Dissed

Lady Justice is often depicted wearing a blindfold, signifying that judges are neutral arbiters of the law. Unfortunately, thanks for a judicial doctrine known as Chevron deference, the Supreme Court has required judges to peek from behind that metaphorical blindfold and put a thumb on the scale for the most powerful litigant in our nation: the federal government. In a case called Brand X, the Court took Chevron deference to its logical conclusion, allowing agencies to overrule judicial decisions. One dissenter wrote that this was not only bizarre, but it was probably unconstitutional. That view has been picking up steam in the past decade. Next term, the Court will hear a case asking it to overturn Chevron deference.Thanks for our guests Aditya Bamzai and Jeff Wall.Follow us on Twitter @ehslattery @anastasia_esq @pacificlegal #DissedPod Hosted on Acast. See acast.com/privacy for more information.

The government’s deprivation of life, liberty, or property is legitimate only if preceded by certain procedural protections—better known as due process of law. This includes reasonable notice of the rules so citizens can know and follow them. But a 1947 Supreme Court decision gave the burgeoning administrative state the ability to create new rules with retroactive application, through a process known as adjudication. A dissent by Justice Robert Jackson—who was no enemy of the administrative state—lambasted the Court for failing to scrutinize this action. Thanks to our guests John Barrett and Joe Postell. Follow us on Twitter @ehslattery @anastasia_esq @pacificlegal #DissedPod Hosted on Acast. See acast.com/privacy for more information.

The federal government is brimming with hundreds of agencies and millions of employees, many of whom enjoy some independence from political accountability. But the President is supposed to be responsible for everything that happens in his branch of the government. With the creation of more and more “independent” agencies, the lines of accountability have become blurred. In a series of cases, however, the Supreme Court has required clear lines of accountability so that the buck stops with the President. Thanks to our guests Tommy Berry and Chris Walker. Follow us on Twitter @ehslattery @anastasia_esq @pacificlegal #DissedPod Hosted on Acast. See acast.com/privacy for more information.

A central feature of our Constitution’s separation of powers is that Congress is charged with making the law, and it can’t give away this power to the other branches of government. Known as the nondelegation doctrine, this core protection of our liberty has only been halfheartedly enforced by the courts for much of the past century. In 1935, however, nondelegation enjoyed “one good year” when the Supreme Court held that Congress unconstitutionally gave away its lawmaking power. But a dissent quickly became the new majority and the nondelegation doctrine mostly vanished. In recent years, several justices have expressed an interest in reviving that old doctrine. Will the nondelegation doctrine enjoy another good year?Follow us on Twitter @ehslattery @anastasia_esq @pacificlegal #DissedPod Hosted on Acast. See acast.com/privacy for more information.

In 1978, amid a sordid history of Native American children being taken from their families and placed in custody of non-Indians, Congress passed the Indian Child Welfare Act, or ICWA. Though passed with good intentions, critics say ICWA actually offers Indian children less protection than non-Indian children solely because of their ancestry. This term, the Supreme Court will decide Brackeen v. Haaland, which challenges the constitutionality of ICWA. But a case nearly a decade ago foreshadowed the constitutional arguments that are now before the court. Thanks to our guests Timothy Sandefur and Oliver Dunford. Follow us on Twitter @anastasia_esq @ehslattery @pacificlegal #DissedPod Hosted on Acast. See acast.com/privacy for more information.

In 1944, the Supreme Court upheld the wartime internment of Japanese-Americans. It’s the first time the court applied strict scrutiny to racial discrimination by government. Over the protests of three justices, the Court held in Korematsu v. United States that the Roosevelt Administration met that exacting standard. One of the dissenters lamented, “Racial discrimination … has no justifiable part whatever in our democratic way of life.” Nearly 75 years later, the court would explain that ruling “was gravely wrong the day it was decided” and “has been overruled in the court of history.” What is Korematsu’s legacy and how is it casting an influence on the court today?  Thanks to our guests John Q. Barrett and John Yoo.  To learn more, check out KOREMATSU VERSUS US, a documentary short produced by the Federalist Society that explores the facts, conviction, and following cases surrounding Fred Korematsu and the other 120,000 "relocated" immigrants and citizens during World War II at https://fedsoc.org/commentary/videos/korematsu-versus-usFollow us on Twitter @ehslattery @anastasia_esq @pacificlegal #DissedPod  Hosted on Acast. See acast.com/privacy for more information.

Dairy and apples and whiskey and wine. Many of our favorite things have turned in up cases involving the Commerce Clause at the Supreme Court. This term, the Court will consider whether a California law regulating the sale of pork violates that Clause. Some think the Court will strike California's pork ban down. Others wonder, based on recent dissents, whether the justices will use this opportunity to get rid of the "dormant Commerce Clause" doctrine altogether. Join the ladies as they take a romp from the 1780s to present day in search of the "dormant Commerce Clause," a phrase frequently invoked but not actually found anywhere in the Constitution.Thanks to our guests Barry Friedman, Carter Phillips, and Adi Dynar, and to Jenni Etimos for her rendition of "Free Market Favorite Things."Check out the full version of Gyu-Ho Lee's rock cover of "My Favorite Things": https://www.youtube.com/watch?v=kdRwBNkbLXsFollow us on Twitter @ehslattery @anastasia_esq @pacificlegal #DissedPod Hosted on Acast. See acast.com/privacy for more information.

