In Recess #5: "The Ghost of LBJ"

October Term 2017 has been officially gaveled out, and the Justices are all doing exciting things like "teaching" in Europe. But we're not taking the summer off. Instead, we're to give you 2018's first installment of our summer series, "In Recess." In this episode, we start to chip away at our huge backlog of hotline calls, and talk through some interesting religious liberty cases the Court has on its docket—while also providing a brief update about just how much Supreme Court nominee Judge Brett Kavanaugh loves baseball.

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Good Behaviour #7: "Not an Emirate"

Well, one question has been answered: Judge Brett Kavanaugh has been nominated to succeed Justice Anthony Kennedy on the Supreme Court.

But plenty more questions remain: How much did Justice Kennedy have to do with the nomination? Where does Judge Kavanaugh fall on the ideological scale? How did neatly packaged conservative and liberal judicial strategies come to be? And are we actually just re-living the beginning of the 20th century?

The Annual: OT2017 in Review

It’s the second-ever First Mondays annual! Leah* joins an episode devoted to looking back on OT2017, even with so many possibilities for the Court’s future. That includes another round of First Mondays superlatives, and no spoilers, but Justice Kagan didn’t win them all (but did come up in almost every category). After the best and the worst of OT2017, from cases ranging from Sessions v. Dimaya to Ortiz v. United States to Gill v. Whitford to NIFLA v. Becerra to Husted v. A. Philip Randolph Institute (and more!), a brief word about some things to watch for in OT2018.

Special thanks to Matt Farley of Motern Media for yet another perfect song to cap the term.

*Read her tribute, "Justice Kennedy's Counter-Clerks," on SCOTUSblog.

Good Behaviour #6: "The Drift"

We like to think that the Supreme Court is non-political in its decision-making, but the numbers say otherwise. Lee Epstein, Professor at Washington University in St. Louis, joins us to talk about what we learn when we start crunching numbers on Supreme Court decisions. Plus, she explains how data can illustrate where a Supreme Court nominee falls on the ideological scale.

OT2017 #31: "Old Paella"

We made it! OT2017 came to a close last week, but not before dropping quite a few bombshells. We'll discuss what the Supreme Court decided in matters relating to crisis pregnancy centers and free speechpublic sector union dues, and President Trump's travel ban.

Make sure you're subscribed to the show in the podcast app of your choice. This summer we're reviving our Good Behaviour series, paying close attention to the confirmation process for whomever is nominated to fill Justice Kennedy's seat.

OT2017 #29: "Average Joe"

Live from New York, it's First Mondays! Many thanks to Shearman & Sterling for hosting us.

We have some more opinions as the Supreme Court attempts to finish OT2017 on time. First, we'll discuss #KaganStyle in Sveen v. Mellin, along with what the decision means for a certain advocate's win-loss record. We'll also talk about why registering to vote shouldn't be so difficult, what happens when an 8-member Court is equally divided, how to keep things chill at the polls, and which version of the dictionary is the best version.

OT2017 #28: "Stale Cake"

Well, it looks like Masterpiece Cakeshop came in with a bang and out with a whimper. Will Baude, Assistant Professor at the University of Chicago Law School, joins us for a three-mic show to discuss that opinion, along with the results in Hughes and Koons.

This episode of First Mondays is sponsored by The Great Courses Plus. To get a month-long, completely free trial of all the incredible courses and lectures they have to offer, visit

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OT2017 #27: "Girl Scouts and Trick-or-Treaters"

We answer many pressing questions in this week's episode:

  • Is the curtilage legally a part of someone's home?
  • Is it better to be right or to have fun?
  • As a clerk, how badly do you have to mess up to get dunked on in a judicial opinion?
  • What's the correct pronunciation of Skagit?
  • How long has #GorsuchStyle been a thing, really?
  • Speaking of, where's the link to that NY Mag profile on Justice Gorsuch?

And of course, we recap the two opinions and a DIG the Supreme Court handed down last week.

This episode of First Mondays is sponsored by The Great Courses Plus. To get a month-long, completely free trial of all the incredible courses and lectures they have to offer, visit


OT2017 #26: "The Murder Zone"

The pace of Supreme Court opinions continues to be at crawl, but we have two to talk about this week, both written by Justice Gorsuch: Epic Systems Corp v. Lewis and Upper Skagit Indian Tribe v. Lundgren. We'll also recap some new grants for OT2018 and answer a few hotline calls.

This episode of First Mondays is sponsored by The Great Courses Plus. To get a month-long, completely free trial of all the incredible courses and lectures they have to offer, visit


OT2017 #25: "The Way The Chief Loves Mootness"

Supreme Court opinions have been coming down in a slow trickle, but it's enough to quench our thirst. This week, we recap five cases the justices have decided: from sports betting to privacy expectations in rental cars, from shackling criminal defendants to determining effective assistance of counsel. Plus, we return briefly to the 8-member court as Justice Gorsuch sits out on a case about wiretapping.

We'll start it all off looking at some cases that have been granted for next term, and we'll finish by trying to game out who is writing which remaining opinions.

This week, support for First Mondays comes from The Great Courses Plus. To get a month-long, completely free trial of all the incredible courses and lectures they have to offer, visit

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OT2017 #24: "Kudos To Whoever Did This"

This week, we come to you from Bank of America's Legal Round Table conference in Charlotte, North Carolina. After sitting on a panel, we recruited two guest hosts for this episode: Roman Martinez of Latham & Watkins, and Willy Jay of Goodwin Procter.

