July 16, 2018

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From The Official Website:

Today's episode takes an in-depth historical look at the Eighth Amendment's prohibition on "cruel and unusual punishment" and what that might mean for the future of Obergefell v. Hodges in the next Supreme Court. What does capital punishment have to do with gay marriage? Listen and find out!

We begin, however, with a discussion of the District Court's refusal to modify the Flores settlement we discussed in Episode 184. Find out what the court thinks of Trump's Executive Order to "keep families together" at the border… by indefinitely detaining minors in violation of the law.

After that, it's time for a double-length dive into the history of Eighth Amendment jurisprudence, and in particular, the Supreme Court's decision outlawing capital punishment in 1972 (Furman v. Georgia) and then reversing itself just four years later (Gregg v. Georgia). Is this a blueprint for what the next SCOTUS will do? Listen and find out!

Finally, we end the answer to Thomas Takes The Bar Exam #84 regarding spousal privilege.

Show Notes & Links

  1. We first discussed the President's Executive Order regarding family separation in Episode 184; and you can click [here] to read the District Court's Order refusing to modify the Flores settlement.
  2. The first case we discussed was Pavan v. Smith, 137 S.Ct. 2075 (2017), in which Roberts refused to sign on with the hard-right dissent.
  3. Our two main cases we broke down were Furman v. Georgia, 408 U.S. 238 (1972) and Gregg v. Georgia, 482 U.S. 153 (1976).
  4. Finally, we strongly recommend reading Justice Brennan's 1986 Oliver Wendell Holmes lecture in which he explains his view of the Eighth Amendment.

Law Talkin' Stuff

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






  • [00:00:00] Intro
  • [00:03:00] Breakin' (Down) the Law: The Flores Settlement details
    • [00:05:10] U.S. District Court for the Central District of California's decision
  • [00:10:50] Deep Dive: Obergefell v. Hodges will be overturned
    • [00:13:40] John Roberts
    • [00:20:55] The Supreme Court and capital punishment
    • [00:21:53] Furman v. Georgia
    • [00:23:30] Justice William Brennan per curiam opinion
    • [00:27:50] Gregg v. Georgia
    • [00:30:10] Gerald Ford sidebar
  • [00:31:19] Commercial
    • [00:35:41] Back to Gregg v. Georgia
    • [00:38:40] Way to reaffirm Obergefell
    • [00:40:10] What the 8th Amendment means
    • [00:57:25] Bernese Yodel Mountain Dog
  • [00:58:20] New Patron Tuesday
  • [01:00:12] Thomas Takes the Bar Exam Spousal Privilege (answer)
  • [01:09:11] 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.)

Follow up

  • Episode 193: Clarifies the living status of John Paul Stevens
  • Episode 192: Clarifies whether the Code of Judicial Ethics applies to the Supreme Court