Today's SUPER SPECIAL BONUS EPISODE tackles a bunch of issues that came up during the week that we didn't want to get buried on the whiteboard, including the Flores settlement, a deep dive into non-compete clauses, and a really good Andrew Was Right & Wrong segment about the Hatch Act. It's everything you love about Opening Arguments, only more so!
We begin with an examination of the oral arguments before the 9th Circuit regarding ICE detainment centers and whether those comply with the conditions mandated by the Flores settlement that require "safe and sanitary" conditions for minors separated from their families at the border.
After that, it's time for a deep dive into a really good listener question from Erin regarding covenants not to compete. Learn all about the "Legitimate Business Interest" (LBI) test and how to gauge whether a noncompete clause is (likely) enforceable, plus learn about the recent economic and political trends surrounding noncompetes that may surprise you.
Then, it's time for a very insightful set of comments from a listener regarding the Hatch Act; it's an Andrew Was Right/Andrew Was Wrong compliment sandwich, but we all wind up better for it!
No #TTTBE this episode since it's a special bonus.
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.
Today's episode takes a deep dive into executive privilege, evaluating the legal arguments being raised by the Trump administration asserting executive privilege over former communications director Hope Hicks and former counsel Don McGahn. Find out how good those arguments are -- spoiler: some aren't terrible! -- and what's next for the Congressional Democrats.
First, though, we begin with coverage of the American Legion v. American Humanist Ass'n decision from last week; that's the Bladensburg Cross case that we've discussed at some length on this show. How bad is this decision? (Bad.)
Then, it's time for the intersection of Rapid Response Friday and Deep Dive Tuesday in which we time travel all the way back to 1971 to evaluate the Trump Administration's claims regarding executive privilege "over the last five decades." As you've come to expect from OA, we tell you what the administration got right... and, of course, what they got wrong. If you want to know if and when Congress will ever get meaningful testimony out of Hope Hicks or Don McGahn, you need to listen to this show.
Then, it's time for the answer to TTTBE #131 about the propriety of a specific question during cross-examination of a witness who testified as to the defendant's "reputation for honesty." If you love the Federal Rules of Evidence -- and really, who doesn't? -- you'll love this segment.
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.
A flurry of decisions this week, but few big-ticket items. Mark Joseph Stern takes us through the opinions and dissents in Flowers v Mississippi, Gundy v United States and American Legion v American Humanist Association. Dahlia Lithwick is also joined by Jed Shugerman and Andrew Kent of Fordham University Law School, two of the authors of the Harvard Law Review article, Faithful Execution and Article II, which examines whether the constitution holds the President to some higher standard than just not doing crimes.
Today's episode -- #OpposeJustinWalker -- tells you everything you need to know about Donald Trump's latest nominee for a lifetime appointment to the federal bench (and Andrew's former debate opponent) Justin Walker. You already know he's a lifelong member of the Federalist Society. Why is it specifically worth opposing him? Listen and find out!
First, though, the guys break down the Supreme Court's 7-2 ruling inU.S. v. Gamble, affirming the "dual sovereignty" doctrine and finally putting the last nail in the coffin of a crazy lefty conspiracy theory we debunked way back in Episode 215. And, as a bonus (?), we find out why Clarence Thomas's concurrence is "the most horrifying thing in print in the past 50 years." Seriously!
After that breakdown, it's time to analyze the background and writings of Justin Walker. We learn that he has virtually no litigation experience and that he's a right-wing ideologue; you probably expected that. But you'll also learn that his two major contributions to academic jurisprudence are (1) arguing that transparency in government is a bad, possibly unconstitutional thing; and (2) arguing that the FBI Director has a moral obligation to be the President's lackey. We are not making any of this up.
Then, it's time for Thomas Takes The Bar Exam and a question on the propriety of a introducing a particular fact into evidence as the predicate for a cross-examination question. Is it hearsay? Is it impeachment? Is it just hunky-dory? Listen and find out!
