Category: 3-LawSometimeCommentary

The Republican-appointed Supreme Court justices have been treating the Trump administration with such extreme deference that we were honestly a little flummoxed listening to this week’s arguments over his “Liberation Day” tariffs. Shockingly, during Wednesday’s arguments in Learning Resources v. Trump and Trump v. V.O.S. Selections, it seemed like the justices were in fact, concerned with presidential overreach. But was this a true bridge-too-far-moment, or were they more concerned about their own pocketbooks? This week, Dahlia Lithwick and Mark Joseph Stern discussed the arguments with Marc Busch, the Karl F. Landegger Professor of International Business Diplomacy at the Edmund A. Walsh School of Foreign Service at Georgetown University. Busch is an expert on international trade policy and law, and signed onto an amicus brief on behalf of trade scholars explaining the history and context of IEEPA. 

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OA1205 - It’s another good news Friday! Voting rights expert Jenessa runs down some of the highlights of the off-year blue sweep in this week’s elections, as well as some recent unsung national victories for voting and disability rights. Matt then checks in on the Supreme Court’s oral arguments from the challenge to Trump’s unprecedented tariffs and why it is looking like he might actually lose his administration’s first attempt to defend one of his second administration’s policies on the merits. 

Finally, in today’s footnote: Why a federal judge recently decided that a lawsuit brought by the man whose penis was once featured on the cover of the most important albums of 1990s smelled like summary judgment. 

1. Supreme Court oral arguments in Learning Resources, Inc  v. Trump (11/5/2025)

2. The International Emergency Economic Powers Act (IEEPA) of 1977

3. “Regulating Imports with a Reciprocal Tariff to Rectify Trade Pratcies that Contribute to Large and Persistent Annual United States Goods Trade Deficits,” The White House (4/2/2025)(executive order on tariffs)

4. Solicitor General John Sauer’s brief in Learning Resources 

5. Plaintiff’s second amended complaint in Elden v. Nirvana LLC et al

6. D.C. federal judge Coleen Kollar-Kotelly’s opinion in combined litigation challenging Trump’s executive order on citizenship requirements for voting (10/31/25)

7. DC federal judge Amir Ali’s order in National Association of the Deaf v. Trump  (11/4/25)

8. Order granting defendants’ motion for summary judgment in Elden v. Nirvana, LLC (9/30/2025)

California.  Meanwhile, the tariff case is about to come before the Supreme Court for oral argument.  So it’s timely indeed that Vik Amar joins us with expertise on both topics.  In fact, Vik has submitted an amicus brief in the tariff case. The “brothers in law” take us deep into the gerrymandering world, the major questions doctrine, and we also pause to reflect on the career of former Vice President Cheney who passed away this week.  Insights galore await.  CLE credit is available for lawyers and judges at podcast.njsba.com.

VR12 - Yes, we absolutely thought this was coming out pre-Halloween. Halloween may be over, but NEVERTHELESS THE SPOOKTACULAR PERSISTED!

In this Vapid Response double feature, Thomas, Matt, and Lydia are haunted by two ghoulish takes from the past: 

1. FEATURE FROM THE BLACK LAGOON: Politico’s insanely longform access journalism piece from August 2024 on how Project 2025 was so totally over, just never happening, nothing to see here

2. EROSSERHEAD: New York Times resident traditional conservative Ross Douthat’s 2015 analysis of why Donald Trump is definitely not a fascist

We then screen a short horror film recently shot at 1600 Pennsylvania Avenue.

1. “The Inside Story of How Project 2025 Fell Apart,” Ian Ward, POLITICO (8/2/2024)

2. Project 2025 Tracker - Home

3. “Opinion | Is Donald Trump a Fascist?,” Ross Douthat,  The New York Times  (12/3/2015)

OA1204 - As House Speaker Mike Johnson continues to pretend that he doesn’t have to seat Democrat Adelita Grijalva well over a month after she was elected to represent Arizona’s 7th Congressional district, we take a closer look at the last time that Congress refused to swear someone in and what the Warren Court had to say about it. Who was Harlem Congressman Adam Clayton Powell, why was the House so intent on excluding him in 1966, and how precedential might Powell v. McCormack  be for the lawsuit which Arizona has filed on Grijalva’s behalf?

1. Powell v. McCormack, 395 U.S. 486 (1969)

2. Adam by Adam; the autobiography of Adam Clayton Powell, Jr ,  Adam Clayton, Powell Jr. (1972) (Internet Archive)

3. 2 USC Sec 25

4. Complaint in Arizona v. House of Representatives (filed 10/21/25)

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Kate, Leah, and Melissa dive into the legal pushback over ICE and the National Guard in Chicago and Portland, anti-marriage equality goblin Kim Davis’s unwelcome return to the courts, the administration’s lawless strikes on boats in the waters around South America, and the specter of Trump 3.0. Then, they preview November’s SCOTUS cases, including Learning Resources v. Trump, which challenges Trump’s authority to impose tariffs under the International Emergency Economic Powers Act. 

