A whole lot can happen when law professors are supplied with podcast equipment—especially when they delve into concepts that are not easy to understand, the political climate is tense, and they know the podcasts will likely be downloaded by tens of thousands of people, including students of all ages and backgrounds.
In 2021, Law School professors debuted two successful legal podcasts that offered students, scholars, and the broader public opportunities to think about complicated legal issues and make their own informed decisions. Professor William Baude, a leading scholar of constitutional law and interpretation, launched Dissenting Opinions to create a space for respectful debate on difficult topics and to showcase longstanding constitutional issues in a new way. Clinical Professor Claudia Flores and Professor Tom Ginsburg, leading experts in human rights law, teamed up to create Entitled, a seven-episode podcast that examined in depth the complexity of legal rights, including those of immigrants, women, nature, speech, and guns.
Both podcasts launched during the pandemic, at a time of great political polarization—and each showcased the civil discourse and critical thinking for which the Law School is known.
“I wanted Dissenting Opinions to be a platform to interview top legal minds who could offer unconventional interpretations of US Supreme Court cases,” said Baude. “I also wanted to create content that was not otherwise out there. At first, I was surprised where some of the conversations led, but then I realized that we’d uncovered interesting possibilities that did not line up with traditional partisan lines.”
Flores, who directs the Law School’s Global Human Rights Clinic, and Ginsburg, a world-renowned scholar of comparative and international law, had a similar experience.
“Tom and I had been talking about doing a podcast for a while and wanted to build a space where we could talk with other experts from all over the world and make the conversations accessible to everybody,” Flores said. “The United States has gone through a really tumultuous time in the last five or six years. We knew the same bumpy dynamics were happening in other countries and thought it was really important to showcase that conversations around rights are universal.”
What all three faculty members discovered was that the process of recording a podcast can be a great opportunity not only to share knowledge with the broader public but to hone their own viewpoints.
From Listener to Host
Baude, the faculty director of the Law School’s Constitutional Law Institute, toyed with the idea of creating a podcast for a few years. He had ideas he wanted to explore with others, and he sometimes did so as a guest on other people’s podcasts. He loved listening to legal podcasts, so much so that he sometimes found himself completely absorbed by the topic.
“When I’m washing dishes, I usually listen to something,” Baude said. “The hazard is when I stop what I’m doing to argue with the podcast speaker. If you’re in the middle of cleaning and you find yourself running to your computer to write an email to the hosts, that’s not at all conducive to housework.”
But launching a podcast isn’t the same as writing an email to a host or appearing as a guest; Baude knew he needed a unique idea. He found it during the pandemic lockdown, when he was launching the Constitutional Law Institute and looking for ways to connect with people.
He spent all fall quarter of 2020 researching podcast names, microphones, and how to record, edit, and upload to various podcast platforms. He also kept a running list of guests he wanted to interview, and he thought about the right way to approach the subject matter. Baude knew he did not want to create a solely political podcast.
“I wondered if there was a new way to think about constitutional interpretation that nobody else was talking about,” Baude said.
He decided to build a podcast of one-off episodes, each offering different ways of looking at seminal Supreme Court opinions. The central premise was to invite scholars with either criticisms of a generally canonical opinion or a defense of an opinion that’s generally maligned. He came up with a list of people from all over the political spectrum and recorded eight of these episodes for the first season.
Sprinkled within this framework, Baude dropped in another standalone segment: a seven-episode series about originalism that he created with Professor Adam Chilton called “Deep Dive.” In addition, a second podcast series looked at—in real time—opinions the US Supreme Court was handing down. Recorded with Dan Epps, a friend who is also a nationally recognized expert on the Supreme Court. The Divided Argument podcast was more sporadic. The “Deep Dive” subseries was recorded in front of a live Zoom audience and the eight primary Dissenting Opinions episodes were recorded virtually. For Divided Argument, Baude and Epps recorded two special live shows in-person, one on campus in front of a student audience and one at the conference for the National Association of Attorneys General.
In one primary Dissenting Opinions episode, Baude carefully unpacked Katzenbach v. Morgan with David Strauss, the Gerald Ratner Distinguished Service Professor of Law and an expert on constitutional law and interpretation. Katzenbach, decided in 1966, determined the constitutionality of part of the Voting Rights Act of
1965 and is best known as having struck down the English-language literacy tests that had been used to disenfranchise voters. What Baude and Strauss highlight is Strauss’s contention that Katzenbach, an example of judicial deference to Congressional authority, upends the idea that the Warren Court’s animating principle was judicial activism.
