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Divided Argument

Smooth Stone in the River

Divided Argument

Will Baude & Dan Epps

Politics, Government, Justice, Legal, Supreme Court, News, Law

4.8766 Ratings

🗓️ 1 June 2026

⏱️ 71 minutes

🧾️ Download transcript

Summary

The Court has been busy, and we somehow manage to cover a number of developments with unpredictable efficiency. We talk about the Court's latest summary reversal on the "party presentation principle"; Justice Kavanaugh's vindication of his law journal student note in Pitchford v. Cain; Rutherford and Fernandez, two related cases about the intersection of compassionate release and habeas; and the DIG in Hamm v. Smith, a case about capital punishment and intellectual disability. Along the way, we also get into backlash against a certain SCOTUS advocate's TED talk and further Alabama redistricting fallout.

Key Topics

[00:02:25] - The infamous tweet and TED talk
[00:14:56] - Alabama redistricting developments
[00:19:07] - Margolin v. National Association of Immigration Judges and the Court’s renewed emphasis on the party presentation principle
[00:29:02] - Pitchford v. Cain and Batson
[00:35:56] - Justice Kavanaugh’s Yale Law Journal note on Batson procedure and how it connects to the case
[00:40:40] - Fernandez v. United States and Rutherford v. United States: compassionate release, retroactivity, and innocence claims
[01:03:34] - Hamm v. Smith, the post-argument DIG, and the future of the Atkins rule

Relevant Links

Transcript

Click on a timestamp to play from that location

0:00.0

Oh, yay, oh, yay, oh, yay, oh, yeah.

0:03.4

The judicial power of the United States shall be vested in one Supreme Court.

0:08.0

Unless there is any more question to be able to find an argument in this case.

0:10.9

All persons having business before the Honorable, the Supreme Court of the United States are admonished to give their attention.

0:19.9

Welcome to Divided Argument, an unscheduled, unpredictable, unpredictable Supreme Court podcast.

0:25.0

I'm Will Bode.

0:26.0

And I'm Dan Abt.

0:27.8

So a few things to catch up on, Will.

0:31.7

We are back in the studio after, I believe, a successful live show at the American Law Institute, last live show

0:40.6

for a little while. I think I had a good time there. Got to have drinks after with super

0:47.3

fan of the show, Beth Wilkinson. So that was fun. Did you stick around for more of the

0:52.7

ALI meeting? Yeah, I was there. I was there some of the time. Did you, did you vote on anything or debate anything? There's a whole bunch of business. They have a new head. They have new members, but it happens sort of by a voice vote. So it was not very good. You didn't pick any fights. I did not pick any fights there.

1:13.1

Elsewhere?

1:14.3

Well, you know, you know me, Dan.

1:17.1

No, not really.

1:19.3

You're a man of mystery.

1:21.3

You both pick fights and don't pick fights, right?

1:23.5

You're personally non-confrontational

1:26.1

and friendly to everybody and impossible to rile despite my best efforts.

1:33.1

But then I say things that like Calais might have been right up with the text of the Voting Rights Act and everyone gets mad.

1:37.5

Yeah, I mean, other people get mad, but you're just a smooth stone in the river.

1:50.6

Pick your metaphor. Okay, so let's try to be efficient. You've got to go before terribly long, and so that imposes a constraint. I feel like we've been doing a little

...

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