Advisory Opinions

Supreme Court oral arguments have resumed via telephone and our podcast hosts are nerding out. The court kicked off today with an interesting denial of cert from the Supreme Court on a case out of Kentucky involving Kim Davis, the county clerk who refused to certify marriage licenses to same-sex couples in 2015 for religious reasons. “This petition provides a stark reminder of the consequences of Obergefell,” Justice Thomas wrote in a statement on Monday joined by Justice Alito. “By choosing to privilege a novel constitutional right over the religious liberty interests explicitly protected in the First Amendment, and by doing so undemocratically, the court has created a problem that only it can fix.” On today’s episode, our podcast hosts discuss the evolution of religious liberty and discrimination law, ongoing election disputes in Wisconsin and Pennsylvania, and the latest updates on the presidential campaign ad wars. Sarah and David wrap things up with a fun constitutional exercise by poking holes in the 25th Amendment and unpacking what happens when presidents die at different points in the cycle. Show Notes: -30 day free trial at The Dispatch, Divided We Fall by David French, Obergefell v. Hodges, Kim Davis v. David Ermold, “Applications and Implications of the Twenty-Fifth Amendment” by Akhil Reed Amar, “Is the Presidential Succession Law Constitutional?” by Akhil Reed Amar and Vikram David Amar. Learn more about your ad choices. Visit megaphone.fm/adchoices

How will Amy Coney Barrett shake things up on the bench if she is confirmed by the Senate before November 3? “Amy Coney Barrett will not be as revolutionary as the left fears or the right wishes,” Sarah argues, “Because no justice really is, because it’s one vote.” On today’s episode, David and Sarah address the hysteria surrounding her upcoming Senate confirmation battle while breaking down what a 6-3 conservative majority would mean for the future of Supreme Court jurisprudence. Sarah and David are also joined by Ilya Shapiro—director of the Robert A. Levy Center for Constitutional Studies at the Cato Institute and publisher of the Cato Supreme Court Review—for a conversation about the politics and history of Supreme Court nominations. To a certain degree, politics has always played a role in Supreme Court nominations. What makes this era unique? “What’s different is that you have divergent interpretive theories mapping onto partisan preference at a time when the parties are more ideologically sorted than they’ve been since at least the Civil War,” Shapiro argues. When it comes to divergent legal theories, “every decade provides a new escalation.” Tune in for a conversation about the future of First and Second Amendment jurisprudence, the left’s misconceptions surrounding Roe v. Wade, and the problems associated with public hearings for judicial nominations. Show Notes: -30 day free trial at The Dispatch, CBS post-debate poll, “Why Amy Coney Barrett Should Not Be On The Supreme Court” by Nathan Robinson in Current Affairs, Chevron doctrine, “Qualified and Absolute Immunity at Common Law” by Scott Keller and Jay Schweikert’s response in Cato. -Ilya Shapiro’s new book: Supreme Disorder: Judicial Nominations and the Politics of America’s Highest Court and Ted Kennedy tirade against Judge Robert Bork Learn more about your ad choices. Visit megaphone.fm/adchoices

Several new polls were released over the weekend and Donald Trump is still trailing Joe Biden by roughly 7 to 10 points, depending where you look. Despite Biden’s steady lead, bad takes abound in the journalism world. “Here’s what happens when a race is not particularly close on the numbers,” Sarah explains. “People in the media try to make it more interesting by finding tea leaves and little nuggets that no one else has found and then blowing those up into their own narrative.” Sarah says it’s not always that the methodology of a particular poll is bad per se, “it’s that the causal relationship between the question and the result is assumed and not actually there.” For example, a series of polls from this weekend show that a majority of Americans oppose Trump’s decision to fill the late Justice Ruth Bader Ginsburg’s Supreme Court seat before November 3. But as Sarah points out, this is a dumb survey question for two reasons: 1) the answers break down along party lines when you look a little closer at the survey responses, and 2) it doesn’t ask survey respondents whether it will change their vote, which is the only thing that matters at this point. That leads us to the New York Times’ bombshell report on Trump’s tax returns and whether it will be of any consequence during this election. David and Sarah argue that loyal Trump supporters are simply too attached to the president at this point to care about any new scandals that emerge between now and November 3. Tune in to this episode for an update on presidential polling in battleground states, electoral litigation in Wisconsin and Pennsylvania, and a fun conversation about our podcast hosts’ favorite new documentaries. Show Notes: -New York Times/Siena College poll, Washington Post-ABC News poll, FiveThirtyEight polling averages in Pennsylvania, Wisconsin, Michigan. -The New York Times’ report on Trump’s tax returns, Purcell v. Gonzalez. -Republican party of Pennsylvania filed court documents over the Pennsylvania Supreme Court’s Sept. 17 rulings. -David’s French Press: “It’s Time for ‘Pandemic Law’ to End”, “The Social Dilemma” Netflix documentary and “The Real Story of Paris Hilton.” Learn more about your ad choices. Visit megaphone.fm/adchoices

