Advisory Opinions

By The Dispatch

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 Sep 20, 2022

 Sep 2, 2022
Best legal podcast in the business. Angry Cheerleader episode should win an emmy or something.

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 Dec 12, 2021


Advisory Opinions is a new podcast from The Dispatch. Hosts David French and Sarah Isgur have a weekly conversation about the law, culture, and why it matters.

Episode Date
The Bell Tolls Long Conference

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. Department of Education

-Second Circuit Decision on NRA v. Vullo

-The man who prevented nuclear war

Sep 29, 2022
Live from the University of Michigan

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.  

Sep 27, 2022
Ken Paxton’s Airing of Grievances

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

Sep 22, 2022
The Supreme Court Sides With Process

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

Sep 20, 2022
Getting Your Legal Career Started

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, they do not represent necessarily the views of Wiley Rein, its partners or clients.

Editor's Note: Views expressed are not necessarily the views of Wiley Rein, its partners or clients

Sep 13, 2022
Special Master to Review Mar-a-Lago Documents

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

Sep 08, 2022
Trump vs. DOJ in Courtroom Battle

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

Sep 02, 2022
Will Baude Responds to Common Good Constitutionalism

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: The "Common-Good" Manifesto: Vermeule Responds

Aug 30, 2022
Future of Cultivated Meat

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

Aug 25, 2022
50 Ways of No

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.

Aug 23, 2022
Bret Devereaux Talks Orc Battle Tactics

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

Aug 18, 2022
Mar-a-Lago Search Part of Espionage Act Investigation

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

Aug 16, 2022
Kevin Stroud Talks the History of English

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 of Æthelberht

Aug 11, 2022
FBI Searches Trump's Home: What Does it Mean?

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

-Marc Elias Twitter thread

Aug 09, 2022
Shouting Fire in a Crowded Theater

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 Taylor

-U.S. v. Perez

-Schenck v. United States

-New York Times: I Didn’t Want It to be True, But the Medium Really is the Message

Aug 09, 2022
Justice Department Sues Idaho Over Abortion Law

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 Statutes

-French Press: A Crucial Court Case Exposes the Darkness of America’s Worst Industry

-Fleites v. MindGeek

-Justice Samuel Alito delivers keynote address in Rome

Aug 04, 2022
Steven Pressfield on Writing Historical Fiction

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

Aug 02, 2022
Judge Rudofsky Talks Corpus Linguistics

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

-CNN: The inside story of how John Roberts failed to save abortion rights

Jul 28, 2022
Judge Luttig Talks Electoral Count Act Reform

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 and Biden Won the 2020 Election

-The Dispatch: A 2020 Election Report ‘By Conservatives, For Conservatives’

Jul 26, 2022
A Conversation About Academic Freedom

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

-Biden admin looks to protect doctors providing emergency abortions, and warn those who don’t

Jul 21, 2022
Akhil Amar Talks Liberal Originalism

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

-Amarica’s Constitution

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

-Time: Why Liberal Justices Need to Start Thinking Like Conservatives

-New York Times: The Constitution Is More Than a Document—It’s a Conversation

Jul 19, 2022
Twitter Sues Elon Musk to Force Acquisition

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

Jul 14, 2022
Supreme Court Term Wrap Up with Kannon Shanmugam

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

Jul 12, 2022
Revisiting the Coach Kennedy Case with Hiram Sasser

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

-Kennedy v. Bremerton School Dist.

Jul 07, 2022
Supreme Court Wraps Up Term with EPA Decision

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

Jul 05, 2022
Supreme Court Narrows 2020 Ruling on Tribal Lands

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

Jun 30, 2022
Praying Football Coach Wins at Supreme Court

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 Opinions: Supreme Court Hears Football Coach Prayer Case

-French Press: Roe is Reversed, and the Right Isn’t Ready

-Advisory Opinions: Supreme Court Overturns Roe and Casey

-Wall Street Journal: The Law Firm That Got Tired of Winning

Jun 28, 2022
Supreme Court Overturns Roe and Casey

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. Jackson Women’s Health Organization

-Sarah in Politico:“What Alito Should Have Written”

-David in The Atlantic: “The Pro-Life Movement’s Work Is Just Beginning”

Jun 25, 2022
Supreme Court Strikes Down New York Gun Law

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

Jun 24, 2022
Supreme Court Rejects Ban on Public Money for Religious Schools

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. Charter Day School

-CANarchy Craft Brewery Collective, LLC v. Tex. Alcoholic Beverage Comm’n

Jun 22, 2022
Supreme Court Dismisses GOP Immigration Rules Challenge

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 Trump Endorsement

-Guttmacher: Long-Term Decline in US Abortion Reverses

Jun 16, 2022
Supreme Court Rules in Double Jeopardy Case

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 Person to Hate"

Jun 14, 2022
Man Charged with Attempted Murder of Justice Kavanaugh

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: “Man with weapon arrested near Brett Kavanaugh’s home, officials say” 

-New Yorker: “Senate Democrats investigate a new allegation of sexual misconduct from Brett Kavanaugh’s college years”

-Vox: “The rape culture of the 1980s, explained by Sixteen Candles”

-Egbert v. Boule

-Bivens v. Six Unknown Federal Narcotics Agents

-Jason Aldean: “I Use What I Got”

-Engblom v. Carey

-Harlow v. Fitzgerald

Jun 09, 2022
Dipping Into the Mailbag

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”

Jun 07, 2022
Supreme Court Blocks Texas Social Media Law

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 Should Have Written”

Jun 02, 2022
Sex Abuse in the Church

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.”

May 27, 2022
Mass Shootings and the Law

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 Enforce Red Flag Laws. Now.”

-USA v. Ignacio Jimenez-Shilon

-NetChoice v. Attorney General, State of Florida

May 26, 2022
Making Sense of the Depp v. Heard Trial

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

May 20, 2022
A Conversation with Chief Judge Sutton

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”

May 16, 2022
Texas Social Media Law Goes to Court

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”

May 14, 2022
Dobbs Fallout with a First Amendment Twist

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 on the Supreme Court”

-Reason: “Washington Post Reports On More SCOTUS Leaks”

-Pew: “America’s Abortion Quandary”

May 09, 2022
Making Sense of the Supreme Court Leak Part II

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-Word”

-Sarah in Politico: “Abortion Might Not Be the Wedge Issue It Used to Be”

-David in The Atlantic: “What Alito Got Right”

-Shurtleff v. Boston

-Wearry v. Foster

May 05, 2022
Making Sense of the Supreme Court Leak

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”

May 03, 2022
Supreme Court Hears Migrant Protection Protocols Case

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”

-Supreme Court bingo

-SCOTUSblog: “In sequel to McGirt, justices will again review scope of state prosecutorial power in Indian country”

-Washington Post: “The suspect told police ‘give me a lawyer dog.’ The court says he wasn’t asking for a lawyer.”

-Eleventh Circuit oral arguments recordings

May 03, 2022
Supreme Court Hears Football Coach Prayer Case

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?

Apr 29, 2022
Professor Vladeck Talks Progressive Legal Philosophy

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 National Advertising of Austin, LLC

-Hill v. Colorado

-United States v. Vaello Madero

-New York Times: “Roberts Has Lost Control of the Supreme Court”

-The Unbearable Weight of Massive Talent trailer

Apr 26, 2022
Federal Judge Strikes Down Mask Mandate

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 Transportation Mask Mandate”

-Andrew McCarthy: “What’s Wrong and What’s Right about Judge Mizelle’s Mask-Mandate Decision”

-O'Hare Truck Service, Inc. v. City of Northlake, 518 U.S. 712

-Bloomberg: “Trump Lawyer Sticks Uber With $91 Million Arbitration Bill for 'Reverse Bias' Claims”

Apr 22, 2022
How and Why We Change

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 Court Became the Province of Cloistered Elites”

Apr 18, 2022
That Nationwide Injunctions Concurrence

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 Expression and Students’ First Amendment Rights”

Apr 15, 2022
The Argument for Originalism

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 Quest for Contentment” by Benjamin Storey and Jenna Silber Storey

Apr 12, 2022
Supreme Court Rules in Malicious Prosecution Case

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 Thrones: A New History of the Middle Ages” by Dan Jones

Apr 08, 2022
Thomas Jefferson Admissions Can Remain For Now

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

Apr 05, 2022
The Crime-Fraud Exception

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 Foundation for the Visual Arts, Inc. v. Goldsmith

-National Pork Producers Council v. Ross

Apr 01, 2022
Religious Liberty and the Execution Chamber

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

Mar 29, 2022
Ketanji Brown Jackson Confirmation Hearings Takeaways

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 Senator Hawley Cites Show Judge Jackson Is an Unremarkable Sentencer in Child-Porn Cases”

-Washington Post: “Josh Hawley’s misleading attack on Judge Jackson’s sentencing of child-porn offenders”

-Original Jurisdiction: “Free Speech At Yale Law School: One Progressive's Perspective”

Mar 25, 2022
Environmental Law Has 'Major Questions'

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

Mar 18, 2022
Baby Got Brief

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: “Most Women Denied Abortions by Texas Law Got Them Another Way”

-National Review: “The New York Times Misleads on Texas Abortion Trends”

-New York Times: “Texas Supreme Court Shuts Down Final Challenge to Abortion Law”

-CNN: “A Kansas teacher is suing school officials for requiring her to address students by their preferred names, saying the policy violates her religious freedom”

Mar 14, 2022
State Courts, Voting Maps, and the Supreme Court

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

-Arizona State Legislature v. Arizona Independent Redistricting Comm’n

-Rucho v. Common Cause

-Make The Road New York v. McAleenan

-Make The Road New York v. Wolf

Mar 10, 2022
Cosby, Wooden, and the Supreme Court's Busy Day

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

Mar 08, 2022
January 6 Committee Alleges ‘Criminal Conspiracy’

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:

-Egbert v. Boule oral argument transcript

-January 6 court filing

-Eastman and Gregory email exchange


Mar 03, 2022
Judge Strikes Down High School's Racial Balancing Policy

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

-Washington Examiner: “The media's war on Clarence and Ginni Thomas”

Feb 28, 2022
David and Sarah at Yale

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 Creative LLC v. Elenis

-Arkansas State Conference NAACP v. Arkansas Board of Apportionment

-David in The New York Times: “We Disagree on a Lot of Things. Except the Danger of Anti-Critical Race Theory Laws.”

Feb 25, 2022
Supreme Court to Review ‘Remain in Mexico’

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”

Feb 22, 2022
What Were You Thinking?

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 mandate 

-Rule 22. Applications to Individual Justices

Feb 17, 2022
Judge's Letter Fails to Disclose Conflict of Interest

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 Valieva case”

Feb 14, 2022
Supreme Court Restores Alabama Voting Map

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 the allure of ‘both sides’ journalism”

Feb 11, 2022
New Supreme Court Frontrunner?

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”

Feb 08, 2022
NFL Faces Racial Discrimination Lawsuit

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 ‘Insurrectionist’?”