In another episode, Baude and Professor Genevieve Lakier discuss Virginia State Board v. Virginia Consumer Council, a high court case that held that commercial advertising is protected by the First Amendment.
Lakier loves the decision, which on its face worries critics who think that by broadening the First Amendment to include purely commercial speech, the Court potentially demeaned the amendment’s core duty of protecting political speech. Lakier disagrees that expanding rights to commercial speech dilutes the First Amendment’s protection of political speech.
“Money is not speech but it facilitates speech,” Lakier said. “Things like campaign finance raise all sorts of First Amendment issues, but the thing to focus on is not the commercial/noncommercial distinction.”
Lakier went on to say on the podcast that a positive thing Virginia State Board did was provide a hint of how the First Amendment does not necessarily require a laissez-faire approach to regulation.
“Step one of the case says that commercial speech is protected, but the case also makes clear that the government can still prohibit false and misleading advertising,” Lakier said. “It can also mandate disclosure if there is a chance the seller is going to confuse the listener.”
On both the Strauss and Lakier episodes, Baude and his peers sometimes agreed and sometimes didn’t, but talking through their differences was, in large part, the point.
“I try to listen to other viewpoints. It’s one of the reasons being a law professor is an interesting job. It would be really boring if it were just me telling people what I think all the time,” Baude said. “Genevieve and David are both deep and independent thinkers, which was exactly what I was glad we were able to get on the mic.”
Respecting other viewpoints extends into Baude’s personal life. Baude and Chilton are work colleagues and come from opposite sides of the political spectrum. They are also great friends outside of work and text just about every other day about thorny legal concepts.
In seven episodes of “Deep Dive,” the two deconstructed the theory behind originalism in painstaking detail. The episodes, which were recorded in front of a live student audience over Zoom, featured Baude and Chilton talking about the major tenets of originalism and the arguments against it. “Deep Dive” episodes were designed to delve into areas of law that have both detractors and adopters. In this case, Baude argued in favor of originalism. Chilton expressed his skepticism, but remained grounded in the sincere desire to understand Baude’s perspective.
“Before Will was fully set on the whole podcast adventure, we talked about how to explore originalism together,” Chilton said. “I’m a skeptic but was hoping I could use the podcast to try to understand the best case for originalism and force Will to teach me the arguments.”
Their differences were an animating feature of their podcast discussions—and a chance to showcase respectful disagreement.
“Methodologically, Will’s scholarship includes doctrinal work and historical work. He is conservative, an originalist, and focuses on public law. I’m liberal, not an originalist, not particularly interested in the Supreme Court. I do empirical research,” Chilton said. “But Will and I like talking to each other, and the podcast helped us find the best arguments on each side. We knew we would both learn from each other and that recording in front of a live student audience could model political discourse in a respectful way.”
Both said there were times when they found themselves slipping into argumentative mode and had to thoughtfully stop. In the end, they each said they learned a great deal from the other.
“There are tons of places you can go to hear people debating originalism and other things,” Baude said. “It was very important to me and Adam to keep our podcast discussions from becoming a debate. We felt it was important to say, ‘We don’t agree and we’re not going to agree by the end about things, but the goal is not to score points.’”
Chilton found the first episode the most interesting. It was also the one in which Baude made originalism more clear to him.
“In the first episode, Will laid out three arguments for why jurists should be originalists. He was concrete and clear about what originalists think,” Chilton said. “I think many law students and lawyers think that there’s a legal or doctrinal requirement to be an originalist. Will’s arguments in favor of originalism were much more consequentialist. It’s not that we have no choice but to be an originalist. What Will uncovered for me is that adhering to originalism might lead to various good outcomes.”
Chilton concluded that whether the outcomes are good is a contestable empirical question, which he noted is very different than saying we have to adopt a particular method of constitutional interpretation because we have no choice morally, ethically, or legally.
Chilton, for his part, managed to convince Baude that the idea of originalism has become politicized.
