Advisory Opinions

Latest Episodes:

99 Problems and an Election is One Jul 27, 2020

Show notes

Our esteemed podcast host Sarah Isgur launched her new Dispatch newsletter called “The Sweep” today, in which she broke down the effectiveness of the new presidential campaigns ads. Conclusion? Biden’s new ads are strategically boring to offset his opponent’s predictable unpredictability, whereas Trump’s play up the anarchy of the radical left. As Sarah reminds us, persuasion ads don’t work. This leaves candidates with two options: 1) Run up their existing base in enthusiasm and support, or 2) Get their opponent’s base not to vote.

Justice Roberts trended on Twitter Friday night after joining the four liberal justices in denying a Nevada church’s application for injunctive relief over coronavirus restrictions. Religious liberty lovers sounded the alarm for First Amendment violations. But our podcast hosts are less concerned about this case’s long-term effect on religious liberty case law, given the state’s interest in restricting mass gatherings will soon be subverted to transcendent religious liberty concerns once the pandemic subsides. As David says, “The real enemy is not Justice Roberts, the real enemy is the coronavirus.”

Speaking of Supreme Court drama, Josh Hawley told the Washington Post on Sunday that he won’t support any SCOTUS nominee who does not explicitly acknowledge that Roe v. Wade was wrongly decided: on the record, and before they are nominated. Was this ridiculous fanfare to fuel his base? Our hosts have some thoughts. Sarah and David wrap up the podcast with some revisionist history on a Merrick Garland Supreme Court tenure and some parental advice on how to teach your kids risk tolerance and moral courage.

Show Notes:

-Sarah’s pilot newsletter, The Sweep: “T-Minus 99 Days and Counting …” and Thursday’s French Press, “Dump Trump, but Don’t Burn Down the GOP.”

-Friday’s Supreme Court dissents on Nevada church case.

-“Sen. Hawley lays down new antiabortion marker for Supreme Court nominees,” Josh Hawley’s recent speech on the failures of the conservative legal movement, and Adrian Vermeule’s case for common-good constitutionalism in the Atlantic.

-Supreme Court opinions: NIFLA v. Becerra, Bostock v. Clayton County, Masterpiece Cakeshop v. Colorado Civil Rights Commission , Our Lady of Guadalupe School v. Morrissey Berru, June Medical Services, United States v. Davis.

-The Coddling of the American Mind: How Good Intentions and Bad Ideas Are Setting Up a Generation for Failure by Jonathan Haidt and Greg Lukianoff.

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That Escalated Quickly Jul 23, 2020

Show notes

A federal judge ordered the release of Trump’s former attorney Michael Cohen from prison on Thursday. On July 9, Cohen and his lawyer went into the U.S. Probation Office in Manhattan to transition from furlough to home confinement. But instead Cohen was arrested by three U.S. Marshals and brought back to prison. Why did this happen? David and Sarah explain.

Check out today’s episode to hear our podcasters discuss the presence of federal police in Portland, the defamation lawsuit against MSNBC host Joy Reid, and Trump’s latest executive order excluding illegal aliens from the 2020 census for apportionment purposes. David and Sarah wrap up the episode with a fiery debate over their favorite legal tv shows.

Show Notes:

-Check out Michael Cohen’s brief to the court and David’s latest French Press on the Crisis in Portland.

-Here’s Roslyn la Liberte’s defamation lawsuit against Joy Reid, a photo of the incident, and the Fox News article David mentioned: “MSNBC's Joy Reid walks back comments on conservative David French after bipartisan Twitter beatdown.”

-Trump’s executive order excluding undocumented immigrants from the 2020 census, Clarence Thomas dissent from denial in Cohen v City of Houston, Cohen v City of Houston, see footnote 19 and 20.

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A Supreme Court Odyssey Jul 20, 2020

Show notes

The 2019-2020 Supreme Court term was quite the spectacle: the court canceled its March and April argument sessions, held oral arguments by telephone for the first time in May, and stretched its opinion announcements into July for the first time in many years. The term was packed with several blockbuster cases and ended with an announcement from Justice Ginsburg about a pancreatic cancer recurrence. And in the haze of it all, many Americans are still puzzled by some of the rulings. Our podcast hosts are here to help.

Has the conservative legal movement failed? Will disputes over mail-in ballot counting turn November into a Bush vs. Gore 2.0? And the million-dollar question: What’s up with Chief Justice John Roberts? On today’s episode, David and Sarah are joined by SCOTUSblog’s Amy Howe to field some questions about recent cases and tie a bow on what became a rather unprecedented year for the justices. Tune in for an exclusive look into the origins of SCOTUS Blog and some punditry on the cases that are on the docket for next term.

Before founding SCOTUSblog, Amy Howe argued two cases before the Supreme Court and served as counsel for two dozen merit cases there. She has taught Supreme Court litigation at both Stanford Law and Harvard Law and served as an adjunct professor at Vanderbilt Law School and American University’s Washington College of Law.

Show Notes:

-Amy Howe and Lyell Denniston’s review of the term on the SCOTUStalk podcast.

-Travel ban case, census case, DACA case, Trump v. MazarsandTrump v. Vance. Little Sisters of the Poor, Montana school case, CFPB case, robocall case, June Medical Services, Whole Woman's Health, Masterpiece Cakeshop, Guadalupe, McGirt v. Oklahoma, and Josh Hawley’s speech on the Bostock decision.

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Journey to the Center of the Supreme Court Jul 16, 2020

Show notes

After a momentous term at the Supreme Court, what are we to make of it all? Josh Blackman, associate professor of law at the South Texas College of Law Houston, joins David and Sarah to help us all understand: Roberts' role at the center of the Court, Gorsuch and textualism, and Kagan's growing influence. David, Sarah, and Josh cover it all.

