Advisory Opinions

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 Learn more about your ad choices. Visit megaphone.fm/adchoices

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 Learn more about your ad choices. Visit megaphone.fm/adchoices

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 Learn more about your ad choices. Visit megaphone.fm/adchoices

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 Learn more about your ad choices. Visit megaphone.fm/adchoices

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 Learn more about your ad choices. Visit megaphone.fm/adchoices

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 Learn more about your ad choices. Visit megaphone.fm/adchoices

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 Learn more about your ad choices. Visit megaphone.fm/adchoices

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 Learn more about your ad choices. Visit megaphone.fm/adchoices

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 Learn more about your ad choices. Visit megaphone.fm/adchoices

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 Learn more about your ad choices. Visit megaphone.fm/adchoices

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 Learn more about your ad choices. Visit megaphone.fm/adchoices

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) Learn more about your ad choices. Visit megaphone.fm/adchoices

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 Learn more about your ad choices. Visit megaphone.fm/adchoices

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 Learn more about your ad choices. Visit megaphone.fm/adchoices

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 Learn more about your ad choices. Visit megaphone.fm/adchoices

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 Learn more about your ad choices. Visit megaphone.fm/adchoices

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 Learn more about your ad choices. Visit megaphone.fm/adchoices

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. Learn more about your ad choices. Visit megaphone.fm/adchoices

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. Learn more about your ad choices. Visit megaphone.fm/adchoices

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. Learn more about your ad choices. Visit megaphone.fm/adchoices

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. Learn more about your ad choices. Visit megaphone.fm/adchoices

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. Learn more about your ad choices. Visit megaphone.fm/adchoices

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. Learn more about your ad choices. Visit megaphone.fm/adchoices

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. Learn more about your ad choices. Visit megaphone.fm/adchoices

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 Learn more about your ad choices. Visit megaphone.fm/adchoices

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. Learn more about your ad choices. Visit megaphone.fm/adchoices

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. Learn more about your ad choices. Visit megaphone.fm/adchoices

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. Learn more about your ad choices. Visit megaphone.fm/adchoices

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. Learn more about your ad choices. Visit megaphone.fm/adchoices

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. Learn more about your ad choices. Visit megaphone.fm/adchoices

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. Learn more about your ad choices. Visit megaphone.fm/adchoices

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. Learn more about your ad choices. Visit megaphone.fm/adchoices

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. Learn more about your ad choices. Visit megaphone.fm/adchoices

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. Learn more about your ad choices. Visit megaphone.fm/adchoices

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. Learn more about your ad choices. Visit megaphone.fm/adchoices

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 Learn more about your ad choices. Visit megaphone.fm/adchoices

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 Learn more about your ad choices. Visit megaphone.fm/adchoices

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 Learn more about your ad choices. Visit megaphone.fm/adchoices

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. Learn more about your ad choices. Visit megaphone.fm/adchoices

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. Learn more about your ad choices. Visit megaphone.fm/adchoices

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 Learn more about your ad choices. Visit megaphone.fm/adchoices

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. Learn more about your ad choices. Visit megaphone.fm/adchoices

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. Learn more about your ad choices. Visit megaphone.fm/adchoices

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. Learn more about your ad choices. Visit megaphone.fm/adchoices

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. Learn more about your ad choices. Visit megaphone.fm/adchoices

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. Learn more about your ad choices. Visit megaphone.fm/adchoices

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. Learn more about your ad choices. Visit megaphone.fm/adchoices

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. Learn more about your ad choices. Visit megaphone.fm/adchoices

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 Learn more about your ad choices. Visit megaphone.fm/adchoices

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. Learn more about your ad choices. Visit megaphone.fm/adchoices