Amarica's Constitution

The SCOTUS term is behind us, and we take a look back - not just at this term, but at the entirety of the Roberts Court.  What are the most important constitutional cases of its time?  Where do the justices line up on the important cases - that is, how often are they in the majority; how often is the opinion right-leaning, as many believe is usually the case, and how many are left-leaning?  How often is the Court “clearly wrong” according to Professor Amar?  And where does Professor Amar come out in terms of his alignment with the Court?  The cases may be familiar, but our own look at this suggests to us that you may well be surprised when it all gets added up.  We also have some listeners’ questions, and they turn out to be more far-ranging than you might have expected.  CLE credit is available for lawyers and judges from podcast.njsba.com.

How could the vote in Trump v. Barbara have been as close as it was?  Many have been bewildered by the vote in this case, given the strength of the arguments in Chief Justice Roberts' majority opinion, the long history of birthright citizenship, the statutory history, and the clear text of the 14th amendment.  We try to understand this by looking at how the dissents took an aberrant and incorrect approach to the very act of dissenting.  To do this, we have to look at a general theory of dissents at the Supreme Court - and so we do.  Meanwhile, a foreign nation's holiday is celebrated, as well it should be given this nation's role in our own achievement of independence. Lawyers And Judges Are Eligible For Continuing Legal Education Credit by visiting podcast.njsba.com.

he Supreme Court ruled in two cases framing Unitary Executive theory.  So it’s entirely appropriate that we have two great experts on the topic joining us.  Steve Calabresi literally wrote the book on this theory, and perhaps it’s not surprising that he is more pure than the Court itself.  Meanwhile, Vik Amar has seen his theories concerning non-delegation and Congressional lock-in come up again and again this term - and here we see it again; if the agencies were meant by Congress to preserve its role in exercising certain powers, how can it reclaim those powers when the independence of the agencies is eliminated?  Meanwhile, Akhil, cited in the Slaughter case, reviews the originalism involved in the opinions, and puts the cases in an overall perspective of sorts.  All in all, an impressive resource for you to draw on.  Lawyers and Judges are eligible for Continuing Legal Education credit by visiting podcast.njsba.com after listening.

America gets a 250th birthday present from the Supreme Court as Chief Justice John Roberts authors an opinion for the ages in Trump v. Barbara.  The Court went big and decided on the basis of the Constitution, not merely the Congressional statutes, that Abraham Lincoln's wish for the nation, birthright citizenship, which gives rise to the chance for birth equality and therefore the "new birth of freedom" Lincoln bequeathed us, will live on - and will have its best chance to endure.  We look deeply into the opinion to find the great themes the Chief Justice, joined by four women, sounds.  And what about the arguments made on this podcast in recent months?  Can they be found in the opinion, and if so, do they strengthen it?  Join us for a close look. Lawyers and Judges are eligible for Continuing Legal Education credit by visiting podcast.njsba.com after listening.

In the wake of our recent discussion on private vs state action, a recent incident in New York regarding US Representative Dan Goldman’s banishment from a coffee shop because of his political stance brings these issues home, with additional questions related to public accommodations and more.  Meanwhile, the Supreme Court faced some of these similar issues in the case of Wolford v. Lopez, decided the day we record this, as well as a host of 14th amendment questions that are at once familiar and yet fresh for listeners to this podcast. CLE is available for lawyers and judges from podcast.njsba.com.

The tributes to Gordon Wood have been pouring in, and as promised, we spend this episode with him and his peerless body of work.  Professor Steven Calabresi, Gordon’s neighbor, friend, and colleague, joins us, and how appropriate that is, as Steve and Akhil produced a tribute weekend at Yale Law School that reviewed and celebrated his lifetime of work.  Now we remember the man, the teacher, and most of all, the towering scholar, as we review some of his most important ideas, his methods, and his inspiration for so many who have read, and who will read, the greatest books ever written about the American founding period.  A giant has been lost, but his memory will be a blessing for many generations to come.  CLE credit is available for lawyers and judges from podcast.njsba.com.

There’s some highly questionable behavior going on in an area of Missouri, where a fringe group seeks to establish a whites-only enclave.  Objectionable?  We think so.  Unconstitutional?  Therein lies an opening to a whole host of questions.  Government action versus private action.  When is private action beyond private purview?  When does state action overlap into private domains, and where are the lines?  Where do these rules come from?  How can we think about new issues that may arise?  Akhil has thought about this, and written about it, so now we offer you a framework to think about such questions as they arise, now and in the future.  And, sadly, a giant was lost this week.  We offer some thoughts, with more to come.  CLE credit is available for lawyers and judges from podcast.njsba.com.

It is an honor to introduce the initial episode of our new sister podcast: The Blessings of Liberty, hosted by Jeffrey Rosen, president emeritus of the National Constitution Center and Professor of Law at GW.  Prof. Rosen begins with a bang, as he holds a discussion with US Supreme Court Justice Neil Gorsuch, including two books newly authored or contributed to by Justice Gorsuch.  We precede this with our own interview of Jeff Rosen, discussing the mission of his new podcast and his special passion for history, the Constitution, and the American idea.  Meanwhile, listen, too, for a special EverScholar opportunity for our loyal podcast audience.  CLE credit is available for lawyers and judges from podcast.njsba.com.

It’s time for listener questions, and no surprise that current events are on everyone’s mind.  We range from the supposed weaponization slush fund, to pardons;  illegal military orders; simultaneous office holding; and lots of converse-1983 discussion.  And Professor Amar looks at a possible error in one of his books.  Great questions from a great audience, and Akhil answers them without prep, on the spot.  CLE credit is available for lawyers and judges from podcast.njsba.com.

After weeks of tracing the background history and constitutional principles at work on religious establishment, free exercise, and equality issues, the Administration on cue sponsors, holds, staffs, and headlines a “Rededication 250: A National Jubilee Of Prayer, Praise & Thanksgiving,” complete with a virtually all-Christian (one Jew) speaker roster, a White House website, money from Congress’ apportionment of funds for the 250th anniversary of the Declaration commemorations, and a drumbeat of emphasis of supposedly American Christian traditions.  We take it slowly and look at how it fits into the constitutional rubrics that we have examined.  Meanwhile, it’s the Yale Commencement, and Akhil has commentary on the main speaker.  And a number of news developments harken back to our podcasts past - how did we do?  CLE credit is available for lawyers and judges from podcast.njsba.com.