Will Baude & Dan Epps

Divided Argument

A Government , News and Politics podcast

#40 in Government · 🇺🇸 #67 in Government · 🇸🇬

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About the show

An unscheduled, unpredictable Supreme Court podcast. Hosted by Will Baude and Dan Epps. In partnership with SCOTUSblog.

Newest episodes

You Should See the Other Guy

Oct 28, 2026 1 hr 9 min

Divided Argument — S7E1: Summary & HighlightsOne-line summary (Beamly)Season 7 opens with a Court busy not deciding: an Alito recusal, a quorum lost to four book deals, and a stern Purcell per curiam for Missouri. Show notesSeason 7 opens after a long delay, a dead sound mixer, and a host who punched himself in the face, so we start with the things the Court didn't decide. Justice Alito's late recusal from Suncor Energy v. County Commissioners of Boulder County and the four book deals that cost the Court a quorum in BMG Rights Management v. Vetter get us into the recusal rules and the odd machinery of 28 U.S.C. § 2109. Then the Court's fall run of Purcell rulings: the stay denied in U.S. Postal Service v. California, the unusually stern per curiam in People Not Politicians v. Onder that ended Missouri's redistricting saga, and the stay in Scanlan v. Coalition for Open Democracy. We close with the third trip of Department of Homeland Security v. D.V.D. and its oddly open-ended questions presented. Along the way: Dan's new essay on the justices' books, John Marshall's unread biography of Washington, Rehnquist's unpublished novels, and the other Dan Sullivan. Highlights[00:00:22] Opening: the long delay, Will's dead sound mixer, and a water cooler that punched back. [00:03:05] Why some interim-docket rulings land on the opinions page: the words "per curiam," not the length. [00:04:53] Suncor v. Boulder County: Justice Alito's recusal a week before the first argument of the Term, his wife's energy stocks, and the awkwardness of spousal conflicts. [00:09:59] The Chevron v. Plaquemines Parish recusal letter, four days before argument, and the worry that recusal timing tracks whether a vote is needed. [00:11:49] Suncor itself: a jurisdictional puzzle about the finality of a Colorado Supreme Court remand, and a preemption case with nothing clearly on point. [00:18:55] Petitioners' best case is Franchise Tax Board v. Hyatt; Will and Steve Sachs's unread amicus brief on inter...

Shoe of Damocles

Sep 10, 2026 1 hr 19 min

We're back after a break, and the August interim docket handed us two per curiam standing rulings. In Trump v. California, the Court stayed the injunction against the mail-ballot executive order because the states' injuries were too hypothetical, even as the Postal Service's final rule has already been enjoined and is already back at the Court. In National Park Service v. National Trust for Historic Preservation, the Court let the ballroom construction continue because a historic preservationist's aesthetic injury is "mere offense," which leaves us asking why a crocodile counts and the White House doesn't. We work through ripeness, the Purcell principle turned inside out, the standing realignment that may not have realigned after all, and why the Chief dissented. Along the way: the Justices' papers and who really owns them, a philosopher's note on conditionals, a mixed metaphor unmixed, and the difference between teaching from a script and teaching from a cocktail napkin. Highlights[00:00:21] Opening: a scheduled Friday recording is no longer unpredictable; Dan is teaching fed courts out of "Baude et al." (Hart & Wechsler), and Will insists he's only holding it in trust. [00:02:27] Jodi Kantor's NYT story on the justices' papers: Justice Scalia made no plan, Justice Ginsburg's Library of Congress conditions, and whether papers printed on government paper are personal property. [00:08:17] Will's tentative new institutionalist view: release everything after ten years so the justices have to talk to each other in person. [00:11:26] Feedback: Yale philosopher Daniel Greco on conditionals in formal logic vs. spoken English; a listener catches Will retelling the "thriving atrocities practice" story from Season 1. [00:15:27] Two per curiam standing rulings from the August interim docket, 6-3 and 5-4. [00:16:08] Trump v. California: Executive Order 14399's citizenship lists, prosecution priority, and Postal Service rule, plus a lowercase-r republican form of government and...

A Thriving Atrocities Practice

Aug 19, 2026 1 hr 15 min

After following up on Justice Alito's summer interview, the new birthright-citizenship executive orders, and the Court's record-low approval numbers, we devote the episode to Cisco Systems v. Doe, the Falun Gong surveillance case that closes the door Sosa v. Alvarez-Machain left open for new Alien Tort Statute claims. We try to build a theory of the ATS from first principles — Section 9 of the Judiciary Act of 1789, the law of nations, and the Marbois affair — before running through two decades of the Court narrowing the statute. Then we ask what to make of "door closing" as a phenomenon, from Edwards v. Vannoy to Rucho, and whether the Court would really be stuck if the perfect ATS unicorn finally showed up. Along the way: whether Justice Alito is an I-95 or an Amtrak guy, the seven-case October calendar led by Suncor, Rooker anti-Feldmanism, and a Phoenix bar band called the Blackstone Three. Highlights[00:00:21] Opening: 29 episodes makes a record-breaking season, and the secret to sub-4-hour recording sessions [00:02:28] Justice Alito's WSJ interview with James Taranto: "Obviously I'm here for another term," the vultures, and his high school English teacher's psychoanalysis [00:06:27] How Will became a libertarian: Mr. Flannery, Lexis news alerts for "Ayn Rand," and golfer David Duval [00:09:48] Still no action on the mail-in voting applications; a White House ballroom emergency application expected any day [00:11:15] No rehearing petition in Trump v. Barbara — instead, new executive orders probing the decision's edges [00:15:32] The October calendar: only 7 cases, starting with Suncor — "conservative intuitions in search of a constitutional clause" [00:17:04] Mailbag: Rooker anti-Feldmanism via Lance v. Dennis, and Michael Rosman on whether sex-segregated sports are really "equal opportunity" [00:20:32] Gallup has the Court at 33% approval, a record low — the maximally anti-legitimacy strategy [00:22:35] The main event: Cisco Systems v. Doe — an anonymous perso...

