Divided Argument

It's the last opinion day of the term, and the big one landed: Trump v. Barbara, the birthright-citizenship case. We read the majority as the rare easy case and spend most of the episode on why the four dissents each end up somewhere different — and trying to figure out exactly where they actually land. Along the way: a bogus Nina Totenberg story, a Landor GVR that might quietly unsettle a chunk of Spending Clause criminal law, and whether the professors who defended the order deserve the "legal scholarship police." Highlights[00:00:27] The bogus Nina Totenberg wire story that Justice Alito was retiring — "Fake news, Dan." [00:02:03] The Justice Alito / Justice Sotomayor bench-dissent dust-up from the immigration hand-downs [00:03:11] Last opinion day — 3 opinions, 4 cases; NRSC v. FEC and West Virginia v. B.P.J. / Little v. Hecox flagged for later [00:05:27] A significant new grant teed up on possession of semi-automatic rifles (AR-15s) [00:06:43] A GVR in light of Landor in a federal arson case, and the narrow-vs-broad theory of what a GVR means [00:09:34] Whether Landor's narrowing of Sabri could upend a swath of Spending Clause federal criminal law [00:10:58] Why RLUIPA reaches prisoners — Chuck Colson's post-Watergate lobbying (courtesy of a listener, Emma Kaufman) [00:12:55] Trump v. Barbara — Trump loses, but closer than predicted: "Trump beats the spread" [00:15:25] Should professors who defended the order be punished? — "we don't need legal scholarship police" [00:19:58] The majority's walk: common law → Dred Scott → the 14th Amendment → Wong Kim Ark [00:26:21] Wong Kim Ark as linchpin, and whether its "domiciled here" language was doing any work [00:36:48] Justice Kavanaugh concurs in the judgment on the statute, then dispatches the constitutional question breezily [00:42:05] New states, Hawaii, and Living Originalism — when may you add new exceptions? "Weird islands you can't drive to" [00:48:33] The 91-page Justice Thomas dissent, the facial-challenge pivot, and the reserved domicile question [00:56:40] Justice Alito's Civil Rights Act / "not subject to any foreign power" reading, and the statelessness caveat [01:00:11] Justice Gorsuch's 3-page solo dissent: if not domiciled here, then where? — a jab Thomas may not share [01:05:33] Justice Jackson's anti-subordination concurrence, and whether it lands against Thomas [01:10:24] "I feel proud to be an American, Dan" — hail to the Chief, and to Justice Barrett; sign-off Relevant linksCases Trump v. Barbara — slip opinion Landor v. Louisiana Dept. of Corrections — slip opinion Sabri v. United States (2004) United States v. Wong Kim Ark (1898) NRSC v. FEC — slip opinion West Virginia v. B.P.J. / Little v. Hecox — slip opinion Commentary & articles SCOTUSblog opinion recap: "Supreme Court strikes down Trump's order ending birthright citizenship" Ilan Wurman & Randy Barnett's NYT essay defending the order (Minnesota Law summary)

