OT2017 #14: "Justice for Stormy"

The Supreme Court's long break is over and we're here to preview some of the most interesting cases from the February sitting. We take a deep dive into Janus v. AFSCME, Lozman v. City of Riviera Beach, Currier v. Virginia, and Ohio v. American Express. We also speculate about who Justice Ginsburg threw some recent shade at, and we wrap things up with some hotline calls. 

OT2017 #13: "Poker Face"

In the bleak midwinter, the Supreme Court gave us three opinions to mull over while we wait for the next argument session. We'll talk about the outcomes-- and how they line up with our predictions-- in District of Columbia v. Wesby and Artis v. District of Columbia. And for good measure, we'll toss in about 30 seconds on National Association of Manufacturers v. Department of Defense.

We'll also talk about the justices' presence at the State of the Union, the advent of #GorsuchStyle, and a redistricting move in Pennsylvania. Plus, we'll clean out our hotline inbox to answer some of your questions.

OT2017 #12: "False Idol"

It's a federal courts feast this week, and the main course is a conversation with Professor Stephen Vladeck of the University of Texas School of Law, who argued for the petitioner in Dalmazzi v. United States. He'll give us the answers to three very important questions:

1) At 6'8" tall, did he crank up the podium in the courtroom before addressing the justices?
2) What is the Golden CAAF award?
3) How on earth do you answer Justice Kennedy's question about one of the most important cases in Supreme Court history?

For appetizers, we'll provide a party platter of the grants that came out immediately after we finished recording last week's episode. And for dessert, we'll dish out a double scoop of hotline calls.

OT2017 #11: "Numbing Effect"

This week, we start with some bad news and some good news. The bad news? The Supreme Court has a mouse problem. The good news? Serial Supreme Court litigant Fane Lozman is on Twitter, and he’s a Friend of the Show. We also have some follow-up about Hargan v. Garza, the case about undocumented minors who want abortions. It turns out this situation is a lot more common than we appreciated, and we talk about why. 

The Court handed down Tharpe v. Sellers last week, a death penalty habeas case with a fairly shocking juror affidavit (to give you a sense: it both uses the n-word and invokes O.J. Simpson). So we’re joined by official First Mondays Habeas Wizard (and part-time host) Leah Litman to break it down and try to answer this question: How does a guy on death row get 72 hours from being executed when he’s got an affidavit from a juror admitting that race played a role in him getting the death penalty? Later, we’ll discuss McCoy v. Louisiana, another death-penalty case, presenting a different unsettling question: Can a lawyer for the defendant admit that he committed the murder, even over the defendant’s express objection? 

In terms of recaps, we talk about Husted v. A. Philip Randolph Institute. Husted is an interesting case about the National Voter Registration Act of 1993, which both requires states to make reasonable efforts to take people off the voting rolls when they’ve moved, and also forbids taking them off because they haven’t voted. Ohio uses non-voting to send people letters asking them to confirm that they haven’t moved; if they don’t reply, and keep not voting, they’re taken off the lists. Legit? Listen and learn. 

But that’s not all! We discuss the Solicitor General’s cert. petition in Trump v. Hawai’i, a.k.a. The Travel Ban case; the unusual pro per amicus argument coming up next week in Dalmazzi v. United States; and more. 

If you’re enjoying the show, don’t forget to follow us on Twitter. We’re @isamuel@danepps, and @LeahLitman—and our beloved producer is @MelodyRowell. You can also check us out on Patreon for exclusive content like bonus episodes, livestreams, and access to the Amici Slack. 

OT2017 #10: "Under the Heat Lamp"

The justices are coming out of their long winter's nap to give us some cases to talk about. We'll start off with some grants, an update on our favorite Floridian Fane Lozman, and some news about Hargan v. Garza, the ultimate hot-button case concerning abortion and immigration. Then, we'll get you ready for Car Day at the Supreme Court.  We'll preview Byrd v. United States and Collins v. Virginia. Both Fourth Amendment cases, both involving vehicle searches, both subject to Official First Mondays Predictions.

This episode is sponsored by Helix Sleep, a company that will build you a custom mattress at a great price that will the best thing you’ve ever slept on. To take Helix Sleep’s 100-day risk-free trial, and to get $50 off, go to http://www.helixsleep.com/firstmondays.

Amici #10 [UNLOCKED]: “Rotten Fruit Juice”

Merry Christmas! This year, we at First Mondays have gotten you all the gift we know you’ve been wishing for most ardently: an unlocked bonus episode that was previously released exclusively to our Patreon backers. This summer, many of the Justices were off “teaching” in Europe where they were, no doubt, drinking some delicious wine. So we sat down with wine expert (and Lecturer in Italian Studies at Berkeley) Dr. Danielle Callegari, for a discussion about the history of wine in America and about the effects of the Court’s decision in Granholm v. Heald on the wine business. (You don’t think we’d omit the jurisdictional hook, do you?)