-Politico: “Biden vs. Trump: The Makings of a Shattering Constitutional Crisis”

-Representative Victor Berger of Wisconsin, the First Socialist Member of Congress

Feb 04, 2022
Electoral Count Act! Here We Go Again

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

Feb 01, 2022
Justice Stephen Breyer to Retire

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”

-Office of Legal Counsel Equal Rights Amendment memo

-David in The Atlantic: “Georgia Has a Very Strong Case Against Trump”

-DOJ: Leader of Oath Keepers and 10 Other Individuals Indicted in Federal Court for Seditious Conspiracy and Other Offenses Related to U.S. Capitol Breach

-Reuters: “Hutaree militia walk from jail after charges dismissed”

-18 U.S. Code § 2381 - Treason

-18 U.S. Code Chapter 73 - Obstruction of Justice

-18 U.S. Code § 2384 - Seditious conspiracy

Jan 28, 2022
Supreme Court to Hear Affirmative Action Challenge

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

Jan 25, 2022
Maskgate at the Supreme Court

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 you won't want to miss.


Show Notes:

-Nina Totenberg’s mask story at NPR

-Statement from Justices Sotomayor and Gorsuch

-Statement from Chief Justice Roberts

-Trump v. Thompson

-Advisory Opinions: “January 6 and Executive Privilege”

-Shurtleff v. Boston oral argument transcript

-Federal Election Commission v. Ted Cruz for Senate oral argument transcript

Jan 20, 2022
Amending the Constitution with Professor Levinson

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 Veneration”

-Levinson explains The Democracy Constitution project

-Democracy: “A New Constitution for The United States”

-Levinson: “The Price of an Unchanging Constitution”

Jan 17, 2022
Supreme Court Blocks Vaccine Mandate

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:


-Biden v. Missouri

Jan 14, 2022
Inside a Supreme Court Argument

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 article with sketch of Scott

-SCOTUSblog: “Court seems poised to block vaccine-or-test policy for workplaces but may allow vaccine mandate for health care workers”

-Reason: “Sloppy Arguments Over COVID Mandates at SCOTUS”

Jan 10, 2022
Revisiting the Electoral Count Act

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 Inscribed Books to RBG”

Jan 06, 2022
Welcome to the Goat Rodeo

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.


Show Notes:

-NY State Department of Health eligibility for Paxlovid or Monoclonal Antibody Treatment

Jan 03, 2022
Live from the Mayflower Hotel: An AO Holiday Special

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 Press

-Read Sarah in The Sweep

Dec 23, 2021
Vaccine Mandate Reaches Supreme Court

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 Circuit upholds vaccine mandate

-Reason: “Biden Administration Imposes Vaccine Mandate on Health Care Facilities that Participate in Medicare or Medicaid”

-Reason: “Health Care Worker Vaccine Mandate Reaches the Supreme Court”

-Oliver v. Arnold

-Born in the U.S.A. lyrics

Dec 20, 2021
Is the ERA part of the Constitution?

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

Dec 17, 2021
Supreme Court Texas Abortion Law Ruling Said What?

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 Circuit vaccine mandate ruling

Dec 13, 2021
Supreme Court Weighs Ban on State Aid to Religious Schools

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?


Show Notes:

-Wall Street Journal: “Federal Courts Aren’t Royal Ones”

-New Yorker: “On “Succession,” Jeremy Strong Doesn’t Get the Joke”

Dec 10, 2021
Charging a School Shooter's Parents

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 Political Quandary Deepens”

-Washington Post: “40 acres and a mule: How the first reparations for slavery ended in betrayal”

Dec 07, 2021
The End of Roe and Casey?

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 argument transcript

-Ginsburg’s remarks on Roe

-David in The Atlantic: “How Roe Undermined Itself”

-Washington Post: “Justice Kennedy’s Flip”

Dec 02, 2021
Prior Restraint and Project Veritas

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)”

-Reason: “Are People Allowed to Use Deadly Force to Defend Property?”

-Lubbock Avalanche-Journal: “Widow releases video of Chad Read's fatal shooting in South Lubbock”

-Warning Graphic: Lubbock, Texas shooting video

Nov 29, 2021
Understanding the Rittenhouse Verdict

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 Notes:

-Mississippi v. Tennessee

-French Press: “Kyle Rittenhouse, Open Carry, and the Breaking of Self-Defense Law”

-David in The Atlantic: “Kyle Rittenhouse’s Acquittal Does Not Make Him a Hero”

Nov 23, 2021
The Insular Cases

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 Shenanigans at Yale Law School”

-David Lat: “The Newest Insanity Out Of Yale Law School”

-David Lat: “Yale Law School And the Federalist Society: Caught In A Bad Romance?”

-David Lat: “Doe v. Gerken: A Lawsuit Against Yale Law”

Nov 18, 2021
5th Circuit Extends Stay of Vaccine Mandate

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 Lincoln Broke the U.S. Constitution”

-New York Times review of Feldman’s “The Broken Constitution”

Nov 16, 2021
Supreme Court Weighs Death Row Prayer Wish

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

Nov 12, 2021
5th Circuit Blocks OSHA's Vaccine Mandate

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 Unwritten Law That Helps Bad Cops Go Free”

-National Review: “The Steele Dossier, Hillary Clinton’s Malignant Gift to America”

-National Review: “Shame on Buzzfeed”

Nov 09, 2021
New York Gun Law Faces the Supreme Court

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.

Nov 06, 2021
Supreme Court Hears Texas Abortion Law Arguments

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.

Nov 02, 2021
Parental Rights in Public Schools

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 Parents Your Child”

-Andrew Fleischman Twitter thread on the Rittenhouse case

-New York Times “The 37-Year-Olds Are Afraid of the 23-Year-Olds Who Work for Them”

Oct 28, 2021
Texas Abortion Law Gets Supreme Court Date

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 letter

-ProPublica “The Liberty Way”

-Sarah’s piece in Politico

Oct 26, 2021
Biden’s Supreme Court Commission Part II

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

Oct 21, 2021
Biden’s Supreme Court Commission Said What?

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

Oct 18, 2021
The Curious Case of Jailing Children

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 Children Were Jailed for a Crime That Doesn’t Exist. Almost Nothing Happened to the Adults in Charge.”

-Washington Free Beacon “A Yale Law Student Sent a Lighthearted Email Inviting Classmates to His ‘Trap House.’ The School Is Now Calling Him To Account.”

Oct 15, 2021
January 6 and Executive Privilege

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

-POGO “The Limits of Executive Privilege”

-Nixon v. Administrator of General Services

-Harvard Law “Can Donald Trump still assert executive privilege?”

-2007 OLC memo

-Don McGahn opinion

-Mother Jones “Here’s the Truth About Brett Kavanaugh’s Finances”

Oct 11, 2021
Manners Maketh a Pod

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:

Oct 07, 2021
Supreme Court is Back

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

-Justices add five new cases to their docket from “long conference,” including Cruz campaign case

-SCOTUS oral argument schedule

-Wikipedia page on Baphomet

Oct 05, 2021
Nerds with Strong Opinions

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 Generation for Failure

-Scholars Under Fire Database

-FIRE’s 2021 College Free Speech Rankings

-Undoctrinate: How Politicized Classrooms Harm Kids and Ruin Our Schools―and What We Can Do About It

Sep 27, 2021
Eastman Memo: It's Real and It's Not Spectacular

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 theory

-Williamson County critical race theory complaint

-New York Times story on Protecting Our Democracy Act

-House analysis of the Protecting Our Democracy Act provisions

Sep 23, 2021
How to Get Away with Interstate Mail Fraud

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).


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

Second Amendment Amici brief regarding New York gun laws

Rep. Devin Nunes' suit against Ryan Lizza and Hearst Magazine Media

The Writer of This Article Also Wrote This Headline and That’s Rare

“The Perfect Crime,” Georgetown Law Review article by Brian C. Kalt

Sep 20, 2021
Future of Biden's Vaccine Mandate

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

-Jacobson v. Massachusetts establishing the government’s right to compulsory vaccination

-United States of America v. Texas on Texas’ abortion statute

-The opinion from the U.S. Court of Appeals for the 6th Circuit on Tennessee’s heartbeat abortion ban

-Asbestos Information Ass'n v. OSHA case

-Congressional Research service paper on OSHA

-Justice Breyer interview transcript with Chris Wallace

Sep 13, 2021
Automatic, Still Is

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 opinion on Whole Woman’s Health v. Paxton

-Indictment of former District Attorney Jacquelyn Lee Johnson

-Supreme Court’s stay of execution for John Ramirez

-District Court opinion in Blankenship v. Trump

-“Automatic, Still Is.” soundcloud

Sep 09, 2021
Supreme Court's Texas Abortion Law Decision Explained

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. Casey.

Show Notes:

-Supreme Court opinion on Whole Woman's Health v. Jackson

-Definition of Ex Parte

-Definition of Qui Tam

-Link to the complaint and emergency applications in Whole Woman’s Health v. Jackson

Sep 02, 2021
Ben Folds Talks Creativity

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

Aug 30, 2021
The Spirit of Curling

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

Aug 23, 2021
Ducklings Have Come Home to Roost

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 Times story on Biden administration’s move against mask bans

-Texas federal judge's ruling on “remain-in-Mexico”

-Texas Supreme Court ruling on Texas Democratic lawmakers

Aug 19, 2021

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 Go

-Teddy Roosevelt’s Man in the Arena quote

Aug 17, 2021
Defamation Law 101

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

-Todd Zywicki’s lawsuit against George Mason University

-Third Amendment Lawyers Association amicus brief on the eviction moratorium

-4th Circuit ruling upholding a ban on topless sunbathing

Aug 12, 2021
Fact, Fiction, and the Fight

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

Aug 10, 2021
Eviction Moratorium Faces Legal Challenges

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 antitrust law—something that, according to Sarah, may just be made up anyways.

Show Notes:

-7th Circuit vaccine mandate ruling

-Poland wins first 4x400 mixed relay gold of Olympics

Aug 05, 2021
We’re Not Saying It’s Aliens, But...

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.

Show Notes:

-Avi Loeb’s book Extraterrestrial: The First Sign of Intelligent Life Beyond Earth

-On Oumuamua by Avi Loeb

-Office of National Intelligence UFO report

Aug 02, 2021
Compelled Speech and Religious Liberty

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 Compelled Speech

-DOJ refuses to defend Rep. Mo Brooks

Jul 30, 2021
Swinging for the Fences on Abortion

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 Notes:

-Taking Offense v. California

-Dobbs v. Jackson Women’s Health Organization

Jul 26, 2021
And May it Please the Court

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 States

-BP v. Baltimore

-Goldman Sachs v. Arkansas Teacher Retirement System

-Henry Schein v. Archer and White

Jul 22, 2021
First Amendment Bonanza

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 the recent Texas district court ruling striking down DACA.

Show Notes:

-Anaheim cancels America First rally

-9th Circuit prayer case

-8th Circuit University of Iowa case

-DACA ruling from district court

Jul 20, 2021
Guns, Avenatti, and Bathrooms

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. Bureau of Alcohol

-Michael Avenatti sentenced to prison for 30 months

-Tennessee bathroom law

Jul 15, 2021
A New Way to View the Supreme Court

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. Evanston/Skokie School District 65

Jul 12, 2021
Peter Canellos Talks The Great Dissenter

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:

-Trump’s lawsuit against Twitter

-The Great Dissenter: The Story of John Marshall Harlan, America's Judicial Hero

Jul 08, 2021
Brutally Unfair, Legally Complicated

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 Sarah review a ruling from a Minneapolis judge that throws a wrench into “defund the police.”

