The Big Equal

With the imminent publication of Born Equal, we explore Lincoln’s grand vision of equality as it played out during and after his life.  The new book goes further still, offering an expansive though still relentlessly originalist view of this constitutional vision.  And now Professor Amar sees this vision through with even greater implications for the 160 years since his death and into the future.  The new book introduces, and this podcast and those to follow explore, a new unifying thread that gives even greater coherence to the Constitution, as amended and as understood through this momentous scholarly effort.  CLE credit is available for lawyers and judges from podcast.njsba.com.

Trump is keeping the courts active; this week saw a ruling against many of the widespread tarrifs he has sought to impose, and the Fifth Circuit upheld his dismissal of an NLRB member.  Meanwhile, a Fed governor was dismissed, supposedly for cause.  And the social media announcements of supposedly impending executive orders imposing voting requirements such as voter ID kept coming.  And there’s more.  We try to keep it all straight for you, identify the constitutional issues, and look at what the Courts might do.  Meanwhile, your fantastic response to the impending Born Equal release is noted, appreciated, and we respond to it.  CLE credit is available for lawyers and judges from podcast.njsba.com.

Gerrymandering, borders, the use of the military on US soil, and even the status of the District of Columbia.  All these relate to geography, and the "more perfect union" our founders sought.  The Constitution therefore speaks to all these issues, and originalism must be considered.  We look at what the Constitution has to say, why it says these things, and what the underlying principles tell us.  This has obvious implications for today's questions, but without clarity on the historical background, confusion may reign, which aids those who might be in the wrong.  It's timely in another way, because the forthcoming Born Equal addresses many of these geographic questions - because Americans in the 19th Century, including Lincoln most prominently, thought about them prominently.  Professor Amar brings it together for you.  CLE credit is available for lawyers and judges from podcast.njsba.com.

President Trump has taken to social media, as usual.  This time he asserts an authority to control elections through executive order.  He claims that he is empowered to do this as the sole representative - nay, the sole decider - of the nation’s interest.  We look to the constitution for a reply. He also echoes some election complaints, and election claims, from controversies past, and we have an answer there, as well.  Meanwhile, the publication date of Born Equal, Professor Amar’s new book, draws near, and we have an enticing offer for our listeners.  CLE credit is available for lawyers and judges at podcast.njsba.com.

With all our recent discussion on Skrmetti, and questions of scrutiny as applied to gender dysphoric individuals, the question of where women’s rights stand in this morass deserves new attention.  Professor Jill Hasday has written an important book, We the Men, which is deeply relevant to these discussions.  To what extent does inequality persist in the law?  When Courts seek to answer this question, they often cite the great progress that has been made.  Professor Hasday hypothesizes that this very celebration of progress tends to obscure the remaining issues, and may in a sense pre-empt the scrutiny required.  The echoes of Skrmetti are profound, and Professor Hasday joins us for a lively discussion of these issues and many others - including that recent bugaboo, the Geduldig case, which rears its ugly head once again.  CLE credit is available for lawyers and judges from podcast.njsba.com.

We continue our discussion of the deep issues raised in the case of US v. Skrmetti.  Last time we observed the Court wrestling with questions of whether the Tennessee law banning gender dysphoria treatments in minors was a form of sex discrimination.  Later in the argument the Court addressed the question of whether transgender individuals, or some related group, constituted a so-called “suspect classification” and therefore laws purporting to affect that group would be subject to close examination (“Scrutiny”) by the Court.  In this episode we listen, and react to, those arguments as the Court itself did.  Professor Vik Amar returns to join Akhil in this task, and rightly so, since the “brothers in law” have written several recent posts on the deep questions raised by this and other recent cases.  This has resulted in a new unifying theory which they begin to articulate in this episode. CLE credit is available for lawyers and judges from podcast.njsba.com.

The Supreme Court’s term is long since complete, but we turn back the clock and take a deep dive into one of the major cases of the term, United States v. Skrmetti.  This case addressed questions of gender dysphoria treatment and transgender rights, but fundamentally, it was a case about the law of equality, say the brothers Amar.  Yes, Vik Amar is back as a guest, and our two experts go back and listen to the oral argument and react to the Justices and the advocates as they present.  It turns out that this is an excellent case for learning about how the law attempts to implement the equality promises of the Constitution, and you will hear the Justices engage in this action, or inaction.  Our experts add more than their take on the arguments - they have theories that go beyond anything said in Court that day or written in the opinions that followed.  This is part one of a multi-part summer treat from Amarica’s Constitution.  CLE credit is available for lawyers and judges from podcast.njsba.com.

We pay tribute this week to a titan in the field whom you may not have heard of.  Professor Richard Fallon, the Joseph Story Professor of Law at Harvard, passed away last week.  As you will hear from his collaborator and friend, our guest Professor Michael Dorf, Dick Fallon had a deep impact in the law and the academy, and did so with grace, class, and integrity.  The parallels between his career and Professor Amar’s are striking, but so is the divergence in their constitutional approaches.  And this makes for a fascinating and instructive episode as we probe, rather deeply, the nature of these divergences and how they appear in various places in the law.  Meanwhile this also brings us back to a fundamental matter for this podcast, namely, the nature of and validity of originalism as opposed to or in concert with other methods of interpreting and understanding the constitution and applying it in today’s, and tomorrow’s, America.  That America must now, sadly, go on without Dick Fallon, but it will do so informed by his career and his greatness.  We are fortunate to have Michael Dorf to show us why this is so. CLE credit is available for lawyers and judges from podcast.njsba.com.

Representative Jamie Raskin (D-MD 8) was the House manager of the second Trump impeachment in the Senate; is an outstanding constitutional scholar; a long-time law professor; a renowned author; a driving force behind the January 6th committee; and the ranking member of the House Judiciary Committee.  For the great privilege of interviewing him, we need all the tools a great interviewer would have.  It is therefore appropriate that we also interview Sam Tanenhaus, the biographer, in a new and magisterial work, of William F. Buckley, perhaps the best known and most fearlessly non-partisan in his selection of interview subjects.  Sam Tanenhaus has written the definitive work on Buckley, whose Firing Line project was in some ways an inspiration for our own podcast.  CLE credit is available for lawyers and judges from podcast.njsba.com.

The Birthright Citizenship case reached the Supreme Court - sort of.  The Court ruled on the executive branch’s request for a stay in response to nationwide injunctions issued by three different circuit courts, where the executive order purporting to alter more than a century’s practice regarding the Constitution’s guarantee of birthright citizenship was blocked by these courts.  In doing so the Court declined - that is, the majority declined - to address the merits.  Still, the nationwide injunction issue was addressed - at least for now..  Akhil takes the Court to task for avoiding the merits, and he offers numerous ways by which this could have been - should have been - done.  He also presents a new approach that litigants in these cases might consider as they deal with various tactics the government may employ in the service of an executive order they may not expect to be upheld.  Along the way Akhil offers some suggestions for consequences that might be faced by the executive officials, maybe not in our government as currently functioning, but at least in theory.  There’s a lot here even if what is most notable for many of us is what the Court has left hanging.  CLE credit is available for lawyers and judges from podcast.njsba.com.