The legal world is abuzz with the impending oral arguments in Trump v. Anderson in a couple of weeks. In the forefront are the powerful arguments and compelling history that are introduced in the amicus brief from the Professors Amar. We continue to delve into the principal lines of reasoning in the brief, and how they take the starch out for some of the tropes that were found in the media. When you take the history one step at a time it is hard to escape the obvious parallels with the actions a...
Jan 24, 2024•1 hr 18 min•Season 4Ep. 161
The “brothers-in-law” Vik and Akhil Amar have filed an amicus brief in Trump v. Anderson et al . The brief contains a dramatic historic episode that you almost certainly knew nothing about, and which is highly relevant - perhaps decisive - to the case. Prepare to be amazed by this story of the “First Insurrection,” which preceded and was distinguishable from the Civil War itself, and which makes clear the certain intent of the framers and ratifiers of the Fourteenth Amendment - and the course th...
Jan 20, 2024•1 hr 25 min•Season 4Ep. 160
The months of discussion of Section Three on Amarica's Constitution now make their way to Washington, as cert has been granted in Trump v. Anderson. Amicus briefs will pour in - including the brothers Amar's brief. We present some of the approach the brief will take, and we look at the nine Justices, taking account of their jurisprudential history and styles, and discuss how an intellectually honest brief-writer can make their best arguments even better by considering how their readers will read...
Jan 10, 2024•1 hr 16 min•Season 4Ep. 159
The nation awaits the Supreme Court’s seemingly inevitable review of the Section Three case from Colorado, and perhaps Maine as well. Media around the world is weighing in with editorials and op-Ed’s; a smorgasbord of legal, political, and predictive arguments from professors, editors, elected officials, and others with their own range of expertise. We continue our attempt to help you make sense of these by choosing pieces that make the range of arguments out there. We do our best to present the...
Jan 03, 2024•1 hr 49 min•Season 4Ep. 158
The Colorado Supreme Court opinion on disqualifying Donald Trump, though long anticipated, landed like a tornado. Op-eds, pundits, academics, officials - all are weighing in. It’s a victory for democracy - no, it’s antidemocratic. Section Three is a dead letter - no, it’s self-executing. Trump is out - no, this helps him. America is reaffirmed - no, there will be violence in the streets. Liberals are split; conservatives are split. What will the Supreme Court do? Spend some time with Amarica’s C...
Dec 27, 2023•1 hr 56 min•Season 3Ep. 157
The administrative state is up for grabs, some say, in the case of SEC v. Jarkesy , which was argued before the Supreme Court recently. We have another “clip” episode, with Akhil weighing in on attorneys and justices alike. It’s particularly appropriate in this case, because so much of the case concerns juries and the 7th amendment - which, by the way, Akhil has written extensively on. That’s probably why he’s cited in so many of the briefs. We also heard some noise out of Colorado, by the way. ...
Dec 20, 2023•1 hr 51 min•Season 3Ep. 156
The question of Donald Trump's disqualification under Section 3 of the 14th Amendment is before the courts. Last week the Colorado Supreme Court heard appeals of the District Court rulings. As they consider their decision, we have the privilege of hearing from the nation's two leading experts on the subject, the author of The Sweep and Force of Section Three - the universally acknowledged definitive article. (Note: this episode is uploaded a day early because of the timing of the case.) They res...
Dec 12, 2023•1 hr 55 min•Season 3Ep. 155
There is no shortage of tributes to the just passed Justice Sandra Day O’Connor, and rightly so, and this first female Justice richly deserves praise and memory. We aim to offer a tribute by taking her seriously as a Justice of ideas as well as the frequently mentioned deeply human remarkable woman she was. Fortunately, Akhil’s career has been intertwined with Justice O’Connor’s in a remarkable back-and-forth of ideas, cases, refinement, and legal innovation, so our perspective is a deeply infor...
Dec 06, 2023•1 hr 36 min•Season 3Ep. 154
Donald Trump’s disqualification for the Presidency under Section 3 of the 14th Amendment is on the docket for the Colorado Supreme Court next week. We have brought the two leading experts on the history of this clause to our podcast. They have written extensively on the 38th-40th Congresses who passed and first acted under the amendment; on John Bingham, the “James Madison” of the Fourteenth; and they continue to provide pertinent historical details on almost a daily basis. Professor Magliocca t...
Nov 29, 2023•1 hr 32 min•Season 3Ep. 153
The Supreme Court heard oral arguments in US v. Rahimi , a significant gun case, and we get to work. We have pulled clips from the argument so you can hear the justices and advocates in their own words, and Akhil comments after each clip. The case is important in itself, with wide implications regarding permissible gun regulation, and it also touches on a number of key methodological points that teach about originalism - properly done, and perhaps at times, improperly done. CLE credit is availab...