Show Notes:

-Friday Supreme Court orders

-Writ of mandamus from Minneapolis judge on police force

Jul 06, 2021
Why Bill Cosby is a Free Man

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, David and Sarah talk about a new big tech bill out of Florida that puts a lot of new requirements on big social media platforms (except those operated by certain state theme parks).

Show Notes:

-Pennsylvania Supreme Court Bill Cosby decision

-Brnovich v. Democratic National Committee

-Americans for Prosperity Foundation v. Bonta

Jul 01, 2021
Bundle of Sticks

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 dispute involving union recruiting that divided the Supreme Court along even ideological lines. Finally, David and Sarah discuss a heated confrontation at the 5th Circuit about a case involving police officers who tased a person soaked in gasoline and set him on fire.

Show Notes:

-Thomas statement on federal marijuana laws

-John Lombardo v. City of St. Louis, Missouri

-Cedar Point Nursery v. Hassid

-5th Circuit ruling on police incineration

-5th Circuit ruling on en banc petition (and Justice Willett’s dissent)

Jun 28, 2021
Angry Cheerleader Gets a Supreme Court Win

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 quick dive into Lange v. California, the “hot pursuit” Supreme Court case that limits when and how police officers can enter a home without a warrant.

Show Notes

-Mahanoy Area School District v. B.L.

-Lange v. California

Jun 24, 2021
Supreme Court Rules Against NCAA

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 security fraud and patents. Finally, David and Sarah chat about her recent Twitter spat with Case Western law professor Jonathan Adler about standing in the Obamacare case.

Show Notes:

-National Collegiate Athletic Association v. Alston

-Goldman Sachs Group Inc. v. Arkansas Teacher Retirement System

-United States v. Arthrex Inc.

-Jonathan Adler’s Reason article about the Supreme Court Obamacare case

Jun 22, 2021
Supreme Court Dismisses Obamacare Challenge

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 denied his chance to write a majority opinion.

Show Notes:

-California v. Texas

-Fulton v. City of Philadelphia

Jun 17, 2021
DOJ Lawmaker Subpoenas Explained

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 siding with former President Donald Trump in a defamation case brought by E. Jean Carroll. Finally, they discuss why a recent Twitter thread on critical race theory that inspired a “hate tsunami” online should inspire you to go attend your local school board meetings.

Show Notes:

-Greer v. United States

-Terry v. United States

-The New York Times’ June 10 initial subpoena story

-The New York Times’ June 13 follow-up story about Don McGahn’s records

-The New York Times’ June 11 follow-up story about DoJ opening an investigation into the subpoenas

-Explanation of Assistant U.S. attorney

-David’s Twitter thread

-David’s debate with Christopher Rufo on Bari Weiss’ podcast

Jun 14, 2021
Supreme Court Countdown Continues

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 Amy Chua.

Show Notes:

-Borden v. United States

-20th Circuit of Virginia Ruling on preferred pronouns case

-Texas Bar Association investigating Ken Paxton

Jun 10, 2021
California's Assault Weapons Ban Overturned

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 States v. Mendoza-Lopez

-Sotomayor’s statement on the Draft

-California assault weapons ban ruling

Jun 07, 2021
What Does 'So' Mean?

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:

-Van Buren v. United States

-“Law student’s graduation in jeopardy as Stanford investigates satirical email lampooning Federalist Society, Sen. Hawley, and Jan. 6 [UPDATED]” by the Foundation for Individual Rights in Education (FIRE)

-“Sixth Circuit Enjoins Use of Race and Sex Preferences for Coronavirus Relief Funding” by Jonathan Adler in Reason

-Regents of the University of California v. Bakke

-Adarand Constructors v. Pena

Jun 03, 2021
Copyright Law and Andy Warhol

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:

-Tuesday’s Supreme Court orders

-Garland v. Ming Dai

-United States v. Cooley

-Prince photos

-Oath Keepers indictment

-Conversation between David and Christopher Rufo moderated by Bari Weiss

-“The Sliming of Bari Weiss” by David French in National Review

-Netchoice LLC v. Moody

Jun 01, 2021
Supreme Court's Pipeline Problem

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 French Press: “The GOP Becomes What it Once Despised

-Miami Herald Pub. Co. v. Tornillo

-Separation of Hinduism From Our Schools v. Chicago Public Schools

May 27, 2021
A 'Watershed' Rule

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 recommendations for lead fact-checker Alec Dent’s forthcoming cicada eating experience.

Show Notes:

-Dobbs v. Jackson Women’s Health Organization

-June Medical Services LLC v. Russo

-Edwards v. Vannoy

May 20, 2021
Supreme Court Takes Mississippi Abortion Case

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 Caniglia v. Strom, a separate court case involving the Mississippi Supreme Court, the cicada invasion, and more.

Show Notes:

-June Medical Services LLC v. Russo

-Whole Woman’s Health v. Hellerstedt

-Dobbs v. Jackson Women’s Health Organization

-Caniglia v. Strom

May 17, 2021
McKay Coppins Talks Kavanaugh

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

-Coppins’ Atlantic piece on stockpiling food

-David’s National Review piece on the Kavanaugh allegations

-David’s Time piece on the Facebook Oversight Board

May 13, 2021
The Costa Method

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, third, and fourth clerkships

-Sarah’s Politico piece on serial clerkships

-Judge Costa’s piece on nationwide injunctions

-The Legal Analyst: A Toolkit for Thinking about the Law by Ward Farnsworth

May 10, 2021
The Tenth Justice

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 funny anecdote involving Supreme Court Justice Brett Kavanaugh, a trashcan, and Matt Damon.

Show Notes:

-Sarah’s piece in Politico on serial clerkships

May 06, 2021
Camping Outside the Supreme Court

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. Heller.

Show Notes:

-Fulton v. City of Philadelphia

-Ferris v. United States

-Trump v. Hawaii

May 03, 2021
A Cheerleader's Supreme Court Case

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 Dispatch Podcast

-“When a Justice Needs a Friend” by William Safire in the New York Times

-Heller v. District of Columbia

-Niz-Chavez v. Garland, Attorney General

-Mahanoy Area School District v. B.L. Supreme Court oral arguments

-Tinker v. Des Moines Independent Community School District

-Morse v. Frederick

-French Press: How an Angry Cheerleader Could Help Cancel Cancel Culture” by David French in The Dispatch

-Harper v. Poway Unified School District

-Dariano v. Morgan Hill Unified School District

-Saxe v. State College Area School District

Apr 30, 2021
Supreme Court Picture Day

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 college they attend is the most important factor in determining their success.

Show Notes:

-New SCOTUS Portrait

-Chief Justice Roberts talking to Justice Kagan Portrait

-Jones v. Mississippi case

-Texas v. California case

-New York State Rifle & Pistol Association Inc. v. Corlett

-SCOTUSblog page on Guantanamo Bay case

-SCOTUSblog page on Houston Community College System v. Wilson

-SCOTUSblog page on Americans for Prosperity Foundation v. Bonta

-Americans for Prosperity Foundation v. Bonta oral arguments

-Operation Varsity Blues on Netflix

-Sarah’s favorite Onion article

Apr 26, 2021
Chauvin’s Conviction and What's Next?

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)

Apr 22, 2021
Hearsay and the Right of Defendants

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

Apr 19, 2021
The Trial of Derek Chauvin

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 Cleveland v. McCloud

Apr 16, 2021
The Plastic Cutlery of Damocles

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.

Show Notes:

-David Lat’s Substack: Original Jurisdiction, and novel: Supreme Ambitions

-David Lat’s posts on Breyer: “Will Justice Breyer Retire? Reading The Clerk Hiring Tea Leaves” and “Confession Of Error: Justice Breyer Is Hired Up For October Term 2021

-Ritesh Tandon v. Gavin Newsom

-Fraternal Order of Police, Newark Lodge No. 12 v. City of Newark

-Campbell v. Acuff-Rose Music, Inc.

-Orin Kerr’s Twitter thread on lawful orders and Pennsylvania v Mimms

-“A Tale of Two Rap Songs” by David French in The Dispatch

Apr 12, 2021
Justice Breyer's Warning

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 prosecution explainer by Alex Tabarrok and “16 theories for why crime plummeted in the US” by Dara Lind and German Lopez in Vox.

-“An Extraordinary Winning Streak for Religion at the Supreme Court” by Adam Liptak in the New York Times and “The Roberts Court and the Transformation of Constitutional Protections for Religion: A Statistical Portrait” by Lee Epstein and Eric A. Posner in the Supreme Court Review.

-Native American adoption law case.

-Take the next 30-days to try a Dispatch membership

Apr 08, 2021
Common Carriers

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 Thomas Jefferson High School for Science and Technology and the GOP’s legislative blowback against corporate wokeness.

Show Notes:

-Google v. Oracle

-Supreme Court’s April 5 orders

-Biden v. Knight First Amendment Institute at Columbia University

-Jason Small v. Memphis Light, Gas & Water

-Trans World Airlines, Inc. v. Hardison

-Coalition for TJ v. Fairfax County School Board and Dr. Scott Brabrand

-Revisionist History podcast Season 3 Episode 10

Apr 05, 2021
When the NCAA Met the Supreme Court...

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 National Collegiate Athletic Association v. Alston.

-Taylor v. Riojas.

-Florida v. Georgia.

-“The Supreme Court Is Giving Lower Courts a Subtle Hint to Rein In Police Misconduct” by Joanna Schwartz in The Atlantic.

-Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics.

-Facebook Inc. v. Duguid.

-French Press: ‘They Aren’t Who You Think They Are’ by David French in The Dispatch.

-James Blassingame and Sidney Hemby v. Donald Trump.

Apr 01, 2021
The Curious Case of Roxanne Torres

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 lawyer listeners.

Show Notes:

-Caniglia v. Strom, Torres v. Madrid, Terry v. Ohio, R.A.V. v. City of St. Paul, Wisconsin v. Mitchell

-“Supreme Court agrees to hear first abortion case with 6-3 conservative majority” by Alice Miranda Ollstein in Politico.

Mar 29, 2021
The Takings Clause

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 against Texas Attorney General Ken Paxton, and a Massachusetts Supreme Judicial Court case on the ministerial exception. They wrap things up with some much needed Netflix recommendations and a conversation about D.C. statehood.

Show Notes:

-Cedar Point Nursery v. Hassid and Supreme Court oral arguments.

-New York State Rifle & Pistol Association Inc. v. Corlett and Holloway v. Garland.

-Twitter, Inc. v. Ken Paxton.

-Deweese-Boyd v. Gordon College.

-Torres v. Madrid.

Mar 25, 2021
Originalism of 'Moral Substance'

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 likely to rule. Also in the hopper for today: Our hosts introduce us to a union case and discuss speculation surrounding Justice Stephen Breyer’s retirement, a D.C. Circuit dissent by Judge Laurence Silberman, the MAGA right’s rejection of originalism, and best picture nominee Promising Young Woman.

Show Notes:

-U.S. v. Tsarnaev.

-Massachusetts Lobstermen’s Association et al. v. Gina Raimondo, Secretary of Commerce, et al.

-Antiquities Act.

-Christiana Tah and Randolph McClain v. Global Witness Publishing, Inc. and Global Witness.

