Category: 3-LawSometimeCommentary

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

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

• 3/6/26 – San Francisco
• 3/7/26 – Los Angeles

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

Get tickets to CROOKED CON November 6-7 in Washington, D.C at http://crookedcon.com
 

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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.

OA1202 - We are pleased to welcome American Immigration Council Senior Fellow Aaron Reichlin-Melnick for this unique conversation between a practitioner and a policy expert. The AIC is one of the country's leading sources of information and advocacy on US immigration matters, and Aaron watches and comments on these issues like no one else out there right now. Topics include, among many other things, how the Trump administration keeps getting in its own way on immigration issues, how the law of who can be released from ICE custody on bond has been radically reinterpreted within the past few months, and our  hopes for the future in this critical moment for American immigration law.

 

1. Aaron Reichlin-Melnick’s bio on the American Immigration Council website

2. Aaron Reichlin-Melnick on Bluesky

3. Donate to support the American Immigration Counsel

Kate and Leah dig into a very busy week of legal news as Trump wields his SCOTUS-enabled executive power in increasingly unhinged ways. They also discuss continuing challenges to the president’s deployment of the National Guard in blue cities, ProPublica’s reporting on “Kavanaugh stops,” and, for dessert, the bonkers text exchange between Trump lackey–turned–U.S. Attorney Lindsey Halligan and Lawfare’s Anna Bower. Then they speak with author Irin Carmon about her new book, Unbearable: Five Women and the Perils of Pregnancy in America.

Favorite things:

• Leah: Resistance Is Cringe—But It’s Also Effective, Quinta Jurecic (The Atlantic); The Democrats' Main Problem Isn’t Their Message, Chris Hayes (NYT); The Peril of a White House That Flaunts Its Indifference to the Law, Charlie Savage (NYT); Everybody/Elizabeth Taylor Mashup (Backstreet Boys/Taylor Swift)
• Kate: Five Tuesdays in Winter, Lily King; I’m Still Here

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

• 3/6/26 – San Francisco
• 3/7/26 – Los Angeles

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

Get tickets to CROOKED CON November 6-7 in Washington, D.C at http://crookedcon.com
 

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

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Bulldozers and bulwarks are the twin themes of this week’s show, as Dahlia Lithwick is joined by Joyce White Vance, a longtime federal prosecutor and clarion voice in defense of the rule of law, despite its flaws. As Pam Bondi’s Justice department chases down the President’s opponents, Congress walks away from its constitutional duties, and the highest court in the land struggles to find a presidential demand too outrageous to rubber stamp, it’s no wonder many Americans are exhausted by the attempt  to toggle between hope and despair. Lithwick and Vance discuss the many challenges to the integrity of the justice system and ponder what ordinary people can do to bolster vital democratic institutions under siege. Vance's new book, 'Giving Up is Unforgivable,' serves as a manual for citizens who understand that surviving this moment (and thriving after it) is a massive team project. It’s okay to huff a little hopium sometimes, but only if it’s the good stuff. 

Want more Amicus? Join Slate Plus to unlock weekly bonus episodes with exclusive legal analysis. Plus, you’ll access ad-free listening across all your favorite Slate podcasts. You can subscribe directly from the Amicus show page on Apple Podcasts and Spotify. Or, visit slate.com/amicusplus to get access wherever you listen.

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OA1201 - This Rapid Response Friday, Matt and Jenessa play a few rounds of “Can They REALLY Do That?”, with topics including:

1. The legal mechanism and filings behind Trump’s $230 million demand for DOJ having the audacity for investigating him for crimes that he did

2. Arizona’s lawsuit against House Speaker Mike Johnson asking a DC federal court to require him to seat incoming Congresswoman Adelita Grijalva after her election

3. DOJ’s first-ever “Antifa” terrorism indictment

Finally, in today’s footnote Jenessa reports back from her recent experience sitting for the federal patent bar.

1. Donald Trump’s Form 95 seeking damages under the Federal Tort Claims Act for the FBI’s execution of a search warrant on Mar-a-Lago (filed 8/7/2024)

2. Transcript of former FBI agent Steven D’Antuono’s testimony to the House Judiciary Committee  (6/7/2023)

3. Complaint in Arizona v. U.S. House of Representatives (filed 10/21/2025)

4. Martin v. U.S., 605 U.S. _____ (6/12/2025)

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

6. Indictment with additional “Antifa”-related charges against Autumn Hill & Zachary Evetts (10/15/2025)

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