Divided Argument

We're back with the first episode of the new year, breaking down the interim docket opinion/order in Trump v. Illinois , the national guard case, after first warming up with new Erie scholarship, state criminal jurisdiction over federal officers, and some recent online discourse.

We're back to break down a month's worth of shadow docket activity -- three recent summary reversals, plus the stay in the Texas gerrymandering case (Abbott v. LULAC) . We also discuss the launch of the SCOTUSblog "interim docket blog."

Will and Dan record a rare live show in an unusual venue: the Salamander Resort in Middleburg, Virginia, at the annual attorney retreat for trial boutique Wilkinson Stekloff . Dan teaches Will some of the new lingo he's learned from the firm's trial experts before a deep dive into civil procedure. First, we dig into the recently argued Coney Island Auto Parts Unlimited v. Burton , which presents a...

After a predictably unpredictable set of detours through Latin grammar, parenting philosophies, and 90s video games, we catch up on the latest shadow (interim?) docket activity and recap the oral argument in the tariffs cases. 

Divided Argument is in its sixth season! Our first episode of the term focuses, of course, on the latest developments on the shadow docket. These include several grants of interim relief to the Trump administration, as well as some dissents from the denial of certiorari. But first, an update on Dan's travel schedule and ChatGPT usage, and an important correction to our previous episode.

For the season finale, we're joined by Yale law professor Justin Driver to talk about his new book, "The Fall of Affirmative Action: Race, the Supreme Court, and the Future of Higher Education." We discuss the conservative cases for and against affirmative action, the post-SFFA world of university admissions, the promise and limits of colorblindness, and the effects of admissions policies on stude...

We extend our record-breaking run with a discussion of the Court's two big recent emergency docket rulings: Noem v. Vasquez Perdomo and NIH v. American Public Health Association .

We're joined by Michigan law professor Richard Primus to talk about his new book, "The Oldest Constitutional Question: Enumerated and Federal Power." Richard describes one of the the most widespread beliefs about constitutional law -- that the federal government is one of limited, enumerated powers -- and why he thinks it is actually wrong. Along the way, we discuss methods of constitutional inter...

Continuing our long slog through the end-of-Term opinion dump, it's fraud day! We dig into Kousisis v. United States and Thompson v. United States , two interesting federal criminal law puzzles. 

We finally circle back to the two big structural constitutional law cases from the last day of the term. First is Kennedy v. Braidwood Management, which upheld the appointment structure of the U.S. Preventative Services Task Force under the Affordable Care Act. Then is FCC v. Consumers' Research , which upheld the universal-service contribution scheme against a pair of non-delegation challenges. O...

Acting with unpredictable alacrity and unpredictable brevity, we break down the Supreme Court's recent interim order in Trump v. Boyle , and discuss what it means for the unitary executive, and for the shadow docket. We also debate the best name for the Court's emergency/interim orders docket.

Moving with shockingly unpredictable efficiency, we respond to feedback, debate which of us is more composting-friendly, catch up on the emergency docket, and chip away at our end-of-Term backlog by digging into Diamond Alternative Energy v. EPA .

We look at the final orders list before summer break, and then continue to work through last month's opinions, this time with an extended analysis of two decisions about children and culture wars -- Mahmoud v. Taylor (religious objections to LGBTQ+-inclusive books) and Free Speech Coalition v. Paxton (age verification for accessing online pornography).

We talk a bit more about Trump v. CASA, revisit the usage of "general," answer some voicemails, and then turn to Gutierrez v. Saenz , a procedural tangle about whether a death row inmate can sue a state prosecutor over access to DNA testing.

We celebrate the 100th episode of the podcast with a special cross-over episode with Sarah Isgur at Advisory Opinions! Sarah, Will, and Dan break down today's blockbuster decision in Trump v. CASA , forbidding universal injunctions (and not saying much about birthright citizenship).

We're joined by a special guest, Harvard Law Professor Stephen Sachs, to talk about Fuld v. Palestine Liberation Organization . Fuld is last week's big personal jurisdiction case, where the Court upheld federal laws extending jurisdiction to the PLO and PA for antiterrorism lawsuits. The author of several important articles on these issues and an amicus brief in Fuld, Steve gives us his take on th...

After some feedback and further thoughts on our Skrmetti episode and a shocking revelation about "LabCorp," we circle back to an earlier June opinion about religious distinctions, Catholic Charities Bureau v. Wisconsin Labor & Industry Review Commission . Dan keeps Will up past his bedtime.

Without much introductory ado, we interrupt Will's vacation to give you a thorough breakdown of United States v. Skrmetti , the trans health care case that is one of the most-watched cases of the term.

We start out by debating who's responsible for Dan's audio snafus last time before digging into a various odds and ends, such as the Chief Justice's toast at the Supreme Court Historical Society dinner and President Trump's renunciation of Leonard Leo and the Federalist Society. We then try to make sense of the DIG in Labcorp v. Davis and see whether our predictions about Smith & Wesson Brands...

With apologies for Dan's horrendous audio quality: we catch up on the latest emergency-docket happenings and debate whether Trump v. Wilcox is a big deal or small potatoes. We also catch up on listener feedback and, for the first time in a long time, play a couple of messages received on our voicemail line (314-649-3790 for anyone else who wants to chime in). 

We're joined by NYU law professor Rachel Barkow to talk about her new book J ustice Abandoned: How the Supreme Court Ignored the Constitution and Enabled Mass Incarceration . Listen to learn about five (or six) Supreme Court cases that arguably ignored the original meaning of the Constitution to enable our current policing and punishment practices. Along the way, a hypothetical genie offers Profes...

We're back with another unexpectedly short and timely episode, focusing on last Friday's emergency docket decision in AARP v. Trump . We also spend a few minutes on a few other orders: the administration's partial victory in Noem v. National TPS Alliance and a puzzling mass recusal. 

We reflect on the death of Justice Souter and sort out some loose ends from the last episode. We then dig into the Court's only opinion from Thursday, Barnes v. Felix , which we previewed with friend of the show Orin Kerr back in February at Stanford. Along the way we make a short detour into generative AI and its potential for SCOTUS research. Most importantly, we react to the oral argument in Tr...

The shadow docket strikes once again! We break down the Court's unusual immigration ruling in AARP v. Trump (no, not that AARP!), and then briefly discuss the much-heralded ERISA case ( Cunningham v. Cornell ). But first we discuss some blog news, some SCOTUS news, and some SCOTUSblog news. 

We have another short administrative law episode, analyzing the Supreme Court's decision about e-cigarettes in FDA v. Wages and White Lion . But first we field some listener pushback about facial challenges in administrative law, and discuss the shadow docket ruling, and ensuing fallout, in Noem v. Abrego Garcia.