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.

 

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.

 

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.

 

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.

 

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.

 

With the GOP’s Senate majority hanging by a thread, all eyes are on the Peach State and whether Republican Sens. David Perdue and Kelly Loeffler can hold onto their seats in their January runoffs. But could all of these election conspiracy theories that are being circulated by conservative pundits and politicians ironically end up depressing turnout among GOP voters in these races? “Over last night and this morning,” David explains on today’s podcast, “there was suddenly a lot of people who were sowing unfounded accusations of voter fraud, realizing that they may be reaping the loss of the Senate.” Today’s jam-packed episode also features a breakdown of several religious liberty cases, the White House’s alleged pay-for-pardon scheme, the U.S. census case, Attorney General Bill Barr’s special counsel appointment, and HBO’s The Undoing.

 

Over Thanksgiving break, the Supreme Court struck down New York Gov. Andrew Cuomo’s strict coronavirus related occupancy limits to 10 or 25 worshipers in churches and synagogues located in orange and red zones in the state. In a 5-4 per curiam decision, the majority sided with Roman Catholic Diocese of Brooklyn and Agudath Israel, who argued that Cuomo’s COVID-19  regulations treated houses of worship differently from comparable secular institutions, especially considering the religious plaintiffs in question went above and beyond in preventing COVID-19 outbreaks within their doors.

 

In Monday’s emergency episode of the podcast, David and Sarah bring us up to speed on the Trump legal team’s latest litigation drama, which has become nothing short of a clown show. One of the most puzzling aspects about all of this is the striking gap between the Trump campaign’s public rhetoric about widespread voter fraud during press conferences and its much more modest—albeit still meritless—legal arguments in the courtroom. No matter how you slice it, the president’s legacy is on the line here. In Sarah’s words: “This is what he’s going to be remembered by.” Our hosts discuss the Trump campaign’s failed Pennsylvania election lawsuit and Thursday’s rather unconventional press conference given by Sidney Powell, Rudy Giuliani, and Jenna Ellis. Then Sarah’s husband, Scott Keller joins the podcast to spar with David about nationwide injunctions.

 

Rudy Giuliani has come out of retirement for the first time in 28 years to litigate on behalf of the Trump campaign. To say his gears were a little rusty would be the understatement of the century: Giuliani walked into court this week and couldn’t remember the name of the judge, couldn’t remember the name of his opposing counsel, couldn’t remember the meaning of “opacity,” and couldn’t argue the proper standard of review in the case. As our podcast hosts remind us, effective lawyers not only know how to make a constructive argument, but also tailor their advocacy to the humanity of the judge. Giuliani did neither of these things. After catching up on the latest election litigation disputes, David and Sarah discuss imminent lawless action in the context of the First Amendment and two of their favorite television shows.

 

A segment of the right-wing public has morphed into a conspiracy theory machine that is—in David’s words—propagating baseless voter fraud allegations at “a geometric rate that [bears] increasingly no relationship to the real world at the same time as the actual claims in court are just evaporating.” Why are people on the right and the left so susceptible to electoral conspiracy theories? After David and Sarah play catchup on the latest developments involving election litigation, they dive into a 1st Circuit race-based admissions case at Harvard, the latest updates on DACA, and The Mandalorian.

 

The Trump campaign is swinging for the fences in most of its litigation efforts in hopes that at least some of its legal arguments will be successful. But as our podcast hosts remind us, most of the president’s post-election lawsuits are unlikely to change the outcome even if the Trump campaign scores a few victories along the way. “The Trump administration could win, dunk on the opposition, hang on the rim, taunt its opponents, and nothing changes,” David explains. On today’s podcast, David and Sarah explain the overall legal context surrounding the president’s ongoing election litigation efforts and give us the lowdown on the latest voter fraud conspiracy theories. Plus, David and Sarah break down Supreme Court oral arguments for the Affordable Care Act case and discuss a race-based admissions lawsuit at Harvard.

 

Twitter is brewing with wildly unsubstantiated claims of voter fraud as election officials in battleground states continue to count ballots. For today’s myth busters edition of the podcast, David and Sarah discuss the nitty gritty details surrounding ballot-counting processes and whether the conspiratorial claims surrounding voter fraud allegations have any merit. “If voter fraud is a religion for you,” Sarah warns, “go find yourself another pod today.” They wrap things up with a conversation about exit polls and some Supreme Court punditry.

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We’ve already seen record early turnout this election cycle. Our hosts have three major takeaways from the surge: 1) It means the polls are more likely to be accurate (the registered voter number is likely to reflect the actual voter number), 2) It means that we’re going to see interesting shift in how both candidates’ spend time on the campaign trail before Tuesday, 3) It means we have a record number of absentee ballots, which will lead to a concomitant surge in election litigation. In the hopper for the rest of today’s podcast: judicial oaths of office, turnout in swing states, and election litigation galore (with a close look at Wisconsin and Pennsylvania!)

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Echelon Insights predicts that we will see record turnout this election cycle. How might a surge in, say, 2o million new voters this year affect the presidential race in battleground states? “If we’re talking the day after the election about why the polls were wrong,” Sarah warns on today’s episode, “it will be because of the extraordinary turnout, and [pollsters] were unable to figure out where those turnout increases were coming from.” Tune in to today’s episode to hear David and Sarah’s take on early voting in swing states, the importance of political rallies, and the DoJ’s antitrust lawsuit against Google.

