Advisory Opinions

Latest Episodes:

Chauvin’s Conviction and What's Next? Apr 22, 2021

Show notes

Today, David and Sarah give us their reactions to the Derek Chauvin trial verdict, talk about potential issues on appeal, and break down Minnesota state law on the competency of a juror as a witness. Also on today’s episode, our hosts chat about an interesting court filing involving Texas Attorney General Ken Paxton and a talk about whether the law can or should protect employees from political discrimination.

Show Notes:

-Last week’s Advisory Opinions episode on the ins and outs of the Chauvin trial

-Minnesota 606(b)

Learn more about your ad choices. Visit megaphone.fm/adchoices

Hearsay and the Right of Defendants Apr 19, 2021

Show notes

On today’s episode, Sarah and David walk us through Monday’s Supreme Court orders and oral arguments before diving back into the mailbag, where they respond to listeners’ questions about expert witnesses, sanctuary cities, vaccine passports, and immunity grants. Plus, David revises and extends his Friday Dispatch Podcast thesis on culture’s distortion of masculinity.

Show Notes:

-Monday’s Supreme Court orders

-Sanchez v. Mayorkas

-Hemphill v. New York

-Jacobson v. Massachusetts

-Friday’s Dispatch Podcast episode

Learn more about your ad choices. Visit megaphone.fm/adchoices

The Trial of Derek Chauvin Apr 16, 2021

Show notes

On today’s episode, David and Sarah discuss the ins and outs of Derek Chauvin’s murder trial, including why Chauvin didn’t take the stand and whether he’s likely to be convicted. Plus, our hosts chat about House Democrats’ latest court-packing bill—what Sarah calls “a press release in the form of legislation”—former Brooklyn Center police officer Kim Potter’s fatal shooting of Daunte Wright, and an en banc 6th Circuit case involving abortion.

Show Notes:

-“Chauvin Defense Expert Destroyed on the Stand” by Andrew McCarthy in National Review

-Pre-Term Cleveland v. McCloud

Learn more about your ad choices. Visit megaphone.fm/adchoices

The Plastic Cutlery of Damocles Apr 12, 2021

Show notes

Fearing that death or disability will remove Justice Stephen Breyer from the Supreme Court when a Republican is in the White House, progressives have begun urging the senior Democratic appointed justice to retire so that Joe Biden can nominate a younger successor while he has a chance. Is Justice Breyer likely to retire anytime soon? David Lat joins today’s show to give us his take. Stick around to hear David Lat and our hosts chat about Biden’s 36-person Supreme Court commission, a new opinion involving California pandemic law, Google v. Oracle, and lawful orders from police officers.

Show Notes:

-David Lat’s Substack: Original Jurisdiction, and novel: Supreme Ambitions

-David Lat’s posts on Breyer: “Will Justice Breyer Retire? Reading The Clerk Hiring Tea Leaves” and “Confession Of Error: Justice Breyer Is Hired Up For October Term 2021”

-Ritesh Tandon v. Gavin Newsom

-Fraternal Order of Police, Newark Lodge No. 12 v. City of Newark

-Campbell v. Acuff-Rose Music, Inc.

-Orin Kerr’s Twitter thread on lawful orders and Pennsylvania v Mimms

-“A Tale of Two Rap Songs” by David French in The Dispatch

Learn more about your ad choices. Visit megaphone.fm/adchoices

Justice Breyer's Warning Apr 08, 2021

Show notes

Our hosts start today’s episode by diving into the Supreme Court’s 6-2 opinion in Google v. Oracle, a multibillion dollar copyright case involving whether Google unlawfully used Oracle’s programming code when the tech titan created its Android operating system. Also on today’s podcast, Sarah and David chat about Justice Stephen Breyer’s Scalia Lecture, misdemeanor prosecutions, a new study on religious liberty’s winning streak on the Roberts Court, and a Native American adoption law case.

Show Notes:

-Google v. Oracle

-Justice Breyer’s Scalia lecture.

-Misdemeanor prosecution explainer by Alex Tabarrok and “16 theories for why crime plummeted in the US” by Dara Lind and German Lopez in Vox.

-“An Extraordinary Winning Streak for Religion at the Supreme Court” by Adam Liptak in the New York Times and “The Roberts Court and the Transformation of Constitutional Protections for Religion: A Statistical Portrait” by Lee Epstein and Eric A. Posner in the Supreme Court Review.

-Native American adoption law case.

-Take the next 30-days to try a Dispatch membership

Learn more about your ad choices. Visit megaphone.fm/adchoices

Common Carriers Apr 05, 2021

Show notes

It was a slow day at the Supreme Court today, but our hosts are here to give us a breakdown of the latest orders. In a concurring opinion on Monday, Justice Clarence Thomas tore into the Supreme Court’s order in Biden v. Knight First Amendment Institute at Columbia University, which involves a government official’s control of his own Twitter account. Per Sarah, the purpose of Thomas’ concurring opinion is to determine whether social media platforms are “common carriers, whether they are places of public accommodation, or nothing.” Stay tuned to hear David and Sarah discuss a lawsuit involving Thomas Jefferson High School for Science and Technology and the GOP’s legislative blowback against corporate wokeness.

