Dissed
41 episodes - English - Latest episode: 9 months ago - ★★★★★ - 145 ratingsSupreme Court dissents have it all: brilliant writing, surprising reasoning, shade, puns, and sometimes historic impact. Although they are necessarily written by the "losing" side, they’re still important: they can provide a roadmap for future challenges or persuade other justices. Sometimes they're just cathartic.
In Dissed, attorneys Anastasia Boden and Elizabeth Slattery dig deep into important dissents, both past and present, and reveal the stories behind them.
Twitter: @EHSlattery @Anastasia_Esq @PacificLegal
Email us at [email protected]
Hosted on Acast. See acast.com/privacy for more information.
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Episodes
Lady Justice Isn’t Blind
July 19, 2023 09:00 - 46 minutes - 63.8 MBLady 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 deci...
A Ripsnorting Dissent
April 05, 2023 09:00 - 40 minutes - 55.2 MBThe 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 ...
The Buck Stops with the President
March 08, 2023 10:00 - 38 minutes - 86.9 MBThe 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...
Delegation Running Riot at SCOTUS
February 08, 2023 10:00 - 38 minutes - 88.7 MBA 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...
The Supreme Court and Indian Children
January 04, 2023 10:00 - 40 minutes - 55 MBIn 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 foreshadowe...
Korematsu and the Court of History
December 07, 2022 10:00 - 38 minutes - 52.7 MBIn 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 ruli...
BONUS: Supreme Court Justice – DENIED!
November 23, 2022 10:00 - 16 minutes - 22.5 MBIn 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. Follow us on Twitter @ehslattery @anastasia_esq @pacificlegal #DissedPod Hosted on Acast. See acast.com/privacy for more information.
Total Swine
November 09, 2022 10:00 - 34 minutes - 47.5 MBDairy 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 ...
BONUS: Who is Clarence Thomas?
October 19, 2022 09:00 - 21 minutes - 29.6 MBSupreme 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, co-editor of a recently released book about the justice, Th...
Water, Water Everywhere
September 30, 2022 15:04 - 40 minutes - 55.9 MBWhat 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...
BONUS: A Live Supreme Court Preview
September 26, 2022 14:46 - 44 minutes - 35.8 MBIn this bonus episode, the ladies are joined by two fellow SCOTUS watchers to preview the Supreme Court's new term. Follow us on Twitter: @EHSlattery @Anastasia_Esq @PacificLegal Send comments, questions, or ideas for future episodes to [email protected] Hosted on Acast. See acast.com/privacy for more information.
Six Trials, Seventy-Two Jurors, and One Supreme Court Dissent
July 06, 2022 10:00 - 37 minutes - 50.9 MBIn 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...
BONUS: A Dog's Breakfast
June 30, 2022 10:00 - 38 minutes - 88.9 MBIn 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!” Please subscribe, leave us a review, and share with your friends! Follow us on Twitter: @EHSlattery @Anastasia_Esq @PacificLegal...
Will the Real Tone Dougie Please Stand Down
June 22, 2022 10:00 - 31 minutes - 72.4 MBThis 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...
BONUS: And Bingo Was His Name-o
June 16, 2022 10:00 - 24 minutes - 57 MBIn 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!” 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 [email protected] Hosted on Acast. See acast.com/privacy for more informa...
Thurgood Marshall and the Machinery of Death
June 08, 2022 10:00 - 38 minutes - 53.8 MBIn 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 unde...
BONUS: Which Case Should SCOTUS Overturn?
June 02, 2022 18:35 - 15 minutes - 36.6 MBIn 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 @ehslattery @anastasia_esq @pacificlegal #DissedPod Hosted on Acast. See acast.com/privacy for mo...
License to Mildly Burn
May 25, 2022 09:00 - 37 minutes - 51 MBThis 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 g...
Scalia/Ginsburg
February 02, 2022 11:00 - 58 minutes - 80.7 MBThis 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 ab...
Emergency Powers Kindle Emergencies
January 19, 2022 11:00 - 46 minutes - 63.4 MBIn 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 (ak...
Big Tech, Antitrust, and the Supreme Court
January 05, 2022 11:00 - 50 minutes - 69.4 MBAntitrust 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 an...
We Are All Originalists Now
December 22, 2021 11:00 - 48 minutes - 66.7 MBIn 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/...
Justice Roberts is Hot ‘n Cold
December 08, 2021 11:00 - 51 minutes - 71.3 MBThe 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 FD...
The Great Dissenter
November 24, 2021 11:00 - 55 minutes - 76.3 MBIn 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 su...
