Divided Argument

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.

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. 

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. 

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. 

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 last opinions: Coinbase v. Bielski, which involves the intersection of arbitration and appellate jurisdiction,  and Groff v. DeJoy, which importantly clarified employers' obligations to provide religious accommodations to employees under Title VII of the Civil Rights Act of 1964.

We recap some shadow docket happenings and catch up on the latest SCOTUS ethics news before continuing our march through June opinions we missed. This time, we dive back into Indian law in Arizona v. Navajo Nation and try to make sense of private causes of action and the so-called Spending Clause in Health and Hospital Corporation of Marion County v. Talevski. Along the way, Will reveals his closet cartographical interests.

What could be more unscheduled and unpredictable than our fourth episode in little more than a week? We briefly discuss the latest developments in the Mountain Valley Pipeline shadow docket dispute, and then revisit ethics controversies. Then, we continue marching through the June cases we missed. We talk about the First Amendment's "true threats" exception in Counterman v. United States, and then ponder the two student loan cases, Biden v. Nebraska and Department of Education v. Brown. 

We defy all predictions by releasing a third episode in a week. This time, we talk about the intersection of public accommodations law and the First Amendment in 303 Creative and the Confrontation Clause in Samia v. United States.

In the spirit of keeping things unpredictable, we're back with a new episode barely days after the last one. This time, we take a deep dive into two jurisdiction-y cases in the Divided Argument wheelhouse: Jones v. Hendrix and Moore v. Harper. 

After some inevitable self-flagellation for our lengthy hiatus, we catch up on some recent news and debate SCOTUS ethics. We then talk about implications of the Harvard/UNC affirmative action case, revisit Mallory v. Norfolk Southern, and break down the latest case captioned "United States v. Texas." 

We record our first inter-continental episode, as Will reports in from a visit to Tel Aviv. We then dive in to two of this month's opinions: Haaland v. Brackeen, which rejects a series of challenges to the Indian Child Welfare Act, and United States v. Hansen, which upholds a federal immigration law against a free speech overbreadth challenge.

We discuss a recent effort to identify the least interesting SCOTUS case, and then discuss Tyler v. Hennepin County, United States ex rel. Schutte v. Supervalu Inc., and Glacier Northwest, Inc. v. Teamsters. 

We debate Justice Gorsuch's unusual "statement" in Arizona v. Mayorkas. Then, we don't let our complete lack of knowledge of intellectual property law stop us in trying to make sense of Andy Warhol Foundation for Visual Arts, Inc. v. Goldsmith, the big copyright throw-down between Justices Sotomayor and Kagan. 

After catching up on news and bemoaning some listener feedback, we look at some opinions that the Court dropped last week. We take a deep dive into National Pork Producers Council v. Ross and briefly discuss the two fraud cases, Percoco and Ciminelli. 

We talk (and argue) with special guest Steve Vladeck about his new book, The Shadow Docket, just published by Basic Books. Steve explains why it is important to educate the public about the Court's use of unsigned and sometimes unexplained orders, and how it is changing. Will and Dan press him on whether his criticisms go too far . . . or not far enough.

We cover many developments -- Justice Alito's unusual interview in the Wall Street Journal, the release of Justice Stevens' papers, more news on Supreme Court ethics, as well as a new cert. grant on the Chevron doctrine, the mifepristone shadow-docket ruling, and still more jurisdictional news in Moore v. Harper. But first -- an anonymous caller drops a new voicemail song.

We revisit a story about Justice Scalia from last episode and then discuss recent allegations about Justice Thomas's financial disclosures, and Supreme Court ethics more broadly. We also briefly turn to two recent merits opinions --  Türkiye Halk Bankasi A.S. v. United States and Reed v. Goertz.

We spend most of our time on some meaty opinions on the orders list -- including separate opinions in Chapman v. Doe (starting at 25:41) and Donziger v. United States (starting at 35:15) -- and touch on the recent merits opinions. But first, we have an extended revisit of Cruz v. Arizona, which proves far more mysterious than we first realized.

We're back to break down two of the Supreme Court's recent 5-4 opinions—Bittner v. United States, about penalties under the Bank Secrecy Act, and Cruz v. Arizona, a death penalty case about state procedures and federal jurisdiction. But first, we take a brief look back at the oral arguments in the student loan case, and a new order and jurisdictional developments in Moore v. Harper (the independent state legislature case).

We're live at Washington University School of Law in St. Louis! After a check-in with our most faithful corrector, Prof. Ron Levin, we take a deep dive into the two upcoming cases about the legality of President Biden's student loan forgiveness plan. Will explains his theory of why the challengers should lose because they lack standing—but also predicts that the Court is unlikely to agree. 

We revisit the leak investigation, catch up on recent news, and then take a deep dive into the recent dispute in United States v. Texas  (starting at 37:56) over the scope of courts' power to vacate administrative rules and the related controversy over so-called "nationwide" injunctions. 

