Listen to what's coming up on this season of Dissenting Opinions
Will Baude: Welcome to Dissenting Opinions, a podcast by the Constitutional Law Institute at the University of Chicago Law School. I'm your host, William Baude, and each episode we'll have top legal minds discuss a Supreme Court case they believe is misunderstood. Here's what's coming up this season of Dissenting Opinions:
Will Baude: Yeah, so you mentioned campaign finance. There's a slogan that many people, Justice Stevens among them, would have in the campaign finance area where he'd say, "Money is not speech. Congress could regulate money, so as long as they're regulating money, it's okay. That doesn't count as a speech regulation." I take it you disagree. You think money is speech.
Genevieve Lakier: I don't think money is speech, and I'm going to make so many enemies with this podcast, but that's okay. I believe in vigorous debate. Money is not speech, but money facilitates speech.
Will Baude: And so, and I'm playing a little bit of a devil's advocate here, but so if Jeremy Bentham and Justice Scalia thought that courts made law, why were they wrong?
Stephen Sachs: So if you're Anna Wintour, and you put some new style on the cover of Vogue, people can say in some sense that you have made it the fashion. And certainly, in a system with vertical precedent, it's certainly true that lower court judges have to assume that whatever the higher court judges said is correct. And so in that sense, there is a way in which the higher courts was supplying law. But it's not necessarily the case that they recognized any authority for the judges just declare what new law was, in the same way that we don't think Anna Wintour has some legislative authority to declare what's going to be in for next season. She can certainly try. She can try to make fetch happen, but whether fetch happens or not is up to other people.
Will Baude: With special episodes of a deep dive into originalism.
Will Baude: Last time we talked about arguments for originalism, at least bringing us up to 2013 before we get into the latest turn. And now you're going to tell me about arguments, all the reasons we to be skeptical of originalism. I think in the same spirit as last time, I'm going to try not to fight back against every ... I'm not going to try to convince you, because I'm not going to succeed, or why these all fail. Or even our audience, but I'm going to try to explain as candidly and carefully as I can why originalists are not moved by these arguments that I suspect they've heard 20 times before. Unless you hit me with one I've never heard of before and I convert on the spot, which I don't rule out.
Adam Chilton: Wouldn't that be the day?
Will Baude: Be sure to hit subscribe and follow us on Twitter, @UChicagoConLaw.