Dissed

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.

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42 U.S. Code § 1983, one of our nation’s most important civil rights statutes, 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, called qualified immunity, even if officials do in fact violate people’s rights. In his 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 episode, the ladies take listeners through the long, twisted journey of qualified immunity. Over the years it would turn out Justice Douglas was right…. just about the wrong thing.

Special thanks to guests Joanna Schwartz and Clark Neily.

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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!”

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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.

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In the inaugural bonus episode, 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.

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Special thanks to guests David Bernstein, Richard Epstein, and Stephen Vladeck, and Jonny May for his ragtime pop covers.

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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!

Special thanks to Toni Giménez for letting us use his rendition of “Yankee Doodle” on banjo: https://www.youtube.com/watch?v=SLxJR4-JNuI

Thanks also to our “voice actors” aka fellow PLF attorneys, Damien Schiff and David Deerson, and historians Tim Huebner and Richard Brookhiser.

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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!

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What happens when a Supreme Court justice votes to dissent from a ruling but doesn’t actually write a dissenting opinion? Chief Justice Salmon Chase was too sick to write a dissent in Bradwell v. Illinois, where the majority said the 14th Amendment did not protect a woman’s right to practice law. Could a written dissent by Chase have changed the entire trajectory of history? What would he have said about the Constitution’s protections for women? Did his relationship with his daughter, Kate, influence his views? And would Salmon, Kate, and Myra Bradwell be household names today instead of being forgotten? Tune in to find out.

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Guests: @wbstahr @RandyEBarnett John Oller [http://www.johnollernyc.com/author]

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The Supreme Court will hear its 7th challenge involving Obamacare this term. We sat down to talk about the first Obamacare case, NFIB v. Sebelius, with Randy Barnett, Todd Gaziano, and Josh Blackman and to look for clues about whether the joint dissent actually began as the majority opinion. And will this newest challenge be the one that brings down the whole law? Tune in to find out!

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Guests @RandyEBarnett @ToddGaziano @JoshMBlackman

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