Notes:

-“Chauvin Defense Expert Destroyed on the Stand” by Andrew McCarthy in National Review

-Pre-Term Clevelan...

Fearing that death or disability will remove Justice Stephen Breyer from the Supreme Court when a Republican is in the White House, progressives have begun urging the senior Democratic appointed justice to retire so that Joe Biden can nominate a younger successor while he has a chance. Is Justice Breyer likely to retire anytime soon? David Lat joins today’s show to give us his take. Stick around to hear David Lat and our hosts chat about Biden’s 36-person Supreme Court commission, a new opinion involving California pandemic law, Google v. Oracle, and lawful orders from police officers.

Our hosts start today’s episode by diving into the Supreme Court’s 6-2 opinion in Google v. Oracle, a multibillion dollar copyright case involving whether Google unlawfully used Oracle’s programming code when the tech titan created its Android operating system. Also on today’s podcast, Sarah and David chat about Justice Stephen Breyer’s Scalia Lecture, misdemeanor prosecutions, a new study on religious liberty’s winning streak on the Roberts Court, and a Native American adoption law case.

Show Notes:

-Google v. Oracle

-Justice Breyer’s Scalia lecture.

-Misdemeanor...

It was a slow day at the Supreme Court today, but our hosts are here to give us a breakdown of the latest orders. In a concurring opinion on Monday, Justice Clarence Thomas tore into the Supreme Court’s order in Biden v. Knight First Amendment Institute at Columbia University, which involves a government official’s control of his own Twitter account. Per Sarah, the purpose of Thomas’ concurring opinion is to determine whether social media platforms are “common carriers, whether they are places of public accommodation, or nothing.” Stay tuned to hear David and Sarah discuss a lawsuit involving...

As the Houston Cougars and Baylor Bears prepare for their Final Four faceoff this Saturday, our podcast hosts break down Wednesday’s Supreme Court arguments for National Collegiate Athletic Association v. Alston, a case that will determine whether the NCAA’s rules restricting student athlete compensation violate federal antitrust law. Stick around to hear David and Sarah chat about developments in qualified immunity law, how nondisclosure agreements hide sex abuse scandals, and a new civil lawsuit brought by two U.S. Capitol Police officers against Donald Trump.

Show Notes:

-Supreme Court oral arguments for...

On today’s podcast, our hosts discuss the Supreme Court’s March 25 ruling in Torres v. Madrid, a Fourth Amendment case involving a failed attempt by police officers to restrain suspect Roxanne Torres using physical force. “She’s claiming that they violated her Fourth Amendment rights by unreasonably seizing her,” Sarah explains. “And the question becomes: Can you seize someone if they got away?” After a deep dive into Fourth Amendment jurisprudence, Sarah and David talk about the legal history surrounding hate crimes and the constitutionality of D.C. statehood. They end the episode with some career advice for their aspiring...

On today’s pod, Sarah and David give us an update on the goings on at the Supreme Court, with an in-depth look at a union takings case out West. “A California regulation allows union representatives to meet with farm workers at their work sites for up to three hours a day for as many as 120 days a year,” Sarah explains. “And so the question is: Is this a per se taking under the Fifth Amendment?” After Sarah and David discuss oral arguments for the case, they do a deep dive on a 9th Circuit Second Amendment case, Twitter’s lawsuit ag...

On today’s action-packed pod, our hosts start with an interesting certiorari grant to U.S. v. Tsarnaev, the Boston Marathon bombing case. The appellate court overturned the trial court’s death sentence for Dzhokhar Tsarnaev on the grounds that 1) the trial judge did not ask the jurors about their pretrial media consumption, and 2) that he did not allow evidence about the his brother Tamerlan’s alleged involvement in a previous murder to inform the case. Tamerlan Tsarnaev died in a shootout with police after the 2013 bombing. Sarah and David give us their predictions on how the Supreme Court is lik...

On today’s podcast, Sarah and David discuss a lawsuit in which a high school student sues his Nevada charter school “for repeatedly compelling his speech involving intimate matters of race, gender, sexuality and religion.” Our hosts explain why the critical race theory curriculum in question is unlikely to be deemed unlawful by the court. Per David: “You don’t have an inherent right, once your kid is in public school, to direct and control the curriculum that they see.” Stay tuned to hear special guest Chris Bogart chat about his career in commercial litigation finance.

Show Notes...

Today, our hosts are taking a break from the news cycle to share some fun facts about the Supreme Court and answer a series of questions from their listener mailbox: Are Democratic-appointed Supreme Court justices more ideologically reliable than their Republican-appointed counterparts? What are some cases where you are inclined to agree with the legal reasoning but were bothered by the policy outcome? And perhaps most important, how should one go about hiring an attorney? Sarah and David have the scoop.

Show Notes:

-“Cleaning Up Quotations” by Jack Metzler in the Journal of A...

David took the internet by storm last night when he joined a Clubhouse session called “David French, Based or Cringe?” As David puts it in today’s pod, “There’s kind of a subculture where people really hate me!” Joined by a very special guest on today’s episode, David and Sarah chat about nominal damages, the constitutionality of H.R. 1’s effort to federalize elections, and the increasing number of state laws that are aiming to ban critical race theory from being taught in K-12 classrooms.

Show Notes:

-H.R. 1, also known as the “For the...