The big opinions are coming fast and furious as the Term ends. This episode, we take on two related cases from the penultimate opinion drop day: Trump v. Slaughter, which overrules Humphrey's Executor and clears away for-cause protection for the independent agencies, alongside its interim-docket companion Trump v. Cook, where the very same logic somehow spares the Federal Reserve. The big question: if the President can fire an FTC commissioner at will, what actually makes the Fed different — is "history" doing the work, or is the Court just saving the bond markets? Along the way: Heidegger's "always already," whether the metaphor of a living tree is consistent with originalism, a Goldilocks definition of "cause," the Chief leaning on his own unworkable precedents, the Ex parte Young mystery that keeps escaping the Court's grasp, and the first appearance of "the interim docket" in the U.S. Reports. Highlights [00:00:18] The penultimate opinion day — four down, four to go [00:00:50] The last-day pileup, and the McCain-Feingold campaign-finance case still pending [00:03:25] A confession: staircase wit, and the metaphor Will wishes he'd used [00:04:27] The living tree as an originalist — and the petrified-tree rejoinder [00:06:01] The new custom-cover workflow, and what Claude still isn't allowed to write [00:07:00] The day's four opinions: Cook, Slaughter, Chatrie, and Watson v. RNC [00:09:50] Is the Court strategic about opinion timing? A walk back through OT21's last days [00:13:55] Slaughter before Cook: the general rule before the exception [00:15:08] "Humphrey's Executor has always already been overruled" — by way of continental philosophy [00:17:36] Slaughter: the question, Humphrey's Executor, and the road from Morrison v. Olson through Seila Law [00:22:12] Why presidents mostly haven't tested removal — and whether this shifts the equilibrium [00:25:29] Walking the opinion: Roberts for the Court, the Thomas non-join, a Sotomayor (not Kagan) dissent [00:27:30] The Decision of 1789, the history fight, and the "good arguments on both sides" that made Will a "witless hack" [00:33:19] Part III-B's reserved questions and the Gorsuch concurrence's non-delegation wish list [00:43:06] Cook: procedurally on the interim docket, and why it comes out the other way [00:46:00] The Chief's history tour — the Bank of North America, Hamilton, and an accomplished yachtsman [00:49:00] The Fed as the "third bank"; Bamzai & Nielson and the monetary-vs-regulatory problem [00:50:25] The chain of moves: reviewability, a Goldilocks "cause," and the equity remedy [00:53:11] Footnote 2 and the Ex parte Young mystery — Armstrong, CASA, and Bivens [00:58:41] Process not received: a Truth Social post isn't enough, and what Cook gets next [01:00:54] "The interim docket" enters the U.S. Reports [01:01:52] The separate writings: Kavanaugh (save the economy), Jackson (equities), Thomas's solo dissent [01:04:45] Alito-Gorsuch and Barrett: hard questions, and skepticism of a carve-out defended "for secret reasons" [01:11:26] Sign-off: if there's a long delay before the next episode, it's because we've lost removal protection Relevant links Cases Trump v. Slaughter — slip opinion · SCOTUSblog analysis Trump v. Cook — slip opinion · SCOTUSblog analysis Chatrie v. United States — slip opinion · SCOTUSblog analysis Watson v. Republican National Committee — slip opinion · SCOTUSblog analysis Commentary & articles Aditya Bamzai & Aaron L. Nielson, "Article II and the Federal Reserve" — the leading qualified defense of Fed independence (Cornell L. Rev.) Samuel L. Bray, "Remedies in the Officer Removal Cases" — relied on by the Cook majority on the equity-remedy question (Journal of Legal Analysis); draft/announcement on the Divided Argument blog William Baude, "How To Save The Federal Reserve" — Will's prior take on preserving Fed independence under the removal cases

We're in triage mode as the Court clears its end-of-term backlog. We run through the week's opinion dump before focusing on two cases that look unrelated but turn on the same question: when may a state rewrite background property law to limit a constitutional right? In Wolford v. Lopez, the Court strikes down Hawaii's rule requiring a property owner's express consent before a firearm may be carried onto otherwise-public premises. Then to Pung v. Isabella County, a takings case asking whether a homeowner whose property is sold for back taxes is owed only the sale proceeds or full fair-market value. Along the way: a theory about a Landor v. Louisiana flip, the week's run of 6-3 conservative wins, and a short detour into the perils of teaching Federal Courts. Key Topics[00:00:00] - Triage mode: recording June 25 amid the end-of-term opinion dump[00:01:29] - What's still outstanding — and the campaign-finance case's standing problem[00:03:56] - The Landor "flip" theory: did Justice Jackson lose the majority to Justice Gorsuch?[00:06:40] - Thursday's decisions: Monsanto v. Durnell (FIFRA), two immigration wins, Wolford v. Lopez[00:08:58] - Counting the week's seven 6-3 conservative wins; the Hemani surprise[00:12:57] - The throughline: when may a state redefine property to evade a constitutional right?[00:18:35] - Wolford v. Lopez: Hawaii's "express consent" gun rule after Bruen[00:20:42] - The Bruen framework — step one vs. step two, and the free-speech analogy[00:26:57] - The change vs. the outlier: uniformity and Hawaii's sensitive-places list[00:30:49] - Alito's historical analogues: poaching laws and the Black Codes[00:33:34] - Jackson's dissent: race, Equal Protection, and how non-mechanical Bruen really is[00:38:59] - Caetano, the Ramos v. Louisiana callback, and Alito on racist origins[00:41:21] - Barrett's concurrence, Kagan's narrower path, and the rejected "spirit of aloha"[00:48:23] - Pung v. Isabella County: tax sales, takings, and "just compensation"[00:51:45] - Thomas's historical turn on tax-sale rules, and the fairness backstop[00:55:45] - Sign-off Relevant LinksSupreme Court of the United States: https://www.supremecourt.gov/ Divided Argument podcast: https://www.dividedargument.com/ Transcripts: https://www.dividedargument.com/transcripts Commentary blog: https://blog.dividedargument.com/ Merchandise: https://store.dividedargument.com/ New York State Rifle & Pistol Ass’n v. Bruen: https://www.supremecourt.gov/opinions/21pdf/20-843_7j80.pdf Tyler v. Hennepin County: https://www.supremecourt.gov/opinions/22pdf/22-166_q86b.pdf Ramos v. Louisiana: https://www.supremecourt.gov/opinions/19pdf/18-5924_j4el.pdf

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 LinksDivided 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

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

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

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 LinksSCOTUSblog: 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

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

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 LinksRick 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

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

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?

