March 19, 2018

Listen to the Episode


From The Official Website:

Way back in Episode 49, Andrew argued that lawyers who claim to follow in the footsteps of Antonin Scalia-style originalism should be disqualified from serving on the U.S. Supreme Court, and that Democrats on the Senate Judiciary Committee need to be challenging Scalia’s acolytes (like Neil Gorsuch) on their underlying philosophy and not just their compassion (or lack thereof).

In this episode, friend of the show David Michael challenges some of the points made by Andrew in the original episode , as well as raises new ones. Along with Thomas, we have a great three-way discussion about U.S. history, the Federalist papers, key cases, the underlying work of Robert Bork, and more. Does Andrew change his mind? Does Thomas? Listen and find out!

After the lengthy interview, we end with the answer to an all-new TTTBE #67 about a gang party where the boss just wanted to “send a message.”

Show Notes & Links

  1. You can listen to our (ahem) original episode on originalism, Episode 49.
  2. Please also check out David Michael’s new podcast, The Quorum!
  3. Here’s a link to the full text of the Federalist Papers.
  4. United States v. Carolene Products, 304 U.S. 144 (1938).
  5. Harmelin v. Michigan, 501 U.S. 957 (1991) is the infamous decision in which Scalia declared that the Eighth Amendment only bars punishments that are both “cruel” and “unusual in the Constitutional sense.”

Law Talkin' Stuff

It's in the Constitution
Law Court Thingies
Magic Law Words






  • [00:00:00] Commercial
  • [00:00:07] Intro
  • [00:03:09] Main Segment: Mock debate with David Michael
    • [00:07:22] Ronald Dworkin and the Bork Nomination
    • [00:10:55] Antonin Scalia Changes the Supreme Court
    • [00:12:10] Originalism and the Mainstream
    • [00:23:44] Is Andrew an Originalist?
    • [00:28:03] Principles Enshrined in the Constitution and Lines Specifically Drawn
  • [00:33:37] Commercial
    • [00:35:37] Originalism and Cherry Picking
    • [00:36:24] Activist Courts Make Lazy Lawmakers
    • [00:42:50] Stablity - Originalism vs Stare decisis
    • [00:48:36] Protecting the Minority
    • [01:02:55] Originalist Nominees in a Post-Bork World
    • [01:12:58] David's New Show: "The Quorum"
  • [01:15:45] New Patron Tuesday
  • [01:17:04] Thomas Takes the Bar Exam: Informant Stabbed at Party by a Gang Leader (answer)
  • [01:25:34] Outro

(The time stamps above are derived from the audio provided on the official website; they may vary from audio without ads that are provided through the patreon feed.)