Back in the studio after a couple of fun live shows, we discover that the Court has finally given us too much to talk about. We discuss the new Trump Administration's first shadow docket adventure, a number of interesting solo opinions from the orders list, the decline in summary reversals, and the overall quality of oral advocacy before the Court. We then take a deep dive into the Court's opinion in Glossip v. Oklahoma , a capital case with many factual, jurisdictional, and remedial complexitie...
Feb 27, 2025•1 hr 20 min•Season 5Ep. 5
Divided Argument is live from the Northwestern Pritzker School of Law, hosted by the Northwestern Federalist Society! We discuss whether we are in the middle of a constitutional crisis, the coming demise of Humphrey's Executor , and various shadow docket developments. Then we preview the issues at stake in next month's oral argument about firearms liability, Smith & Wesson v. Estados Unidos Mexicanos ....
Feb 14, 2025•1 hr 4 min•Season 5Ep. 4
Divided Argument is live from Stanford Law School, hosted by the Stanford Constitutional Law Center! We review an unusual summary reversal in a capital habeas case and the latest universal injunction developments, and discuss some of the implications of the change in administration. After that, we are joined by a very special guest to discuss the recent arguments in the excessive force case of Barnes v. Felix ....
Jan 30, 2025•1 hr 7 min•Season 5Ep. 3
In unpredictable fashion, we record a shockingly timely episode to reflect on the Court's hasty per curiam in the TikTok case . Along the way, we catch up on the shadow docket happenings, manage not to get derailed by an ethics discussion, discover a surprising opinion revision in real time, and break down the Court's opinion in Royal Canin U. S. A. v. Wullschleger . Most importantly, Dan—with help from loyal listeners—collects on a bet Will unwisely made years ago....
Jan 19, 2025•1 hr 6 min•Season 5Ep. 2
After an unpredictably long hiatus, we're back to break down what we missed. We debate the off-the-rails FedSoc panel Dan was on, work through some shadow docket happenings and the Court's two recent DIGs, ponder the implications of the election on the Court, and briefly discuss the first merits opinion of the Term, Bouarfa v. Mayorkas .
Dec 17, 2024•1 hr 11 min•Season 5Ep. 1
After a long hiatus, we're particularly unpredictable with an episode that isn't about the Supreme Court. We're joined by NYU law professor Daryl Levinson to talk about his exciting and important new book on constitutional theory, Law For Leviathan: Constitutional Law, International Law, and the State. Listen to learn why the Supreme Court's constitutional pronouncements on separation of powers might not matter as much as you thought—and along the way you'll find out what might happen to Will if...
Sep 26, 2024•1 hr 13 min•Season 4Ep. 23
We take a long last look at two more end-of-term cases, where the Court made news with what it did NOT decide: Moyle v. United States (the abortion/EMTALA case), and Moody v. Net Choice (state regulation of social media). But first, a bit of debate about some prominent figures in constitutional history.
Aug 09, 2024•1 hr 17 min•Season 4Ep. 22
Unpredictably, our recent torrent of episodes continues. We take a deep dive into Moore v. United States , which addressed the scope of Congress's constitutional power to tax.
Aug 05, 2024•1 hr 3 min•Season 4Ep. 21
We continue our breakneck pace and dig into two substantive criminal law opinions: Fischer v. United States and Snyder v. United States .
Aug 01, 2024•1 hr 12 min•Season 4Ep. 20
We're back just a few days after our last episode to dive in to Harrington v. Purdue Pharma , a 5-4 decision about the power of the bankruptcy system to release claims against third parties.
Jul 29, 2024•59 min•Season 4Ep. 19
As the dust settles on the end of the term, we look back to examine two of the Court's criminal procedure cases: Smith v. Arizona (applying the Confrontation Clause to expert testimony) and Diaz v. United States (interpreting Federal Rule of Evidence 704(b)) after a brief discussion of AI, political developments, and judicial robes....
Jul 26, 2024•1 hr 12 min•Season 4Ep. 18
After a vacation-related hiatus, we're back to discuss Loper Bright Enterprises v. Raimondo (overruling Chevron) and Corner Post v. Board of Governors (time limits for challenges to regulations). We try to figure out just how disruptive these decisions will be for the administrative state and somehow manage not to waste half the episode debating Supreme Court ethics....
Jul 19, 2024•1 hr 25 min•Season 4Ep. 17
Will makes Dan interrupt his vacation to talk about the case you've all been clamoring for: Trump v. United States .
Jul 04, 2024•1 hr 15 min•Season 4Ep. 16
We break down SEC v. Jarkesy and City of Grants Pass v. Johnson .
Jun 30, 2024•2 hr 34 min•Season 4Ep. 15
We cut to the chase with extended discussions of two of last week's cases: United States v. Rahimi , which upheld a federal gun law against Second Amendment challenge and produced six concurring and dissenting opinions; and Erlinger v. United States , a case about the jury's role in sentencing that continues a line of cases starting 25 years ago in Apprendi v. New Jersey....
Jun 26, 2024•1 hr 8 min•Season 4Ep. 14
After another discussion of Supreme Court ethics and legitimacy (hopefully our last for a long time), we discuss three of last week's decisions. We cover issues of statutory interpretation in Garland v. Cargill (the bump stock case), of standing in FDA v. Alliance for Hippocratic Medicine (the mifepristone case), and of constitutional remedies in US Trustee v. John Q Hammons (a bankruptcy case)....
