Advisory Opinions

Who will preside over soon-to-be-former President Donald Trump’s impeachment trial after he leaves office? Will it be the Senate’s president pro tempore? The chief justice of the Supreme Court? None of the above? On today’s episode of Advisory Opinions, our hosts also dive into the nitty gritty details of Trump’s forthcoming—and second—impeachment trial before they discuss the latest updates in social media regulation, David’s take on the South’s honor culture, and Sarah’s review of the five best chicken sandwich chains in America. Show Notes: -“Free Speech and the Regulation of Social Media Content” by the Congressional Research Service. -Red Lion Broadcasting Co. vs. FCC, Turner Broadcasting System, Inc. v. FCC, and Reno v. American Civil Liberties Union. -“Where Does the South End and Christianity Begin?” by David French in The Dispatch. Learn more about your ad choices. Visit megaphone.fm/adchoices

This week, the Supreme Court heard oral arguments for Uzuegbunam v. Preczewski, a free speech case that will determine whether former Georgia Gwinnett College student Chike Uzuegbunam is entitled to nominal damages from an unconstitutional government policy when that policy has since been changed. “Arguably there is no more important constitutional law case that has come up before the court in the last several years from a philosophical standpoint,” Sarah says on today’s podcast. After our hosts discuss the legal mechanics of nominal damages and attorneys’ fees, they dive into Parler’s latest legal filings and the Constitution’s speech and debate clause. Show Notes: -Take our podcast survey -Uzuegbunam v. Preczewski case and oral arguments. -“A Eulogy for a Friend, a Lament for our Nation” by David French in The Dispatch. -New York State Rifle & Pistol Association Inc. v. Corlett. -“Are We the Baddies?” sketch. Learn more about your ad choices. Visit megaphone.fm/adchoices

In a break from our current news cycle, Advisory Opinions tackles “the more mundane issue of teenage girls complaining” in a discussion about Mahanoy Area School District v. B.L, one of the Supreme Court’s latest cert grants addressing the issue of off-campus student speech. Not to worry, our hosts also dig into the more pressing issues of the day. In an examination of the term “incitement,” David and Sarah ask: Were the president or other individuals guilty—in a criminal sense—of provoking tangible violence at the Capitol last week? Do their words and actions meet the Brandenburg test, which criminalizes inflammatory speech that is both “directed to inciting or producing imminent lawless action,” and “likely to incite or produce such action”? Show Notes: -Mahanoy Area School District v. B.L -Thomas More Law Center v. Becerra -David’s French Press newsletter on Mahanoy Area School District v. B.L -Amendment 14: Section Three -1974 memo on presidential or legislative pardon of the president Learn more about your ad choices. Visit megaphone.fm/adchoices

During a press conference on Thursday, Speaker of the House Nancy Pelosi called for President Trump’s removal from office. “Yesterday, the president of the United States incited an armed insurrection against America,” Pelosi said, shortly before demanding the invocation of the 25th Amendment. On today’s podcast, our hosts talk about the possibility of impeaching President Trump, the legal machinations surrounding the 25th Amendment, and the social media crackdown against President Trump. Stick around for their thoughts on Merrick Garland as Biden’s attorney general pick. Show Notes: -Articles of impeachment prepared by Representatives Ted Lieu, David Cicilline, and Jamie Raskin. -“Divided We Fall: America's Secession Threat and How to Restore Our Nation” by David French in The Dispatch. Learn more about your ad choices. Visit megaphone.fm/adchoices

After a holiday hiatus from podcasting, our hosts have quite a bit of news to catch up on. Did Trump commit election fraud during his phone call with Georgia Secretary of State Brad Raffensperger? Will Trump’s election conspiracy theorizing depress Republican turnout in Tuesday’s Georgia Senate races? What should we expect when Congress convenes on Wednesday to count the Electoral College votes? All things considered, Biden will take office on January 20. But when it comes to GOP officials’ ongoing attempts to overturn the results of the election, David argues that “the futility of this effort should not excuse its malice.” Our hosts wrap up their first episode of 2021 with David’s spirited defense of Wonder Woman 1984. Show Notes: -“POLITICO Playbook: The backstory of Trump’s Georgia call” by Marc Caputo. Learn more about your ad choices. Visit megaphone.fm/adchoices

On today’s holiday mailbag edition of the podcast, David and Sarah answer a series of listener questions ranging from legal history to college football. Do you have to admit guilt to accept a pardon? Are there any wrongfully decided Supreme Court cases that are still on the books? Is there a secular argument for prohibiting abortion or does restricting the practice entirely depend on adopting religious doctrine in the public square? Are tier 2 or tier 3 law schools worth attending? What are the best books of the year? What is the constitutionality of factoring race into vaccine distribution? And MORE! Tune in to hear the breakdown. Show Notes: -A brief history of pardons from Smithsonian magazine. -Korematsu v. United States, Buck v. Bell, Roe v. Wade, Kelo v. City of New London, Schenck v. United States, Employment Division v. Smith, Monell v. Department of Social Services, Brandenburg v. Ohio, Skinner v. Oklahoma, Trump v. Hawaii. -38 states with fetal homicide laws. -Qualified immunity doctrine. -“Books to Read If You’re Tired of Hearing About Impeachment” by Sarah Isgur in The Dispatch. -Sarah’s book recommendations: The Witches: Salem, 1692 by Stacy Schiff, She Has Her Mother's Laugh: The Powers, Perversions, and Potential of Heredity by Carl Zimmer, How Innovation Works: And Why It Flourishes in Freedom by Matt Ridley, Hero of the Empire: The Boer War, a Daring Escape, and the Making of Winston Churchill by Candice Millard. -David’s book recommendations: Divided We Fall: America's Secession Threat and How to Restore Our Nation by David French, Rhythm of War: The Stormlight Archive, Book 4 by Brandon Sanderson, The Democratization of American Christianity by Nathan Hatch. Learn more about your ad choices. Visit megaphone.fm/adchoices

