Supreme Court oral arguments have resumed via telephone and our podcast hosts are nerding out. The court kicked off today with an interesting denial of cert from the Supreme Court on a case out of Kentucky involving Kim Davis, the county clerk who refused to certify marriage licenses to same-sex couples in 2015 for religious reasons. “This petition provides a stark reminder of the consequences of Obergefell,” Justice Thomas wrote in a statement on Monday joined by Justice Alito. “By choosing to privilege a novel constitutional right over the religious liberty interests explicitly protected in the First Amendment, and by doing so undemocratically, the court has created a problem that only it can fix.” On today’s episode, our podcast hosts discuss the evolution of religious liberty and discrimination law, ongoing election disputes in Wisconsin and Pennsylvania, and the latest updates on the presidential campaign ad wars. Sarah and David wrap things up with a fun constitutional exercise by poking holes in the 25th Amendment and unpacking what happens when presidents die at different points in the cycle.
Show Notes:
-30 day free trial at The Dispatch, Divided We Fall by David French, Obergefell v. Hodges, Kim Davis v. David Ermold, “Applications and Implications of the Twenty-Fifth Amendment” by Akhil Reed Amar, “Is the Presidential Succession Law Constitutional?” by Akhil Reed Amar and Vikram David Amar.
I wish I could be more confident that the Court will carve out religious liberty protections regarding same sex marriage. The overwhelming cultural pressure and the division within the church itself suggest a less felicitous trajectory.
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A quick fun fact. Some prediction sites suggest that there is a real chance throwing the Presidential election due to a 269-269 tie.
Sarah points out that the vote is by state; in other words Alaska gets one vote as does California. Republicans have 26 delegations, Democrats have 22 delegations, with two tied delegations. To become President, one of the three highest electoral college winners must get a “majority” of delegations, not a plurality! 26 is the bare majority of 50 states.
Out of an abundance of caution, or perhaps a dislike of the “Dean” of the House, Alaska’s ornery Don Young, Nancy Pelosi has authorized expenditure on behalf of the Democrat running in Alaska, who has a 20.8% chance of winning per the JHK Presidential forecasts. (Michigan also has a tied delegation and Nancy Pelosi is active in MI-3, Justin Amash’s old district.)
If there is a 269-269 tie, and no one has the 26 state majority, then according to the “so-so” novel, “Three into Five” the incoming Vice President elected by the new Senate would become the “Acting President”, rendering Kamala Harris or Mike Pence as Acting President, a substantial improvement over Donald Trump in my mind.
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