Katie Barlow, lawyer and media editor of SCOTUSBlog, sits in for David on today’s episode. Sarah and Katie kick off things by discussing the decision handed down in Uzuegbunam v. Preczewski, in which an 8-1 majority ruled that even seeking “nominal damages” can be enough to give a plaintiff standing. Plus, Katie explains how her time working for Nina Tottenberg at NPR helped her prepare for translating SCOTUS decisions into one-minute TikTok videos. And, of course, she weighs in on the “should you go to law school” debate. Make sure you stick around to the end to hear Sarah and...

Is the Equality Act necessary to codify Bostock v. Clayton County? How might the Equality Act affect religious liberty, if at all? How do we definitively differentiate between men and women? Today, our hosts chat about invidious sex discrimination as it relates to the Equality Act, and what this law means for the future of nondiscrimination law if it is passed by the Senate. Stay tuned to hear our hosts recap oral arguments for Brnovich v. Democratic National Committee, a Supreme Court case that deals with the Voting Rights Act.

Show Notes:

-“Th...

The Supreme Court heard oral arguments last week for Lange v. California, a Fourth Amendment case that will determine whether a police officer’s hot pursuit of a person suspected of committing a misdemeanor counts as an exigent circumstance to justify the officer’s warrantless entry onto the suspect’s property. In today’s Supreme Court heavy episode, Sarah and David also talk about two other cases dealing with hostile work environments and whether women should constitutionally be required to register for the draft.

Show Notes:

-Lange v. California oral arguments and transcript.

-N...

Supreme Court Justice Clarence Thomas made headlines last week for his dissent to the majority’s denial of cert in Republican Party of Pennsylvania v. Veronica Degraffenreid. Even though his dissent mainly focused on the mootness of the case, many media outlets seized on the opportunity to mischaracterize Justice Thomas’ argument by claiming he promoted President Trump’s baseless voter fraud claims. After Sarah and David give us their spiel about how media outlets often botch Supreme Court coverage, University of Chicago Law professor William Baude joins today’s show for an extremely nerdy conversation about the Supreme Court’s shadow d...

Originalists have recently come under fire for trying to reinvigorate an old principle in administrative law called the nondelegation doctrine, which holds that Congress cannot delegate its own legislative power to other entities. Are originalists correct in claiming that the nondelegation doctrine was present at the founding? What does the historical record have to say about it? Why should living constitutionalists even care about this debate? Nicholas Bagley, a law professor at the University of Michigan, and Ilan Wurman, an associate professor at the Sandra Day O'Connor College of Law at Arizona State University, join the show to answer...

On Tuesday, Speech First, Inc. filed a free speech lawsuit alleging that the University of Central Florida and its officials “created a series of rules and regulations that restrain, deter, suppress, and punish speech about the political and social issues of the day.” David and Sarah walk us through the history of campus cat and mouse battles over restrictive speech codes and explain whether this lawsuit will matter in the long run. On today’s episode, our hosts also chat about the nondelegation doctrine, the possibility of further criminal prosecution against Donald Trump, and how Rush Limbaugh’s passing might af...

The Supreme Court on Thursday granted Alabama death row inmate Willie Smith’s request to have his pastor present at his execution, rejecting the state’s claim that having a spiritual adviser present interferes with prison security. Tune in to hear how the Supreme Court’s religious liberty ruling in Dunn v. Smith might affect future death penalty cases. On today’s episode, our hosts also chat about Yuval Levin’s latest piece in National Review on the sorry state of Congress and the New York Times’ 2020 Hulu documentary about Britney Spears.

Show Notes:

-Dunn v. S...

During the second day of the impeachment hearings on Wednesday, we got some more video evidence from the House impeachment managers exhibiting just how close the rioters got to lawmakers during the Capitol siege. “A lot of this was more fully fleshing out how dire the situation was on January 6,” David explains. Stick around for an update on the criminal prosecution of Paul Manafort, new developments at the Department of Justice, the super viral Zoom video of the cat lawyer, and a lament on football-splaining.

Show Notes:

-Video of police officer Eugene Goodman stee...

After duking it out over their Super Bowl disagreement, David and Sarah get into the meat of today’s episode: The ongoing saga of religious liberty in the age of pandemic law. On Friday, the Supreme Court partly sided with a California church’s First Amendment challenge to religious service restrictions enacted by Democratic Gov. Gavin Newsom. Per David: “Pandemic law—while not entirely gone—is mostly dead.” Stay tuned to hear about technology company Smartmatic’s lawsuit against Fox News, Trump’s First Amendment defense in his impeachment trial, and more.

Show Notes:

-South Bay Uni...

On Wednesday, Wyoming Rep. Liz Cheney survived an intra-party effort to oust her from her GOP leadership position, meanwhile Republican Party Leader Kevin McCarthy decided he will not strip firebrand Rep. Marjorie Taylor Greene of her committee assignments. When it comes to all the latest intra-GOP squabbles, Sarah and David have the scoop. On today’s episode, our hosts also break down the Supreme Court’s latest orders and the good, the bad, and the ugly of the impeachment briefs.

Show Notes:

-“I’m Comic Sans, Asshole” by Mike Lacher and Saturday Night Live...

