We have a conversation with Genevieve Lakier about the First Amendment and the courts in our current situation. She defends recourse to the courts; we are as usual more skeptical. We go into some aspects of the political economy of major media, emphasizing the problems created by media consolidation and the difficulty of dealing with those problems not merely because of the normative issues we raised in discussing Jimmy Kimmel but also because the political-economic causes of consolidation play out as well in structuring the Supreme Court. And we talk about the distinction between the First Amendment as law and the First Amendment as a component of a general political culture that shapes both what the courts do and how ordinary politics plays itself out in expression-sensitive contexts.

After some reflections on how the oral arguments in the tariff case affect our expectations about what the Court might do, we turn to the Court’s pending decision in a case challenging the constitutionality of the key remaining provision of the 1965 Voting Rights Act. We offer what we hope are some more in-depth and analytic comments on the doctrines in play in the case and (as usual!) highlight the ways in which the arguments against the statute are rife with internal tensions. We conclude with some unoriginal observations about the political implications of a decision to invalidate the Act and with what we hope are some more original observations about how to situate the Court’s likely action in the kind of broader account of American political development that we’ve offered sporadically in the podcast and in a more focused way in our episodes on the Constitution after Trump.

We continue our speculation about constitutionalism after Trump (after some mundane observations about the 2025 elections), by broadening our lens to include some thoughts about what progressives might do to present appealing visions of an egalitarian and multicultural society that’s part of our heritage. We disagree a bit about the level at which the conversation should be pitched and then turn to some suggestions about “principled compromises” that progressives could offer to appeal to some people who at present find MAGA-ism the best thing available to them. The compromises deal with public support for education in religiously affiliated schools and some aspects of trans rights. We disagree about what the proposed compromises, with Tushnet arguing that they either don’t give MAGA supporters anything they can’t get from the Supreme Court or mistakenly treat issues as serious policy proposals when they are, in the jargon, performative. We don’t resolve our disagreements but promise to come back to them later!

Our conversation with Richard Re focuses on his Foreword to the Harvard Law Review’s annual Supreme Court Review. The Foreword argues that the Roberts Court today is a conservative version of the Warren Court whose decisions are as supported today or perhaps even better supported today by a political majority as were the Warren Court’s decisions. We suggest that his argument is a domesticated version of the more politically engaged analysis of Supreme Court decisions offered by people associated with Critical Legal Studies—and that the domestication can’t conceal the fundamentally political nature of the Court’s decisions (today or during the Warren Court era). Re in turn disagrees!

If we manage to extricate ourselves from our current constitutional plight, what might things look like? Or, alternatively, what sorts of constitutionally inflected policies should Democrats offer as part of their political effort to defeat Trumpism? We argue pretty forcefully against what we call “restorationism,” a program that would simply reinstitute the constitutional agenda that MAGA constitutionalism rejects. This episode focuses on the role that skepticism about expertise plays in MAGA constitutionalism. After describing how that skepticism is tied to the extremely strong theory of the unitary executive that the Trump administration advances, we offer some thoughts about how progressive policies—particularly with respect to the design of the institutions of the administrative state—could combine some degree of justified skepticism with greater popular participation in lawmakng in ways that some MAGA voters as well as many progressives might find appealing.

We talk about the Jimmy Kimmel episode, a small victory in the fight against Trumpism. We range more widely, though, in identifying no fewer than five groups who have competing First Amendment interests in having Kimmel on or off the airwaves, which makes figuring out what the First Amendment “means” in this setting. We emphasize the interests of broadcasters in choosing what to air and the interests of potential listeners in hearing—and preventing others from hearing—what they want. Any government intervention supports the free-speech interests of one or another group and undermines the free-speech interests of other groups. After discussing the way in which New Deal constitutional doctrine tried to separate economic regulation from regulation of fundamental rights, we discuss the relation between property rights and the ability to exercise your right to free expression, we end with a discussion of the possibility of antitrust regulation of large media corporations, which was implicated in the Kimmel episode. Reconciling antitrust regulation of the sort progressives want with existing constitutional doctrine takes some serious analytic work, which progressives ought to be doing now.

Why are the birthright citizenship cases both not such a big deal and a big deal? After going through the arguments for the Trump administration’s position in some detail (the arguments against it are so obvious that we don’t spend much time on them), we situate the cases in the administration’s larger policy and ideological agendas: from a policy point of view they aren’t that big a deal, but from an ideological one they might be.

Our conversation with Will Baude covers his ideas about originalism as "our law" and the implications of his position for a constitution--ours, perhaps--that isn't normatively attractive overall.

We pick up after our summer break with a recap of our arguments about constitutional theory. Then we discuss the pending Supreme Court decision about President Trump’s power to impose tariffs, getting into some weeds that most popular commentary avoids, including a lot of detail about the major questions doctrine.

Today we apply our way of thinking about the Constitution—what we’ve been calling constitutional theory—to a topic that isn’t usually discussed in those terms even though it gets a lot of attention: constitutional criminal procedure, focusing on police practices like stop-and-frisk and on the Miranda warnings. As usual our questions are about the connection between judicial (and political and bureaucratic) regulation of police practices and the people’s ability to govern itself. And as usual we divide (a bit) over whether courts have made things better, whether they’ve actively made things worse by exacerbating the race-based inequalities produced by the politics of crime, and whether the courts might come up with better ways of regulating police conduct that would enhance self-government.