Amarica's Constitution
Professor Akhil Reed Amar, Sterling Professor of Law and Political Science at Yale University and one of the nation’s leading authorities on the Constitution, offers weekly in-depth discussions on the most urgent and fascinating constitutional issues of our day. He is joined by host Andy Lipka and guests drawn from other top experts including Bob Woodward, Lawrence Lessig, Neal Katyal, Michael Gerhardt, and many more.
Episodes
Delivering Justice - with Judge Patrick Schiltz and Michael Stokes Paulsen
This episode features Judge Patrick Schiltz, a deeply respected and honored judge on the US District Court in Minneapolis, interviewed by Professor Michael Stokes Paulsen, long time friend of this podcast and distinguished scholar. Judge Schiltz has been in the belly of the beast that was the dramatic escalation in ICE activity in his area, with a geometric increase in cases, motions, and need fo
Get Off My Plane - Guests Eugene Volokh and Vikram Amar
The President has been throwing news organizations out of various places: the White House in general, including the Press Room, and Air Force One. Can he do that? Does it matter why he is doing it? Has this come up before? Is it a constitutional matter? We welcome a leading First Amendment expert, Professor Eugene Volokh, to the podcast to discuss. Meanwhile, the Eight Circuit wasn’t quite
Circuit Breaker
The Eighth Circuit is at it again, believe it or not. Despite what appeared to be a clear directive from the Supreme Court to use the 2022 map in the upcoming federal election in Missouri, a panel of three judges from the circuit went in the other direction. Akhil has had about enough of this, and while he expects the Supreme Court to once again shoot down the eighth circuit, perhaps with feelin
The Constitution Goes to Princeton
It’s Constitution Day, or rather Constitution Eve as we record. Akhil is the invited speaker at Princeton University’s gala event, and ahead of the speech, we invited Princeton undergraduates to come and talk about the Constitution with us; to voice their questions, and to help us honor the mission of the day by engaging with American citizens on that thing that we all share and that hopefully em
More Statesmanship, and State Constitutions - Special Guests Steven B. Smith and Vikram D. Amar
The big issue in the news today is the Missouri legislature’s attempt to avoid the state constitution’s referendum provisions in order to impose a legislative map that would advantage Republicans to the tune of all but one of the state’s seats in the US House. The Supreme Court is asked to intervene, and Justice Kavanaugh - after we taped - declined to do so. This may not be end of the story, bu
The Statesman's Constitution - Special Guest Steven B. Smith
Originalists venerate the Founders, who were by most reckonings a group of remarkable statesmen. Today, many Americans look seemingly in vain for a statesman worthy of the moment and its challenges. But what is a statesman? Does the U.S. Constitution assume a statesman will be at the helm? Does it enable such a leader, or is it designed to thwart the designs of what Lincoln called the “towerin
An Amendment Like Some Others - Special Guest Vikram D. Amar
Voting rights are in the news. The state and federal governments have sought to weigh in and intervene on election laws, as we have seen in previous cycles. This time, a number of states have passed laws that address mail-in or absentee voting, but in doing so, what seems on its surface to be addressing some needs of seniors may in fact be more constitutionally questionable than first meets the
Preclearing the President
What happens when the president loses in court, even at the Supreme Court, but repeatedly attempts to fight the battle again? New tariffs are offered after the old ones are thrown out. Birthright citizenship, resoundingly affirmed, is challenged anew. To Americans who lived in the South after Brown v. Board, this might sound familiar. And indeed, as we wrap up our Roberts court constitutional
There You Go Again
The President did not file for reconsideration of the Court’s decision in Trump v. Barbara, but the President nevertheless doesn’t let the Constitution rest, issuing two new executive orders that purport to extend the set of persons not receiving birthright citizenship upon their birth, among other things. We take a look. Meanwhile, our review of the Roberts Court’s important constitutional cases
Dobbs and Bruen Plus Time
As we make our way through the 20 most constitutionally significant cases of the Roberts court, this episode takes us through two cases that have continued to have resonance with the American people and with the justices. Dobbs saw an infamous leak, a momentous decision, powerful electoral impact, and ongoing questions that echo back to an important limiting concurrence. Bruen brought a controve