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.

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.  

It's our live show at the University of Chicago! Hosted by the University of Chicago Federalist Society, we discuss this week's big shadow-docket rulings about gender transitions in California Schools (Mirabelli v. Bonta) and redistricting in New York (Malliotakis v. Williams), and also break down the recent merits decision about the right to counsel when a defendant is testifying (Villareal v. Texas).

With unpredictable timeliness, we have a quasi-emergency episode on the 170-page tariffs decision, Learning Resources, Inc. v. Trump. Come for the in-the-weeds legal analysis, stay for the deep dive into the origins of the phrase "no, no, a thousand times no." 

We're back for another live show at the Northwestern Pritzker School of Law, hosted by the Northwestern Federalist Society! We discuss the term's two Second Amendment arguments -- first recapping the oral argument in Wolford v. Lopez, featuring Hawaii's law about getting consent to bear arms on private property; and then previewing the oral argument in United States v. Hemani, about the ban on possession of guns by drug users.

With shocking and uncharacteristic efficiency, we manage to discuss three merits opinions and one orders list dissent in only 47 minutes. Specifically, we revisit Coney Island Auto Parts Unlimited, Inc. v. Burton (time limits for moving to vacate void judgments) and break down Berk v. Choy (an Erie doctrine puzzle), and Ellingburg v. United States (criminal restitution and the Ex Post Facto Clause), while also managing to discuss Justice Jackson's broadside against the Court's practice of "martinization." 

We didn't get the tariffs decision this week, but we discuss two of the opinions we did get -- Bost v. Illinois Board of Elections, a decision about standing and election law, and Case v. Montana, a rare Fourth Amendment case -- in a remarkably efficient episode (after a brief detour into Grok's jurisprudence and the announcement of a major gift to the Constitutional Law Institute).

We're back with the first episode of the new year, breaking down the interim docket opinion/order in Trump v. Illinois, the national guard case, after first warming up with new Erie scholarship, state criminal jurisdiction over federal officers, and some recent online discourse.

We're back to break down a month's worth of shadow docket activity -- three recent summary reversals, plus the stay in the Texas gerrymandering case (Abbott v. LULAC). We also discuss the launch of the SCOTUSblog "interim docket blog."

Will and Dan record a rare live show in an unusual venue: the Salamander Resort in Middleburg, Virginia, at the annual attorney retreat for trial boutique Wilkinson Stekloff. Dan teaches Will some of the new lingo he's learned from the firm's trial experts before a deep dive into civil procedure. First, we dig into the recently argued Coney Island Auto Parts Unlimited v. Burton, which presents a seemingly easy legal question and harder questions about SCOTUS advocacy and ethics. Then we look back at last Term's LabCorp v. Davis, which the Court DIG'd but which raises some fundamental questions about class action litigation that the Court is likely to revisit down the road.

After a predictably unpredictable set of detours through Latin grammar, parenting philosophies, and 90s video games, we catch up on the latest shadow (interim?) docket activity and recap the oral argument in the tariffs cases. 

Divided Argument is in its sixth season! Our first episode of the term focuses, of course, on the latest developments on the shadow docket. These include several grants of interim relief to the Trump administration, as well as some dissents from the denial of certiorari. But first, an update on Dan's travel schedule and ChatGPT usage, and an important correction to our previous episode.

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.

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.

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.

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. 

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.

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.

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.

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).

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.

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).

We're joined by a special guest, Harvard Law Professor Stephen Sachs, to talk about Fuld v. Palestine Liberation Organization. Fuld is last week's big personal jurisdiction case, where the Court upheld federal laws extending jurisdiction to the PLO and PA for antiterrorism lawsuits. The author of several important articles on these issues and an amicus brief in Fuld, Steve gives us his take on the relationship between personal jurisdiction, international law and due process, and helps us evaluate the majority opinion and Justice Thomas's concurrence.

After some feedback and further thoughts on our Skrmetti episode and a shocking revelation about "LabCorp," we circle back to an earlier June opinion about religious distinctions, Catholic Charities Bureau v. Wisconsin Labor & Industry Review Commission. Dan keeps Will up past his bedtime.

Without much introductory ado, we interrupt Will's vacation to give you a thorough breakdown of United States v. Skrmetti, the trans health care case that is one of the most-watched cases of the term.

We start out by debating who's responsible for Dan's audio snafus last time before digging into a various odds and ends, such as the Chief Justice's toast at the Supreme Court Historical Society dinner and President Trump's renunciation of Leonard Leo and the Federalist Society. We then try to make sense of the DIG in Labcorp v. Davis and see whether our predictions about Smith & Wesson Brands, Inc. v. Estados Unidos Mexicanos panned out. 

