Guns. Ho.

From midterms to music.

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Yes, David and Sarah share their post-election thoughts (including the Trump question), but they also talk some law! From Judge James Ho (the scourge of Yale Law School) nudging SCOTUS to recognize an unenumerated right to make a living, to New York state’s gun laws hitting a wall in court… the takes are a-flowing. But none more shocking than David’s all-time top two songs.

Plus: David ruefully performs a post-mortem to his midterm pre-mortem.

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  1. Avatar photo
    Gibby

    yay i get to defend David French pop culture take!

    Henry Wadsworth Longfellow: Unfairly labeled by moderns as overrated. Still our best poet *says this standing on Walt Whitman's coffee table*

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  3. Avatar photo
    Estoppel Enjoyer

    I’m sorry, but I found Sarah’s comment about the change in SCOTUS selection/auditioning and abolishing the filibuster really strange. My understanding is that there never was a “judicial filibuster era” for SCOTUS. The first ever attempt to filibuster a Supreme Court nominee was Sam Alito. And Alito wasn’t even filibustered. He was confirmed with 58 votes. And before that, even the most controversial SCOTUS nominees only needed 50 votes. Clarence Thomas, for instance, did not need to overcome a 60 vote hurdle, and was confined with only 52. After Alito, Obama’s nominees never even faced the possibility of a filibuster because Dems had 60 seats for Sotomayor and 59 for Kagan. The *only* time an actual filibuster happened for a SCOTUS nominee was Gorsuch, and Dems only backed that effort because of hurt feelings over the Garland saga. And, they all knew it was fake anyway, since McConnell immediately terminated the filibuster once Dems got the votes to filibuster Gorsuch. So… what was this judicial filibuster era, exactly?

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  4. Philip.R.M.Hunt

    The issue of unenumerated rights is an unresolved issue that has been plaguing the country since the founding. The founders fudged a lot of issues that they could not agree on at the time and natural law vs positive law was one. It is one of several issues they punted for later generations to resolve. We should come down clearly that the only enforceable law is positive law and natural law is just a natural (God-given?) moral sense of what the positive law should be.

    I think the best way to deal with the 9th amendment is to treat it as a declaration that the rights enumerated in the Constitution at any particular time is not a final list and that additional, currently unenumerated rights can be enumerated in later amendments. Courts should not enforce unenumerated rights until legislatures or voters make them enumerated. Courts enforcing unenumerated rights is judicial activism and archonocracy.

    Judicial activism can be restrained by judges on finding unenumerated rights that are "deeply rooted in [our] history and tradition." That's better than nothing, but it just means that judges have to work a bit harder to slip their personal policy preferences into law. One can usually cherry pick something from the historical record to provide some justification for nearly anything. It would be better if judges held themselves to a higher standard of proof for "deeply rooted" like "clear and convincing" or "beyond a reasonable doubt." Currently judges seem more use a quantum of "some evidence." Still it would be better if judges just defer the "deeply rooted" analysis to the legislature or the voters and let them decide if an unenumerated right is "deeply rooted" enough to be enumerated and enforced.

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  5. Frederickwf

    I prefer Leonard Cohen’s version. That grizzly voice of his. Legend.
    My favorite Rush song is la villa strangiato. It’s a stunning musical journey.

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    Ben Connelly

    Sorry, Sarah, I think David’s on to something in his musical tastes.

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  7. Avatar photo
    Chris Brooks

    I think "Shumer's strategy" may have the positive impact of teaching republicans that supporting candidates like that is a sure path to losing in the general election. Republicans need to move beyond using voting as a "culture war" virtue signal and make sure they ask the "can this person win" question, and maybe this will help some learn that lesson.

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  8. Grandymitchell

    Never thought I'd write this, but today's AO left me in tears. Hallelujah, I Heard the Bells, Battle Hymn of the Republic, the Lincoln Memorial at night. Heartfelt and touching. Thanks.

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    George.Skinner

    My favorite hymn is “All Things Bright And Beautiful.” To me, it perfectly captures the joy and wonder of Christianity. Christmas carols are their own category, but a special one to me is “The Huron Carol.” Maybe it has something to with the experience of Canadian winters, but it’s a hauntingly beautiful melody and lyrics that put you in the place of a Christian Christmas gathering in a frigid, dark 17th century Quebec winter.

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  10. Phillyex1

    Jonah asked us to report any problems listening to podcasts. I was listening on my iPhone using Apple Podcasts. It cut off with one minute remaining. Please let. E know if you need any additional information.

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