Last week, Vice President Kamala Harris ruffled West Virginia Democratic Sen. Joe Manchin’s feathers when she sat down with local television stations in his state to chat about Joe Biden’s $1.9 trillion COVID-19 stimulus bill without first giving him a heads up. On today’s episode, our hosts break down why these sorts of intra-party kerfuffles matter and how they might shape the Biden administration’s relationship with the Senate moving forward. Also in the hopper for today, Sarah and David put their trial lawyer skills on full display when they explain the former president’s best defense against im...

A federal judge on Tuesday granted Texas Attorney General Ken Paxton’s request for a nationwide temporary restraining order blocking the Biden administration’s halt of a 100-day pause in deportations of noncitizens for 14 days. It’s safe to say our podcast hosts have some thoughts! Stick around to hear David and Sarah chat about an indictment against pro-Trump Twitter troll Ricky Vaughn in response to his voter disinformation campaign, a wonky First Amendment case, and what’s behind this week’s GameStop rally.

Show Notes:

-Giboney v. Empire Storage & Ice Co. and Expression...

The Supreme Court “munsingweared” several cases in its Monday orders, including two Trump emoluments cases. After a deep dive into the legal history of munsingwear precedent—a modern mootness doctrine—David and Sarah discuss a Texas deportation case filed by Texas Attorney General Ken Paxton, pretrial release conditions for those who were arrested during the January 6 Capitol siege, and a Supreme Court original jurisdiction case. A special guest also joins the show to chat about Wendy’s chicken sandwiches!

Show Notes:

-United States v. Munsingwear, Inc. and Trump v. Citizens for Responsibility and Ethics in...

Can Joe Biden heal the rampant degree of polarization that’s currently plaguing our nation’s politics? “There is an element on the left side of the aisle that is every bit as hostile to their fellow citizens as there are on the right edges,” David tells Sarah on today’s episode. “But the thing is, Biden won the primary by specifically shunning that part of the Democratic base.” After their post-Inauguration Day reflections on Biden’s swearing in ceremony and the state of polarization in America, our hosts chat about the NRA’s bankruptcy status and Biden’s flurry of first-day...

Who will preside over soon-to-be-former President Donald Trump’s impeachment trial after he leaves office? Will it be the Senate’s president pro tempore? The chief justice of the Supreme Court? None of the above? On today’s episode of Advisory Opinions, our hosts also dive into the nitty gritty details of Trump’s forthcoming—and second—impeachment trial before they discuss the latest updates in social media regulation, David’s take on the South’s honor culture, and Sarah’s review of the five best chicken sandwich chains in America.

Show Notes:

-“Free Speech and...

This week, the Supreme Court heard oral arguments for Uzuegbunam v. Preczewski, a free speech case that will determine whether former Georgia Gwinnett College student Chike Uzuegbunam is entitled to nominal damages from an unconstitutional government policy when that policy has since been changed. “Arguably there is no more important constitutional law case that has come up before the court in the last several years from a philosophical standpoint,” Sarah says on today’s podcast. After our hosts discuss the legal mechanics of nominal damages and attorneys’ fees, they dive into Parler’s latest legal filings and the Constitution’s speech and...

In a break from our current news cycle, Advisory Opinions tackles “the more mundane issue of teenage girls complaining” in a discussion about Mahanoy Area School District v. B.L, one of the Supreme Court’s latest cert grants addressing the issue of off-campus student speech. Not to worry, our hosts also dig into the more pressing issues of the day. In an examination of the term “incitement,” David and Sarah ask: Were the president or other individuals guilty—in a criminal sense—of provoking tangible violence at the Capitol last week? Do their words and actions meet the Brandenburg te...

During a press conference on Thursday, Speaker of the House Nancy Pelosi called for President Trump’s removal from office. “Yesterday, the president of the United States incited an armed insurrection against America,” Pelosi said, shortly before demanding the invocation of the 25th Amendment. On today’s podcast, our hosts talk about the possibility of impeaching President Trump, the legal machinations surrounding the 25th Amendment, and the social media crackdown against President Trump. Stick around for their thoughts on Merrick Garland as Biden’s attorney general pick.

Show Notes:

-Articles of impeachment prepared by Represe...

After a holiday hiatus from podcasting, our hosts have quite a bit of news to catch up on. Did Trump commit election fraud during his phone call with Georgia Secretary of State Brad Raffensperger? Will Trump’s election conspiracy theorizing depress Republican turnout in Tuesday’s Georgia Senate races? What should we expect when Congress convenes on Wednesday to count the Electoral College votes? All things considered, Biden will take office on January 20. But when it comes to GOP officials’ ongoing attempts to overturn the results of the election, David argues that “the futility of this effort should not excuse i...

On today’s holiday mailbag edition of the podcast, David and Sarah answer a series of listener questions ranging from legal history to college football. Do you have to admit guilt to accept a pardon? Are there any wrongfully decided Supreme Court cases that are still on the books? Is there a secular argument for prohibiting abortion or does restricting the practice entirely depend on adopting religious doctrine in the public square? Are tier 2 or tier 3 law schools worth attending? What are the best books of the year? What is the constitutionality of factoring race into vaccine distribution? And MO...