Favorite things:

• Leah: Task (HBO Max); West End Girl, Lily Allen; The Kavanaugh Stop - 50 days later, Chris Geidner (Law Dork); The Supreme Court’s Self-Defeating Supremacy, Steve Vladeck (The Supreme Court Review); God’s Chief Justice, Doug Bock Clark (ProPublica); Lawyers March for Democracy on November 15 at 1-3pm.
• Kate: The Emergency, George Packer; Expert Backgrounder on War Powers Resolution 60-Day Clock for Boat Strikes Expiring Monday, Rebecca Ingber and Jessica Thibodeau (Just Security)
• Melissa: Impermissible Punishments: How Prison Became a Problem for Democracy, Judith Resnik
• Hurricane relief for Jamaica:
  • The WalkGood Jamaica Relief Fund
  • The American Friends of Jamaica
  • Global Empowerment Mission
  • Mercy Corps
  • Food for the Poor Jamaica

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“The Chief Justice… is presiding over the end of the rule of law in America”. That quote did not come from host Dahlia Lithwick, but this week’s guest, former Federal Circuit Court Judge and George H. W. Bush appointee, J Michael Luttig. On this week’s show, Judge Luttig explains the unprecedented split we’re seeing between the federal courts and the highest court in the land in response to Trump’s lawlessness on everything from tariffs, to due process, to deploying the National Guard, and what it all means for the future of American democracy. 

Next, Dahlia talks to the CEO of the small family business at the center of the tariffs case that will be argued at SCOTUS on Wednesday. Rick Woldenberg of Learning Resources explains why he’s standing up to Trump’s monarchic power grab, and why he sees himself standing shoulder-to-shoulder with James Madison.

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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.

OA1203 - Happy Halloween! We take shelter from a year of ghoulish legal news in the COURTHOUSE OF HORROR, a cabinet of macabre legal curiosities including:

1. “SO I TRADEMARKED AN AXE MURDERER”: The historic Lizzie Borden House takes a whack at a nearby coffee shop

2. “THE BONE DETECTOR”: Recent patent bar survivor Jenessa Seymour brings us the unbelievable story of the spookiest--and silliest!--lie detector ever registered by the US Patent & Trademark Office

3. “ATTACK OF THE TORTIOUS CLOWNS”: Can you sue a haunted house for your fright-related injuries? 

4. “THE GREENBRIER GHOST”: The bizarre tale of how a victim’s testimony from beyond the grave helped to convict her killer in an 1896 West Virginia murder trial

5. “CANDYMAN 5: SUMMARY JUDGMENT”: In a tasty conclusion to last year’s Halloween footnote on consumers disappointed with the spookiness of their seasonal treats, a Florida federal judge finds as a matter of law that there is no wrong way to make a Reese’s.

Finally, we close on a serious note with Jenessa’s guide to how every registered voter can do their part next week to change the plot of our ongoing American horror story.

1. Order in Ghost Adventures LLC v. Miss Lizzie’s Coffee, LLC, No. 23-2000 (1st 

Cir.)(Selya, J.)(11/15/2024)

2. “Federal Judge Known for Polysyllabic Prose Dies at 90,” Trip Gabriel, The New York Times, (3/21/2025)

3. “Would You Confess Your Criminal Misdeeds to This Skeleton?,” Cara Giaimo, Atlas Obscura (5/16/2017)

4. “Apparatus for Obtaining Criminal Confessions and Photographically Recording Them,” Patent #1749090, H.A. Shelby (filed 8/10/1927)

5. “The Greenbrier Ghost Reexamined,” Greenbrier Historical Society, Arabeth Balseko (1/20/2022)

6. Summary judgment order in Munoz v. Six Flags St. Louis LLC (10/12/2022)(Wallach, J.)

7. Order granting motion to dismiss in Vidal et al v. The Hershey Company, FLSD No. 24-60831 (9/19/2025)(Damian, J.)

8. “Your Cheat Sheet To The 2025 General Elections,” Daniel Nichanian, Bolts (10/1/2025)

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Our 250th episode has us looking back 250 years, and looking ahead to the next year of commemoration of those 250 year anniversaries.  Sure enough, there is much gold to mine in those momentous events; much to inform us on matters of current import.  We recall and examine a Declaration that is 250 years old - no, not that one.  To top it off, we have a special guest that joins us to tie it all together as only he can.  Tune in and join the celebration!  CLE credit is available for lawyers and judges from podcast.njsba.com.