Divided Argument

Latest Episodes:

Alcoholic Originalism Jun 26, 2026

Show notes

The big opinions are starting to drop, and we're doing our best to keep pace. We first discuss Landor v. Louisiana Department of Corrections, which concerns religious liberty, the scope of Congress's power to create remedies against individuals under the Spending Clause, and whether there's any redress if government officials literally throw your rights into a trash can. We then turn to United States v. Hemani, where the Court found that a federal law barring gun possession by unlawful drug users violated the Second Amendment and revealed that some of the Justices are surprisingly open-minded about marijuana's role in American society.

Key Topics

[00:07:07] - Landor v. Louisiana Department of Corrections
[00:08:02] - The facts of Landor’s case and the prison’s decision to ignore prior religious-hair protections
[00:10:52] - RFRA, RLUIPA, and the path from Employment Division v. Smith to modern religious-liberty litigation
[00:14:54] - The Spending Clause theory behind federal funding conditions and why the remedy question matters
[00:19:54] - The majority’s reasoning: why money-damages suits against officials were held unconstitutional here
[00:21:33] - Sabri, the Necessary and Proper Clause, and the debate over third-party liability
[00:26:04] - The parade of horribles: transgender sports, vaccines, and other funding-condition hypotheticals
[00:33:03] - The constitutional background: “general welfare,” the spending clause, and the comma-versus-semicolon debate
[00:38:49] - Why the Court granted the case and whether the facts pushed the legal outcome
[00:42:13] - Hemani and the federal statute banning gun possession by unlawful drug users
[00:44:05] - Historical analogies, habitual drunkards, and how Bruen and Rahimi are functioning together
[00:47:17] - Discussion of the Court’s analogical method and its practical limits in lower courts
[00:54:26] - Justice Thomas’s concurrence on jurisdictional hooks after Lopez
[00:55:31] - Justice Jackson’s concurrence on Bruen and Justice Alito’s surprising marijuana comparison
[00:57:51] - The real-world use of marijuana versus alcohol at the founding, and why the analogy is controversial

Relevant Links

Divided Argument: https://www.dividedargument.com/
Podcast merchandise: https://store.dividedargument.com/
Podcast commentary and blog: https://blog.dividedargument.com/
RLUIPA overview (Cornell LII): https://www.law.cornell.edu/wex/rluipa
RFRA overview (Cornell LII): https://www.law.cornell.edu/wex/religious_freedom_restoration_act
District of Columbia v. Heller (Cornell LII): https://www.law.cornell.edu/supremecourt/text/554/570
New York State Rifle & Pistol Association v. Bruen (Cornell LII): https://www.law.cornell.edu/supremecourt/text/597/1
United States v. Rahimi (Cornell LII): https://www.law.cornell.edu/supremecourt/text/602/230
South Dakota v. Dole (Cornell LII): https://www.law.cornell.edu/supremecourt/text/483/203
Sabri v. United States (Cornell LII): https://www.law.cornell.edu/supremecourt/text/541/600

Watch Snobs Jun 14, 2026

Show notes

We open with the usual grab bag—the "foot fault" pun buried in a Justice Thomas opinion, reading Justice Alito's clerk-hiring tea leaves, and a detour into the metaphysics of conditional resignations and whether you can be confirmed to a vacancy that doesn't exist yet. Then to the merits: Keathley v. Buddy Ayers Construction, a 9-0 judicial-estoppel case that lets us ask where the doctrine even came from (Tennessee, 1857, apparently), and Abouammo v. United States, the venue case about a former Twitter employee who fabricated a document while the FBI sat downstairs. The venue talk wanders, happily, into the Yellowstone "zone of death," a C.J. Box thriller, Jim Comey's second career as a novelist, and an extended appraisal of watch brands.

Highlights

[00:00:53] - Podcast update, SCOTUSblog partnership, and listener reviews

[00:01:49] - Justice Thomas's "foot fault" joke

[00:03:48] - Sam Bray citation discussion (Aldridge v. Regions Bank)

[00:05:02] - Justice Alito retirement speculation and clerk rumors

[00:17:23] - Vacation schedule and the upcoming opinion gap

[00:21:03] - June 11 merits decisions overview

[00:23:17] - Landor and the still-outstanding big case of the term

[00:27:49] - Justice Sotomayor's statement respecting denial of cert on ineffective assistance

[00:29:53] - Keathley v. Buddy Ayers Construction: bankruptcy and judicial estoppel

[00:36:10] - The Fifth Circuit's rule on inadvertence and mistake

[00:38:47] - Justice Jackson's majority opinion

[00:40:29] - Justice Thomas's concurrence and the history of judicial estoppel

[00:48:42] - Justice Sotomayor's concurrence and totality-of-the-circumstances approach

[00:52:11] - Abouammo v. United States: Article III venue and criminal prosecution location

[00:55:09] - Yellowstone's "zone of death" and vicinage problems

[00:59:21] - The fake invoice, FBI investigation, and venue dispute

[01:06:33] - Venue, personal jurisdiction, and extraterritorial conduct

[01:10:22] - Statutory venue rules and unresolved constitutional questions

[01:12:30] - Reprosecution after a venue reversal and double jeopardy

Impregnable Citadel of Technicality Jun 08, 2026

Show notes

After puzzling over an interesting follow-up question about Pitchford v. Cain, we unpack a summary vacatur in Whitton v. Dixon. We then spend a while breaking down the latest developments in Allen v. Milligan line, in which we discuss the future of the Purcell principle and whether the Court should be unusually attentive to public appearances in election cases. We finish with Sripetch v. Jarkesy, where the Court rejects a requirement that the SEC prove victims suffered pecuniary loss before seeking disgorgement, with specific attention to the interesting Seventh Amendment question raised in Justice Thomas's concurrence.

