This is the story of Bond. Carole Anne Bond. She discovered her husband and her best friend were having an affair. And her friend was pregnant. What Bond did next led to a federal conviction for using chemical weapons and two trips to the Supreme Court. While all the justices agreed Bond’s conviction could not stand, the majority declined to reach the underlying constitutional issue—leaving it to die another day. But three justices disagreed, arguing tomorrow never dies.

Thanks to our guests Amy Howe and Nicholas Quinn Rosenkranz.

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.

 

The Political Orphanage’s Andrew Heaton joins the ladies to discuss big cases (guns, abortion, and executions, oh my!) coming up in the Supreme Court’s new term. Stay tuned for a SUPREME poetry slam.

Check out our guest’s podcast here:  https://mightyheaton.com/dissed. Follow us on Twitter: @EHSlattery @Anastasia_Esq @PacificLegal

The ladies discuss the cursing cheerleader case, Pacific Legal Foundation’s win in a property rights case, and two fractured, mind-boggling separation-of-powers cases. Plus, stay tuned for “Name that dissent!”

 

The ladies discuss the Supreme Court’s recent opinions and dissents related to the Affordable Care Act and a dispute involving Catholic Charities, same-sex couples, and foster care. Plus, stay tuned for “Name that dissent!”

This is the story of the most consequential Supreme Court case in history: Dred Scott v. Sandford. It was a catalyst for Abraham Lincoln’s famous “House Divided” speech, which catapulted him onto the national stage.

It led a dissenting justice to resign in protest. And it plunged our nation into its darkest hour—a civil war that nearly tore us apart. Join us as we explore what it means for our country and our Constitution today.

A license to arrange flowers? Laws mandating higher prices during difficult financial times? Government lawyers defending economic regulations on the basis of possible extraterrestrial activity? Welcome to the wacky world of the constitutional right to earn a living, which since the 1930s has been relegated to the lowest level of protection by the Courts.

In this episode, the ladies discuss the origins of the “tiers of scrutiny” that apply depending on whether you’re talking about judicially favored rights, like free speech, or other rights, like the right to earn a living. In a scorching hot dissent from the 1930s, one justice seemed to predict how this lax treatment by the courts would affect entrepreneurship, innovation, and employment today.

Since the Supreme Court first upheld the constitutionality of affirmative action in college admissions in 1978, the clock has been counting down to a time when it would no longer be necessary. Instead of winding down their use of racial preferences, colleges have doubled down, to the point that one justice called it “affirmative action gone berserk.” From Bakke to Grutter to Fisher and beyond, has the time come for the Supreme Court to embrace a Constitution that “neither knows nor tolerates classes among citizens”? Tune in to find out!

Special thanks to guests Roger Clegg and John Yoo.

42 U.S. Code § 1983 is one of our nation’s most important civil rights statutes and it offers plaintiffs a way to seek damages against state officials in federal courts. But in Pierson v. Ray, the Supreme Court created a defense under Section 1983 for public officials, called qualified immunity, even if they do in fact violate people’s rights. In dissent, Justice Douglas called the doctrine “a more sophisticated manner of saying ‘The King can do no wrong.’” He was talking about immunity for judges, but his dissent was prescient when it comes to how qualified immunity prevents us from holding police officers accountable today.

 

In this bonus episode, the ladies discuss the Supreme Court’s recent opinions and dissents related to juvenile life sentences, disputes between states, and immigration proceedings. Plus, stay tuned for “Name that dissent!”

 

For much of our nation’s history, courts asked whether government physically intruded on property to determine if it violated the Fourth Amendment’s prohibition on unreasonable searches and seizures. The Supreme Court later adopted a standard looking at whether the government violated an individual’s “reasonable expectation of privacy.” But in recent years, the property-based approach has been making a comeback, most recently in Justice Neil Gorsuch’s dissent in Carpenter v. United States. Will the property-based approach knock out the reasonable expectation of privacy test? Tune in to find out!

Special thanks to guests Orin Kerr, James, Stern, and Jamil Jaffer.

The ladies discuss the Supreme Court’s latest COVID order and Justice Breyer’s “dissent” on court packing. Plus, stay tuned for “Name that dissent!”

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Almost as soon as the government started passing measures to curb the spread of COVID-19, the lawsuits began. Many of them wound up arguing about Jacobson v. Massachusetts, a 1905 Supreme Court decision that said states had the power to impose mandatory smallpox vaccinations. If the government has the power to vaccinate you, surely—regulators argued—it has the power to do things like shutting down businesses. But the existence of another case that term, called Lochner v. New York, calls into question that narrative. What does Jacobson actually have to say about when a regulator walks into a pandemic? Tune in to find out.

 

In the spring of 1837, Justice Joseph Story was despondent. A new chief justice—the infamous Roger Taney—had just joined the bench. And the Supreme Court decided Charles River Bridge v. Warren Bridge over Story’s dissent. The case signaled a shift from a court that favored strong federal power and robust constitutional protections for property rights, and gave way to the new populist, Jacksonian-influenced view opposing purported monopolies and seeking to invigorate states’ rights. Was Story the “last of the old race of judges”? Tune in to find out!

 

President Harry Truman once said, “I thought I was the president, but when it comes to these bureaucrats, I can’t do a damn thing!” In Justice Antonin Scalia’s most famous dissent, Morrison v. Olson, he argued that the President must have the power to remove executive branch officials, and Congress cannot limit that power. But for nearly a century, the Supreme Court has allowed Congress to do just that. This term, the Supreme Court will once again consider limits on the President’s removal power in Collins v. Mnuchin. Does the President have constitutional authority to tell executive officials, “You’re fired?” Tune in to find out!