Tag Archives: originalism

OA189: Supreme Court Justice Brett Kavanaugh

Today’s Rapid Response Friday gives you a sneak preview of what to expect from the person we predict will become Donald Trump’s next nominee to the Supreme Court, Brett Kavanaugh of the United States Court of Appeals for the D.C. Circuit.

We discuss:

  • Why it’s likely to be Kavanaugh and not any of the other rumored contenders, especially flavor-of-the-minute Amy Coney Barrett
  • Kavanaugh’s view of the First Amendment’s establishment clause and the future of Lemon v. Kurtzman
  • Kavanaugh’s views on abortion
  • How Kavanaugh differs (and how he doesn’t!) from Neil Gorsuch when it comes to Chevron deference
  • The weird conservative hit squad out to get Kavanaugh
  • And much, much more!

After all that, we end with an all new Thomas Takes The Bar Exam #83 involving assault with an unloaded gun.  If you’d like to play along, just retweet our episode on Twitter or share it on Facebook along with your guess and the #TTTBE hashtag.  We’ll release the answer on next Tuesday’s episode along with our favorite entry!

Recent Appearances

Thomas was just a guest on Episode 421 of the Cognitive Dissonance Podcast.  If you’d like to have either of us as a guest on your show, drop us an email at openarguments@gmail.com.

Show Notes & Links

  1. If you want a head start on Tuesday’s show, check out the just-released Senate Select Committee on Intelligence report.
  2. This is the Notre Dame speech/law review article in which Kavanaugh lays out his judicial philosophy and essentially auditions for the Supreme Court.
  3. We discussed the following cases:  Good News Club v. Milford Central School, 533 U.S. 98 (2001), Santa Fe Independent School District v. Doe, 530 U.S. 290 (2000), Priests for Life v. Department of Health & Human Services, 808 F.3d 1 (D.C. Cir. 2015) (en banc), Garza v. Hargan, 874 F.3d 735 (D.C. Cir. 2017) (en banc), United States Telecom Ass’n v. FCC (D.C. Cir., 2017) (en banc), PHH v. Consumer Financial Protection Bureau, 881 F.3d 75 (2018) (en banc), Seven-Sky v. Holder, 661 F.3d 1 (D.C. Cir 2011), and Heller v. D.C., 670 F.3d 1244 (D.C. Cir. 2011)!
  4. Right-wing weirdo roundups:  Here’s the National Review endorsement of Kavanaugh; this is the truly bizarre Jacobs piece in The Federalist; and here is the Federalist Society’s own rebuttal.
  5. Finally, a preemptive Andrew Was Wrong:  Here’s Raymond Kethledge’s University of Michigan address on how bad Chevron deference is.

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OA186: Anthony Kennedy & the Future of the Supreme Court

Today’s Rapid Response Friday comes after a busy week at the Supreme Court, capped off by the (somewhat) surprising announcement that Associate Justice Anthony Kennedy intends to retire as of July 31, 2018.

We break down everything about this news, including:

  • What the Trump administration is likely to do next
  • Who President Trump might nominate to fill Kennedy’s spot
  • How the Democrats should respond
  • What the next Supreme Court might look like
  • How all of this plays in with the 2018 midterms and 2020 Presidential election
  • And much, much more!

We’re also going to bring you a bonus episode to make sure you’re fully informed as to all the other goings-on in the law this week!

After all that, we end with an all new Thomas Takes The Bar Exam #82 involving the legality of a search for heroin.  If you’d like to play along, just retweet our episode on Twitter or share it on Facebook along with your guess and the #TTTBE hashtag.  We’ll release the answer on next Tuesday’s episode along with our favorite entry!

Recent Appearances

None!  If you’d like to have either of us as a guest on your show, drop us an email at openarguments@gmail.com.

Show Notes & Links

  1. We broke down the “nuclear option” in Episode 59.  Mitch McConnell announced that the Senate would not recess for the summer on June 5.
  2. Here are the (generally reliable) Cook Political Report ratings of the 2018 Senate races.
  3. This is the Mother Jones article on Anthony Kennedy’s 2017-2018 votes.
  4. This is the list of Trump’s 25 potential Supreme Court nominees.
  5. These are the resources discussed in the future segment, including the When Every Vote Counts law review article, the Slate article on 5-4 splits, and the SCOTUSBlog data regarding the 2017-2018 term.
  6. Finally, if you’re feeling nostalgic, you might want to reread Obergefell v. Hodges while it’s still good law.  An d if you’re feeling super optimistic, you can even check out the “Above the Law” blog post arguing that it will survive Kennedy’s departure (it won’t).

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OA167: Neil Gorsuch, Secret Liberal?

Today’s episode tackles the recent (and shocking) Supreme Court decision in which Neil Gorsuch voted with the Court’s liberal justices to produce a very unusual 5-4 alignment.  Is this a sign that Gorsuch isn’t the right-wing hack we all thought he was?  Listen and find out!  (Hint:  No.)

After that, we break down the 6th Circuit’s recent opinion in EEOC v. R.G & G.R. Harris Funeral Homes, Inc., the first decision of its kind recognizing that discrimination on the basis of an individual who is transgender or transitioning violates Title VII of the Civil Rights Act of 1964.

After that, we answer a listener question about selecting a contingent fee attorney and discuss some of the actual pitfalls as well as misconceptions about those lawyers who take “no money down!”

Finally, we end with the answer to Thomas Takes the Bar Exam Question #72 about real property and the transfer of a deed.  Don’t forget to follow our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE!

Recent Appearances

None!  If you’d like to have either of us as a guest on your show, drop us an email at openarguments@gmail.com.