What are “navigable waters of the United States”? It’s a question agency bureaucrats and property owners have battled over since the passage of the Clean Water Act in 1972. A Supreme Court ruling in 2006 that could have cleared it up is … about as clear as mud. This term, in Sackett v. EPA, the Court may finally provide the answer.Thanks to our guests Jonathan Adler and Damien Schiff.Follow us on Twitter @ehslattery @anastasia_esq @pacificlegal #DissedPod Hosted on Acast. See acast.com/privacy for more information.

In 1996, someone murdered four people in a furniture store in a small town in Mississippi. A year later, Curtis Flowers was convicted of the crime, but the verdict was overturned based on prosecutorial misconduct. The state tried Mr. Flowers again, resulting in another appeal, and yet another reversal. In all, the state would try Flowers six times, with the last conviction making its way to the Supreme Court. While the majority ruled that the state had systematically excluded jurors based on the race, Justice Thomas wrote in dissent that prosecutors should be able to exclude whomever they want, for whatever reason they choose.Thanks to our guests Sheri Lynn Johnson and Stephen Bright. And thanks to Benjamin Sachrison for research assistance.Follow us on Twitter @anastasia_esq @ehslattery @pacificlegal #DissedPod Hosted on Acast. See acast.com/privacy for more information.

This is the story of Tone Dougie, an aspiring rapper who posted rap lyrics on Facebook about killing his estranged wife and blowing up an FBI agent. Tone Dougie says he didn't intend to threaten anyone and was simply inspired by Eminem. But the federal government saw things differently and prosecuted him for making “true threats.” His case eventually reached the Supreme Court, where only one justice dissented. Were Tone Dougie’s posts protected speech or criminal threats? Tune in to find out!Thanks to our guests Adam Liptak and John Elwood. Special thanks to our longtime editor John Carter for his rap portrayal of Tone Dougie. Follow us on Twitter @ehslattery @anastasia_esq @pacificlegal #DissedPod Hosted on Acast. See acast.com/privacy for more information.

In 1972, the Supreme Court ruled that capital punishment was being “so wantonly and so freakishly imposed” that it was “cruel and unusual in the same way that being struck by lightning is cruel and unusual.” But just four years later, the Court reversed course---ruling that with new procedures in place, states could continue executions without running afoul of the Eighth Amendment. Justice Thurgood Marshall wrote an impassioned dissent arguing that the death penalty is cruel and unusual under any circumstances. After hearing his experiences as a defense attorney in the South, it’s easy to understand why.Thanks to our guests John Stinneford and Mark Tushnet.Follow us on Twitter @anastasia_esq @ehslattery @pacificlegal #DissedPod Hosted on Acast. See acast.com/privacy for more information.

This is the story of Bond. Carole Anne Bond. She discovered her husband and her best friend were having an affair. And her friend was pregnant. What Bond did next led to a federal conviction for using chemical weapons and two trips to the Supreme Court. While all the justices agreed Bond’s conviction could not stand, the majority declined to reach the underlying constitutional issue—leaving it to die another day. But three justices disagreed, arguing tomorrow never dies.  Thanks to our guests Amy Howe and Nicholas Quinn Rosenkranz. Follow us on Twitter @ehslattery @anastasia_esq @pacificlegal #DissedPod Hosted on Acast. See acast.com/privacy for more information.

This episode concerns one of the most vociferous dissents of all times: Justice Antonin Scalia's scathing opinion in United States v. Virginia, which was aimed at none other than his close friend and writer of the majority opinion, Justice Ruth Bader Ginsburg. RBG's reaction to Scalia's fiery critique? Gratitude. As she put it, Justice Scalia's dissent was instrumental in sharpening her own opinion. There's a lot to be learned from this case not just about equality before the law, but about searching for common ground when there appears to be none and maintaining a friendship with people who have different views than your own. This episode is not only about the case that brought down single-sex education at the Virginia Military Institute; it's also about the importance of dissent in a society that is less tolerant of opposing viewpoints than ever. Thanks to our guests: Jeffrey Rosen of the National Constitution Center and AEI's Christopher Scalia. Follow us on Twitter: @anastasia_esq@ehslattery @pacificlegal #DissedPod Hosted on Acast. See acast.com/privacy for more information.

