Several new polls were released over the weekend and Donald Trump is still trailing Joe Biden by roughly 7 to 10 points, depending where you look. Despite Biden’s steady lead, bad takes abound in the journalism world. “Here’s what happens when a race is not particularly close on the numbers,” Sarah explains. “People in the media try to make it more interesting by finding tea leaves and little nuggets that no one else has found and then blowing those up into their own narrative.” Sarah says it’s not always that the methodology of a particular poll is bad per se, “it’s that the causal relationship between the question and the result is assumed and not actually there.”

For example, a series of polls from this weekend show that a majority of Americans oppose Trump’s decision to fill the late Justice Ruth Bader Ginsburg’s Supreme Court seat before November 3. But as Sarah points out, this is a dumb survey question for two reasons: 1) the answers break down along party lines when you look a little closer at the survey responses, and 2) it doesn’t ask survey respondents whether it will change their vote, which is the only thing that matters at this point. That leads us to the New York Timesbombshell report on Trump’s tax returns and whether it will be of any consequence during this election. David and Sarah argue that loyal Trump supporters are simply too attached to the president at this point to care about any new scandals that emerge between now and November 3. Tune in to this episode for an update on presidential polling in battleground states, electoral litigation in Wisconsin and Pennsylvania, and a fun conversation about our podcast hosts’ favorite new documentaries.

A Louisville grand jury on Wednesday indicted one officer in connection with the March 13 police raid that took Breonna Taylor’s life. The grand jury declined to charge the two officers who fired directly at Breonna Taylor and her boyfriend that evening, instead only charging the third officer, who was outside and fired indiscriminately, with wanton endangerment. David explains the basic facts leading up to Taylor’s shooting, as well as the legality surrounding police raids and the right of self-defense under Kentucky law. “You begin to see where we’ve backslidden in our commitment to key constitutional liberties,” David explains, where “decades of bad Fourth Amendment jurisprudence has empowered violent tactics even when the stakes are low.”

On today’s episode, David and Sarah also address how much the chief justice matters to the trajectory of the Supreme Court and the democratic prudence of voluntary judicial restraint. After a requisite foray into all things SCOTUS, our podcast hosts are joined by Federal Elections Commission Chairman Trey Trainor, who explains the ins and outs of election law, foreign election interference, and why the FEC is paralyzed right now. Trainor also explains how campaign finance laws like the Bipartisan Campaign Reform Act have significantly weakened the national political parties while funneling money into the state parties in the process. “What’s happened is the smoke filled room has moved from Washington, D.C. to each of the 50 states.” Stick around for an inside scoop on the rise and fall of Kanye West’s presidential campaign.

Ruth Bader Ginsburg died on Friday, rocking the nation and setting the stage for a blistering Senate confirmation fight  should the Senate Judiciary Committee go through with the hearing process before the election. Today, our podcast hosts walk us through the history of SCOTUS vacancies, reflect on the legendary friendship between Justice Ruth Bader Ginsburg and Justice Antonin Scalia, and offer some rank punditry about what this SCOTUS vacancy means for the future of our republic. The question on everyone’s mind is: What happens next? Will Senate Republicans go through with the Supreme Court nomination process? Should they? Sarah and David have some thoughts. What’s clear is that Trump will fight tooth and nail to get a nominee through as a last ditch effort to energize his base. “The more the Democrats threaten him, his brand is that he cannot give in to threats,” explains Sarah. “It’s the ultimate ‘owns the libs’ move to fill the Ginsburg seat and enrage the left.” But who will president Trump nominate? Judge Barbara Lagoa of the 11th Circuit  is in the running, but 7th Circuit judge Amy Coney Barrett’s cult of personality on the right—especially within the pro-life community—will likely give her the winning ticket. “If RBG is Michael Jordan,” Sarah explains, “ACB is Lebron James.” Stick around for a deep dive into the filibuster’s life expectancy, the possibility of a Democratic court packing scheme, and the likelihood of an Electoral College split this November.