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All episodes

You Should See the Other Guy

Oct 28, 2026 1 hr 9 min

Shoe of Damocles

Sep 10, 2026 1 hr 19 min

A Thriving Atrocities Practice

Aug 19, 2026 1 hr 15 min

Very Civilized Orangutans

Aug 12, 2026 1 hr 9 min

We squeeze in one more episode before Will's vacation, tying the single-season record in the process. The mailbag then demands a reckoning on whether Magneto's powers are really limited to ferrous metals, along with the origins of the S tier and the truth-value of conditional predictions. The main event is Hunter v. United States, which holds that a plea bargain's appeal waiver is unenforceable when enforcing it would work a "miscarriage of justice." We try to figure out where that rule could possibly come from — contract law? Rule 11? the supervisory power? procedural common law? — and why an opinion this law-free commanded this much agreement, while the separate writings range from a declaration of war on plea bargaining itself to a hunt for a sounder source of authority. Along the way: a field trip to the shuttered taproom of Ybarra v. Illinois fame, and thanks to the expanding Divided Argument production universe. Highlights [00:00:21] Opening: squeezing in one more before Will's vacation — and tying the single-season episode record. [00:01:42] The only Court news: Trump v. California, the mail-in-voting application, is fully briefed. [00:03:15] Mailbag: "lead is not magnetic." Are Magneto's powers limited to ferrous metals? The comic-book record says no. [00:05:40] Why is S the top tier? Japanese video-game rank screens and contested backronyms. [00:08:09] Parsec retcons in Star Wars, and the art of redeeming past misstatements. [00:09:09] Caleb Rogers on the logic of conditional predictions: "if A, then B" is true whenever not-A. [00:11:08] Thank-yous to the production universe — and the show is now on YouTube. [00:12:06] Jessie Henderson's field trip: the Aurora Tap of Ybarra v. Illinois fame, located and (sadly) shuttered. [00:15:30] The main event: Hunter v. United States — appeal waivers in federal plea bargains. [00:21:30] The wrinkle: a forced-medication condition, and a judge who says "you have a right to appeal" anyway (cf. Class v. United States). [00...

Ice by Magneto

Aug 3, 2026 1 hr 4 min

We're back — maybe getting a little too scheduled — with one opinion on the docket: West Virginia v. B.P.J. and Little v. Hecox, where the Court held that states may limit girls' and women's sports teams to biological sex without violation Equal Protection or Title IX. First, though, Will collects on a two-year-old prediction when the Court grants Jouppi v. Alaska, an Institute for Justice case about a five-figure airplane forfeited over a six-pack of beer. On the main event, we work through how the opinions are written (no pronouns, no "Lindsay"), what the litigants' Title IX concession did to the case, and whether there is any such thing as an as-applied equal protection challenge. Will makes a big-swing prediction about transgender status and heightened scrutiny, and we ask whether the Court's reasoning can be squared with VMI and the anti-stereotyping cases. Along the way: fencepost problems, Magneto's powers, Magic: The Gathering's crossover-IP wars, scrawny men, and Justice Kavanaugh's ode to the championship trophy. Highlights[00:00:21] Opening: continuing the roll, "starting to get a little scheduled," and record-setting season ambitions [00:02:05] Summer interim-docket check-in: a new SG filing on mail-in voting; still no rehearing petition in the birthright-citizenship case [00:03:23] Filing-day counting and the classic fencepost problem [00:04:50] Will doesn't condone violence, Dan; UFC, violent video games, and Dungeons & Dragons [00:07:46] The prediction workflow pays off: Will called the IJ excessive-fines cert push back in May 2024 (Culley) [00:08:05] Cert granted in Jouppi v. Alaska: a 5-figure aircraft forfeited over a 6-pack of beer [00:09:58] Scorecard methodology: easy predictions, Magneto clauses, and a slugging-percentage proposal [00:12:51] Dan's good news: Constitutional Rights in General Private Law, accepted at Harvard Law Review [00:13:32] The main event: West Virginia v. B.P.J. and Little v. Hecox — states can keep transgender athletes of...

The Based Direction

Jul 27, 2026 54 min

We're back from vacation and chipping away at the summer backlog. Before the substance: listeners weigh in on our AI-generated cover art, Claude's new prediction scorecard grades our respective forecasting records, and Justices Kagan and Barrett take the Court's budget request — and some docket-terminology talk — to Congress. Then we spend the rest of the show on T.M. v. University of Maryland Medical System Corporation, in which the Rooker-Feldman doctrine, pronounced dead in the Green Bag two decades ago, proves alive enough to reach state-court judgments still on appeal. We try to figure out what the doctrine actually is, whether § 1257 or § 1331 is doing the work, and why the Court's committed formalists split down the middle. Along the way: insider trading as a University of Chicago virtue, a concurrence that may be playing a long game on federal habeas, and a dissent that's "exactly correct and not the law." Highlights [00:00:21] Opening: back from vacation, episode 26 of the season, chasing the all-time record of 29 [00:01:15] Listener verdict on the AI back-catalog covers — Proximity Mines in the Facility gets its due, and no, we're not commissioning an artist [00:03:33] Will's Kant remarks draw "especially strenuous criticism"; he declines to recant [00:04:38] Claude's prediction scorecard grades the back catalog: Dan 82.4%, Will 71.2% — hedged singles vs. high-variance swings [00:07:06] Are prediction markets just gambling? Kalshi, Manifold, and insider trading as a University of Chicago virtue [00:10:16] Justices Kagan and Barrett testify before the Appropriations Committees: the security budget, life with a detail, and a remembrance of Lindsey Graham [00:14:03] Kagan on the "terminology nightmare" — shadow vs. emergency vs. interim docket — and why the shadow docket "is not currently shadowy" [00:16:14] The main event: T.M. v. University of Maryland Medical System Corporation, a fed-courts-class case if there ever was one [00:17:44] Doctrine origins: Roo...