Nov 22, 2023•1 hr 40 min•Season 3Ep. 152
The Amars’ amicus brief in Moore vs. United States is the talk of the legal ecosphere. Akhil’s co-author, Professor Vik Amar, joins us for analysis of the precedents that followed Hylton - faithful and otherwise. This tour de force of legal analysis is perfectly suited for your CLE credit. We also look at recent comments from the Supreme Court on Moore’s issues, and survey the reactions to the brief’s release. Various arguments that purport to address some of the brief’s claims have emerged: in ...
Nov 15, 2023•1 hr 44 min•Season 3Ep. 151
In our 150th episode, we present the amicus brief in Moore v. United States , authored by Professor Amar with his brother, Professor Vikram Amar. Reminder: CLE credit is available after listening by going to podcast.njsba.com . The brief begins with the provocative statement that most other briefs in the case have missed the point? What is the point that they missed? We explain how their focus on the 16th amendment misses the basic constitutional questions which the Court answered back in 1796 i...
Nov 08, 2023•1 hr 29 min•Season 3Ep. 150
The follies in the House have ended, for now. Many Americans looked upon the travesty with despair, wondering if our government might yet be up to the task of leading and reaching beyond party to find country and duty. We take a good look and search for places where reaching across the aisle might still take place - and we try to do our part and go beyond demonizing those not in our own party. Plus - the Amars’ amicus brief is up in Moore vs. US , and we open that door. This episode is eligible ...
Nov 01, 2023•1 hr 29 min•Season 3Ep. 149
Still no speaker. Is it really the case that the House can’t do anything? How might it work? What about Section 3 of the 14th Amendment - does it play any role in the Speaker selection process? Meanwhile, we turn towards the other Jordan and see the dangers of insecure borders that are inherently hard to defend. Professor Amar explains how this simple fact led him to insights that resulted in a constitutional narrative quite different from those you may have been taught, and which makes certain ...
Oct 25, 2023•1 hr 20 min•Season 3Ep. 148
The House is at it again, and there is no Speaker in the chair as of this recording. So many implications - for Presidential succession, for democratic governance, for legislative stalemate. Meanwhile violence escalates in the Middle East. How are these connected? We explore all these, and Akhil has some fascinating originalist analyses - of history you surely didn’t know; of structural reasons that the Speaker can’t be in the line of succession; and a new textual analysis. Meanwhile - why can’t...
Oct 18, 2023•1 hr 34 min•Season 3Ep. 147
After the Court decided important voting rights and affirmative action cases last term, these issues are back either before the Court or apparently headed for it. Why? We look at Allen v. Milligan , and affirmative action in the service academies, and find that the bounce-back of what seem to be entirely unrelated cases in fact demonstrates important constitutional and indeed originalist principles. And who is at the center of all this? Justice Kavanaugh, once again. (CLE CREDIT IS AVAILABLE for...
Oct 11, 2023•1 hr 24 min•Season 3Ep. 146
The career of America’s greatest investigative reporter has spanned more than 50 years, and Bob Woodward has told the stories of eleven presidents, the Supreme Court, the Intelligence Community, and indeed the American political system with a penetrating, persistent drive towards the truth. (LAWYERS AND JUDGES ARE ELIGIBLE FOR CONTINUING LEGAL EDUCATION CREDIT by visiting podcast.njsba.com after listening.) Today this titan spends 90 minutes with us, and the insights continue to pour out of him....
Oct 04, 2023•1 hr 31 min•Season 3Ep. 145
It’s almost October, and the Supreme Court readies to hear a new set of cases. The Roberts Court seems defined above all by the Dobbs decision at this point. The opinion, authored by Justice Alito, has been exhaustively dissected, but looking forward, we see various states taking further and more extreme actions. What role will the so-called swing justices, some of whom wrote concurrences in the case, play in the litigation that the new developments will likely spawn? What of the dire prediction...
Sep 27, 2023•1 hr 25 min•Season 3Ep. 144
It’s an assortment of topics as listeners response to some recent developments and nagging questions. We revisit the 303 case, specifically the dissent, as Justice Jackson lays out an interesting hypothetical that doesn’t produce, perhaps, the intended response - at least from Professor Amar. Meanwhile, Justice Alito is back in the news with his judicial Declaration of Independence - Akhil may not quite agree. We also have an exciting prelude to a big announcement about our podcast!
Sep 20, 2023•1 hr 48 min•Season 3Ep. 143
Two recent major podcast themes - section 3 of the fourteenth amendment, and judicial ethics - echoed through the news this past week. Wisconsin legislators seek to impeach a new state Supreme Court Justice before she even sits for a case; and in Washington, Justice Alito is asked to recuse himself because of an interview he gave. Meanwhile, Section 3 is addressed by a former US Attorney General, who says it is inapplicable to the President for reasons that may seem counterintuitive, even strang...
