Advisory Opinions is a new podcast from The Dispatch. Hosts David French and Sarah Isgur have a weekly conversation about the law, culture, and why it matters.
Still shocked by the grand polling meltdown of 2016, many Americans on both sides of the aisle are convinced that Biden’s double digit national polling lead is inaccurate and that Trump will somehow win the election in a landslide. This theory has three main hypotheses: 1) Trump is such a uniquely divisive candidate that his supporters lie to pollsters and say they plan to vote for Biden, 2) the likely electorate problem, and 3) Republicans are less likely to talk to pollsters in the first place. Sarah and David break down these theories and explain why they’re overblown given the data we have at this point in the race. Stay tuned for a legal breakdown of the Supreme Court’s latest cert grants related to deer jacking, the hot pursuit doctrine, asylum seekers, and the southern border wall.
-Join The Dispatch for a post-election gathering featuring Congressional leadership, top policy and political experts Nov. 9-10: sign up here!
-Nate Cohn for the New York Times and “Are Silent Trump Voters Real, or Just a Myth?” by Jonah Goldberg in The Dispatch.
That Hunter Biden Story
It’s October 15, 2020, and 12.4 percent of the votes that were cast in the 2016 election have already been cast this election cycle. Sarah and David try to discern through the tea leaves what this means for voter turnout this year. “There’s two different schools of thought here,” Sarah says. “One is that we’re on pace to have record turnout and one is that we’re simply banking Election Day votes early this time.” On today’s episode, our podcast hosts also discuss the journalistic, political, legal implications of the New York Post’s Hunter Biden story before breaking down the key ingredients to a successful marriage.
-Divided We Fall by David French, “Emails reveal how Hunter Biden tried to cash in big on behalf of family with Chinese firm” by Emma Jo-Morris Gabriel Fonrouge in the New York Post, Malwarebytes Inc. v. Enigma Software Group USA, LLC, “Why Only Amy Coney Barrett Gets to Have It All” by Katelyn Beaty in the New York Times.
Supreme Court Fight Kicks Off
The Senate Judiciary Committee kicked off its confirmation hearings for Supreme Court nominee Amy Coney Barrett today with a predictably partisan spin. There were dog whistles from Republicans about religious tests and procedural complaints from Democrats in defense of the Affordable Care Act and against advancing Barrett’s nomination before November 3. But all things considered, the first day of the hearings was relatively uneventful, which may have come as a shock to those who watched the rather lively Brett Kavanaugh hearings in 2018.
Our podcast hosts argue that boredom is a win for the Biden campaign’s Do No Harm strategy, as any sound bite attacking Barrett’s religion or character could depress the Democratic candidate’s current 10-point lead over Trump. David argues that if Democrats want to preserve Biden’s steady lead, they will do everything to avoid even “a single viral moment that puts them in the villain role” during these hearings. Check out our latest episode to hear David and Sarah discuss the Affordable Care Act’s lifespan, partisan judicial elections on the state level, and the Capitol Hill Baptist Church lawsuit.
-FiveThirtyEight’s presidential polling average, and The Sweep: The Witching Hour.
Veeps Make Their Case
Sen. Kamala Harris and Vice President Mike Pence faced off Wednesday evening for their first and only vice presidential debate. But analysis of the candidates’ performance was disrupted by Trump’s announcement Thursday morning that he will not participate in the October 15 virtual debate against Joe Biden. Is the president bluffing? Or is he simply trying to hide his COVID-19 symptoms from the American public? The president has released a series of videos via Twitter this week in which he assures the American public of his recovery. But these videos are produced by the White House, meaning they can do multiple takes and edit out any evidence of the president’s lingering symptoms. “You can’t do that when in a debate,” Sarah points out, reminding us that any of the president’s coughs or bouts of heavy breathing would instantly go viral if caught on-screen. After some punditry about what this means for the Trump campaign’s reelection strategy, tune in for Sarah and David’s thoughts on the forthcoming Amy Coney Barrett Senate confirmation hearings, the strategic ambiguity of Biden’s court packing comments, and the criminal allegations against Texas attorney general Ken Paxton.
