Afleveringen
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After a quick check on the Nina Totenberg embargo kerfuffle and one more revelation from Justice Thomas's memoir, we devote the episode to Chatrie v. United States, the Court's first major Fourth Amendment decision in years. We trace how the geofence-warrant ruling builds on β and goes beyond β Katz, United States v. Jones, and Carpenter v. United States, and what's left of the third-party doctrine and the mosaic theory. Will explains the positive law model of the Fourth Amendment; Dan tries to claim Justice Gorsuch's separate opinion for his general-law approach. We close with the dissents, the advisory-opinion objection, and whether the Court should be saying more about the Fourth Amendment or less about everything. Along the way: Venmo heroin deals, smart microwaves, whether Will has genuinely forgotten his passcode, and a field-trip assignment for Chicagoland listeners.
Highlights
[00:00:21] Cold open: three recording sessions in three days, and the theories swirling around the Nina Totenberg screw-up
[00:02:04] Justice Alito's embargo story: the press-room idea he liked until he learned they have to let the journalists out of the room
[00:03:04] My Grandfather's Son follow-up: Justice Thomas's over-cautious marijuana confession
[00:04:35] Cleanup-order watch: GVRs still owed in light of Slaughter, Landor, and B.P.J.
[00:04:57] The main event: Chatrie v. United States, the geofence-warrant case β and why a 5-Justice Fourth Amendment majority is a good get for Justice Kagan
[00:06:51] What a geofence actually is (there is no fence) and the three-step Google Location History protocol
[00:13:52] General warrants, particularity, the University of Chicago backpacks hypo, and Ybarra v. Illinois β with a field-trip assignment to the Aurora Tap House
[00:21:09] Three questions β search, reasonableness, exclusion β and the clever cert grant that fenced out the exclusionary rule
[00:25:52] The setup: Jones and the two tracks of Fourth Amendment doctrine, step 0 (the third-party doctrine), then Carpenter
[00:33:13] Will's positive law model of the Fourth Amendment, and Justice Gorsuch's Carpenter dissent
[00:36:29] Orin Kerr's mosaic theory: "building out the mosaic Byzantine style, it starts to become searchier"
[00:39:15] Kagan shuts the mosaic door: where the Fourth Amendment applies, it applies regardless of quantity β a fortiori from Carpenter
[00:47:36] What survives of the third-party doctrine: Strava, public Venmo feeds, and the "For heroin" hypo
[00:50:53] Why it's a big deal: the anti-mosaic holding, and a majority of Justices revealed as Carpenter people
[00:54:48] Tangent: Face ID, the Fifth Amendment, Will's forgotten passcodes, and his enemies
[00:56:55] Does the Stored Communications Act make all this academic?
[00:58:34] The Jackson concurrence's particularity nudge, en banc remand practice, and Levy & Newman on unwritten circuit rules
[01:00:43] The Gorsuch concurrence: papers, effects, property β Will disowns it and gives it to Dan's general-law approach
[01:08:36] The Alito dissent: the advisory-opinion objection, footnote 4, the Davis carve-out, and the NRA v. Vullo precedent for a do-over remand
[01:18:59] Justice Barrett's Γ -la-carte joins and her one-paragraph dissent β "we should have more dissents like this"
[01:22:31] Two kinds of law professors, "The Supreme Court Flunks Trusts," and whether we're good on law
[01:24:15] Sign-off: the rare promise of a schedule β a fourth recording session this week
Relevant links
Cases
Chatrie v. United States β slip opinion
Ybarra v. Illinois
United States v. Jones
Katz v. United States
Smith v. Maryland
Carpenter v. United States β slip opinion
Florida v. Jardines
Davis v. United States
NRA v. Vullo
Commentary & articles
