Preclearing the President

The big issue in the news today is the Missouri legislature’s attempt to avoid the state constitution’s referendum provisions in order to impose a legislative map that would advantage Republicans to the tune of all but one of the state’s seats in the US House.  The Supreme Court is asked to intervene, and Justice Kavanaugh - after we taped - declined to do so.  This may not be end of the story, but our guest Vik Amar is on top of it together with Akhil.  Listen to get the details, and check out Scotusblog.com to stay updated - Akhil and Vik have a new column there.  Meanwhile, our interview with Professor Steven Smith discussing his new book, On Statesmanship, precedes this discussion this week - don’t miss that, either!  CLE credit is available for lawyers and judges from podcast.njsba.com.

Originalists venerate the Founders, who were by most reckonings a group of remarkable statesmen.  Today, many Americans look seemingly in vain for a statesman worthy of the moment and its challenges.  But what is a statesman?  Does the U.S. Constitution assume a statesman will be at the helm?  Does it enable such a leader, or is it designed to thwart the designs of what Lincoln called the “towering genius?”  Acclaimed author and scholar Steven B. Smith joins us from Yale on the occasion of publication of his new book, On Statesmanship, in the first of two fascinating segments on many aspects of this many-faceted concept.  And, Andy and Akhil take a look at an important law emerging from the California legislature and awaiting the governor’s signature.  CLE credit is available for lawyers and judges at podcast.njsba.com.

Voting rights are in the news.  The state and federal governments have sought to weigh in and intervene on election laws, as we have seen in previous cycles.  This time, a number of states have passed laws that address mail-in or absentee voting, but in doing so, what seems on its surface to be addressing some needs of seniors may in fact be more constitutionally questionable than first meets the eye. And in so doing, the states are implicating the 26th amendment.  A circuit split has developed and as a result, the Supreme Court may get involved and this modern amendment may get its first case before the court.  We bring in the expert on such things:  Professor Vik Amar, who has already published a new article on these questions in recent days.  The “brothers-in-law” are at it again, and we are all the beneficiaries.  CLE credit is available for lawyers and judges from podcast.njsba.com.

What happens when the president loses in court, even at the Supreme Court, but repeatedly attempts to fight the battle again?  New tariffs are offered after the old ones are thrown out.  Birthright citizenship, resoundingly affirmed, is challenged anew.  To Americans who lived in the South after Brown v. Board, this might sound familiar.   And indeed, as we wrap up our Roberts court constitutional survey, and we arrive at the cases we take great issue with, this theme echoes back to the Shelby County case.  We therefore discuss a question that has rankled many Americans in recent years.  CLE credit is available for lawyers and judges from podcast.njsba.com.

The President did not file for reconsideration of the Court’s decision in Trump v. Barbara, but the President nevertheless doesn’t let the Constitution rest, issuing two new executive orders that purport to extend the set of persons not receiving birthright citizenship upon their birth, among other things. We take a look.  Meanwhile, our review of the Roberts Court’s important constitutional cases brings us back to the Affirmative Action cases, and we take a look at them three years in.  Finally, another listener question takes us to yet another corner of the constitutional canon - and Akhil is ready even without advance notice.  CLE is available for lawyers and judges from podcast.njsba.com.

As we make our way through the 20 most constitutionally significant cases of the Roberts court, this episode takes us through two cases that have continued to have resonance with the American people and with the justices.  Dobbs saw an infamous leak, a momentous decision, powerful electoral impact, and ongoing questions that echo back to an important limiting concurrence.  Bruen brought a controversial methodology to questions of gun rights, caused mayhem at the lower courts, and spawned a number of subsequent cases that seek to clarify and perhaps recover from this sweeping opinion.  We take you back - and forward - as we examine these cases on our way to an overall accounting of the Roberts Court.  CLE credit is available for lawyers and judges from podcast.njsba.com.

We continue our survey of the Roberts Court’s oeuvre of constitutional cases, with particular emphasis on the series of cases that concerned making rules for voting and for voting districts.  These cases make particular use of “intratextualism” - a term coined by Professor Amar that provides tools - and traps - for textual analysis of the Constitution.  And as it turns out, it is also valuable on some of the most important themes and cases in the history of the nation, including Brown v. Board and its companion case, Bolling v. Sharpe.  A listener’s question takes us down this road, which intersects with our own prior path in fascinating ways.  These and more cases are explored as only Professor Amar can.  CLE credit is available for lawyers and judges from podcast.njsba.com.

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.