Norway-Sweden Worshippers

Jul 13, 2026 1 hr 29 min

We picked two immigration decisions from the same day over the transgender-sports case because — Dan’s protests notwithstanding — that’s where the interesting law is. In Mullin v. Doe the Court lets the administration terminate temporary protected status for Haiti and Syria, holding the statute’s no-judicial-review bar swallows the procedural challenges and that the equal-protection claim fails on the merits — with a genuinely odd move: skipping the jurisdictional question the way Steel Co. says you can’t. In Mullin v. Al Otro Lado a fight about asylum-metering collapses onto a single preposition — whether a migrant stopped at the border “arrives in” the United States — and the majority says no. Along the way: brown M&Ms and Van Halen riders, whether Congress can strip review of constitutional claims without turning in a circle and sprinkling salt on the ground, Bolling v. Sharpe as a candidate for the worst decision ever, and why there’s no White Somalia to run a controlled experiment. Highlights[00:00:28] Opening: hype music, and listening to your own podcast to get in the mood [00:01:42] Building a live-show rider with Claude Code, and the Van Halen brown-M&Ms test as a safety checklist [00:03:18] Blogging origin stories — GeoCities, Movable Type, the death of Google Reader, a ransomed domain [00:06:26] Why we date-stamp episodes; the “too many episodes” complaint [00:07:27] Today’s slate: two June 25 immigration decisions, Mullin v. Doe and Mullin v. Al Otro Lado, chosen over the trans-sports case [00:10:37] A digression on the opinion’s broken line spacing on page 1 [00:12:11] Mullin v. Doe setup: TPS, the consultation-and-review procedures, and the “no judicial review of any determination” bar [00:19:07] Does the bar reach the procedures or just the bottom line? The Court says the whole thing [00:24:32] Can Congress strip review of constitutional claims — or must it first “turn in a circle and sprinkle salt on the ground”? [00:25:01] Dan on his and Alan Tramme...

Smart Microwave

Jul 6, 2026 1 hr 25 min

After a quick check on the Nina Totenberg embargo kerfuffle and one more revelation from Justice Thomas's memoir, we devote the episode to Chatrie v. United States, the Court's first major Fourth Amendment decision in years. We trace how the geofence-warrant ruling builds on — and goes beyond — Katz, United States v. Jones, and Carpenter v. United States, and what's left of the third-party doctrine and the mosaic theory. Will explains the positive law model of the Fourth Amendment; Dan tries to claim Justice Gorsuch's separate opinion for his general-law approach. We close with the dissents, the advisory-opinion objection, and whether the Court should be saying more about the Fourth Amendment or less about everything. Along the way: Venmo heroin deals, smart microwaves, whether Will has genuinely forgotten his passcode, and a field-trip assignment for Chicagoland listeners. Highlights [00:00:21] Cold open: three recording sessions in three days, and the theories swirling around the Nina Totenberg screw-up [00:02:04] Justice Alito's embargo story: the press-room idea he liked until he learned they have to let the journalists out of the room [00:03:04] My Grandfather's Son follow-up: Justice Thomas's over-cautious marijuana confession [00:04:35] Cleanup-order watch: GVRs still owed in light of Slaughter, Landor, and B.P.J. [00:04:57] The main event: Chatrie v. United States, the geofence-warrant case — and why a 5-Justice Fourth Amendment majority is a good get for Justice Kagan [00:06:51] What a geofence actually is (there is no fence) and the three-step Google Location History protocol [00:13:52] General warrants, particularity, the University of Chicago backpacks hypo, and Ybarra v. Illinois — with a field-trip assignment to the Aurora Tap House [00:21:09] Three questions — search, reasonableness, exclusion — and the clever cert grant that fenced out the exclusionary rule [00:25:52] The setup: Jones and the two tracks of Fourth Amendment doctrine, step 0 (the third...

Weird Islands

Jul 2, 2026 1 hr 14 min

It's the last opinion day of the term, and the big one landed: Trump v. Barbara, the birthright-citizenship case. We read the majority as the rare easy case and spend most of the episode on why the four dissents each end up somewhere different — and trying to figure out exactly where they actually land. Along the way: a bogus Nina Totenberg story, a Landor GVR that might quietly unsettle a chunk of Spending Clause criminal law, and whether the professors who defended the order deserve the "legal scholarship police." Highlights[00:00:27] The bogus Nina Totenberg wire story that Justice Alito was retiring — "Fake news, Dan." [00:02:03] The Justice Alito / Justice Sotomayor bench-dissent dust-up from the immigration hand-downs [00:03:11] Last opinion day — 3 opinions, 4 cases; NRSC v. FEC and West Virginia v. B.P.J. / Little v. Hecox flagged for later [00:05:27] A significant new grant teed up on possession of semi-automatic rifles (AR-15s) [00:06:43] A GVR in light of Landor in a federal arson case, and the narrow-vs-broad theory of what a GVR means [00:09:34] Whether Landor's narrowing of Sabri could upend a swath of Spending Clause federal criminal law [00:10:58] Why RLUIPA reaches prisoners — Chuck Colson's post-Watergate lobbying (courtesy of a listener, Emma Kaufman) [00:12:55] Trump v. Barbara — Trump loses, but closer than predicted: "Trump beats the spread" [00:15:25] Should professors who defended the order be punished? — "we don't need legal scholarship police" [00:19:58] The majority's walk: common law → Dred Scott → the 14th Amendment → Wong Kim Ark [00:26:21] Wong Kim Ark as linchpin, and whether its "domiciled here" language was doing any work [00:36:48] Justice Kavanaugh concurs in the judgment on the statute, then dispatches the constitutional question breezily [00:42:05] New states, Hawaii, and Living Originalism — when may you add new exceptions? "Weird islands you can't drive to" [00:48:33] The 91-page Justice Thomas dissent, the facial-challenge p...