Faces of Intratextualism
We continue our survey of the Roberts Court’s oeuvre of constitutional cases, with particular emphasis on the series of cases that concerned making rules for voting and for voting districts. These cases make particular use of “intratextualism” - a term coined by Professor Amar that provides tools - and traps - for textual analysis of the Constitution. And as it turns out, it is also valuable on
The Surprising Score
The SCOTUS term is behind us, and we take a look back - not just at this term, but at the entirety of the Roberts Court. What are the most important constitutional cases of its time? Where do the justices line up on the important cases - that is, how often are they in the majority; how often is the opinion right-leaning, as many believe is usually the case, and how many are left-leaning? How of
Dissenting from the Dissents
How could the vote in Trump v. Barbara have been as close as it was? Many have been bewildered by the vote in this case, given the strength of the arguments in Chief Justice Roberts' majority opinion, the long history of birthright citizenship, the statutory history, and the clear text of the 14th amendment. We try to understand this by looking at how the dissents took an aberrant and incorrect
Unitary Duality - Guests Steven Calabresi and Vikram Amar
he Supreme Court ruled in two cases framing Unitary Executive theory. So it’s entirely appropriate that we have two great experts on the topic joining us. Steve Calabresi literally wrote the book on this theory, and perhaps it’s not surprising that he is more pure than the Court itself. Meanwhile, Vik Amar has seen his theories concerning non-delegation and Congressional lock-in come up again a
Lincoln's Promise Kept
America gets a 250th birthday present from the Supreme Court as Chief Justice John Roberts authors an opinion for the ages in Trump v. Barbara. The Court went big and decided on the basis of the Constitution, not merely the Congressional statutes, that Abraham Lincoln's wish for the nation, birthright citizenship, which gives rise to the chance for birth equality and therefore the "new birth of f
No Coffee for You
In the wake of our recent discussion on private vs state action, a recent incident in New York regarding US Representative Dan Goldman’s banishment from a coffee shop because of his political stance brings these issues home, with additional questions related to public accommodations and more. Meanwhile, the Supreme Court faced some of these similar issues in the case of Wolford v. Lopez, decided
Reverence and Radicalism: Remembering Gordon Wood
The tributes to Gordon Wood have been pouring in, and as promised, we spend this episode with him and his peerless body of work. Professor Steven Calabresi, Gordon’s neighbor, friend, and colleague, joins us, and how appropriate that is, as Steve and Akhil produced a tribute weekend at Yale Law School that reviewed and celebrated his lifetime of work. Now we remember the man, the teacher, and mo
Bigotry vs Bureaucracy: State Action and Private Freedom
There’s some highly questionable behavior going on in an area of Missouri, where a fringe group seeks to establish a whites-only enclave. Objectionable? We think so. Unconstitutional? Therein lies an opening to a whole host of questions. Government action versus private action. When is private action beyond private purview? When does state action overlap into private domains, and where are
Rosen on Liberty; Gorsuch on Gorsuch - with Jeffrey Rosen and Justice Neil Gorsuch
It is an honor to introduce the initial episode of our new sister podcast: The Blessings of Liberty, hosted by Jeffrey Rosen, president emeritus of the National Constitution Center and Professor of Law at GW. Prof. Rosen begins with a bang, as he holds a discussion with US Supreme Court Justice Neil Gorsuch, including two books newly authored or contributed to by Justice Gorsuch. We precede this
Unrehearsed Answers
It’s time for listener questions, and no surprise that current events are on everyone’s mind. We range from the supposed weaponization slush fund, to pardons; illegal military orders; simultaneous office holding; and lots of converse-1983 discussion. And Professor Amar looks at a possible error in one of his books. Great questions from a great audience, and Akhil answers them without prep, on
Scrip for Scripture on the National Mall
After weeks of tracing the background history and constitutional principles at work on religious establishment, free exercise, and equality issues, the Administration on cue sponsors, holds, staffs, and headlines a “Rededication 250: A National Jubilee Of Prayer, Praise & Thanksgiving,” complete with a virtually all-Christian (one Jew) speaker roster, a White House website, money from Congress
