Season 2, Episode 33 (Show 85): Originalism on Trial
August 10, 2022
The Supreme Court has declared itself an originalist Court. We use actual cases to put originalism through its paces: myths and truths, critiques and methods.
The recent Supreme Court term gave rise to a virtual anointment of originalism, as the Court in case after case declared originalism the approach and method that determined the result. Professor Amar has spent a career on originalism, and that expertise is employed here to respond to these developments. We begin a look at the great cases and controversies of American history, and through them, we define an originalism that has a clear method, recognizes its own limits, responds to critiques, and is consistent with a recognizable America – not an America with a Constitution and a jurisprudence for liberals or for conservatives alone.
Show Notes:
Season 2, Episode 32 (Show 84): Time is Now
August 3, 2022
Akhil is in the news, making news, and “unpacking” the news on the Court. We look back 23 years and ahead 18.
Events continue to unfold, causing us to look back, forward, inward, and outward. A new bill is introduced which takes us back 20 years and ahead 18 years. Professor Amar conducts an unprecedented interview – maybe we shouldn’t use that term – and you are there. A moot court from 23 years ago reappears in the present. And lessons from nearly 250 years ago will unfold in the next year – and affect us forever. Professor Amar unwraps this scroll.
Show Notes:
Season 2, Episode 31 (Show 83): Tackling Kennedy
July 27, 2022
A long line of Establishment Clause cases has brought us to the gridiron, as a coach flamboyantly asserts the primacy of his rights, even as he represents the State. Professor Amar takes us through this long and fascinating line of cases.
Our tour through the late-term Supreme Court cases now runs through the football field where Coach Kennedy sits praying on the 50 yard line. Professor Amar calls the play – a run through the string of cases that took the Court to this point by way of Abington and progeny. We wind up in this fact-specific case with turns and twists, and detours through the pledge of allegiance and an old Missouri case along the way. It’s a master law school class in case analysis, and we aren’t so sure that the majority passed.
Show Notes:
Season 2, Episode 30 (Show 82): Separate or Equal
July 20, 2022
Next up on the hit parade from the end of the SCOTUS term is the school voucher case from Maine, Carson v. Makin. Professor Amar looks at the history, and the series of cases that deal with the “wall of separation” concept; Carson then lines up neatly.
CLE credit is available by visiting podcast.njsba.com after listening.
Our review of the major cases decided at or near the end of the recent Supreme Court term continues with Carson v. Makin, The case immediately brings to mind the often-invoked metaphor of the “wall of separation” between church and state. Professor Amar takes us back to the Founding and the origin of this meme, and in so doing, gives us an originalist analysis of the Establishment and Free Exercise clauses of the First Amendment. By now our listeners should know the next step, as the Reconstruction must be brought in. When we have finished looking at the text, the history, and the structure of the Constitution and its amendments, the case itself falls neatly into place.
(LAWYERS AND JUDGES ARE ELIGIBLE FOR CONTINUING LEGAL EDUCATION CREDIT by visitingpodcast.njsba.com after listening.)
Show Notes:
Season 2, Episode 29 (Show 81): The Long and The Short of Bruen
July 13, 2022
It’s the Bruen case’s turn today as we turn the page on Dobbs and move on to the other cases that marked the end of a turbulent Supreme Court term. This gun case gave rise to many narratives – which are valid, which are important, and which are misleading? We explain.
We continue our look at the big cases that rocked the end of the Supreme Court term. Turning to the Bruen gun case, we see a long opinion and two short concurrences. An ambitious, contentious opinion by Justice Thomas riled many, especially in the wake of the continuing plague of shootings around America. We draw particular attention, however, to concurrences that may be the real news here. And if this case indeed has great impact, is it in its short-term policy implications, or its long-term constitutional lessons – or somewhere else? The case turns out, in Professor Amar’s “Princess Bride” view, to perhaps not mean what you think it means.
Show Notes:
Season 2, Episode 28 (Show 80): Unprecedented
July 6, 2022
We continue our analysis of this momentous end-of-term by taking a close look at the Dobbs dissent, and reflect on the significance of the decision not only for women, but also for the law.
The nation continues to be abuzz over the Supreme Court’s recent decisions that rounded out the term, particularly in the Dobbs case. We take a careful look at the dissent in this case; in particular, at the various claims that it makes regarding the majority opinion and its overall approach to evaluating Roe and Casey. We reflect on the significance of the opinion and its methodology, particularly as we look to analyze the Bruen and Carson cases in forthcoming episodes, and as a big one – the ISL case – looms in the coming year.