With apologies for Dan's horrendous audio quality: we catch up on the latest emergency-docket happenings and debate whether Trump v. Wilcox is a big deal or small potatoes. We also catch up on listener feedback and, for the first time in a long time, play a couple of messages received on our voicemail line (314-649-3790 for anyone else who wants to chime in). 

We're joined by NYU law professor Rachel Barkow to talk about her new book Justice Abandoned: How the Supreme Court Ignored the Constitution and Enabled Mass Incarceration. Listen to learn about five (or six) Supreme Court cases that arguably ignored the original meaning of the Constitution to enable our current policing and punishment practices. Along the way, a hypothetical genie offers Professor Barkow a very tough tradeoff.

We're back with another unexpectedly short and timely episode, focusing on last Friday's emergency docket decision in AARP v. Trump. We also spend a few minutes on a few other orders: the administration's partial victory in Noem v. National TPS Alliance and a puzzling mass recusal. 

We reflect on the death of Justice Souter and sort out some loose ends from the last episode. We then dig into the Court's only opinion from Thursday, Barnes v. Felix, which we previewed with friend of the show Orin Kerr back in February at Stanford. Along the way we make a short detour into generative AI and its potential for SCOTUS research. Most importantly, we react to the oral argument in Trump v. Casa, the shadow docket case that's about (or, isn't about?) President Trump's birthright citizenship executive order. 

The shadow docket strikes once again! We break down the Court's unusual immigration ruling in AARP v. Trump (no, not that AARP!), and then briefly discuss the much-heralded ERISA case (Cunningham v. Cornell). But first we discuss some blog news, some SCOTUS news, and some SCOTUSblog news. 

We have another short administrative law episode, analyzing the Supreme Court's decision about e-cigarettes in FDA v. Wages and White Lion. But first we field some listener pushback about facial challenges in administrative law, and discuss the shadow docket ruling, and ensuing fallout, in Noem v. Abrego Garcia.

Thanks to the Harvard Law Review, we recorded a live episode in the famed Austin Hall at Harvard Law School. While we hoped to discuss merits cases, the Court gave us far too much shadow docket activity to break down. 

We are back with an unexpectedly concise episode focused on last week's "ghost guns" decision, Bondi v. Vanderstok. But first we talk about the calls to reconsider the Court's Confrontation Clause doctrine and also return to the number of votes needed to call for the views of the Solicitor General (CVSG).

We announce the new Divided Argument blog! After discussing the blog and some listener feedback, we break down two recent 5-4 decisions -- the shadow docket fight over USAID funding in Department of State v. Aids Vaccine Advocacy Coalition and the Section 1983 exhaustion decision in Williams v. Reed (or should we say Rev. Stat. 1979?).

Back in the studio after a couple of fun live shows, we discover that the Court has finally given us too much to talk about. We discuss the new Trump Administration's first shadow docket adventure, a number of interesting solo opinions from the orders list, the decline in summary reversals, and the overall quality of oral advocacy before the Court. We then take a deep dive into the Court's opinion in Glossip v. Oklahoma, a capital case with many factual, jurisdictional, and remedial complexities. 

Divided Argument is live from the Northwestern Pritzker School of Law, hosted by the Northwestern Federalist Society! We discuss whether we are in the middle of a constitutional crisis, the coming demise of Humphrey's Executor, and various shadow docket developments. Then we preview the issues at stake in next month's oral argument about firearms liability, Smith & Wesson v. Estados Unidos Mexicanos.

Divided Argument is live from Stanford Law School, hosted by the Stanford Constitutional Law Center! We review an unusual summary reversal in a capital habeas case and the latest universal injunction developments, and discuss some of the implications of the change in administration. After that, we are joined by a very special guest to discuss the recent arguments in the excessive force case of Barnes v. Felix.

In unpredictable fashion, we record a shockingly timely episode to reflect on the Court's hasty per curiam in the TikTok case. Along the way, we catch up on the shadow docket happenings, manage not to get derailed by an ethics discussion, discover a surprising opinion revision in real time, and break down the Court's opinion in Royal Canin U. S. A. v. Wullschleger. Most importantly, Dan—with help from loyal listeners—collects on a bet Will unwisely made years ago. 

After an unpredictably long hiatus, we're back to break down what we missed. We debate the off-the-rails FedSoc panel Dan was on, work through some shadow docket happenings and the Court's two recent DIGs, ponder the implications of the election on the Court, and briefly discuss the first merits opinion of the Term, Bouarfa v. Mayorkas.