BONUS: A Supreme Court Preview
October 08, 2021 15:15 - 29 minutes - 67.9 MBIn this bonus episode, the Political Orphanage's Andrew Heaton joins the ladies to discuss big cases (guns, abortion, and executions, oh my!) coming up in the Supreme Court's new term. Stay tuned for a SUPREME poetry slam. Check out our guest's podcast here: https://mightyheaton.com/dissed. Follow us on Twitter: @EHSlattery @Anastasia_Esq @PacificLegal Send comments, questions, or ideas for future episodes to [email protected] Hosted on Acast. See acast.com/privacy for more inform...
BONUS: Pop the Champagne
June 23, 2021 21:39 - 25 minutes - 59.2 MBIn this bonus episode, the ladies discuss the cursing cheerleader case, Pacific Legal Foundation’s win in a property rights case, and two fractured, mind-boggling separation-of-powers cases. Plus, stay tuned for “Name that dissent!” 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 [email protected] Hosted on Acast. See acast.com/privacy fo...
BONUS: Justice Alito Is On Fire
June 17, 2021 21:33 - 22 minutes - 50.5 MBIn this bonus episode, the ladies discuss the Supreme Court’s recent opinions and dissents related to the Affordable Care Act and a dispute involving Catholic Charities, same-sex couples, and foster care. Plus, stay tuned for “Name that dissent!” 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 [email protected] Hosted on Acast. See acast.com/pr...
Your Obedient Servant, B.R. Curtis
June 16, 2021 11:00 - 56 minutes - 77.4 MBThis 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, T...
The Right to... WERK
June 02, 2021 10:00 - 50 minutes - 69 MBA 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 judicial...
Affirmative Action and the March of Time
May 19, 2021 10:00 - 49 minutes - 114 MBSince 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...
The King Can Do No Wrong
May 05, 2021 10:00 - 44 minutes - 36.2 MB42 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 diss...
BONUS: SCOTUS Crusades
April 30, 2021 10:00 - 24 minutes - 55.1 MBIn this bonus episode, the ladies discuss the Supreme Court’s recent opinions and dissents related to juvenile life sentences, disputes between states, and immigration proceedings. Plus, stay tuned for “Name that dissent!” 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 [email protected] Hosted on Acast. See acast.com/privacy for more informati...
Don't Call It a Comeback
April 21, 2021 10:00 - 43 minutes - 59.5 MBFor 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. W...
BONUS: COVID and Court Packin’
April 16, 2021 10:00 - 23 minutes - 53.6 MBIn the inaugural bonus episode, the ladies discuss the Supreme Court’s latest COVID order and Justice Breyer’s “dissent” on court packing. Plus, stay tuned for “Name that dissent!” 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 [email protected] Hosted on Acast. See acast.com/privacy for more information.
A Regulator Walks Into a Pandemic
April 07, 2021 10:00 - 37 minutes - 51.4 MBAlmost 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 ...
The Last, Lonely Federalist
December 09, 2020 11:00 - 43 minutes - 60.3 MBIn 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...
You're Fired
November 25, 2020 11:00 - 29 minutes - 67.8 MBPresident 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 p...
A Dissent Forgotten by History
November 11, 2020 10:30 - 35 minutes - 49.2 MBWhat 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, ...
Bringing Down Obamacare
October 28, 2020 10:30 - 41 minutes - 56.7 MBThe 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 ...
Scalia, Blackmun, and Religion
October 14, 2020 17:24 - 40 minutes - 55.6 MBThe ladies unpack a ruling from 30 years ago involving religious liberty, a shocking majority opinion, a surprising dissent, and peyote. The decision has been called a travesty, a tragedy, and a sweeping disaster. Will the justices overrule that case—Employment Division v. Smith—this term? And more importantly, will that help or hinder Americans’ freedoms? Tune in to find out. Please subscribe, leave us a review, and share with your friends! Tweet at us @EHSlattery @Anastasia_Esq @P...
Pilot: I respectfully dissent
September 29, 2020 20:35 - 33 minutes - 45.3 MBDissents have it all: brilliant writing, surprising reasoning, shade, puns, and sometimes historic impact. Although they are necessarily written by the "losing" side, they’re still important: they can provide a roadmap for future challenges or persuade other judges. Sometimes they're just cathartic. In our pilot episode, hosts Anastasia Boden and Elizabeth Slattery interview fellow lawyers, judges, and SCOTUS nerds about the importance of dissents. Tweet at us! @EHSlattery @Anastasia_E...