As our Supreme Court weighed the First Amendment implications of brutal video games back in 2011, Justice Samuel Alito cut in with a sarcastic jab: "Well, I think what Justice Scalia wants to know is what James Madison thought about video games. Laurence H. Tribe is the Carl M. Loeb University Professor and professor of constitutional law at Harvard University. Tribe and Matz are the co-authors of Uncertain Justice: The Roberts Court and the Constitution." This wasn't the first time that scientific advances had divided these super-conservative justices--and that speaks to a crucial point. While the confirmation hearings for Judge Neil Gorsuch will involve familiar debates over how to read the Constitution, judicial orientations toward new technology can scramble the fields in surprising ways.

In the lead-up to November's presidential election, Donald Trump released a list of 21 potential Supreme Court nominees in what many saw as an effort to mollify conservatives who tend to worry about these sorts of things. Now, that list has reportedly been narrowed to eight. On this episode, we sit down with William Jay, a former clerk to Justice Antonin Scalia, to discuss Scalia's possible successors.

It's an adage that one should not speak ill of the dead. But when conservative activist Phyllis Schlafly died last week, I was among the many liberal writers who didn't hesitate to call her a hatemonger. Schlafly, who built her 40-year career on stoking intolerance, was a vocal supporter of segregation and discrimination in housing, voting, and the workplace. She pushed to make anti-gay activism a core feature of the conservative movement. Even as the national consensus evolved toward greater rights for many Americans who had once been marginalized, Schlafly remained staunchly opposed to progress.