We're back sooner than expected to talk about the Court's release of the Marshal's report about the investigation of the Dobbs leak!

We catch up on some odds and ends, take a long detour through a debate about the merits of the Star Wars trilogies, and then dig into Türkiye Halk Bankasi A.S. v. United States (starting at 38:10), an interesting case about the scope of foreign sovereign immunity being heard in the January sitting. 

We talk through the implications of the story about an alleged leak in the Hobby Lobby case, respond to a mysterious voicemail, and then break down two interesting federal criminal fraud cases, Cimenelli v. United States and Percoco v. United States. 

In this mega-episode, we catch up on the orders list, circle back to Mallory, which we talked about last episode, and the dive into oral arguments in the affirmative action cases. 

We check in on some Court-related news and developments and Dan gives Will a hard time for his recent bold claim about the conservative justices. We then dig deep into Mallory v. Norfolk Southern Railway Co., a fascinating personal jurisdiction case being argued in the November sitting.

We provided an extended preview of the arguments in one of the October cases, National Pork Producers Council v. Ross, which takes us into a long discussion of the "dormant" Commerce Clause and extraterritorial regulation. But first we discuss some statements from Justice Alito and Ginni Thomas, the newest circuit justice assignment, and some updates from last episode.

We open Season 3 with a live show at William and Mary Law School, part of the Scalia-Ginsburg Collegiality Speaker Series. With our first-ever guest, we discuss the limits of friendship and offer advice on civil disagreement. But first we break down the Supreme Court's ruling on an important stay application from Yeshiva University.

We catch up on listener questions and feedback (both positive and negative), and then spend a while on the neglected case of Vega v. Tekoh, about the intersection of remedies and Miranda. We also discuss Kennedy v. Bremerton, the case of the praying football coach. Unfortunately, Will recorded all of this into the wrong microphone.

We reflect on the Supreme Court term as a whole, and the direction and politics of the Court. We focus on West Virginia v. EPA, which canonized the "major questions" doctrine, and the upcoming case of Moore v. Harper, which confronts the "independent state legislature doctrine."

In our longest episode yet, we break down two massively consequential cases: Dobbs v. Jackson Women's Health Organization and New York State Rifle & Pistol Association v. Bruen. 

We try to catch up after the Court's big opinion dump this week, and end up focusing on Ysleta del Sur Pueblo v. Texas, Denezpi v. United States, Viking River Cruises, Inc. v. Moriana, and the DIG in Arizona v. San Francisco. Come for the legal analysis, stay for the health insurance advice. 

We're back to talk about Wednesday's decision in Egbert v. Boule and the problem of constitutional remedies. But first we catch up on the Court's pace of opinions, the leak investigation, the attempted attack on Justice Kavanaugh, and Puerto Rico (United States v. Vaello-Madero).

We're back to talk about the big news: the draft of Justice Alito's opinion in Dobbs, and the questions that surround it -- how and why this might have happened, what it means for the Court, and what the Court can do about it.

We try to clear our backlog after a break. We manage to make it through United States v. Tsarnaev, Ramirez v. Collier, and a few other odds and ends. 

We try to catch up on what the Court did since we last recorded, but end only making it through the Court's opinions in United States v. Zubaydah and Wooden v. United States.

We catch up on the nomination of Judge Ketanji Brown Jackson, a new opinion by Justice Breyer, revisit a debate about who the greatest law professor on the Supreme Court is, and talk through each of our recent scholarly efforts. Tune in to hear Dan surprisingly attack Will's Fourth Amendment views from the right flank, learn an interesting tidbit about Justice Brandeis, and get some insight into the mysterious originalist gathering in San Diego. 

We're back after a long absence, but there's a good excuse. We catch up on the biggest developments from the last couple months, including the Breyer retirement, the Court's COVID decisions, the masking imbroglio, and the Alabama redistricting shadow-docket ruling. We also discuss Dan's childhood meeting with Justice Thomas, speculate about the median age of our listenership, and invent a new empirical metric for evaluating Supreme Court justices. 

Will and Dan try to make sense of the Court’s decisions in the two cases addressing the possibility of preenforcement challenges to Texas’s novel abortion ban.

We’ve been waiting for months to bring you this one: we can finally talk about the President’s Supreme Court Commission, which just finalized its report this week. We also briefly talk about the recent argument in Dobbs and try to predict what the Court might do.

Dan and Will catch up on what the Court's been up to other than dealing with the Texas abortion law, including cert grants addressing the EPA's power to regulate carbon emissions, a couple of summary reversals, and some other shadow-docket action.

Divided Argument is back after an unscheduled, unpredictable break to kick off a brand new season. We dig into this week's oral arguments in two cases involving Texas's abortion law. 