-New York Times v. Sullivan.

-“A Better Originalism” by Hadley Arkes, Josh Hammer, Matthew Peterson, and Garrett Snedeker in the American Mind.

-“Zack Snyder’s Justice League and America’s Second-Greatest Superhero Trilogy” by David French in The Dispatch.

Mar 22, 2021
The World of Commercial Legal Finance

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:

-Clark et al v. State Public Charter School Authority et al.

-Brown v. Hot, Sexy and Safer Productions, Inc.

Mar 18, 2021
Listener Mailbag Part II

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 Appellate Practice and Process.

-“ ‘(Cleaned Up)’ Parenthetical Arrives in the Supreme Court” by Eugene Volokh in Reason.

-“Larry Flynt’s Life in Contempt” by Ross Anderson in Los Angeles Magazine.

-Empirical SCOTUS: Interesting meetings of the minds of Supreme Court justices” by Adam Feldman in SCOTUSBlog.

-Federal Tort Claims Act and Immigration and Nationality Act.

-Cases they mentioned: Keeton v. Hustler Magazine, Inc., Knick v. Township of Scott, Bostock v. Clayton County, Masterpiece Cakeshop v. Colorado Civil Rights Commission, Our Lady of Guadalupe School v. Morrissey-Berru, Morse v. Frederick, Rucho v. Common Cause and Kelo v. City of New London.

Mar 15, 2021
Bottle Episode

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 People Act.”

-“The New War on Woke” by Jeffrey Sachs in ArcDigital.

-Garcetti v. Ceballos.

-“Beyond Originalism” by Adrian Vermeule in The Atlantic.

Mar 11, 2021
Nominal Damages

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 Katie sing the praises of Oprah and react to the Prince Harry and Megan Markle interview on CBS.

Show Notes:

-Nominal damages decision

-SCOTUSBlog article about the decision

-Nina Totenberg’s Twitter

-Katie Barlow’s Twitter (which has all of her TikToks)

-CBS’ Harry and Megan interview

Mar 08, 2021
Nondiscrimination Law and the Equality Act

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:

-“The Equality Act Has a Foundational Legal Problem” by David French in The Dispatch.

-Radiolab Presents: Gonads.

-Bostock v. Clayton County.

-Religious Freedom Restoration Act.

-Fulton v. City of Philadelphia.

-Brnovich v. Democratic National Committee and its Supreme Court oral arguments.

-Shelby v. Holder.

Mar 04, 2021
Hot Pursuit

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.

-National Coalition for Men v. Selective Service System cert petition.

-Robert Collier v. Dallas County Hospital District cert petition.

-Rostker v. Goldberg.

Mar 02, 2021
The Shadow Docket

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 docket that you won’t want to miss.

Show Notes:

-Republican Party of Pennsylvania v. Veronica Degraffenreid.

-“Dissent by Justice Thomas in election case draws fire for revisiting baseless Trump fraud claims” by Mark Joseph Stern in Slate.

-“Clarence Thomas Promotes Trump’s Voter Fraud Lies in Alarming Dissent” by John Fritze in USA Today.

-“Foreword: The Supreme Court's Shadow Docket” by William Baude in the New York University Journal of Law & Liberty.

-Feb. 18 House Judiciary Committee hearing on the Supreme Court’s shadow docket.

-Supreme Court Practice by Eugene Gressman.

-South Bay United Pentecostal Church v. Newsom.

-Fulton v. City of Philadelphia.

Feb 26, 2021
The Nondelegation Rumble

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 all of these questions and more.

Show Notes:

-“There’s No Historical Justification for One of the Most Dangerous Ideas in American Law” by Nicholas Bagley and Julian Davis Mortenson in the Atlantic.

-“Delegation at the Founding” by Nicholas Bagley and Julian Davis Mortenson in Columbia Law Review.

-“No Nondelegation at the Founding? Not so fast,” by Ilan Wurman in the Yale Law Journal.

-Schechter Poultry Corp. v. United States.

-Above the Law.

-The Second Founding: An Introduction to the Fourteenth Amendment by Ilan Wurman.

Feb 22, 2021
Nondelegation Doctrine

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 affect the conservative media climate.

Show Notes:

-Speech First vs. Cartwright and Speech First, Inc. v. Gregory L. Fenves.

-Nondelegation doctrine cases: Schechter Poultry Corp. v. United States, J.W. Hampton Jr., & Co. v. United States and Gundy v. United States.

-“Trump’s Acquittal Exposed a Republic in Peril” by David French in Time.

-“There’s No Historical Justification for One of the Most Dangerous Ideas in American Law” by Julian David Mortenson and Nicholas Bagley in the Atlantic.

-“Opinion analysis: Court refuses to resurrect nondelegation doctrine” by Mila Sohoni in SCOTUSblog.

Feb 18, 2021
Death Penalty Distortion

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. Smith, federal Religious Land Use and Institutionalized Persons Act, and “Bong Hits 4 Jesus” case Morse v. Frederick.

-“Congress’s Day” by Yuval Levin in National Review and “Transcript: Ezra Klein Interviews Yuval Levin About the Future of the Republican Party” in the New York Times.

-Framing Britney Spears Hulu documentary.

Feb 15, 2021
Arguments About Arguments

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 steering Sen. Mitt Romney away from the rioters and Zoom cat lawyer video.

Feb 11, 2021
Last Dance for Pandemic Law

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 United Pentecostal Church v. Gavin Newsom.

-Typography for Lawyers by Matthew Butterick.

Feb 08, 2021
Impeachment Briefs and Font Choices

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’s Papyrus Skit.

-“U.S. Nazi hunter has one active case” by Evan Perez, Alexander Rosen, Wesley Bruer, Jeremy Moorhead, Alex Lee and Josh Gaynor in CNN.

-“Your Type May Be Ripe For Review” by Chris Mincher in the Maryland Appellate Blog.

-Rule 32. Form of Briefs, Appendices, and Other Papers.

-Democrats’ impeachment trial brief and Trump’s response to the impeachment article.

-Salinas v. United States Railroad Retirement Board, Republic of Hungary v. Rosalie Simon, Federal Republic of Germany v. Philipp, Wednesday’s Supreme Court orders, Howard J. Bashman’s “How Appealing” appellate litigation blog.

Feb 05, 2021
Defending a President

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 impeachment.

Show Notes:

-“The Senate’s impeachment trial is illegal and a sham” by Rand Paul in the Washington Examiner.

-Explainer on bills of attainder and House Resolution 24 - Impeaching Donald John Trump, president of the United States, for high crimes and misdemeanors.

Feb 01, 2021
Return of the TRO

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 Expressions Hair Design v. Schneiderman.

-Take our podcast survey

Jan 28, 2021
Mootness and Munsingwear

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 Washington.

-“The Great Chicken Sandwich (Meal) Wars, Settled” by Sarah Isgur in The Dispatch.

-Take our podcast survey

Jan 25, 2021
Shibboleths and Executive Orders

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 executive orders.

Show Notes:

-Divided We Fall: America's Secession Threat and How to Restore Our Nation by David French.

-Take our podcast survey

Jan 21, 2021
Chicken Wars

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 the Regulation of Social Media Content” by the Congressional Research Service.

-Red Lion Broadcasting Co. vs. FCC, Turner Broadcasting System, Inc. v. FCC, and Reno v. American Civil Liberties Union.

-“Where Does the South End and Christianity Begin?” by David French in The Dispatch.

Jan 20, 2021
First Amendment Lamborghini

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 debate clause.

Show Notes:

-Take our podcast survey

-Uzuegbunam v. Preczewski case and oral arguments.

-“A Eulogy for a Friend, a Lament for our Nation” by David French in The Dispatch.

-New York State Rifle & Pistol Association Inc. v. Corlett.

-“Are We the Baddies?” sketch.

Jan 14, 2021
Incitement of Insurrection

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 test, which criminalizes inflammatory speech that is both “directed to inciting or producing imminent lawless action,” and “likely to incite or produce such action”?

Show Notes:

-Mahanoy Area School District v. B.L

-Thomas More Law Center v. Becerra

-David’s French Press newsletter on Mahanoy Area School District v. B.L

-Amendment 14: Section Three

-1974 memo on presidential or legislative pardon of the president

Jan 11, 2021
Known Unknowns

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 Representatives Ted Lieu, David Cicilline, and Jamie Raskin.

-“Divided We Fall: America's Secession Threat and How to Restore Our Nation” by David French in The Dispatch.

Jan 08, 2021
C'mon Man Corollary

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 its malice.” Our hosts wrap up their first episode of 2021 with David’s spirited defense of Wonder Woman 1984.

Show Notes:

-“POLITICO Playbook: The backstory of Trump’s Georgia call” by Marc Caputo.

Jan 04, 2021
Listener Mailbag Part 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 MORE! Tune in to hear the breakdown.

Show Notes:

-A brief history of pardons from Smithsonian magazine.

-Korematsu v. United States, Buck v. Bell, Roe v. Wade, Kelo v. City of New London, Schenck v. United States, Employment Division v. Smith, Monell v. Department of Social Services, Brandenburg v. Ohio, Skinner v. Oklahoma, Trump v. Hawaii.

-38 states with fetal homicide laws.

-Qualified immunity doctrine.

-“Books to Read If You’re Tired of Hearing About Impeachment” by Sarah Isgur in The Dispatch.

-Sarah’s book recommendations: The Witches: Salem, 1692 by Stacy Schiff, She Has Her Mother's Laugh: The Powers, Perversions, and Potential of Heredity by Carl Zimmer, How Innovation Works: And Why It Flourishes in Freedom by Matt Ridley, Hero of the Empire: The Boer War, a Daring Escape, and the Making of Winston Churchill by Candice Millard.

-David’s book recommendations: Divided We Fall: America's Secession Threat and How to Restore Our Nation by David French, Rhythm of War: The Stormlight Archive, Book 4 by Brandon Sanderson, The Democratization of American Christianity by Nathan Hatch.

Dec 21, 2020
NCAA Meet the Supreme Court

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 listener’s email about Supreme Court original jurisdiction.

Show Notes:

-NCAA’s cert petition to Supreme Court, 9th Circuit ruling for NCAA antitrust case, and Supreme Court reversal statistics.

-“The College Athletes Who Are Allowed to Make Big Bucks: Cheerleaders” by Tess DeMeyer in the New York Times.

-NCAA v. Board of Regents.

-Trans World Airlines Inc. v. Hardison

-Can Private Employers Mandate COVID Vaccines?” by Josh Blackman in Reason.

-End of Discussion: How the Left's Outrage Industry Shuts Down Debate, Manipulates Voters, and Makes America Less Free (and Fun) by Guy Benson and Mary Katharine Ham.

-Miracle on 34th Street.

Dec 17, 2020
"Naw Dawg" The Sequel

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 Texas lawsuit, Sarah and David discuss Trump v. Wisconsin, Bush v. Gore, the counting of the electoral college votes, and what options President Trump might still have to contest the election. They wrap things up by answering some listener mail about the LSAT.

Show Notes:

-Arizona v. California dissent, Supreme Court’s Friday order on Texas lawsuit, Trump v. Wisconsin, Bush v. Gore, Bush v. Palm Beach County Canvassing Bd, 3 U.S. Code § 15.