A Louisville grand jury on Wednesday indicted one officer in connection with the March 13 police raid that took Breonna Taylor’s life. The grand jury declined to charge the two officers who fired directly at Breonna Taylor and her boyfriend that evening, instead only charging the third officer, who was outside and fired indiscriminately, with wanton endangerment. David explains the basic facts leading up to Taylor’s shooting, as well as the legality surrounding police raids and the right of self-defense under Kentucky law. “You begin to see where we’ve backslidden in our commitment to key constitutional liberties,” David explains, where “decades of bad Fourth Amendment jurisprudence has empowered violent tactics even when the stakes are low.” On today’s episode, David and Sarah also address how much the chief justice matters to the trajectory of the Supreme Court and the democratic prudence of voluntary judicial restraint. After a requisite foray into all things SCOTUS, our podcast hosts are joined by Federal Elections Commission Chairman Trey Trainor, who explains the ins and outs of election law, foreign election interference, and why the FEC is paralyzed right now. Trainor also explains how campaign finance laws like the Bipartisan Campaign Reform Act have significantly weakened the national political parties while funneling money into the state parties in the process. “What’s happened is the smoke filled room has moved from Washington, D.C. to each of the 50 states.” Stick around for an inside scoop on the rise and fall of Kanye West’s presidential campaign. Show Notes: -30 day free trial at The Dispatch, FEC Chairman Trainor’s statement on the dangers of procedural dysfunction, “A Resignation in Time, that Saved Nine” by Josh Blackman in Reason, David’s French Press: “Supreme Court Precedent Killed Breonna Taylor.” Learn more about your ad choices. Visit megaphone.fm/adchoices

Ruth Bader Ginsburg died on Friday, rocking the nation and setting the stage for a blistering Senate confirmation fight  should the Senate Judiciary Committee go through with the hearing process before the election. Today, our podcast hosts walk us through the history of SCOTUS vacancies, reflect on the legendary friendship between Justice Ruth Bader Ginsburg and Justice Antonin Scalia, and offer some rank punditry about what this SCOTUS vacancy means for the future of our republic. The question on everyone’s mind is: What happens next? Will Senate Republicans go through with the Supreme Court nomination process? Should they? Sarah and David have some thoughts. What’s clear is that Trump will fight tooth and nail to get a nominee through as a last ditch effort to energize his base. “The more the Democrats threaten him, his brand is that he cannot give in to threats,” explains Sarah. “It’s the ultimate ‘owns the libs’ move to fill the Ginsburg seat and enrage the left.” But who will president Trump nominate? Judge Barbara Lagoa of the 11th Circuit  is in the running, but 7th Circuit judge Amy Coney Barrett’s cult of personality on the right—especially within the pro-life community—will likely give her the winning ticket. “If RBG is Michael Jordan,” Sarah explains, “ACB is Lebron James.” Stick around for a deep dive into the filibuster’s life expectancy, the possibility of a Democratic court packing scheme, and the likelihood of an Electoral College split this November. Show Notes: -David’s new book, Divided We Fall: America's Secession Threat and How to Restore Our Nation, Judge Jeffrey Sutton’s conversation with Justice Scalia about his friendship with RBG, and Sarah’s Sweep newsletter, “Yep, This Changes Everything,” and “Replacing Justice Ginsburg: Politics, Not Precedent” by Andrew McCarthy in National Review, the upcoming Dispatch Live with Sarah and David this Wednesday. -David’s piece on the battle over Ginsburg's seat and don’t forget to take advantage of our 30 day free trial of The Dispatch. Learn more about your ad choices. Visit megaphone.fm/adchoices