JFK's Wall
Our journey through the centuries of religious practice, attitudes, and constitutionalism has reached the 20th century, when several presidential elections set mileposts for the American religious debate. The first major party Catholic candidate, Al Smith, met the worst sort of vitriol and prejudice, and was destroyed by it. This cast a shadow over the later campaign of John F. Kennedy, and he a
Fourteen Colonies, Ten Commandments
As the 10 commandments case makes its way towards the Supreme Court, we add another chapter to our study of the historical events and factors that went into the American constitutional tradition when it comes to religious freedom, religious establishment, and the relationship of government and religion as a whole. We begin this episode where The Words That Made Us began - in 1760. We take it for
Remember the Alamo Heights
We continue to trace the historical origins of the constitution’s approach to religion in American government and American life. We take you on a tour around Europe at the time of the Reformation and for centuries beyond, all the way to American migration. All this is remarkably relevant to recent events, as the Alamo Heights/Ten Commandments case comes to a head. Meanwhile, Sarah Isgur returns
Popes and Presidents
The President has picked a fight with the Bishop of Rome, Pope Leo X. Putting aside some of the distasteful elements of language and hubris, we ask where this fits in with notions of church and state in a democracy. What is the constitutional doctrine - is it “separation?” Where does it come from, historically and legally? A general theory of such things can help us make sense - well, maybe not
Last Branch Stands, The Barbara Court Sits - Special Guest Sarah Isgur
This week it’s Attorney Cecilia Wang’s turn, as she appears before the Supreme Court to defend birthright citizenship in the Trump v. Barbara case, and we continue to analyze clips of the oral argument. Meanwhile, we are joined by the host of the popular Advisory Opinions podcast: Sarah Isgur, who has written a new book that will be published, well, today. Last Branch Standing takes us inside th
New World, Same Constitution
Trump v. Barbara - the birthright citizenship case - reaches the Supreme Court, and we are there. Akhil and Andy are at the oral argument, and immediately afterwards we stand outside the courthouse and you hear (and see, from the linked video) the emotions that affected not only your hosts, but no doubt the justices themselves as the case unfolded. Then it’s off to the audiotape, as we play the c
Crib Sheets for Barbara
On the eve of the oral argument in Trump v. Barbara, we offer you a listener’s guide to the spectacle. What is the essence of the argument? What are the hard questions for Solicitor General Sauer, representing Trump? What should Attorney Wang, ACLU attorney for petitioners, be prepared to answer? What should the audience be listening for - clues to how the argument is going? We provide all th
Created to Born to Barbara
Akhil and Andy visit a high school in Garden City, NY, to speak with outstanding high school students about Born Equal. In the process, we trace one of America’s great credos - “All Men Are Created Equal” - from the Founding, all the way to Lincoln - and beyond, to the fourteenth amendment; and finally to birthright citizenship and next week’s momentous Supreme Court case, Trump v. Barbara. The
A Brief Ecosystem
We’ve been mentioning the birthright citizenship case, Trump v. Barbara, and Professor Amar’s amicus brief in the case. Now we begin to analyze it in depth. We begin with the structure of the brief; why is it so different from most such briefs? Why is it uniquely wide-ranging? How can it cover many aspects of the case with a strict word limit - what is it about the way it is done that allows t
Substantive Expansion - with Advisory Opinions and Divided Argument
Amarica’s Constitution has joined with two other great podcasts! We’re still ourselves, but today we bring all three podcasts together to look at a recent case, Mirabelli v. Bonta, which brings substantive due process back to center stage. And because we are who we are, we take a look ourselves at some more aspects of - what else? - the birthright citizenship case. Learn what the future holds f
Attorney Amar's Opening Argument
In this shorter-than-usual episode, you are now a Supreme Court clerk getting ready for the Trump v. Barbara case. What do you do? What do you read? We guide you. And as we think about what will happen when the argument begins, we give you a taste in this unusual episode.
