Advisory Opinions

Latest Episodes:

Bong Hits 4 Jesus Nov 19, 2020

Show notes

Rudy Giuliani has come out of retirement for the first time in 28 years to litigate on behalf of the Trump campaign. To say his gears were a little rusty would be the understatement of the century: Giuliani walked into court this week and couldn’t remember the name of the judge, couldn’t remember the name of his opposing counsel, couldn’t remember the meaning of “opacity,” and couldn’t argue the proper standard of review in the case. As our podcast hosts remind us, effective lawyers not only know how to make a constructive argument, but also tailor their advocacy to the humanity of the judge. Giuliani did neither of these things. After catching up on the latest election litigation disputes, David and Sarah discuss imminent lawless action in the context of the First Amendment and two of their favorite television shows.

Show Notes:

-Morse v. Frederick.

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Watching a House of Cards Collapse Nov 16, 2020

Show notes

A segment of the right-wing public has morphed into a conspiracy theory machine that is—in David’s words—propagating baseless voter fraud allegations at “a geometric rate that [bears] increasingly no relationship to the real world at the same time as the actual claims in court are just evaporating.” Why are people on the right and the left so susceptible to electoral conspiracy theories? After David and Sarah play catchup on the latest developments involving election litigation, they dive into a 1st Circuit race-based admissions case at Harvard, the latest updates on DACA, and The Mandalorian.

Show Notes:

-Andrew Fleischman thread on election lawsuits

-Harvard affirmative action case, DACA decision, history of discrimination with SAT and Jewish applicants

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Swinging for the Fences Nov 12, 2020

Show notes

The Trump campaign is swinging for the fences in most of its litigation efforts in hopes that at least some of its legal arguments will be successful. But as our podcast hosts remind us, most of the president’s post-election lawsuits are unlikely to change the outcome even if the Trump campaign scores a few victories along the way. “The Trump administration could win, dunk on the opposition, hang on the rim, taunt its opponents, and nothing changes,” David explains. On today’s podcast, David and Sarah explain the overall legal context surrounding the president’s ongoing election litigation efforts and give us the lowdown on the latest voter fraud conspiracy theories. Plus, David and Sarah break down Supreme Court oral arguments for the Affordable Care Act case and discuss a race-based admissions lawsuit at Harvard.

Show Notes:

-“Fact Check: Debunking the Hammer and Scorecard Conspiracy Theory” by Khaya Himmelman in The Dispatch.

-“Fact Check: Explaining the False Allegations About Dominion Voting Systems” by Alec Dent in The Dispatch.

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The Church of Voter Fraud Nov 05, 2020

Show notes

Twitter is brewing with wildly unsubstantiated claims of voter fraud as election officials in battleground states continue to count ballots. For today’s myth busters edition of the podcast, David and Sarah discuss the nitty gritty details surrounding ballot-counting processes and whether the conspiratorial claims surrounding voter fraud allegations have any merit. “If voter fraud is a religion for you,” Sarah warns, “go find yourself another pod today.” They wrap things up with a conversation about exit polls and some Supreme Court punditry.

Show Notes:

-The Sweep: “Your 2020 Election Night Guide,” Employment Division v. Smith.

-Join The Dispatch for a post-election gathering featuring congressional leadership and top policy experts November 9-10: Sign up here!

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Pivot Counties Nov 02, 2020

Show notes

It’s Election Day eve and our podcast hosts have their presidential race forecasting models at the ready. After a helpful breakdown on pivot counties in swing states, David and Sarah give us some punditry on the 15 Senate races they’re watching closely this cycle. “Generally speaking, the Senate and presidential numbers are getting closer together over the last few cycles, not farther apart,” Sarah says on today’s podcast. Check out this prediction heavy episode of Advisory Opinions, in which our hosts give us a state of play on the presidential race and offer their thoughts on a controversial election lawsuit in the Lone Star state.

Show Notes:

-David’s latest French Press, “I’m Here To Remind You That Trump Can Still Win” by Nate Silver in FiveThirtyEight, FiveThirtyEight’s presidential polling average in Pennsylvania, Texas election lawsuit.

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Voting Battles Head to Court Oct 29, 2020

Show notes

We’ve already seen record early turnout this election cycle. Our hosts have three major takeaways from the surge: 1) It means the polls are more likely to be accurate (the registered voter number is likely to reflect the actual voter number), 2) It means that we’re going to see interesting shift in how both candidates’ spend time on the campaign trail before Tuesday, 3) It means we have a record number of absentee ballots, which will lead to a concomitant surge in election litigation. In the hopper for the rest of today’s podcast: judicial oaths of office, turnout in swing states, and election litigation galore (with a close look at Wisconsin and Pennsylvania!)

