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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.See omnystudio.com/listener for privacy information.

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. See omnystudio.com/listener for privacy information.

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. Californiaoral arguments and transcript. -National Coalition for Men v. Selective Service System cert petition. -Robert Collier v. Dallas County Hospital Districtcert petition. -Rostker v. Goldberg. See omnystudio.com/listener for privacy information.

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. See omnystudio.com/listener for privacy information.

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. See omnystudio.com/listener for privacy information.

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. See omnystudio.com/listener for privacy information.

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. See omnystudio.com/listener for privacy information.

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. See omnystudio.com/listener for privacy information.

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. See omnystudio.com/listener for privacy information.

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. See omnystudio.com/listener for privacy information.

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.  See omnystudio.com/listener for privacy information.

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 See omnystudio.com/listener for privacy information.

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 See omnystudio.com/listener for privacy information.

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 See omnystudio.com/listener for privacy information.

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. See omnystudio.com/listener for privacy information.

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. Preczewskicase 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. See omnystudio.com/listener for privacy information.

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  See omnystudio.com/listener for privacy information.

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. See omnystudio.com/listener for privacy information.

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. See omnystudio.com/listener for privacy information.

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. See omnystudio.com/listener for privacy information.