Divided Argument

Latest Episodes:

Proust or Plato Oct 03, 2025

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For the season finale, we're joined by Yale law professor Justin Driver to talk about his new book, "The Fall of Affirmative Action: Race, the Supreme Court, and the Future of Higher Education." We discuss the conservative cases for and against affirmative action, the post-SFFA world of university admissions, the promise and limits of colorblindness, and the effects of admissions policies on students' sense of belonging.

Byzantine Wall Sep 11, 2025

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We extend our record-breaking run with a discussion of the Court's two big recent emergency docket rulings: Noem v. Vasquez Perdomo and NIH v. American Public Health Association.

Bedrock Con Law 101 Aug 29, 2025

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We're joined by Michigan law professor Richard Primus to talk about his new book, "The Oldest Constitutional Question: Enumerated and Federal Power." Richard describes one of the the most widespread beliefs about constitutional law -- that the federal government is one of limited, enumerated powers -- and why he thinks it is actually wrong. Along the way, we discuss methods of constitutional interpretation, the relationship between the official story of the law and legal practice, and wrestle with the surprisingly hard question of how many congressional powers are listed in the Constitution.

Originalism Hulk Aug 09, 2025

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Continuing our long slog through the end-of-Term opinion dump, it's fraud day! We dig into Kousisis v. United States and Thompson v. United States, two interesting federal criminal law puzzles.

The Country of the Future Jul 28, 2025

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We finally circle back to the two big structural constitutional law cases from the last day of the term. First is Kennedy v. Braidwood Management, which upheld the appointment structure of the U.S. Preventative Services Task Force under the Affordable Care Act. Then is FCC v. Consumers' Research, which upheld the universal-service contribution scheme against a pair of non-delegation challenges. Our second-longest episode of the season.

The Thunder Docket Jul 25, 2025

Show notes

Acting with unpredictable alacrity and unpredictable brevity, we break down the Supreme Court's recent interim order in Trump v. Boyle, and discuss what it means for the unitary executive, and for the shadow docket. We also debate the best name for the Court's emergency/interim orders docket.

Snake-Charmer-Specific Jul 19, 2025

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Moving with shockingly unpredictable efficiency, we respond to feedback, debate which of us is more composting-friendly, catch up on the emergency docket, and chip away at our end-of-Term backlog by digging into Diamond Alternative Energy v. EPA.

Didactic and Inculcatory Jul 08, 2025

Show notes

We look at the final orders list before summer break, and then continue to work through last month's opinions, this time with an extended analysis of two decisions about children and culture wars -- Mahmoud v. Taylor (religious objections to LGBTQ+-inclusive books) and Free Speech Coalition v. Paxton (age verification for accessing online pornography).

Schrödinger's Innocence Right Jul 02, 2025

Show notes

We talk a bit more about Trump v. CASA, revisit the usage of "general," answer some voicemails, and then turn to Gutierrez v. Saenz, a procedural tangle about whether a death row inmate can sue a state prosecutor over access to DNA testing.

Why Are We Here? Jun 27, 2025

Show notes

We celebrate the 100th episode of the podcast with a special cross-over episode with Sarah Isgur at Advisory Opinions! Sarah, Will, and Dan break down today's blockbuster decision in Trump v. CASA, forbidding universal injunctions (and not saying much about birthright citizenship).

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