“The idea wasn’t new to me, but hearing Adam repeatedly argue that the Court’s decisions seemed bound up with conservative ideology really stuck with me,” Baude said. “Adam’s disagreement wasn’t just a point made by an opponent trying to win a debate—these were opinions held by a friend and colleague I respected, a person of good faith who was not trying to politicize everything. He saw a problem that was really sticking with him.”
Chilton, however, didn’t lead Baude to think that politicization was inevitable or unsolvable. The discussion instead made him think that politicization was a much bigger problem than he thought before they did the podcast. The podcast also helped him think about the best ways to teach students about polarizing topics like originalism.
“As lawyers, we have to deal with important questions,” Baude said. “Some of [the questions] make us really uncomfortable, but we have to ask them. So we just do it. We get all the arguments on the table. It is really important to understand the arguments, even if you disagree with them.”
“What’s the Matter with Rights?”
Unlike Baude’s podcast, where participants assert and examine their dissenting views, in Entitled, Flores and Ginsburg take apart the concept of rights. The episodes are essentially back-and-forth conversations about what rights are and why balancing rights is problematic. The two wanted to demystify what rights mean in a way that was understandable to many different audiences, including nonlawyers.
Flores and Ginsburg recorded parts of the podcast together, in an office in the Law School basement, using special podcast equipment and training they’d received from the University of Chicago’s Podcast Network. However, all of their guest interviews were done virtually, in part, because of COVID but also because some of the interviewees lived abroad.
In the first episode, “What’s the Matter with Rights?,” Flores and Ginsburg interviewed a philosopher, as well as colleagues and students about what they think rights are in order to understand why certain rights rise to the level of enforceable legal rights and others don’t.
“We wanted to get at what different countries and thinkers consider to be rights and what they don’t consider to be rights,” Ginsburg said. “[Laws are] just ideas, if you think about it, but of course some ideas have more impact than others.”
Flores agreed that law is a human construct.
“There are people who think rights come from some higher power, and others think laws are written by man or people. That makes a difference,” Flores said. “If you think they come from a god, then you think there is a predetermined set of rights and you don’t really have any control over them. There’s an entire tradition of humanism, on the other hand, that says, ‘Humans have rights by virtue of being humans.’ They are invested with some kind of entitlement.”
But as the first episode uncovers, what rights are enforceable is dependent on where one lives. Different constitutions enshrine different kinds of rights. Some speak to basic rights like food and shelter while others speak more to civil and political rights.
“The US tradition focuses more on civil and political rights than on basic needs,” Ginsburg said. “Of course, that is changing. We are now having a national conversation about what interests are so important that everyone should be entitled to have them protected.”
Flores and Ginsburg knew that a podcast about rights would be relevant to the social justice debates happening around the world and decided the time was right to launch a podcast. Flores, like Baude, is a big listener of podcasts and was the main driver behind using a podcast as a platform. Flores and Ginsburg, longtime colleagues and friends, had talked about combining forces for a while.
They also knew the podcast could not become their full-time jobs given their teaching and writing responsibilities, so they enlisted the help the University’s Podcast Network. The podcast’s producer—a nonlawyer—gave feedback that Flores and Ginsburg found invaluable because the intended audience for Entitled goes beyond legal scholars. Figuring out how to have conversations in a way that would resonate with most people was a major challenge.
“Partnering with producers who were not lawyers was really helpful,” Flores said. “Tom and I had to learn how to ‘dewonkify’ conversations that we were having. We would sometimes present ideas like we would have in a law school class. We thought our conversations were accessible and then the podcast producers would say, ‘Someone’s going to listen to this, and they will have no idea what you’re talking about.’”
Ginsburg said he hoped to give listeners the tools and information to decide for themselves how to think about rights.
“We wanted to provide the novel perspectives from scholars from different countries, but a major goal of ours was to mostly ask questions to help listeners come up with their own conclusions,” Ginsburg said.
The mood the two professors create during an episode is almost playful. There is a chemistry between them that makes clear they are intrigued about how various rights operate. They also don’t always see eye to eye. Their opinions align in many legal areas, but they acknowledge that they each have different ideas about how to achieve certain outcomes, such as equality
“I’ve done a lot of immigrants’ rights and gender equality work,” Flores said. “In my practice as a lawyer and an academic, I tend to be more in favor of uprooting systems and requiring and demanding reform. Tom is probably a little more careful about those things and reluctant because he’s thinking about the stability of the system.”