For more about the “three-tier” system we discuss on this episode, you can check out Dr. Caellgari’s latest blog post. And to learn more about Dr. Callegari and The Cabinet, go to her website or check out her Instagram.

OT2017 #9: "Peak SG"

The exciting December sitting may be over, but we’re still here to let you know what you missed. We catch you up on the oral argument in Masterpiece Cakeshop, everybody’s favorite cake-flavored battle between religious liberty and gay rights. We’ll answer your burning questions: Did Justice Kennedy tip his hand as to which side he’s on? Does Justice Kagan think there’s a constitutional difference between cake artists and makeup artists? Can the Chief Justice figure out a way to let the cake shop win without undermining protections against racial discrimination? Most importantly, does Justice Breyer realize that mole and guacamole aren’t the same thing?

We’re also joined by recurring guest contributor Nina Totenberg of NPR, who tells us what she noticed in the courtroom these past two weeks—and what she talked about with Governor Chris Christie, who was in the audience for Christie v. National Collegiate Athletic Association. And if that’s not enough, we also discuss the ACLU’s response to the Government’s controversial cert. petition in Hargan v. Garza, the heated abortion-plus-undocumented-immigration dispute in which the SG asked the Court to consider imposing sanctions on opposing counsel. And as always, we answer some calls from the Hotline. It’s an action-packed episode worthy of an action-packed sitting of the Court!

OT2017 #8: "Bespoke but Blank"

Is cake speech? It’s time to find out. This week, we preview Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, in which the Court will decide whether a baker may be compelled to make a cake for a same-sex wedding. But before we do, we recap the argument in Carpenter v. United States, the warrantless-location-tracking case, and conclude that the ACLU is in a good position—though not for the reasons in their brief. And we bring you news of the latest incident of mistaken identity at the Supreme Court, Elon Musk’s chance to appear at the podium, and the nature of Congress’ true powers over Indian law (for the Ablavsky piece we mention, go here).

This episode is sponsored by Helix Sleep, a company that will build you a custom mattress at a great price that will the best thing you’ve ever slept on. To take Helix Sleep’s 100-day risk-free trial, and to get $50 off, go to http://www.helixsleep.com/firstmondays.

OT2017 #7: "Keys to a Valet"

It’s finally here: Carpenter v. United States. For months, we’ve been eagerly awaiting the argument in this hugely important case about whether the Fourth Amendment restricts the government’s ability to get location information from cellphone service providers. (Ian has been waiting even longer, as he wrote about the legal issue in his student note nearly a decade ago). To help us think through the issues, we’re joined by leading expert Professor Orin Kerr, who submitted a fascinating amicus brief arguing that the government should win.

But that’s not all! We also discuss Justice Kagan’s surprisingly late recusal in Jennings v. Rodriguez; catch you up on the Court’s latest certiorari grants, all three of which raise interesting First Amendment issues; provide some backstory on a particularly colorful litigant in one of those cases who is taking his second trip to the Supreme Court; praise the Court’s newly implemented electronic filing system; preview the January Calendar; and give you the latest developments in the Supreme Court in the litigation challenging the President’s newest entry ban. It’s an action-packed episode that kicks off the action-packed December sitting.

This episode is sponsored by Helix Sleep, a company that will build you a custom mattress at a great price that will the best thing you’ve ever slept on. To take Helix Sleep’s 100-day risk-free trial, and to get $50 off, go to http://www.helixsleep.com/firstmondays.

OT2017 #6: "Year of Munsingwear"

The November sitting might be finished, but we’re still going. Ian returns to recap last week’s arguments with Dan. But first, there’s the matter of a very unusual certiorari petition that the Department of Justice filed in a hot-button case that involves both abortion and undocumented immigrants. Even more exciting, we review the first opinions of the still young Term. We then stumble blindly through the argument recap in Merit Management Group v. FTI Consulting without the help of our bankruptcy expert. We also recap the argument in the fascinating separation-of-powers case Patchak v. Zinke, learning along the way that Chief Justice Roberts does occasionally have use for law professors. As always, we offer our fearless First Mondays forecasts.

First Mondays is brought to you this week by Ironclad—our favorite software suite for corporate legal teams, which streamlines contract creation, signing, and tracking. Check them out at https://ironcladapp.com/.

OT2017 #5: "Oglethorpe's Second Cousin"

We’re halfway through the November sitting, and and while the Court didn’t grant any new cases last week, it gave us plenty of other things to talk about. Topics of discussion: Why does Chief Justice Roberts think one of his predecessors is underrated due to his corpulence? How can the Supreme Court bar increase the representation of women in oral arguments? And what forms of body art are most appropriate for honoring the Justices?

