5-4

Peter, Rhiannon, and Michael join the hosts of the podcast Know Your Enemy for a conversation about the conservative legal movement. They discuss the origins of conservative doctrines like originalism and textualism, and the rise of the Federalist Society from a small group of conservative students and academics to an organization whose members constitute the majority of the Supreme Court.

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The hosts take on a 1993 death penalty case that has been called one of the worst decisions in capital punishment jurisprudence. Herrera v. Collins asks whether someone on death row can have new evidence of their innocence reviewed in federal habeas corpus proceedings, often the last resort for someone who has exhausted their appeals. In a 6-to-3 vote, the Court rejected the claim, barely shying away from holding that the Constitution does not protect against an innocent person being executed.

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The hosts discuss Roman Catholic Diocese of Brooklyn v. Cuomo, a recent case about COVID-19-related restrictions on religious gatherings. In it, the Supreme Court struck down hard capacity caps on religious gatherings in high-risk areas. The case has already spawned more challenges to pandemic-related restrictions on religious gatherings and likely foreshadows the expansion of legal exemptions for religious groups.

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The hosts discuss Ashcroft v. Iqbal, a 2008 case in which the Court created a new pleading standard for legal complaints that made it much harder for plaintiffs to bring their cases. Here, a Pakistani immigrant who claimed he was detained and tortured in the wake of 9/11 had his case dismissed because, according to the Court, his allegations that Bush administration officials were responsible for his treatment were not “plausible.” 

 

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The hosts return to examining cases with a little-known campaign finance decision from 2011: Arizona Free Enterprise Club PAC v. Bennett. They discuss the Supreme Court’s ruling, which declared unconstitutional a matching funds program for political candidates who opt out of private fundraising, effectively killing public campaign financing. The hosts also talk about the Trump campaign’s ongoing efforts -- in the courts and otherwise -- to contest the results of the 2020 election, and how likely they are to affect the Biden victory.

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The hosts look back at the week-long presidential election, which Joe Biden won. They discuss the challenges mounted by the Trump campaign in various states and explain why none of them is likely to change the outcome of the election. They also reflect on some state-level initiatives and put forth their strategy for how President Biden should deal with a split Senate, especially on matters pertaining to the Supreme Court.  

 

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The hosts reflect on a string of cases pertaining to the coming election, discuss the legacy of Bush v. Gore, and the significance of Justice Kavanaugh recently citing Justice Rehnquist’s infamous concurrence in the case. They then replay their original analysis of the 2000 election case that put George W. Bush in the White House. 

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The hosts discuss options for reforming the court — from court packing, to term limits for judges, to stripping the court of jurisdiction to hear cases pertaining to new laws. They also speak to Congressman Ro Khanna about court reform, and about the bill he has introduced to limit Supreme Court Justices' tenure. But they remain clear on their preferred option: packing the court to include more liberal justices.

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The hosts reflect on the Amy Coney Barrett confirmation hearings, then move on to discussing gerrymandering, the practice of drawing up voting districts to favor a particular political party. Specifically, they talk about Rucho v. Common Cause, a 2019 case in which the Supreme Court not only refused to rule on two states’ gerrymandered maps, they found all partisan gerrymandering to be outside the purview of the Court going forward. 

 

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The hosts discuss the past, present, and future of the Electoral College, and all the ways it could be used to stage a procedural coup in the upcoming election. They also talk about how the Electoral College could be restructured to give greater representation to states with large populations, like California. But if it were up to them, they’d get rid of this undemocratic institution all together, and switch to a system in which the president is chosen by popular vote.

 

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