Season 5, Episode 23 (Show 232): Imbalance of Power
June 26, 2025
President Trump launches attacks on Iran. Congress is not involved. A problem?
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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.
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Show Notes:
Season 5, Episode 22 (Show 231): A Judicious Life, Part Two – Special Guests Justice Stephen Breyer, Professor Nadine Strossen, Professor Kermit Roosevelt
June 19, 2025
Three more outstanding guests join us as we revisit Justice Souter’s passing, this time with an emphasis on his jurisprudential importance.
CLE Credit Available for this episode from podcast.njsba.com.
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.
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Show Notes:
Season 5, Episode 21 (Show 230): Count to Ten
June 11, 2025
The Supreme Court denies cert in a gun case, but in the process it raises a plethora of issues and drops all sort of hints. We clue you in.
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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.
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Show Notes:
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.
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Show Notes:
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.
(LAWYERS AND JUDGES ARE ELIGIBLE FOR CONTINUING LEGAL EDUCATION CREDIT by visiting podcast.njsba.com after listening.)