We also recap last week’s arguments in Wilson v. Sellers and Artis v. District of Columbia, revisiting—and defending—our earlier predictions. And then we preview this week’s argument in Patchak v. Zinke, and debate why the Court cares about the separation-of-powers issue in the case. Finally, stay tuned through the hotline calls to hear about Leah’s battlefield promotion. 

First Mondays is brought to you this week by Ironclad—our favorite software suite for corporate legal teams, which streamlines contract creation, signing, and tracking. Check them out at https://ironcladapp.com/.

OT2017 #4: "Wind, Diabetes, & Voluntary Retirements"

For the first-ever First Mondays live show, we traveled to the University of Michigan—go Blue—and are joined by alumna Leah Litman. From Ann Arbor, we ring in the November sitting. But before we do, we discuss the important stuff: expensive sandwichesfactual errors by the Supreme Court, and the travel ban. We then take a deep dive into a couple of cases from the first week of the November sitting: Artis v. District of Columbia, a fun case about time limits (trust us), and Wilson v. Sellers, about … well, it’s complicated. We’ve also got some great hotline calls from the Firsties, at least one of whom is probably sober.

OT2017 #3: "Nowheresville" (ft. Nina Totenberg)

The October sitting has ended—and we’re here to wrap it up for you. On this episode, we begin by discussing the biggest news of the month: our new microphones, brought to you courtesy of our Patreon supporters. We also break down the December argument calendar (warrantless location tracking, cake-as-speech, federalism, and gambling) as well as the Court’s long-awaited disposition of the travel-ban case.

We’re also joined this week by Nina Totenberg, who talked with us about how the first month looked from her (very nice) seat in the courtroom. Justice Gorsuch’s manner at oral argument: discussed. The reaction of the “reasonable party-goer” to marijuana: discussed. The extent to which the background of the Court’s members creates a pro- or anti-“corporate” tilt: also discussed.

Last week, the Court heard oral argument in Jesner v. Arab Bank, PLC, a major case about human-rights litigation and the Alien Tort Statute, and we discuss how the argument went in some detail. The Court also heard argument in a case about the extent to which a time limit in a rule of appellate procedure is jurisdictional, and (ever on-brand) we discuss that case in nearly equal detail. Finally, we wrap things up with some listener hotline calls, including the whether and what liberals put on their steak.

First Mondays is brought to you this week by Ironclad—our favorite software suite for corporate legal teams, which streamlines contract creation, signing, and tracking. Check them out at https://ironcladapp.com/.

OT2017 #2: "Who is the River Master?"

The Court is one week into the new Term, and we’re here to catch you up. We recap last week’s arguments, including the major partisan gerrymandering case,  Gill v. Whitford.  Wisconsin Solicitor General Misha Tseytlin, who argued the case for the State, joins us as a guest to help walk us through what went down at the argument—and to help us figure out what the Justices might be thinking. We also discuss whether Justice Gorsuch tipped his hand in either of the reargued immigration cases, Jennings v. Rodriguez and Sessions v. Dimaya; and what the law of contracts can tell us about the plea-bargaining case Class v. United States. We also briefly preview this week’s arguments, including Jesner v. Arab Bank, an important case about the scope of the Alien Tort Statute. 

And, of course, we try to solve a lot of mysteries, too. Who is the mysterious River Master, and how can you become one? Why were all the Justices but one recused from a case on the orders list? What the heck is going on with the new Supreme Court transcriptionist? Why does the Solicitor General’s Office have an award named after Orestes “Minnie” Miñoso? And are the Firsties drunk-dialing the First Mondays Hotline? 

This episode is sponsored by Ironclad, a software solution that streamlines contract creation processes, such as redlining and signature collection. For more information or to request a demo, visit https://www.ironcladapp.com/.

OT2017 #1: "A Very Nice Office"

It's the first Monday of the Supreme Court's October Term 2017, and the first episode of the second season of First Mondays. We'll catch up on SCOTUS news, sift through the grants that came out of the long conference, and preview some of the cases to be argued this coming week.

In other words: we're back.

This episode is sponsored by Warby Parker, which offers boutique-quality eyewear at a revolutionary price point. To get five pairs of glasses to try on at home for free, go to http://www.warbyparker.com/firstmondays.