Dec 14, 2020
Naw Dog Doctrine

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 Department of Justice’s antitrust lawsuit against Facebook. They wrap things up by answering some reader mail about law school.

Show Notes:

-Supreme Court’s one-sentence order denying injunctive relief to Rep. Mike Kelly.

-French Press: “The Kraken Is Lackin’.”

-Texas Attorney General Ken Paxton’s new lawsuit against Pennsylvania, Georgia, Michigan, and Wisconsin.

-The Morning Dispatch: Checking in on the Trump Campaign Lawsuits.”

-The Federal Trade Commission’s lawsuit against Facebook.

Dec 10, 2020
The Safe Harbor Deadline

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 electors, determination of controversy as to appointment of electors, and counting electoral votes in Congress.

-“Preparing for a Disputed Presidential Election: An Exercise in Election Risk Assessment and Management” by Edward Foley in the Loyola University Chicago Law Journal.

-“The ‘Safe Harbor’ Deadline Is upon Us” by Jim Geraghty in National Review.

-Parents for Privacy v. Barr.

-“Why Do So Many Americans Think the Election Was Stolen?” by Ross Douthat in the New York Times.

-Brown v. Hot, Sexy and Safer Productions, Inc.

-“Coronavirus: When a High-Trust Response Is Required in a Low-Trust Time” by David French in The Dispatch.

Dec 07, 2020
You Reap What You Sow

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.” Today’s jam-packed episode also features a breakdown of several religious liberty cases, the White House’s alleged pay-for-pardon scheme, the U.S. census case, Attorney General Bill Barr’s special counsel appointment, and HBO’s The Undoing.

Show Notes:

-Donald Trump v. New York oral arguments transcript

-Memorandum on Excluding Illegal Aliens From the Apportionment Base Following the 2020 Census

-Franklin v. Massachusetts

-General powers of special counsel CFR

-October 19 memo from Attorney General Bill Barr

-9th Circuit Harvest Rock Church case

-Supreme Court order on Harvest Rock case

Dec 03, 2020
New Day for Pandemic Law

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 of a double whammy of good facts. One, expressions of animus from public officials and hypocrisy from public officials. And two, they’re coming to the court with clean hands.” Later in the episode, David and Sarah also dive into a host of abortion related lawsuits and the U.S. census case before ending with some thoughts on election litigation.

Show Notes:

-Roman Catholic Diocese of Brooklyn, New York v. Andrew M. Cuomo, Governor of New York, Jacobson v. Massachusetts, South Bay United Pentecostal Church v. Newsom.

Nov 30, 2020
Release the Kraken!

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 remembered by.” Our hosts discuss the Trump campaign’s failed Pennsylvania election lawsuit and Thursday’s rather unconventional press conference given by Sidney Powell, Rudy Giuliani, and Jenna Ellis. Then Sarah’s husband, Scott Keller joins the podcast to spar with David about nationwide injunctions.

Show Notes:

-U.S. District Court Judge Matthew Brann’s opinion throwing out Trump’s Pennsylvania lawsuit.

-“Nationwide Injunctions Will Be a Vital Check if Biden Overreaches” by Scott Keller in the Wall Street Journal.

Nov 23, 2020
Bong Hits 4 Jesus

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 advocacy to the humanity of the judge. Giuliani did neither of these things. After catching up on the latest election litigation disputes, David and Sarah discuss imminent lawless action in the context of the First Amendment and two of their favorite television shows.

Show Notes:

-Morse v. Frederick.

Nov 19, 2020
Watching a House of Cards Collapse

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 Notes:

-Andrew Fleischman thread on election lawsuits

-Harvard affirmative action case, DACA decision, history of discrimination with SAT and Jewish applicants

Nov 16, 2020
Swinging for the Fences

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 and give us the lowdown on the latest voter fraud conspiracy theories. Plus, David and Sarah break down Supreme Court oral arguments for the Affordable Care Act case and discuss a race-based admissions lawsuit at Harvard.

Show Notes:

-“Fact Check: Debunking the Hammer and Scorecard Conspiracy Theory” by Khaya Himmelman in The Dispatch.

-“Fact Check: Explaining the False Allegations About Dominion Voting Systems” by Alec Dent in The Dispatch.

Nov 12, 2020
The Church of Voter Fraud

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. Smith.

-Join The Dispatch for a post-election gathering featuring congressional leadership and top policy experts November 9-10: Sign up here!

Nov 05, 2020
Pivot Counties

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 controversial election lawsuit in the Lone Star state.

Show Notes:

-David’s latest French Press, “I’m Here To Remind You That Trump Can Still Win” by Nate Silver in FiveThirtyEight, FiveThirtyEight’s presidential polling average in Pennsylvania, Texas election lawsuit.

Nov 02, 2020
Voting Battles Head to Court

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 states, and election litigation galore (with a close look at Wisconsin and Pennsylvania!)

Show Notes:

-Join The Dispatch for a post-election gathering featuring congressional leadership and top policy experts November 9-10: Sign up here!

-Marquette Law poll on voters’ optimism that their preferred candidate will win, Wednesday’s Morning Dispatch: “Election Litigationpalooza,” a statement on the Pennsylvania ballot deadline litigation from Justices Alito, Gorsuch, and Thomas.

Oct 29, 2020
Early Voting Numbers Explained

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 antitrust lawsuit against Google.

Show Notes:

-Join The Dispatch for a post-election gathering featuring congressional leadership, top policy and political experts November 9-10: Sign up here!

-Most popular websites since 1993 ranked, Google’s statement against the DoJ lawsuit, and For Trump Superfans, Huge Rallies Can't Resume Soon Enough,” by Andrew Egger in The Dispatch.

Oct 26, 2020
Deer Jacking

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 have at this point in the race. Stay tuned for a legal breakdown of the Supreme Court’s latest cert grants related to deer jacking, the hot pursuit doctrine, asylum seekers, and the southern border wall.

Show Notes:

-Join The Dispatch for a post-election gathering featuring Congressional leadership, top policy and political experts Nov. 9-10: sign up here!

-Nate Cohn for the New York Times and “Are Silent Trump Voters Real, or Just a Myth?” by Jonah Goldberg in The Dispatch.

Oct 19, 2020
That Hunter Biden Story

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 ingredients to a successful marriage.

Show Notes:

-Divided We Fall by David French, “Emails reveal how Hunter Biden tried to cash in big on behalf of family with Chinese firm” by Emma Jo-Morris Gabriel Fonrouge in the New York Post, Malwarebytes Inc. v. Enigma Software Group USA, LLC, Why Only Amy Coney Barrett Gets to Have It All” by Katelyn Beaty in the New York Times.

Oct 15, 2020
Supreme Court Fight Kicks Off

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 Harm strategy, as any sound bite attacking Barrett’s religion or character could depress the Democratic candidate’s current 10-point lead over Trump. David argues that if Democrats want to preserve Biden’s steady lead, they will do everything to avoid even “a single viral moment that puts them in the villain role” during these hearings. Check out our latest episode to hear David and Sarah discuss the Affordable Care Act’s lifespan, partisan judicial elections on the state level, and the Capitol Hill Baptist Church lawsuit.

Show Notes:

-FiveThirtyEight’s presidential polling average, and The Sweep: The Witching Hour.

Oct 13, 2020
Veeps Make Their Case

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 multiple takes and edit out any evidence of the president’s lingering symptoms. “You can’t do that when in a debate,” Sarah points out, reminding us that any of the president’s coughs or bouts of heavy breathing would instantly go viral if caught on-screen. After some punditry about what this means for the Trump campaign’s reelection strategy, tune in for Sarah and David’s thoughts on the forthcoming Amy Coney Barrett Senate confirmation hearings, the strategic ambiguity of Biden’s court packing comments, and the criminal allegations against Texas attorney general Ken Paxton.

Show Notes:

-30 day free trial at The Dispatch and Divided We Fall by David French.

Oct 08, 2020
Constitutional Spelunking

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 so undemocratically, the court has created a problem that only it can fix.” On today’s episode, our podcast hosts discuss the evolution of religious liberty and discrimination law, ongoing election disputes in Wisconsin and Pennsylvania, and the latest updates on the presidential campaign ad wars. Sarah and David wrap things up with a fun constitutional exercise by poking holes in the 25th Amendment and unpacking what happens when presidents die at different points in the cycle.

Show Notes:

-30 day free trial at The Dispatch, Divided We Fall by David French, Obergefell v. Hodges, Kim Davis v. David Ermold, “Applications and Implications of the Twenty-Fifth Amendment” by Akhil Reed Amar, “Is the Presidential Succession Law Constitutional?” by Akhil Reed Amar and Vikram David Amar.

Oct 05, 2020
Politics of the Supreme Court

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 Cato Institute and publisher of the Cato Supreme Court Review—for a conversation about the politics and history of Supreme Court nominations. To a certain degree, politics has always played a role in Supreme Court nominations. What makes this era unique? “What’s different is that you have divergent interpretive theories mapping onto partisan preference at a time when the parties are more ideologically sorted than they’ve been since at least the Civil War,” Shapiro argues. When it comes to divergent legal theories, “every decade provides a new escalation.” Tune in for a conversation about the future of First and Second Amendment jurisprudence, the left’s misconceptions surrounding Roe v. Wade, and the problems associated with public hearings for judicial nominations.

Show Notes:

-30 day free trial at The Dispatch, CBS post-debate poll, “Why Amy Coney Barrett Should Not Be On The Supreme Court” by Nathan Robinson in Current Affairs, Chevron doctrine, “Qualified and Absolute Immunity at Common Law” by Scott Keller and Jay Schweikert’s response in Cato.

-Ilya Shapiro’s new book: Supreme Disorder: Judicial Nominations and the Politics of America’s Highest Court and Ted Kennedy tirade against Judge Robert Bork

Oct 01, 2020
Litigation and Taxes

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 that the causal relationship between the question and the result is assumed and not actually there.”

For example, a series of polls from this weekend show that a majority of Americans oppose Trump’s decision to fill the late Justice Ruth Bader Ginsburg’s Supreme Court seat before November 3. But as Sarah points out, this is a dumb survey question for two reasons: 1) the answers break down along party lines when you look a little closer at the survey responses, and 2) it doesn’t ask survey respondents whether it will change their vote, which is the only thing that matters at this point. That leads us to the New York Timesbombshell report on Trump’s tax returns and whether it will be of any consequence during this election. David and Sarah argue that loyal Trump supporters are simply too attached to the president at this point to care about any new scandals that emerge between now and November 3. Tune in to this episode for an update on presidential polling in battleground states, electoral litigation in Wisconsin and Pennsylvania, and a fun conversation about our podcast hosts’ favorite new documentaries.

Show Notes:

-New York Times/Siena College poll, Washington Post-ABC News poll, FiveThirtyEight polling averages in Pennsylvania, Wisconsin, Michigan.

-The New York Timesreport on Trump’s tax returns, Purcell v. Gonzalez.

-Republican party of Pennsylvania filed court documents over the Pennsylvania Supreme Court’s Sept. 17 rulings.

-David’s French Press: “It’s Time for ‘Pandemic Law’ to End”, “The Social Dilemma” Netflix documentary and “The Real Story of Paris Hilton.”