Always Already

Jul 1, 2026 1 hr 12 min

The big opinions are coming fast and furious as the Term ends. This episode, we take on two related cases from the penultimate opinion drop day: Trump v. Slaughter, which overrules Humphrey's Executor and clears away for-cause protection for the independent agencies, alongside its interim-docket companion Trump v. Cook, where the very same logic somehow spares the Federal Reserve. The big question: if the President can fire an FTC commissioner at will, what actually makes the Fed different — is "history" doing the work, or is the Court just saving the bond markets? Along the way: Heidegger's "always already," whether the metaphor of a living tree is consistent with originalism, a Goldilocks definition of "cause," the Chief leaning on his own unworkable precedents, the Ex parte Young mystery that keeps escaping the Court's grasp, and the first appearance of "the interim docket" in the U.S. Reports. Highlights [00:00:18] The penultimate opinion day — four down, four to go [00:00:50] The last-day pileup, and the McCain-Feingold campaign-finance case still pending [00:03:25] A confession: staircase wit, and the metaphor Will wishes he'd used [00:04:27] The living tree as an originalist — and the petrified-tree rejoinder [00:06:01] The new custom-cover workflow, and what Claude still isn't allowed to write [00:07:00] The day's four opinions: Cook, Slaughter, Chatrie, and Watson v. RNC [00:09:50] Is the Court strategic about opinion timing? A walk back through OT21's last days [00:13:55] Slaughter before Cook: the general rule before the exception [00:15:08] "Humphrey's Executor has always already been overruled" — by way of continental philosophy [00:17:36] Slaughter: the question, Humphrey's Executor, and the road from Morrison v. Olson through Seila Law [00:22:12] Why presidents mostly haven't tested removal — and whether this shifts the equilibrium [00:25:29] Walking the opinion: Roberts for the Court, the Thomas non-join, a Sotomayor (not Kagan) dissent [00:27:30] Th...

Mechanical / Animal

Jun 28, 2026 56 min

We're in triage mode as the Court clears its end-of-term backlog. We run through the week's opinion dump before focusing on two cases that look unrelated but turn on the same question: when may a state rewrite background property law to limit a constitutional right? In Wolford v. Lopez, the Court strikes down Hawaii's rule requiring a property owner's express consent before a firearm may be carried onto otherwise-public premises. Then to Pung v. Isabella County, a takings case asking whether a homeowner whose property is sold for back taxes is owed only the sale proceeds or full fair-market value. Along the way: a theory about a Landor v. Louisiana flip, the week's run of 6-3 conservative wins, and a short detour into the perils of teaching Federal Courts. Key Topics[00:00:00] - Triage mode: recording June 25 amid the end-of-term opinion dump[00:01:29] - What's still outstanding — and the campaign-finance case's standing problem[00:03:56] - The Landor "flip" theory: did Justice Jackson lose the majority to Justice Gorsuch?[00:06:40] - Thursday's decisions: Monsanto v. Durnell (FIFRA), two immigration wins, Wolford v. Lopez[00:08:58] - Counting the week's seven 6-3 conservative wins; the Hemani surprise[00:12:57] - The throughline: when may a state redefine property to evade a constitutional right?[00:18:35] - Wolford v. Lopez: Hawaii's "express consent" gun rule after Bruen[00:20:42] - The Bruen framework — step one vs. step two, and the free-speech analogy[00:26:57] - The change vs. the outlier: uniformity and Hawaii's sensitive-places list[00:30:49] - Alito's historical analogues: poaching laws and the Black Codes[00:33:34] - Jackson's dissent: race, Equal Protection, and how non-mechanical Bruen really is[00:38:59] - Caetano, the Ramos v. Louisiana callback, and Alito on racist origins[00:41:21] - Barrett's concurrence, Kagan's narrower path, and the rejected "spirit of aloha"[00:48:23] - Pung v. Isabella County: tax sales, takings, and "just compensation"[00:51:...

