Divided Argument

Afleveringen

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  Very Civilized Orangutans 12.08.2026 1u 9min

  Hunter v. United States makes appeal waivers yield to "miscarriages of justice" — and nobody, including the Court, can quite say why.
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  Ice by Magneto 03.08.2026 1u 4min

  We finally tackle the trans-sports cases and walk through the Court’s Equal Protection and Title IX analysis.
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  The Based Direction 27.07.2026 54min

  Rooker-Feldman, pronounced dead two decades ago, turns out to be alive — and the Court's formalists split right down the middle.
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  Norway-Sweden Worshippers 13.07.2026 1u 29min

  We cover two immigration wins in one day: the Court clears the way to end TPS for Haiti and Syria, then decides asylum turns on whether you "arrive in" the country — or merely at its border.
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  Smart Microwave 06.07.2026 1u 25min

  We break down Chatrie v. United States, the Court's ruling that a geofence warrant is a Fourth Amendment search — what it does to the third-party doctrine and the mosaic theory, and where the separate opinions leave the law.
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  Weird Islands 02.07.2026 1u 14min

  The birthright-citizenship order goes down — but the vote is closer than anyone bet, and the four dissenters can't agree on why.
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  Always Already 01.07.2026 1u 12min

  Humphrey's Executor falls and independent agencies lose for-cause protection — but the Fed, alone, somehow survives.
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  Mechanical / Animal 28.06.2026 56min

  We're in triage mode as the Court clears its end-of-term backlog. We run through the week's opinion dump before focusing on two cases that look unrelated but turn on the same question: when may a state rewrite background property law to limit a constitutional right? In Wolford v. Lopez, the Court strikes down Hawaii's rule requiring a property owner's express consent before a firearm may be carried onto otherwise-public premises. Then to Pung v. Isabella County, a takings case asking whether a homeowner whose property is sold for back taxes is owed only the sale proceeds or full fair-market value. Along the way: a theory about a Landor v. Louisiana flip, the week's run of 6-3 conservative wins, and a short detour into the perils of teaching Federal Courts.Key Topics[00:00:00] - Triage mode: recording June 25 amid the end-of-term opinion dump[00:01:29] - What's still outstanding — and the campaign-finance case's standing problem[00:03:56] - The Landor "flip" theory: did Justice Jackson lose the majority to Justice Gorsuch?[00:06:40] - Thursday's decisions: Monsanto v. Durnell (FIFRA), two immigration wins, Wolford v. Lopez[00:08:58] - Counting the week's seven 6-3 conservative wins; the Hemani surprise[00:12:57] - The throughline: when may a state redefine property to evade a constitutional right?[00:18:35] - Wolford v. Lopez: Hawaii's "express consent" gun rule after Bruen[00:20:42] - The Bruen framework — step one vs. step two, and the free-speech analogy[00:26:57] - The change vs. the outlier: uniformity and Hawaii's sensitive-places list[00:30:49] - Alito's historical analogues: poaching laws and the Black Codes[00:33:34] - Jackson's dissent: race, Equal Protection, and how non-mechanical Bruen really is[00:38:59] - Caetano, the Ramos v. Louisiana callback, and Alito on racist origins[00:41:21] - Barrett's concurrence, Kagan's narrower path, and the rejected "spirit of aloha"[00:48:23] - Pung v. Isabella County: tax sales, takings, and "just compensation"[00:51:45] - Thomas's historical turn on tax-sale rules, and the fairness backstop[00:55:45] - Sign-offRelevant LinksSupreme Court of the United States: https://www.supremecourt.gov/Divided Argument podcast: https://www.dividedargument.com/Transcripts: https://www.dividedargument.com/transcriptsCommentary blog: https://blog.dividedargument.com/Merchandise: https://store.dividedargument.com/New York State Rifle & Pistol Ass’n v. Bruen: https://www.supremecourt.gov/opinions/21pdf/20-843_7j80.pdfTyler v. Hennepin County: https://www.supremecourt.gov/opinions/22pdf/22-166_q86b.pdfRamos v. Louisiana: https://www.supremecourt.gov/opinions/19pdf/18-5924_j4el.pdf
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  Alcoholic Originalism 26.06.2026 1u 2min