The Court hasn't given us much to talk about, but fortunately we held a couple of opinions for exactly this reason. We'll get into the results in the patent law cases of Oil States Energy Services v. Greene’s Energy Group and SAS Institute Inc. v. Iancu.

Finally, we'll get a tiny peek into next season of First Mondays by going over some recent grants, including one interesting death penalty case about the method of execution.

Special thanks to our sponsor this week, The Great Courses Plus. To get a month-long, completely free trial of all the incredible courses and lectures they have to offer, visit

OT2017 #23: "After Dark"

The Court finished up its final sitting of OT2017 last week, and the Justices heard argument in several big cases in what is proving to be a hugely consequential Term. We recap oral arguments in the travel ban case, Trump v. Hawaii, as well as the fascinating separation of powers dispute, Lucia v. SEC. We also take a deep dive into Jesner v. Arab Bank, one of the biggest opinions the Court released has released so far this Term.

OT2017 #22 "Cf. Everything"

We're live at the University of Akron School of Law to preview the Court's final—and perhaps its most important—sitting of October Term 2017. Come for our predictions on the Travel Ban case, Trump v. Hawaii. Stay for Ian's rant on interstate egg regulation, Dan's second thoughts on #GorsuchStyle, a radical proposal for habeas reform, and a whole lot more—including a recap of the Court's biggest opinion of the Term so far, Sessions v. Dimaya. We also fill you in on the Court's slightly-less-exciting opinions in United States v. Microsoft and Wilson v. Sellers, discuss some interesting relists, and take some great audience questions—including one by a Volokh Conspirator who made a surprise appearance (listen 'til the end to find out who!).

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OT2017 #21: "Under the Mattress"

We're coming up on the final arguments of OT2017, and we'll get you ready with a preview of the future of online sales tax in South Dakota v. Wayfair. We'll also catch up on grants, orders, and opinions. What's with the Court and qualified immunity cases? Why is Justice Sotomayor fired up in her dissent, and why is Justice Ginsburg the only other liberal justice to back her up? Plus, with the help of a hotline call, we'll talk about what would happen if a majority of justices have to recuse themselves from a case.

And speaking of hotline calls, we got a lot of them! We'll answer your questions and praise your dedicated research skills.

OT2017 #20: "I Am The Split"

The Supreme Court's March sitting goes out like a lamb... if a lamb symbolizes a 9-0 opinion written by Chief Justice Roberts. But first, we're going in like a lion and naming names in the War on Arbitration-- those Biglaw firms that require summer associates to sign arbitration agreements. And as for that lamb of a sitting, we'll talk about what the Chief's opinion in Hall v. Hall means for the definition of "consolidation." And then, it's round two of partisan gerrymandering in Benisek v. Lamone. With some incisive questions from the Chief and Justices Kennedy and Kagan, we might be a little closer to understanding the potential outcomes.

OT2017 #19: "This Classroom Is Not Full"

Live from Yale Law School, it's First Mondays! We're joined by Linda Greenhouse, Joseph Goldstein Lecturer in Law, and Knight Distinguished Journalist in Residence. First, we'll discuss the orders docket-- what does it signal when the three liberal justices join Justice Breyer in a statement about denying a dealth penalty case? Then, we'll address the trickle of opinions that have come out, and speculate about what's holding back the floodwaters. We'll move on to recapping the argument in NIFLA v. Becerra-- the case about abortion and the First Amendment. Is Justice Kennedy right in that justices shouldn't use the internet to supplement the record? Finally, we'll look ahead to next week and preview Hughes v. United States and Benisek v. Lamone. For the latter, we theorize about why the Court is hearing another partisan gerrymandering case when Gill v. Whitford is still pending.

With Court business taken care of, we get some time to talk to Linda about some of her recent writing, including her view of Chief Justice Roberts' search for middle ground, and how she thinks Justice Scalia's legacy is holding up.

And since it's live, we'll close with a few audience questions! Many thanks to Yale Law School for hosting us, and to Linda Greenhouse for joining our discussion.

OT2017 #18: "Legal Faux Pas"

Leah Litman returns to the co-host chair to join Ian for a look ahead at the March sitting. We preview National Institute of Family and Life Advocates v. Becerra, a case at the intersection of abortion and the First Amendment. We'll also talk about Sveen v. Melin, a contracts clause case that will determine what happens to life insurance after divorce.

But before we get into those, we try something new-- flagging a few interesting cert petitions that we'll watch as they make their way through the Court's discussion lists. There are also birthdays and anniversaries to celebrate, as well as some key corrections to issue.

OT2017 #17: "Elephants Rarely Hide in Pajamas"

While the Supreme Court takes a breather between sittings, we delve into the grants, orders, and opinions they've been churning out over the past few weeks. Good news-- at least some of them are interesting! We'll talk about everything from original jurisdiction, to the death penalty, to a detained immigrant's rights, with a lot more in between. Plus, we turn to Danielle D'Onfro for her expertise in one bankruptcy case-- and another case merely pretending to be a bankruptcy case.

We'll close out with a few hotline calls, including one that will speak to your inner poet.