Dissed

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 di...

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 ...

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 un...

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 challeng...

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 li...

In this bonus episode, the ladies tell the sad tale of John Rutledge, the first Supreme Court nominee rejected by the Senate. It’s a cautionary tale that demonstrates why justices should hold their fire for their dissents rather than political speeches.

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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 C...

Supreme Court Justice Clarence Thomas is well known for his heterodox legal views and willingness to stick to his principles. What’s less known is his incredible story. Born dirt poor in the segregated south, Thomas’s work ethic and intellect led him to Yale Law School, then to becoming Chairman of EEOC, then to nomination as federal appellate judge, and finally to confirmation as a Supreme Court Justice. According to Mark Paoletta...

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.

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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 ma...

In this bonus episode, the ladies discuss the most highly anticipated case of the Supreme Court’s term: Dobbs v. Jackson Women’s Center, overruling Roe v. Wade and the right to abortion. The ladies dig into other rulings involving the Second Amendment, a praying football coach, and school choice in Maine. Plus, stay tuned for a double dose of “Name that dissent!”

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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...

In this bonus episode, the ladies discuss an exciting cert grant and the Supreme Court’s recent opinions and dissents related to the Double Jeopardy Clause, bingo, and Indian tribes. Plus, stay tuned for “Name that dissent!”

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Follow us on Twitter: @EHSlattery @Anastasia_Esq @PacificLegal

Send comments, questions, or ideas for future episodes to Dissed@pacific...

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 dis...

In this bonus episode, four guests joined us to make the case for why the Supreme Court should overrule Chevron v. NRDC, Kelo v. City of New London, Wickard v. Filburn, or the Slaughterhouse Cases. Hear the arguments and then YOU decide. Cast your vote in the Twitter poll posted by @CaseyMattox_.

Thanks to our guests Daniel Dew, Ilya Somin, Josh Blackman, and Clark Neily. Follow us on Twitter @ehsla...

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...

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...

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. B...