Amy Howe, "Court rules that law enforcement's use of 'geofence warrant' was a 'search'" (SCOTUSblog)
Kate Shaw, Will Baude & Steve Vladeck, end-of-term Supreme Court roundtable (N.Y. Times, July 1, 2026) β the "hosannas" Will mentions on air
William Baude & James Y. Stern, "The Positive Law Model of the Fourth Amendment," 129 Harv. L. Rev. 1821 (2016)
Danielle D'Onfro & Daniel Epps, "The Fourth Amendment and General Law," 132 Yale L.J. 910 (2023)
Orin S. Kerr, "The Mosaic Theory of the Fourth Amendment," 111 Mich. L. Rev. 311 (2012)
John H. Langbein, "The Supreme Court Flunks Trusts," 1990 Sup. Ct. Rev. 207
Other
Clarence Thomas, My Grandfather's Son (2007)
Jon O. Newman & Marin K. Levy, Written and Unwritten: The Rules, Internal Procedures, and Customs of the United States Courts of Appeals (Cambridge 2024)
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It's the last opinion day of the term, and the big one landed: Trump v. Barbara, the birthright-citizenship case. We read the majority as the rare easy case and spend most of the episode on why the four dissents each end up somewhere different β and trying to figure out exactly where they actually land. Along the way: a bogus Nina Totenberg story, a Landor GVR that might quietly unsettle a chunk of Spending Clause criminal law, and whether the professors who defended the order deserve the "legal scholarship police."
Highlights[00:00:27] The bogus Nina Totenberg wire story that Justice Alito was retiring β "Fake news, Dan."
[00:02:03] The Justice Alito / Justice Sotomayor bench-dissent dust-up from the immigration hand-downs
[00:03:11] Last opinion day β 3 opinions, 4 cases; NRSC v. FEC and West Virginia v. B.P.J. / Little v. Hecox flagged for later
[00:05:27] A significant new grant teed up on possession of semi-automatic rifles (AR-15s)
[00:06:43] A GVR in light of Landor in a federal arson case, and the narrow-vs-broad theory of what a GVR means
[00:09:34] Whether Landor's narrowing of Sabri could upend a swath of Spending Clause federal criminal law
[00:10:58] Why RLUIPA reaches prisoners β Chuck Colson's post-Watergate lobbying (courtesy of a listener, Emma Kaufman)
[00:12:55] Trump v. Barbara β Trump loses, but closer than predicted: "Trump beats the spread"
[00:15:25] Should professors who defended the order be punished? β "we don't need legal scholarship police"
[00:19:58] The majority's walk: common law β Dred Scott β the 14th Amendment β Wong Kim Ark
[00:26:21] Wong Kim Ark as linchpin, and whether its "domiciled here" language was doing any work
[00:36:48] Justice Kavanaugh concurs in the judgment on the statute, then dispatches the constitutional question breezily
[00:42:05] New states, Hawaii, and Living Originalism β when may you add new exceptions? "Weird islands you can't drive to"
[00:48:33] The 91-page Justice Thomas dissent, the facial-challenge pivot, and the reserved domicile question
[00:56:40] Justice Alito's Civil Rights Act / "not subject to any foreign power" reading, and the statelessness caveat
[01:00:11] Justice Gorsuch's 3-page solo dissent: if not domiciled here, then where? β a jab Thomas may not share
[01:05:33] Justice Jackson's anti-subordination concurrence, and whether it lands against Thomas
[01:10:24] "I feel proud to be an American, Dan" β hail to the Chief, and to Justice Barrett; sign-off
Relevant linksCases
Trump v. Barbara β slip opinion
Landor v. Louisiana Dept. of Corrections β slip opinion
Sabri v. United States (2004)
United States v. Wong Kim Ark (1898)
NRSC v. FEC β slip opinion
West Virginia v. B.P.J. / Little v. Hecox β slip opinion
Commentary & articles
SCOTUSblog opinion recap: "Supreme Court strikes down Trump's order ending birthright citizenship"
Ilan Wurman & Randy Barnett's NYT essay defending the order (Minnesota Law summary)
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Zijn er afleveringen die ontbreken?
