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.

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.

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.

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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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.

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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.

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.

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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 Times’ bombshell 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.

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.

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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.

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