Speaking the Law

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.

The end of the term arrives, and the Court is busy.  We begin our dive into  the cases with Mahmoud v. Taylor, a case involving inclusive books in a school, parental guidance of religious education, opt-outs, advance notification, and issues of gender and sexual education.  Professor Amar goes beyond the case with an overall theory of religious accommodation; indeed, he goes beyond this into questions of parental rights and how it may interact with first amendment law.  We also have some announcements of future events.  And as always, CLE credit is available for lawyers and judges from podcast.njsba.com.

The US enters a violent part of the world once again, as Iran’s nuclear facilities are bombed.  The President orders this without consulting Congress; indeed without asking for, much less receiving a declaration of war.  Does the Constitution require this?  What has past practice been?  What was true at the founding?  Has it changed over the centuries?  Many twists and turns to the reasoning emerge as we explore this largely indefinite area of Constitutional Law.  Meanwhile, Akhil gives a speech on the Revolution and the Constitution which sounds surprisingly relevant at this time.  CLE credit is available for lawyers and judges from 

Former Justice Breyer returns to Amarica’s Constitution with reflections on his long-time colleague and, yes, his friend, in a rare opportunity to hear about relationships on the Court.  Meanwhile, former Souter clerk and current Professor at Penn Carey Law School, Kermit Roosevelt, looks back on the clerkship as well as at the threads that have emerged in the law and in his career from Justice Souter’s insights and methodology.  And Nadine Strossen, long-time president of the ACLU as well as dear friend to Justice Souter explores many of the first amendment and other cases that Justice Souter had profound things to say, often in dissent.  This is a powerhouse episode, but a tender one.  CLE credit is available for lawyers and judges from podcast.njsba.com.

The Supreme Court left lower courts somewhat in the lurch in its recent Bruen decision; last year, in Rahimi, it attempted to clarify matters.  Now an assault weapons case reaches the Court, Snope v. Brown, but the Court declines to hear it.  Nevertheless, Justice Kavanaugh, though agreeing with the denial of cert, writes a commentary which calls for another, unspecified case to be heard in the near future, and he gives an indication of how he might approach it.  We see this as in line with earlier writing he did in Bruen, but there are many unanswered questions in what seems like an intention to utilize a straightforward reasoning.  We raise many of these questions, and in doing so, offer our readers a look back at the path gun cases have taken to get to this point, and a look ahead in the hope that some of these heretofore unresolved issues are given their due; that the Justices "count to ten," before the Court takes what might be too headstrong a path forward.  Lawyers and judges can obtain CLE credit by visiting podcast.njsba.com after listening.

Trump says he will no longer take advice from the Federalist Society, and Leonard Leo in particular, for judicial nominations.  The criteria he will use instead appear to be cause for great concern, and we discuss this. Meanwhile, the Senate is poised to bypass the filibuster for more than judicial nominations, which calls for an analysis that we provide.  And the publication this week of Charles Sumner: Conscience of a Nation brings its author, Zaakir Tameez, onto our podcast to speak to Sumner’s enduring relevance.  CLE credit is available for lawyers and judges from podcast.njsba.com.

This past week, the Supreme Court issued stays of injunctions which lower courts had issued, those injunctions blocking the firings of officials on statutorily independent agencies.  In doing so, the Court may have pointed to an imminent overruling of Humphrey’s Executor, possibly removing existing limitations on the unitary executive theory.  At the same time, the Court moved to protect the Federal Reserve, or at least markets’ perception of the independence of that crucial Board.  Several justices reacted strongly, led by Justice Kagan, who found fault not only in the ruling regarding the injunction, but in the behavior of the President in bringing this case on in the first place.  We take a deeper look at these controversies.  Meanwhile, the Court deadlocked in a religious freedom case, and surprisingly, we see a connection between these two events.  And some other tidbits, as well.  CLE credit is available for lawyers and judges from podcast.njsba.com.

The Trump executive order on birthright citizenship has been banging around the lower federal courts for months now, with court after court opining on its unconstitutionality and issuing injunctions against it that span the nation.  The Supreme Court took cert on the question of whether such national injunctions are appropriate, and if not, how the relief that appears indicated can be offered.  Along the way questions of the merits poked their way through, with interesting results.  In this episode you will hear from the justices and the attorneys, and you will hear Professor Amar doing his Howard Cosell halftime highlights imitation, opining on their arguments, responses, and questions, and offering a holistic approach to the case as well as some new theories on how to think about citizenship in this context.  A “clip episode” as only Amarica’s Constitution does it.  CLE credit is available for lawyers and judges from podcast.njsba.com.

With the passing of Justice David Souter, the legal establishment has lost one of its most honored members.  In this and our next episode, we pay tribute to the man and his work with the help of an amazing roster of his former clerks, friends, and colleagues.  We begin with Judge Kevin Newsom from the US Court of Appeals for the Eleventh Circuit, and the Dean of the Yale Law School, Heather Gerken, who share their experience working closely with the Justice on the Supreme Court, as well as his role in their lives that did and does inspire them.  Meanwhile, Akhil, who considered the Justice a good friend and role model, offers an in-depth look at various aspects of the Justice, including why a Justice who disagreed with Akhil on method and, in many cases, substance, nevertheless is regarded by him as one of the great Justices in American history.  In our next episode we will have more guests whom we will reveal in the discussion during this episode.  CLE credit is available for lawyers and judges from podcast.njsba.com.

Law firms are threatened with draconian penalties, with scarcely disguised vengeful and politically destructive motive.  Universities are dragged on the carpet, with demands that they forfeit their academic freedom, choice in hiring, and internal mission priorities.  What’s going on here?  What is likely to happen in Court?  Are the firms and universities defensible on constitutional grounds as well as because of procedural and statutory reasons?  We bring on Vik Amar, former Dean at the Law School at University of Illinois, Urbana, and author of recent articles on both these crises.  And while we are at it, we take a look at the forthcoming Supreme Court oral arguments in the birthright citizenship case, which superficially is about nationwide injunctions.  Is that really what it’s about, and in any case, is there more than that there?  Three of our current crises in one sweeping conversation.  CLE credit is available for lawyers and judges from podcast.njsba.com.