Tariffs Are A Major Question - Special Guest Vikram Amar
The Court has ruled Trump’s so-called reciprocal tariffs unconstitutional. Vik Amar, who offered important theories that appeared prominently in the opinion, joins us to explain the Major Questions Doctrine, why it applies to this case, and even more importantly, why it attempts to support significant structural features of the Constitution. We pay particular attention to the concurring opinion
Pillorying the Post
Jeff Bezos emasculated the Washington Post; now he has virtually killed it. Why? And what does this mean for the nation? What is the importance of major newspapers to the American constitutional system? We bring you the great Ruth Marcus, former deputy editorial page editor, long-time columnist, with over 40 years at the Post, to offer an in-depth, insider perspective on this shocking set of e
Converse-1983 Is A Thing
It’s becoming apparent that the theory that Professor Amar put forth 40 years ago in a now-famous law review article, Of Sovereignty And Federalism, is being taken seriously by more and more legislatures, newspapers, and the general public. Therefore, we bring the two leading experts on this – Professor Akhil Amar, and his brother Professor Vik Amar - together to go over the background, theory, an
A Virtuous Republic, If You Can Keep It
In a wide-ranging episode, we finish looking back - and in doing so, we look into the near future as well. The birthright citizenship case will be heard in oral argument on April 1, and we go back to our reaction to the executive order. Unitary executive matters are awaiting court rulings; we look back at our back and forth with Steven Calabresi. Meanwhile, audience questions on court term limi
Five-Oh and Four Questions
The look back over our five years of drama, humor, reason, and illogic continues, as perhaps the most notorious opinion of the five year period - the Trump immunity case - reappears in a clip, along with a revisit with Justice Breyer. Meanwhile, the oral argument in Wolford v. Lopez did, in fact, prompt the Professors Amar to write in SCOTUSblog.com, and we go even further here, with clips from t
High Fives
It’s five years of Akhil and Andy on Amarica’s Constitution, and our friends are lining up to talk about it. In typical fashion, it’s not just testimonials but reflections. And we do a clip episode, but this time it’s not the justices, or the oral advocates, or the pundits, on the hot seat: it’s us. We look back at two episodes per year, playing our sometimes correct, sometimes wildly wrong pr
The Minnesota Massacre
A powerful and aggressive central government sends unwanted forces in huge numbers to a city where the residents oppose and resent this policy. The undertrained forces unleash violence against the population in the form of an obviously wrongful death. Minneapolis, yes - but also a seeming repeat of an important American historic event, that shaped a nation’s core beliefs, later reflected in the
Venezuelan Frisbie
The military capture of the Venezuelan leader, Maduro, is an event with giant international strategic, moral, economic, political, and other considerations. It also raises fascinating constitutional questions, and Professor Amar is ready to discuss some matters that probably did not come to your mind right away. Much of this stems from the fact that Maduro will be tried in a U.S. civilian, not a
Your Questions, Easy and Hard
Our listeners have a talent for inquiry; they follow Professor Amar’s arguments every week, and come up with their own. This week, we end the year by fielding a wide range of questions, including some related to presidential oath-taking; juries, asked by a Judge; pardons and their abuse; and many related topics. Akhil invokes Angela Bassett and Tina Turner, as we answer the questions first softl
No Army At All
Presidential power is abridged, for a change, by the Supreme Court in its shadow docket ruling in Trump v. Illinois. Rather than ruling in silence, however, this time the Court gives us 25 pages and 4 opinions to chew on. We examine the history behind issues of deployment of the Army as well as the Guard/Militia on domestic soil, which leads us to discussions of Militia Acts, the Military Amendm
Courage is Contagious - Special Guest Congresswoman Maggie Goodlander
One of the most promising new faces in the US Congress, Representative Maggie Goodlander, joins us for a wide-ranging discussion, including the recent video assuring our troops that they may not obey illegal orders, and the aftermath of that simple offer of support. You may not know that this first-term congresswoman has served in our military for 11 years; has clerked for a Supreme Court Justice
Humphrey's Execution
Oral arguments took place in the highly-anticipated unitary executive case, Trump v. Slaughter. The overruling of the case that seems to govern, Humphrey’s Executor, has been long expected, and indeed, the Chief Justice referred to the “dry husk” that was all that remained of that case after recent years of whittling by the current and recent Court. However, faced with the extremity of possible c
Balance and Check-Mate - Special Guest John Fabian Witt
