Divided Argument

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

We are joined by guest co-host Professor Pam Karlan at the American Law Institute Annual Meeting for the last live show of season 6. We work through a busy stretch of the interim docket: the Alabama GVR in Allen v. Caster and what Callais has done to Section 2; the denied stay in the Virginia redistricting fight, Scott v. McDougle; and the mifepristone cases, Danco and GenBioPro v. Louisiana, where Thomas rides the Comstock Act alone and Alito takes it personally. Then a turn to executive power and the term's looming merits decisions—birthright citizenship, the Federal Reserve, Humphrey's Executor—before audience questions on state voting rights acts, fixing the single-member-district statute, and whether you can wish yourself more wishes.Key Topics[00:00:11] - Live show introduction at the American Law Institute with guest host Pam Karlan[00:02:30] - Fallout from Louisiana v. Callais and the Alabama redistricting order[00:06:26] - Purcell principle, mid-election rule changes, and discriminatory intent findings[00:17:32] - Virginia’s redistricting amendment case and why the Supreme Court declined to intervene[00:32:41] - Danco Laboratories / GenBioPro and the mifepristone stay[00:39:56] - Justice Thomas, the Comstock Act, and Justice Alito’s dissent[00:47:15] - Big-picture trends in executive power and the Court’s posture toward the administration[01:00:54] - Audience Q&A on Congress, district design, and gerrymandering reform[01:05:47] - The President’s public attacks on the Court and possible effects on future cases

The Court’s latest Voting Rights Act decision, Louisiana v. Callais, narrows Section 2 in a way that could reshape redistricting, weaken majority-minority districts, and intensify the fight over how race and partisanship interact in elections. We unpack what the Court said, what it quietly overruled, and why the reasoning matters far beyond Louisiana.We walk through the statutory text, the long-running collision between the Voting Rights Act and the Court’s racial gerrymandering cases, and the practical consequences for future election-law litigation. Along the way, we debate whether this is best understood as a textual decision, a constitutional avoidance move, or a major shift in how the Court treats political power and racial representation.The conversation also covers the Court’s emergency procedural move after judgment, Justice Kagan’s forceful dissent, and the broader question of whether the decision is likely to help one party more than the other in the short run. The result is a sharp, candid look at one of the term’s most consequential rulingsKey Topics[00:00:20] - Introduction to the episode and SCOTUS Blog partnership update[00:03:06] - Brief Supreme Court news: mifepristone litigation and shadow-docket timing[00:05:20] - Louisiana v. Callais and why the case is a major Voting Rights Act decision[00:11:35] - Voting Rights Act history: Section 2, Section 5, and Shelby County[00:13:39] - The collision course between racial gerrymandering doctrine and Section 2[00:16:17] - Allen v. Milligan and how the Court shifted course[00:21:21] - Procedural background of the Louisiana map challenge[00:23:02] - Is the decision constitutional, statutory, or both?[00:24:28] - Section 2’s text and the 1982 amendments[00:29:14] - The Court’s reading of “less opportunity” and the role of partisanship[00:41:46] - How the majority treats Allen v. Milligan and prior precedent[00:43:06] - Constitutional avoidance and the Section 5 enforcement-power question[00:46:28] - The Court’s “updated” Gingles framework and why that matters[00:52:29] - Likely effects on majority-minority districts and partisan gerrymandering[00:54:25] - Justice Kagan’s dissent and the Court’s broader democracy critique[00:56:04] - The post-judgment timing dispute and Justice Jackson’s separate dissent[00:58:55] - Final assessment of the decision and its likely consequencesRelevant LinksRick Pildes's post on the decision: https://democracyproject.org/posts/supreme-court%E2%80%99s-gutting-of-voting-provision-was-long-time-comingTravis Crum Amicus Brief: <a target="_blank" class="link" href="https://www.supremecourt.gov/Docke