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The big opinions are coming fast and furious as the Term ends. This episode, we take on two related cases from the penultimate opinion drop day: Trump v. Slaughter, which overrules Humphrey's Executor and clears away for-cause protection for the independent agencies, alongside its interim-docket companion Trump v. Cook, where the very same logic somehow spares the Federal Reserve. The big question: if the President can fire an FTC commissioner at will, what actually makes the Fed different β is "history" doing the work, or is the Court just saving the bond markets? Along the way: Heidegger's "always already," whether the metaphor of a living tree is consistent with originalism, a Goldilocks definition of "cause," the Chief leaning on his own unworkable precedents, the Ex parte Young mystery that keeps escaping the Court's grasp, and the first appearance of "the interim docket" in the U.S. Reports.
Highlights
[00:00:18] The penultimate opinion day β four down, four to go
[00:00:50] The last-day pileup, and the McCain-Feingold campaign-finance case still pending
[00:03:25] A confession: staircase wit, and the metaphor Will wishes he'd used
[00:04:27] The living tree as an originalist β and the petrified-tree rejoinder
[00:06:01] The new custom-cover workflow, and what Claude still isn't allowed to write
[00:07:00] The day's four opinions: Cook, Slaughter, Chatrie, and Watson v. RNC
[00:09:50] Is the Court strategic about opinion timing? A walk back through OT21's last days
[00:13:55] Slaughter before Cook: the general rule before the exception
[00:15:08] "Humphrey's Executor has always already been overruled" β by way of continental philosophy
[00:17:36] Slaughter: the question, Humphrey's Executor, and the road from Morrison v. Olson through Seila Law
[00:22:12] Why presidents mostly haven't tested removal β and whether this shifts the equilibrium
[00:25:29] Walking the opinion: Roberts for the Court, the Thomas non-join, a Sotomayor (not Kagan) dissent
[00:27:30] The Decision of 1789, the history fight, and the "good arguments on both sides" that made Will a "witless hack"
[00:33:19] Part III-B's reserved questions and the Gorsuch concurrence's non-delegation wish list
[00:43:06] Cook: procedurally on the interim docket, and why it comes out the other way
[00:46:00] The Chief's history tour β the Bank of North America, Hamilton, and an accomplished yachtsman
[00:49:00] The Fed as the "third bank"; Bamzai & Nielson and the monetary-vs-regulatory problem
[00:50:25] The chain of moves: reviewability, a Goldilocks "cause," and the equity remedy
[00:53:11] Footnote 2 and the Ex parte Young mystery β Armstrong, CASA, and Bivens
[00:58:41] Process not received: a Truth Social post isn't enough, and what Cook gets next
[01:00:54] "The interim docket" enters the U.S. Reports
[01:01:52] The separate writings: Kavanaugh (save the economy), Jackson (equities), Thomas's solo dissent
[01:04:45] Alito-Gorsuch and Barrett: hard questions, and skepticism of a carve-out defended "for secret reasons"
[01:11:26] Sign-off: if there's a long delay before the next episode, it's because we've lost removal protection
Relevant links
Cases
Trump v. Slaughter β slip opinion Β· SCOTUSblog analysis
Trump v. Cook β slip opinion Β· SCOTUSblog analysis
Chatrie v. United States β slip opinion Β· SCOTUSblog analysis
Watson v. Republican National Committee β slip opinion Β· SCOTUSblog analysis
Commentary & articles
Aditya Bamzai & Aaron L. Nielson, "Article II and the Federal Reserve" β the leading qualified defense of Fed independence (Cornell L. Rev.)
