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 Learn more about your ad choices. Visit megaphone.fm/ad...
Jul 12, 2022•1 hr 11 min•Ep 248•Transcript available on Metacast 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 h...
Jul 07, 2022•1 hr 16 min•Ep 247•Transcript available on Metacast 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 ...
Jul 05, 2022•1 hr 5 min•Ep 246•Transcript available on Metacast 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 ...
Jun 30, 2022•1 hr•Ep 245•Transcript available on Metacast 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: -Kenned...
Jun 28, 2022•1 hr 13 min•Ep 244•Transcript available on Metacast 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 ...
Jun 25, 2022•1 hr 24 min•Ep 243•Transcript available on Metacast 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 Learn...
Jun 24, 2022•2 hr 33 min•Ep 242•Transcript available on Metacast 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 -C...
Jun 22, 2022•1 hr 1 min•Ep 241•Transcript available on Metacast 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 Not...
Jun 16, 2022•1 hr 4 min•Ep 240•Transcript available on Metacast 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 1...
Jun 14, 2022•1 hr 8 min•Ep 239•Transcript available on Metacast 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 Claren...
Jun 09, 2022•1 hr 7 min•Ep 238•Transcript available on Metacast 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” Learn more about your ad cho...
Jun 07, 2022•1 hr 9 min•Ep 237•Transcript available on Metacast 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 Poli...
Jun 02, 2022•1 hr 11 min•Ep 236•Transcript available on Metacast 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” -Ca...
May 27, 2022•1 hr 19 min•Ep 235•Transcript available on Metacast 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 diff...
May 26, 2022•1 hr 1 min•Ep 234•Transcript available on Metacast 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...
May 20, 2022•1 hr 8 min•Ep 233•Transcript available on Metacast 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 T...
May 16, 2022•1 hr•Ep 232•Transcript available on Metacast 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...
May 14, 2022•1 hr 8 min•Ep 231•Transcript available on Metacast 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: -...
May 09, 2022•1 hr 13 min•Ep 230•Transcript available on Metacast 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-Fil...
May 05, 2022•1 hr 9 min•Ep 229•Transcript available on Metacast 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 ...
May 03, 2022•1 hr 9 min•Ep 228•Transcript available on Metacast 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 -Bid...
May 03, 2022•1 hr 18 min•Ep 227•Transcript available on Metacast 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? Learn more about your ad choices. Visit megaphone.fm/adchoices...
Apr 29, 2022•1 hr 19 min•Ep 226•Transcript available on Metacast 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 ar...
Apr 26, 2022•1 hr 18 min•Ep 225•Transcript available on Metacast 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-Mandat...
Apr 22, 2022•1 hr 7 min•Ep 224•Transcript available on Metacast 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 ...
Apr 18, 2022•55 min•Ep 223•Transcript available on Metacast 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 ...
Apr 15, 2022•1 hr 11 min•Ep 222•Transcript available on Metacast 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: -J...
Apr 12, 2022•1 hr 6 min•Ep 221•Transcript available on Metacast 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...
Apr 08, 2022•1 hr 11 min•Ep 220•Transcript available on Metacast 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 Learn...
Apr 05, 2022•1 hr 15 min•Ep 219•Transcript available on Metacast 