The Supreme Court agreed on Wednesday to hear a case concerning whether the NCAA’s eligibility rules for student compensation violate federal antitrust law. Should the NCAA have the right to create a universal regime of amateur athletics? Is this dispute more of a legislative problem? Or is it an antitrust problem that should be resolved by the courts? In their penultimate podcast before Christmas break, David and Sarah discuss whether private employers can mandate COVID-19 vaccines, some hypothetical legal scenarios related to double jeopardy, and the culture wars surrounding Vanderbilt kicker Sarah Fuller. They also respond to a 3L...

The Supreme Court on Friday declined to hear Texas Attorney General Ken Paxton’s lawsuit contesting the election results in four battleground states, ruling that “Texas has not demonstrated a judicially cognizable interest in the manner in which another State conducts its elections.” What does the court’s order mean in plain English? Should the justices have said more? Why did Justices Alito and Thomas issue a separate statement? “The bottom line is all nine justices rejected this case,” David explains. “Seven clearly for one reason, two for any number of additional reasons that they didn’t specify.” After breaking down the...

On Wednesday, 17 state attorneys general filed amicus briefs in support of Texas Attorney General Ken Paxton’s lawsuit contesting the presidential election results in Pennsylvania, Georgia, Michigan, and Wisconsin. To make matters more interesting, President Donald Trump has said he will join the lawsuit and Texas Sen. Ted Cruz has agreed to argue the case in front of the Supreme Court. Tune in to today’s episode to hear why, in David’s words, “this Texas lawsuit as a legal and evidentiary matter is frivolous.” Today, David and Sarah also give us an update on Sidney Powell’s “Kraken” lawsuits and the...

U.S. federal law’s “safe harbor deadline” means that most presidential election law cases will be resolved by tomorrow, December 8. Today, David and Sarah discuss what’s next for Trump loyalists who have an unshakable belief that the election was stolen. Stay tuned for a conversation about changes to the citizenship test, a 9th Circuit transgender bathroom case where cert was denied, parental and student rights in public education, and why so many conservative lawyers don’t buy the Trump campaign’s legal strategy.

Show Notes:

-U.S. code on meeting and voting of el...

With the GOP’s Senate majority hanging by a thread, all eyes are on the Peach State and whether Republican Sens. David Perdue and Kelly Loeffler can hold onto their seats in their January runoffs. But could all of these election conspiracy theories that are being circulated by conservative pundits and politicians ironically end up depressing turnout among GOP voters in these races? “Over last night and this morning,” David explains on today’s podcast, “there was suddenly a lot of people who were sowing unfounded accusations of voter fraud, realizing that they may be reaping the loss of the Senate...

Over Thanksgiving break, the Supreme Court struck down New York Gov. Andrew Cuomo’s strict coronavirus related occupancy limits to 10 or 25 worshipers in churches and synagogues located in orange and red zones in the state. In a 5-4 per curiam decision, the majority sided with Roman Catholic Diocese of Brooklyn and Agudath Israel, who argued that Cuomo’s COVID-19 regulations treated houses of worship differently from comparable secular institutions, especially considering the religious plaintiffs in question went above and beyond in preventing COVID-19 outbreaks within their doors.

“From the standpoint of the plaintiffs,” David argues, “it’s sort...

In Monday’s emergency episode of the podcast, David and Sarah bring us up to speed on the Trump legal team’s latest litigation drama, which has become nothing short of a clown show. One of the most puzzling aspects about all of this is the striking gap between the Trump campaign’s public rhetoric about widespread voter fraud during press conferences and its much more modest—albeit still meritless—legal arguments in the courtroom. No matter how you slice it, the president’s legacy is on the line here. In Sarah’s words: “This is what he’s going to be rememb...

Rudy Giuliani has come out of retirement for the first time in 28 years to litigate on behalf of the Trump campaign. To say his gears were a little rusty would be the understatement of the century: Giuliani walked into court this week and couldn’t remember the name of the judge, couldn’t remember the name of his opposing counsel, couldn’t remember the meaning of “opacity,” and couldn’t argue the proper standard of review in the case. As our podcast hosts remind us, effective lawyers not only know how to make a constructive argument, but also tailor their advoca...

A segment of the right-wing public has morphed into a conspiracy theory machine that is—in David’s words—propagating baseless voter fraud allegations at “a geometric rate that [bears] increasingly no relationship to the real world at the same time as the actual claims in court are just evaporating.” Why are people on the right and the left so susceptible to electoral conspiracy theories? After David and Sarah play catchup on the latest developments involving election litigation, they dive into a 1st Circuit race-based admissions case at Harvard, the latest updates on DACA, and The Mandalorian.

Show...

The Trump campaign is swinging for the fences in most of its litigation efforts in hopes that at least some of its legal arguments will be successful. But as our podcast hosts remind us, most of the president’s post-election lawsuits are unlikely to change the outcome even if the Trump campaign scores a few victories along the way. “The Trump administration could win, dunk on the opposition, hang on the rim, taunt its opponents, and nothing changes,” David explains. On today’s podcast, David and Sarah explain the overall legal context surrounding the president’s ongoing election litigation efforts an...

Twitter is brewing with wildly unsubstantiated claims of voter fraud as election officials in battleground states continue to count ballots. For today’s myth busters edition of the podcast, David and Sarah discuss the nitty gritty details surrounding ballot-counting processes and whether the conspiratorial claims surrounding voter fraud allegations have any merit. “If voter fraud is a religion for you,” Sarah warns, “go find yourself another pod today.” They wrap things up with a conversation about exit polls and some Supreme Court punditry.