Key Topics

[00:03:23] - Listener question on Pitchford v. Cain, AEDPA, and procedural default
[00:08:12] - Whitten v. Dixon: summary vacatur in a capital case and harmless-error review
[00:12:44] - Justice Thomas’s dissent and the critique of selective error correction
[00:22:46] - Allen v. Milligan / Alabama redistricting and the stay of the lower court injunction
[00:27:24] - The Court’s restatement of Milligan and discussion of “colorblind constitution” language
[00:32:30] - Purcell, election timing, and whether the doctrine is really about federal court intervention
[00:41:20] - Merits and legitimacy concerns in election-law cases
[00:53:27] - SEC v. Sripetch and the disgorgement remedy
[00:58:42] - Justice Thomas’s concurrence on disgorgement, equity, and the Seventh Amendment
[01:03:36] - Broader implications for administrative law and jury-trial rights

Smooth Stone in the River Jun 01, 2026

Show notes

The Court has been busy, and we somehow manage to cover a number of developments with unpredictable efficiency. We talk about the Court's latest summary reversal on the "party presentation principle"; Justice Kavanaugh's vindication of his law journal student note in Pitchford v. Cain; Rutherford and Fernandez, two related cases about the intersection of compassionate release and habeas; and the DIG in Hamm v. Smith, a case about capital punishment and intellectual disability. Along the way, we also get into backlash against a certain SCOTUS advocate's TED talk and further Alabama redistricting fallout.

Key Topics

[00:02:25] - The infamous tweet and TED talk
[00:14:56] - Alabama redistricting developments
[00:19:07] - Margolin v. National Association of Immigration Judges and the Court’s renewed emphasis on the party presentation principle
[00:29:02] - Pitchford v. Cain and Batson
[00:35:56] - Justice Kavanaugh’s Yale Law Journal note on Batson procedure and how it connects to the case
[00:40:40] - Fernandez v. United States and Rutherford v. United States: compassionate release, retroactivity, and innocence claims
[01:03:34] - Hamm v. Smith, the post-argument DIG, and the future of the Atkins rule

Relevant Links

SCOTUSblog: https://www.scotusblog.com/
Divided Argument website: https://www.dividedargument.com/
Divided Argument blog: https://blog.dividedargument.com/
Divided Argument store: https://store.dividedargument.com/
Ethan Lowen's article on interstate extradition: https://wlr.law.wisc.edu/wp-content/uploads/sites/1263/2026/04/4-Lowens-–-Camera-ready.pdf

Ninja Court Packing May 19, 2026

Show notes

We are joined by guest co-host Professor Pam Karlan at the American Law Institute Annual Meeting for the last live show of season 6. We work through a busy stretch of the interim docket: the Alabama GVR in Allen v. Caster and what Callais has done to Section 2; the denied stay in the Virginia redistricting fight, Scott v. McDougle; and the mifepristone cases, Danco and GenBioPro v. Louisiana, where Thomas rides the Comstock Act alone and Alito takes it personally. Then a turn to executive power and the term's looming merits decisions—birthright citizenship, the Federal Reserve, Humphrey's Executor—before audience questions on state voting rights acts, fixing the single-member-district statute, and whether you can wish yourself more wishes.

Key Topics

[00:00:11] - Live show introduction at the American Law Institute with guest host Pam Karlan
[00:02:30] - Fallout from Louisiana v. Callais and the Alabama redistricting order
[00:06:26] - Purcell principle, mid-election rule changes, and discriminatory intent findings
[00:17:32] - Virginia’s redistricting amendment case and why the Supreme Court declined to intervene
[00:32:41] - Danco Laboratories / GenBioPro and the mifepristone stay
[00:39:56] - Justice Thomas, the Comstock Act, and Justice Alito’s dissent
[00:47:15] - Big-picture trends in executive power and the Court’s posture toward the administration
[01:00:54] - Audience Q&A on Congress, district design, and gerrymandering reform
[01:05:47] - The President’s public attacks on the Court and possible effects on future cases

Majordoma May 07, 2026

Show notes

The Court’s latest Voting Rights Act decision, Louisiana v. Callais, narrows Section 2 in a way that could reshape redistricting, weaken majority-minority districts, and intensify the fight over how race and partisanship interact in elections. We unpack what the Court said, what it quietly overruled, and why the reasoning matters far beyond Louisiana.