Alcoholic Originalism

Jun 26, 2026 1 hr 2 min

The big opinions are starting to drop, and we're doing our best to keep pace. We first discuss Landor v. Louisiana Department of Corrections, which concerns religious liberty, the scope of Congress's power to create remedies against individuals under the Spending Clause, and whether there's any redress if government officials literally throw your rights into a trash can. We then turn to United States v. Hemani, where the Court found that a federal law barring gun possession by unlawful drug users violated the Second Amendment and revealed that some of the Justices are surprisingly open-minded about marijuana's role in American society. Key Topics[00:07:07] - Landor v. Louisiana Department of Corrections[00:08:02] - The facts of Landor’s case and the prison’s decision to ignore prior religious-hair protections[00:10:52] - RFRA, RLUIPA, and the path from Employment Division v. Smith to modern religious-liberty litigation[00:14:54] - The Spending Clause theory behind federal funding conditions and why the remedy question matters[00:19:54] - The majority’s reasoning: why money-damages suits against officials were held unconstitutional here[00:21:33] - Sabri, the Necessary and Proper Clause, and the debate over third-party liability[00:26:04] - The parade of horribles: transgender sports, vaccines, and other funding-condition hypotheticals[00:33:03] - The constitutional background: “general welfare,” the spending clause, and the comma-versus-semicolon debate[00:38:49] - Why the Court granted the case and whether the facts pushed the legal outcome[00:42:13] - Hemani and the federal statute banning gun possession by unlawful drug users[00:44:05] - Historical analogies, habitual drunkards, and how Bruen and Rahimi are functioning together[00:47:17] - Discussion of the Court’s analogical method and its practical limits in lower courts[00:54:26] - Justice Thomas’s concurrence on jurisdictional hooks after Lopez[00:55:31] - Justice Jackson’s concurrence on Bruen and Justice A...

Watch Snobs

Jun 14, 2026 1 hr 16 min

We open with the usual grab bag—the "foot fault" pun buried in a Justice Thomas opinion, reading Justice Alito's clerk-hiring tea leaves, and a detour into the metaphysics of conditional resignations and whether you can be confirmed to a vacancy that doesn't exist yet. Then to the merits: Keathley v. Buddy Ayers Construction, a 9-0 judicial-estoppel case that lets us ask where the doctrine even came from (Tennessee, 1857, apparently), and Abouammo v. United States, the venue case about a former Twitter employee who fabricated a document while the FBI sat downstairs. The venue talk wanders, happily, into the Yellowstone "zone of death," a C.J. Box thriller, Jim Comey's second career as a novelist, and an extended appraisal of watch brands. Highlights [00:00:53] - Podcast update, SCOTUSblog partnership, and listener reviews [00:01:49] - Justice Thomas's "foot fault" joke [00:03:48] - Sam Bray citation discussion (Aldridge v. Regions Bank) [00:05:02] - Justice Alito retirement speculation and clerk rumors [00:17:23] - Vacation schedule and the upcoming opinion gap [00:21:03] - June 11 merits decisions overview [00:23:17] - Landor and the still-outstanding big case of the term [00:27:49] - Justice Sotomayor's statement respecting denial of cert on ineffective assistance [00:29:53] - Keathley v. Buddy Ayers Construction: bankruptcy and judicial estoppel [00:36:10] - The Fifth Circuit's rule on inadvertence and mistake [00:38:47] - Justice Jackson's majority opinion [00:40:29] - Justice Thomas's concurrence and the history of judicial estoppel [00:48:42] - Justice Sotomayor's concurrence and totality-of-the-circumstances approach [00:52:11] - Abouammo v. United States: Article III venue and criminal prosecution location [00:55:09] - Yellowstone's "zone of death" and vicinage problems [00:59:21] - The fake invoice, FBI investigation, and venue dispute [01:06:33] - Venue, personal jurisdiction, and extraterritorial conduct [01:10:22] - Statutory venue rules and unresolved...

Impregnable Citadel of Technicality

Jun 8, 2026 1 hr 12 min

After puzzling over an interesting follow-up question about Pitchford v. Cain, we unpack a summary vacatur in Whitton v. Dixon. We then spend a while breaking down the latest developments in Allen v. Milligan line, in which we discuss the future of the Purcell principle and whether the Court should be unusually attentive to public appearances in election cases. We finish with Sripetch v. Jarkesy, where the Court rejects a requirement that the SEC prove victims suffered pecuniary loss before seeking disgorgement, with specific attention to the interesting Seventh Amendment question raised in Justice Thomas's concurrence. Key Topics[00:03:23] - Listener question on Pitchford v. Cain, AEDPA, and procedural default[00:08:12] - Whitten v. Dixon: summary vacatur in a capital case and harmless-error review[00:12:44] - Justice Thomas’s dissent and the critique of selective error correction[00:22:46] - Allen v. Milligan / Alabama redistricting and the stay of the lower court injunction[00:27:24] - The Court’s restatement of Milligan and discussion of “colorblind constitution” language[00:32:30] - Purcell, election timing, and whether the doctrine is really about federal court intervention[00:41:20] - Merits and legitimacy concerns in election-law cases[00:53:27] - SEC v. Sripetch and the disgorgement remedy[00:58:42] - Justice Thomas’s concurrence on disgorgement, equity, and the Seventh Amendment[01:03:36] - Broader implications for administrative law and jury-trial rights

Smooth Stone in the River

Jun 1, 2026 1 hr 10 min

The Court has been busy, and we somehow manage to cover a number of developments with unpredictable efficiency. We talk about the Court's latest summary reversal on the "party presentation principle"; Justice Kavanaugh's vindication of his law journal student note in Pitchford v. Cain; Rutherford and Fernandez, two related cases about the intersection of compassionate release and habeas; and the DIG in Hamm v. Smith, a case about capital punishment and intellectual disability. Along the way, we also get into backlash against a certain SCOTUS advocate's TED talk and further Alabama redistricting fallout. Key Topics[00:02:25] - The infamous tweet and TED talk[00:14:56] - Alabama redistricting developments[00:19:07] - Margolin v. National Association of Immigration Judges and the Court’s renewed emphasis on the party presentation principle[00:29:02] - Pitchford v. Cain and Batson[00:35:56] - Justice Kavanaugh’s Yale Law Journal note on Batson procedure and how it connects to the case[00:40:40] - Fernandez v. United States and Rutherford v. United States: compassionate release, retroactivity, and innocence claims[01:03:34] - Hamm v. Smith, the post-argument DIG, and the future of the Atkins rule Relevant LinksSCOTUSblog: https://www.scotusblog.com/ Divided Argument website: https://www.dividedargument.com/ Divided Argument blog: https://blog.dividedargument.com/ Divided Argument store: https://store.dividedargument.com/ Ethan Lowen's article on interstate extradition: https://wlr.law.wisc.edu/wp-content/uploads/sites/1263/2026/04/4-Lowens-–-Camera-ready.pdf

