Amarica's Constitution

Your Turn

It’s time for your questions, and having a great audience means there are so many fascinating directions to go.  A Canadian listener tells of how a non-originalist purpose-oriented approach to constitutional law works for them - why not in the US?  We go in a different direction when we consider the wisdom of increasing the size of the House of Representatives.  Still another asks about whether the presidential immunity decision has undermined some fundamental aspects of criminal law, not to mention one of the Court’s greatest moments - the Nixon tapes case.  Keep those questions coming!  CLE credit is available for lawyers and judges from podcast.njsba.com.

The Kennedy Shame and Schumer's Folly - Special Guest Ruth Marcus

RFK Jr. has withdrawn from the race and endorsed Trump. This meeting of an estranged Kennedy and an indicted Trump, is laced not only with strangeness but also constitutional themes, as we explore.  Meanwhile, backlash after the Trump immunity opinion continues, and Senate Majority Leader Schumer has introduced legislation in response.  The great Washington Post columnist, Ruth Marcus, returns to our podcast to comment on this legislation and the many serious implications it would have if adopted, as well as the issues it raises for consideration even if it fails, as it seems likely to do. CLE credit is available from podcast.njsba.com

Circuit of Shame

The United States Court of Appeals for the Fifth Circuit has been overruled by the Supreme Court more often, and more forcefully, than any other circuit during the past term.  Why?  What are the consequences for the judges of the Fifth Circuit, if any?  Is this a problem for our judicial system, and if so, are there any remedies available?  Listeners to Amarica’s Constitution will not be surprised to learn that Professor Amar has some ideas on this topic.  He also grounds the problems and the solutions in history and structure, and lest one think this is a partisan attack on a conservative court, he tells of his past criticism of the then-ultra-liberal ninth circuit for analogous behavior. 

Term Limits Made Workable

Court reform is in the air.  Having presented the problems with the 18 year term proposals before the House and Senate, Professor Amar’s plan deserves its own scrutiny.  We therefore present the plan in detail, explaining the problems that it attempts to solve, the principles it attempts to uphold, and the criticisms it might attract. Since it is a proposal and not yet a statute, it is subject to modification and hopefully improvement, so we invite the audience to chime in with your own critiques and suggestions.  Let’s keep the conversation going.  CLE credit is available from podcast.njsba.com.

How To Get To 18 Years

The 2021 Biden Commission on the Court has now led - with a big “assistance” from the Court itself - to President Biden’s own plan for Court reform. It is sketchy in many ways, but is entirely consistent with Professor Amar’s long-held views on 18 year active terms for Supreme Court justices, though the President’s proposal lacks the detail of that plan. This is unsurprising in a way since Prof. Amar testified before that Commission.  There are other related plans in proposed statutes that lie in committees of the House and Senate.  We consider the features of all, the flaws we have diagnosed, and we also have some commentary on some other aspects of the President’s proposals, including a possible constitutional amendment.  Lots to consider this week!  CLE credit is available for judges and lawyers from podcast.njsba.com.

Stepping Aside and Its Implications

President Biden has stepped aside as a candidate, and as promised, we look at what’s next from a variety of points of view.  Some Republicans, notably the Speaker, are claiming that the President should actually resign or step back under the 25th amendment. What would this mean? Meanwhile, we have a lot more in this early episode, including a reader’s question on Barack Obama; another on Edmund Burke; a preview of an amazing EverScholar program; a preview of Biden’s Supreme Court proposed reform; and more.  CLE credit is available from podcast.njsba.com.

Virtuous Presidents and A Loose Cannon - guest Vikram Amar

Resignations are in the air, and our discussion - recorded before President Biden’s actions - offers surprising resonances in its wake.  Meanwhile, our guest, Professor Vik Amar, provides not just a condemnation of Judge Cannon’s recent dismissal of the Trump documents case, but a refutation of the arguments she made, and a recitation of those crucial points, cases, and reasonings which she ignored.  Plus we finally have the details on the EverScholar announcements we have been teasing; 18 year terms are back in the news; and more.  We will be back, possibly early this week depending on developments, with a special episode on President Biden’s withdrawal from the presidential race. CLE credit is available from podcast.njsba.com.

Resignation Realities and Bullets Dodged (Part 4)

President Biden is hearing calls from many quarters to step down as a candidate.  Donald Trump is shot. Questions of presidential succession and/or resignation abound.  While it may seem these are unique and strange situations which the American republic has never faced, in fact, resignation has been a key American issue for centuries.  Episodes well-known, and others rarely taught, are reviewed on our podcast this week, providing context and counsel for our listeners, and hopefully for the candidates themselves.  The path to Mount Rushmore may take a turn away from the Oval Office, it turns out.  CLE credit is available for lawyers and judges from podcast.njsba.com.

Disgrace

The Court’s opinion in the presidential immunity case Trump v. US, has sunk in. On reflection it is even worse that on first impression, and that is saying something.  But just to condemn the opinion is not enough.  Professor Amar distills the Court’s argument to its essence and explains why it completely collapses under any kind of rigorous scrutiny.  Its abandonment of originalism and of the constitution’s own terms is laid bare. How could the Court go so astray?  We also take a stab at this, and speculate on various forms of rot that it may reveal. CLE credit is available from visiting podcast.njsba.com after listening.

Debate Debacle, and Agency Atrophy

In an exhausting week, the Court released a number of long-awaited cases, and we had a consequential presidential debate. We look at several cases that many believe have profound implications for the administrative state; the opinions in SEC v. Jarkesy, and Loper Bright v. Raimondo clearly have the effect of increasing the role of courts and juries, among other things. We look at the opinions, the underlying themes, and the impact.  Meanwhile, following the debate, questions of presidential succession of several types, and of the vice president, are everywhere; these happen to be areas of Prof. Amar’s expertise, and so we address them. NOTE: The Presidential Immunity case, Trump v. US, came down after we taped this episode; we have some early but important resources for you on this as well.  CLE credit is available from podcast.njsba.com.