Category: 3-LawSometimeCommentary

Dahlia Lithwick calls former prosecutor Mimi Rocah for an answer to a question Amicus listeners often ask. She then asks Sen.Sheldon Whitehouse, D-Rhode Island, if all hope is lost for the federal judiciary. Finally, she revisits emoluments with Deepak Gupta and pulls on threads that extend right into the impeachment investigation. 

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Today's episode is everything you need to walk your open-minded Uncle Clarence -- you know, the one who watches Fox News, but not religiously, and isn't quite sure what all this impeachment nonsense is about -- through the key buzzwords of the week. And, as a bonus, we discuss an important decision regarding in vitro fertilization in Connecticut.

We begin, however, with the Explainer. How is this process different from (and more fair than) the Clinton impeachment? What is an impeachment "inquiry?" And why -- oh god, why?!? -- is everyone so focused on quid pro quo? You'll find out the answers to all these questions and much, much more.

After that, it's time to examine Bilbao v. Goodwin, which delves into the tricky question of what happens to a couple's frozen pre-embryos after they break up? This case has been making the rounds in both pro-life and pro-choice circles -- we'll tell you exactly what it stands for and what comes next.

Then, of course, it's time for an all-new #T3BE, in which Thomas tackles a breach-of-contract question. Can he keep his winning streak going?

Upcoming Appearances

None! If you’d like to have either of us as a guest on your show, drop us an email at openarguments@gmail.com.

Show Notes & Links

1. For the full breakdown of the House Impeachment Inquiry resolution, H.R. 660, check out our discussion in Episode 328.
2. And you can click here to read Bilbao v. Godwin.

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-For show-related questions, check out the Opening Arguments Wiki, which now has its own Twitter feed!  @oawiki

-And finally, remember that you can email us at openarguments@gmail.com!

Today's show is something we absolutely love to do, which is listener questions! Our listeners pose some truly intelligent, well thought-out, and deep-dive worthy questions. Today's episode features two such deep dives inspired by our listeners. The first is regarding DC v Heller, and whether it applies to gun ownership or gun sales, or both. The second question is a chance for Andrew to talk about jury duty, and what makes a good juror. Classic OA Tuesday deep dives!

On this episode, Kate and Melissa talk breaking SCOTUS news; preview three cases from the upcoming November sitting -- DACA, Hernandez v. Mesa, and Comcast; and go deep on amicus invitations and (lack of) diversity in the Supreme Court bar.

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On October 16, 2019, the Supreme Court heard oral argument in Mathena v. Malvo, a case which concerns the scope of a new constitutional rule when applied retroactively on collateral review.
In 2004, respondent Lee Boyd Malvo was convicted in Virginia on various counts of capital murder due to his participation in the “DC Sniper” attacks of 2002. As he was 17 years old at the time, he avoided the death penalty and was sentenced to four terms of life imprisonment without parole. In 2012, the Supreme Court held in Miller v. Alabama that sentencing a person younger than 18 to mandatory life imprisonment without parole violates the Eighth Amendment’s prohibition on cruel and unusual punishments. In 2016, the Court then held in Montgomery v. Louisiana that Miller had announced a new substantive rule applicable retroactively in cases on state collateral review.
When Malvo raised these issues on collateral review, the Fourth Circuit held that his sentences of life without parole must be vacated based on Miller, and the cases remanded for resentencing to determine whether his crimes reflected a “permanent incorrigibility” that would justify reimposition of the life-without-parole sentence. This judgment created a conflict with the Supreme Court of Virginia, which had concluded that Montgomery did not extend the applicability of Miller to discretionary sentencing schemes (including life without parole), but only applied Miller retroactively to cases on collateral review involving mandatory sentences of life without parole.
The Supreme Court thereafter granted certiorari to address whether the Fourth Circuit erred in concluding that Montgomery--when addressing whether the new constitutional rule announced in Miller applies retroactively on collateral review--may properly be interpreted as modifying and substantively expanding the very rule whose retroactivity was in question.
To discuss the case, we have Kent Scheidegger, Legal Director of the Criminal Justice Legal Foundation.
As always, the Federalist Society takes no particular legal or public policy positions. All opinions expressed are those of the speakers.

