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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 See for privacy and opt-out 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 See for privacy and opt-out 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 See for privacy and opt-out information.
License to Mildly Burn

License to Mildly Burn


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 See for privacy and opt-out 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 See for privacy and opt-out 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: See for privacy and opt-out 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 See for privacy and opt-out 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 See for privacy and opt-out 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 See for privacy and opt-out information.
The Great Dissenter

The Great Dissenter


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 See for privacy and opt-out 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 us on Twitter @ehslattery @anastasia_esq @pacificlegal #DissedPod See for privacy and opt-out information.
The Right to... WERK

The Right to... WERK


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 See for privacy and opt-out information.
Since the Supreme Court first upheld the constitutionality of affirmative action in college admissions in 1978, the clock has been counting down to a time when it would no longer be necessary. Instead of winding down their use of racial preferences, colleges have doubled down, to the point that one justice called it “affirmative action gone berserk.” From Bakke to Grutter to Fisher and beyond, has the time come for the Supreme Court to embrace a Constitution that “neither knows nor tolerates classes among citizens”? Tune in to find out! Special thanks to guests Roger Clegg and John Yoo. Follow us on Twitter: @EHSlattery @Anastasia_Esq @PacificLegalSend comments, questions, or ideas for future episodes to See for privacy and opt-out information.
42 U.S. Code § 1983, one of our nation’s most important civil rights statutes, offers plaintiffs a way to seek damages against state officials in federal courts. But in Pierson v. Ray, the Supreme Court created a defense under Section 1983, called qualified immunity, even if officials do in fact violate people’s rights. In his dissent, Justice Douglas called the doctrine “a more sophisticated manner of saying ‘The King can do no wrong.’” He was talking about immunity for judges, but his dissent was prescient when it comes to how qualified immunity prevents us from holding police officers accountable today. In this episode, the ladies take listeners through the long, twisted journey of qualified immunity. Over the years it would turn out Justice Douglas was right…. just about the wrong thing.Special thanks to guests Joanna Schwartz and Clark Neily. Follow us on Twitter: @Anastasia_Esq @EHSlattery @PacificLegalSend comments, questions, or ideas for future episodes to See for privacy and opt-out information.
For much of our nation’s history, courts asked whether government physically intruded on property to determine if it violated the Fourth Amendment’s prohibition on unreasonable searches and seizures. The Supreme Court later adopted a standard looking at whether the government violated an individual’s “reasonable expectation of privacy.” But in recent years, the property-based approach has been making a comeback, most recently in Justice Neil Gorsuch’s dissent in Carpenter v. United States. Will the property-based approach knock out the reasonable expectation of privacy test? Tune in to find out! Special thanks to guests Orin Kerr, James, Stern, and Jamil Jaffer.  Follow us on Twitter: @EHSlattery @Anastasia_Esq @PacificLegal Send comments, questions, or ideas for future episodes to See for privacy and opt-out information.
Almost as soon as the government started passing measures to curb the spread of COVID-19, the lawsuits began. Many of them wound up arguing about Jacobson v. Massachusetts, a 1905 Supreme Court decision that said states had the power to impose mandatory smallpox vaccinations. If the government has the power to vaccinate you, surely---regulators argued---it has the power to do things like shutting down businesses. But the existence of another case that term, called Lochner v. New York, calls into question that narrative. What does Jacobson actually have to say about when a regulator walks into a pandemic? Tune in to find out.Please subscribe, leave us a review, and share with your friends!Special thanks to guests David Bernstein, Richard Epstein, and Stephen Vladeck, and Jonny May for his ragtime pop covers.Follow us on Twitter: @EHSlattery @Anastasia_Esq @PacificLegalSend comments, questions, or ideas for future episodes to See for privacy and opt-out information.
In the spring of 1837, Justice Joseph Story was despondent. A new chief justice—the infamous Roger Taney—had just joined the bench. And the Supreme Court decided Charles River Bridge v. Warren Bridge over Story’s dissent. The case signaled a shift from a court that favored strong federal power and robust constitutional protections for property rights, and gave way to the new populist, Jacksonian-influenced view opposing purported monopolies and seeking to invigorate states’ rights. Was Story the “last of the old race of judges”? Tune in to find out!Special thanks to Toni Giménez for letting us use his rendition of “Yankee Doodle” on banjo: Thanks also to our “voice actors” aka fellow PLF attorneys, Damien Schiff and David Deerson, and historians Tim Huebner and Richard Brookhiser.Please subscribe, leave us a review, and share with your friends! Follow us on Twitter: @EHSlattery @Anastasia_Esq @PacificLegal  Send comments, questions, or ideas for future episodes to See for privacy and opt-out information.
You're Fired

You're Fired


President Harry Truman once said, “I thought I was the president, but when it comes to these bureaucrats, I can’t do a damn thing!” In Justice Antonin Scalia’s most famous dissent, Morrison v. Olson, he argued that the President must have the power to remove executive branch officials, and Congress cannot limit that power. But for nearly a century, the Supreme Court has allowed Congress to do just that. This term, the Supreme Court will once again consider limits on the President’s removal power in Collins v. Mnuchin. Does the President have constitutional authority to tell executive officials, “You’re fired”? Tune in to find out!Please subscribe, leave us a review, and share with your friends! Follow us on Twitter: @EHSlattery @Anastasia_Esq @PacificLegal  Send comments, questions, or ideas for future episodes to  See for privacy and opt-out information.
What happens when a Supreme Court justice votes to dissent from a ruling but doesn’t actually write a dissenting opinion? Chief Justice Salmon Chase was too sick to write a dissent in Bradwell v. Illinois, where the majority said the 14th Amendment did not protect a woman’s right to practice law. Could a written dissent by Chase have changed the entire trajectory of history? What would he have said about the Constitution’s protections for women? Did his relationship with his daughter, Kate, influence his views? And would Salmon, Kate, and Myra Bradwell be household names today instead of being forgotten? Tune in to find out. Please subscribe, leave us a review, and share with your friends! Twitter: @EHSlattery @Anastasia_Esq @PacificLegal  Guests: @wbstahr @RandyEBarnett John Oller [] Email us at See for privacy and opt-out information.
The Supreme Court will hear its 7th challenge involving Obamacare this term. We sat down to talk about the first Obamacare case, NFIB v. Sebelius, with Randy Barnett, Todd Gaziano, and Josh Blackman and to look for clues about whether the joint dissent actually began as the majority opinion. And will this newest challenge be the one that brings down the whole law? Tune in to find out!Please subscribe, leave us a review, and share with your friends!  Twitter: @EHSlattery @Anastasia_Esq @PacificLegal Guests @RandyEBarnett @ToddGaziano @JoshMBlackman  Email us at See for privacy and opt-out information.
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