After a long hiatus, we're particularly unpredictable with an episode that isn't about the Supreme Court. We're joined by NYU law professor Daryl Levinson to talk about his exciting and important new book on constitutional theory, Law For Leviathan: Constitutional Law, International Law, and the State. Listen to learn why the Supreme Court's constitutional pronouncements on separation of powers might not matter as much as you thought—and along the way you'll find out what might happen to Will if he starts breaking into his colleagues' cars at the University of Chicago parking lot.  Law for Leviathan: https://global.oup.com/academic/product/law-for-leviathan-9780190061593?cc=us&lang=en&

We take a long last look at two more end-of-term cases, where the Court made news with what it did NOT decide: Moyle v. United States (the abortion/EMTALA case), and Moody v. Net Choice (state regulation of social media). But first, a bit of debate about some prominent figures in constitutional history.

Unpredictably, our recent torrent of episodes continues. We take a deep dive into Moore v. United States, which addressed the scope of Congress's constitutional power to tax. 

We continue our breakneck pace and dig into two substantive criminal law opinions: Fischer v. United States and Snyder v. United States. 

We're back just a few days after our last episode to dive in to Harrington v. Purdue Pharma, a 5-4 decision about the power of the bankruptcy system to release claims against third parties.

As the dust settles on the end of the term, we look back to examine two of the Court's criminal procedure cases: Smith v. Arizona (applying the Confrontation Clause to expert testimony) and Diaz v. United States (interpreting Federal Rule of Evidence 704(b)) after a brief discussion of AI, political developments, and judicial robes.

After a vacation-related hiatus, we're back to discuss Loper Bright Enterprises v. Raimondo (overruling Chevron) and Corner Post v. Board of Governors (time limits for challenges to regulations). We try to figure out just how disruptive these decisions will be for the administrative state and somehow manage not to waste half the episode debating Supreme Court ethics.

Will makes Dan interrupt his vacation to talk about the case you've all been clamoring for: Trump v. United States.

We break down SEC v. Jarkesy and City of Grants Pass v. Johnson.

We cut to the chase with extended discussions of two of last week's cases: United States v. Rahimi, which upheld a federal gun law against Second Amendment challenge and produced six concurring and dissenting opinions; and Erlinger v. United States, a case about the jury's role in sentencing that continues a line of cases starting 25 years ago in Apprendi v. New Jersey.

After another discussion of Supreme Court ethics and legitimacy (hopefully our last for a long time), we discuss three of last week's decisions. We cover issues of statutory interpretation in Garland v. Cargill (the bump stock case), of standing in FDA v. Alliance for Hippocratic Medicine (the mifepristone case), and of constitutional remedies in US Trustee v. John Q Hammons (a bankruptcy case).

Unpredictably, we take a new approach and record immediately after the Court drops new opinions. We dig into Alexander v. South Carolina State Conference of the NAACP (voting rights) and NRA v. Vullo (free speech). Before that, we engage with listener feedback and talk about the latest developments in the endless Alito flag saga. 

Continuing our pattern of staying a week behind the Court's latest output, we discuss last week's opinions: CFPB v. Community Financial Services Association (the Appropriations Clause), Harrow v. Department of Defense (jurisdiction and equitable tolling); and Smith v. Spizzirri (arbitration), while also covering the shadow docket order in a Louisiana redistricting case. Before those, we touch on a bunch of topics including Justice Alito's flag display and the degree of existential risk posed by artificial intelligence. 

We follow up on feedback, puzzle over the Court's apparent continued lack of interest in Fourth Amendment cases, and then discuss two of the latest opinions—Culley v. Marshall (civil forfeiture) and Warner Chappell Music, Inc. v. Nealy (copyright). And yes, we know Dan's audio sounds terrible due to a technical snafu, sorry!

After taking some listener questions, we analyze the lengthy shadow docket opinions in Labrador v. Poe, dealing with universal relief, emergency applications, and more. We then tackle two recent merits opinions: Devillier v. Texas (takings) and Muldrow v. St. Louis (Title VII).

After discussing a few pending issues at the Court, we look back to analyze several decisions from last month-- FBI v. Fikre, a mootness case with national security implications, and the shadow docket dispute in one of many cases named United States v. Texas (the SB4 case)-- and then turn to last Friday's more recent decision in Sheetz v. County of El Dorado about the Takings Clause and local land use policies.

After grappling with listener feedback ranging from the acoustic to the typographical, we catch up on last month's decisions in Great Lakes v. Raiders Retreat Realty (admiralty) and McElrath v. Georgia (double jeopardy). We then turn to last week's decisions about public officials on social media, Lindke v. Freed and O'Connor-Ratliff v. Garnier, and then finally to the statutory interpretation decision in Pulsifer v. United States. It's a lot of cases in just over an hour!