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.
On April 29, 2019, the Supreme Court decided Thacker v. Tennessee Valley Authority, a case involving a dispute over the “discretionary-function exception” to waivers of federal sovereign immunity. In 2013, Anthony Szozda and Gary and Venida Thacker were participating in a fishing tournament on the Tennessee River. The Tennessee Valley Authority (TVA) had a crew near the river, trying to raise a downed power line that had partially fallen into the river instead of crossing over it. The crew attempted to lift the conductor out of the water concurrent with Szozda and the Thackers passing through the river at a high rate of speed. The conductor struck both Thacker and Szozda, causing serious injury to Gary Thacker and killing Szozda. The Thackers sued TVA for negligence. The district court dismissed their complaint for lack of subject-matter jurisdiction. On appeal, the US Court of Appeals for the Eleventh Circuit affirmed that judgment. Although the act creating the TVA waives sovereign immunity from tort suits, the Court held that the waiver does not apply where the TVA was engaged in governmental functions that were discretionary in nature. Applying a test derived from the Federal Tort Claims Act, the Court determined that the TVA’s challenged conduct fell within this “discretionary-function exception,” and immunity therefore applied. The Supreme Court unanimously reversed the judgement of the Eleventh Circuit and remanded the case for further proceedings. In an opinion delivered by Justice Kagan, the Court held that the TVA’s sue-and-be-sued clause, which waives sovereign immunity, is not subject to a discretionary-function exception. Rather, on remand the court below should consider whether the conduct alleged to be negligent is governmental or commercial in nature. If it is commercial, immunity does not apply. If it is governmental, immunity may apply--but only if prohibiting the kind of suit in question is necessary to avoid grave interference with the governmental function at issue. To discuss the case, we have Richard Peltz-Steele, Professor at the University of Massachusetts School of Law.
On March 26, 2019, the Supreme Court heard argument in Rucho v. Common Cause and Benisek v. Lamone, two cases involving gerrymandering. Rucho v. Common Cause involves whether North Carolina’s 2016 congressional map involves unconstitutional gerrymandering in violation of the Equal Protection Clause of the Fourteenth Amendment, the First Amendment, and Article I. In March 2017, a three-judge district court ruled that North Carolina’s 2016 Congressional Redistricting Plan constituted unconstitutional gerrymandering because the state General Assembly improperly relied on “political data” to draw districts to increase the number of Republicans in North Carolina’s congressional delegation. The court ordered new maps to be drawn for use in future elections. Following the court’s instructions, the General Assembly drew a new congressional district plan according to criteria identified by the Joint Select Committee on Redistricting. One such criterion was “partisan advantage,” which, relying on population data and political data, would “make reasonable efforts to construct districts in the 2016 plan to maintain current partisan makeup of North Carolina’s congressional delegation.” The plan was approved by the committee, the North Carolina Senate and North Carolina House of Representatives, all along party lines. Others filed objections to the plan and asked that the court reject it as partisan gerrymandering. The court held that the plan constituted unconstitutional partisan gerrymandering, enjoined North Carolina from using the plan in any election after November 6, 2018, and directed the parties to submit briefs relating to whether the court should allow the plan to be used in the 2018 election and allow the General Assembly a third opportunity to draw a plan. Although the U.S. Supreme Court vacated the district court judgment and remanded the case for reconsideration in light of its 2018 decision in Gil v. Whitford on standing, the district court subsequently concluded that the plaintiffs had standing and reasserted its earlier determination on the merits. In August 2018, the district court concluded that there was not enough time to review a new plan before the seating of the new Congress in 2019 as well as determined that a new schedule for elections would interfere with North Carolina’s electoral machinery. Thus, the court declined to enjoin use of the plan in the November 2018 election. The Supreme Court thereafter granted certiorari to consider (1) whether plaintiffs have standing to press their partisan gerrymandering claims; (2) whether plaintiffs’ partisan gerrymandering claims are justiciable; and (3) whether North Carolina’s 2016 congressional map is, in fact, an unconstitutional partisan gerrymander.