A deep dive into the latest Supreme Court news, a couple of unusual shadow docket rulings, and a cross-ideological merits decision that raises classic questions about federal power, preemption, and how much weight lower courts should give to context.We open with reporting on leaked internal Supreme Court memoranda related to the 2016 stay of the Clean Power Plan, including what the documents may reveal, why the leak itself is so unusual, and whether timing and incomplete records change the story. We also discuss Justice Sotomayor’s public apology after comments about Justice Kavanaugh, and what that moment says about judicial professionalism and public exchange.From there, we turn to some shadow docket happenings: a one-line summary reversal in a Texas redistricting case and a Fourth Amendment summary reversal out of the D.C. courts. Finally, we move to the merits docket and consider Hencely v. Fluor Corporation (24-924), a case involving federal contractor preemption and a terrorist attack in Afghanistan, where the Court narrows a (possibly infamous) Scalia opinion.Key Topics[00:05:32] - NYT leak of Supreme Court memoranda on the Clean Power Plan stay[00:10:13] - Whether document leaks are better than source-based leaks[00:21:30] - Justice Sotomayor’s remarks about Justice Kavanaugh and her apology[00:27:27] - Summary reversal in Abbott v. LULAC and Texas redistricting[00:35:18] - D.C. Fourth Amendment summary reversal and reasonable suspicion[00:47:04] - Hencely v. Fluor Corp.: military contractor liability and preemption[00:52:48] - Little v. Barreme, general law, and the limits of contractor immunity

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?

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.

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. New Jersey Transit Corporation, a sovereign immunity decision in which the Court may, or may not, have paid attention to Will's amicus brief.

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).

With unpredictable timeliness, we have a quasi-emergency episode on the 170-page tariffs decision, Learning Resources, Inc. v. Trump. Come for the in-the-weeds legal analysis, stay for the deep dive into the origins of the phrase "no, no, a thousand times no."

We're back for another live show at the Northwestern Pritzker School of Law, hosted by the Northwestern Federalist Society! We discuss the term's two Second Amendment arguments -- first recapping the oral argument in Wolford v. Lopez, featuring Hawaii's law about getting consent to bear arms on private property; and then previewing the oral argument in United States v. Hemani, about the ban on possession of guns by drug users.

With shocking and uncharacteristic efficiency, we manage to discuss three merits opinions and one orders list dissent in only 47 minutes. Specifically, we revisit Coney Island Auto Parts Unlimited, Inc. v. Burton (time limits for moving to vacate void judgments) and break down Berk v. Choy (an Erie doctrine puzzle), and Ellingburg v. United States (criminal restitution and the Ex Post Facto Clause), while also managing to discuss Justice Jackson's broadside against the Court's practice of "martinization."

We didn't get the tariffs decision this week, but we discuss two of the opinions we did get -- Bost v. Illinois Board of Elections, a decision about standing and election law, and Case v. Montana, a rare Fourth Amendment case -- in a remarkably efficient episode (after a brief detour into Grok's jurisprudence and the announcement of a major gift to the Constitutional Law Institute).

We're back with the first episode of the new year, breaking down the interim docket opinion/order in Trump v. Illinois, the national guard case, after first warming up with new Erie scholarship, state criminal jurisdiction over federal officers, and some recent online discourse.

We're back to break down a month's worth of shadow docket activity -- three recent summary reversals, plus the stay in the Texas gerrymandering case (Abbott v. LULAC). We also discuss the launch of the SCOTUSblog "interim docket blog."

Will and Dan record a rare live show in an unusual venue: the Salamander Resort in Middleburg, Virginia, at the annual attorney retreat for trial boutique Wilkinson Stekloff. Dan teaches Will some of the new lingo he's learned from the firm's trial experts before a deep dive into civil procedure. First, we dig into the recently argued Coney Island Auto Parts Unlimited v. Burton, which presents a seemingly easy legal question and harder questions about SCOTUS advocacy and ethics. Then we look back at last Term's LabCorp v. Davis, which the Court DIG'd but which raises some fundamental questions about class action litigation that the Court is likely to revisit down the road.

After a predictably unpredictable set of detours through Latin grammar, parenting philosophies, and 90s video games, we catch up on the latest shadow (interim?) docket activity and recap the oral argument in the tariffs cases.

Divided Argument is in its sixth season! Our first episode of the term focuses, of course, on the latest developments on the shadow docket. These include several grants of interim relief to the Trump administration, as well as some dissents from the denial of certiorari. But first, an update on Dan's travel schedule and ChatGPT usage, and an important correction to our previous episode.

For the season finale, we're joined by Yale law professor Justin Driver to talk about his new book, "The Fall of Affirmative Action: Race, the Supreme Court, and the Future of Higher Education." We discuss the conservative cases for and against affirmative action, the post-SFFA world of university admissions, the promise and limits of colorblindness, and the effects of admissions policies on students' sense of belonging.

We extend our record-breaking run with a discussion of the Court's two big recent emergency docket rulings: Noem v. Vasquez Perdomo and NIH v. American Public Health Association.