Ninja Court Packing

May 19, 2026 1 hr 8 min

We are joined by guest co-host Professor Pam Karlan at the American Law Institute Annual Meeting for the last live show of season 6. We work through a busy stretch of the interim docket: the Alabama GVR in Allen v. Caster and what Callais has done to Section 2; the denied stay in the Virginia redistricting fight, Scott v. McDougle; and the mifepristone cases, Danco and GenBioPro v. Louisiana, where Thomas rides the Comstock Act alone and Alito takes it personally. Then a turn to executive power and the term's looming merits decisions—birthright citizenship, the Federal Reserve, Humphrey's Executor—before audience questions on state voting rights acts, fixing the single-member-district statute, and whether you can wish yourself more wishes. Key Topics[00:00:11] - Live show introduction at the American Law Institute with guest host Pam Karlan[00:02:30] - Fallout from Louisiana v. Callais and the Alabama redistricting order[00:06:26] - Purcell principle, mid-election rule changes, and discriminatory intent findings[00:17:32] - Virginia’s redistricting amendment case and why the Supreme Court declined to intervene[00:32:41] - Danco Laboratories / GenBioPro and the mifepristone stay[00:39:56] - Justice Thomas, the Comstock Act, and Justice Alito’s dissent[00:47:15] - Big-picture trends in executive power and the Court’s posture toward the administration[01:00:54] - Audience Q&A on Congress, district design, and gerrymandering reform[01:05:47] - The President’s public attacks on the Court and possible effects on future cases

Majordoma

May 7, 2026 1 hr 1 min

The Court’s latest Voting Rights Act decision, Louisiana v. Callais, narrows Section 2 in a way that could reshape redistricting, weaken majority-minority districts, and intensify the fight over how race and partisanship interact in elections. We unpack what the Court said, what it quietly overruled, and why the reasoning matters far beyond Louisiana. We walk through the statutory text, the long-running collision between the Voting Rights Act and the Court’s racial gerrymandering cases, and the practical consequences for future election-law litigation. Along the way, we debate whether this is best understood as a textual decision, a constitutional avoidance move, or a major shift in how the Court treats political power and racial representation. The conversation also covers the Court’s emergency procedural move after judgment, Justice Kagan’s forceful dissent, and the broader question of whether the decision is likely to help one party more than the other in the short run. The result is a sharp, candid look at one of the term’s most consequential rulings Key Topics[00:00:20] - Introduction to the episode and SCOTUS Blog partnership update[00:03:06] - Brief Supreme Court news: mifepristone litigation and shadow-docket timing[00:05:20] - Louisiana v. Callais and why the case is a major Voting Rights Act decision[00:11:35] - Voting Rights Act history: Section 2, Section 5, and Shelby County[00:13:39] - The collision course between racial gerrymandering doctrine and Section 2[00:16:17] - Allen v. Milligan and how the Court shifted course[00:21:21] - Procedural background of the Louisiana map challenge[00:23:02] - Is the decision constitutional, statutory, or both?[00:24:28] - Section 2’s text and the 1982 amendments[00:29:14] - The Court’s reading of “less opportunity” and the role of partisanship[00:41:46] - How the majority treats Allen v. Milligan and prior precedent[00:43:06] - Constitutional avoidance and the Section 5 enforcement-power question[00:46:28] - The Cou...

Even Eve-ier

Apr 29, 2026 1 hr 0 min

A deep dive into the latest Supreme Court news, a couple of unusual shadow docket rulings, and a cross-ideological merits decision that raises classic questions about federal power, preemption, and how much weight lower courts should give to context. We open with reporting on leaked internal Supreme Court memoranda related to the 2016 stay of the Clean Power Plan, including what the documents may reveal, why the leak itself is so unusual, and whether timing and incomplete records change the story. We also discuss Justice Sotomayor’s public apology after comments about Justice Kavanaugh, and what that moment says about judicial professionalism and public exchange. From there, we turn to some shadow docket happenings: a one-line summary reversal in a Texas redistricting case and a Fourth Amendment summary reversal out of the D.C. courts. Finally, we move to the merits docket and consider Hencely v. Fluor Corporation (24-924), a case involving federal contractor preemption and a terrorist attack in Afghanistan, where the Court narrows a (possibly infamous) Scalia opinion. Key Topics [00:05:32] - NYT leak of Supreme Court memoranda on the Clean Power Plan stay[00:10:13] - Whether document leaks are better than source-based leaks[00:21:30] - Justice Sotomayor’s remarks about Justice Kavanaugh and her apology[00:27:27] - Summary reversal in Abbott v. LULAC and Texas redistricting[00:35:18] - D.C. Fourth Amendment summary reversal and reasonable suspicion[00:47:04] - Hencely v. Fluor Corp.: military contractor liability and preemption[00:52:48] - Little v. Barreme, general law, and the limits of contractor immunity

Backup backup backup backup argument

Apr 6, 2026 1 hr 17 min

We recap and reflect on the oral arguments in Trump v. Barbara (the birthright citizenship case) and then analyze the Court's recent decision in Chiles v. Salazar, about the First Amendment limits on Colorado's conversion therapy ban. We also confront the taboo question: Are judicial opinions too long?