Lamone v. Benisek involves Maryland’s 2011 redistricting plan, particularly whether the State redrew the boundary of one district to burden Republicans. Following the 2010 census, Maryland redrew the lines of its congressional districts and state legislative districts. The Sixth Congressional District had grown by approximately 10,000 residents, which required adjustment of the district boundaries. If only a slight adjustment for population had been applied, the district would have been unquestionably Republican. Instead of this slight adjustment, the plan swapped half the population of the former Sixth District with about 24,000 voters. The change created in effect a difference in 90,000 Democratic votes. Plaintiffs argued that in enacting 2011 law, the State deliberately diluted Republican votes in violation of the First Amendment. A three-judge district court agreed with plaintiffs, enjoining the State from using the 2011 congressional redistricting plan after the 2018 congressional election and requiring it promptly to adopt a new plan for use in the 2020 congressional elections. The Supreme Court granted certiorari to consider (1) whether the various legal claims articulated by the three-judge district court are unmanageable; (2) whether the three-judge district court erred when, in granting plaintiffs’ motion for summary judgment, it resolved disputes of material fact as to multiple elements of plaintiffs’ claims, failed to view the evidence in the light most favorable to the non-moving party, and treated as “undisputed” evidence that is the subject of still-unresolved hearsay and other evidentiary objections; and (3) whether the three-judge district court abused its discretion in entering an injunction despite the plaintiffs’ years-long delay in seeking injunctive relief, rendering the remedy applicable to at most one election before the next decennial census necessitates another redistricting. To discuss the cases, we have Derek Muller, Associate Professor at Pepperdine University School of Law.
Strict Scrutiny is hosted by three women, Leah Litman, Kate Shaw and Melissa Murray, who are three law professors, but they’re also swimmers, mothers (of humans and dogs), and celebrity gossip enthusiasts. They’re women who’ve practiced before and write about the Court in their professional lives. They have a different voice–- one that celebrates the contributions and opinions of women and people of color. They provide intelligent and in-depth legal analysis alongside their unvarnished, respectfully irreverent takes. And they want to do it in a way that is accessible to a variety of listeners, including Supreme Court regulars, lawyers, law students, and members of the public who are looking for a window into the Court’s decisions, as well as its culture, personalities, and folkways.
The hosts think SCOTUS is serious business—but they don’t take ourselves or the Court too seriously. They’ve got hot takes, jokes, and a lot to say.
Get tickets for STRICT SCRUTINY LIVE – The Bad Decisions Tour 2025!
Today's episode explains exactly what happened with the story you probably saw about how Led Zeppelin "got a new hearing" in their lawsuit with the estate of Randy California. What's going on? Listen and find out! We also break down the latest ethical wrangling over Yale law professor Amy Chua and Brett Kavanaugh. Is it as bad as everyone says?
We begin with the tale of "Tiger Mom" Amy Chua, the Yale law professor who wrote a stirring defense of Brett Kavanaugh as a "mentor to women" after Kavanaugh had offered Chua's daughter a plum clerkship. Did that pot get sweetened when Kavanaugh was confirmed to the Supreme Court? (Hint: yes.) We break down all of the ethics & more in this segment.
Then, it's time to revisit the lawsuit brought by the estate of Randy California against Led Zeppelin alleging that Led Zep stole the iconic riff for "Stairway to Heaven" from California's band, Spirit. If you haven't listened to Episode 236, go give that a listen right now, and then come back to find out what's new.
Then, it's time for another Andrew Was Wrong segment -- this time, involving the actual penalty for refusing to answer or giving false answers on the Census.
After all that, it's time for the answer to Thomas Takes the Bar Exam #130 about the constitutional propriety of collecting sales tax from a private individual who will then turn around and sell the objects to the state. Did Thomas get it right? There's only one way to know for sure!