We (of course) break down the Court's opinions in Trump v. Anderson, the Section Three case from Colorado. We also discuss the Court's cert. grant on Trump's immunity from criminal prosecution, and several other opinions on the orders list, dealing with rent control, magnet school admissions, and campus speech.

After quick review of an order about admissions at West Point and two new unanimous opinions, we spend almost all of the episode breaking down last week's oral arguments in Trump v. Anderson. What excuse will the Supreme Court use to keep Colorado from disqualifying Trump from the ballot?

After catching up on a few odds and ends, we decide to give the people what they want and discuss Section Three of the Fourteenth Amendment and whether the Supreme Court could possibly declare Donald Trump ineligible for the Presidency. You won't want to miss it. 

We discuss the passing of Justice Sandra Day O'Connor, then turn to two interesting opinions on the shadow docket (in Griffin v. HM Florida and DuPont v. Abbott), and finally break down the Court's first merits opinion of the term in Acheson Hotels v. Laufer, at the intersection of standing and mootness. Will also expresses skepticism about Dan's latest AI habit.

We discuss the Court's new Code of Conduct, catch up on shadow docket happenings, and debate what historians can teach originalists. We then recap the argument United States v. Rahimi, (the Term's big Second Amendment case). Finally, we stay on brand by circling back to Pulsifer v. United States from the October sitting, where the Justices puzzled over deep questions about statutory interpretation. 

The October Term is now underway, and that means it's time for Season 4 of the show. We catch up on the inevitable shadow docket happenings before diving into a discussion of two cases that were argued earlier in the month. First, we dig into Acheson Hotels, LLC v. Laufer, and debate which jurisdictional ground the Court will rely on to get rid of the case. Then, we give the people what they want and talk about admiralty law in Great Lakes Insurance SE v. Raiders Retreat Realty Co., LLC. 

The Court hasn't done too much while the summer recess drags on, but we're back for what might be our last episode of Season 3 before Season 4 kicks off with the new Term. We manage to piece together an episode with some items from the mailbag, some SG gossip, and a few shadow docket happenings. 

The Justices have beenoff on their European vacations for a couple of months but we're still cranking out episodes breaking down last Term. We start off by discussion Will and Michael Stokes Paulsen's SSRN-breaking article arguing that Donald Trump is ineligible for the presidency under Section 3 of the Fourteenth Amendment. We then break down a couple of shadow-docket happenings involving "ghost guns" and the Purdue bankruptcy. We then finally clear our backlog of June cases by discussing two last opinions: Coinbase v. Bielski, which involves the intersection of arbitration and appellate jurisdiction, and Groff v. DeJoy, which importantly clarified employers' obligations to provide religious accommodations to employees under Title VII of the Civil Rights Act of 1964.

We recap some shadow docket happenings and catch up on the latest SCOTUS ethics news before continuing our march through June opinions we missed. This time, we dive back into Indian law in Arizona v. Navajo Nation and try to make sense of private causes of action and the so-called Spending Clause in Health and Hospital Corporation of Marion County v. Talevski. Along the way, Will reveals his closet cartographical interests.

What could be more unscheduled and unpredictable than our fourth episode in little more than a week? We briefly discuss the latest developments in the Mountain Valley Pipeline shadow docket dispute, and then revisit ethics controversies. Then, we continue marching through the June cases we missed. We talk about the First Amendment's "true threats" exception in Counterman v. United States, and then ponder the two student loan cases, Biden v. Nebraska and Department of Education v. Brown. 

We defy all predictions by releasing a third episode in a week. This time, we talk about the intersection of public accommodations law and the First Amendment in 303 Creative and the Confrontation Clause in Samia v. United States.

In the spirit of keeping things unpredictable, we're back with a new episode barely days after the last one. This time, we take a deep dive into two jurisdiction-y cases in the Divided Argument wheelhouse: Jones v. Hendrix and Moore v. Harper. 

After some inevitable self-flagellation for our lengthy hiatus, we catch up on some recent news and debate SCOTUS ethics. We then talk about implications of the Harvard/UNC affirmative action case, revisit Mallory v. Norfolk Southern, and break down the latest case captioned "United States v. Texas." 

We record our first inter-continental episode, as Will reports in from a visit to Tel Aviv. We then dive in to two of this month's opinions: Haaland v. Brackeen, which rejects a series of challenges to the Indian Child Welfare Act, and United States v. Hansen, which upholds a federal immigration law against a free speech overbreadth challenge.

We discuss a recent effort to identify the least interesting SCOTUS case, and then discuss Tyler v. Hennepin County, United States ex rel. Schutte v. Supervalu Inc., and Glacier Northwest, Inc. v. Teamsters. 

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. 

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. 

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.

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.

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.

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.

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).

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. 

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. 

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!