Show Notes:

-The Sweep: “Your 2020 Election Night Guide,” Employment Division v. Sm...

It’s Election Day eve and our podcast hosts have their presidential race forecasting models at the ready. After a helpful breakdown on pivot counties in swing states, David and Sarah give us some punditry on the 15 Senate races they’re watching closely this cycle. “Generally speaking, the Senate and presidential numbers are getting closer together over the last few cycles, not farther apart,” Sarah says on today’s podcast. Check out this prediction heavy episode of Advisory Opinions, in which our hosts give us a state of play on the presidential race and offer their thoughts on a controvers...

We’ve already seen record early turnout this election cycle. Our hosts have three major takeaways from the surge: 1) It means the polls are more likely to be accurate (the registered voter number is likely to reflect the actual voter number), 2) It means that we’re going to see interesting shift in how both candidates’ spend time on the campaign trail before Tuesday, 3) It means we have a record number of absentee ballots, which will lead to a concomitant surge in election litigation. In the hopper for the rest of today’s podcast: judicial oaths of office, turnout in swing st...

Echelon Insights predicts that we will see record turnout this election cycle. How might a surge in, say, 2o million new voters this year affect the presidential race in battleground states? “If we’re talking the day after the election about why the polls were wrong,” Sarah warns on today’s episode, “it will be because of the extraordinary turnout, and [pollsters] were unable to figure out where those turnout increases were coming from.” Tune in to today’s episode to hear David and Sarah’s take on early voting in swing states, the importance of political rallies, and the DoJ’s antitr...

Still shocked by the grand polling meltdown of 2016, many Americans on both sides of the aisle are convinced that Biden’s double digit national polling lead is inaccurate and that Trump will somehow win the election in a landslide. This theory has three main hypotheses: 1) Trump is such a uniquely divisive candidate that his supporters lie to pollsters and say they plan to vote for Biden, 2) the likely electorate problem, and 3) Republicans are less likely to talk to pollsters in the first place. Sarah and David break down these theories and explain why they’re overblown given the data we h...

It’s October 15, 2020, and 12.4 percent of the votes that were cast in the 2016 election have already been cast this election cycle. Sarah and David try to discern through the tea leaves what this means for voter turnout this year. “There’s two different schools of thought here,” Sarah says. “One is that we’re on pace to have record turnout and one is that we’re simply banking Election Day votes early this time.” On today’s episode, our podcast hosts also discuss the journalistic, political, legal implications of the New York Post’s Hunter Biden story before breaking down the key ingredi...

The Senate Judiciary Committee kicked off its confirmation hearings for Supreme Court nominee Amy Coney Barrett today with a predictably partisan spin. There were dog whistles from Republicans about religious tests and procedural complaints from Democrats in defense of the Affordable Care Act and against advancing Barrett’s nomination before November 3. But all things considered, the first day of the hearings was relatively uneventful, which may have come as a shock to those who watched the rather lively Brett Kavanaugh hearings in 2018.

Our podcast hosts argue that boredom is a win for the Biden campaign’s Do No H...

Sen. Kamala Harris and Vice President Mike Pence faced off Wednesday evening for their first and only vice presidential debate. But analysis of the candidates’ performance was disrupted by Trump’s announcement Thursday morning that he will not participate in the October 15 virtual debate against Joe Biden. Is the president bluffing? Or is he simply trying to hide his COVID-19 symptoms from the American public? The president has released a series of videos via Twitter this week in which he assures the American public of his recovery. But these videos are produced by the White House, meaning they can do m...

Supreme Court oral arguments have resumed via telephone and our podcast hosts are nerding out. The court kicked off today with an interesting denial of cert from the Supreme Court on a case out of Kentucky involving Kim Davis, the county clerk who refused to certify marriage licenses to same-sex couples in 2015 for religious reasons. “This petition provides a stark reminder of the consequences of Obergefell,” Justice Thomas wrote in a statement on Monday joined by Justice Alito. “By choosing to privilege a novel constitutional right over the religious liberty interests explicitly protected in the First Amendment, and by doing...

How will Amy Coney Barrett shake things up on the bench if she is confirmed by the Senate before November 3? “Amy Coney Barrett will not be as revolutionary as the left fears or the right wishes,” Sarah argues, “Because no justice really is, because it’s one vote.” On today’s episode, David and Sarah address the hysteria surrounding her upcoming Senate confirmation battle while breaking down what a 6-3 conservative majority would mean for the future of Supreme Court jurisprudence. Sarah and David are also joined by Ilya Shapiro—director of the Robert A. Levy Center for Constitutional Studies at the...

Several new polls were released over the weekend and Donald Trump is still trailing Joe Biden by roughly 7 to 10 points, depending where you look. Despite Biden’s steady lead, bad takes abound in the journalism world. “Here’s what happens when a race is not particularly close on the numbers,” Sarah explains. “People in the media try to make it more interesting by finding tea leaves and little nuggets that no one else has found and then blowing those up into their own narrative.” Sarah says it’s not always that the methodology of a particular poll is bad per se, “it’s...

