The Innocent Ham Sandwich

The election is upon us, and worries about possible anti-democratic actions, especially by those who make wild claims in an attempt to justify extraordinary intrusions into the voting process, have many on alert.  From the beginning of our podcast we have looked for these “bullets” that must be dodged to keep the Republic, and once again we peer ahead to see what to watch out for, and to review the constitutional law and history so we are armed with the truth.  Meanwhile, a grand jury has defied another federal prosecutor, and this prompts a proud Professor Amar to dive into our traditions on this great subject.  Election season has begun.  CLE credit is avaialble for lawyers and judges from podcast.njsba.com after listening.

At the James Otis Lecture at Faneuil Hall in Boston, Professor Amar sat on a panel with (retired) Justice Stephen Breyer, Sarah Isgur, and the moderator, Chris Duggan.  Remarkably, the Justice and the Professor engaged in a debate on a case Justice Breyer sat on:  the sometimes-notorious Citizens United v. FEC from 2010.  Rarely does one have the opportunity to hear a Justice defend their opinion against arguments after the fact, but there is nothing unethical about it, and now you can enjoy and learn from it.  Surely there is more to say and we hope to do so in the future, but here is a real treat as Amarica’s Constitution turns 300 episodes old (though the celebration will have to wait). Lawyers And Judges are eligible for CLE credit by visiting podcast.njsba.com after listening.

This episode features Judge Patrick Schiltz, a deeply respected and honored judge on the US District Court in Minneapolis, interviewed by Professor Michael Stokes Paulsen, long time friend of this podcast and distinguished scholar.  Judge Schiltz has been in the belly of the beast that was the dramatic escalation in ICE activity in his area, with a geometric increase in cases, motions, and need for his and his staff’s services.  Amidst all this, he has come under fire from the Trump Administration in recent days for speaking about the judiciary to news outlets, despite the affirmative obligation that judges have to engage in appropriate forms of this activity.  Now listen and hear the voice of a distinguished and dedicated public servant and judge for yourself.  Before and after the interview broadcast, Akhil weighs in on some of the legal issues and the background.  And in the show notes on akhilamar.com/podcast you can hear Akhil’s own keynote at this same symposium on converse-1983 and related matters.  CLE credit is available for lawyers and judges from podcast.njsba.com.

The President has been throwing news organizations out of various places: the White House in general, including the Press Room, and Air Force One.  Can he do that?  Does it matter why he is doing it?  Has this come up before?  Is it a  constitutional matter?  We welcome a leading First Amendment expert, Professor Eugene Volokh, to the podcast to discuss.  Meanwhile, the Eight Circuit wasn’t quite ready to fade into the night, so they emerged one more time with the attempted congressional election districting map.  The Supreme Court spoke quickly, clearly, and in one voice, and Professor Vik Amar is back as a guest to explain the significance - and the vehemence - of the Court’s words.  Never a dull moment as the supposed off-season comes to a close and September ends.  CLE credit is available for lawyers and judges from podcast.njsba.com.

The Eighth Circuit is at it again, believe it or not.  Despite what appeared to be a clear directive from the Supreme Court to use the 2022 map in the upcoming federal election in Missouri, a panel of three judges from the circuit went in the other direction.  Akhil has had about enough of this, and while he expects the Supreme Court to once again shoot down the eighth circuit, perhaps with feeling, we wonder what the mechanisms are to prevent this sort of rogue behavior.  Akhil then employs one of them.  Is that all there is?  CLE credit is available for lawyers and judges from podcast.njsba.com.

It’s Constitution Day, or rather Constitution Eve as we record.  Akhil is the invited speaker at Princeton University’s gala event, and ahead of the speech, we invited Princeton undergraduates to come and talk about the Constitution with us; to voice their questions, and to help us honor the mission of the day by engaging with American citizens on that thing that we all share and that hopefully embodies some set of shared values, history, and tradition.  Akhil fielded, Cosell-style, the barrage of questions, and we came away reassured about the next generation and the likelihood of the document enduring.  And Happy Constitution Day to all of you!  CLE credit is available for lawyers and judges from podcast.njsba.com.

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.