The Plastic Cutlery of Damocles

Fearing that death or disability will remove Justice Stephen Breyer from the Supreme Court when ...

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Fearing that death or disability will remove Justice Stephen Breyer from the Supreme Court when a Republican is in the White House, progressives have begun urging the senior Democratic appointed justice to retire so that Joe Biden can nominate a younger successor while he has a chance. Is Justice Breyer likely to retire anytime soon? David Lat joins today’s show to give us his take. Stick around to hear David Lat and our hosts chat about Biden’s 36-person Supreme Court commission, a new opinion involving California pandemic law, Google v. Oracle, and lawful orders from police officers.

Show Notes:

-David Lat’s Substack:  Original Jurisdiction, and novel: Supreme Ambitions

-David Lat’s posts on Breyer: “Will Justice Breyer Retire? Reading The Clerk Hiring Tea Leaves” and “Confession Of Error: Justice Breyer Is Hired Up For October Term 2021”

–Ritesh Tandon v. Gavin Newsom

–Fraternal Order of Police, Newark Lodge No. 12 v. City of Newark

–Campbell v. Acuff-Rose Music, Inc.

-Orin Kerr’s Twitter thread on lawful orders and Pennsylvania v Mimms

-“A Tale of Two Rap Songs” by David French in The Dispatch

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Comments (31)
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  1. Nathaniel Espino

    The copyright discussion started out with a Christian parody of Hamilton, then shifted to a rap parody of Pretty Woman, then to rap at Christian colleges - but you missed the chance to wrap it all up with a Christian parody of a rap song. Can't decide whether it's cringe or genius. Or both? May I present...Baby Got Book: https://www.youtube.com/watch?v=tTYr3JuueF4

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  2. Anonymous

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      David Olson

      Having said the above, I followed the link Cole provided and I must say the Church's version is quite brilliant. In fact, it is so professionally done that I wonder if they got a license. Even if it's not licensed or fair use, copyright holders do not always sue, so we can hope this stays up.

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  3. Donnie Winningham

    Any chance you guys can get Robby Soave on to talk about the UVA case that he wrote about recently for Reason?

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    Tammydd

    Sarah, please stop saying that California's COVID case rate is higher than Florida's. It is not, according to CDC statistics, anyway. The latest CDC stats show California overall has a COVID case rate of 9,118 per 100,000 while Florida has 9,711 per 100,000. Florida has an overall death rate of 158 per 100,000 and California has a death rate of 149 per 100,000. That might seem like a small difference, but if California's death rate were as high as Florida's several thousand more Californians would be dead. People can (and will) argue for decades about whether California or Florida took the better approach, but don't let the arguments stand in the way of the facts, please.

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    David Chen

    USER QUESTION: We are constantly told that justices should not make law because they are unaccountable and that is not their job. However despite record low approval, congressmen consistently get re-elected, so they are clearly not being held accountable. And despite all the partisan wrangling, it seems like the justices have been pretty consistently smart, capable, if not wise people. And at the end of the day, if we live in this accountability dystopia, wouldn't it be better for ACB to tell me what to do than AOC?

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    Bryan Walters

    https://babylonbee.com/news/am-i-being-detained-shouts-libertarian-toddler-as-hes-carried-off-to-bed

    Just change the word "libertarian" to "1L" in this headline and it would be perfect.

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    Dave

    OK, as the resident non-lawyer fan of The Verve, given the 4-part "fair use" test, how did the Rolling Stones successfully screw over The Verve for "Bittersweet Symphony"???

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    Pat @ Tavi Hall

    I wish you had also mentioned my favorite parody lawsuit song Mattel vs MCA for this little ditty: https://youtu.be/ZyhrYis509A

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  9. KyleGF

    David Lat joins Katie Barlow on the Mount Rushmore of guests. Either (or both of them) for a full podcast in the future would be awesome. (Also, I'd grab my popcorn for a Scott/Sarah podcast!)

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  10. Sharon R

    I’m curious that Ritesh Tandon v Gavin Newsom is always mentioned as being about Christian home Bible study gatherings, yet the first named plaintiff is a well know Hindu activist (he ran against Ro Khanna for Congress in my district). Are Christians assumed to be the only group arguing about covid restrictions?

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