Sep 28, 2020
Election Law Explained

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 explains, where “decades of bad Fourth Amendment jurisprudence has empowered violent tactics even when the stakes are low.”

On today’s episode, David and Sarah also address how much the chief justice matters to the trajectory of the Supreme Court and the democratic prudence of voluntary judicial restraint. After a requisite foray into all things SCOTUS, our podcast hosts are joined by Federal Elections Commission Chairman Trey Trainor, who explains the ins and outs of election law, foreign election interference, and why the FEC is paralyzed right now. Trainor also explains how campaign finance laws like the Bipartisan Campaign Reform Act have significantly weakened the national political parties while funneling money into the state parties in the process. “What’s happened is the smoke filled room has moved from Washington, D.C. to each of the 50 states.” Stick around for an inside scoop on the rise and fall of Kanye West’s presidential campaign.

Show Notes:

-30 day free trial at The Dispatch, FEC Chairman Trainor’s statement on the dangers of procedural dysfunction, “A Resignation in Time, that Saved Nine” by Josh Blackman in Reason, David’s French Press: Supreme Court Precedent Killed Breonna Taylor.”

Sep 24, 2020
Death of a Supreme Court Giant

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? Sarah and David have some thoughts. What’s clear is that Trump will fight tooth and nail to get a nominee through as a last ditch effort to energize his base. “The more the Democrats threaten him, his brand is that he cannot give in to threats,” explains Sarah. “It’s the ultimate ‘owns the libs’ move to fill the Ginsburg seat and enrage the left.” But who will president Trump nominate? Judge Barbara Lagoa of the 11th Circuit  is in the running, but 7th Circuit judge Amy Coney Barrett’s cult of personality on the right—especially within the pro-life community—will likely give her the winning ticket. “If RBG is Michael Jordan,” Sarah explains, “ACB is Lebron James.” Stick around for a deep dive into the filibuster’s life expectancy, the possibility of a Democratic court packing scheme, and the likelihood of an Electoral College split this November.

Show Notes:

-David’s new book, Divided We Fall: America's Secession Threat and How to Restore Our Nation, Judge Jeffrey Sutton’s conversation with Justice Scalia about his friendship with RBG, and Sarah’s Sweep newsletter, “Yep, This Changes Everything,” and “Replacing Justice Ginsburg: Politics, Not Precedent” by Andrew McCarthy in National Review, the upcoming Dispatch Live with Sarah and David this Wednesday.

-David’s piece on the battle over Ginsburg's seat and don’t forget to take advantage of our 30 day free trial of The Dispatch.

Sep 21, 2020
The Owner's Manual of This Union

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 charged with carrying out laws that have been passed by Congress.  “Perhaps we have gone too far with civil service protections,” Sarah explains, “and that we are unable to remove anyone who is part of the permanent federal bureaucracy even for misconduct at this point really.”

Most of the news headlines referencing Barr’s speech highlighted his comparison between career federal prosecutors and preschoolers, as well as his rather distasteful comparison between coronavirus lockdowns and … slavery. “You know, putting a national lockdown, stay at home orders, is like house arrest,” Barr said yesterday in response to a question about the constitutionality of stay at home orders. “Other than slavery, which was a different kind of restraint, this is the greatest intrusion on civil liberties in American history.” Sarah suggests a new legal truism on today’s episode: If you compare anything to slavery, you’ve already lost your argument.

Stick around for a deep dive into Lochner v. New York  its relation to coronavirus lockdown court order, as well as a discussion about whether Trump can win enough Electoral College votes without winning Florida. Sarah and David wrap up today’s episode with a reflection on their biggest career failures.

Show Notes:

-Bill Barr’s speech at Hillsdale College, Three Felonies A Day: How the Feds Target the Innocent by Harvey Silverglate, Yates v. United States, Lochner v. New York, Morrison v. Olson, and William S. Stickman IV’s Pennsylvania District Court decision, The Dispatch30-day trial at .

Sep 17, 2020
Tell Somebody in Your Town

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’s campaign update episode, our podcast hosts discuss these fundraising efforts while dissecting Trump’s surprising lead with Hispanic voters as well as the usefulness of yard signs, door knocking, and phone banking to a campaign’s overall success. Rather than waste time putting up yard signs or trying to persuade voters to vote with ideologically charged Facebook posts, Sarah argues that the most important—and statistically effective—thing you can do to boost voter turnout is text your closest friends and remind them to vote. As David points out, “It fits in with the sort of general reality that we have a large amount of influence over a small amount of people and a small amount of influence over a large number of people.” Stick around for a discussion about the newest additions to Trump’s Supreme Court list—also known as Sarah’s close friends list—as well as David’s latest Sunday French Press newsletter on the use and abuse of critical race theory.

Show Notes:

-Sign up for a 30 day trial at The Dispatch here!

-“The Sweep: Swing States and Voter Registration Trends” by Sarah Isgur and “Sorry campaign managers: Lawn signs are only 98.3 percent useless” by Philip Bump in the Washington Post, and three polls showing Trump winning Hispanic voters in Florida, The Emerging Democratic Majority by John B. Judis and Ruy Teixeira.

-“The Most Tremendous Reelection Campaign in American History Ever” by Olivia Nuzzi in New York Magazine, the newest additions to Trump’s Supreme Court list, David’s latest French Press, “On the Use and Abuse of Critical Race Theory in American Christianity,” the New York Times’ 1619 Project, and “A pandemic, a motel without power and a potentially terrifying glimpse of Orlando’s future” in the Washington Post.

Sep 14, 2020
How to Commit Voter Fraud?

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 Sweep

Sep 08, 2020
Time, Place and Manner

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 partisanship moment we’re in right now.” How stable are these divisions that have emerged? Hyper-partisanship isn’t going anywhere as we approach the presidential election, and as David reminds us in today’s episode, “these identities are cementing at the state level as well.” After going deep into the weeds on the latest presidential polls, our podcast hosts delve into the temperamental differences between city life and suburbia, the president’s memorandum on combating lawlessness in America’s cities, and a primer on time, place, and manner restrictions on the First Amendment.

Show Notes:

-The Sweep: Midweek Mop-Up with Dave Kochel, Fox New polls in Arizona, North Carolina and Wisconsin, CNN poll, Suffolk University/USA Today poll.

-David’s forthcoming book Divided We Fall: America's Secession Threat and How to Restore Our Nation and Trump’s memorandum on “Combating Lawlessness In America’s Cities,” a very important city council meeting speech about boneless chicken wings, and a documentary on the dreaded man cold.

Sep 03, 2020
Satire Meet Reality

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 determine fact from fiction. “There is an element where it’s not that our articles are too close to reality, it’s that reality is too close to satire,” Mann explains. “It’s what makes it so hard to write because you write something that you think is so goofy and over the top and then people believe it because reality is so crazy.” Listen to today’s episode for a conversation about C.S. Lewis’ best books, Kyle’s joke-writing process, and a tell-all about why Twitter’s decision to temporarily deplatform and demonetize the Babylon Bee was ironically “the best thing that could happen” to the team. Today’s episode would be incomplete without its requisite dose of legal nerdery. Tune in to hear David and Sarah discuss the never-ending saga with Michael Flynn, the McGahn case, and Sarah Palin’s defamation case against the New York Times.

Show Notes:

-Some of the Babylon Bee’s top headlines: “Nation's Cats Endorse Trump In Hopes Americans Will Go Back To Work And Leave Them Alone”, “Nation Shocked As Jerry Falwell Jr. Doesn't Turn Out To Be Man Of Upstanding Character,” “Lego Introduces New Sharper Bricks That Instantly Kill You When You Step On Them,” “Joel Osteen Sails Luxury Yacht Through Flooded Houston To Pass Out Copies Of 'Your Best Life Now,' ” “Inspiring: Celebrities Spell Out 'We're All In This Together' With Their Yachts.”

Sep 02, 2020
Fog in Kenosha

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 quite transparent because you can see the actual shootings on tape. “But there’s still a disturbing amount of fog around all of the incidents,” he adds. As Sarah explains, “We’re never talking about black and white cases but then everyone treats them like they’re black and white cases.” From a legal standpoint, law enforcement officials will have to fill in those gaps before they can render a clear legal judgment in all of these shootings. Sarah and David also take a walk down memory lane by revisiting Bush v. Gore, while also diving into the recent TikTok lawsuit and a fun conversation about our podcast hosts’ favorite parts of adulthood.

Show Notes:

-Video of Jacob Blake shooting, Bush v. Gore.

Aug 27, 2020
Sweeping to Gold

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 much strategy is at play behind the scenes. How similar is curling to golf and hockey? Do sweepers make or break the game? Is there a culture of collegiality or trash talk in the professional curling universe? Coach Drobnick has got answers. Tune in to today’s show to hear Sarah and David also discuss the partisan skew in absentee voting, the increasing likelihood of another Bush v. Gore-style debacle over mail-in voting, and the RNC’s nonexistent platform moving into this week’s convention.

Show Notes:

-Sarah’s campaign piece about curling and The Sweep.

-“The Grand Old Meltdown” by Tim Alberta in Politico.

Aug 24, 2020
Democrats Go Virtual, Bannon Goes to Court

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 today’s pod, “Right-wing institutions are bilking from angry grandpas and grandmas—their extra dollars—to fight for the people, when they’re really conning the people.” Catch the latest episode for some highlights (and lowlights) of the Democratic Convention, a primer on employment law in relation to the Goodyear diversity slideshow, Facebook’s strike against QAnon and Antifa, and an answer to a listener question from about the citizenship of a tv show character.

Show Notes:

-Trump embracing QAnon in front of reporters, Sarah’s “Mid Week Mop-Up With Mo Elleithee”, parody Orrin Hatch tweet, and the indictment against Steve Bannon, Brian Kolfage, Andrew Badolato, and Timothy Shea.

Aug 20, 2020
Legacy Nerds

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 chest of constitutional history that helps break down gun rights precedent for our listeners. In today’s episode,  Sarah and David also dive into the John Durham probe into former FBI lawyer Kevin Clinesmith’s falsified surveillance warrants against Trump campaign adviser Carter Page.

In keeping with August’s Monday nerdery trend, our hosts are joined today by Rob Daviau, a professional legacy board game creator. Daviau has worked on more than 80 published games—including Risk 2210 AD, Axis & Allies Pacific, Star Wars Epic Duels, and Clue Harry Potter—and has been a professor of game design at Hampshire College and NYU. Tune in to today’s episode to learn the ins and outs behind legacy board game creation and to learn why a game with bad math doesn’t work.

Show Notes:

-United States v. Carolene Products Company and Harlan Fiske Stone’s famous Footnote Four.

Aug 17, 2020
Here We Go Again

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 truther, has called black people “slaves” to the Democratic Party, and has characterized the 2018 House midterms “an Islamic invasion of our government.” What’s worse, the president congratulated her win on Twitter after her victory. Given Georgia’s 14th District is a reliably red district, she’s almost certainly headed toward Congress. What does this mean for the future of the GOP? David and Sarah have some thoughts.

Be sure to listen to today’s episode to hear our podcast hosts discuss the new police officer body camera footage leading up to George Floyd’s killing, as well as the constitutional underpinnings of John Eastman’s Newsweek piece questioning Kamala Harris’ eligibility for office on birtherist grounds.

