Chapter 1: What is the significance of the Interim Docket in Trump v. Illinois?
The judicial power of the United States shall be vested in one Supreme Court. All persons having business before the Honorable Supreme Court of the United States are admonished to give their attention.
Welcome to Divided Argument, an unscheduled, unpredictable Supreme Court podcast.
I'm Will Bode. And I'm Dan Epps. First episode of the new year, 2026. Here we are. Do you know what that means? Do we wear funny hats? Maybe you do, but it means we are approaching, ever closer, the five-year anniversary of the creation of this show.
Chapter 2: How does state criminal jurisdiction apply to federal officers?
When was our first episode? Do you remember? I was just looking at that. It was May of 2021. May 15th, 2021. That late? I think of it as even older. Like, what do you think it is?
I would have said we started the podcast in 2020. Oh, okay.
Chapter 3: What recent scholarship is discussed regarding Erie and its implications?
No, it was still a pandemic period. It was the long 2020. There are a lot of things that happened in 2021 that I'm convinced must have happened in 2020, because I can't believe that it was still going on.
Yeah, so no, we came in sort of towards the tail end of that term. It was sort of a half season, and we've been going intermittently since then. With some longer breaks. We had the break where people thought the show had ended. If the show ever does end, is that how it's going to end? Just one day? Not with a bang, but with an empty feed.
Chapter 4: What controversies surround the use of the National Guard in Illinois?
It's never going to end. I hope not. Okay. And I think we've already talked about the Interim Docket blog once. Is that right? I believe so. Okay, we've introduced that to people, so go to SCOTUSblog, interim docket blog, to find our insights, such as they are, in a different medium.
We haven't had too much to post about recently because it's been the holidays, and even the 24-7 interim slash emergency slash shadow docket has been a little calmer. A little, although we have some stuff to catch up on. Yes, we have a pre-Christmas major opinion order, opinion relating to orders, whatever you want to call it.
Chapter 5: How does the Supreme Court interpret the term 'regular forces'?
But nothing else that has demanded our immediate attention, I would say. Are people still mad about the title, Interim Docket? I don't know. I haven't, probably, but no one has raised it with me. You know, I've been a little bit more active on social media recently. I had kind of kept it blocked most of the time for some months and decided to, you know, maybe jump back into the fray a little bit.
Got into it with various people and then did a thread a day or two ago, kind of responding to what I perceived to be as kind of snarky subtweeting of me and people like me. What properties do you have that cause people to get mad at you? Apparently the criticism was I am a law professor who is, you know, kind of
not doing enough to criticize hackishness on the right, but I'm interested in sort of policing discourse on the left.
Chapter 6: What role does the Posse Comitatus Act play in this case?
Is that true? Which is something I do sometimes because it's something that frustrates me. In the sense that my view is it makes it harder for folks on the left to point out and criticize hackishness on the right if our side is making kind of unpersuasive, unprincipled, bad arguments themselves.
Mm-hmm.
You know, but not everyone, you know, I think people tend to take a more of a us versus them mentality. So I wrote kind of a, you know, a defense slash apology for, you know, the way I choose to engage with the world and sort of some of it is about how, you know, why. I do the podcast the way that I do.
I mean, you could choose to engage with the court in a much more kind of partisan fashion and just sort of say, you know, it's all falling apart and it's all hackery on the right. And my view is just we should do what we can to kind of hold some center together, some space where we try to reach agreement about legal arguments in their meeting.
Chapter 7: What are the implications of Kavanaugh's concurrence in the judgment?
Because if we lose that completely, I think that's just the end of any possibility of any kind of rule of law. And I think it just makes things worse if, you know, judges on either side feel they are 100% solely speaking to an audience of their co-partisans. That's my view. Not everybody's view. Am I the hack in this story? I don't think so. I think you're like the mirror image hack, right?
Or non-hack or, you know. Yeah. Right?
Chapter 8: How do the dissenting opinions challenge the majority's reasoning?
I mean, you sort of are on the right, but then you sort of, maybe you police a little bit of discourse on the right, or you're kind of contrarian on the right, I'm a little contrarian on the left. Right.
I think it's probably the case that you spend a little bit more time criticizing dominant and principled things on the left than I do, and I'm a little more inclined to ignore them. Although, you know, if they rise to a certain level of prominence, I...
I do. Yeah. I mean, maybe it's just less important, right? I mean, if you're not On the left, I mean, those arguments are not winning right now either way, right? The conservative side is winning generally, both in the legal and political sphere, whereas people on the left do face this choice.
And this is related to this article by Jodi Kantor in December for which I gave comments, which is about the choice of the liberal justices. Do you Who do you speak to in your dissents? Do you do the Kagan thing, play the inside game, try to, you know, produce narrow decisions, limit the damage, try to find consensus?
Or do you do the Justice Jackson thing of, you know, kind of declaring that the house is burning down and directing your efforts kind of outside?
Right.
I think that's a hard question. I think maybe it's better if some people do one and some people do the other. I've chosen one path on that.
Right. I do think, I mean, there are versions of this that are present in the right, too, of course. Like, for the areas where the right is in power, you have these questions like... Now that you have a majority of the Supreme Court, do you continue to apply the principles that you asked the court to apply when you were not in a majority?
Or were those principles only for losers, such that now that you're in charge, textualism is not as important or judicial restraint is not as important or whatnot?
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