Samuel L. Bray, "Remedies in the Officer Removal Cases" β relied on by the Cook majority on the equity-remedy question (Journal of Legal Analysis); draft/announcement on the Divided Argument blog
William Baude, "How To Save The Federal Reserve" β Will's prior take on preserving Fed independence under the removal cases
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We're in triage mode as the Court clears its end-of-term backlog. We run through the week's opinion dump before focusing on two cases that look unrelated but turn on the same question: when may a state rewrite background property law to limit a constitutional right? In Wolford v. Lopez, the Court strikes down Hawaii's rule requiring a property owner's express consent before a firearm may be carried onto otherwise-public premises. Then to Pung v. Isabella County, a takings case asking whether a homeowner whose property is sold for back taxes is owed only the sale proceeds or full fair-market value. Along the way: a theory about a Landor v. Louisiana flip, the week's run of 6-3 conservative wins, and a short detour into the perils of teaching Federal Courts.
Key Topics[00:00:00] - Triage mode: recording June 25 amid the end-of-term opinion dump
Relevant Links
[00:01:29] - What's still outstanding β and the campaign-finance case's standing problem
[00:03:56] - The Landor "flip" theory: did Justice Jackson lose the majority to Justice Gorsuch?
[00:06:40] - Thursday's decisions: Monsanto v. Durnell (FIFRA), two immigration wins, Wolford v. Lopez
[00:08:58] - Counting the week's seven 6-3 conservative wins; the Hemani surprise
[00:12:57] - The throughline: when may a state redefine property to evade a constitutional right?
[00:18:35] - Wolford v. Lopez: Hawaii's "express consent" gun rule after Bruen
[00:20:42] - The Bruen framework β step one vs. step two, and the free-speech analogy
[00:26:57] - The change vs. the outlier: uniformity and Hawaii's sensitive-places list
[00:30:49] - Alito's historical analogues: poaching laws and the Black Codes
[00:33:34] - Jackson's dissent: race, Equal Protection, and how non-mechanical Bruen really is
[00:38:59] - Caetano, the Ramos v. Louisiana callback, and Alito on racist origins
[00:41:21] - Barrett's concurrence, Kagan's narrower path, and the rejected "spirit of aloha"
[00:48:23] - Pung v. Isabella County: tax sales, takings, and "just compensation"
[00:51:45] - Thomas's historical turn on tax-sale rules, and the fairness backstop
[00:55:45] - Sign-offSupreme Court of the United States: https://www.supremecourt.gov/
Divided Argument podcast: https://www.dividedargument.com/
Transcripts: https://www.dividedargument.com/transcripts
Commentary blog: https://blog.dividedargument.com/
Merchandise: https://store.dividedargument.com/
New York State Rifle & Pistol Assβn v. Bruen: https://www.supremecourt.gov/opinions/21pdf/20-843_7j80.pdf
Tyler v. Hennepin County: https://www.supremecourt.gov/opinions/22pdf/22-166_q86b.pdf
Ramos v. Louisiana: https://www.supremecourt.gov/opinions/19pdf/18-5924_j4el.pdf
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The big opinions are starting to drop, and we're doing our best to keep pace. We first discuss Landor v. Louisiana Department of Corrections, which concerns religious liberty, the scope of Congress's power to create remedies against individuals under the Spending Clause, and whether there's any redress if government officials literally throw your rights into a trash can. We then turn to United States v. Hemani, where the Court found that a federal law barring gun possession by unlawful drug users violated the Second Amendment and revealed that some of the Justices are surprisingly open-minded about marijuana's role in American society.