Show Notes:

After reflecting on the best and worst parts of our country’s founding document for Constitution Day, David and Sarah dive into Attorney General Bill Barr’s Constitution Day address at Hillsdale College yesterday, in which he defended political judgment in bringing prosecutions and railed against federal prosecutors’ propensity to punish as much misconduct as possible. Our podcast hosts agree with Barr that there is an effort by federal prosecutors to expand federal criminal law to an unreasonable degree. But David reminds us that federal prosecutors are not just the instrument to be wielded by the attorney general, they are charged with carrying out laws that have been passed by Congress.  “Perhaps we have gone too far with civil service protections,” Sarah explains, “and that we are unable to remove anyone who is part of the permanent federal bureaucracy even for misconduct at this point really.”

Most of the news headlines referencing Barr’s speech highlighted his comparison between career federal prosecutors and preschoolers, as well as his rather distasteful comparison between coronavirus lockdowns and … slavery. “You know, putting a national lockdown, stay at home orders, is like house arrest,” Barr said yesterday in response to a question about the constitutionality of stay at home orders. “Other than slavery, which was a different kind of restraint, this is the greatest intrusion on civil liberties in American history.” Sarah suggests a new legal truism on today’s episode: If you compare anything to slavery, you’ve already lost your argument.

For the month of August, the Biden campaign outraised the Trump campaign by a whopping $150 million. (Biden raked in $360 million last month compared to Trump’s $210 million). As stark as this fundraising difference may be, is there any reason to believe it will be meaningful in the long run?A lot of this money will go toward television ads at this point, but campaign money starts diminishing in value once people start voting by mail. In other words … now. Not to mention that the fundraising difference doesn’t matter so long as each candidate meets a certain threshold. On today’s campaign update episode, our podcast hosts discuss these fundraising efforts while dissecting Trump’s surprising lead with Hispanic voters as well as the usefulness of yard signs, door knocking, and phone banking to a campaign’s overall success. Rather than waste time putting up yard signs or trying to persuade voters to vote with ideologically charged Facebook posts, Sarah argues that the most important—and statistically effective—thing you can do to boost voter turnout is text your closest friends and remind them to vote. As David points out, “It fits in with the sort of general reality that we have a large amount of influence over a small amount of people and a small amount of influence over a large number of people.” Stick around for a discussion about the newest additions to Trump’s Supreme Court list—also known as Sarah’s close friends list—as well as David’s latest Sunday French Press newsletter on the use and abuse of critical race theory.

Show Notes:

Last week, President Trump encouraged North Carolina voters to test their state’s election security. David and Sarah discuss how, exactly, someone commits voter fraud, and what voters need to know as we close in on this November’s election. But that’s not all: Sarah gives us the latest on the state of the race and how the Trump campaign lost its cash advantage. Plus, David has some thoughts on Tenet.

Show Notes:

There’s a bit of post-2016 election PTSD among American political strategists, where any slight uptick in Trump’s polling numbers is perceived as an emergency situation for the Biden campaign. But despite the almost constant news cycle turbulence in American politics that would have caused big swings in a normal presidential election, the polls have remained relatively stable over the past few months. Biden remains in a clear and comfortable lead over Trump on practically every policy issue except for the economy. Why? According to Sarah, “It’s because of the referendum effect, and it’s because of the wild partisanship moment we’re in right now.” How stable are these divisions that have emerged? Hyper-partisanship isn’t going anywhere as we approach the presidential election, and as David reminds us in today’s episode, “these identities are cementing at the state level as well.” After going deep into the weeds on the latest presidential polls, our podcast hosts delve into the temperamental differences between city life and suburbia, the president’s memorandum on combating lawlessness in America’s cities, and a primer on time, place, and manner restrictions on the First Amendment.

Show Notes:

Ever since its humble beginnings in March 2016, The Babylon Bee—a Christian, conservative version of The Onion—has been a godsend for Americans who have become worn out by news outlets that take themselves too seriously. From its theological inside jokes about the prosperity gospel to its long-standing feuds with Snopes and CNN, the Bee has made its mark in the world of satire. On today’s episode, David and Sarah are joined by the Babylon Bee’s editor-in-chief, Kyle Mann, who tells us about the challenges of satire writing in a cultural moment when it’s not always easy to determine fact from fiction. “There is an element where it’s not that our articles are too close to reality, it’s that reality is too close to satire,” Mann explains. “It’s what makes it so hard to write because you write something that you think is so goofy and over the top and then people believe it because reality is so crazy.” Listen to today’s episode for a conversation about C.S. Lewis’ best books, Kyle’s joke-writing process, and a tell-all about why Twitter’s decision to temporarily deplatform and demonetize the Babylon Bee was ironically “the best thing that could happen” to the team. Today’s episode would be incomplete without its requisite dose of legal nerdery. Tune in to hear David and Sarah discuss the never-ending saga with Michael Flynn, the McGahn case, and Sarah Palin’s defamation case against the New York Times.