The Supreme Court agreed on Wednesday to hear a case concerning whether the NCAA’s eligibility rules for student compensation violate federal antitrust law. Should the NCAA have the right to create a universal regime of amateur athletics? Is this dispute more of a legislative problem? Or is it an antitrust problem that should be resolved by the courts? In their penultimate podcast before Christmas break, David and Sarah discuss whether private employers can mandate COVID-19 vaccines, some hypothetical legal scenarios related to double jeopardy, and the culture wars surrounding Vanderbilt kicker Sarah Fuller. They also respond to a 3L listener’s email about Supreme Court original jurisdiction. Show Notes: -NCAA’s cert petition to Supreme Court, 9th Circuit ruling for NCAA antitrust case, and Supreme Court reversal statistics. -“The College Athletes Who Are Allowed to Make Big Bucks: Cheerleaders” by Tess DeMeyer in the New York Times. -NCAA v. Board of Regents. -Trans World Airlines Inc. v. Hardison -“Can Private Employers Mandate COVID Vaccines?” by Josh Blackman in Reason. -End of Discussion: How the Left's Outrage Industry Shuts Down Debate, Manipulates Voters, and Makes America Less Free (and Fun) by Guy Benson and Mary Katharine Ham. -Miracle on 34th Street. Learn more about your ad choices. Visit megaphone.fm/adchoices

The Supreme Court on Friday declined to hear Texas Attorney General Ken Paxton’s lawsuit contesting the election results in four battleground states, ruling that “Texas has not demonstrated a judicially cognizable interest in the manner in which another State conducts its elections.” What does the court’s order mean in plain English? Should the justices have said more? Why did Justices Alito and Thomas issue a separate statement? “The bottom line is all nine justices rejected this case,” David explains. “Seven clearly for one reason, two for any number of additional reasons that they didn’t specify.” After breaking down the Texas lawsuit, Sarah and David discuss Trump v. Wisconsin, Bush v. Gore, the counting of the electoral college votes, and what options President Trump might still have to contest the election. They wrap things up by answering some listener mail about the LSAT. Show Notes: -Arizona v. California dissent, Supreme Court’s Friday order on Texas lawsuit, Trump v. Wisconsin, Bush v. Gore, Bush v. Palm Beach County Canvassing Bd, 3 U.S. Code § 15. Learn more about your ad choices. Visit megaphone.fm/adchoices

On Wednesday, 17 state attorneys general filed amicus briefs in support of Texas Attorney General Ken Paxton’s lawsuit contesting the presidential election results in Pennsylvania, Georgia, Michigan, and Wisconsin. To make matters more interesting, President Donald Trump has said he will join the lawsuit and Texas Sen. Ted Cruz has agreed to argue the case in front of the Supreme Court. Tune in to today’s episode to hear why, in David’s words, “this Texas lawsuit as a legal and evidentiary matter is frivolous.” Today, David and Sarah also give us an update on Sidney Powell’s “Kraken” lawsuits and the Department of Justice’s antitrust lawsuit against Facebook. They wrap things up by answering some reader mail about law school. Show Notes: -Supreme Court’s one-sentence order denying injunctive relief to Rep. Mike Kelly. -French Press: “The Kraken Is Lackin’.” -Texas Attorney General Ken Paxton’s new lawsuit against Pennsylvania, Georgia, Michigan, and Wisconsin. -The Morning Dispatch: “Checking in on the Trump Campaign Lawsuits.” -The Federal Trade Commission’s lawsuit against Facebook. Learn more about your ad choices. Visit megaphone.fm/adchoices

U.S. federal law’s “safe harbor deadline” means that most presidential election law cases will be resolved by tomorrow, December 8. Today, David and Sarah discuss what’s next for Trump loyalists who have an unshakable belief that the election was stolen. Stay tuned for a conversation about changes to the citizenship test, a 9th Circuit transgender bathroom case where cert was denied, parental and student rights in public education, and why so many conservative lawyers don’t buy the Trump campaign’s legal strategy. Show Notes: -U.S. code on meeting and voting of electors, determination of controversy as to appointment of electors, and counting electoral votes in Congress. -“Preparing for a Disputed Presidential Election: An Exercise in Election Risk Assessment and Management” by Edward Foley in the Loyola University Chicago Law Journal. -“The ‘Safe Harbor’ Deadline Is upon Us” by Jim Geraghty in National Review. -Parents for Privacy v. Barr. -“Why Do So Many Americans Think the Election Was Stolen?” by Ross Douthat in the New York Times. -Brown v. Hot, Sexy and Safer Productions, Inc. -“Coronavirus: When a High-Trust Response Is Required in a Low-Trust Time” by David French in The Dispatch. Learn more about your ad choices. Visit megaphone.fm/adchoices