Key Topics[00:07:07] - Landor v. Louisiana Department of Corrections
Relevant Links
[00:08:02] - The facts of Landorβs case and the prisonβs decision to ignore prior religious-hair protections
[00:10:52] - RFRA, RLUIPA, and the path from Employment Division v. Smith to modern religious-liberty litigation
[00:14:54] - The Spending Clause theory behind federal funding conditions and why the remedy question matters
[00:19:54] - The majorityβs reasoning: why money-damages suits against officials were held unconstitutional here
[00:21:33] - Sabri, the Necessary and Proper Clause, and the debate over third-party liability
[00:26:04] - The parade of horribles: transgender sports, vaccines, and other funding-condition hypotheticals
[00:33:03] - The constitutional background: βgeneral welfare,β the spending clause, and the comma-versus-semicolon debate
[00:38:49] - Why the Court granted the case and whether the facts pushed the legal outcome
[00:42:13] - Hemani and the federal statute banning gun possession by unlawful drug users
[00:44:05] - Historical analogies, habitual drunkards, and how Bruen and Rahimi are functioning together
[00:47:17] - Discussion of the Courtβs analogical method and its practical limits in lower courts
[00:54:26] - Justice Thomasβs concurrence on jurisdictional hooks after Lopez
[00:55:31] - Justice Jacksonβs concurrence on Bruen and Justice Alitoβs surprising marijuana comparison
[00:57:51] - The real-world use of marijuana versus alcohol at the founding, and why the analogy is controversialDivided Argument: https://www.dividedargument.com/
Podcast merchandise: https://store.dividedargument.com/
Podcast commentary and blog: https://blog.dividedargument.com/
RLUIPA overview (Cornell LII): https://www.law.cornell.edu/wex/rluipa
RFRA overview (Cornell LII): https://www.law.cornell.edu/wex/religious_freedom_restoration_act
District of Columbia v. Heller (Cornell LII): https://www.law.cornell.edu/supremecourt/text/554/570
New York State Rifle & Pistol Association v. Bruen (Cornell LII): https://www.law.cornell.edu/supremecourt/text/597/1
United States v. Rahimi (Cornell LII): https://www.law.cornell.edu/supremecourt/text/602/230
South Dakota v. Dole (Cornell LII): https://www.law.cornell.edu/supremecourt/text/483/203
Sabri v. United States (Cornell LII): https://www.law.cornell.edu/supremecourt/text/541/600
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We open with the usual grab bagβthe "foot fault" pun buried in a Justice Thomas opinion, reading Justice Alito's clerk-hiring tea leaves, and a detour into the metaphysics of conditional resignations and whether you can be confirmed to a vacancy that doesn't exist yet. Then to the merits: Keathley v. Buddy Ayers Construction, a 9-0 judicial-estoppel case that lets us ask where the doctrine even came from (Tennessee, 1857, apparently), and Abouammo v. United States, the venue case about a former Twitter employee who fabricated a document while the FBI sat downstairs. The venue talk wanders, happily, into the Yellowstone "zone of death," a C.J. Box thriller, Jim Comey's second career as a novelist, and an extended appraisal of watch brands.
Highlights
[00:00:53] - Podcast update, SCOTUSblog partnership, and listener reviews
[00:01:49] - Justice Thomas's "foot fault" joke
[00:03:48] - Sam Bray citation discussion (Aldridge v. Regions Bank)
[00:05:02] - Justice Alito retirement speculation and clerk rumors
[00:17:23] - Vacation schedule and the upcoming opinion gap
[00:21:03] - June 11 merits decisions overview
[00:23:17] - Landor and the still-outstanding big case of the term
[00:27:49] - Justice Sotomayor's statement respecting denial of cert on ineffective assistance
[00:29:53] - Keathley v. Buddy Ayers Construction: bankruptcy and judicial estoppel
[00:36:10] - The Fifth Circuit's rule on inadvertence and mistake
[00:38:47] - Justice Jackson's majority opinion
[00:40:29] - Justice Thomas's concurrence and the history of judicial estoppel
[00:48:42] - Justice Sotomayor's concurrence and totality-of-the-circumstances approach
[00:52:11] - Abouammo v. United States: Article III venue and criminal prosecution location
[00:55:09] - Yellowstone's "zone of death" and vicinage problems
[00:59:21] - The fake invoice, FBI investigation, and venue dispute
[01:06:33] - Venue, personal jurisdiction, and extraterritorial conduct
[01:10:22] - Statutory venue rules and unresolved constitutional questions
[01:12:30] - Reprosecution after a venue reversal and double jeopardy
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After puzzling over an interesting follow-up question about Pitchford v. Cain, we unpack a summary vacatur in Whitton v. Dixon. We then spend a while breaking down the latest developments in Allen v. Milligan line, in which we discuss the future of the Purcell principle and whether the Court should be unusually attentive to public appearances in election cases. We finish with Sripetch v. Jarkesy, where the Court rejects a requirement that the SEC prove victims suffered pecuniary loss before seeking disgorgement, with specific attention to the interesting Seventh Amendment question raised in Justice Thomas's concurrence.