Show Notes:

-John Eastman’s Newsweek piece on Kamala Harris, U.S. v. Wong Kim Ark, Thomas v. Lynch 5th circuit case, D.C. circuit case, statutory citizenship rights explainer.

-Police officer body camera footage leading up to George Floyd’s murder.

-Professor Ted Sampsell-Jones on the charges in the George Floyd case.

-Pew Research Center polling on QAnon.

Aug 13, 2020
Our Place in the Stars

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 Trump’s latest executive actions and offer some insights on the D.C. circuit’s decision regarding the House Judiciary Committee and former White House counsel Don McGahn.

Show Notes:

-The D.C. Circuit McGahn case and the president’s executive actions this weekend: student loan payment relief memorandum, executive order on evictions, payroll tax deferral memorandum, unemployment insurance memorandum.

-Advisory Opinions episode with Josh Blackman, associate professor of law at the South Texas College of Law Houston.

-“Black Holes Really Know How to Savor Their Meals” by Marina Koren, and her author page at The Atlantic.

Aug 10, 2020
Castle Doctrine Differences

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, that how much money we’re going to spend on reaching you as a voter is going to actually be pretty low.” Be sure to listen to this episode so our podcast hosts can get more into the weeds about how those voter scores are being used behind the scenes in future episodes.

The country is still mourning the death of Breonna Taylor, an African American woman who was shot and killed by police officers in her Kentucky home during a no-knock raid in March. For years, no-knock warrants have withstood the test of time, given their alleged capacity to protect police and preserve evidence. But as David says, “there’s evidence that no-knock warrants are constitutionally deficient,” and “as a practical matter, castle doctrine and no-knock warrants are incompatible.” Sarah, on the other hand, doesn’t believe the castle doctrine should apply to police. Are no knock raids worth preserving? Why are they so broadly granted to police officers? Sarah and David have answers. Catch up on the latest episode for an update on the Michael Flynn case, subpoenas for Trump’s financial records, and the Hatch Act.

Show Notes:

-Sarah’s newsletter, The Sweep, Jonah’s column on silent MAGA voters.

-SCOTUS opinion authored by Justice Alito on no-knock raids, D.C. v. Heller.

-“Flip It and Reverse It: Squirrel Edition” episode of Advisory Opinions.

-“Trump’s Bank Was Subpoenaed by N.Y. Prosecutors in Criminal Inquiry” in the New York Times.

Aug 06, 2020
12 Angry Dinosaurs

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 than a speeding bullet.”

Fast forward to 2020, and paleontology is in high demand. “We’re in this golden age right now,” Brusatte tells David and Sarah. “There’s fifty-something new species of dinosaurs being found every single year.” But realistically speaking, most people have a limited knowledge base about dinosaurs. Was the Tyrannosaurus rex an intelligent dinosaur? Are pterodactyls birds? What are the personality traits that make a good paleontologist? Steve Brusatte has answers. Tune in for some fun facts about pinocchio dinosaurs, banana-sized T-rex teeth, and birds (which are dinosaurs, by the way). For all you Jurassic Park fans out there, you won’t want to miss this one (especially since Brusatte is now a science consultant for the series.)

Show Notes:

-Steve Brusatte’s book, The Rise and Fall of the Dinosaurs: A New History of a Lost World, The Genius of Birds by Jennifer Ackerman, and She Has Her Mother's Laugh: The Powers, Perversions, and Potential of Heredity by Carl Zimmer.

Aug 04, 2020
Flip It and Reverse It: Squirrel Edition

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 regularly use mail-in voting in elections, election fraud isn’t a real concern. But it’s also worth noting that these states were able to plan for their elections years in advance, whereas the pandemic is forcing states into preparing for mail-in voting on a mass scale on very short notice. Are states ready for the legal discrepancies and inevitable ballot invalidations that will ensue? Beyond some election punditry, our podcast hosts also touch on the Supreme Court conference leaks to CNN legal analyst Joan Biskupic, the latest updates with DACA, and some hot takes on the importance of the bar exam.

Show Notes:

-Trump tweet about delaying the election.

-Inside scoop on conservative justices from CNN’s Joan Biskupic.

Jul 30, 2020
99 Problems and an Election is One

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 justices in denying a Nevada church’s application for injunctive relief over coronavirus restrictions. Religious liberty lovers sounded the alarm for First Amendment violations. But our podcast hosts are less concerned about this case’s long-term effect on religious liberty case law, given the state’s interest in restricting mass gatherings will soon be subverted to transcendent religious liberty concerns once the pandemic subsides. As David says, “The real enemy is not Justice Roberts, the real enemy is the coronavirus.”

Speaking of Supreme Court drama, Josh Hawley told the Washington Post on Sunday that he won’t support any SCOTUS nominee who does not explicitly acknowledge that Roe v. Wade was wrongly decided: on the record, and before they are nominated. Was this ridiculous fanfare to fuel his base? Our hosts have some thoughts. Sarah and David wrap up the podcast with some revisionist history on a Merrick Garland Supreme Court tenure and some parental advice on how to teach your kids risk tolerance and moral courage.

Show Notes:

-Sarah’s pilot newsletter, The Sweep: “T-Minus 99 Days and Counting …” and Thursday’s French Press, “Dump Trump, but Don’t Burn Down the GOP.”

-Friday’s Supreme Court dissents on Nevada church case.

-“Sen. Hawley lays down new antiabortion marker for Supreme Court nominees,” Josh Hawley’s recent speech on the failures of the conservative legal movement, and Adrian Vermeule’s case for common-good constitutionalism in the Atlantic.

-Supreme Court opinions: NIFLA v. Becerra, Bostock v. Clayton County, Masterpiece Cakeshop v. Colorado Civil Rights Commission , Our Lady of Guadalupe School v. Morrissey Berru, June Medical Services, United States v. Davis.

-The Coddling of the American Mind: How Good Intentions and Bad Ideas Are Setting Up a Generation for Failure by Jonathan Haidt and Greg Lukianoff.

Jul 27, 2020
That Escalated Quickly

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 2020 census for apportionment purposes. David and Sarah wrap up the episode with a fiery debate over their favorite legal tv shows.

Show Notes:

-Check out Michael Cohen’s brief to the court and David’s latest French Press on the Crisis in Portland.

-Here’s Roslyn la Liberte’s defamation lawsuit against Joy Reid, a photo of the incident, and the Fox News article David mentioned: “MSNBC's Joy Reid walks back comments on conservative David French after bipartisan Twitter beatdown.”

-Trump’s executive order excluding undocumented immigrants from the 2020 census, Clarence Thomas dissent from denial in Cohen v City of Houston, Cohen v City of Houston, see footnote 19 and 20.

Jul 23, 2020
A Supreme Court Odyssey

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 mail-in ballot counting turn November into a Bush vs. Gore 2.0? And the million-dollar question: What’s up with Chief Justice John Roberts? On today’s episode, David and Sarah are joined by SCOTUSblog’s Amy Howe to field some questions about recent cases and tie a bow on what became a rather unprecedented year for the justices. Tune in for an exclusive look into the origins of SCOTUS Blog and some punditry on the cases that are on the docket for next term.

Before founding SCOTUSblog, Amy Howe argued two cases before the Supreme Court and served as counsel for two dozen merit cases there. She has taught Supreme Court litigation at both Stanford Law and Harvard Law and served as an adjunct professor at Vanderbilt Law School and American University’s Washington College of Law.

Show Notes:

-Amy Howe and Lyell Denniston’s review of the term on the SCOTUStalk podcast.

-Travel ban case, census case, DACA case, Trump v. Mazars and Trump v. Vance. Little Sisters of the Poor, Montana school case, CFPB case, robocall case, June Medical Services, Whole Woman's Health, Masterpiece Cakeshop, Guadalupe, McGirt v. Oklahoma, and Josh Hawley’s speech on the Bostock decision.

Jul 20, 2020
Journey to the Center of the Supreme Court

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.

Jul 16, 2020
Crimes, Plural

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 related to the death penalty, and Trump’s tweet about re-examining the tax-exempt status of academic institutions that “are about Radical Left Indoctrination, not Education.” They wrap the podcast by responding to a listener’s question about what to include in an intro philosophy course.

Show Notes:

-New York Times piece on warring factions within Biden’s campaign, Fox News poll, University of Texas poll, Dallas Morning News poll, CBS/YouGov poll.

-Death penalty opinion.

-Andrew Kent’s congressional testimony.

-Ex Parte Garland case from 1866.

-Notes on Virginia ratifying convention from Brookings Institution.

-“The Traditional Interpretation of the Pardon Power Is Wrong” Atlantic article by Corey Brettschneider and Jeffrey K. Tulis.

-John Rawls’ A Theory of Justice.

Jul 13, 2020
Not in Oklahoma Anymore

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 blockbuster opinions about whether the president was required to turn over his financial records to Congress and the New York County district attorney’s grand jury. But as Sarah and David point out, most of the news headlines are misinterpreting the court’s decision. The Court sent both cases back to the district court for further arguments, which means Trump won’t be turning over his financial records anytime soon—if he ever does.

Show Notes:

-The Supreme Court's Oklahoma ruling, McGirt v. Oklahoma, and its two rulings on the president's financial records, Trump v. Mazars and Trump v. Vance.

Jul 09, 2020
Little Sisters 2: Vacated and Remanded

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.

Show Notes:

-Monmouth poll on Trump’s slim reelection chances.

-Our Lady of Guadalupe School v. Morrissey Berru SCOTUS opinion, Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission case from 2012, Utah compromise, Obergefell v. Hodges, fairness for all law, Masterpiece Cakeshop v. Colorado Civil Rights Commission, Bostock v. Clayton County.

-Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania ruling.

Jul 09, 2020
Dial S for Severability

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 podcast by interviewing Sarah on her career path and what landed her at The Dispatch.

Show Notes:

-Check out the Supreme Court’s rulings in the robocall case (Barr v. American Association of Political Consultants, Inc.) and the faithless electors case (Chiafalo v. Washington).

-Click here for a video of the Brooks Brothers militia v. BLM protesters standoff and be sure to read Andrew Egger’s interview with Stephen Mutowski in The Dispatch for an in-depth legal analysis of the incident. Be sure to check out David’sWashington Post 2018 piece on stand your ground laws.

Jul 07, 2020
Supreme Court Did What?
Jul 03, 2020
Whatever Happened to Baby Blaine?

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

Jul 01, 2020
The Cheese Stands Alone

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

Jun 29, 2020
The Bridge on the River Mandamus

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.

Jun 25, 2020
What Would James Madison Do?
Jun 22, 2020
Arbitrary and Capricious

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?

Jun 18, 2020
Title VII: Originalism vs. Textualism

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

Jun 15, 2020
'Twas the Night Before Brisket

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

Jun 11, 2020
The Sound of Reform

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

Jun 08, 2020
Because They Stand on a Wall

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 Chauvin

Jun 04, 2020
From 1918 to 1968

David and Sarah discuss the latest news out of the Supreme Court including the court denying a California church's lockdown challenge, Rep. Justin Amash's plan to introduce legislation to end qualified immunity for police officers, Sen. Tom Cotton's call to invoke the Insurrection Act, the president's call to label ANTIFA a terrorist organization, and a return to their debate over law school.