We catch up on some odds and ends, take a long detour through a debate about the merits of the Star Wars trilogies, and then dig into Türkiye Halk Bankasi A.S. v. United States (starting at 38:10), an interesting case about the scope of foreign sovereign immunity being heard in the January sitting. 

We talk through the implications of the story about an alleged leak in the Hobby Lobby case, respond to a mysterious voicemail, and then break down two interesting federal criminal fraud cases, Cimenelli v. United States and Percoco v. United States. 

In this mega-episode, we catch up on the orders list, circle back to Mallory, which we talked about last episode, and the dive into oral arguments in the affirmative action cases. 

We check in on some Court-related news and developments and Dan gives Will a hard time for his recent bold claim about the conservative justices. We then dig deep into Mallory v. Norfolk Southern Railway Co., a fascinating personal jurisdiction case being argued in the November sitting.

We provided an extended preview of the arguments in one of the October cases, National Pork Producers Council v. Ross, which takes us into a long discussion of the "dormant" Commerce Clause and extraterritorial regulation. But first we discuss some statements from Justice Alito and Ginni Thomas, the newest circuit justice assignment, and some updates from last episode.

We open Season 3 with a live show at William and Mary Law School, part of the Scalia-Ginsburg Collegiality Speaker Series. With our first-ever guest, we discuss the limits of friendship and offer advice on civil disagreement. But first we break down the Supreme Court's ruling on an important stay application from Yeshiva University.

We catch up on listener questions and feedback (both positive and negative), and then spend a while on the neglected case of Vega v. Tekoh, about the intersection of remedies and Miranda. We also discuss Kennedy v. Bremerton, the case of the praying football coach. Unfortunately, Will recorded all of this into the wrong microphone.

We reflect on the Supreme Court term as a whole, and the direction and politics of the Court. We focus on West Virginia v. EPA, which canonized the "major questions" doctrine, and the upcoming case of Moore v. Harper, which confronts the "independent state legislature doctrine."

In our longest episode yet, we break down two massively consequential cases: Dobbs v. Jackson Women's Health Organization and New York State Rifle & Pistol Association v. Bruen. 

We try to catch up after the Court's big opinion dump this week, and end up focusing on Ysleta del Sur Pueblo v. Texas, Denezpi v. United States, Viking River Cruises, Inc. v. Moriana, and the DIG in Arizona v. San Francisco. Come for the legal analysis, stay for the health insurance advice. 

We're back to talk about Wednesday's decision in Egbert v. Boule and the problem of constitutional remedies. But first we catch up on the Court's pace of opinions, the leak investigation, the attempted attack on Justice Kavanaugh, and Puerto Rico (United States v. Vaello-Madero).

We're back to talk about the big news: the draft of Justice Alito's opinion in Dobbs, and the questions that surround it -- how and why this might have happened, what it means for the Court, and what the Court can do about it.

We try to clear our backlog after a break. We manage to make it through United States v. Tsarnaev, Ramirez v. Collier, and a few other odds and ends. 

We try to catch up on what the Court did since we last recorded, but end only making it through the Court's opinions in United States v. Zubaydah and Wooden v. United States.

We catch up on the nomination of Judge Ketanji Brown Jackson, a new opinion by Justice Breyer, revisit a debate about who the greatest law professor on the Supreme Court is, and talk through each of our recent scholarly efforts. Tune in to hear Dan surprisingly attack Will's Fourth Amendment views from the right flank, learn an interesting tidbit about Justice Brandeis, and get some insight into the mysterious originalist gathering in San Diego. 

We're back after a long absence, but there's a good excuse. We catch up on the biggest developments from the last couple months, including the Breyer retirement, the Court's COVID decisions, the masking imbroglio, and the Alabama redistricting shadow-docket ruling. We also discuss Dan's childhood meeting with Justice Thomas, speculate about the median age of our listenership, and invent a new empirical metric for evaluating Supreme Court justices. 

Will and Dan try to make sense of the Court’s decisions in the two cases addressing the possibility of preenforcement challenges to Texas’s novel abortion ban.

We’ve been waiting for months to bring you this one: we can finally talk about the President’s Supreme Court Commission, which just finalized its report this week. We also briefly talk about the recent argument in Dobbs and try to predict what the Court might do.

Dan and Will catch up on what the Court's been up to other than dealing with the Texas abortion law, including cert grants addressing the EPA's power to regulate carbon emissions, a couple of summary reversals, and some other shadow-docket action.

Divided Argument is back after an unscheduled, unpredictable break to kick off a brand new season. We dig into this week's oral arguments in two cases involving Texas's abortion law. 

The road show continues as Will and Dan record another live episode at the National Association of Attorneys General's State Solicitors General and Appellate Chiefs Conference in Chicago. They delve deeper into Texas's abortion law and the US's lawsuit seeking to stop it. Then, they have a broader discussion about the role and power of states in Supreme Court litigation. 