  The big opinions are starting to drop, and we're doing our best to keep pace. We first discuss Landor v. Louisiana Department of Corrections, which concerns religious liberty, the scope of Congress's power to create remedies against individuals under the Spending Clause, and whether there's any redress if government officials literally throw your rights into a trash can. We then turn to United States v. Hemani, where the Court found that a federal law barring gun possession by unlawful drug users violated the Second Amendment and revealed that some of the Justices are surprisingly open-minded about marijuana's role in American society. Key Topics[00:07:07] - Landor v. Louisiana Department of Corrections[00:08:02] - The facts of Landor’s case and the prison’s decision to ignore prior religious-hair protections[00:10:52] - RFRA, RLUIPA, and the path from Employment Division v. Smith to modern religious-liberty litigation[00:14:54] - The Spending Clause theory behind federal funding conditions and why the remedy question matters[00:19:54] - The majority’s reasoning: why money-damages suits against officials were held unconstitutional here[00:21:33] - Sabri, the Necessary and Proper Clause, and the debate over third-party liability[00:26:04] - The parade of horribles: transgender sports, vaccines, and other funding-condition hypotheticals[00:33:03] - The constitutional background: “general welfare,” the spending clause, and the comma-versus-semicolon debate[00:38:49] - Why the Court granted the case and whether the facts pushed the legal outcome[00:42:13] - Hemani and the federal statute banning gun possession by unlawful drug users[00:44:05] - Historical analogies, habitual drunkards, and how Bruen and Rahimi are functioning together[00:47:17] - Discussion of the Court’s analogical method and its practical limits in lower courts[00:54:26] - Justice Thomas’s concurrence on jurisdictional hooks after Lopez[00:55:31] - Justice Jackson’s concurrence on Bruen and Justice Alito’s surprising marijuana comparison[00:57:51] - The real-world use of marijuana versus alcohol at the founding, and why the analogy is controversialRelevant LinksDivided Argument: https://www.dividedargument.com/Podcast merchandise: https://store.dividedargument.com/Podcast commentary and blog: https://blog.dividedargument.com/RLUIPA overview (Cornell LII): https://www.law.cornell.edu/wex/rluipaRFRA overview (Cornell LII): https://www.law.cornell.edu/wex/religious_freedom_restoration_actDistrict of Columbia v. Heller (Cornell LII): https://www.law.cornell.edu/supremecourt/text/554/570New York State Rifle & Pistol Association v. Bruen (Cornell LII): https://www.law.cornell.edu/supremecourt/text/597/1United States v. Rahimi (Cornell LII): https://www.law.cornell.edu/supremecourt/text/602/230South Dakota v. Dole (Cornell LII): https://www.law.cornell.edu/supremecourt/text/483/203Sabri v. United States (Cornell LII): https://www.law.cornell.edu/supremecourt/text/541/600
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  Watch Snobs 14.06.2026 1u 16min

  We open with the usual grab bag—the "foot fault" pun buried in a Justice Thomas opinion, reading Justice Alito's clerk-hiring tea leaves, and a detour into the metaphysics of conditional resignations and whether you can be confirmed to a vacancy that doesn't exist yet. Then to the merits: Keathley v. Buddy Ayers Construction, a 9-0 judicial-estoppel case that lets us ask where the doctrine even came from (Tennessee, 1857, apparently), and Abouammo v. United States, the venue case about a former Twitter employee who fabricated a document while the FBI sat downstairs. The venue talk wanders, happily, into the Yellowstone "zone of death," a C.J. Box thriller, Jim Comey's second career as a novelist, and an extended appraisal of watch brands. Highlights[00:00:53] - Podcast update, SCOTUSblog partnership, and listener reviews[00:01:49] - Justice Thomas's "foot fault" joke[00:03:48] - Sam Bray citation discussion (Aldridge v. Regions Bank)[00:05:02] - Justice Alito retirement speculation and clerk rumors[00:17:23] - Vacation schedule and the upcoming opinion gap[00:21:03] - June 11 merits decisions overview[00:23:17] - Landor and the still-outstanding big case of the term[00:27:49] - Justice Sotomayor's statement respecting denial of cert on ineffective assistance[00:29:53] - Keathley v. Buddy Ayers Construction: bankruptcy and judicial estoppel[00:36:10] - The Fifth Circuit's rule on inadvertence and mistake[00:38:47] - Justice Jackson's majority opinion[00:40:29] - Justice Thomas's concurrence and the history of judicial estoppel[00:48:42] - Justice Sotomayor's concurrence and totality-of-the-circumstances approach[00:52:11] - Abouammo v. United States: Article III venue and criminal prosecution location[00:55:09] - Yellowstone's "zone of death" and vicinage problems[00:59:21] - The fake invoice, FBI investigation, and venue dispute[01:06:33] - Venue, personal jurisdiction, and extraterritorial conduct[01:10:22] - Statutory venue rules and unresolved constitutional questions[01:12:30] - Reprosecution after a venue reversal and double jeopardy
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  Impregnable Citadel of Technicality 08.06.2026 1u 12min

  After puzzling over an interesting follow-up question about Pitchford v. Cain, we unpack a summary vacatur in Whitton v. Dixon. We then spend a while breaking down the latest developments in Allen v. Milligan line, in which we discuss the future of the Purcell principle and whether the Court should be unusually attentive to public appearances in election cases. We finish with Sripetch v. Jarkesy, where the Court rejects a requirement that the SEC prove victims suffered pecuniary loss before seeking disgorgement, with specific attention to the interesting Seventh Amendment question raised in Justice Thomas's concurrence.Key Topics[00:03:23] - Listener question on Pitchford v. Cain, AEDPA, and procedural default[00:08:12] - Whitten v. Dixon: summary vacatur in a capital case and harmless-error review[00:12:44] - Justice Thomas’s dissent and the critique of selective error correction[00:22:46] - Allen v. Milligan / Alabama redistricting and the stay of the lower court injunction[00:27:24] - The Court’s restatement of Milligan and discussion of “colorblind constitution” language[00:32:30] - Purcell, election timing, and whether the doctrine is really about federal court intervention[00:41:20] - Merits and legitimacy concerns in election-law cases[00:53:27] - SEC v. Sripetch and the disgorgement remedy[00:58:42] - Justice Thomas’s concurrence on disgorgement, equity, and the Seventh Amendment[01:03:36] - Broader implications for administrative law and jury-trial rights
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  Smooth Stone in the River 01.06.2026 1u 10min