A Louisville grand jury on Wednesday indicted one officer in connection with the March 13 police raid that took Breonna Taylor’s life. The grand jury declined to charge the two officers who fired directly at Breonna Taylor and her boyfriend that evening, instead only charging the third officer, who was outside and fired indiscriminately, with wanton endangerment. David explains the basic facts leading up to Taylor’s shooting, as well as the legality surrounding police raids and the right of self-defense under Kentucky law. “You begin to see where we’ve backslidden in our commitment to key constitutional liberties,” David expl...

Ruth Bader Ginsburg died on Friday, rocking the nation and setting the stage for a blistering Senate confirmation fight  should the Senate Judiciary Committee go through with the hearing process before the election. Today, our podcast hosts walk us through the history of SCOTUS vacancies, reflect on the legendary friendship between Justice Ruth Bader Ginsburg and Justice Antonin Scalia, and offer some rank punditry about what this SCOTUS vacancy means for the future of our republic. The question on everyone’s mind is: What happens next? Will Senate Republicans go through with the Supreme Court nomination process? Should they? Sar...

After reflecting on the best and worst parts of our country’s founding document for Constitution Day, David and Sarah dive into Attorney General Bill Barr’s Constitution Day address at Hillsdale College yesterday, in which he defended political judgment in bringing prosecutions and railed against federal prosecutors’ propensity to punish as much misconduct as possible. Our podcast hosts agree with Barr that there is an effort by federal prosecutors to expand federal criminal law to an unreasonable degree. But David reminds us that federal prosecutors are not just the instrument to be wielded by the attorney general, they are ch...

For the month of August, the Biden campaign outraised the Trump campaign by a whopping $150 million. (Biden raked in $360 million last month compared to Trump’s $210 million). As stark as this fundraising difference may be, is there any reason to believe it will be meaningful in the long run?A lot of this money will go toward television ads at this point, but campaign money starts diminishing in value once people start voting by mail. In other words … now. Not to mention that the fundraising difference doesn’t matter so long as each candidate meets a certain threshold. On today’...

Last week, President Trump encouraged North Carolina voters to test their state's election security. David and Sarah discuss how, exactly, someone commits voter fraud, and what voters need to know as we close in on this November's election. But that's not all: Sarah gives us the latest on the state of the race and how the Trump campaign lost its cash advantage. Plus, David has some thoughts on Tenet.

Show Notes:

-The New York Times on “How Trump's Billion-Dollar Campaign Lost Its Cash Advantage”

-Sign up for Sarah's newsletter The Swee...

There’s a bit of post-2016 election PTSD among American political strategists, where any slight uptick in Trump’s polling numbers is perceived as an emergency situation for the Biden campaign. But despite the almost constant news cycle turbulence in American politics that would have caused big swings in a normal presidential election, the polls have remained relatively stable over the past few months. Biden remains in a clear and comfortable lead over Trump on practically every policy issue except for the economy. Why? According to Sarah, “It’s because of the referendum effect, and it’s because of the wild p...

Ever since its humble beginnings in March 2016, The Babylon Bee—a Christian, conservative version of The Onion—has been a godsend for Americans who have become worn out by news outlets that take themselves too seriously. From its theological inside jokes about the prosperity gospel to its Snopeslong-standing feuds with and CNN, the Bee has made its mark in the world of satire. On today’s episode, David and Sarah are joined by the Babylon Bee’s editor-in-chief, Kyle Mann, who tells us about the challenges of satire writing in a cultural moment when it’s not always easy to determi...

Violent riots escalated quicky in Kenosha, Wisconsin, after the police shooting of Jacob Blake. . On Wednesday, 17-year-old Kyle Rittenhouse was charged with first-degree homicide for the shooting deaths of two people in Kenosha on Tuesday evening. Sarah and David break down what we know and don’t know about the Jacob Blake shooting on today’s episode of Advisory Opinions and talk through the legality of vigilante justice during times of unrest. “These really traumatic events are playing out in front of all of us,” David says on today’s episode. In one sense they’re playing out in a way that’s...

Today our hosts are joined by Phill Drobnick, head coach of the Olympic curling team, for some hot takes about the sport that inspired Sarah’s new campaign newsletter The Sweep. Listeners who are unfamiliar with this sport, which gets even passing national coverage only during Winter Olympics years, might be wondering about curling’s origins. “It started in Scotland, like every goofy sport that involves beer,” explains Drobnick on today’s episode. The sport then took off in Canada and then around the world. When people watch curling during the Olympics, they become armchair referees who don’t realize how...

Former Trump advisor Steve Bannon was arrested Thursday—along with Brian Kolfage, Andrew Badolato, and Timothy Shea—after federal prosecutors discovered they defrauded donors involved with the “We Build the Wall” campaign, a GoFundMe that shored up $25 million in donations since its inception in 2018. The unsealed federal indictment is damning, and even shows evidence of the grifters’ amusement with scamming their donors and misappropriating the funds for personal use. The grift looks a lot like what happened recently with the NRA with Wayne LaPierre, and reminds us that scamming donors is an ever-present problem on the Right. As David says on to...

The 9th Circuit recently heard an appeal from a challenge to the state of California’s ban on large capacity magazines (in this case, any magazine that holds 10 or more rounds). California didn’t just ban the sale of these magazines, it banned their transfer, importation, and outright possession in the state. The 9th Circuit ended up striking down this law and departing from its sister circuits on the question of scrutiny. The precise contours of the Second Amendment remain up in the air in the post-D.C. v. Heller era, but our podcast hosts are armed with a war...