-30 day free trial at The Dispatch and Divided We Fall by David French.
Supreme Court oral arguments have resumed via telephone and our podcast hosts are nerding out. The court kicked off today with an interesting denial of cert from the Supreme Court on a case out of Kentucky involving Kim Davis, the county clerk who refused to certify marriage licenses to same-sex couples in 2015 for religious reasons. “This petition provides a stark reminder of the consequences of Obergefell,” Justice Thomas wrote in a statement on Monday joined by Justice Alito. “By choosing to privilege a novel constitutional right over the religious liberty interests explicitly protected in the First Amendment, and by doing so undemocratically, the court has created a problem that only it can fix.” On today’s episode, our podcast hosts discuss the evolution of religious liberty and discrimination law, ongoing election disputes in Wisconsin and Pennsylvania, and the latest updates on the presidential campaign ad wars. Sarah and David wrap things up with a fun constitutional exercise by poking holes in the 25th Amendment and unpacking what happens when presidents die at different points in the cycle.
-30 day free trial at The Dispatch, Divided We Fall by David French, Obergefell v. Hodges, Kim Davis v. David Ermold, “Applications and Implications of the Twenty-Fifth Amendment” by Akhil Reed Amar, “Is the Presidential Succession Law Constitutional?” by Akhil Reed Amar and Vikram David Amar.
Politics of the Supreme Court
How will Amy Coney Barrett shake things up on the bench if she is confirmed by the Senate before November 3? “Amy Coney Barrett will not be as revolutionary as the left fears or the right wishes,” Sarah argues, “Because no justice really is, because it’s one vote.” On today’s episode, David and Sarah address the hysteria surrounding her upcoming Senate confirmation battle while breaking down what a 6-3 conservative majority would mean for the future of Supreme Court jurisprudence. Sarah and David are also joined by Ilya Shapiro—director of the Robert A. Levy Center for Constitutional Studies at the Cato Institute and publisher of the Cato Supreme Court Review—for a conversation about the politics and history of Supreme Court nominations. To a certain degree, politics has always played a role in Supreme Court nominations. What makes this era unique? “What’s different is that you have divergent interpretive theories mapping onto partisan preference at a time when the parties are more ideologically sorted than they’ve been since at least the Civil War,” Shapiro argues. When it comes to divergent legal theories, “every decade provides a new escalation.” Tune in for a conversation about the future of First and Second Amendment jurisprudence, the left’s misconceptions surrounding Roe v. Wade, and the problems associated with public hearings for judicial nominations.
-30 day free trial at The Dispatch, CBS post-debate poll, “Why Amy Coney Barrett Should Not Be On The Supreme Court” by Nathan Robinson in Current Affairs, Chevron doctrine, “Qualified and Absolute Immunity at Common Law” by Scott Keller and Jay Schweikert’s response in Cato.
-Ilya Shapiro’s new book: Supreme Disorder: Judicial Nominations and the Politics of America’s Highest Court and Ted Kennedy tirade against Judge Robert Bork
Customer ReviewsSee All
Interesting topics, very good hosts
Very thoughtful podcast, hosts are knowledgable and always cheerful. (I think doing a podcast on serious subject matter whilst not being overly dry or downbeat is hard to pull off, but this show does)
most recent episode on the 17th amendment, Iowa (I’d wondered too where the non-senior political operatives disappeared to), and a very good discussion about ‘the morning show’ and a difficult subject it covers.
The Essence of the swamp
If you concur that Andrew McCabe didn’t really do anything wrong because, as deputy head of the fbi he couldn’t really be expected to remember ordering the leak of the Clinton investigation to divert criticism from his wife’s being in receipt of several hundred thousand dollars in campaign contributions from a Clinton affiliate, this podcast is for you. If, moreover, you agree that General Flynn was a traitor in the pay of the Turks and the Russians, who lied to the fbi, notwithstanding that the attending agents said he wasn’t lying and there so wasn’t a crime that they had to charge him under the Logan act, this podcast is definitely for you. I’ve heard criticism of French before but have always been reluctant to credit it. Not now. The man is either utterly corrupt or describes corruption with a tone of such acceptance that it makes me fear for the future of the country.