Smooth Stone in the River
Divided Argument
Will Baude & Dan Epps
4.8 • 766 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
SCOTUSblog: https://www.scotusblog.com/
Divided Argument website: https://www.dividedargument.com/
Divided Argument blog: https://blog.dividedargument.com/
Divided Argument store: https://store.dividedargument.com/
Ethan Lowen's article on interstate extradition: https://wlr.law.wisc.edu/wp-content/uploads/sites/1263/2026/04/4-Lowens-–-Camera-ready.pdf
Transcript
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| 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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