Advisory Opinions

Latest Episodes:

Arguments About Arguments Feb 11, 2021

Show notes

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.

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Last Dance for Pandemic Law Feb 08, 2021

Show notes

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.

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Impeachment Briefs and Font Choices Feb 05, 2021

Show notes

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.

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Defending a President Feb 01, 2021

Show notes

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.

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Return of the TRO Jan 28, 2021

Show notes

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

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Mootness and Munsingwear Jan 25, 2021

Show notes

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

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Shibboleths and Executive Orders Jan 21, 2021

Show notes

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

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Chicken Wars Jan 20, 2021

Show notes

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.

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First Amendment Lamborghini Jan 14, 2021

Show notes

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. Preczewski case 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.

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Incitement of Insurrection Jan 11, 2021

Show notes

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

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