Show Notes & Links

  1. We first warned you about Neil Gorusch way back in Episode 40, and we’re definitely not backing down now.  If you want to check out his concurrence, you can click here to read the Supreme Court’s decision in Sessions v. Dimaya.  And, as we discussed on the show, the should-have-been-straightforward holding of this case stems directly from the Court’s prior opinion in Johnson v. United States.
  2. You can read the 6th Circuit’s recent opinion in EEOC v. R.G & G.R. Harris Funeral Homes, Inc., and for more coverage of Title VII, check out our discussion of Hively v. Ivy Tech from Episode 60, as well as our most recent update in Episode 152.

Support us on Patreon at:  patreon.com/law

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Don’t forget the OA Facebook Community!

And email us at openarguments@gmail.com



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OA161: Gun Control & the Constitution

Today’s episode takes an in-depth look at gun control.  First, we answer two listener questions about originalism and the Second Amendment, including a provocative one about whether DC v. Heller deserves stare decisis respect under Andrew’s model of jurisprudence.  The answer may surprise you!

In the main segment, we examine HR 5087, the most recent gun control bill to be introduced in Congress.  What’s in it?  What kinds of laws are Democrats looking to pass in light of the Parkland massacre?

After that, we check in on the state of Pennsylvania’s efforts to combat gerrymandering.  Could there actually be good news in this episode?  Listen and find out.

Finally, we end with the answer to Thomas Takes the Bar Exam Question #69 about the firefighter’s rule.  Don’t forget to follow our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE!

Recent Appearances

Andrew was recently a guest on Episode 255 of the Phil Ferguson Show and Episode 96 of the Naked Mormonism Podcast.  If you’d like to have either of us as a guest on your show, drop us an email at openarguments@gmail.com.

Show Notes & Links

  1. This episode builds on our two-part masterclass in the Second Amendment:  Episode 21 (Part 1) and Episode 2 (Part 2).
  2. The two primary cases discussed are DC v. Heller and McDonald v. City of Chicago.
  3. This is the text of HR 5087, the proposed gun control legislation, which amends 18 U.S.C. § 921 and 922.
  4. We discussed the Parkland massacre in Episode 148.  You can read Chief Justice Thomas Saylor’s statement here.

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OA158: Cambridge Analytica

In this rapid-response episode, Thomas and Andrew discuss the scandal regarding Cambridge Analytica.  Is there a legal angle?  Have crimes been committed?  Listen and find out!

In the pre-show segment, Andrew helps out our reporters by giving theme the question they need to be asking regarding Stormy Daniels, which is:  “Now that you’ve acknowledged that you’re DD, and you’ve sued Stormy Daniels for $20 million, can you tell us what claims you had against Ms. Daniels that you believe you settled in that agreement?  What could you have sued her for?”  You’re welcome.

That segues into the “A” segment, where the guys discuss the differences (and one strange overlap) between the recent lawsuit filed by Karen McDougal and the top-of-Yodel-Mountain Stormy Daniels lawsuit.

After the main segment, we tackle a listener question regarding the difference between textualism and originalism, inspired by our most recent episode, Episode 157.

Finally, we end with an all-new TTTBE #68 that requires some math to figure out the appropriate measure of damages for breach of contract.  Remember that you can play along with #TTTBE by retweeting our episode on Twitter or sharing it on Facebook along with your guess.  We’ll release the answer on next Tuesday’s episode along with our favorite entry!

Recent Appearances

None!  Have us on your show!

Show Notes & Links

  1. This is the National Review article that actually gets Stormy’s story right.
  2. Here’s Mike Murphy’s article expressing skepticism of CA’s claims.
  3. This is the Price v. Facebook class action civil lawsuit, arising out of California’s Unfair Competition Law, Cal. Bus. & Prof. Code § 17200 et seq.  And here’s the statement from NY Attorney General Eric Schneiderman.
  4. If you wanted to set up a SuperPAC, Andrew’s old pals at Covington & Burling have drafted a simple how-to guide for you.
  5. Finally, here’s a hilarious Tweet from Peter Drice Wright that highlights a key problem with textualism.

Support us on Patreon at:  patreon.com/law

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OA157: Are Originalist Judges Qualified? (w/guest David Michael)

Way back in Episode 49, Andrew argued that lawyers who claim to follow in the footsteps of Antonin Scalia-style originalism should be disqualified from serving on the U.S. Supreme Court, and that Democrats on the Senate Judiciary Committee need to be challenging Scalia’s acolytes (like Neil Gorsuch) on their underlying philosophy and not just their compassion (or lack thereof).

In this episode, friend of the show David Michael challenges some of the points made by Andrew in the original episode , as well as raises new ones.  Along with Thomas, we have a great three-way discussion about U.S. history, the Federalist papers, key cases, the underlying work of Robert Bork, and more.  Does Andrew change his mind?   Does Thomas?  Listen and find out!

After the lengthy interview, we end with the answer to an all-new TTTBE #67 about a gang party where the boss just wanted to “send a message.”  Remember that you can play along with #TTTBE by retweeting our episode on Twitter or sharing it on Facebook along with your guess.  We’ll release the answer on next Tuesday’s episode along with our favorite entry!

Recent Appearances

None!  Have us on your show!

Show Notes & Links

  1. You can listen to our (ahem) original episode on originalism, Episode 49.
  2. Please also check out David Michael’s new podcast, The Quorum!
  3. Here’s a link to the full text of the Federalist Papers.
  4. United States v. Carolene Products, 304 U.S. 144 (1938).
  5. Harmelin v. Michigan, 501 U.S. 957 (1991) is the infamous decision in which Scalia declared that the Eighth Amendment only bars punishments that are both “cruel” and “unusual in the Constitutional sense.”

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