In Recess #4: "Stone Soup"

We’re just three weeks from the start of a blockbuster new Term at the Court, but don’t let that fool you: the Conference remains largely inert, essentially daring us to produce an episode with the scraps they’ve handed us. Challenge accepted. This week, we discuss (3:00) the release of the November calendar, as well as the common-law right to wear a costume on Halloween at oral argument. We also dive deep (8:45) on summer grants, what they are, and how they work, as well as (12:15) the Court’s summer grant in Murphy v. Smith, a case about attorney’s fees in prisoners' civil rights cases. We also talk about (15:00) the Ninth Circuit’s latest ruling in the travel-ban case, Hawaii v. Trump—or “Hawai’i,” as at least one of us says. From there, we argue a little bit (22:00) about Justice Gorsuch addressing a classically named D.C. junket, hosted at a hotel that really ruined one of our lunch hour, as well as (30:30) the amicus brief filed by Senators McCain and Whitehouse in Gill v. Whitford, the major partisan-gerrymandering case that’ll be argued in the October sitting.

Most importantly, we're joined this week (36:00) by Willy Jay, the co-chair of Goodwin’s Appellate Litigation Practice, who was in a previous life one of the few Assistants to the Solicitor General who could convincingly endure the existence of the Bristow Fellows. We talked with him (42:00) about the need for, and drawbacks of, specialization for a private lawyer building a Supreme Court practice; the internal structure of the Solicitor General’s office (45:00); the business case for appellate practices generally (53:00); and the nature of the Supreme Court’s IP docket, and how it has come to suit appellate generalists (56:45).

If you’re enjoying First Mondays, you can get every episode automatically by subscribing (for free!) in your favorite podcast client. And if you understandably can’t get enough, backers on Patreon get access to bonus episodes, as well as access to the Amici chatroom on Slack.

Amici Teaser: "Rotten Fruit Juice"

We’re still about a month away from the kick-off of OT2017, and the Court has been pretty quiet. But we’ve been hard at working making some bonus episodes for our Patreon subscribers. First, we talked a little longer to John Elwood, who you heard a couple of weeks ago in the episode "Third Class Webelo." Turns out, he’s kind of a big deal. Then, this week, we got out of the law school and into the vineyard with professional wine consultant Danielle Callegari. They’re both great conversations, and they’ll help tide you over until Court is in session. Become a subscriber at patreon.com/firstmondays. It’s just five bucks a month, and you’ll get to hear all the rest of the bonus episodes we’ve made. Thanks for listening, and stay firstie.
 

In Recess #3: "Third Class Webelo"

While Ian is off on a boat somewhere, or maybe in the wilderness of Croatia (we're not super sure), Dan and Leah get up to speed on a surprisingly busy summer week at the Supreme Court. In additions to some briefs showing up, one case got the DIG treatment. And it's a bankruptcy case, so we bring in resident bankruptcy expert Danielle D'Onfro to make it understandable for the rest of us. Then, we have an interview with the great John Elwood, partner in Vinson & Elkins' Appellate practice group, and creator of SCOTUSblog's Relist Watch

In Recess #2: "#BadLawyerGate"

To celebrate our new partnership with SCOTUSblog, we're unlocking one of our favorite bonus episodes for everyone to enjoy.

We talk about the problem of unprepared counsel refusing to give up Supreme Court oral arguments to more experienced attorneys. We discuss why the problem exists, the ethical conundrums it creates, and what, if anything, can be done to fix it. By far the best part of the episode, though, is an interview with legendary Supreme Court practitioner Lisa Blatt, who at the time of recording was sitting on an unbelievable 32-2 record in the Supreme Court, and who has since then improved to an even more mind-boggling 33-2.  Lisa explains her unorthodox argument preparation techniques, helps us understand why she’s been such a consistent winner, and offers her thoughts on the problem of unprepared oral advocates. We had a great discussion, and you won’t want to miss it. 

To listen to the rest of our bonus episodes, visit patreon.com/firstmondays. Five bucks a month gets you access to all the ones we've put out so far, and all the ones we have coming up. 

In Recess #1: "Crushing Negs"

The Supreme Court maybe now be in recess for the summer, but there's still lots going on. In our universe, we're pumped for a new partnership with everyone's favorite Supreme Court website, SCOTUSblog. Not to be confused with the Supreme Court's actual website, which got a much-anticipated makeover sometime after we recorded this episode. We catch you up on the latest happenings in the big travel ban case—as well as what RBG had to say about it. Plus, the October argument calendar was released, and those two weeks alone are already more interesting than all of OT2016 combined (sorry, OT2016 clerks!). Finally, we had a great conversation with Kannon Shanmugam, SCOTUS advocate extraordinaire and head of Williams & Connolly's Supreme Court and Appellate Litigation practice, who talked to us about being on the winning end of Justice Gorsuch's first majority opinion and more. 

If you want to hear more from Kannon, the latest Patreon bonus episode is an extended interview with him. Subscribe for just $5/month and find out which opinion by Justice Scalia Kannon has framed on his wall, hear Kannon's thoughts on amici coordination and ghostwriting briefs in opposition, and learn how he prepares for oral argument. Plus get the whole back catalog of bonus episodes, too.