The road show continues as Will and Dan record another live episode at the National Association of Attorneys General's State Solicitors General and Appellate Chiefs Conference in Chicago. They delve deeper into Texas's abortion law and the US's lawsuit seeking to stop it. Then, they have a broader discussion about the role and power of states in Supreme Court litigation. 

Divided Argument is live from the University of Chicago Law School! In our first ever episode in front of a live studio audience, we catch up on recent Court-related developments, such as several Justices' recent public remarks pushing back on Court politicization and the Court's latest foray into whether capital prisoners can have spiritual advisors with them in the execution chamber. 

Will and Dan break down the Court's late-night refusal to block the implementation of Texas's controversial "fetal heartbeat"  law, and what it might mean for the future of the Court's abortion jurisprudence. 

Dan and will try to catch up on the flurry of news from Thursday afternoon, including an update on the Acting Solicitor General and the Court’s surprising grant of injunctive relief against New York’s eviction procedures. Come for the breaking news, stay to find out how Dan procrastinate and to learn the relevance of Catskills humor to the shadow docket.

As Will, Dan, and the Court all navigate their August vacations, we learn how a controversy over the qui tam statute indirectly saved Roe v. Wade. We then catch up on a few legal developments: The Biden Administration has renewed its eviction moratorium, confusing many legal observers in the process. The administration has also finally given us a nomination for Solicitor General. And a controversial cert. petition by the state of Oklahoma provokes an extended discussion of stare decisis and lawyer shaming.

As October Term 2020 recedes in the rear-view mirror, Dan and Will take a moment to reflect. We ponder the current balance of power on the Court and how the pandemic era might change the institution. We also address some listener feedback on Transunion; Will defends himself against the charge that he worships the justices too much; and Dan takes issue with a bold claim that Will snuck in on a previous episode.

Will and Dan deal with listener feedback that prompts them to recall some of the Court's most bad-faith decisions in recent years. They then do a deep dive into Transunion v. Ramirez, the Court's major standing decision from the end of the Term. 

Will and Dan deal with some tough but fair listener feedback, and then get through AFP v. Bonta (finally). Listen to see if they get further!

Dan and Will return after their vacations to catch up on what they've missed. After checking in briefly on Justice Breyer, they try to talk about two of the Court's biggest cases from the end of the Term. They only manage to get through one of them: Brnovich v. DNC.

Will and Dan break down two more decisions from Wednesday. First is Collins v. Yellen, a complicated separation of powers and severability case with a lot of money on the line. Second is Lange v. California, a Fourth Amendment case about the "hot pursuit" doctrine, which gives rise to some high school confessions.

The Court dropped four fascinating constitutional law opinions on Wednesday, and Will & Dan talk through two of them. First up is Mahanoy, which addresses First Amendment protections for Snapchatting school kids. Then we have Cedar Point, an important decision about the Takings Clause.

As October Term 2020 hurtles towards a thrilling conclusion (well, hopefully), Dan and Will break down two of Monday's decisions. They explore the separation of powers and severability in United States v. Arthrex and talk about antitrust law's implications for college sports in NCAA v. Alston. 

Will and Dan break down the Court's sudden burst of interesting opinions – California v. Texas, Fulton v. Philadelphia, and Nestle v. Doe.

Will and Dan break down the Court's fascinating decision yesterday in Van Buren v. United States, which interpreted the Computer Fraud and Abuse Act. 

Dan and Will  discuss the Court's recent run of unanimous cases, paying particular attention to United States v. Cooley; ponder weighty issues like the role of the Hart & Wechsler casebook in defining the field of federal courts; and announce a new way for listeners to engage with the show: our voicemail line, (314) 649-3790‬.

Will and Dan ponder what this podcast is about, continue their discussion of good faith in judging, try to game out exactly what the Court is up to in Dobbs v. Jackson Women's Health, and respond to listener feedback. 

Will and Dan ponder the significance Court's grant of certiorari in an abortion case, Dobbs v. Jackson Women's Health Organization, before going on to recap some of the opinions the Court released this week. They discuss Caniglia v. Strom, a Fourth Amendment case, and what it might mean for drug-dealing senior citizens. And they explore the puzzling world of criminal-procedure retroactivity in Edwards v. Vannoy, and in particular Justice Gorsuch's bold concurrence charting a new course for federal habeas corpus law. 

Will and Dan finish up their conversation about the shadow docket. They discuss the Court’s summary reversal practices, try to get to the bottom of what might be wrong with the shadow docket, and ponder what it means for Supreme Court justices to act in “good faith.”

In the inaugural episode of Divided Argument, Will and Dan have the first part of a two-part discussion of the Supreme Court's "shadow docket." Will explains how he came to coin the now-famous phrase in a 2013 article, and how good advice from a friend helped him avoid a "terrible title" for that piece. Will and Dan also discuss Justice Alito's contribution to the important field of original jurisdiction before closing out the episode with a plea for reviews on your podcast app of choice.