Show Notes:

-Join The Dispatch for a post-election gathering featuring congressional leadership and top policy experts November 9-10: Sign up here!

-Marquette Law poll on voters’ optimism that their preferred candidate will win, Wednesday’s Morning Dispatch: “Election Litigationpalooza,” a statement on the Pennsylvania ballot deadline litigation from Justices Alito, Gorsuch, and Thomas.

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Early Voting Numbers Explained Oct 26, 2020

Show notes

Echelon Insights predicts that we will see record turnout this election cycle. How might a surge in, say, 2o million new voters this year affect the presidential race in battleground states? “If we’re talking the day after the election about why the polls were wrong,” Sarah warns on today’s episode, “it will be because of the extraordinary turnout, and [pollsters] were unable to figure out where those turnout increases were coming from.” Tune in to today’s episode to hear David and Sarah’s take on early voting in swing states, the importance of political rallies, and the DoJ’s antitrust lawsuit against Google.

Show Notes:

-Join The Dispatch for a post-election gathering featuring congressional leadership, top policy and political experts November 9-10: Sign up here!

-Most popular websites since 1993 ranked, Google’s statement against the DoJ lawsuit, and “For Trump Superfans, Huge Rallies Can't Resume Soon Enough,” by Andrew Egger in The Dispatch.

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Deer Jacking Oct 19, 2020

Show notes

Still shocked by the grand polling meltdown of 2016, many Americans on both sides of the aisle are convinced that Biden’s double digit national polling lead is inaccurate and that Trump will somehow win the election in a landslide. This theory has three main hypotheses: 1) Trump is such a uniquely divisive candidate that his supporters lie to pollsters and say they plan to vote for Biden, 2) the likely electorate problem, and 3) Republicans are less likely to talk to pollsters in the first place. Sarah and David break down these theories and explain why they’re overblown given the data we have at this point in the race. Stay tuned for a legal breakdown of the Supreme Court’s latest cert grants related to deer jacking, the hot pursuit doctrine, asylum seekers, and the southern border wall.

Show Notes:

-Join The Dispatch for a post-election gathering featuring Congressional leadership, top policy and political experts Nov. 9-10: sign up here!

-Nate Cohn for the New York Times and “Are Silent Trump Voters Real, or Just a Myth?” by Jonah Goldberg in The Dispatch.

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That Hunter Biden Story Oct 15, 2020

Show notes

It’s October 15, 2020, and 12.4 percent of the votes that were cast in the 2016 election have already been cast this election cycle. Sarah and David try to discern through the tea leaves what this means for voter turnout this year. “There’s two different schools of thought here,” Sarah says. “One is that we’re on pace to have record turnout and one is that we’re simply banking Election Day votes early this time.” On today’s episode, our podcast hosts also discuss the journalistic, political, legal implications of the New York Post’s Hunter Biden story before breaking down the key ingredients to a successful marriage.

Show Notes:

-Divided We Fall by David French, “Emails reveal how Hunter Biden tried to cash in big on behalf of family with Chinese firm” by Emma Jo-Morris Gabriel Fonrouge in the New York Post, Malwarebytes Inc. v. Enigma Software Group USA, LLC, “Why Only Amy Coney Barrett Gets to Have It All” by Katelyn Beaty in the New York Times.

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Supreme Court Fight Kicks Off Oct 13, 2020

Show notes

The Senate Judiciary Committee kicked off its confirmation hearings for Supreme Court nominee Amy Coney Barrett today with a predictably partisan spin. There were dog whistles from Republicans about religious tests and procedural complaints from Democrats in defense of the Affordable Care Act and against advancing Barrett’s nomination before November 3. But all things considered, the first day of the hearings was relatively uneventful, which may have come as a shock to those who watched the rather lively Brett Kavanaugh hearings in 2018.

Our podcast hosts argue that boredom is a win for the Biden campaign’s Do No Harm strategy, as any sound bite attacking Barrett’s religion or character could depress the Democratic candidate’s current 10-point lead over Trump. David argues that if Democrats want to preserve Biden’s steady lead, they will do everything to avoid even “a single viral moment that puts them in the villain role” during these hearings. Check out our latest episode to hear David and Sarah discuss the Affordable Care Act’s lifespan, partisan judicial elections on the state level, and the Capitol Hill Baptist Church lawsuit.

Show Notes:

-FiveThirtyEight’s presidential polling average, and The Sweep: The Witching Hour.

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