In 2017, an anonymous individual named “Q” began posting on a public messaging board called 4chan about “Pizzagate,” a conspiracy theory alleging that a restaurant called Comet Ping Pong was really an underground child sex trafficking ring run by deep state political elites. Q quickly gained acclaim online after he continued posting unsubstantiated clues—what QAnon followers call “bread crumbs”—about a prophetic “Great Awakening” that is in store, when deep state Democrats will supposedly be held accountable for their “crimes.” On Tuesday, avowed QAnon sympathizer Marjorie Taylor Greene won a Republican congressional primary in Georgia. Beyond her avowal of QAnon, she is a 9/11 tru...

How realistic is the SpaceX dream to get to Mars? What does the latest scientific literature have to say about supernovae? Is there intelligent life in the universe? Today, Sarah and David are joined by Atlantic staff writer Marina Koren for a deep dive into all things space. Hear everything there is to know about the space race between Elon Musk and Jeff Bezos, colliding black holes, and other crazy interstellar phenomena.

But today’s episode would be incomplete without its requisite dose of legal nerdery. Tune in to hear David and Sarah break down the legality of...

People who watch and comment on politics do so very differently than campaign operatives do. Campaigns use voter scores and voter modeling—which is essentially “Moneyball” for politics—to gauge which voters are worth spending money on. As Sarah explains: “It’s a quadrant: on the y axis you have who you’re going to vote for, and on the x axis, you have your likelihood to vote. So you may be the most Trump-y Trump person ever.” But here’s the kicker: “If I go and look back and you haven’t voted since Jimmy Carter, your propensity to vote is so low, tha...

Rewind millions of years and a dinosaur-killing asteroid is racing toward Earth at breakneck speed. But what exactly happened in the immediate aftermath of this event? Which species survived and which ones were met with instantaneous extinction? In a much-needed break from today’s partisan political climate, David and Sarah are joined by Steve Brusatte, a professor of paleontology and evolution at the University of Edinburgh, for some in-the-field expertise on the dinosaur age. “When the dinosaurs died,” Steve Brusatte explains on today’s podcast, “they died literally because a six-mile wide rock fell out of the sky, traveling faster tha...

The D.C. Circuit has decided to hear the Michael Flynn debacle en banc. For the meantime, as Sarah reminds us on today’s episode, “Michael Flynn seems to be getting some extra justice that a lot of criminal defendants would be really happy to get.” If it goes back to the district court, would Trump pardon him? Our podcasters weigh in.

On Thursday morning, President Trump tweeted that we should consider delaying the election over mail in ballot concerns, which of course he can’t do without congressional approval. Based on data collected from states that regularl...

Our esteemed podcast host Sarah Isgur launched her new Dispatch newsletter called “The Sweep” today, in which she broke down the effectiveness of the new presidential campaigns ads. Conclusion? Biden’s new ads are strategically boring to offset his opponent’s predictable unpredictability, whereas Trump’s play up the anarchy of the radical left. As Sarah reminds us, persuasion ads don’t work. This leaves candidates with two options: 1) Run up their existing base in enthusiasm and support, or 2) Get their opponent’s base not to vote.

Justice Roberts trended on Twitter Friday night after joining the four liberal j...

A federal judge ordered the release of Trump’s former attorney Michael Cohen from prison on Thursday. On July 9, Cohen and his lawyer went into the U.S. Probation Office in Manhattan to transition from furlough to home confinement. But instead Cohen was arrested by three U.S. Marshals and brought back to prison. Why did this happen? David and Sarah explain.

Check out today’s episode to hear our podcasters discuss the presence of federal police in Portland, the defamation lawsuit against MSNBC host Joy Reid, and Trump’s latest executive order excluding illegal aliens from the 20...

The 2019-2020 Supreme Court term was quite the spectacle: the court canceled its March and April argument sessions, held oral arguments by telephone for the first time in May, and stretched its opinion announcements into July for the first time in many years. The term was packed with several blockbuster cases and ended with an announcement from Justice Ginsburg about a pancreatic cancer recurrence. And in the haze of it all, many Americans are still puzzled by some of the rulings. Our podcast hosts are here to help.

Has the conservative legal movement failed?  Will disputes over m...

After a momentous term at the Supreme Court, what are we to make of it all? Josh Blackman, associate professor of law at the South Texas College of Law Houston, joins David and Sarah to help us all understand:  Roberts' role at the center of the Court, Gorsuch and textualism, and Kagan's growing influence. David, Sarah, and Josh cover it all.

Show Notes:

-Make sure to read Sarah's piece on the Supreme Court term.

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With Joe Biden’s popularity rising in battleground states (according to several recent polls), Democratic lobbyists and party officials are urging the presidential candidate to try and win over purple and even conservative-leaning states like Georgia and Texas. But most of his advisors are urging a more conservative path, encouraging him to focus on states he knows he can win. David and Sarah discuss these opposing strategies and offer their insights on what a winning 2020 presidential campaign should keep in mind.

In today’s episode, they also discuss the president’s pardoning power, theological and constitutional arguments relate...

The Supreme Court wrapped up its term today with an opinion on what counts as American Indian tribal lands and two related cases about the president’s financial records.