Show Notes:

-Google v. Oracle

-Supreme Court’s April 5 orders

-Biden v. Knight First Amendment Institute at Columbia University

-Jason Small v. Memphis Light, Gas & Water

-Trans World Airlines, Inc. v. Hardison

-Coalition for TJ v. Fairfax County School Board and Dr. Scott Brabrand

-Revisionist History podcast Season 3 Episode 10

Learn more about your ad choices. Visit megaphone.fm/adchoices

When the NCAA Met the Supreme Court... Apr 01, 2021

Show notes

As the Houston Cougars and Baylor Bears prepare for their Final Four faceoff this Saturday, our podcast hosts break down Wednesday’s Supreme Court arguments for National Collegiate Athletic Association v. Alston, a case that will determine whether the NCAA’s rules restricting student athlete compensation violate federal antitrust law. Stick around to hear David and Sarah chat about developments in qualified immunity law, how nondisclosure agreements hide sex abuse scandals, and a new civil lawsuit brought by two U.S. Capitol Police officers against Donald Trump.

Show Notes:

-Supreme Court oral arguments for National Collegiate Athletic Association v. Alston.

-Taylor v. Riojas.

-Florida v. Georgia.

-“The Supreme Court Is Giving Lower Courts a Subtle Hint to Rein In Police Misconduct” by Joanna Schwartz in The Atlantic.

-Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics.

-Facebook Inc. v. Duguid.

-French Press: ‘They Aren’t Who You Think They Are’ by David French in The Dispatch.

-James Blassingame and Sidney Hemby v. Donald Trump.

Learn more about your ad choices. Visit megaphone.fm/adchoices

The Curious Case of Roxanne Torres Mar 29, 2021

Show notes

On today’s podcast, our hosts discuss the Supreme Court’s March 25 ruling in Torres v. Madrid, a Fourth Amendment case involving a failed attempt by police officers to restrain suspect Roxanne Torres using physical force. “She’s claiming that they violated her Fourth Amendment rights by unreasonably seizing her,” Sarah explains. “And the question becomes: Can you seize someone if they got away?” After a deep dive into Fourth Amendment jurisprudence, Sarah and David talk about the legal history surrounding hate crimes and the constitutionality of D.C. statehood. They end the episode with some career advice for their aspiring lawyer listeners.

Show Notes:

-Caniglia v. Strom, Torres v. Madrid, Terry v. Ohio, R.A.V. v. City of St. Paul, Wisconsin v. Mitchell

-“Supreme Court agrees to hear first abortion case with 6-3 conservative majority” by Alice Miranda Ollstein in Politico.

Learn more about your ad choices. Visit megaphone.fm/adchoices

The Takings Clause Mar 25, 2021

Show notes

On today’s pod, Sarah and David give us an update on the goings on at the Supreme Court, with an in-depth look at a union takings case out West. “A California regulation allows union representatives to meet with farm workers at their work sites for up to three hours a day for as many as 120 days a year,” Sarah explains. “And so the question is: Is this a per se taking under the Fifth Amendment?” After Sarah and David discuss oral arguments for the case, they do a deep dive on a 9th Circuit Second Amendment case, Twitter’s lawsuit against Texas Attorney General Ken Paxton, and a Massachusetts Supreme Judicial Court case on the ministerial exception. They wrap things up with some much needed Netflix recommendations and a conversation about D.C. statehood.

Show Notes:

-Cedar Point Nursery v. Hassid and Supreme Court oral arguments.

-New York State Rifle & Pistol Association Inc. v. Corlett and Holloway v. Garland.

-Twitter, Inc. v. Ken Paxton.

-Deweese-Boyd v. Gordon College.

-Torres v. Madrid.

Learn more about your ad choices. Visit megaphone.fm/adchoices

Originalism of 'Moral Substance' Mar 22, 2021

Show notes

On today’s action-packed pod, our hosts start with an interesting certiorari grant to U.S. v. Tsarnaev, the Boston Marathon bombing case. The appellate court overturned the trial court’s death sentence for Dzhokhar Tsarnaev on the grounds that 1) the trial judge did not ask the jurors about their pretrial media consumption, and 2) that he did not allow evidence about the his brother Tamerlan’s alleged involvement in a previous murder to inform the case. Tamerlan Tsarnaev died in a shootout with police after the 2013 bombing. Sarah and David give us their predictions on how the Supreme Court is likely to rule. Also in the hopper for today: Our hosts introduce us to a union case and discuss speculation surrounding Justice Stephen Breyer’s retirement, a D.C. Circuit dissent by Judge Laurence Silberman, the MAGA right’s rejection of originalism, and best picture nominee Promising Young Woman.

Show Notes:

-U.S. v. Tsarnaev.

-Massachusetts Lobstermen’s Association et al. v. Gina Raimondo, Secretary of Commerce, et al.

-Antiquities Act.

-Christiana Tah and Randolph McClain v. Global Witness Publishing, Inc. and Global Witness.

-New York Times v. Sullivan.

-“A Better Originalism” by Hadley Arkes, Josh Hammer, Matthew Peterson, and Garrett Snedeker in the American Mind.

-“Zack Snyder’s Justice League and America’s Second-Greatest Superhero Trilogy” by David French in The Dispatch.

Learn more about your ad choices. Visit megaphone.fm/adchoices