Category: 3-LawSometimeCommentary

OA1177 - We are excited to welcome former San Francisco District Attorney Chesa Boudin for the first half of this unique two-part interview! Chesa is a very notable representative of the “progressive prosecutor” movement. His time as SF DA shows both the promise of this movement, and the limitations. But before we dig into all that, we begin with Chesa’s unique background as the child of incarcerated parents and how this experience inspired him to dedicate his life to bringing a new approach to the criminal legal system.

• Chesa Boudin’s faculty page at UC Berkeley Law

• Chesa Boudin’s academic publications, SSRN

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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.

Kate and Leah break down the week’s legal happenings, including Trump’s flailing efforts to manage the Epstein fallout, the latest abomination from the shadow docket, and the legal quagmire surrounding Trump lackey Alina Habba’s appointment as U.S. Attorney for New Jersey. Then, they speak with law professors—and former clerks for David Souter—Allison Orr Larsen and Erin Delaney about the late justice’s legacy.

Hosts’ and guests’ favorite things:

• Kate: The Power Broker, Robert Caro; Will to Resist: What Dartmouth Teaches Harvard About Protecting American Freedom, Bruce Swartz (Just Security)
• Leah: The Palace of Rogues Series, Julie Anne Long
• Erin: Tucci in Italy (National Geographic); Marjorie, Taylor Swift
• Allison: How to Hide an Empire; A History of the Greater United States, Daniel Immerwahr

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• 10/4 – Chicago

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Civil rights are under attack. The Supreme Court seems to have its sights set on the Voting Rights Act. The Trump administration, meanwhile, is taking every issue to the court knowing that it will never have to face accountability there. And with states like Texas considering unpopular redistricting plans, the administration may never face it at the ballot box either.

Put more bluntly, many of our elected officials are operating with a perceived immunity from accountability of any sort. This week Dahlia spoke about the deleterious effects of these actions on voting rights with Maya Wiley, president and CEO of The Leadership Conference on Civil and Human Rights. They discuss the damage done to our civil rights by the current Department of Justice, and what we can learn about accountability from recent developments in the Jeffrey Epstein scandal. 

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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.

OA1176 - Six years after his death in a filthy Manhattan jail cell, Jeffrey Epstein’s disgusting ghost is now haunting Donald Trump--his former “best friend” of more than a decade. What are the “Epstein files” and why has the demand to see them turned MAGA world against itself now?  We go beyond the headlines to explain how one of the most notorious criminals  in recent American history has become this week’s top legal story so long after his death, and why DOJ’s recent efforts to cover for Trump should constitute a ten-alarm scandal. We then review Trump’s attempt to sue the Wall Street Journal for revealing his surprisingly artistic birthday wishes to his “pal,” why his administration is so intent on unsealing grand jury records which DOJ knows can’t be released, how this whole mess has reached the point that the Supreme Court might actually have a good legal reason to reverse Epstein accomplice Ghislaine Maxwell’s conviction (!), and why Trump might be about to pardon Maxwell even if it doesn’t. Also discussed: the history of Epstein’s astonishing 2007 non-prosecution agreement and its legacy, the real “Epstein files” that no one has been talking about, and how the President of France might be about to righteously bankrupt MAGA mouthpiece Candace Owens. 

• Complaint in Trump v. Wall Street Journal (filed 7/18/25)

• Undated July 2025 FBI memo summarizing recent Epstein file review 

• Judge Robin Rosenberg’s order denying DOJ motion to unseal Epstein grand jury records in the Southern District of Florida (7/23/25)

• Jeffrey Epstein’s Non-Prosecution Agreement (signed 9/24/2007)

• Ghislaine Maxwell’s petition for certiorari to the U.S. Supreme Court (filed 4/10/25)

• Complaint in Macron v. Owens (filed 7/23/25)

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Professor Heather Varanini has brought us our next question as we study for the Bar Exam!

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We pay tribute this week to a titan in the field whom you may not have heard of.  Professor Richard Fallon, the Joseph Story Professor of Law at Harvard, passed away last week.  As you will hear from his collaborator and friend, our guest Professor Michael Dorf, Dick Fallon had a deep impact in the law and the academy, and did so with grace, class, and integrity.  The parallels between his career and Professor Amar’s are striking, but so is the divergence in their constitutional approaches.  And this makes for a fascinating and instructive episode as we probe, rather deeply, the nature of these divergences and how they appear in various places in the law.  Meanwhile this also brings us back to a fundamental matter for this podcast, namely, the nature of and validity of originalism as opposed to or in concert with other methods of interpreting and understanding the constitution and applying it in today’s, and tomorrow’s, America.  That America must now, sadly, go on without Dick Fallon, but it will do so informed by his career and his greatness.  We are fortunate to have Michael Dorf to show us why this is so. CLE credit is available for lawyers and judges from podcast.njsba.com.

OA1175 - How much of a restriction on your First Amendment rights is it to have to upload an ID to access an adult website? That is the question at the heart of Free Speech Coalition v. Paxton, the Supreme Court’s recent review of age verification laws such as Texas’s HB 1181. Matt explains how this newly precedential application of intermediate scrutiny to these kinds of restrictions on adult content could have real implications for the future of other kinds of unpopular speech. Then for more context we welcome Zeve Sanderson, the Executive Director of the NYU Center for Social Media & Politics. Zeve and a team of other researchers have recently published the leading findings on the actual effects of age verification on browsing habits, which he takes us through while also explaining some possibly less-restrictive alternatives to current verification methods.

• U.S. Supreme Court’s decision in Free Speech Coalition v. Paxton (6/27/2025)

• Audio of Free Speech Coalition v. Paxton SCOTUS oral arguments (1/15/2025)

• Do Age Verification Bills Change Search Behavior? A Pre-Registered Registered Synthetic Control Multiverse, David Lang Benjamin Listyg† Brennah V. Ross‡ Anna V. Musquera Zeve Sanderson (March 2024)

• Zeve Sanderson’s website

Melissa and Kate run through the latest legal news, including the Court greenlighting the dismantling of the Department of Education. Then, they speak with NYU law professor Rachel Barkow about her book, Justice Abandoned: How the Supreme Court Ignored the Constitution and Enabled Mass Incarceration. 

Hosts’ favorite things:

• Kate: Legalistic Noncompliance, Leah Litman and Dan Deacon (University of Michigan); Trump’s Plans to Put Emil Bove on the Supreme Court, Jeffrey Toobin (NYT); Bonus 167: The Case for Not Writing, Steve Vladeck (One First)
• Melissa: Wedding People by Alison Espach; What Reading 5,000 Pages About a Single Family Taught Me About America, Carlos Lozada (NYT); The Kent Family Chronicles, John Jakes; Emily in Paris walking tour

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

• 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

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