Secretary of Defense Hegseth is making use of his sights. He is focusing at times on Senator Mark Kelly, seeking to wreak havoc upon him for his utterances which have angered Hegseth’s master. Meanwhile, purported drug smugglers have found Davy Jones’ locker at the order of Hegseth, it has been reported, including those left helpless after initial lethal strikes. Yale Professor and Bancroft Pri
The Only Only
Events in the news once again intersect with Professor Amar’s past work, as a little-known aspect of a clause in the Constitution has surprising relevance to the President’s fire-breathing response to a video from Senators and Representatives reminding our military and other officers of their lawful obligations. We trace other constitutionally newsworthy developments, on the filibuster and on the
The Undigested Matzo Ball
We return to the tariff case and continue to hear from the justices and the advocates in their own voices from the oral argument. This time, a 20 year old argument from Vik Amar takes center stage with apparent approval from several key justices, and several of the Court’s female justices join forces to make life difficult for the Solicitor General. We also review some of the emerging implicatio
Incidental Trillions
The economy, trillions of dollars, and consequences unknown are on the line in the tarrifs case, Learning Resources v. Trump. We present the justices and the advocates in their own voices from the oral argument, and Akhil reacts in real time as he hears the clips for the first time. It’s a three hour argument, so this is the first of a two-parter. The Court’s recent doctrines, including major q
Election Correction - Special Guest Vikram D. Amar
California. Meanwhile, the tariff case is about to come before the Supreme Court for oral argument. So it’s timely indeed that Vik Amar joins us with expertise on both topics. In fact, Vik has submitted an amicus brief in the tariff case. The “brothers in law” take us deep into the gerrymandering world, the major questions doctrine, and we also pause to reflect on the career of former Vice Pres
250 Episodes, 250 Years - and a surprise guest!
Our 250th episode has us looking back 250 years, and looking ahead to the next year of commemoration of those 250 year anniversaries. Sure enough, there is much gold to mine in those momentous events; much to inform us on matters of current import. We recall and examine a Declaration that is 250 years old - no, not that one. To top it off, we have a special guest that joins us to tie it all tog
The Threads of Liberty - Special Guest Jeffrey Rosen
The President and CEO of the National Constitution Center, Jeffrey Rosen, joins us for a timely discussion of his new book, The Pursuit of Liberty. The relevance to today’s dilemmas is matched only by the fascination of the deep historical analysis and amazing characters the book unearths. In the differences that separated Hamilton and Jefferson, Professor Rosen finds the genesis of a divide that
Opinions on Opinions
As we continue to wade into the Supreme Court term, developments are taking place in several cases we are following. Professor Amar’s students are making constitutional news all over the place, it seems; several of them have converged on the tariff case once again, as well as now the unitary executive issues. A new article made a splash, and it prompts us to harken back to an old one - a 1996 art
Dereliction of Duties
Tarrifs may be Trump’s favorite word, but it remains to be seen if he has the authority he claims to employ them. The Supreme Court will hear oral arguments in November, and ahead of this, Professor Amar takes you inside the argument. He offers the history and takes us through an originalist approach, a textual approach, a structural approach, a precedential approach, and presents the case as an
A Tale of Three Cities
Professor Amar visits cities that are in the constitutional news these days: Portland, where the military pays an uninvited visit; Salt Lake City, where gunfire continues this year’s alarming litany of political assassination also seen in Minnesota and elsewhere. Akhil’s epic trilogy, with Born Equal now taking its place as the second volume, speaks to how our history shows us the constitutional
Out in the World
Born Equal is being read - by academics, pundits, historians, and citizens. Reaction has begun to pour in, and discussion has begun. In this episode, we bring you some of the very best flavor of such discussion - an academic symposium held at Penn Carey Law School on the book. Professors Kate Shaw and Kermit Roosevelt each read the work with great care and deliver extensive remarks on the book,
Blast Off!
Happy Constitution Day! And Happy Born Equal Publishing Day! The book tour is underway, and we treat you to an event held live at Princeton University. Professor Amar speaks about the bridge from the last book to this one, and in doing so, the importance of the uniquely grand sweep of his project becomes apparent - as themes from The Words That Made Us merge crucially with the new revelations o
The Big Equal
With the imminent publication of Born Equal, we explore Lincoln’s grand vision of equality as it played out during and after his life. The new book goes further still, offering an expansive though still relentlessly originalist view of this constitutional vision. And now Professor Amar sees this vision through with even greater implications for the 160 years since his death and into the future.
