Advisory Opinions

Violent riots escalated quicky in Kenosha, Wisconsin, after the police shooting of Jacob Blake. . On Wednesday, 17-year-old Kyle Rittenhouse was charged with first-degree homicide for the shooting deaths of two people in Kenosha on Tuesday evening. Sarah and David break down what we know and don’t know about the Jacob Blake shooting on today’s episode of Advisory Opinions and talk through the legality of vigilante justice during times of unrest. “These really traumatic events are playing out in front of all of us,” David says on today’s episode. In one sense they’re playing out in a way that’s quite transparent because you can see the actual shootings on tape. “But there’s still a disturbing amount of fog around all of the incidents,” he adds. As Sarah explains, “We’re never talking about black and white cases but then everyone treats them like they’re black and white cases.” From a legal standpoint, law enforcement officials will have to fill in those gaps before they can render a clear legal judgment in all of these shootings. Sarah and David also take a walk down memory lane by revisiting Bush v. Gore, while also diving into the recent TikTok lawsuit and a fun conversation about our podcast hosts’ favorite parts of adulthood. Show Notes: -Video of Jacob Blake shooting, Bush v. Gore. Learn more about your ad choices. Visit megaphone.fm/adchoices

Today our hosts are joined by Phill Drobnick, head coach of the Olympic curling team, for some hot takes about the sport that inspired Sarah’s new campaign newsletter The Sweep. Listeners who are unfamiliar with this sport, which gets even passing national coverage only during Winter Olympics years, might be wondering about curling’s origins. “It started in Scotland, like every goofy sport that involves beer,” explains Drobnick on today’s episode. The sport then took off in Canada and then around the world. When people watch curling during the Olympics, they become armchair referees who don’t realize how much strategy is at play behind the scenes. How similar is curling to golf and hockey? Do sweepers make or break the game? Is there a culture of collegiality or trash talk in the professional curling universe? Coach Drobnick has got answers. Tune in to today’s show to hear Sarah and David also discuss the partisan skew in absentee voting, the increasing likelihood of another Bush v. Gore-style debacle over mail-in voting, and the RNC’s nonexistent platform moving into this week’s convention. Show Notes: -Sarah’s campaign piece about curling and The Sweep. -“The Grand Old Meltdown” by Tim Alberta in Politico. Learn more about your ad choices. Visit megaphone.fm/adchoices

Former Trump advisor Steve Bannon was arrested Thursday—along with Brian Kolfage, Andrew Badolato, and Timothy Shea—after federal prosecutors discovered they defrauded donors involved with the “We Build the Wall” campaign, a GoFundMe that shored up $25 million in donations since its inception in 2018. The unsealed federal indictment is damning, and even shows evidence of the grifters’ amusement with scamming their donors and misappropriating the funds for personal use. The grift looks a lot like what happened recently with the NRA with Wayne LaPierre, and reminds us that scamming donors is an ever-present problem on the Right. As David says on today’s pod, “Right-wing institutions are bilking from angry grandpas and grandmas—their extra dollars—to fight for the people, when they’re really conning the people.” Catch the latest episode for some highlights (and lowlights) of the Democratic Convention, a primer on employment law in relation to the Goodyear diversity slideshow, Facebook’s strike against QAnon and Antifa, and an answer to a listener question from about the citizenship of a tv show character. Show Notes: -Trump embracing QAnon in front of reporters, Sarah’s “Mid Week Mop-Up With Mo Elleithee”, parody Orrin Hatch tweet, and the indictment against Steve Bannon, Brian Kolfage, Andrew Badolato, and Timothy Shea. Learn more about your ad choices. Visit megaphone.fm/adchoices

The 9th Circuit recently heard an appeal from a challenge to the state of California’s ban on large capacity magazines (in this case, any magazine that holds 10 or more rounds). California didn’t just ban the sale of these magazines, it banned their transfer, importation, and outright possession in the state. The 9th Circuit ended up striking down this law and departing from its sister circuits on the question of scrutiny. The precise contours of the Second Amendment remain up in the air in the post-D.C. v. Heller era, but our podcast hosts are armed with a war chest of constitutional history that helps break down gun rights precedent for our listeners. In today’s episode,  Sarah and David also dive into the John Durham probe into former FBI lawyer Kevin Clinesmith’s falsified surveillance warrants against Trump campaign adviser Carter Page. In keeping with August’s Monday nerdery trend, our hosts are joined today by Rob Daviau, a professional legacy board game creator. Daviau has worked on more than 80 published games—including Risk 2210 AD, Axis & Allies Pacific, Star Wars Epic Duels, and Clue Harry Potter—and has been a professor of game design at Hampshire College and NYU. Tune in to today’s episode to learn the ins and outs behind legacy board game creation and to learn why a game with bad math doesn’t work. Show Notes: -United States v. Carolene Products Company and Harlan Fiske Stone’s famous Footnote Four. Learn more about your ad choices. Visit megaphone.fm/adchoices