Both Flores and Ginsburg hope that their different perspectives about how to effect change end up challenging people in ways that are useful. They are interested in each other’s opinions and in exploring with other experts how complex the application of rights is.
“We have our own perspectives and come at issues differently, but there is also a lot of mutual respect,” Flores said. “I’m always really interested in hearing his perspective and find it really enlightening.”
Flores and Ginsburg were driven by the idea that while most people agree that rights matter, the conversations about rights are often heated. They want Entitled to be a platform for presenting questions to help listeners make informed opinions or to at least have an informed set of questions.
“We’re in a moment where debates around rights and how to achieve them are contentious and complicated,” Flores said. “Podcasts are a good way for people to learn about things that they don’t know very much about. Entitled has given us space to talk to people in various fields to try to frame issues so that more of us can understand how complicated rights are.”
What Is Next?
In the second season of Entitled, Ginsburg and Flores will wrestle with equality, something they both wanted to explore in depth and over the course of an entire season. They are still deciding what episodes will make up the second season, but the podcast will likely explore socioeconomic equality, ethnic equality, gender equality, and transnational equality, to name a few.
“The first season was about major concepts and issues in rights discussions,” Ginsburg said. “This season we will look at—from a human rights perspective—what global equality looks like outside US borders. We will ask things like whether it is okay that some countries are rich and some are poor.”
As he describes it, equality comes in various guises.
“Obviously we tend to think about social categories like race and gender, but we should also think in terms of caste and disability,” Ginsburg said. “We might also think of inequality across generations. Issues of justice cut across generations, with climate change, as one example. We’ve been thinking a lot about that.”
The second season of Dissenting Opinions will follow the same formats as before.
One of Baude’s happiest surprises about the first season was the success of the deep-dive format. He worried before the first “Deep Dive” launched that the topic of originalism would be too obscure and that he and Chilton would get too much in the weeds. It turned out to be one of the most popular formats.
Baude is already working on a new deep dive—maybe even two—on a very different topic. The hope is that this year, Baude will be the one asking the skeptical questions of his guests.
What the Podcasters Learned
Both podcast series were designed, in part, to get students and other listeners to see how faculty with divergent views interact with difficult questions and have hard conversations. The podcasts did that but, as it turns out, also gave each of the podcasters new ways of thinking about complicated ideas.
“Conversations about equality on the surface seem straightforward, because most people agree that there should be equality. But when you get into nitty-gritty details, we have to ask things like whether it is appropriate to have an identity-based quota for legislatures or whether that undermines democracy,” Flores said. “If quotas are deemed OK, then you have to ask, are such quotas something that we want to do forever or until we think that women, for example, have the sort of political power to run on their own?”
Ginsburg said the nuanced discussions made the podcast a great learning experience for him and boosted his hope for the future.
“I am optimistic about democracy. At the end of the day, people everywhere strive for freedom. I genuinely believe that and see a lot of evidence. We are obviously going through a really troubled time. Why that is, is a very polarizing question,” Ginsburg said. “But historically, we’ve had a lot of bad times in American history, and at the end, it’s two steps forward, one step back or two steps back, but then you get three steps forward. I think we’re going be able to work things out.”
Chilton was surprised to find that Baude’s theory about positive law originalism seemed pretty close to claims made by common law constitutionalists, which is a theory of interpretation credited to David Strauss.
“The difference seems to be that the originalists, like Baude, are hostage to the evidence about whether or not common law judicial interpretation is allowed for certain parts of the constitution. Whereas the common law constitutionalists, like me, have just assumed that that’s the right way to go,” Chilton said. “In other words, the grounds of disagreement are narrower than people realize.”
Chilton doubts that either he or Baude changed the other’s viewpoints on core beliefs, but over the course of the podcast, he came to see that some of Baude’s views were less extreme than he once thought.
“I still disagree with some of his ideas, but I came away thinking his ideas were much more plausible and reasonable than I previously thought,” Chilton said.
Baude put it another way.
“I think that it is really important to have friends who you think are really, really smart but who also think you are really wrong about stuff,” he said. “If all your smart friends think you’re right about stuff, you don’t have enough friends.”