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.
Today's Rapid Response Friday covers all of the breaking developments this week, including a ruling from the Wisconsin Supreme Court, the latest news out of the House of Representatives, and the Office of Special Counsel's latest request that Donald Trump should fire Kellyanne Conway for "flagrant" serial violations of the Hatch Act. What does all that mean? Listen and find out!
We begin by revisiting the state of Wisconsin, where Republicans in gerrymandered-safe seats in the state legislature stripped power away from the incoming Democratic Governor and Attorney General. A trial court issued an injunction preventing that law from going into effect, and just two days ago, the state Supreme Court finally ruled on that injunction. How did that go? (You know the drill.)
Then, we move into the main segment, in which we discuss all of the developments related to the census question we last discussed in Episode 286. Learn about one respondent's petition for limited remand, the White House's assertion of executive privilege, and then what's next from the Democratic House.
After all that, it's time to climb Yodel Mountain. Learn exactly who Lt. Gen. Michael Flynn hired once he fired Covington & Burlington Coat Factory, and what that (probably) means. And then, it's time to learn allllll about the Hatch Act, and why a loyal Trump supporter thinks it means it's time to fire Kellyanne Conway.
Then, it's time for Thomas Takes the Bar Exam. This time, Thomas tackles a tricky question about a government agency that hires a private collector to purchase antiques. Can the state charge sales tax? Listen and find out!
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. We last discussed the census in Episode 286. 2. Click here to read the NYIC petition for limited remand. 3. This is HR 430, which is the full House vote to allow the Judiciary Committee to sue to enforce the McGahn and Barr subpoenas. 4. And here is the roll call vote. 5. The Hatch Act is 5 U.S.C. § 7323. 6. The Hatch Act was upheld in United States Civil Service Comm’n et al. v. Nat’l Ass’n of Letter Carriers, AFL-CIO, et al., 413 U.S. 548 (1973). 7. Finally, click here to read the OSC Conway letter.
Today's episode takes a deep dive into recent developments following the death of Republican operative Thomas Hofeller -- the architect of the REDMAP -- that may impact the census question case currently pending before the Supreme Court, Department of Commerce v. New York.
First, however, we begin with an Andrew Was Wrong about the 2006 midterm elections and the Pension Protection Act. That was, in fact, a Democratic wave year -- but the PPA was passed in August, nearly five months before that new Democratic congress was seated. Oops.
Then it's time to delve into the strange files of Thomas Hofeller, the architect of REDMAP -- you know, the gerrymandering strategy and software that turned Republican minorities into majorities in states like Wisconsin and tiny Republican majorities into one-sided dominance in states like North Carolina. Want to know his plan for helping "Non-Hispanic Whites?" Of course you do!
We break down exactly how this development may affect Dep't of Commerce v. New York, which has already been briefed and argued before the Supreme Court, and the interesting strategy that the respondents used to make SCOTUS aware of what Hofeller was up to.
After all that, it's time for the answer to Thomas (and the Entire Puzzle in a Thunderstorm Crew) Takes the Bar Exam #129 involving comparative negligence, joint and several liability, and intra-family liability in connection with a car accident. Did you get it right? Remember you can play along every Friday by sharing our show on social media using the hashtag #TTTBE.
Appearances
Andrew was just a guest on Episode 98 of the Skepticrat breaking down everyone's second-favorite Democratic 2020 Presidential contenders; you won't want to miss it! And 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
We first covered the citizenship question on Episode 232
You can access the briefs filed in Department of Commerce v. New York: Here
This is the letter filed by respondents and copied to the Supreme Court setting forth the new evidence relating to Hofeller.
And, in the interests of balance, here's the response filed by the government.
And finally, here's the ruling and scheduling order from Judge Furman in the District Court case (No. 18-2921) setting forth the time to brief and seek discovery regarding potential sanctions on the government witnesses.