Show Notes:

Violent riots escalated quicky in Kenosha, Wisconsin, after the police shooting of Jacob Blake. . On Wednesday, 17-year-old Kyle Rittenhouse was charged with first-degree homicide for the shooting deaths of two people in Kenosha on Tuesday evening. Sarah and David break down what we know and don’t know about the Jacob Blake shooting on today’s episode of Advisory Opinions and talk through the legality of vigilante justice during times of unrest. “These really traumatic events are playing out in front of all of us,” David says on today’s episode. In one sense they’re playing out in a way that’s quite transparent because you can see the actual shootings on tape. “But there’s still a disturbing amount of fog around all of the incidents,” he adds. As Sarah explains, “We’re never talking about black and white cases but then everyone treats them like they’re black and white cases.” From a legal standpoint, law enforcement officials will have to fill in those gaps before they can render a clear legal judgment in all of these shootings. Sarah and David also take a walk down memory lane by revisiting Bush v. Gore, while also diving into the recent TikTok lawsuit and a fun conversation about our podcast hosts’ favorite parts of adulthood.

Show Notes:

Today our hosts are joined by Phill Drobnick, head coach of the Olympic curling team, for some hot takes about the sport that inspired Sarah’s new campaign newsletter The Sweep. Listeners who are unfamiliar with this sport, which gets even passing national coverage only during Winter Olympics years, might be wondering about curling’s origins. “It started in Scotland, like every goofy sport that involves beer,” explains Drobnick on today’s episode. The sport then took off in Canada and then around the world. When people watch curling during the Olympics, they become armchair referees who don’t realize how much strategy is at play behind the scenes. How similar is curling to golf and hockey? Do sweepers make or break the game? Is there a culture of collegiality or trash talk in the professional curling universe? Coach Drobnick has got answers. Tune in to today’s show to hear Sarah and David also discuss the partisan skew in absentee voting, the increasing likelihood of another Bush v. Gore-style debacle over mail-in voting, and the RNC’s nonexistent platform moving into this week’s convention.

Show Notes:

Former Trump advisor Steve Bannon was arrested Thursday—along with Brian Kolfage, Andrew Badolato, and Timothy Shea—after federal prosecutors discovered they defrauded donors involved with the “We Build the Wall” campaign, a GoFundMe that shored up $25 million in donations since its inception in 2018. The unsealed federal indictment is damning, and even shows evidence of the grifters’ amusement with scamming their donors and misappropriating the funds for personal use. The grift looks a lot like what happened recently with the NRA with Wayne LaPierre, and reminds us that scamming donors is an ever-present problem on the Right. As David says on today’s pod, “Right-wing institutions are bilking from angry grandpas and grandmas—their extra dollars—to fight for the people, when they’re really conning the people.” Catch the latest episode for some highlights (and lowlights) of the Democratic Convention, a primer on employment law in relation to the Goodyear diversity slideshow, Facebook’s strike against QAnon and Antifa, and an answer to a listener question from about the citizenship of a tv show character.

Show Notes:

The 9th Circuit recently heard an appeal from a challenge to the state of California’s ban on large capacity magazines (in this case, any magazine that holds 10 or more rounds). California didn’t just ban the sale of these magazines, it banned their transfer, importation, and outright possession in the state. The 9th Circuit ended up striking down this law and departing from its sister circuits on the question of scrutiny. The precise contours of the Second Amendment remain up in the air in the post-D.C. v. Heller era, but our podcast hosts are armed with a war chest of constitutional history that helps break down gun rights precedent for our listeners. In today’s episode,  Sarah and David also dive into the John Durham probe into former FBI lawyer Kevin Clinesmith’s falsified surveillance warrants against Trump campaign adviser Carter Page.

