Amarica's Constitution

Our recent podcasts, and their discussions of the constitutional landscape that will follow the release of the Dobbs opinion, have been heard, amplified, distorted, echoed, and - of course - tweeted in forms true and unrecognizable.  We were the impetus for a lead op-ed in the Wall Street Journal, the subject of various blogs, and the target of innumerable media posts.  Nevertheless, we carry on, looking at key precedents and their future, analyzing Justice Alito’s framework for evaluating unenumerated rights, and beginning to think about how it might happen that Alito may not have the last word in this case.

As the Dobbs/Supreme Court leak, and its would-be draft opinion, percolate through the public and the media, certain alarms are sounded again and again.  Are these worries realistic?  What does the opinion say; what are the constitutional arguments and questions; where are the justices on these questions?  We look at some of the more prominent pundits saying the more meme-like (and frightening) things, and put them to the test.

***CLE Available*** The bombshell news this week was the leak of a purported majority opinion of the Court in the Dobbs case - the Mississippi abortion 15 week law.  Needless to say, the media were breathless in short order, and apocalyptic articles began to appear everywhere.  For our part, we read the draft opinion and have a dissection and analysis of it start to finish for you.  We also discuss some previous Supreme Court leaks, and ask what arguments Justice Alito may have missed, which may be a preview of dissents to come. Continuing Legal Education credit is available after listening by visiting podcast.njsba.com.

Professor Amar, it is frequently said (by him, among others), has been cited by the Supreme Court more than anyone else in his generation.  This week, he is once again cited.  We discuss the case, the citation, the underlying theory, and citation in general.  Along the way we find ourselves in company with the Great Dissenter, with his namesake John Marshall, and many more.  This small citation in a concurrence takes us to a legal theory that has enormous implications.

Justice Breyer’s unusually worded “resignation letter” raises a host of constitutional questions that perhaps he did not intend.  Who is asking them?  We are.  A cascade of confusion - from resignation to confirmation to reconsideration to commission to oath.  The Biden Administration says we should ask William Rehnquist about it, because he told us the answer.  Except he didn’t.  Listen to it all, and while we’re at it, we also wind up our clips from the hearings with contrasting Senators (understatement) - and Dean Vik Amar drops in to help with it all.  A jam-packed episode this week!

Judge Jackson - or is it Justice Jackson (we discuss) - is confirmed, but we aren’t done discussing it yet.  Distilling the non-nonsensical questioning down, it really was an attempt to probe into the question of rights; who decides, and how, what rights Americans have?  We listen to the colloquy and use it as a jumping-off point for a wide-ranging discussion of fundamental, enumerated, and unenumerated rights - among other things.

The Senate Judiciary Committee hearings have concluded, as has the committee vote.  We put the Senators, and the Judge, back on the stage.  We listen to them and comment.  What do we know now about the Judge, and about the Senators, in terms of their view of their respective constitutional roles, and their constitutional views?  Their own words are replayed, and then Akhil and Senate expert Vik Amar critique them - and educate us.  Oh, and Lindsay Graham had something to say.

We’re a little late this week, but it’s worth it, as we are able to report on a lengthy conversation that our (returning) guest, Dean Vik Amar of the University of Illinois School of Law, had with the Chairman of the Senate Judiciary Committee, Illinois Senator Dick Durbin, just hours before our podcast taping.  He offered Vik and his students a truly inside look at the Supreme Court Confirmation Hearings just conducted, as well as his perspective on confirmations in general, and some truly surprising perspectives and possible ideas for reform - and now, our listeners have this early access to them.

Ketanji Brown Jackson prepares to testify at Senate confirmation hearings, and the air is filled with confirmation bromides. It is said that a judicial nominee cannot speak about past cases.  Or about cases that might come up.  Or about legal theories.  Is this true?  Some say that all that matters is that the nominee be qualified and admirable.  Can the Senate inquire further?  How far can a nominee go in committing themselves on anything?  Fortunately, we have a leading Senate expert, law school Dean, public intellectual - and, an “Amar” on “Amarica’s Constitution.”  No, not Akhil, but Vik Amar, Dean of the Illinois College of Law and the first American of Indian descent to clerk for a Supreme Court Justice, to be a major Law School Dean.  Listen to the “brothers-in-law” as they prepare you for the hearings.  And - even more important - hear about their forthcoming law review article that may do nothing less than save the country.  No kidding.

Walter Dellinger and Charles Black are hard acts to follow, but our concluding role model is up to the task.  Telford Taylor was legislator, war hero, Nuremberg prosecutor, international law pioneer, law firm founder, tenured professor and scholar extraordinaire, public intellectual, and always a principled, skilled lawyer.  Professor Amar admired his work from afar, and that admiration led to a personal meeting, to Akhil’s first major law review article in the Harvard Law Review, and ultimately, to the opening scene of his latest book.  Meanwhile, in the news, we also take time to look at the latest developments, statements, and misstatements filling the air on the notorious Texas abortion law, SB8.