Show Notes:

-Supreme Court California church ruling

-Judge Willett opinion

-David's Sunday newsletter

-Nancy's video from the Nashville protest

Jun 01, 2020
How Do You Square a Circle?

The president has a new social media executive order. What happens if Trump loses in November, but doesn't want to leave? Qualified immunity and the Fourth Amendment in the context of the death of George Floyd in Minneapolis. House of Representatives allows proxy voting for the first time this week. And a Central Park video sparks a national conversation. David and Sarah have thoughts.

Show Notes:

-David's piece The Growing Threat to Free Speech Online

-Republican lawsuit to block proxy voting

May 28, 2020
Golden Handcuffs
May 26, 2020
Ultimate Supreme Court Nerdery Part II

David and Sarah finish their preview of a number of upcoming Supreme Court decisions from the Consumer Financial Protection Bureau to DACA and the Title VII cases. The two also discuss the debate over moves to expand vote by mail, and the new Hulu miniseries Mrs. America.

Show Notes:

-Texas vote by mail lawsuit

-A Guide To the 10 Biggest Supreme Court Cases of This Term

-A Glossary of Important SCOTUS Terminology

May 22, 2020
Ultimate Supreme Court Nerdery Part I

David and Sarah discuss the end of Rep. Justin Amash's short-lived presidential bid, preview a number of upcoming Supreme Court decisions from Little Sisters of the Poor to the Blaine Amendment case, and the New York Times column taking a closer look at Ronan Farrow.

Show Notes:

-The agonizing story of Tara Reade

-A Guide To the 10 Biggest Supreme Court Cases of This Term

-A Glossary of Important SCOTUS Terminology

-Not Everyone Is Happy With the Supreme Court’s Live Broadcasts

-Is Ronan Farrow Too Good to Be True?

-ProPublica: Disaster in the Pacific

May 18, 2020
Meet the Faithless Electors
May 14, 2020
Time's Up. Let's Do This...

The Supreme Court hears oral arguments in Our Lady of Guadalupe School v. Morrissey-Berru. Secretary Betsy DeVos releases new regulations to overhaul Title IX. New details in the shooting death of Ahmaud Arbery. The Justice Department drops its criminal case against Michael Flynn. David and Sarah have thoughts.

Show Notes:

-Our Lady of Guadalupe School v. Morrissey-Berru oral argument

-Betsy DeVos Strikes a Blow for Due Process

May 11, 2020
Justin Amash vs. Death Star

Rep. Justin Amash of Michigan joins David and Sarah to discuss his announcement that he is exploring a presidential run as a candidate of the Libertarian Party. David and Sarah then turn to the shooting death of Ahmaud Arbery, a 25-year-old black man, in a South Georgia neighborhood.

Show Notes:

-A Vigilante Killing in Georgia

May 08, 2020
Our Lady of Guadalupe Goes Supreme

David and Sarah discuss the Supreme Court's first day of oral arguments via teleconference, preview the court's May calendar, get the latest in the U.S. women's soccer team's equal pay lawsuit, and preview Our Lady of Guadalupe School v. Morrissey-Berru.

Show Notes:

-Supreme Court's May argument calendar

-Feds, Northam spar over Virginia stay-at-home order’s impact on churches

-District Court opinion dismissing U.S. women's soccer equal pay claim

-All the briefs to the Supreme Court in Our Lady of Guadalupe School v. Morrissey-Berru

-2012 Hosanna-Tabor Supreme Court opinion

-“It’s after 6. What am I, a farmer?”

May 04, 2020
The Flynn Saga

David and Sarah discuss the latest after Michael Flynn’s defense claims FBI notes show agents tried to entrap him, the viability of third-parties as Justin Amash flirts with running for president, and some legal news updates.

May 01, 2020
Smothered and Covered

David and Sarah discuss the latest polls looking at the 2020 election, the Supreme Court's decision to dismiss a New York gun rights case, and talk with Steven Lehotsky, of the U.S. Chamber of Commerce, about how businesses are dealing with liability as they make plans to reopen.

Apr 27, 2020
Queso Burro

Supreme Court opinions, the president's immigration executive order, homeschooling controversies, and the longterm cultural effects of coronavirus. David and Sarah have thoughts.

Apr 24, 2020
Showing a Little Ankle

David and Sarah discuss the Supreme Court's decision in Ramos v. Louisiana that held that the Constitution requires unanimous jury verdicts for convictions in criminal cases, a federal court's decision that upheld Michigan's independent redistricting commissions, and David responds to comments on his Sunday newsletter.

Apr 20, 2020
The Mostly Meaningless Podcast

Wisconsin primary results, regulatory taking in Pennsylvania, adjournment clause, 2020 veepstakes, and much more. David and Sarah have thoughts.

Apr 17, 2020
Cut to Black

David and Sarah discuss the sexual assault allegation against Joe Biden, the president's tweet about who has the power to "open up" the economy, a federal judge's ruling that a Kentucky church can conduct Easter drive-in service, and The Sopranos.

Apr 14, 2020
Voting in a Pandemic

Rachel Kleinfeld, a senior fellow at the Carnegie Endowment, joins David and Sarah to discuss how you pull off an election during a pandemic. Rachel makes the case for why states need to start thinking about how coronavirus may impact November now, and expand absentee voting and drive-thru voting.

Apr 09, 2020
You Magnificent Bastard

A captain is fired after a letter detailing the Navy's failures in dealing with the coronavirus outbreak is leaked. The intelligence community inspector general is fired for his role in the Ukraine matter. Queen Elizabeth II gives a rare address to the United Kingdom. David and Sarah have thoughts.

Apr 06, 2020
Beyond Originalism?

David and Sarah discuss the political ramifications of the coronavirus outbreak, Adrian Vermeule's essay on originalism, and what conservatives get wrong about masculinity.

Apr 02, 2020
Coronavirus Response

David and Sarah discuss the government's coronavirus response with Representative Chip Roy of Texas, and the Netflix documentary, "Tiger King," lighting the internet on fire.

Mar 30, 2020
Confirmation Battles

David and Sarah talk coronavirus confusion, and Justice Clarence Thomas and confirmation battles with Carrie Severino of the Judicial Crisis Network.

Mar 27, 2020
Curb Your Parasites

David and Sarah touch on the latest from Capitol Hill, Biden's campaign, and Bloomberg lawsuit. The two then dive into the coming clashes between the state and federal governments over coronavirus, the U.S. women’s soccer team's equal pay lawsuit, and how they're spending their quarantine time.

Mar 23, 2020
In Chambers

David and Sarah talk with Chief Judge David Jones, of the U.S. Bankruptcy Court for the Southern District of Texas in Houston, about how the court system is handling coronavirus. Is the judge seeing an uptick in bankruptcies? David and Sarah also discuss the future of Bernie Sanders' movement and share an exciting announcement.

Mar 19, 2020
Quarantine Law

David and Sarah answer all your questions about the legal issues raised by the coronavirus outbreak: enumerated powers, police powers, regulatory takings, quarantines, and martial law.

Mar 16, 2020
The Hillary Story

The president addressed the nation on the coronavirus outbreak, Harvey Weinstein gets 23 years in prison, and Hulu's new docuseries 'Hillary' is now streaming. David and Sarah have thoughts.

Mar 12, 2020

David and Sarah preview tomorrow's primaries with a special focus on Michigan, thoughts on coronavirus, the Trump campaign's lawsuits against the Times, the Post, and CNN, the execution of Nathaniel Woods, and an "in-depth" discussion on the XFL.

Mar 09, 2020
Qualified Immunity Rap Battles

David and Sarah have Super Tuesday numbers to dive into, oral arguments in Louisiana's Supreme Court abortion case, FISA reform, qualified immunity, and is it okay to arrest six-year-olds?

Mar 06, 2020
Delegate Fun Time

David and Sarah discuss the likelihood of a brokered convention after Joe Biden's big win in South Carolina, the appeal court's Don McGahn decision, the CFPB fight at the Supreme Court this week, and the intersection of #MeToo and revenge porn in the Katie Hill story.

Mar 02, 2020
Alligator Boots

David and Sarah speak with Liz Murrill, Louisiana's solicitor general, about her case before the Supreme Court June Medical Services v. Russo. The three discuss the facts of the high-profile abortion case, legal strategy, and how Liz preps to face the nation's highest court.

Feb 28, 2020
Jurisprudence of Doubt

David and Sarah have a lot on their plate. Can Bernie Sanders assemble a coalition similar to Obama's 2008 campaign? Will the Supreme Court draw a line between religious freedom and nondiscrimination statutes? And who is David Ayres?

Feb 26, 2020
Tilting at Windmills

David and Sarah examine the decision to not prosecute Andrew McCabe, the eye-opening interview Harvey Weinstein's attorney gave, and answer which novels have most impacted them.

Feb 18, 2020
Voir Dire

David and Sarah take on the whirlwind of news surrounding the Roger Stone case, go behind the scenes of opposition research, and share their thoughts on the Netflix docuseries "Cheer."

Feb 14, 2020
Potpourri of Awfulness

David and Sarah speak with Nikki Neily, president of Speech First, about bias response teams on college campuses, the history of speech codes, and pick their own Oscar winners.

Feb 10, 2020
Unintended Consequences

David and Sarah look at polling shenanigans ahead of the Iowa caucuses, take a closer look at the history of the 17th Amendment, and discuss the impact of Apple's "The Morning Show."

Feb 03, 2020
All But Assured

David and Sarah discuss the news from John Bolton's book, what's wrong with Congress, and the death of Kobe Bryant.

Jan 27, 2020
Play in the Joints

David and Sarah discuss the administration's moves to protect prayer in public schools with Jennie Bradley Lichter, the deputy director of the White House Domestic Policy Council, Little Sisters return to the Supreme Court, and justices will hear the faithless electors case.

Jan 22, 2020
Do Crimes

David and Sarah take a closer look at the new impeachment evidence, the continuing legal objections to the strike that killed Qassim Suleimani, and what exactly is Mike Bloomberg doing?

Jan 16, 2020
Tom Hanks' Face

David and Sarah engage in a wide-ranging analysis of John Bolton's potential testimony before the Senate, whether Trump can tweet his way through the War Powers Act (or legally bomb cultural sites), and we discuss whether Chief Justice Roberts will touch Roe v. Wade. And then they talk about Tom Hanks at the Golden Globes.

Jan 06, 2020
Laws of War

Sarah and David discuss the killing of Iranian general Qassim Suleimani, ask WWJBD? (What would Jed Bartlett do?), and handicap the Democratic primary campaign. Sarah answers the burning question of the age -- is it better or worse to raise money in a wine cave?

Jan 03, 2020
Zombie Obamacare

Former Texas Solicitor General Scott Keller joins to discuss the latest 5th Circuit opinion on Obamacare and David and Sarah discuss JK Rowling’s latest TERF tweet.

Dec 24, 2019
Horseshoe Theory

David and Sarah offer a quick take on the British electoral landslide, revisit the IG report, give two cheers to Trump's anti-Semitism executive order, and then discuss the virtue-signaling side of the conservative porn wars.

Dec 13, 2019
All About The IG

David French and Sarah Isgur launch their new podcast from The Dispatch with a detailed discussion of the Inspector General's report of FISA abuse in the 2016 election -- the good, the bad, and the ugly.

Dec 10, 2019