We're joined by Michigan law professor Richard Primus to talk about his new book, "The Oldest Constitutional Question: Enumerated and Federal Power." Richard describes one of the the most widespread beliefs about constitutional law -- that the federal government is one of limited, enumerated powers -- and why he thinks it is actually wrong. Along the way, we discuss methods of constitutional interpretation, the relationship between the official story of the law and legal practice, and wrestle with the surprisingly hard question of how many congressional powers are listed in the Constitution.

Continuing our long slog through the end-of-Term opinion dump, it's fraud day! We dig into Kousisis v. United States and Thompson v. United States, two interesting federal criminal law puzzles.

We finally circle back to the two big structural constitutional law cases from the last day of the term. First is Kennedy v. Braidwood Management, which upheld the appointment structure of the U.S. Preventative Services Task Force under the Affordable Care Act. Then is FCC v. Consumers' Research, which upheld the universal-service contribution scheme against a pair of non-delegation challenges. Our second-longest episode of the season.

Acting with unpredictable alacrity and unpredictable brevity, we break down the Supreme Court's recent interim order in Trump v. Boyle, and discuss what it means for the unitary executive, and for the shadow docket. We also debate the best name for the Court's emergency/interim orders docket.

Moving with shockingly unpredictable efficiency, we respond to feedback, debate which of us is more composting-friendly, catch up on the emergency docket, and chip away at our end-of-Term backlog by digging into Diamond Alternative Energy v. EPA.

We look at the final orders list before summer break, and then continue to work through last month's opinions, this time with an extended analysis of two decisions about children and culture wars -- Mahmoud v. Taylor (religious objections to LGBTQ+-inclusive books) and Free Speech Coalition v. Paxton (age verification for accessing online pornography).

We talk a bit more about Trump v. CASA, revisit the usage of "general," answer some voicemails, and then turn to Gutierrez v. Saenz, a procedural tangle about whether a death row inmate can sue a state prosecutor over access to DNA testing.

We celebrate the 100th episode of the podcast with a special cross-over episode with Sarah Isgur at Advisory Opinions! Sarah, Will, and Dan break down today's blockbuster decision in Trump v. CASA, forbidding universal injunctions (and not saying much about birthright citizenship).

We're joined by a special guest, Harvard Law Professor Stephen Sachs, to talk about Fuld v. Palestine Liberation Organization. Fuld is last week's big personal jurisdiction case, where the Court upheld federal laws extending jurisdiction to the PLO and PA for antiterrorism lawsuits. The author of several important articles on these issues and an amicus brief in Fuld, Steve gives us his take on the relationship between personal jurisdiction, international law and due process, and helps us evaluate the majority opinion and Justice Thomas's concurrence.

After some feedback and further thoughts on our Skrmetti episode and a shocking revelation about "LabCorp," we circle back to an earlier June opinion about religious distinctions, Catholic Charities Bureau v. Wisconsin Labor & Industry Review Commission. Dan keeps Will up past his bedtime.

Without much introductory ado, we interrupt Will's vacation to give you a thorough breakdown of United States v. Skrmetti, the trans health care case that is one of the most-watched cases of the term.

We start out by debating who's responsible for Dan's audio snafus last time before digging into a various odds and ends, such as the Chief Justice's toast at the Supreme Court Historical Society dinner and President Trump's renunciation of Leonard Leo and the Federalist Society. We then try to make sense of the DIG in Labcorp v. Davis and see whether our predictions about Smith & Wesson Brands, Inc. v. Estados Unidos Mexicanos panned out.

With apologies for Dan's horrendous audio quality: we catch up on the latest emergency-docket happenings and debate whether Trump v. Wilcox is a big deal or small potatoes. We also catch up on listener feedback and, for the first time in a long time, play a couple of messages received on our voicemail line (314-649-3790 for anyone else who wants to chime in).

We're joined by NYU law professor Rachel Barkow to talk about her new book Justice Abandoned: How the Supreme Court Ignored the Constitution and Enabled Mass Incarceration. Listen to learn about five (or six) Supreme Court cases that arguably ignored the original meaning of the Constitution to enable our current policing and punishment practices. Along the way, a hypothetical genie offers Professor Barkow a very tough tradeoff.

We're back with another unexpectedly short and timely episode, focusing on last Friday's emergency docket decision in AARP v. Trump. We also spend a few minutes on a few other orders: the administration's partial victory in Noem v. National TPS Alliance and a puzzling mass recusal.

We reflect on the death of Justice Souter and sort out some loose ends from the last episode. We then dig into the Court's only opinion from Thursday, Barnes v. Felix, which we previewed with friend of the show Orin Kerr back in February at Stanford. Along the way we make a short detour into generative AI and its potential for SCOTUS research. Most importantly, we react to the oral argument in Trump v. Casa, the shadow docket case that's about (or, isn't about?) President Trump's birthright citizenship executive order.