After reflecting on the best and worst parts of our country’s founding document for Constitution Day, David and Sarah dive into Attorney General Bill Barr’s Constitution Day address at Hillsdale College yesterday, in which he defended political judgment in bringing prosecutions and railed against federal prosecutors’ propensity to punish as much misconduct as possible. Our podcast hosts agree with Barr that there is an effort by federal prosecutors to expand federal criminal law to an unreasonable degree. But David reminds us that federal prosecutors are not just the instrument to be wielded by the attorney general, they are charged with carrying out laws that have been passed by Congress.  “Perhaps we have gone too far with civil service protections,” Sarah explains, “and that we are unable to remove anyone who is part of the permanent federal bureaucracy even for misconduct at this point really.” Most of the news headlines referencing Barr’s speech highlighted his comparison between career federal prosecutors and preschoolers, as well as his rather distasteful comparison between coronavirus lockdowns and … slavery. “You know, putting a national lockdown, stay at home orders, is like house arrest,” Barr said yesterday in response to a question about the constitutionality of stay at home orders. “Other than slavery, which was a different kind of restraint, this is the greatest intrusion on civil liberties in American history.” Sarah suggests a new legal truism on today’s episode: If you compare anything to slavery, you’ve already lost your argument. Stick around for a deep dive into Lochner v. New York  its relation to coronavirus lockdown court order, as well as a discussion about whether Trump can win enough Electoral College votes without winning Florida. Sarah and David wrap up today’s episode with a reflection on their biggest career failures. Show Notes: -Bill Barr’s speech at Hillsdale College, Three Felonies A Day: How the Feds Target the Innocent by Harvey Silverglate, Yates v. United States, Lochner v. New York, Morrison v. Olson, and William S. Stickman IV’s Pennsylvania District Court decision, The Dispatch30-day trial at . Learn more about your ad choices. Visit megaphone.fm/adchoices

For the month of August, the Biden campaign outraised the Trump campaign by a whopping $150 million. (Biden raked in $360 million last month compared to Trump’s $210 million). As stark as this fundraising difference may be, is there any reason to believe it will be meaningful in the long run?A lot of this money will go toward television ads at this point, but campaign money starts diminishing in value once people start voting by mail. In other words … now. Not to mention that the fundraising difference doesn’t matter so long as each candidate meets a certain threshold. On today’s campaign update episode, our podcast hosts discuss these fundraising efforts while dissecting Trump’s surprising lead with Hispanic voters as well as the usefulness of yard signs, door knocking, and phone banking to a campaign’s overall success. Rather than waste time putting up yard signs or trying to persuade voters to vote with ideologically charged Facebook posts, Sarah argues that the most important—and statistically effective—thing you can do to boost voter turnout is text your closest friends and remind them to vote. As David points out, “It fits in with the sort of general reality that we have a large amount of influence over a small amount of people and a small amount of influence over a large number of people.” Stick around for a discussion about the newest additions to Trump’s Supreme Court list—also known as Sarah’s close friends list—as well as David’s latest Sunday French Press newsletter on the use and abuse of critical race theory. Show Notes: -Sign up for a 30 day trial at The Dispatch here! -“The Sweep: Swing States and Voter Registration Trends” by Sarah Isgur and “Sorry campaign managers: Lawn signs are only 98.3 percent useless” by Philip Bump in the Washington Post, and three polls showing Trump winning Hispanic voters in Florida, The Emerging Democratic Majority by John B. Judis and Ruy Teixeira. -“The Most Tremendous Reelection Campaign in American History Ever” by Olivia Nuzzi in New York Magazine, the newest additions to Trump’s Supreme Court list, David’s latest French Press, “On the Use and Abuse of Critical Race Theory in American Christianity,” the New York Times’ 1619 Project, and “A pandemic, a motel without power and a potentially terrifying glimpse of Orlando’s future” in the Washington Post. Learn more about your ad choices. Visit megaphone.fm/adchoices