In 1952, the Supreme Court smacked down President Truman’s attempt to seize the nation’s steel mills. The dissenters—who happened to be Truman’s poker buddies—would have given the president flexibility to deal with this purported emergency, but the majority issued a swift rebuke. And one justice’s concurrence has continued to shape the way we think about executive power and emergencies to this day.Thanks to our guests John Q. Barrett, Jennifer Mascott, Steve Simpson, and Noel Francisco (aka Justice Jackson).Follow us on Twitter @ehslattery @anastasia_esq @pacificlegal #DissedPodAnd check out more of PLF’s work on emergency powers: https://pacificlegal.org/emergency-powers/ Hosted on Acast. See acast.com/privacy for more information.

Antitrust is making headlines, with figures as diverse as Josh Hawley and Elizabeth Warren seeking to use it as a shiny new tool to rein in big tech. But some of the policies they’re pushing were tried before in the 1960s, and they ended up penalizing perfectly competitive conduct just out of animosity for “big business.” A Supreme Court dissent that paved the way for a consumer-first antitrust standard offers lessons about why we shouldn’t be so eager to return to 1960s anti-trust policy and gives us some insight into why big isn’t always bad.Thanks to our guests Joshua Wright, Ashley Baker, Yaron Brook, and Hannah Cox.Special thanks to Judge Douglas Ginsburg for his dramatic reading.Follow us on Twitter @anastasia_esq @ehslattery @pacificlegal #DissedPod Hosted on Acast. See acast.com/privacy for more information.

In the landmark ruling District of Columbia v. Heller, Justices Antonin Scalia and John Paul Stevens wrote dueling originalist opinions examining the right to keep and bear arms. They both looked to the Second Amendment’s text, history, and tradition to reach … opposite conclusions about its original meaning.Thanks to our guests Paul Clement, David Lat, Clark Neily, and Adam Winkler.Follow us on Twitter @ehslattery @anastasia_esq @pacificlegal #DissedPod Hosted on Acast. See acast.com/privacy for more information.

The idea of “court-packing,”⸺that is, adding seats to the court for political purposes⸺has recently gained steam for the first time in nearly 100 years. The last time we heard about court-packing, President Franklin Delano Roosevelt’s plan to add more justices was supposedly staved off by the infamous “switch in time that saved nine.” As the story goes, Justice Roberts (no, not THAT Roberts) strategically cast his vote in West Coast Hotel v. Parrish in way that subdued popular support for FDR’s proposal. But a closer look into that case reveals that not everything is as it seems, as well as the perils that come with trying to pack the Court.Thanks to our guests Mark Tushnet, Barry Cushman, and Ilya Shapiro, and to singer Jenni Kim-Etimos for her jazzy rendition of our court-packing ballad.Follow us on Twitter @anastasia_esq @ehslattery @pacificlegal #DissedPod Hosted on Acast. See acast.com/privacy for more information.

In 1883, a Supreme Court ruling signaled the end of federal efforts to protect newly freed slaves and ushered in the era of Jim Crow laws. One justice, later called the Great Dissenter, stood alone in dissent. Join us as we explore the once-forgotten dissent of John Marshall Harlan in the Civil Rights Cases and how it saw a rebirth nearly a century later. Thanks to our guests Peter Canellos, Christopher Green, and Melvin Urofsky. Special thanks to Judge Benjamin Beaton for embodying the substance & spirit of Justice Harlan. Follow us on Twitter @ehslattery @anastasia_esq @pacificlegal #DissedPod Hosted on Acast. See acast.com/privacy for more information.

This is the story of the most consequential Supreme Court case in history: Dred Scott v. Sandford. It was a catalyst for Abraham Lincoln’s famous “House Divided” speech, which catapulted him onto the national stage. It led a dissenting justice to resign in protest. And it plunged our nation into its darkest hour—a civil war that nearly tore us apart. Join us as we explore what it means for our country and our Constitution today.Thanks to our guests Jeffrey Rosen, Mark Graber, Earl Maltz, Tim Huebner and voice actors Steven Anderson and David Deerson.Special thanks to Toni Giménez for his rendition of “Yankee Doodle” on banjo https://www.youtube.com/watch?v=SLxJR4-JNuI.Follow us on Twitter @ehslattery @anastasia_esq @pacificlegal #DissedPod Hosted on Acast. See acast.com/privacy for more information.

A license to arrange flowers? Laws mandating higher prices during difficult financial times? Government lawyers defending economic regulations on the basis of possible extraterrestrial activity? Welcome to the wacky world of the constitutional right to earn a living, which since the 1930s has been relegated to the lowest level of protection by the Courts. In this episode, the ladies discuss the origins of the “tiers of scrutiny” that apply depending on whether you’re talking about judicially favored rights, like free speech, or other rights, like the right to earn a living. In a scorching hot dissent from the 1930s, one justice seemed to predict how this lax treatment by the courts would affect entrepreneurship, innovation, and employment today. Thanks to our guests Hadley Arkes, Timothy Sandefur, and Adam Thierer.Follow us on Twitter: @EHSlattery @Anastasia_Esq @PacificLegal #DissedPod Hosted on Acast. See acast.com/privacy for more information.