  The Court has been busy, and we somehow manage to cover a number of developments with unpredictable efficiency. We talk about the Court's latest summary reversal on the "party presentation principle"; Justice Kavanaugh's vindication of his law journal student note in Pitchford v. Cain; Rutherford and Fernandez, two related cases about the intersection of compassionate release and habeas; and the DIG in Hamm v. Smith, a case about capital punishment and intellectual disability. Along the way, we also get into backlash against a certain SCOTUS advocate's TED talk and further Alabama redistricting fallout.Key Topics[00:02:25] - The infamous tweet and TED talk[00:14:56] - Alabama redistricting developments[00:19:07] - Margolin v. National Association of Immigration Judges and the Court’s renewed emphasis on the party presentation principle[00:29:02] - Pitchford v. Cain and Batson[00:35:56] - Justice Kavanaugh’s Yale Law Journal note on Batson procedure and how it connects to the case[00:40:40] - Fernandez v. United States and Rutherford v. United States: compassionate release, retroactivity, and innocence claims[01:03:34] - Hamm v. Smith, the post-argument DIG, and the future of the Atkins ruleRelevant LinksSCOTUSblog: https://www.scotusblog.com/Divided Argument website: https://www.dividedargument.com/Divided Argument blog: https://blog.dividedargument.com/Divided Argument store: https://store.dividedargument.com/Ethan Lowen's article on interstate extradition: https://wlr.law.wisc.edu/wp-content/uploads/sites/1263/2026/04/4-Lowens-–-Camera-ready.pdf
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  Ninja Court Packing 19.05.2026 1u 8min

  Live from the American Law Institute with Pam Karlan, we untangle a chaotic stretch of the interim docket—the Alabama redistricting GVR, Virginia's denied stay, and the mifepristone cases—then turn to executive power and the Term's big looming decisions.
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  Majordoma 07.05.2026 1u 1min

  We dissect the Supreme Court’s Louisiana v. Callais decision and its sweeping narrowing of Section 2 of the Voting Rights Act, exploring how it could reshape redistricting, weaken majority‑minority districts, and intensify debates over race and partisanship in elections. We unpack the Court’s reasoning, its treatment of precedents like Allen v. Milligan, the updated Gingles framework, and the procedural moves after judgment, while weighing whether this is primarily a textual ruling, a constitutional avoidance maneuver, or a broader shift in how political power and racial representation are viewed in election law. The discussion also features Justice Kagan’s dissent, Justice Jackson’s separate view, and what the ruling might mean for future litigation and party outcomes.
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  Even Eve-ier 29.04.2026 1u

  We cover leaked SCOTUS memos, shadow docket reversals, Sotomayor's Kavanaugh apology, and a contractor preemption case narrowing an infamous Scalia opinion.
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  Backup backup backup backup argument 06.04.2026 1u 17min

  We recap and reflect on the oral arguments in Trump v. Barbara (the birthright citizenship case) and then analyze the Court's recent decision in Chiles v. Salazar, about the First Amendment limits on Colorado's conversion therapy ban. We also confront the taboo question: Are judicial opinions too long?
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  Jezebel Shouting 02.04.2026 37min

  We're live at WashU Law's Admitted Students Day! After catching up on some shadow docket activity, we dig into Olivier v. City of Brandon, the Court's unanimous March 2026 decision by Justice Kagan. A Mississippi street preacher pleads no-contest to violating an amphitheater protest-zone ordinance, pays his $304 fine, then sues under §1983 to stop future enforcement — and the Fifth Circuit says the puzzling Heck v. Humphrey rule bars the whole thing. We work through why Heck is stranger than it first appears, what the Court got right in resolving the circuit split, and what the decision reveals about the ongoing mess at the intersection of §1983 and habeas.
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  A Subversive Mission 11.03.2026 50min

  We announce an exciting new partnership with SCOTUSblog and introduce the show to new listeners. We then return to the mysterious origins of the Chief Justice's "no, no, a thousand times no," debate the Court's new policy designed to maintain secrecy, and then take a close look at Galette v. NJ Transit Corporation, a sovereign immunity decision in which the Court may, or may not, have paid attention to Will's amicus brief.
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  Cruel and Unusual and Stupid 06.03.2026 47min

  It's our live show at the University of Chicago! Hosted by the University of Chicago Federalist Society, we discuss this week's big shadow-docket rulings about gender transitions in California Schools (Mirabelli v. Bonta) and redistricting in New York (Malliotakis v. Williams), and also break down the recent merits decision about the right to counsel when a defendant is testifying (Villareal v. Texas).
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  Betty Boop or Shakespeare 21.02.2026 1u 26min

  We take a close look at the tariffs decision.