The 64 Percent Question
Trump is keeping the courts active; this week saw a ruling against many of the widespread tarrifs he has sought to impose, and the Fifth Circuit upheld his dismissal of an NLRB member. Meanwhile, a Fed governor was dismissed, supposedly for cause. And the social media announcements of supposedly impending executive orders imposing voting requirements such as voter ID kept coming. And there’s mo
The Land of The Land
Gerrymandering, borders, the use of the military on US soil, and even the status of the District of Columbia. All these relate to geography, and the "more perfect union" our founders sought. The Constitution therefore speaks to all these issues, and originalism must be considered. We look at what the Constitution has to say, why it says these things, and what the underlying principles tell us.
The Good of the Country
President Trump has taken to social media, as usual. This time he asserts an authority to control elections through executive order. He claims that he is empowered to do this as the sole representative - nay, the sole decider - of the nation’s interest. We look to the constitution for a reply. He also echoes some election complaints, and election claims, from controversies past, and we have an
We the Who? - Special Guest Jill Hasday
With all our recent discussion on Skrmetti, and questions of scrutiny as applied to gender dysphoric individuals, the question of where women’s rights stand in this morass deserves new attention. Professor Jill Hasday has written an important book, We the Men, which is deeply relevant to these discussions. To what extent does inequality persist in the law? When Courts seek to answer this questi
Skrmetti Skirmish
We continue our discussion of the deep issues raised in the case of US v. Skrmetti. Last time we observed the Court wrestling with questions of whether the Tennessee law banning gender dysphoria treatments in minors was a form of sex discrimination. Later in the argument the Court addressed the question of whether transgender individuals, or some related group, constituted a so-called “suspect c
Geduldigging Your Grave at Oral Argument - Special Guest Vikram D. Amar
The Supreme Court’s term is long since complete, but we turn back the clock and take a deep dive into one of the major cases of the term, United States v. Skrmetti. This case addressed questions of gender dysphoria treatment and transgender rights, but fundamentally, it was a case about the law of equality, say the brothers Amar. Yes, Vik Amar is back as a guest, and our two experts go back and
Fallon's Doctrine - Special Guest Michael Dorf
We pay tribute this week to a titan in the field whom you may not have heard of. Professor Richard Fallon, the Joseph Story Professor of Law at Harvard, passed away last week. As you will hear from his collaborator and friend, our guest Professor Michael Dorf, Dick Fallon had a deep impact in the law and the academy, and did so with grace, class, and integrity. The parallels between his career
Firing Line, Then and Now - Special Guests US Rep. Jamie Raskin, and Author Sam Tanenhaus
Representative Jamie Raskin (D-MD 8) was the House manager of the second Trump impeachment in the Senate; is an outstanding constitutional scholar; a long-time law professor; a renowned author; a driving force behind the January 6th committee; and the ranking member of the House Judiciary Committee. For the great privilege of interviewing him, we need all the tools a great interviewer would have.
