Divided Argument

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 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 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 in 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 over the scope of courts' power to vacate administrative rules and the related controversy over so-called "nationwide" injunctions.