Jezebel Shouting

Apr 2, 2026 37 min

We're live at WashU Law's Admitted Students Day! After catching up on some shadow docket activity, we dig into Olivier v. City of Brandon, the Court's unanimous March 2026 decision by Justice Kagan. A Mississippi street preacher pleads no-contest to violating an amphitheater protest-zone ordinance, pays his $304 fine, then sues under §1983 to stop future enforcement — and the Fifth Circuit says the puzzling Heck v. Humphrey rule bars the whole thing. We work through why Heck is stranger than it first appears, what the Court got right in resolving the circuit split, and what the decision reveals about the ongoing mess at the intersection of §1983 and habeas.

A Subversive Mission

Mar 11, 2026 50 min

We announce an exciting new partnership with SCOTUSblog and introduce the show to new listeners. We then return to the mysterious origins of the Chief Justice's "no, no, a thousand times no," debate the Court's new policy designed to maintain secrecy, and then take a close look at Galette v. New Jersey Transit Corporation, a sovereign immunity decision in which the Court may, or may not, have paid attention to Will's amicus brief.

Cruel and Unusual and Stupid

Mar 6, 2026 47 min

It's our live show at the University of Chicago! Hosted by the University of Chicago Federalist Society, we discuss this week's big shadow-docket rulings about gender transitions in California Schools (Mirabelli v. Bonta) and redistricting in New York (Malliotakis v. Williams), and also break down the recent merits decision about the right to counsel when a defendant is testifying (Villareal v. Texas).

Betty Boop or Shakespeare

Feb 21, 2026 1 hr 26 min

With unpredictable timeliness, we have a quasi-emergency episode on the 170-page tariffs decision, Learning Resources, Inc. v. Trump. Come for the in-the-weeds legal analysis, stay for the deep dive into the origins of the phrase "no, no, a thousand times no."

Ayn Rand Graffiti

Feb 4, 2026 57 min

We're back for another live show at the Northwestern Pritzker School of Law, hosted by the Northwestern Federalist Society! We discuss the term's two Second Amendment arguments -- first recapping the oral argument in Wolford v. Lopez, featuring Hawaii's law about getting consent to bear arms on private property; and then previewing the oral argument in United States v. Hemani, about the ban on possession of guns by drug users.

Bok Choy

Jan 22, 2026 47 min

With shocking and uncharacteristic efficiency, we manage to discuss three merits opinions and one orders list dissent in only 47 minutes. Specifically, we revisit Coney Island Auto Parts Unlimited, Inc. v. Burton (time limits for moving to vacate void judgments) and break down Berk v. Choy (an Erie doctrine puzzle), and Ellingburg v. United States (criminal restitution and the Ex Post Facto Clause), while also managing to discuss Justice Jackson's broadside against the Court's practice of "martinization."

Lake Shrimp

Jan 16, 2026 53 min

We didn't get the tariffs decision this week, but we discuss two of the opinions we did get -- Bost v. Illinois Board of Elections, a decision about standing and election law, and Case v. Montana, a rare Fourth Amendment case -- in a remarkably efficient episode (after a brief detour into Grok's jurisprudence and the announcement of a major gift to the Constitutional Law Institute).

The Marshal and the Margarine

Jan 12, 2026 1 hr 18 min

We're back with the first episode of the new year, breaking down the interim docket opinion/order in Trump v. Illinois, the national guard case, after first warming up with new Erie scholarship, state criminal jurisdiction over federal officers, and some recent online discourse.

Non-Cake Physical Object

Dec 19, 2025 1 hr 17 min

We're back to break down a month's worth of shadow docket activity -- three recent summary reversals, plus the stay in the Texas gerrymandering case (Abbott v. LULAC). We also discuss the launch of the SCOTUSblog "interim docket blog."

Counter-Counter-Counter-Designations

Nov 20, 2025 55 min

Will and Dan record a rare live show in an unusual venue: the Salamander Resort in Middleburg, Virginia, at the annual attorney retreat for trial boutique Wilkinson Stekloff. Dan teaches Will some of the new lingo he's learned from the firm's trial experts before a deep dive into civil procedure. First, we dig into the recently argued Coney Island Auto Parts Unlimited v. Burton, which presents a seemingly easy legal question and harder questions about SCOTUS advocacy and ethics. Then we look back at last Term's LabCorp v. Davis, which the Court DIG'd but which raises some fundamental questions about class action litigation that the Court is likely to revisit down the road.

Proximity Mines in the Facility

Nov 15, 2025 1 hr 18 min

After a predictably unpredictable set of detours through Latin grammar, parenting philosophies, and 90s video games, we catch up on the latest shadow (interim?) docket activity and recap the oral argument in the tariffs cases.

Crazy Half-Drunk Unreliable Research Assistant

Oct 31, 2025 1 hr 3 min

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.

Proust or Plato

Oct 3, 2025 52 min

For the season finale, we're joined by Yale law professor Justin Driver to talk about his new book, "The Fall of Affirmative Action: Race, the Supreme Court, and the Future of Higher Education." We discuss the conservative cases for and against affirmative action, the post-SFFA world of university admissions, the promise and limits of colorblindness, and the effects of admissions policies on students' sense of belonging.

Byzantine Wall

Sep 11, 2025 1 hr 16 min

We extend our record-breaking run with a discussion of the Court's two big recent emergency docket rulings: Noem v. Vasquez Perdomo and NIH v. American Public Health Association.

Bedrock Con Law 101

Aug 29, 2025 1 hr 7 min

We're joined by Michigan law professor Richard Primus to talk about his new book, "The Oldest Constitutional Question: Enumerated and Federal Power." Richard describes one of the the most widespread beliefs about constitutional law -- that the federal government is one of limited, enumerated powers -- and why he thinks it is actually wrong. Along the way, we discuss methods of constitutional interpretation, the relationship between the official story of the law and legal practice, and wrestle with the surprisingly hard question of how many congressional powers are listed in the Constitution.