We walk through the statutory text, the long-running collision between the Voting Rights Act and the Court’s racial gerrymandering cases, and the practical consequences for future election-law litigation. Along the way, we debate whether this is best understood as a textual decision, a constitutional avoidance move, or a major shift in how the Court treats political power and racial representation.

The conversation also covers the Court’s emergency procedural move after judgment, Justice Kagan’s forceful dissent, and the broader question of whether the decision is likely to help one party more than the other in the short run. The result is a sharp, candid look at one of the term’s most consequential rulings

Key Topics

[00:00:20] - Introduction to the episode and SCOTUS Blog partnership update
[00:03:06] - Brief Supreme Court news: mifepristone litigation and shadow-docket timing
[00:05:20] - Louisiana v. Callais and why the case is a major Voting Rights Act decision
[00:11:35] - Voting Rights Act history: Section 2, Section 5, and Shelby County
[00:13:39] - The collision course between racial gerrymandering doctrine and Section 2
[00:16:17] - Allen v. Milligan and how the Court shifted course
[00:21:21] - Procedural background of the Louisiana map challenge
[00:23:02] - Is the decision constitutional, statutory, or both?
[00:24:28] - Section 2’s text and the 1982 amendments
[00:29:14] - The Court’s reading of “less opportunity” and the role of partisanship
[00:41:46] - How the majority treats Allen v. Milligan and prior precedent
[00:43:06] - Constitutional avoidance and the Section 5 enforcement-power question
[00:46:28] - The Court’s “updated” Gingles framework and why that matters
[00:52:29] - Likely effects on majority-minority districts and partisan gerrymandering
[00:54:25] - Justice Kagan’s dissent and the Court’s broader democracy critique
[00:56:04] - The post-judgment timing dispute and Justice Jackson’s separate dissent
[00:58:55] - Final assessment of the decision and its likely consequences

Relevant Links

Rick Pildes's post on the decision: https://democracyproject.org/posts/supreme-court%E2%80%99s-gutting-of-voting-provision-was-long-time-coming

Travis Crum Amicus Brief: https://www.supremecourt.gov/DocketPDF/24/24-109/373625/20250903201226237_2025.09.03%20Callais%20Crum%20Amicus%20Brief.pdf

Even Eve-ier Apr 29, 2026

Show notes

A deep dive into the latest Supreme Court news, a couple of unusual shadow docket rulings, and a cross-ideological merits decision that raises classic questions about federal power, preemption, and how much weight lower courts should give to context.

We open with reporting on leaked internal Supreme Court memoranda related to the 2016 stay of the Clean Power Plan, including what the documents may reveal, why the leak itself is so unusual, and whether timing and incomplete records change the story. We also discuss Justice Sotomayor’s public apology after comments about Justice Kavanaugh, and what that moment says about judicial professionalism and public exchange.

From there, we turn to some shadow docket happenings: a one-line summary reversal in a Texas redistricting case and a Fourth Amendment summary reversal out of the D.C. courts. Finally, we move to the merits docket and consider Hencely v. Fluor Corporation (24-924), a case involving federal contractor preemption and a terrorist attack in Afghanistan, where the Court narrows a (possibly infamous) Scalia opinion.

Key Topics

[00:05:32] - NYT leak of Supreme Court memoranda on the Clean Power Plan stay
[00:10:13] - Whether document leaks are better than source-based leaks
[00:21:30] - Justice Sotomayor’s remarks about Justice Kavanaugh and her apology
[00:27:27] - Summary reversal in Abbott v. LULAC and Texas redistricting
[00:35:18] - D.C. Fourth Amendment summary reversal and reasonable suspicion
[00:47:04] - Hencely v. Fluor Corp.: military contractor liability and preemption
[00:52:48] - Little v. Barreme, general law, and the limits of contractor immunity

Backup backup backup backup argument Apr 06, 2026

Show notes

We recap and reflect on the oral arguments in Trump v. Barbara (the birthright citizenship case) and then analyze the Court's recent decision in Chiles v. Salazar, about the First Amendment limits on Colorado's conversion therapy ban. We also confront the taboo question: Are judicial opinions too long?

Jezebel Shouting Apr 02, 2026

Show notes

We're live at WashU Law's Admitted Students Day! After catching up on some shadow docket activity, we dig into Olivier v. City of Brandon, the Court's unanimous March 2026 decision by Justice Kagan. A Mississippi street preacher pleads no-contest to violating an amphitheater protest-zone ordinance, pays his $304 fine, then sues under §1983 to stop future enforcement — and the Fifth Circuit says the puzzling Heck v. Humphrey rule bars the whole thing. We work through why Heck is stranger than it first appears, what the Court got right in resolving the circuit split, and what the decision reveals about the ongoing mess at the intersection of §1983 and habeas.

A Subversive Mission Mar 11, 2026

Show notes

We announce an exciting new partnership with SCOTUSblog and introduce the show to new listeners. We then return to the mysterious origins of the Chief Justice's "no, no, a thousand times no," debate the Court's new policy designed to maintain secrecy, and then take a close look at Galette v. New Jersey Transit Corporation, a sovereign immunity decision in which the Court may, or may not, have paid attention to Will's amicus brief.

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