In 2017, an anonymous individual named “Q” began posting on a public messaging board called 4chan about “Pizzagate,” a conspiracy theory alleging that a restaurant called Comet Ping Pong was really an underground child sex trafficking ring run by deep state political elites. Q quickly gained acclaim online after he continued posting unsubstantiated clues—what QAnon followers call “bread crumbs”—about a prophetic “Great Awakening” that is in store, when deep state Democrats will supposedly be held accountable for their “crimes.” On Tuesday, avowed QAnon sympathizer Marjorie Taylor Greene won a Republican congressional primary in Georgia. Beyond her avowal of QAnon, she is a 9/11 truther, has called black people “slaves” to the Democratic Party, and has characterized the 2018 House midterms “an Islamic invasion of our government.” What’s worse, the president congratulated her win on Twitter after her victory. Given Georgia’s 14th District is a reliably red district, she’s almost certainly headed toward Congress. What does this mean for the future of the GOP? David and Sarah have some thoughts. Be sure to listen to today’s episode to hear our podcast hosts discuss the new police officer body camera footage leading up to George Floyd’s killing, as well as the constitutional underpinnings of John Eastman’s Newsweek piece questioning Kamala Harris’ eligibility for office on birtherist grounds. Show Notes: -John Eastman’s Newsweek piece on Kamala Harris, U.S. v. Wong Kim Ark, Thomas v. Lynch 5th circuit case, D.C. circuit case, statutory citizenship rights explainer. -Police officer body camera footage leading up to George Floyd’s murder. -Professor Ted Sampsell-Jones on the charges in the George Floyd case. -Pew Research Center polling on QAnon. Learn more about your ad choices. Visit megaphone.fm/adchoices

How realistic is the SpaceX dream to get to Mars? What does the latest scientific literature have to say about supernovae? Is there intelligent life in the universe? Today, Sarah and David are joined by Atlantic staff writer Marina Koren for a deep dive into all things space. Hear everything there is to know about the space race between Elon Musk and Jeff Bezos, colliding black holes, and other crazy interstellar phenomena. But today’s episode would be incomplete without its requisite dose of legal nerdery. Tune in to hear David and Sarah break down the legality of Trump’s latest executive actions and offer some insights on the D.C. circuit’s decision regarding the House Judiciary Committee and former White House counsel Don McGahn. Show Notes: -The D.C. Circuit McGahn case and the president’s executive actions this weekend: student loan payment relief memorandum, executive order on evictions, payroll tax deferral memorandum, unemployment insurance memorandum. -Advisory Opinions episode with Josh Blackman, associate professor of law at the South Texas College of Law Houston. -“Black Holes Really Know How to Savor Their Meals” by Marina Koren, and her author page at The Atlantic. Learn more about your ad choices. Visit megaphone.fm/adchoices

People who watch and comment on politics do so very differently than campaign operatives do. Campaigns use voter scores and voter modeling—which is essentially “Moneyball” for politics—to gauge which voters are worth spending money on. As Sarah explains: “It’s a quadrant: on the y axis you have who you’re going to vote for, and on the x axis, you have your likelihood to vote. So you may be the most Trump-y Trump person ever.” But here’s the kicker: “If I go and look back and you haven’t voted since Jimmy Carter, your propensity to vote is so low, that how much money we’re going to spend on reaching you as a voter is going to actually be pretty low.” Be sure to listen to this episode so our podcast hosts can get more into the weeds about how those voter scores are being used behind the scenes in future episodes. The country is still mourning the death of Breonna Taylor, an African American woman who was shot and killed by police officers in her Kentucky home during a no-knock raid in March. For years, no-knock warrants have withstood the test of time, given their alleged capacity to protect police and preserve evidence. But as David says, “there’s evidence that no-knock warrants are constitutionally deficient,” and “as a practical matter, castle doctrine and no-knock warrants are incompatible.” Sarah, on the other hand, doesn’t believe the castle doctrine should apply to police. Are no knock raids worth preserving? Why are they so broadly granted to police officers? Sarah and David have answers. Catch up on the latest episode for an update on the Michael Flynn case, subpoenas for Trump’s financial records, and the Hatch Act. Show Notes: -Sarah’s newsletter, The Sweep, Jonah’s column on silent MAGA voters. -SCOTUS opinion authored by Justice Alito on no-knock raids, D.C. v. Heller. -“Flip It and Reverse It: Squirrel Edition” episode of Advisory Opinions. -“Trump’s Bank Was Subpoenaed by N.Y. Prosecutors in Criminal Inquiry” in the New York Times. Learn more about your ad choices. Visit megaphone.fm/adchoices