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Still shocked by the grand polling meltdown of 2016, many Americans on both sides of the aisle are convinced that Biden’s double digit national polling lead is inaccurate and that Trump will somehow win the election in a landslide. This theory has three main hypotheses: 1) Trump is such a uniquely divisive candidate that his supporters lie to pollsters and say they plan to vote for Biden, 2) the likely electorate problem, and 3) Republicans are less likely to talk to pollsters in the first place. Sarah and David break down these theories and explain why they’re overblown given the data we have at this point in the race. Stay tuned for a legal breakdown of the Supreme Court’s latest cert grants related to deer jacking, the hot pursuit doctrine, asylum seekers, and the southern border wall.

Show Notes:

It’s October 15, 2020, and 12.4 percent of the votes that were cast in the 2016 election have already been cast this election cycle. Sarah and David try to discern through the tea leaves what this means for voter turnout this year. “There’s two different schools of thought here,” Sarah says. “One is that we’re on pace to have record turnout and one is that we’re simply banking Election Day votes early this time.” On today’s episode, our podcast hosts also discuss the journalistic, political, legal implications of the New York Post’s Hunter Biden story before breaking down the key ingredients to a successful marriage.

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The Senate Judiciary Committee kicked off its confirmation hearings for Supreme Court nominee Amy Coney Barrett today with a predictably partisan spin. There were dog whistles from Republicans about religious tests and procedural complaints from Democrats in defense of the Affordable Care Act and against advancing Barrett’s nomination before November 3. But all things considered, the first day of the hearings was relatively uneventful, which may have come as a shock to those who watched the rather lively Brett Kavanaugh hearings in 2018.

Our podcast hosts argue that boredom is a win for the Biden campaign’s Do No Harm strategy, as any sound bite attacking Barrett’s religion or character could depress the Democratic candidate’s current 10-point lead over Trump. David argues that if Democrats want to preserve Biden’s steady lead, they will do everything to avoid even “a single viral moment that puts them in the villain role” during these hearings. Check out our latest episode to hear David and Sarah discuss the Affordable Care Act’s lifespan, partisan judicial elections on the state level, and the Capitol Hill Baptist Church lawsuit.

Sen. Kamala Harris and Vice President Mike Pence faced off Wednesday evening for their first and only vice presidential debate. But analysis of the candidates’ performance was disrupted by Trump’s announcement Thursday morning that he will not participate in the October 15 virtual debate against Joe Biden. Is the president bluffing? Or is he simply trying to hide his COVID-19 symptoms from the American public? The president has released a series of videos via Twitter this week in which he assures the American public of his recovery. But these videos are produced by the White House, meaning they can do multiple takes and edit out any evidence of the president’s lingering symptoms. “You can’t do that when in a debate,” Sarah points out, reminding us that any of the president’s coughs or bouts of heavy breathing would instantly go viral if caught on-screen. After some punditry about what this means for the Trump campaign’s reelection strategy, tune in for Sarah and David’s thoughts on the forthcoming Amy Coney Barrett Senate confirmation hearings, the strategic ambiguity of Biden’s court packing comments, and the criminal allegations against Texas attorney general Ken Paxton.

Show Notes:

Supreme Court oral arguments have resumed via telephone and our podcast hosts are nerding out. The court kicked off today with an interesting denial of cert from the Supreme Court on a case out of Kentucky involving Kim Davis, the county clerk who refused to certify marriage licenses to same-sex couples in 2015 for religious reasons. “This petition provides a stark reminder of the consequences of Obergefell,” Justice Thomas wrote in a statement on Monday joined by Justice Alito. “By choosing to privilege a novel constitutional right over the religious liberty interests explicitly protected in the First Amendment, and by doing so undemocratically, the court has created a problem that only it can fix.” On today’s episode, our podcast hosts discuss the evolution of religious liberty and discrimination law, ongoing election disputes in Wisconsin and Pennsylvania, and the latest updates on the presidential campaign ad wars. Sarah and David wrap things up with a fun constitutional exercise by poking holes in the 25th Amendment and unpacking what happens when presidents die at different points in the cycle.

Show Notes:

How will Amy Coney Barrett shake things up on the bench if she is confirmed by the Senate before November 3? “Amy Coney Barrett will not be as revolutionary as the left fears or the right wishes,” Sarah argues, “Because no justice really is, because it’s one vote.” On today’s episode, David and Sarah address the hysteria surrounding her upcoming Senate confirmation battle while breaking down what a 6-3 conservative majority would mean for the future of Supreme Court jurisprudence. Sarah and David are also joined by Ilya Shapiro—director of the Robert A. Levy Center for Constitutional Studies at the Cato Institute and publisher of the Cato Supreme Court Review—for a conversation about the politics and history of Supreme Court nominations. To a certain degree, politics has always played a role in Supreme Court nominations. What makes this era unique? “What’s different is that you have divergent interpretive theories mapping onto partisan preference at a time when the parties are more ideologically sorted than they’ve been since at least the Civil War,” Shapiro argues. When it comes to divergent legal theories, “every decade provides a new escalation.” Tune in for a conversation about the future of First and Second Amendment jurisprudence, the left’s misconceptions surrounding Roe v. Wade, and the problems associated with public hearings for judicial nominations.

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