Divided Argument – Details, episodes & analysis

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

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?

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."

Will and Dan try to make sense of the Court’s decisions in the two cases addressing the possibility of preenforcement challenges to Texas’s novel abortion ban.

We’ve been waiting for months to bring you this one: we can finally talk about the President’s Supreme Court Commission, which just finalized its report this week. We also briefly talk about the recent argument in Dobbs and try to predict what the Court might do.

Dan and Will catch up on what the Court's been up to other than dealing with the Texas abortion law, including cert grants addressing the EPA's power to regulate carbon emissions, a couple of summary reversals, and some other shadow-docket action.

Divided Argument is back after an unscheduled, unpredictable break to kick off a brand new season. We dig into this week's oral arguments in two cases involving Texas's abortion law. 

The road show continues as Will and Dan record another live episode at the National Association of Attorneys General's State Solicitors General and Appellate Chiefs Conference in Chicago. They delve deeper into Texas's abortion law and the US's lawsuit seeking to stop it. Then, they have a broader discussion about the role and power of states in Supreme Court litigation. 

Divided Argument is live from the University of Chicago Law School! In our first ever episode in front of a live studio audience, we catch up on recent Court-related developments, such as several Justices' recent public remarks pushing back on Court politicization and the Court's latest foray into whether capital prisoners can have spiritual advisors with them in the execution chamber. 

Will and Dan break down the Court's late-night refusal to block the implementation of Texas's controversial "fetal heartbeat" law, and what it might mean for the future of the Court's abortion jurisprudence.