Key Topics[00:03:23] - Listener question on Pitchford v. Cain, AEDPA, and procedural default
[00:08:12] - Whitten v. Dixon: summary vacatur in a capital case and harmless-error review
[00:12:44] - Justice Thomasβs dissent and the critique of selective error correction
[00:22:46] - Allen v. Milligan / Alabama redistricting and the stay of the lower court injunction
[00:27:24] - The Courtβs restatement of Milligan and discussion of βcolorblind constitutionβ language
[00:32:30] - Purcell, election timing, and whether the doctrine is really about federal court intervention
[00:41:20] - Merits and legitimacy concerns in election-law cases
[00:53:27] - SEC v. Sripetch and the disgorgement remedy
[00:58:42] - Justice Thomasβs concurrence on disgorgement, equity, and the Seventh Amendment
[01:03:36] - Broader implications for administrative law and jury-trial rights -
The Court has been busy, and we somehow manage to cover a number of developments with unpredictable efficiency. We talk about the Court's latest summary reversal on the "party presentation principle"; Justice Kavanaugh's vindication of his law journal student note in Pitchford v. Cain; Rutherford and Fernandez, two related cases about the intersection of compassionate release and habeas; and the DIG in Hamm v. Smith, a case about capital punishment and intellectual disability. Along the way, we also get into backlash against a certain SCOTUS advocate's TED talk and further Alabama redistricting fallout.
Key Topics[00:02:25] - The infamous tweet and TED talk
Relevant Links
[00:14:56] - Alabama redistricting developments
[00:19:07] - Margolin v. National Association of Immigration Judges and the Courtβs renewed emphasis on the party presentation principle
[00:29:02] - Pitchford v. Cain and Batson
[00:35:56] - Justice Kavanaughβs Yale Law Journal note on Batson procedure and how it connects to the case
[00:40:40] - Fernandez v. United States and Rutherford v. United States: compassionate release, retroactivity, and innocence claims
[01:03:34] - Hamm v. Smith, the post-argument DIG, and the future of the Atkins ruleSCOTUSblog: https://www.scotusblog.com/
Divided Argument website: https://www.dividedargument.com/
Divided Argument blog: https://blog.dividedargument.com/
Divided Argument store: https://store.dividedargument.com/
Ethan Lowen's article on interstate extradition: https://wlr.law.wisc.edu/wp-content/uploads/sites/1263/2026/04/4-Lowens-β-Camera-ready.pdf
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We are joined by guest co-host Professor Pam Karlan at the American Law Institute Annual Meeting for the last live show of season 6. We work through a busy stretch of the interim docket: the Alabama GVR in Allen v. Caster and what Callais has done to Section 2; the denied stay in the Virginia redistricting fight, Scott v. McDougle; and the mifepristone cases, Danco and GenBioPro v. Louisiana, where Thomas rides the Comstock Act alone and Alito takes it personally. Then a turn to executive power and the term's looming merits decisionsβbirthright citizenship, the Federal Reserve, Humphrey's Executorβbefore audience questions on state voting rights acts, fixing the single-member-district statute, and whether you can wish yourself more wishes.
