Category: 3-LawSometimeCommentary

Happy Thanksgiving! Just like the criminals of the Trump era, Opening Arguments never stops. Just as we went to record, Trump pardoned Flynn via Tweet. Andrew gives us his thoughts on that. Then we cover a couple more things Andrew was right about that should reduce your blood pressure a little! (and one thing that might raise it..)

Our main segment is about how Lindsey Graham likely broke several laws in his attempts to influence the vote counting in this election. What's more, there are several things we can do about it! Find out!

Links: 3rd Circuit letter, GSA ascertainment letter, Election results certification dates, 2020, OA325: Putin's Puppet? The Open Skies Treaty, Trump administration pulls out of Open Skies treaty with Russia, False Positive Rate for Signature Matching, 52 US Code § 10307 - Prohibited acts, 52 US Code § 10308 - Civil and criminal sanctions, 2010 Georgia Code :: TITLE 21 - ELECTIONS, 2010 Georgia Code :: TITLE 45 - PUBLIC OFFICERS AND EMPLOYEES, US Senate: About Expulsion, No Senator Has Been Expelled Since 1862

He still lost, folks! It's over. In our main segment today, we discuss the Electoral College calendar and when things are finally set in stone. But what about faithless electors??? We've got an Andrew for that too. This episode should help you feel fine about the fact that Trump still lost.

In the first segment we talk about a few things Andrew nailed his predictions on, including Chad Wolf and Kathryn Kimball Mizelle.

Links: Chad Wolf not lawfully appointed, Chris Krebs, List of federal judges appointed by Donald Trump, OA420: DoJ Defending Trump in Carroll Case?, Aaron Reichlin-Melnick on Twitter: "She is also the wife of Chad Mizelle", OA379: Trump's Contempt for the Press & Husch Blackwell, Trump campaign agrees to drop its defamation lawsuit against a tiny Wisconsin TV station, The Electoral College, Election results certification dates, 2020, Arizona Revised Statutes § 16-648 (2019).

Leah and Melissa and Kate are joined by Meera Deo, Professor of Law at Thomas Jefferson School of Law, William H. Neukom Fellows Research Chair in Diversity and Law at the American Bar Foundation, and author of Unequal Profession: Race and Gender in Legal Academia (Stanford U Press 2019).

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Dahlia Lithwick is joined by Joshua Matz to talk election lawsuits, Trump’s lawyers, Big Law, and whether the Biden administration will put “healing” ahead of justice in the post-Trump era. 

In our Slate Plus segment, Mark Joseph Stern joins Dahlia to try to calibrate alarm about Michigan officials talking to the White House about certifying and uncertifying results. Plus, Amy Coney Barrett’s first SCOTUS vote on the death penalty and the State Supreme Court race in North Carolina that you might have missed, but has much to say about racism and the state of state of the judiciary.

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Podcast production by Sara Burningham.

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On November 10, 2020, the Supreme Court heard oral argument in Texas v. California. The issues before the court were whether the unconstitutional individual mandate to purchase minimum essential coverage is severable from the remainder of the Patient Protection and Affordable Care Act as well as whether the district court properly declared the ACA invalid in its entirety and unenforceable anywhere.

Iyla Somin joins us for this special, extended edition episode of SCOTUScast. Mr. Somin is a Professor of Law at the Antonin Scalia Law School of George Mason University.

Rudy Giuliani is as bad at being a lawyer as he is at wearing a believable human suit. Both of these shortcomings were on full display this week as Trump's top lawyer continued to not only lose case after case, but also display an impressive ability to not have any idea what any legal term actually means. Also in this episode, Andrew tells us about the Kim Davis of this election - GSA Administrator Emily Murphy. Murphy can't seem to understand which number is bigger than the other. Then ace associate Morgan Stringer joins us to provide a few highlights of Giuliani's insane ramblings. She listened so that none of us have to!

Links: 3 U.S.C. 102, CFPB Announces Additional Member of Taskforce, The Law of Presidential Transitions and the 2000 Election, Lawsuit tracker: Trump’s battle faces skepticism from judges, Marks v. Stinton.

It's a 97% Trump-free episode! First we have to cover the bullet points Andrew foolishly thought we could get to last week, including questions like: does a 50-50 Senate mean no more Majority Leader McConnell? and what consequences should there be for law firms that take Trump's money and file frivolous election lawsuits? and more!

Then we get to the main signature deep dive, and it's not a happy one. ***content note: this episode contains discussion of sexual assault.*** Some Jehovah's Witnesses church leaders emotionally abused a rape victim, who was a minor, and she very justifiably sued them. But the backwards-ass Mormon judges of Utah conveniently decided churches can do... whatever. While this is likely to be overturned by the Supreme Court, it also might damage Church-State Separation along the way.

Links: Jones Day Statement Regarding Election Litigation, Snell & Wilmer withdraws from election lawsuit, Jehovah's Witnesses Lawsuit, Court hears case of woman suing Utah Jehova's Witnesses over rape audio.

On November 4, 2020, the Supreme Court heard oral argument in Fulton v. City of Philadelphia. There were three questions before the court. The first was whether free exercise plaintiffs can only succeed by proving a particular type of discrimination claim — namely that the government would allow the same conduct by someone who held different religious views — as two circuits have held, or whether courts must consider other evidence that a law is not neutral and generally applicable, as six circuits have held. The second was whether Employment Division v. Smith should be revisited. The third was whether the government violates the First Amendment by conditioning a religious agency’s ability to participate in the foster care system on taking actions and making statements that directly contradict the agency’s religious beliefs.
Mark Rienzi joins us today to discuss this case’s oral argument. Mr. Rienzi is President of The Becket Fund for Religious Liberty and Professor of Law and Co-Director of the Center for Religious Liberty at The Catholic University of America Columbus School of Law

On November 3, 2020, the Supreme Court heard oral argument in Borden v. United States. The question before the court was whether the “use of force” clause in the Armed Career Criminal Act encompasses crimes with a mens rea of mere recklessness.
Joining us to discuss this case’s oral argument is Kent Scheidegger. Mr. Scheidegger is the Legal Director & General Counsel at Criminal Justice Legal Foundation

On November 3, 2020, the Supreme Court heard oral argument in Jones v. Mississippi. The question before the court was whether the Eighth Amendment requires the sentencing authority to make a finding that a juvenile is permanently incorrigible before imposing a sentence of life without parole.
Joining us to discuss this case’s oral argument is Marc Levin. Mr. Levin is the Chief of Policy and Innovation for the Right on Crime initiative at the Texas Public Policy Foundation.