In keeping with August’s Monday nerdery trend, our hosts are joined today by Rob Daviau, a professional legacy board game creator. Daviau has worked on more than 80 published games—including Risk 2210 AD, Axis & Allies Pacific, Star Wars Epic Duels, and Clue Harry Potter—and has been a professor of game design at Hampshire College and NYU. Tune in to today’s episode to learn the ins and outs behind legacy board game creation and to learn why a game with bad math doesn’t work.

In 2017, an anonymous individual named “Q” began posting on a public messaging board called 4chan about “Pizzagate,” a conspiracy theory alleging that a restaurant called Comet Ping Pong was really an underground child sex trafficking ring run by deep state political elites. Q quickly gained acclaim online after he continued posting unsubstantiated clues—what QAnon followers call “bread crumbs”—about a prophetic “Great Awakening” that is in store, when deep state Democrats will supposedly be held accountable for their “crimes.” On Tuesday, avowed QAnon sympathizer Marjorie Taylor Greene won a Republican congressional primary in Georgia. Beyond her avowal of QAnon, she is a 9/11 truther, has called black people “slaves” to the Democratic Party, and has characterized the 2018 House midterms “an Islamic invasion of our government.” What’s worse, the president congratulated her win on Twitter after her victory. Given Georgia’s 14th District is a reliably red district, she’s almost certainly headed toward Congress. What does this mean for the future of the GOP? David and Sarah have some thoughts.

Be sure to listen to today’s episode to hear our podcast hosts discuss the new police officer body camera footage leading up to George Floyd’s killing, as well as the constitutional underpinnings of John Eastman’s Newsweek piece questioning Kamala Harris’ eligibility for office on birtherist grounds.

How realistic is the SpaceX dream to get to Mars? What does the latest scientific literature have to say about supernovae? Is there intelligent life in the universe? Today, Sarah and David are joined by Atlantic staff writer Marina Koren for a deep dive into all things space. Hear everything there is to know about the space race between Elon Musk and Jeff Bezos, colliding black holes, and other crazy interstellar phenomena.

But today’s episode would be incomplete without its requisite dose of legal nerdery. Tune in to hear David and Sarah break down the legality of Trump’s latest executive actions and offer some insights on the D.C. circuit’s decision regarding the House Judiciary Committee and former White House counsel Don McGahn.

People who watch and comment on politics do so very differently than campaign operatives do. Campaigns use voter scores and voter modeling—which is essentially “Moneyball” for politics—to gauge which voters are worth spending money on. As Sarah explains: “It’s a quadrant: on the y axis you have who you’re going to vote for, and on the x axis, you have your likelihood to vote. So you may be the most Trump-y Trump person ever.” But here’s the kicker: “If I go and look back and you haven’t voted since Jimmy Carter, your propensity to vote is so low, that how much money we’re going to spend on reaching you as a voter is going to actually be pretty low.” Be sure to listen to this episode so our podcast hosts can get more into the weeds about how those voter scores are being used behind the scenes in future episodes.

The country is still mourning the death of Breonna Taylor, an African American woman who was shot and killed by police officers in her Kentucky home during a no-knock raid in March. For years, no-knock warrants have withstood the test of time, given their alleged capacity to protect police and preserve evidence. But as David says, “there’s evidence that no-knock warrants are constitutionally deficient,” and “as a practical matter, castle doctrine and no-knock warrants are incompatible.” Sarah, on the other hand, doesn’t believe the castle doctrine should apply to police. Are no knock raids worth preserving? Why are they so broadly granted to police officers? Sarah and David have answers. Catch up on the latest episode for an update on the Michael Flynn case, subpoenas for Trump’s financial records, and the Hatch Act.

Rewind millions of years and a dinosaur-killing asteroid is racing toward Earth at breakneck speed. But what exactly happened in the immediate aftermath of this event? Which species survived and which ones were met with instantaneous extinction? In a much-needed break from today’s partisan political climate, David and Sarah are joined by Steve Brusatte, a professor of paleontology and evolution at the University of Edinburgh, for some in-the-field expertise on the dinosaur age. “When the dinosaurs died,” Steve Brusatte explains on today’s podcast, “they died literally because a six-mile wide rock fell out of the sky, traveling faster than a speeding bullet.”

