Looking Forward, Looking Back

As Inauguration Day approaches, anxiety and uncertainty, even dread, mixes with the optimism of some in the American polity. Many express a mix of apathy, weariness, or hopelessness, with a sentiment akin to “wake me in four years.” What would they find when awakened?  We begin to take a look ahead, in part by looking behind and evaluating how our own earlier prognostications have turned out.  We start with abortion and the Dobbs case, as it loomed large in recent years and clearly continues to reverberate and feeds resentment on one side, activism on the other.  What lies ahead for the law, the Court, and the people?  CLE credit is available for lawyers and judges at podcast.njsba.com.

With rumblings around a possible Constitutional Convention around, we have noted some similarities with those issues that surrounded the recent ERA discussions.  Now we dive deeper.  Can a convention be limited to one possible amendment or some small group of amendments, or is a “runaway convention” a real possibility?  Can a state (this means you, California) rescind its previous vote calling for a convention?  Suppose there were a convention; would it be like the Philadelphia convention?  Would California be no more powerful than Wyoming in such a meeting?  In fact, there are even more terrifying implications and scenarios - and we will review them for you.  Meanwhile, we have a new Speaker of the House - for now - and the January 6th certification did take place without incident.  But many believe the Speaker’s days may be numbered, and so our review of the history behind Speaker selections in the past remains relevant - and fascinating.  That John Quincy Adams keeps showing up in the strangest places - like the presiding officer’s chair when he arguably had no business there.  What’s up with that? 

Amarica’s Constitution proudly celebrates four years of ambitious inquiry with a long-promised and very honored guest, former Associate Justice of the US Supreme Court, Stephen G. Breyer.  Justice Breyer placed no restrictions on our questioning, and we engaged him in a frank discussion on a variety of topics related to his time on the Court, and then we switched to his current book: Reading the Constitution: Why I Chose Pragmatism, not Textualism.  As you can imagine, Professor Amar has some opinions on the matter as well.  The discussion ranged far, from the French essayist Montaigne to 20th century American pragmatists, as Justice Breyer’s broad range is displayed in a way few have seen.  We take our time, and the Justice generously indulged, for an in-depth look at the thinking that helped shaped the bench for decades. This podcast will be available on YouTube video as well as the usual audio feeds found here; we will provide  information on accessing the video in subsequent podcast episodes, as well as on our Instagram feed - check it out.  CLE credit is available through podcast.njsba.com.

As the Biden Administration winds down, pressure is being applied to the President, asking him to order the National Archivist to certify the Equal Rights Amendment as part of the Constitution.  Senator Gillebrand has submitted a letter, co-signed by more than 40 Senators, making arguments that harken back to the resolution that accompanied the 1972 amendment, when Congress purported to place a time limit on the amendment’s ratification.  Also, some state legislatures withdrew their ratification after initially approving it, and the Senators are crying foul on this.  We take a deep dive into the arguments put forth by the amendment’s implementation advocates, the history of other amendments that faced analogous issues, including the great 14th amendment, and Professor Amar’s own scholarship on the matters.  Meanwhile, our 4th anniversary is approaching, and we preview the gala event - with Justice Breyer getting behind the microphone with us before you know it!  CLE credit is available from podcast.njsba.com.

In the wake of President Biden’s pardon of his son, and with the shadow of President-elect Trump’s possible pardons of the insurrectionists who stormed the Capitol and attempted to prevent Congress from certifying Biden’s election, are there constitutional issues?  The Constitution itself seems direct on the subject, but it turns out there is a lot to discuss.  Scope, timing, subject, language, all are questionable.  Would either or both of these be impeachable acts?  What would happen to the pardon in that case?  Are there immunity issues?  Where does the pardon power come from, and how has it been used in the past?  What is the originalism of pardon law?  Lots to talk about, however you feel about the acts themselves politically.  And - some big coming attractions!  CLE credit is available from podcast.njsba.com.

Could Republicans in the House conspire with a 2025 President Trump to manufacture a forced Senate recess in an effort to bypass the advise and consent appointments process?  The much-anticipated article in The Atlantic has been published, to widespread approval.  We proudly present all three co-authors of this article in a wide-ranging, nuanced, fascinating discussion, as Professors Josh Chafetz, Tom Schmidt, and of course Akhil Amar reunite to take us from Restoration England to the chambers of the Supreme Court where Professor Schmidt clerked for Justice Breyer, the author of the principal case on recess appointments, NLRB v. Noel Canning, in 2014.  We hear how that case has lessons, and yet is distinguished, from the scenario here, and what might happen if the contemplated maneuvers, deemed grossly unconstitutional by our experts, try it anyway.  CLE credit is available from podcast.njsba.com.

The presidential transition is always a bit fraught, as we have discussed in past episodes, but this one seems to be boundary-pushing, even for Trump.  He intends to fire the FBI director, whom he appointed, (can he do that? - we explain) and replace him with a singularly problematic bomb thrower.  He had pardoned a family criminal, and now appoints him to be ambassador to France. He prizes loyalty to him above all, it seems, but is there a place for competence? And we have more on the withdrawal of Gaetz and his strange resignations. Speaking of resignations, a judge in Ohio has thrown yet another resigning twist our way. This episode was recorded prior to the Hunter Biden pardon, which will be discussed in a later episode. CLE credit is available from podcast.njsba.com.

Colorado’s Supreme Court ruled that Donald Trump was ineligible for the Presidency under Section 3 of the 14th Amendment, following a trial, a verdict, and appeals.  The January 6th commission had numerous findings of fact that seemed damning to the former President.  The Special Counsel brought charges against him related to the fateful day.  But the Supreme Court unanimously ruled against Colorado; the Justice Department is dropping their case; the January 6th commission has disbanded. Meanwhile there has been no ruling that Trump did not in fact violate Section 3.  Does it exist?  And if it does, what are the implications for Congress’ certification of the vote in early January 2025?  We return to this subject even as the nation seems to be leaving it behind.  Also - an early look at some of the background to the recess appointment article authored by Prof. Amar and others which will appear soon, and a celebration of a great man and a great historian.  CLE credit is available from podcast.njsba.com.

President-elect Trump has begun to announce his plans for his cabinet and other top appointments for January.  Unconventional is a kind word for some of them.  And suddenly, in a House where Republicans have a razor-thin majority, there is a resignation - months before it would be required.  Why?  There are conspiracy theorists for health care positions; admirers of Putin for intelligence posts; newscasters who have never managed anything for one of the largest organizations in the world.  The Constitution has something to say about some of these, and we dive in.  Suffice to say, the water is murky.  CLE credit is available for lawyers and judges from podcast.njsba.com.

The election is behind us, and foreboding fills the air.  We are live at the Yale Club of New York City for a live recording, addressing some of the many constitutional matters that are or soon may be front of mind as the seemingly inevitable challenges to norms, rules, and laws await.  Matters as wide-ranging as the implications of undivided government; the significance of state constitutional amendments on abortion; Justice Sotomayor’s future; recess appointments - and much more are on our plate this week.  CLE credit is available for lawyers and judges at podcast.njsba.com.