Key Topics[00:00:11] - Live show introduction at the American Law Institute with guest host Pam Karlan
[00:02:30] - Fallout from Louisiana v. Callais and the Alabama redistricting order
[00:06:26] - Purcell principle, mid-election rule changes, and discriminatory intent findings
[00:17:32] - Virginiaβs redistricting amendment case and why the Supreme Court declined to intervene
[00:32:41] - Danco Laboratories / GenBioPro and the mifepristone stay
[00:39:56] - Justice Thomas, the Comstock Act, and Justice Alitoβs dissent
[00:47:15] - Big-picture trends in executive power and the Courtβs posture toward the administration
[01:00:54] - Audience Q&A on Congress, district design, and gerrymandering reform
[01:05:47] - The Presidentβs public attacks on the Court and possible effects on future cases -
The Courtβs latest Voting Rights Act decision, Louisiana v. Callais, narrows Section 2 in a way that could reshape redistricting, weaken majority-minority districts, and intensify the fight over how race and partisanship interact in elections. We unpack what the Court said, what it quietly overruled, and why the reasoning matters far beyond Louisiana.
We walk through the statutory text, the long-running collision between the Voting Rights Act and the Courtβs racial gerrymandering cases, and the practical consequences for future election-law litigation. Along the way, we debate whether this is best understood as a textual decision, a constitutional avoidance move, or a major shift in how the Court treats political power and racial representation.
The conversation also covers the Courtβs emergency procedural move after judgment, Justice Kaganβs forceful dissent, and the broader question of whether the decision is likely to help one party more than the other in the short run. The result is a sharp, candid look at one of the termβs most consequential rulings
Key Topics[00:00:20] - Introduction to the episode and SCOTUS Blog partnership update
Relevant Links
[00:03:06] - Brief Supreme Court news: mifepristone litigation and shadow-docket timing
[00:05:20] - Louisiana v. Callais and why the case is a major Voting Rights Act decision
[00:11:35] - Voting Rights Act history: Section 2, Section 5, and Shelby County
[00:13:39] - The collision course between racial gerrymandering doctrine and Section 2
[00:16:17] - Allen v. Milligan and how the Court shifted course
[00:21:21] - Procedural background of the Louisiana map challenge
[00:23:02] - Is the decision constitutional, statutory, or both?
[00:24:28] - Section 2βs text and the 1982 amendments
[00:29:14] - The Courtβs reading of βless opportunityβ and the role of partisanship
[00:41:46] - How the majority treats Allen v. Milligan and prior precedent
[00:43:06] - Constitutional avoidance and the Section 5 enforcement-power question
[00:46:28] - The Courtβs βupdatedβ Gingles framework and why that matters
[00:52:29] - Likely effects on majority-minority districts and partisan gerrymandering
[00:54:25] - Justice Kaganβs dissent and the Courtβs broader democracy critique
[00:56:04] - The post-judgment timing dispute and Justice Jacksonβs separate dissent
[00:58:55] - Final assessment of the decision and its likely consequencesRick Pildes's post on the decision: https://democracyproject.org/posts/supreme-court%E2%80%99s-gutting-of-voting-provision-was-long-time-coming
Travis Crum Amicus Brief: https://www.supremecourt.gov/DocketPDF/24/24-109/373625/20250903201226237_2025.09.03%20Callais%20Crum%20Amicus%20Brief.pdf
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A deep dive into the latest Supreme Court news, a couple of unusual shadow docket rulings, and a cross-ideological merits decision that raises classic questions about federal power, preemption, and how much weight lower courts should give to context.
We open with reporting on leaked internal Supreme Court memoranda related to the 2016 stay of the Clean Power Plan, including what the documents may reveal, why the leak itself is so unusual, and whether timing and incomplete records change the story. We also discuss Justice Sotomayorβs public apology after comments about Justice Kavanaugh, and what that moment says about judicial professionalism and public exchange.
From there, we turn to some shadow docket happenings: a one-line summary reversal in a Texas redistricting case and a Fourth Amendment summary reversal out of the D.C. courts. Finally, we move to the merits docket and consider Hencely v. Fluor Corporation (24-924), a case involving federal contractor preemption and a terrorist attack in Afghanistan, where the Court narrows a (possibly infamous) Scalia opinion.