Last week, President Trump encouraged North Carolina voters to test their state's election security. David and Sarah discuss how, exactly, someone commits voter fraud, and what voters need to know as we close in on this November's election. But that's not all: Sarah gives us the latest on the state of the race and how the Trump campaign lost its cash advantage. Plus, David has some thoughts on Tenet. Show Notes: -The New York Times on “How Trump's Billion-Dollar Campaign Lost Its Cash Advantage” -Sign up for Sarah's newsletter The Sweep Learn more about your ad choices. Visit megaphone.fm/adchoices

There’s a bit of post-2016 election PTSD among American political strategists, where any slight uptick in Trump’s polling numbers is perceived as an emergency situation for the Biden campaign. But despite the almost constant news cycle turbulence in American politics that would have caused big swings in a normal presidential election, the polls have remained relatively stable over the past few months. Biden remains in a clear and comfortable lead over Trump on practically every policy issue except for the economy. Why? According to Sarah, “It’s because of the referendum effect, and it’s because of the wild partisanship moment we’re in right now.” How stable are these divisions that have emerged? Hyper-partisanship isn’t going anywhere as we approach the presidential election, and as David reminds us in today’s episode, “these identities are cementing at the state level as well.” After going deep into the weeds on the latest presidential polls, our podcast hosts delve into the temperamental differences between city life and suburbia, the president’s memorandum on combating lawlessness in America’s cities, and a primer on time, place, and manner restrictions on the First Amendment. Show Notes: -The Sweep: Midweek Mop-Up with Dave Kochel, Fox New polls in Arizona, North Carolina and Wisconsin, CNN poll, Suffolk University/USA Today poll. -David’s forthcoming book Divided We Fall: America's Secession Threat and How to Restore Our Nation and Trump’s memorandum on “Combating Lawlessness In America’s Cities,” a very important city council meeting speech about boneless chicken wings, and a documentary on the dreaded man cold. Learn more about your ad choices. Visit megaphone.fm/adchoices

Ever since its humble beginnings in March 2016, The Babylon Bee—a Christian, conservative version of The Onion—has been a godsend for Americans who have become worn out by news outlets that take themselves too seriously. From its theological inside jokes about the prosperity gospel to its Snopeslong-standing feuds with and CNN, the Bee has made its mark in the world of satire. On today’s episode, David and Sarah are joined by the Babylon Bee’s editor-in-chief, Kyle Mann, who tells us about the challenges of satire writing in a cultural moment when it’s not always easy to determine fact from fiction. “There is an element where it’s not that our articles are too close to reality, it’s that reality is too close to satire,” Mann explains. “It’s what makes it so hard to write because you write something that you think is so goofy and over the top and then people believe it because reality is so crazy.” Listen to today’s episode for a conversation about C.S. Lewis’ best books, Kyle’s joke-writing process, and a tell-all about why Twitter’s decision to temporarily deplatform and demonetize the Babylon Bee was ironically “the best thing that could happen” to the team. Today’s episode would be incomplete without its requisite dose of legal nerdery. Tune in to hear David and Sarah discuss the never-ending saga with Michael Flynn, the McGahn case, and Sarah Palin’s defamation case against the New York Times. Show Notes: -Some of the Babylon Bee’s top headlines: “Nation's Cats Endorse Trump In Hopes Americans Will Go Back To Work And Leave Them Alone”, “Nation Shocked As Jerry Falwell Jr. Doesn't Turn Out To Be Man Of Upstanding Character,” “Lego Introduces New Sharper Bricks That Instantly Kill You When You Step On Them,” “Joel Osteen Sails Luxury Yacht Through Flooded Houston To Pass Out Copies Of 'Your Best Life Now,' ” “Inspiring: Celebrities Spell Out 'We're All In This Together' With Their Yachts.” Learn more about your ad choices. Visit megaphone.fm/adchoices