Amarica's Constitution

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.  CLE credit is available for lawyers and judges from 

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.  CLE credit is available for lawyers and judges from podcast.njsba.com.

The recent Supreme Court rulings have sparked intriguing discussions on gun rights. The Snow v. Brown case highlights the ongoing complexities surrounding the AR-15 ban. Delving into Second Amendment interpretations reveals a historical evolution that's particularly relevant for marginalized groups. The debate on firearm classifications and regional legislation adds another layer of conflict. Insights into Justice Souter's legal legacy and the media's influence on judicial perspectives make for a riveting exploration of these pivotal issues.

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.  CLE credit is available for lawyers and judges 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.  CLE credit is available for lawyers and judges from podcast.njsba.com.

Dive into the heated legal debate surrounding an executive order on birthright citizenship. Discover the complexities of nationwide injunctions and their constitutional implications, particularly in light of the 14th Amendment. Hear insights from Justices and attorneys as they dissect courtroom arguments and historical precedents. The discussion explores the judiciary's balance with executive authority and the urgent need for clarity from the Supreme Court. Join the conversation on the future of citizenship rights in America!

Join Dean Heather Gerken, a prominent law professor at Yale, and Judge Kevin Newsom, a U.S. Court of Appeals judge, as they share heartfelt reflections on Justice David Souter's legacy. Both former clerks for Souter, they discuss his profound influence on their careers and the legal world. The conversation touches on Souter’s commitment to judicial humility, his mentoring style, and how his unique character shaped modern jurisprudence. Their personal anecdotes reveal why Souter is revered as one of the greats in American history.

Law firms are threatened with draconian penalties, with scarcely disguised vengeful and politically destructive motive.  Universities are dragged on the carpet, with demands that they forfeit their academic freedom, choice in hiring, and internal mission priorities.  What’s going on here?  What is likely to happen in Court?  Are the firms and universities defensible on constitutional grounds as well as because of procedural and statutory reasons?  We bring on Vik Amar, former Dean at the Law School at University of Illinois, Urbana, and author of recent articles on both these crises.  And while we are at it, we take a look at the forthcoming Supreme Court oral arguments in the birthright citizenship case, which superficially is about nationwide injunctions.  Is that really what it’s about, and in any case, is there more than that there?  Three of our current crises in one sweeping conversation.  CLE credit is available for lawyers and judges from podcast.njsba.com.

Deportations, the administration’s preferred tactic du jour, appear to many as extreme, inadvisable, and often cruel.  Are they unconstitutional?  What framework can we use to determine the rights of citizens versus aliens, even if legal, even if permanent resident?  What kind of process is “due” for the various groups? Where can we locate the origins in our history, and how do they interact with some of the great themes of the Constitution, including the guarantees of the Bill of Rights, and the rights of “persons” as expressed in the 14th Amendment? The case of Mahmoud Khalil offers a set of facts that shed light on these questions, as do other deportations; we start with this one.  

Markets are crashing; freedom seems under siege; the international order is threatened.  One man’s whim seems to be decisive.  Where are the guardrails of our republic?  We see some glimmers through the darkness, as some of the feedback mechanisms start to kick in.  The constitutional order may be slow but it may not be completely in ruins.  However, there is a threat, and we identify it in not one, but the sum of the actions the president has pursued.  Many of these are unconstitutional; others may well be.  The first step in protecting the republic from these threats is to identify them.  We take that on and at least make a start; the task, in the end, however, will be up to the American people, as Project 2025 may fall to Project 2026.