Key Topics
[00:05:32] - NYT leak of Supreme Court memoranda on the Clean Power Plan stay
[00:10:13] - Whether document leaks are better than source-based leaks
[00:21:30] - Justice Sotomayorβs remarks about Justice Kavanaugh and her apology
[00:27:27] - Summary reversal in Abbott v. LULAC and Texas redistricting
[00:35:18] - D.C. Fourth Amendment summary reversal and reasonable suspicion
[00:47:04] - Hencely v. Fluor Corp.: military contractor liability and preemption
[00:52:48] - Little v. Barreme, general law, and the limits of contractor immunity -
We recap and reflect on the oral arguments in Trump v. Barbara (the birthright citizenship case) and then analyze the Court's recent decision in Chiles v. Salazar, about the First Amendment limits on Colorado's conversion therapy ban. We also confront the taboo question: Are judicial opinions too long?
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We're live at WashU Law's Admitted Students Day! After catching up on some shadow docket activity, we dig into Olivier v. City of Brandon, the Court's unanimous March 2026 decision by Justice Kagan. A Mississippi street preacher pleads no-contest to violating an amphitheater protest-zone ordinance, pays his $304 fine, then sues under Β§1983 to stop future enforcement β and the Fifth Circuit says the puzzling Heck v. Humphrey rule bars the whole thing. We work through why Heck is stranger than it first appears, what the Court got right in resolving the circuit split, and what the decision reveals about the ongoing mess at the intersection of Β§1983 and habeas.
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We announce an exciting new partnership with SCOTUSblog and introduce the show to new listeners. We then return to the mysterious origins of the Chief Justice's "no, no, a thousand times no," debate the Court's new policy designed to maintain secrecy, and then take a close look at Galette v. New Jersey Transit Corporation, a sovereign immunity decision in which the Court may, or may not, have paid attention to Will's amicus brief.
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It's our live show at the University of Chicago! Hosted by the University of Chicago Federalist Society, we discuss this week's big shadow-docket rulings about gender transitions in California Schools (Mirabelli v. Bonta) and redistricting in New York (Malliotakis v. Williams), and also break down the recent merits decision about the right to counsel when a defendant is testifying (Villareal v. Texas).
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With unpredictable timeliness, we have a quasi-emergency episode on the 170-page tariffs decision, Learning Resources, Inc. v. Trump. Come for the in-the-weeds legal analysis, stay for the deep dive into the origins of the phrase "no, no, a thousand times no."
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We're back for another live show at the Northwestern Pritzker School of Law, hosted by the Northwestern Federalist Society! We discuss the term's two Second Amendment arguments -- first recapping the oral argument in Wolford v. Lopez, featuring Hawaii's law about getting consent to bear arms on private property; and then previewing the oral argument in United States v. Hemani, about the ban on possession of guns by drug users.
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With shocking and uncharacteristic efficiency, we manage to discuss three merits opinions and one orders list dissent in only 47 minutes. Specifically, we revisit Coney Island Auto Parts Unlimited, Inc. v. Burton (time limits for moving to vacate void judgments) and break down Berk v. Choy (an Erie doctrine puzzle), and Ellingburg v. United States (criminal restitution and the Ex Post Facto Clause), while also managing to discuss Justice Jackson's broadside against the Court's practice of "martinization."
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We didn't get the tariffs decision this week, but we discuss two of the opinions we did get -- Bost v. Illinois Board of Elections, a decision about standing and election law, and Case v. Montana, a rare Fourth Amendment case -- in a remarkably efficient episode (after a brief detour into Grok's jurisprudence and the announcement of a major gift to the Constitutional Law Institute).
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We're back with the first episode of the new year, breaking down the interim docket opinion/order in Trump v. Illinois, the national guard case, after first warming up with new Erie scholarship, state criminal jurisdiction over federal officers, and some recent online discourse.
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