Fast forward to 2020, and paleontology is in high demand. “We’re in this golden age right now,” Brusatte tells David and Sarah. “There’s fifty-something new species of dinosaurs being found every single year.” But realistically speaking, most people have a limited knowledge base about dinosaurs. Was the Tyrannosaurus rex an intelligent dinosaur? Are pterodactyls birds? What are the personality traits that make a good paleontologist? Steve Brusatte has answers. Tune in for some fun facts about pinocchio dinosaurs, banana-sized T-rex teeth, and birds (which are dinosaurs, by the way). For all you Jurassic Park fans out there, you won’t want to miss this one (especially since Brusatte is now a science consultant for the series.)

The D.C. Circuit has decided to hear the Michael Flynn debacle en banc. For the meantime, as Sarah reminds us on today’s episode, “Michael Flynn seems to be getting some extra justice that a lot of criminal defendants would be really happy to get.” If it goes back to the district court, would Trump pardon him? Our podcasters weigh in.

On Thursday morning, President Trump tweeted that we should consider delaying the election over mail in ballot concerns, which of course he can’t do without congressional approval. Based on data collected from states that regularly use mail-in voting in elections, election fraud isn’t a real concern. But it’s also worth noting that these states were able to plan for their elections years in advance, whereas the pandemic is forcing states into preparing for mail-in voting on a mass scale on very short notice. Are states ready for the legal discrepancies and inevitable ballot invalidations that will ensue? Beyond some election punditry, our podcast hosts also touch on the Supreme Court conference leaks to CNN legal analyst Joan Biskupic, the latest updates with DACA, and some hot takes on the importance of the bar exam.

Our esteemed podcast host Sarah Isgur launched her new Dispatch newsletter called “The Sweep” today, in which she broke down the effectiveness of the new presidential campaigns ads. Conclusion? Biden’s new ads are strategically boring to offset his opponent’s predictable unpredictability, whereas Trump’s play up the anarchy of the radical left. As Sarah reminds us, persuasion ads don’t work. This leaves candidates with two options: 1) Run up their existing base in enthusiasm and support, or 2) Get their opponent’s base not to vote.

Justice Roberts trended on Twitter Friday night after joining the four liberal justices in denying a Nevada church’s application for injunctive relief over coronavirus restrictions. Religious liberty lovers sounded the alarm for First Amendment violations. But our podcast hosts are less concerned about this case’s long-term effect on religious liberty case law, given the state’s interest in restricting mass gatherings will soon be subverted to transcendent religious liberty concerns once the pandemic subsides. As David says, “The real enemy is not Justice Roberts, the real enemy is the coronavirus.”

A federal judge ordered the release of Trump’s former attorney Michael Cohen from prison on Thursday. On July 9, Cohen and his lawyer went into the U.S. Probation Office in Manhattan to transition from furlough to home confinement. But instead Cohen was arrested by three U.S. Marshals and brought back to prison. Why did this happen? David and Sarah explain.

Check out today’s episode to hear our podcasters discuss the presence of federal police in Portland, the defamation lawsuit against MSNBC host Joy Reid, and Trump’s latest executive order excluding illegal aliens from the 2020 census for apportionment purposes. David and Sarah wrap up the episode with a fiery debate over their favorite legal tv shows.

The 2019-2020 Supreme Court term was quite the spectacle: the court canceled its March and April argument sessions, held oral arguments by telephone for the first time in May, and stretched its opinion announcements into July for the first time in many years. The term was packed with several blockbuster cases and ended with an announcement from Justice Ginsburg about a pancreatic cancer recurrence. And in the haze of it all, many Americans are still puzzled by some of the rulings. Our podcast hosts are here to help.

Has the conservative legal movement failed?  Will disputes over mail-in ballot counting turn November into a Bush vs. Gore 2.0? And the million-dollar question: What’s up with Chief Justice John Roberts? On today’s episode, David and Sarah are joined by SCOTUSblog’s Amy Howe to field some questions about recent cases and tie a bow on what became a rather unprecedented year for the justices. Tune in for an exclusive look into the origins of SCOTUS Blog and some punditry on the cases that are on the docket for next term.