The shadow docket strikes once again! We break down the Court's unusual immigration ruling in AARP v. Trump (no, not that AARP!), and then briefly discuss the much-heralded ERISA case (Cunningham v. Cornell). But first we discuss some blog news, some SCOTUS news, and some SCOTUSblog news.

We have another short administrative law episode, analyzing the Supreme Court's decision about e-cigarettes in FDA v. Wages and White Lion. But first we field some listener pushback about facial challenges in administrative law, and discuss the shadow docket ruling, and ensuing fallout, in Noem v. Abrego Garcia.

Thanks to the Harvard Law Review, we recorded a live episode in the famed Austin Hall at Harvard Law School. While we hoped to discuss merits cases, the Court gave us far too much shadow docket activity to break down.

We are back with an unexpectedly concise episode focused on last week's "ghost guns" decision, Bondi v. Vanderstok. But first we talk about the calls to reconsider the Court's Confrontation Clause doctrine and also return to the number of votes needed to call for the views of the Solicitor General (CVSG).

We announce the new Divided Argument blog! After discussing the blog and some listener feedback, we break down two recent 5-4 decisions -- the shadow docket fight over USAID funding in Department of State v. Aids Vaccine Advocacy Coalition and the Section 1983 exhaustion decision in Williams v. Reed (or should we say Rev. Stat. 1979?).

Back in the studio after a couple of fun live shows, we discover that the Court has finally given us too much to talk about. We discuss the new Trump Administration's first shadow docket adventure, a number of interesting solo opinions from the orders list, the decline in summary reversals, and the overall quality of oral advocacy before the Court. We then take a deep dive into the Court's opinion in Glossip v. Oklahoma, a capital case with many factual, jurisdictional, and remedial complexities.

Divided Argument is live from the Northwestern Pritzker School of Law, hosted by the Northwestern Federalist Society! We discuss whether we are in the middle of a constitutional crisis, the coming demise of Humphrey's Executor, and various shadow docket developments. Then we preview the issues at stake in next month's oral argument about firearms liability, Smith & Wesson v. Estados Unidos Mexicanos.

Divided Argument is live from Stanford Law School, hosted by the Stanford Constitutional Law Center! We review an unusual summary reversal in a capital habeas case and the latest universal injunction developments, and discuss some of the implications of the change in administration. After that, we are joined by a very special guest to discuss the recent arguments in the excessive force case of Barnes v. Felix.

In unpredictable fashion, we record a shockingly timely episode to reflect on the Court's hasty per curiam in the TikTok case. Along the way, we catch up on the shadow docket happenings, manage not to get derailed by an ethics discussion, discover a surprising opinion revision in real time, and break down the Court's opinion in Royal Canin U. S. A. v. Wullschleger. Most importantly, Dan—with help from loyal listeners—collects on a bet Will unwisely made years ago.

After an unpredictably long hiatus, we're back to break down what we missed. We debate the off-the-rails FedSoc panel Dan was on, work through some shadow docket happenings and the Court's two recent DIGs, ponder the implications of the election on the Court, and briefly discuss the first merits opinion of the Term, Bouarfa v. Mayorkas.

After a long hiatus, we're particularly unpredictable with an episode that isn't about the Supreme Court. We're joined by NYU law professor Daryl Levinson to talk about his exciting and important new book on constitutional theory, Law For Leviathan: Constitutional Law, International Law, and the State. Listen to learn why the Supreme Court's constitutional pronouncements on separation of powers might not matter as much as you thought—and along the way you'll find out what might happen to Will if he starts breaking into his colleagues' cars at the University of Chicago parking lot. Law for Leviathan: https://global.oup.com/academic/product/law-for-leviathan-9780190061593?cc=us&lang=en&

We take a long last look at two more end-of-term cases, where the Court made news with what it did NOT decide: Moyle v. United States (the abortion/EMTALA case), and Moody v. Net Choice (state regulation of social media). But first, a bit of debate about some prominent figures in constitutional history.

Unpredictably, our recent torrent of episodes continues. We take a deep dive into Moore v. United States, which addressed the scope of Congress's constitutional power to tax.

We continue our breakneck pace and dig into two substantive criminal law opinions: Fischer v. United States and Snyder v. United States.

We're back just a few days after our last episode to dive in to Harrington v. Purdue Pharma, a 5-4 decision about the power of the bankruptcy system to release claims against third parties.