Season 5, Episode 20 (Show 229): Competence, Character – and Cannon
June 4, 2025
President Trump says he is dumping the Federalist Society and will make judicial nominations on a different basis. Worrisome. The filibuster is in the news. And a new book on Charles Sumner speaks to our moment.
CLE Credit Available for this episode from podcast.njsba.com.
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.
(LAWYERS AND JUDGES ARE ELIGIBLE FOR CONTINUING LEGAL EDUCATION CREDIT by visiting podcast.njsba.com after listening.)
Show Notes:
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Season 5, Episode 19 (Show 228): Possibly Preparing Humphrey’s Execution
May 28, 2025
The Court steps into the Presidential firing controversy, overturning lower courts’ injunctions. Is this tantamount to deciding the case? Justice Kagan expresses deep concerns not only about the ruling, but the circumstances. We examine.
CLE Credit Available for this episode 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.
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Show Notes:
Season 5, Episode 18 (Show 227): The Merits of The Merits
May 21, 2025
The Supreme Court heard arguments on the executive order on birthright citizenship, specifically on national injunctions issued when the order was challenged at federal district courts. We analyze the argument.
CLE Credit Available for this episode 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.
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Show Notes:
Season 5, Episode 17 (Show 226): A Judicious Life, Part 1 – Special Guests Dean Heather Gerken and Judge Kevin Newsom
May 14, 2025
We pay tribute to the late Justice David Souter; in this episode, through the observations of two of his most accomplished former law clerks.
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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.
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Show Notes:
Season 5, Episode 16 (Show 225): No School For You – Special Guest Vikram D. Amar
April 23, 2025
Universities threatened with loss of billions in federal funding; law firms threatened with barriers that might prevent them from representing clients. What’s going on here?
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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.
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Show Notes:
Season 5, Episode 15 (Show 224):Equality, Emergencies, Exception, and Easter
April 16, 2025
The deportation efforts of the Trump administration as applied to Mahmoud Khalil are the starting point for this look at the rights of citizens and non-citizens in this extreme context.
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Deportations, the administration’s preferred tactic du jour, appear to many as extreme, inadvisable, and often cruel. Are they unconstitutional? What framework can we use to determine the rights of citizens versus aliens, even if legal, even if permanent resident? What kind of process is “due” for the various groups? Where can we locate the origins in our history, and how do they interact with some of the great themes of the Constitution, including the guarantees of the Bill of Rights, and the rights of “persons” as expressed in the 14th Amendment? The case of Mahmoud Khalil offers a set of facts that shed light on these questions, as do other deportations; we start with this one.
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