In Gorsuch’s majority opinion in McGirt v. Oklahoma, the court found that Congress’ 19th century promise to give large swaths of Eastern Oklahoma to the Muscogee (Creek) tribe still stands. This means roughly half of Oklahoma—and most of Tulsa—is now an Indian reservation, and that tribal members are not subject to Oklahoma criminal law when they are on tribal lands.

SCOTUS also released blockbuste...

The Supreme Court has released two more religious liberty rulings into the world. Our Lady of Guadalupe School v. Morrissey Berru ended up being a blow to employment discrimination laws in favor of First Amendment religious liberty concerns. In Little Sisters of the Poor, the Court upheld a regulation allowing employers with religious objections to ignore the Affordable Care Act's birth control mandate.

David and Sarah take a closer look at both cases, and on the battle between religious liberty and gay rights, David shares his theory on the emerging pattern from the Supreme Court.

As we near the end of another Supreme Court term, speculation abounds over a Court retirement. Would the resulting nomination battle be more or less contentious than the appointment of Justice Kavanaugh? David and Sarah answer this thought experiment while also touching on the implications this scenario would have on the 2020 election. They also break down rulings on robocalls and faithless electors.

When and how can you constitutionally defend yourself? The question comes after a gun-toting St. Louis couple made a show of force against Black Lives Matter protesters. On a more lighthearted note, David concludes the pod...

The Supreme Court denies cert to an abortion case, grants cert to a case over Mueller's secret evidence, and the Biden and Trump campaigns are lawyering up for 2020's final act. David and Sarah have thoughts.

Show Notes:

-Declan’s Dispatch profile on Tim Scott

-Hill v. Colorado

-June Medical Services v. Russo

-Masterpiece Cakeshop Ltd.  v. Colorado Civil Rights Commission

-Arlene’s Flowers Inc. v. Washington

-Whole Woman's Health v. Hellerstedt

-Box v. Planned Parenthood of Indiana and Kentucky, Inc.<...

Espinoza is finally here, and David and Sarah are here for a proper deep dive into the Supreme Court's decision. Plus their reflections on the legal and political implications of the court's June Medical ruling.

Show Notes:

-Supreme Court's Espinoza ruling

-Conservative groups see abortion ruling as catalyst for reelecting Trump

-The Chief Justices Battle over the Removal Power

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David and Sarah discuss another big day at the Supreme Court, from the court's decision to strike down a Louisiana abortion law to its ruling on the Consumer Financial Protection Bureau.

Show Notes:

-Our conversation with Louisiana's solicitor general

-Supreme Court's Louisiana abortion ruling

-Supreme Court's CFPB ruling

-David's Sunday newsletter

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David and Sarah discuss Joe Biden's polling lead in six swing states, the latest development in the Michael Flynn case, the Supreme Court ruling on asylum seekers, and free speech online.

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David and Sarah discuss the president's rally in Tulsa, the firing of the U.S. attorney in New York, the lawsuit over John Bolton's book, and they process last week's Supreme Court decisions.

Show Notes:

-David's Sunday newsletter

-Drew Griffin Twitter thread on Tulsa rally

-28 U.S. Code § 546. Vacancies

-Barr's statement on on the nomination of Jay Clayton

-Berman's statement on firing

-Trump remarks on Berman

-Barr's letter to Berman

-Ross Douthat on the Supreme Court

...

David and Sarah discuss the Supreme Court's ruling that blocks the Trump administration from ending DACA for now, return to their discussion over the Title VII ruling, and finish with the legal fight over John Bolton's book.

Show Notes:

-Supreme Court DACA ruling

-Cass Sunstein on Gorsuch Title VII opinion

-Atlanta Journal-Constitution piece on Bostock

-David's piece A Conservative Legal Chernobyl?

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The Supreme Court declined to take up new cases dealing with gun rights and qualified immunity. The court ruled that federal anti-discrimination laws protect gay and transgender employees. Lines are drawn on originalism vs. textualism. David and Sarah have thoughts.

Show Notes:

-Supreme Court cert denials

-Supreme Court Bostock opinion

-Sarah's guide to the top 10 cases

-Sarah's SCOTUS glossary

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It's Brisket Eve and David and Sarah are celebrating by diving into the latest polls on the protests around the country, the legal weeds of Confederate monuments, and answer the question, why does the rule against perpetuities get the people going? But the festivities don't end there, there's the Michael Flynn amicus curiae, Tom Cotton, and Gone with the Wind.

Show Notes:

-Michael Flynn brief

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David and Sarah discuss calls by protesters to "defund the police," ideas to reform police departments from no-knock raids to police unions, incorporation doctrine, and the miniseries 'Waco.'

Show Notes:

-David's Sunday newsletter

-There’s Never Been a Better Time to Abolish Qualified Immunity

-Justice Department Waco report

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David and Sarah discuss the stunning critique of the president from James Mattis, the events of the last 24 hours from Mark Esper breaking with the president to Tom Cotton's op-ed, they then breakdown the charges against the police officer who had his knee on the neck of George Floyd, and end with their thoughts on 'The Last Dance.'

Show Notes:

-James Mattis Denounces President Trump

-Derek Chauvin’s Actions Were Cruel. But a Conviction Won’t Come Easily.

-Explaining the New Second Degree Murder Charge Against Derek Chau...