Show Notes:

-Make sure to read Sarah's piece on the Supreme Court term.

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Crimes, Plural Jul 13, 2020

Show notes

With Joe Biden’s popularity rising in battleground states (according to several recent polls), Democratic lobbyists and party officials are urging the presidential candidate to try and win over purple and even conservative-leaning states like Georgia and Texas. But most of his advisors are urging a more conservative path, encouraging him to focus on states he knows he can win. David and Sarah discuss these opposing strategies and offer their insights on what a winning 2020 presidential campaign should keep in mind.

In today’s episode, they also discuss the president’s pardoning power, theological and constitutional arguments related to the death penalty, and Trump’s tweet about re-examining the tax-exempt status of academic institutions that “are about Radical Left Indoctrination, not Education.” They wrap the podcast by responding to a listener’s question about what to include in an intro philosophy course.

Show Notes:

-New York Times piece on warring factions within Biden’s campaign, Fox News poll, University of Texas poll, Dallas Morning News poll, CBS/YouGov poll.

-Death penalty opinion.

-Andrew Kent’s congressional testimony.

-Ex Parte Garland case from 1866.

-Notes on Virginia ratifying convention from Brookings Institution.

-“The Traditional Interpretation of the Pardon Power Is Wrong” Atlantic article by Corey Brettschneider and Jeffrey K. Tulis.

-John Rawls’ A Theory of Justice.

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Not in Oklahoma Anymore Jul 09, 2020

Show notes

The Supreme Court wrapped up its term today with an opinion on what counts as American Indian tribal lands and two related cases about the president’s financial records.

In Gorsuch’s majority opinion in McGirt v. Oklahoma, the court found that Congress’ 19th century promise to give large swaths of Eastern Oklahoma to the Muscogee (Creek) tribe still stands. This means roughly half of Oklahoma—and most of Tulsa—is now an Indian reservation, and that tribal members are not subject to Oklahoma criminal law when they are on tribal lands.

SCOTUS also released blockbuster opinions about whether the president was required to turn over his financial records to Congress and the New York County district attorney’s grand jury. But as Sarah and David point out, most of the news headlines are misinterpreting the court’s decision. The Court sent both cases back to the district court for further arguments, which means Trump won’t be turning over his financial records anytime soon—if he ever does.

Show Notes:

-The Supreme Court's Oklahoma ruling, McGirt v. Oklahoma, and its two rulings on the president's financial records, Trump v. Mazars and Trump v. Vance.

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Little Sisters 2: Vacated and Remanded Jul 09, 2020

Show notes

The Supreme Court has released two more religious liberty rulings into the world. Our Lady of Guadalupe School v. Morrissey Berru ended up being a blow to employment discrimination laws in favor of First Amendment religious liberty concerns. In Little Sisters of the Poor, the Court upheld a regulation allowing employers with religious objections to ignore the Affordable Care Act's birth control mandate.

David and Sarah take a closer look at both cases, and on the battle between religious liberty and gay rights, David shares his theory on the emerging pattern from the Supreme Court.

Show Notes:

-Monmouth poll on Trump’s slim reelection chances.

-Our Lady of Guadalupe School v. Morrissey Berru SCOTUS opinion, Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission case from 2012, Utah compromise, Obergefell v. Hodges, fairness for all law, Masterpiece Cakeshop v. Colorado Civil Rights Commission, Bostock v. Clayton County.

-Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania ruling.

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Dial S for Severability Jul 07, 2020

Show notes

As we near the end of another Supreme Court term, speculation abounds over a Court retirement. Would the resulting nomination battle be more or less contentious than the appointment of Justice Kavanaugh? David and Sarah answer this thought experiment while also touching on the implications this scenario would have on the 2020 election. They also break down rulings on robocalls and faithless electors.

When and how can you constitutionally defend yourself? The question comes after a gun-toting St. Louis couple made a show of force against Black Lives Matter protesters. On a more lighthearted note, David concludes the podcast by interviewing Sarah on her career path and what landed her at The Dispatch.

Show Notes:

-Check out the Supreme Court’s rulings in the robocall case (Barr v. American Association of Political Consultants, Inc.) and the faithless electors case (Chiafalo v. Washington).

-Click here for a video of the Brooks Brothers militia v. BLM protesters standoff and be sure to read Andrew Egger’s interview with Stephen Mutowski in The Dispatch for an in-depth legal analysis of the incident. Be sure to check out David’sWashington Post 2018 piece on stand your ground laws.

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Supreme Court Did What? Jul 03, 2020

Show notes

The Supreme Court denies cert to an abortion case, grants cert to a case over Mueller's secret evidence, and the Biden and Trump campaigns are lawyering up for 2020's final act. David and Sarah have thoughts.

Show Notes:

-Declan’s Dispatch profile on Tim Scott

-Hill v. Colorado

-June Medical Services v. Russo

-Masterpiece Cakeshop Ltd. v. Colorado Civil Rights Commission

-Arlene’s Flowers Inc. v. Washington

-Whole Woman's Health v. Hellerstedt

-Box v. Planned Parenthood of Indiana and Kentucky, Inc.

-6E law on grand juries

-“Biden pulls together hundreds of lawyers as a bulwark against election trickery”

-“GOP recruits army of poll watchers to fight voter fraud no one can prove exists”

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Whatever Happened to Baby Blaine? Jul 01, 2020

Show notes

Espinoza is finally here, and David and Sarah are here for a proper deep dive into the Supreme Court's decision. Plus their reflections on the legal and political implications of the court's June Medical ruling.

Show Notes:

-Supreme Court's Espinoza ruling

-Conservative groups see abortion ruling as catalyst for reelecting Trump

-The Chief Justices Battle over the Removal Power

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