Sep 13, 2023•1 hr 28 min•Season 3Ep. 142
***CLE Available*** We continue our exclusive discussion with the Professors Baude and Paulsen, authors of the bombshell article declaring Trump ineligible for the Presidency. This time we explore some concerns that have been voiced in the media and elsewhere; we look at how this provision might make itself effective in practice. We trace the possible routes such an effort might take; where would it be initiated - and importantly, who would be the final authority? Along the way we enter the Fed ...
Sep 06, 2023•1 hr 38 min•Season 3Ep. 141
***CLE available*** In a special episode, the two distinguished authors of a recent major article, which dives deep into Section 3 of the Fourteenth Amendment and finds that Donald Trump is disqualified from the Presidency, join us for a thoughtful and rigorous examination of the tough questions about their conclusions. These are leading conservative scholars who have gone where their methodologies, and the law, has taken them. Reaction has been swift and impassioned around the country, and in t...
Aug 30, 2023•1 hr 34 min•Season 3Ep. 140
Everyone needs a translator, and for decades there have been few better than Washington Post columnist, reporter, and editor Ruth Marcus. She has made understandable the intricacies of many a Supreme Court matter, not to mention the vicissitudes of other Washington institutions. Now, with Federal and State cases against former president Trump pending, the complexities are impressive, but we take you through them with Ruth’s help. There are also stories galore, with angles political, constitution...
Aug 23, 2023•1 hr 15 min•Season 3Ep. 139
Ex-President Trump faces a number of trials, and he doesn’t like where some of them are. Too many Democrats, or he doesn’t like the judge. Does he have recourse? No surprise - Professor Amar has written on this subject. There is a fascinating history behind it, an originalism analysis, and, most importantly - an answer. Changes of venue, bench trials, peremptory challenges, unanimous verdicts - they all find their way into this episode.
Aug 16, 2023•1 hr 28 min•Season 3Ep. 138
He's baaack. Former President Trump has been arraigned once again, this time on serious federal charges related to the very heart of democracy - the election itself. Special Counsel Jack Smith continues to discharge his appointed function by bringing charges he deems warranted. Beyond Smith, however, do the American people have other means of redress? And if Trump is guilty, will these prosecutions prevent him from seeking and possibly gaining the White House? Akhil has some surprising ideas - a...
Aug 09, 2023•1 hr 45 min•Season 3Ep. 137
We return to the affirmative action case, and again former Yale Dean of Undergraduate Admissions, Jeffrey Brenzel, joins us with his peerless expertise. The fallout of the opinion is enormous ,and we address some of its ramifications, including legacy admissions, donor admissions, private vs. public institutional options, admissions departments’ responses, and much more. What about the new frontiers of litigation that seem to be emerging, from scholarships designed to address racial disparities ...
Aug 02, 2023•1 hr 44 min•Season 3Ep. 136
What’s in a name? This week, it’s “Amar was wrong - Amar was right.” Two weeks ago it was “bigots” and many made much of that. So we take the feedback seriously and revisit it - you can judge the result. Meanwhile, news from Long Island brings the 4th amendment to the fore again, and in a somewhat different way. Different - how? Listen and find out how to create a better jurisprudence without amending the Constitution, and the real differences in the lives of the people this would make. Finally,...
Jul 26, 2023•1 hr 22 min•Season 3Ep. 135
It’s time to discuss the Affirmative Action cases from Harvard and the University of North Carolina, and we have brought in an expert on college admissions - Jeff Brenzel, the former Dean of Undergraduate Admissions at Yale. Jeff is so much more than that - he has taught at Yale as a lecturer in philosophy and humanities; is the former head of the Alumni Association, and is a current trustee at Morehouse College, to name some of his many hats. He offers a perspective that is a perfect supplement...
Jul 20, 2023•1 hr 42 min•Season 3Ep. 134
A Colorado website designer refuses to create sites for gay couples’ weddings, going afoul of Colorado’s public accommodations law. Can she be compelled to author such a site? The Court has ruled, and we have the analysis. Along the way, we find ourselves discussing the intricacies of stipulations, and getting into the fine points of how one gets to federal court, even as we consider more mainstream questions as speech vs. conduct, the limits of rights, and some interesting hypotheticals. Profes...
Jul 12, 2023•1 hr 37 min•Season 3Ep. 133
The Supreme Court has ruled in the Independent State Legislature case, Moore v. Harper . As we have from the beginning, we look at the case from the point of view of the precedents, of the history, the constitutional issues and implications, and the inner dynamics of the Court and beyond. As an author in a key amicus brief, Professor Amar is on the inside, and now so are you, as we take the opinion apart and explain the sometimes confusing matter of why the case was not rendered moot by later de...
Jul 05, 2023•1 hr 48 min•Season 3Ep. 132
