Advisory Opinions

Former federal judge John Michael Luttig joins Sarah and David to detail his involvement in the events leading up to January 6, 2021. He reveals the story behind his tweet thread on January 5 that ended up on the front page of the New York Times, and the problems with the Electoral Count Act of 1887. Plus: Luttig walks us through his comprehensive, published study refuting election fraud claims in the 2020 election. Show Notes:-Judge Luttig’s January 6 testimony-Judge Luttig’s January 5 tweet thread-Lost Not Stolen: The Conservative Case that Trump Lost and Biden Won the 2020 Election-The Dispatch: A 2020 Election Report ‘By Conservatives, For Conservatives’ Learn more about your ad choices. Visit megaphone.fm/adchoices

David and Sarah return to discussions they had with their last guest, professor Akhil Amar, including living constitutionalism and the question of whether to let voters or jurists decide issues of justice. Then our hosts dive into the University of Pennsylvania controversy concerning the limits of academic freedom at the private Ivy League institution. Plus: the Biden administration’s bid to clarify abortion protections in the Emergency Treatment and Active Labor Act. Show Notes:-AO: Akhil Amar Talks Liberal Originalism-University of Pennsylvania Law Dean’s Report Regarding Amy Wax-Biden admin looks to protect doctors providing emergency abortions, and warn those who don’t Learn more about your ad choices. Visit megaphone.fm/adchoices

Sarah and David kick off the week with an exciting discussion of liberal constitutional originalism with Akhil Amar, author of The Words That Made Us: America’s Constitutional Conversation, and constitutional law professor at Yale University. Our guest gives a dynamic perspective of the decision in Roe v. Wade, as well as dives into the nitty-gritty of the varying modes of constitutional interpretation. Who gets to decide what the common good is? Are philosophers really as smart as they think they are? Show Notes:-The Words That Made Us: America’s Constitutional Conversation-Amarica’s Constitution-Eradicating Bush-League Arguments Root and Branch: The Article III Independent-State-Legislature Notion and Related Rubbish-Time: Why Liberal Justices Need to Start Thinking Like Conservatives-New York Times: The Constitution Is More Than a Document—It’s a Conversation Learn more about your ad choices. Visit megaphone.fm/adchoices

David and Sarah cover a full spectrum of cases and interesting news today. First up: Will a judge order Elon Musk to buy Twitter? Our hosts address the Texas res judicata case (pronunciation courtesy of a Latin expert); Boycott, Divest, Sanction (BDS) laws; and an abortion travel case. They also answer a question from listeners about the Second Amendment and militia precedent. Show Notes:-Twitter v. Musk complaint-Skiriotes v. Florida-Fisher v. University of Texas at Austin Learn more about your ad choices. Visit megaphone.fm/adchoices

David and Sarah are joined by Kannon Shanmugam, partner at Paul Weiss, for their now traditional end-of-term Supreme Court case roundup. Was this the most significant Supreme Court term of our lifetimes? Plus: it wouldn’t be a traditional episode with Kannon Shanmugam without another round of barbeque reviews. Show Notes:-TMD: The End of ‘Pen and Phone’-Washington Post: A firm’s split with its star gun-case lawyer shows what ails the left Learn more about your ad choices. Visit megaphone.fm/adchoices

David and Sarah begin by going through SCOTUSblog’s end-of-term Stat Pack. Then Hiram Sasser, executive general counsel for First Liberty Institute, joins for a deep dive into the Kennedy v. Bremerton School District Supreme Court case. Hiram, who was co-counsel on the case, explains the story and talks about Coach Joseph Kennedy from a more personal point of view. How did the facts become so muddled throughout the process? Our hosts have a lively debate about how the case could have—or should have—been handled. Show Notes:-SCOTUSblog Stat Pack-Kennedy v. Bremerton School Dist. Learn more about your ad choices. Visit megaphone.fm/adchoices

Last week the Supreme Court ruled to limit the Environmental Protection Agency’s power to regulate carbon emissions. David and Sarah are here to discuss the decision’s fallout and what it means for the rest of the administrative state. Plus: What did the Supreme Court say about Migrant Protection Protocols? And, understanding the controversial election-law case that the Supreme Court agreed to hear. Show Notes:-West Virginia v. EPA-Sarah in Politico: “Why Is Congress Broken? Because the Other Branches Are Doing Its Job”-Biden v. Texas Learn more about your ad choices. Visit megaphone.fm/adchoices

On Wednesday, the Supreme Court ruled that Oklahoma state authorities can prosecute non-Indians who commit crimes against Indians on Indian reservations. Narrowing its 2020 decision in McGirt v. Oklahoma. David and Sarah then debate the case for prosecuting Donald Trump after this week’s surprise January 6 hearing. They also look at a surprising death penalty decision from last week. Show Notes:-Torres v. Texas Department of Public Safety-Oklahoma v. Castro-Huerta-French Press: “The Case for Prosecuting Donald Trump Just Got Much Stronger”-Nance v. Ward Learn more about your ad choices. Visit megaphone.fm/adchoices

The Supreme Court has been making waves with two recent religious liberty cases, Kennedy v. Bremerton School District and Carson v. Makin. Sarah and David delve into the Kennedy opinion, involving a high school football coach who was fired for praying on the field. The case overruled the Lemon test, used in First Amendment cases for decades, but there’s still much to be decided in the future. Plus: More on the political fallout from the Dobbs v. Jackson Women’s Health ruling. Show Notes:-Kennedy v. Bremerton School Dist.-Advisory Opinions: Supreme Court Hears Football Coach Prayer Case-French Press: Roe is Reversed, and the Right Isn’t Ready-Advisory Opinions: Supreme Court Overturns Roe and Casey-Wall Street Journal: The Law Firm That Got Tired of Winning Learn more about your ad choices. Visit megaphone.fm/adchoices

The outcome might not have been surprising, but the official release of the Dobbs v. Jackson opinion on Friday was still earth shaking, as it overturned Roe v. Wade and a half-century of precedent on abortion. Sarah and David convened an emergency podcast, diving headfirst into the details of the majority opinion written by Justice Samuel Alito, the concurrences by Justice Clarence Thomas, Justice Brett Kavanaugh, and Chief Justice John Roberts, and the liberal dissent. What does this case mean for us and where do we go from here? Show Notes:-Dobbs v. Jackson Women’s Health Organization-Sarah in Politico:“What Alito Should Have Written”-David in The Atlantic: “The Pro-Life Movement’s Work Is Just Beginning” Learn more about your ad choices. Visit megaphone.fm/adchoices