On October 8, 2019, the U.S. Supreme Court heard argument in two consolidated cases asking whether discrimination “because of … sex,” which is prohibited by Title VII of the Civil Rights Act of 1964, includes discrimination based on sexual orientation.
In Altitude Express, Inc. v. Zarda, gay skydiving instructor Donald Zarda was fired after a female client with whom he was preparing a tandem jump alleged that he had touched her inappropriately, though he had disclosed his sexual orientation to protest that his intentions were not sexual. His lawsuit alleged that his employer discriminated against him because he was honest about his sexual orientation and did not conform to a “straight male macho stereotype.”
In Bostock v. Clayton County, Georgia, Gerald Bostock, a gay man who worked as a Child Welfare Services Coordinator for the Clayton County Juvenile Court System, was fired after Clayton County learned of his sexual orientation, his participation in a gay recreational softball league, and his promotion of volunteer opportunities with the County to league members. His lawsuit alleged that the County falsely accused him of mismanaging public funds as a pretext for discharging him, with the real reason being his sexual orientation.
The U.S. Courts of Appeals in these cases reached mutually exclusive interpretations of Title VII’s language prohibiting discrimination “because of … sex.” In Zarda, the Second Circuit, sitting en banc, overruled its prior caselaw to conclude that Title VII prohibits discrimination based on sexual orientation. In Bostock, however, the Eleventh Circuit followed its longstanding precedent that Title VII does not support an action for sexual orientation discrimination. The U.S. Supreme Court subsequently granted certiorari in both cases to clarify whether discrimination against an employee because of sexual orientation constitutes prohibited employment discrimination “because of . . . sex” within the meaning of Title VII.
To discuss the cases, we have John J. Bursch, Owner, Bursch Law PLLC.
*Please note that Mr. Bursch argued a related Title VII case before the Supreme Court this term, Harris Funeral Homes v. EEOC.
As always, the Federalist Society takes no particular legal or public policy positions. All opinions expressed are those of the speakers.

This week's Rapid Response Friday breaks down exactly what's in H.R. 660, the impeachment inquiry resolution, and what it means for the ongoing process. We also help you digest the legal significance of Alexander Vindman's testimony and much, much more, so strap in!

We begin, however, with Thomas's favorite segment -- Andrew Was Wrong. Here, Andrew issues a correction regarding baseball law and the chemistry of high-fructose corn syrup (HFCS) from our popular Pizza, Beer & Guns episode.

After that, it's time for a trip up Yodel Mountain where we digest H.R. 660, the soon-to-be-passed resolution authorizing the House Intelligence Committee to take the lead on the impeachment inquiry. Is it "still without any due process for the President," as the White House claims? [No.] As a bonus, we also break down the companion change to the rules adopted by the House Rules Committee pursuant to the resolution that's managed to confuse a number of media outlets.

But that's not all! While we're high atop Yodel Mountain, we also break down the significance of Alexander Vindman's testimony this week regarding the Trump administration's holding hostage of aid to Ukraine pending an "investigation" into Burisma, and Hunter and Joe Biden.

After all that, it's time for #T3BE, in which Thomas tackles a dreaded real property question -- this one about whether a grantee can revoke an easement. Those are words! Will Thomas decipher them?

Upcoming Appearances

None! If you’d like to have either of us as a guest on your show, drop us an email at openarguments@gmail.com.

Show Notes & Links

1. Click here to read H.R. 660, and here for the companion change to the rules. Here's the Democratic summary of those changes.
2. This is the transcript of Alexander Vindman's opening statement, plus more on his testimony from the Washington Post and the (failing) New York Times, as well as the Politico story on how some Republicans are pushing back against attacks on Vindman.

-Support us on Patreon at: patreon.com/law

-Follow us on Twitter:  @Openargs

-Facebook:  https://www.facebook.com/openargs/, and don’t forget the OA Facebook Community!

-For show-related questions, check out the Opening Arguments Wiki, which now has its own Twitter feed!  @oawiki

-And finally, remember that you can email us at openarguments@gmail.com!

Dahlia Lithwick is joined by Rep. Jim Himes of Connecticut, who sits on the House Intelligence Committee, to talk about the role of intelligence and counterintelligence in the Mueller probe, the impeachment inquiry, and the damage deep state fever dreams could do to law enforcement and oversight.

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It's an all American episode, complete with 3 dives! First we have a 9th Circuit ruling on Domino's Pizza to discuss, related to accessibility concerns with their app. Then, you know those horrible, unfunny, obnoxious Bud commercials with the knights and the king and all that? Turns out in addition to being terrible, they may also be potentially tortious! They made some very specific claims about MillerCoors beers using corn syrup in their beer they have gotten them into legal trouble. And finally, we round out this all-American ep with guns - a breakdown of the Dickey Amendment.

Leah and Jaime recap some of the Supreme Court’s October cases, including Ramos v. Louisiana, Mathena v. Malvo, and Aurelius Investment v. Puerto Rico. Then they pretend the Supreme Court had no additional cert grants before leaving listeners with a deep thought … slash question.

Get tickets for STRICT SCRUTINY LIVE – The Bad Decisions Tour 2025! 

• 6/12 – NYC
• 10/4 – Chicago

Learn more: http://crooked.com/events

Order your copy of Leah's book, Lawless: How the Supreme Court Runs on Conservative Grievance, Fringe Theories, and Bad Vibes

Follow us on Instagram, Threads, and Bluesky