Rewind millions of years and a dinosaur-killing asteroid is racing toward Earth at breakneck speed. But what exactly happened in the immediate aftermath of this event? Which species survived and which ones were met with instantaneous extinction? In a much-needed break from today’s partisan political climate, David and Sarah are joined by Steve Brusatte, a professor of paleontology and evolution at the University of Edinburgh, for some in-the-field expertise on the dinosaur age. “When the dinosaurs died,” Steve Brusatte explains on today’s podcast, “they died literally because a six-mile wide rock fell out of the sky, traveling faster than a speeding bullet.” Fast forward to 2020, and paleontology is in high demand. “We’re in this golden age right now,” Brusatte tells David and Sarah. “There’s fifty-something new species of dinosaurs being found every single year.” But realistically speaking, most people have a limited knowledge base about dinosaurs. Was the Tyrannosaurus rex an intelligent dinosaur? Are pterodactyls birds? What are the personality traits that make a good paleontologist? Steve Brusatte has answers. Tune in for some fun facts about pinocchio dinosaurs, banana-sized T-rex teeth, and birds (which are dinosaurs, by the way). For all you Jurassic Park fans out there, you won’t want to miss this one (especially since Brusatte is now a science consultant for the series.) Show Notes: -Steve Brusatte’s book, The Rise and Fall of the Dinosaurs: A New History of a Lost World, The Genius of Birds by Jennifer Ackerman, and She Has Her Mother's Laugh: The Powers, Perversions, and Potential of Heredity by Carl Zimmer. Learn more about your ad choices. Visit megaphone.fm/adchoices

The D.C. Circuit has decided to hear the Michael Flynn debacle en banc. For the meantime, as Sarah reminds us on today’s episode, “Michael Flynn seems to be getting some extra justice that a lot of criminal defendants would be really happy to get.” If it goes back to the district court, would Trump pardon him? Our podcasters weigh in. On Thursday morning, President Trump tweeted that we should consider delaying the election over mail in ballot concerns, which of course he can’t do without congressional approval. Based on data collected from states that regularly use mail-in voting in elections, election fraud isn’t a real concern. But it’s also worth noting that these states were able to plan for their elections years in advance, whereas the pandemic is forcing states into preparing for mail-in voting on a mass scale on very short notice. Are states ready for the legal discrepancies and inevitable ballot invalidations that will ensue? Beyond some election punditry, our podcast hosts also touch on the Supreme Court conference leaks to CNN legal analyst Joan Biskupic, the latest updates with DACA, and some hot takes on the importance of the bar exam. Show Notes: -Trump tweet about delaying the election. -Inside scoop on conservative justices from CNN’s Joan Biskupic. Learn more about your ad choices. Visit megaphone.fm/adchoices

Our esteemed podcast host Sarah Isgur launched her new Dispatch newsletter called “The Sweep” today, in which she broke down the effectiveness of the new presidential campaigns ads. Conclusion? Biden’s new ads are strategically boring to offset his opponent’s predictable unpredictability, whereas Trump’s play up the anarchy of the radical left. As Sarah reminds us, persuasion ads don’t work. This leaves candidates with two options: 1) Run up their existing base in enthusiasm and support, or 2) Get their opponent’s base not to vote. Justice Roberts trended on Twitter Friday night after joining the four liberal justices in denying a Nevada church’s application for injunctive relief over coronavirus restrictions. Religious liberty lovers sounded the alarm for First Amendment violations. But our podcast hosts are less concerned about this case’s long-term effect on religious liberty case law, given the state’s interest in restricting mass gatherings will soon be subverted to transcendent religious liberty concerns once the pandemic subsides. As David says, “The real enemy is not Justice Roberts, the real enemy is the coronavirus.” Speaking of Supreme Court drama, Josh Hawley told the Washington Post on Sunday that he won’t support any SCOTUS nominee who does not explicitly acknowledge that Roe v. Wade was wrongly decided: on the record, and before they are nominated. Was this ridiculous fanfare to fuel his base? Our hosts have some thoughts. Sarah and David wrap up the podcast with some revisionist history on a Merrick Garland Supreme Court tenure and some parental advice on how to teach your kids risk tolerance and moral courage. Show Notes: -Sarah’s pilot newsletter, The Sweep: “T-Minus 99 Days and Counting …” and Thursday’s French Press, “Dump Trump, but Don’t Burn Down the GOP.” -Friday’s Supreme Court dissents on Nevada church case. -“Sen. Hawley lays down new antiabortion marker for Supreme Court nominees,” Josh Hawley’s recent speech on the failures of the conservative legal movement, and Adrian Vermeule’s case for common-good constitutionalism in the Atlantic. -Supreme Court opinions: NIFLA v. Becerra, Bostock v. Clayton County, Masterpiece Cakeshop v. Colorado Civil Rights Commission , Our Lady of Guadalupe School v. Morrissey Berru, June Medical Services, United States v. Davis. -The Coddling of the American Mind: How Good Intentions and Bad Ideas Are Setting Up a Generation for Failure by Jonathan Haidt and Greg Lukianoff. Learn more about your ad choices. Visit megaphone.fm/adchoices