Originalism Hulk

Aug 9, 2025 1 hr 26 min

Continuing our long slog through the end-of-Term opinion dump, it's fraud day! We dig into Kousisis v. United States and Thompson v. United States, two interesting federal criminal law puzzles.

The Country of the Future

Jul 28, 2025 1 hr 30 min

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.

The Thunder Docket

Jul 25, 2025 30 min

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.

Snake-Charmer-Specific

Jul 19, 2025 1 hr 3 min

Moving with shockingly unpredictable efficiency, we respond to feedback, debate which of us is more composting-friendly, catch up on the emergency docket, and chip away at our end-of-Term backlog by digging into Diamond Alternative Energy v. EPA.

Didactic and Inculcatory

Jul 8, 2025 1 hr 29 min

We look at the final orders list before summer break, and then continue to work through last month's opinions, this time with an extended analysis of two decisions about children and culture wars -- Mahmoud v. Taylor (religious objections to LGBTQ+-inclusive books) and Free Speech Coalition v. Paxton (age verification for accessing online pornography).

Schrödinger's Innocence Right

Jul 2, 2025 1 hr 16 min

We talk a bit more about Trump v. CASA, revisit the usage of "general," answer some voicemails, and then turn to Gutierrez v. Saenz, a procedural tangle about whether a death row inmate can sue a state prosecutor over access to DNA testing.

Why Are We Here?

Jun 27, 2025 1 hr 12 min

We celebrate the 100th episode of the podcast with a special cross-over episode with Sarah Isgur at Advisory Opinions! Sarah, Will, and Dan break down today's blockbuster decision in Trump v. CASA, forbidding universal injunctions (and not saying much about birthright citizenship).

Loose Signification

Jun 26, 2025 1 hr 2 min

We're joined by a special guest, Harvard Law Professor Stephen Sachs, to talk about Fuld v. Palestine Liberation Organization. Fuld is last week's big personal jurisdiction case, where the Court upheld federal laws extending jurisdiction to the PLO and PA for antiterrorism lawsuits. The author of several important articles on these issues and an amicus brief in Fuld, Steve gives us his take on the relationship between personal jurisdiction, international law and due process, and helps us evaluate the majority opinion and Justice Thomas's concurrence.

Caesar's Face

Jun 25, 2025 1 hr 4 min

After some feedback and further thoughts on our Skrmetti episode and a shocking revelation about "LabCorp," we circle back to an earlier June opinion about religious distinctions, Catholic Charities Bureau v. Wisconsin Labor & Industry Review Commission. Dan keeps Will up past his bedtime.

Low Horse

Jun 21, 2025 1 hr 13 min

Without much introductory ado, we interrupt Will's vacation to give you a thorough breakdown of United States v. Skrmetti, the trans health care case that is one of the most-watched cases of the term.

Truth and Reconciliation

Jun 7, 2025 57 min

We start out by debating who's responsible for Dan's audio snafus last time before digging into a various odds and ends, such as the Chief Justice's toast at the Supreme Court Historical Society dinner and President Trump's renunciation of Leonard Leo and the Federalist Society. We then try to make sense of the DIG in Labcorp v. Davis and see whether our predictions about Smith & Wesson Brands, Inc. v. Estados Unidos Mexicanos panned out.

Delete This. Call Me.

Jun 2, 2025 1 hr 19 min

With apologies for Dan's horrendous audio quality: we catch up on the latest emergency-docket happenings and debate whether Trump v. Wilcox is a big deal or small potatoes. We also catch up on listener feedback and, for the first time in a long time, play a couple of messages received on our voicemail line (314-649-3790 for anyone else who wants to chime in).

Gorsuch Genie

May 22, 2025 1 hr 6 min

We're joined by NYU law professor Rachel Barkow to talk about her new book Justice Abandoned: How the Supreme Court Ignored the Constitution and Enabled Mass Incarceration. Listen to learn about five (or six) Supreme Court cases that arguably ignored the original meaning of the Constitution to enable our current policing and punishment practices. Along the way, a hypothetical genie offers Professor Barkow a very tough tradeoff.

Friends with Oprah Winfrey

May 20, 2025 49 min

We're back with another unexpectedly short and timely episode, focusing on last Friday's emergency docket decision in AARP v. Trump. We also spend a few minutes on a few other orders: the administration's partial victory in Noem v. National TPS Alliance and a puzzling mass recusal.

A Trees Guy in a Forest Court

May 16, 2025 1 hr 0 min

We reflect on the death of Justice Souter and sort out some loose ends from the last episode. We then dig into the Court's only opinion from Thursday, Barnes v. Felix, which we previewed with friend of the show Orin Kerr back in February at Stanford. Along the way we make a short detour into generative AI and its potential for SCOTUS research. Most importantly, we react to the oral argument in Trump v. Casa, the shadow docket case that's about (or, isn't about?) President Trump's birthright citizenship executive order.

Moot, Wrong, and Irrelevant

Apr 25, 2025 1 hr 9 min

The shadow docket strikes once again! We break down the Court's unusual immigration ruling in AARP v. Trump (no, not that AARP!), and then briefly discuss the much-heralded ERISA case (Cunningham v. Cornell). But first we discuss some blog news, some SCOTUS news, and some SCOTUSblog news.

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Podcast details

Created by: Will Baude & Dan Epps
Status: Active
Latest episode: Oct 28, 2026
Episodes: 140
Release period: Weekly
Avg. episode length: 1 hr 8 min
Explicit: No
Language: English

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