In 1978, amid a sordid history of Native American children being taken from their families and placed in custody of non-Indians, Congress passed the Indian Child Welfare Act, or ICWA. Though passed with good intentions, critics say ICWA actually offers Indian children less protection than non-Indian children solely because of their ancestry. This term, the Supreme Court will decide Brackeen v. Haaland, which challenges the constitutionality of ICWA. But a case nearly a decade ago foreshadowed the constitutional arguments that are now before the court.

Thanks to our guests Timothy Sandefur and Oliver Dunford.

In 1944, the Supreme Court upheld the wartime internment of Japanese-Americans. It’s the first time the court applied strict scrutiny to racial discrimination by government. Over the protests of three justices, the Court held in Korematsu v. United States that the Roosevelt Administration met that exacting standard. One of the dissenters lamented, “Racial discrimination … has no justifiable part whatever in our democratic way of life.” Nearly 75 years later, the court would explain that ruling “was gravely wrong the day it was decided” and “has been overruled in the court of history.” What is Korematsu’s legacy and how is it casting an influence on the court today?

In this bonus episode, the ladies tell the sad tale of John Rutledge, the first Supreme Court nominee rejected by the Senate. It’s a cautionary tale that demonstrates why justices should hold their fire for their dissents rather than political speeches.

Dairy and apples and whiskey and wine. Many of our favorite things have turned in up cases involving the Commerce Clause at the Supreme Court. This term, the Court will consider whether a California law regulating the sale of pork violates that Clause. Some think the Court will strike California’s pork ban down. Others wonder, based on recent dissents, whether the justices will use this opportunity to get rid of the “dormant Commerce Clause” doctrine altogether. Join the ladies as they take a romp from the 1780s to present day in search of the “dormant Commerce Clause,” a phrase frequently invoked but not actually found anywhere in the Constitution.

Supreme Court Justice Clarence Thomas is well known for his heterodox legal views and willingness to stick to his principles. What’s less known is his incredible story. Born dirt poor in the segregated south, Thomas’s work ethic and intellect led him to Yale Law School, then to becoming Chairman of EEOC, then to nomination as federal appellate judge, and finally to to confirmation as a Supreme Court Justice. According to Mark Paoletta, co-editor of a recently released book about the justice, Thomas’s life “is more stunning and amazing than just about anybody in public life as we know it.”

What are “navigable waters of the United States”? It’s a question agency bureaucrats and property owners have battled over since the passage of the Clean Water Act in 1972. A Supreme Court ruling in 2006 that could have cleared it up is … about as clear as mud. This term, in Sackett v. EPA, the Court may finally provide the answer.

In this bonus episode, the ladies are joined by two fellow SCOTUS watchers to preview the Supreme Court’s new term.

This episode concerns one of the most vociferous dissents of all times: Justice Antonin Scalia’s scathing opinion in United States v. Virginia, which was aimed at none other than his close friend and writer of the majority opinion, Justice Ruth Bader Ginsburg. RBG’s reaction to Scalia’s fiery critique? Gratitude. As she put it, Justice Scalia’s dissent was instrumental in sharpening her own opinion.

There’s a lot to be learned from this case not just about equality before the law, but about searching for common ground when there appears to be none and maintaining a friendship with people who have different views than your own. This episode is not only about the case that brought down single-sex education at the Virginia Military Institute; it’s also about the importance of dissent in a society that is less tolerant of opposing viewpoints than ever.

In 1952, the Supreme Court smacked down President Truman’s attempt to seize the nation’s steel mills. The dissenters—who happened to be Truman’s poker buddies—would have given the president flexibility to deal with this purported emergency, but the majority issued a swift rebuke. And one justice’s concurrence has continued to shape the way we think about executive power and emergencies to this day.

Antitrust is making headlines, with figures as diverse as Josh Hawley and Elizabeth Warren seeking to use it as a shiny new tool to rein in big tech. But some of the policies they’re pushing were tried before in the 1960s, and they ended up penalizing perfectly competitive conduct just out of animosity for “big business.” A Supreme Court dissent that paved the way for a consumer-first antitrust standard offers lessons about why we shouldn’t be so eager to return to 1960s anti-trust policy and gives us some insight into why big isn’t always bad.

In the landmark ruling District of Columbia v. Heller, Justices Antonin Scalia and John Paul Stevens wrote dueling originalist opinions examining the right to keep and bear arms. They both looked to the Second Amendment’s text, history, and tradition to reach … opposite conclusions about its original meaning.

The idea of “court-packing,”⸺that is, adding seats to the court for political purposes⸺has recently gained steam for the first time in nearly 100 years. The last time we heard about court-packing, President Franklin Delano Roosevelt’s plan to add more justices was supposedly staved off by the infamous “switch in time that saved nine.” As the story goes, Justice Roberts (no, not THAT Roberts) strategically cast his vote in West Coast Hotel v. Parrish in way that subdued popular support for FDR’s proposal. But a closer look into that case reveals that not everything is as it seems, as well as the perils that come with trying to pack the Court.

In 1883, a Supreme Court ruling signaled the end of federal efforts to protect newly freed slaves and ushered in the era of Jim Crow laws. One justice, later called the Great Dissenter, stood alone in dissent. Join us as we explore the once-forgotten dissent of John Marshall Harlan in the Civil Rights Cases and how it saw a rebirth nearly a century later.