Speaking the Law
The Birthright Citizenship case reached the Supreme Court - sort of. The Court ruled on the executive branch’s request for a stay in response to nationwide injunctions issued by three different circuit courts, where the executive order purporting to alter more than a century’s practice regarding the Constitution’s guarantee of birthright citizenship was blocked by these courts. In doing so the C
Children, Indoctrination, and Ideas
The end of the term arrives, and the Court is busy. We begin our dive into the cases with Mahmoud v. Taylor, a case involving inclusive books in a school, parental guidance of religious education, opt-outs, advance notification, and issues of gender and sexual education. Professor Amar goes beyond the case with an overall theory of religious accommodation; indeed, he goes beyond this into quest
Imbalance of Power
The US enters a violent part of the world once again, as Iran’s nuclear facilities are bombed. The President orders this without consulting Congress; indeed without asking for, much less receiving a declaration of war. Does the Constitution require this? What has past practice been? What was true at the founding? Has it changed over the centuries? Many twists and turns to the reasoning emerg
A Judicious Life, Part Two - Special Guests Justice Stephen Breyer, Professors Nadine Strossen and Kermit Roosevelt
Former Justice Breyer returns to Amarica’s Constitution with reflections on his long-time colleague and, yes, his friend, in a rare opportunity to hear about relationships on the Court. Meanwhile, former Souter clerk and current Professor at Penn Carey Law School, Kermit Roosevelt, looks back on the clerkship as well as at the threads that have emerged in the law and in his career from Justice So
Count to Ten
The Supreme Court left lower courts somewhat in the lurch in its recent Bruen decision; last year, in Rahimi, it attempted to clarify matters. Now an assault weapons case reaches the Court, Snope v. Brown, but the Court declines to hear it. Nevertheless, Justice Kavanaugh, though agreeing with the denial of cert, writes a commentary which calls for another, unspecified case to be heard in the ne
Competence, Character - or Cannon
Trump says he will no longer take advice from the Federalist Society, and Leonard Leo in particular, for judicial nominations. The criteria he will use instead appear to be cause for great concern, and we discuss this. Meanwhile, the Senate is poised to bypass the filibuster for more than judicial nominations, which calls for an analysis that we provide. And the publication this week of Charles
Possibly Preparing Humphrey's Execution
This past week, the Supreme Court issued stays of injunctions which lower courts had issued, those injunctions blocking the firings of officials on statutorily independent agencies. In doing so, the Court may have pointed to an imminent overruling of Humphrey’s Executor, possibly removing existing limitations on the unitary executive theory. At the same time, the Court moved to protect the Feder
The Merits of The Merits
The Trump executive order on birthright citizenship has been banging around the lower federal courts for months now, with court after court opining on its unconstitutionality and issuing injunctions against it that span the nation. The Supreme Court took cert on the question of whether such national injunctions are appropriate, and if not, how the relief that appears indicated can be offered. Al
A Judicious Life, Part One - Special Guests Dean Heather Gerken and Judge Kevin Newsom
With the passing of Justice David Souter, the legal establishment has lost one of its most honored members. In this and our next episode, we pay tribute to the man and his work with the help of an amazing roster of his former clerks, friends, and colleagues. We begin with Judge Kevin Newsom from the US Court of Appeals for the Eleventh Circuit, and the Dean of the Yale Law School, Heather Gerken
No School For You - Special Guest Vikram D. Amar
Law firms are threatened with draconian penalties, with scarcely disguised vengeful and politically destructive motive. Universities are dragged on the carpet, with demands that they forfeit their academic freedom, choice in hiring, and internal mission priorities. What’s going on here? What is likely to happen in Court? Are the firms and universities defensible on constitutional grounds as we
Equality, Emergencies, Exception, and Easter
Deportations, the administration’s preferred tactic du jour, appear to many as extreme, inadvisable, and often cruel. Are they unconstitutional? What framework can we use to determine the rights of citizens versus aliens, even if legal, even if permanent resident? What kind of process is “due” for the various groups? Where can we locate the origins in our history, and how do they interact with
Project 2026
Markets are crashing; freedom seems under siege; the international order is threatened. One man’s whim seems to be decisive. Where are the guardrails of our republic? We see some glimmers through the darkness, as some of the feedback mechanisms start to kick in. The constitutional order may be slow but it may not be completely in ruins. However, there is a threat, and we identify it in not on
Third Time, No Charm
President Trump likes being president. He doesn’t like the 22nd amendment so much, and has spoken, with increasing seriousness, of his conviction that he could remain president beyond the end of his second term. Various pundits have weighed in, some dismissively, others with grave declarations that Trump can accomplish this through constitutional contortions of one sort of another. Professor Am
Wisdom From Breyer To Pryor - Special Guest Judge William Pryor
We’re a bit late this week, because following our recent conversation with Justice Breyer, we had the opportunity to speak at length with Judge William Pryor, Chief Judge of the United States Court of Appeals for the 11th Circuit, former Alabama Attorney General, and an important member of the Judicial Conference the “national policymaking body for the federal courts.” Judge Pryor has had a colorf
The Shelter From The Storm - Special Guest Hampton Dellinger
President Trump has been firing various Federal officials, many of whom serve pursuant to statutes that claim to provide protection against firing without cause. One of the most prominent, Hampton Dellinger, who served as Special Counsel of the United States, took the President to Court, winning at the Federal District Court before losing on appeal. Why did he sue? Why did he drop his case? Wha
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