Jun 20, 2024•1 hr 28 min•Season 4Ep. 13
Unpredictably, we take a new approach and record immediately after the Court drops new opinions. We dig into Alexander v. South Carolina State Conference of the NAACP (voting rights) and NRA v. Vullo (free speech). Before that, we engage with listener feedback and talk about the latest developments in the endless Alito flag saga....
Jun 02, 2024•2 hr 38 min•Season 4Ep. 12
Continuing our pattern of staying a week behind the Court's latest output, we discuss last week's opinions: CFPB v. Community Financial Services Association (the Appropriations Clause), Harrow v. Department of Defense (jurisdiction and equitable tolling); and Smith v. Spizzirri (arbitration), while also covering the shadow docket order in a Louisiana redistricting case . Before those, we touch on a bunch of topics including Justice Alito's flag display and the degree of existential risk posed by...
May 24, 2024•1 hr 29 min•Season 4Ep. 11
We follow up on feedback, puzzle over the Court's apparent continued lack of interest in Fourth Amendment cases, and then discuss two of the latest opinions— Culley v. Marshall (civil forfeiture) and Warner Chappell Music, Inc. v. Nealy (copyright). And yes, we know Dan's audio sounds terrible due to a technical snafu, sorry!...
May 16, 2024•1 hr 17 min•Season 4Ep. 10
After taking some listener questions, we analyze the lengthy shadow docket opinions in Labrador v. Poe , dealing with universal relief, emergency applications, and more. We then tackle two recent merits opinions: Devillier v. Texas (takings) and Muldrow v. St. Louis (Title VII)....
Apr 26, 2024•1 hr 10 min•Season 4Ep. 9
After discussing a few pending issues at the Court, we look back to analyze several decisions from last month-- FBI v. Fikre , a mootness case with national security implications, and the shadow docket dispute in one of many cases named United States v. Texas (the SB4 case)-- and then turn to last Friday's more recent decision in Sheetz v. County of El Dorado about the Takings Clause and local land use policies....
Apr 16, 2024•1 hr 5 min•Season 4Ep. 8
After grappling with listener feedback ranging from the acoustic to the typographical, we catch up on last month's decisions in Great Lakes v. Raiders Retreat Realty (admiralty) and McElrath v. Georgia (double jeopardy). We then turn to last week's decisions about public officials on social media, Lindke v. Freed and O'Connor-Ratliff v. Garnier , and then finally to the statutory interpretation decision in Pulsifer v. United States . It's a lot of cases in just over an hour!...
Mar 20, 2024•1 hr 4 min•Season 4Ep. 7
We (of course) break down the Court's opinions in Trump v. Anderson, the Section Three case from Colorado. We also discuss the Court's cert. grant on Trump's immunity from criminal prosecution, and several other opinions on the orders list, dealing with rent control, magnet school admissions, and campus speech.
Mar 05, 2024•59 min•Season 4Ep. 6
After quick review of an order about admissions at West Point and two new unanimous opinions, we spend almost all of the episode breaking down last week's oral arguments in Trump v. Anderson. What excuse will the Supreme Court use to keep Colorado from disqualifying Trump from the ballot?
Feb 13, 2024•53 min•Season 4Ep. 5
After catching up on a few odds and ends, we decide to give the people what they want and discuss Section Three of the Fourteenth Amendment and whether the Supreme Court could possibly declare Donald Trump ineligible for the Presidency. You won't want to miss it.
Jan 11, 2024•1 hr 6 min•Season 4Ep. 4
We discuss the passing of Justice Sandra Day O'Connor, then turn to two interesting opinions on the shadow docket (in Griffin v. HM Florida and DuPont v. Abbott ), and finally break down the Court's first merits opinion of the term in Acheson Hotels v. Laufer , at the intersection of standing and mootness. Will also expresses skepticism about Dan's latest AI habit....
Dec 10, 2023•1 hr 9 min•Season 4Ep. 3
We discuss the Court's new Code of Conduct, catch up on shadow docket happenings, and debate what historians can teach originalists. We then recap the argument United States v. Rahimi , ( the Term's big Second Amendment case). Finally, we stay on brand by circling back to Pulsifer v. United States from the October sitting, where the Justices puzzled over deep questions about statutory interpretation....
Nov 16, 2023•1 hr 13 min•Season 4Ep. 2
The October Term is now underway, and that means it's time for Season 4 of the show. We catch up on the inevitable shadow docket happenings before diving into a discussion of two cases that were argued earlier in the month. First, we dig into Acheson Hotels, LLC v. Laufer , and debate which jurisdictional ground the Court will rely on to get rid of the case. Then, we give the people what they want and talk about admiralty law in Great Lakes Insurance SE v. Raiders Retreat Realty Co., LLC ....
Oct 27, 2023•1 hr 8 min•Season 4Ep. 1
The Court hasn't done too much while the summer recess drags on, but we're back for what might be our last episode of Season 3 before Season 4 kicks off with the new Term. We manage to piece together an episode with some items from the mailbag, some SG gossip, and a few shadow docket happenings.
Sep 18, 2023•1 hr 4 min•Season 3Ep. 25
The Justices have beenoff on their European vacations for a couple of months but we're still cranking out episodes breaking down last Term. We start off by discussion Will and Michael Stokes Paulsen's SSRN-breaking article arguing that Donald Trump is ineligible for the presidency under Section 3 of the Fourteenth Amendment. We then break down a couple of shadow-docket happenings involving "ghost guns" and the Purdue bankruptcy . We then finally clear our backlog of June cases by discussing two ...
Sep 01, 2023•1 hr 10 min•Season 3Ep. 24
