Divided Argument

Latest Episodes:

Pale Fire May 24, 2023

Show notes

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.

Break the Fourth Wall May 18, 2023

Show notes

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.

Provocative Subtitle May 16, 2023

Show notes

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.

Creator of the Stars of Night May 06, 2023

Show notes

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.

Best Suits Apr 24, 2023

Show notes

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.

A Chanting of Morrison v. Olson Apr 03, 2023

Show notes

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.

Mr. Jurisdiction Mar 06, 2023

Show notes

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).

Least Incorrect Feb 18, 2023

Show notes

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.

Marching Orders Feb 11, 2023

Show notes

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.

Soft Target Jan 21, 2023

Show notes

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!

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