Divided Argument is live from the University of Chicago Law School! In our first ever episode in front of a live studio audience, we catch up on recent Court-related developments, such as several Justices' recent public remarks pushing back on Court politicization and the Court's latest foray into whether capital prisoners can have spiritual advisors with them in the execution chamber. 

Will and Dan break down the Court's late-night refusal to block the implementation of Texas's controversial "fetal heartbeat" law, and what it might mean for the future of the Court's abortion jurisprudence. 

Dan and will try to catch up on the flurry of news from Thursday afternoon, including an update on the Acting Solicitor General and the Court’s surprising grant of injunctive relief against New York’s eviction procedures. Come for the breaking news, stay to find out how Dan procrastinate and to learn the relevance of Catskills humor to the shadow docket.

As Will, Dan, and the Court all navigate their August vacations, we learn how a controversy over the qui tam statute indirectly saved Roe v. Wade. We then catch up on a few legal developments: The Biden Administration has renewed its eviction moratorium, confusing many legal observers in the process. The administration has also finally given us a nomination for Solicitor General. And a controversial cert. petition by the state of Oklahoma provokes an extended discussion of stare decisis and lawyer shaming.

As October Term 2020 recedes in the rear-view mirror, Dan and Will take a moment to reflect. We ponder the current balance of power on the Court and how the pandemic era might change the institution. We also address some listener feedback on Transunion; Will defends himself against the charge that he worships the justices too much; and Dan takes issue with a bold claim that Will snuck in on a previous episode.

Will and Dan deal with listener feedback that prompts them to recall some of the Court's most bad-faith decisions in recent years. They then do a deep dive into Transunion v. Ramirez, the Court's major standing decision from the end of the Term. 

Will and Dan deal with some tough but fair listener feedback, and then get through AFP v. Bonta (finally). Listen to see if they get further!

Dan and Will return after their vacations to catch up on what they've missed. After checking in briefly on Justice Breyer, they try to talk about two of the Court's biggest cases from the end of the Term. They only manage to get through one of them: Brnovich v. DNC.

Will and Dan break down two more decisions from Wednesday. First is Collins v. Yellen, a complicated separation of powers and severability case with a lot of money on the line. Second is Lange v. California, a Fourth Amendment case about the "hot pursuit" doctrine, which gives rise to some high school confessions.

The Court dropped four fascinating constitutional law opinions on Wednesday, and Will & Dan talk through two of them. First up is Mahanoy, which addresses First Amendment protections for Snapchatting school kids. Then we have Cedar Point, an important decision about the Takings Clause.

As October Term 2020 hurtles towards a thrilling conclusion (well, hopefully), Dan and Will break down two of Monday's decisions. They explore the separation of powers and severability in United States v. Arthrex and talk about antitrust law's implications for college sports in NCAA v. Alston. 

Will and Dan break down the Court's sudden burst of interesting opinions – California v. Texas, Fulton v. Philadelphia, and Nestle v. Doe.

Will and Dan break down the Court's fascinating decision yesterday in Van Buren v. United States, which interpreted the Computer Fraud and Abuse Act. 

Dan and Will discuss the Court's recent run of unanimous cases, paying particular attention to United States v. Cooley; ponder weighty issues like the role of the Hart & Wechsler casebook in defining the field of federal courts; and announce a new way for listeners to engage with the show: our voicemail line, (314) 649-3790‬.

Will and Dan ponder what this podcast is about, continue their discussion of good faith in judging, try to game out exactly what the Court is up to in Dobbs v. Jackson Women's Health, and respond to listener feedback. 

Will and Dan ponder the significance Court's grant of certiorari in an abortion case, Dobbs v. Jackson Women's Health Organization, before going on to recap some of the opinions the Court released this week. They discuss Caniglia v. Strom, a Fourth Amendment case, and what it might mean for drug-dealing senior citizens. And they explore the puzzling world of criminal-procedure retroactivity in Edwards v. Vannoy, and in particular Justice Gorsuch's bold concurrence charting a new course for federal habeas corpus law. 

Will and Dan finish up their conversation about the shadow docket. They discuss the Court’s summary reversal practices, try to get to the bottom of what might be wrong with the shadow docket, and ponder what it means for Supreme Court justices to act in “good faith.”

In the inaugural episode of Divided Argument, Will and Dan have the first part of a two-part discussion of the Supreme Court's "shadow docket." Will explains how he came to coin the now-famous phrase in a 2013 article, and how good advice from a friend helped him avoid a "terrible title" for that piece. Will and Dan also discuss Justice Alito's contribution to the important field of original jurisdiction before closing out the episode with a plea for reviews on your podcast app of choice.