Opening Arguments

OA1256 - Will there ever be a draft again? Who knows. But if there is, what does one have to do to claim "conscientious objector” status? During the Vietnam War, the Supreme Court grappled with how to apply that explicitly religious statutory exemption to people whose modern beliefs don’t seem to fit the religious mold that Congress defined in the 40s. Jenessa walks us through the court’s mental gymnastics to avoid ever admitting that anyone could be an atheist, and the concurrence that calls it out.
Note: The analysis of the Free Exercise Clause in this episode is specific to the time period of these cases. It got more complicated in the 90s (see sources below).
United States v. Seeger, 380 U.S. 163 (1965).

Welsh v. United States, 398 U.S. 333 (1970).

Military Selective Service Act 50 U.S.C.App. § 456(j)

Roger M. Sanborn, The Anti-War Movement and the Seeger Decision, 6 Santa Clara Lawyer 230 (1965).

Kali Martin, (October 16, 2020), Alternative Service: Conscientious Objectors and Civilian Public Service in World War II, The National WWII Museum.

Albert Q. Maisel, (May 6, 1946), Bedlam: Most US Mental Hospitals are a Shame and a Disgrace, Life Magazine at 102-118.
Reproduction (without the old-timey ads or graphic photos)

Original LIFE publication (CW: Graphic photos of abuse of patients in mental health hospitals)


Quaker FAQ. Friends United Meeting.

Karlo Broussard, What is a ‘Just War’?, Catholic Answers.

Engel v. Vitale, 370 U.S. 421 (1962)

1963: Even facially-neutral generally-applicable laws have to pass strict scrutiny if they burden the free exercise of religion
Sherbert v. Verner, 374 U.S. 398 (1963)


1990: Never mind it’s rational basis
Employment Division v. Smith, 494 U.S. 872 (1990)


1993: Just kidding it’s strict scrutiny again
Religious Freedom Restoration Act (RFRA) 42 U.S.C. § 2000bb


1997: Just kidding that only applies to the federal government
City of Boerne v. Flores, 521 U.S. 507 (1997)


2000: Nope it’s strict scrutiny for state and local government again (well… if it relates to land use or prisons)
Religious Land Use and Institutionalized Persons Act (RLUIPA) 42 U.S.C. § 2000cc


For a summary: Cassandra M. Vogel, An Unveiling: Exploring the Constitutionality of a Ban on Face Coverings in Public Schools, 78 Brook L. Rev. (2013).

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OA1255 - Has the Southern Poverty Law Center really just been indicted for helping to provide information to the FBI? Did the Trump administration really just tell a federal judge that building a White House ballroom was a matter of “national security”? Did the 5th Circuit really just require Texas to display the 10 Commandments in every public school classroom? We take on these questions and many more before getting to our footnote: Did a Rolls-Royce hating bear really just commit insurance fraud in California?
Indictment in U.S. v. Southern Poverty Law Center (filed April 21, 2026)

Trump Administration Finally Discloses White House Ballroom Funding Contract in Response to Public Citizen’s FOIA Lawsuit, Public Citizen (April 22, 2026)

“The Reckoning of Morris Dees and the Southern Poverty Law Center,” Bob Moser, The New Yorker, (March 21, 2019)

Memorandum opinion in National Trust For Historic Preservation in the United States v. National Park Service et al, DC Dist. Ct. (Leon, J., 3/31/26)

Nathan et al v. Alamo Independent School District, No. 25-56095 (5th Cir. April 21, 2026)

“Operation Bear Claw,” California Department of Insurance

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VR29 - Thomas, Lydia, and Matt go deep on the “Shadow Papers,” the 2016 shadow docket memos recently leaked to The New York Times which reveal the truth about the deliberations preceding the first time of many times to come that the Supreme Court stopped the government from enforcing something before any court had a chance to rule on it. Can anyone still possibly believe that John Roberts is only there to call “balls and strikes” after seeing how enthusiastically he is pitching for the energy lobby in these documents? Why are these glorified work emails so important, and what can we learn about the current state of SCOTUS from them?
Watch the episode on YouTube!
Chief Justice John Roberts’s confirmation hearing (Sep. 12, 2005)

“Read the Supreme Court’s Shadow Papers,” The New York Times (April 18, 2026)

West Virginia v. EPA, 597 US ___ (2022)

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OA1254 - An underreported on case called Cox Communications, Inc. v. Sony Music Entertainment could be a much bigger deal than it seems.
Record labels say Cox let repeat infringers run wild on its network and a jury hit them with a massive verdict. Cox says it’s not the internet police and shouldn’t be on the hook for what users do. So how far does that responsibility go? When does “you could have stopped this” turn into legal liability?
We break down the DMCA’s “repeat infringer” rules and why this case isn’t just about piracy. The real question is whether companies can be forced to cut people off or redesign their services to prevent misuse and where that logic stops. If failing to stop wrongdoing makes you liable here, what does that mean for platforms, payment processors, or even industries like gun sales where the argument is also “you should have done more”?
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OA1253 - It’s spring cleaning time in this week’s news, in which we answer patron questions on everything from DOJ lying to a federal judge about ICE’s policy on arresting immigrants in courthouses to DOJ lying about violating court orders. Also: the Trump administration’s unbelievable gift to some of the worst of the worst J6rs, the D.C. Circuit’s inexplicable termination of Judge Boasberg’s contempt proceedings against the administration for violating his orders, and a major ruling in one of the most important deportation cases in US history. We chase these shots of 200-proof reality out with a chaser: Did the 5th Circuit really just legalize bathtub gin?  Find out in today’s boozy footnote!
“DOJ admits ICE courthouse arrests relied on erroneous information,”  Sergio Martinez-Beltran (NPR, 3/26/2026)

Email in which ICE revised its policy to exclude arrests at immigration court, filed March 24, 2026 in the Southern District of New York

Appeals court again blocks Boasberg contempt probe into Alien Enemies Act deportations (Politico, 4/14/2026)

On Petition for Writ of Mandamus, In Re: Trump et al, D.C. Cir (April 14, 2026)

Unopposed Motion to Vacate Convictions and To Remand For Dismissal With Prejudice filed April 14, 2026 

Order in National Trust for Historic Preservation in the United States v. National Park Service, et al. filed April 11, 2026 in the United States Court of Appeals for the District of Columbia Circuit

Fifth Circuit Strikes Down Federal Law Banning Home Alcohol Distilleries (Reason, 4/11/2026)

Decision in McNutt et al. v. United State Department of Justice, Alcohol and Tobacco Trade and Tax Bureau filed April 11, 2026 in the Fifth Circuit Court of Appeals

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