0:00

From Cafe and the Vox Media

0:02

Podcast Network, welcome to Stay

0:04

Tuned. I'm

0:06

Preet Bharara. The Supreme Court

0:09

is in this awkward position of, in

0:11

one set of rulings, signaling

0:13

that it's open season for these kinds

0:15

of cases, and then in another

0:17

set of rulings saying, wait a second, lower courts, what

0:19

are you doing? And that's actually ironically part

0:21

of what's going on in Rahimi. That's

0:28

Steve Vladek. He's a professor at

0:30

the University of Texas School of Law and

0:33

is a nationally recognized expert on

0:35

the Supreme Court and constitutional law.

0:38

He's also the author of the best-selling book,

0:40

The Shadow Docket, and has argued over a

0:42

dozen cases before the high court. Vladek

0:45

joins me for our continued coverage of

0:47

the highly anticipated and consequential Supreme Court

0:49

decisions coming down this month. We

0:52

break down some big issues, like gun access

0:54

and the separation of church and state, how

0:56

controversial cases make their way to the justices,

0:58

and the curious changing dynamic of

1:00

the court's conservatives. That's

1:02

coming up. Stay tuned. Support

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Messenger. Now

2:19

let's get to your questions. This

2:24

question comes in a tweet from Frustrated in

2:26

AppSec. The question is,

2:28

what is dicta? I hear it on

2:30

legal podcasts a lot, as if everyone knows what it

2:32

is, but I didn't go to law school. Well, Frustrated, that's a

2:35

great question. So let me

2:37

see if I can explain it in simple terms.

2:40

So in every legal opinion or decision, setting

2:43

aside the facts and the procedural history that

2:45

get recounted in the opinion, there is what's

2:47

called the holding. That's the court's actual legal

2:49

pronouncement on the specific legal question presented in

2:51

the case. And it's the thing

2:53

that becomes binding law in that jurisdiction. And

2:56

then there's sort of everything else. Dicta

2:58

is basically the everything else. Sometimes

3:00

judges will write things, dicta, in

3:02

their opinions that aren't actually necessary

3:04

to resolve the case or controversy

3:06

before them. So those

3:08

comments or observations or musings are just

3:10

that. They do not become legally

3:12

binding. The same is true, of course, for dissenting

3:14

opinions. Those opinions obviously do

3:16

not carry the day because they're in the dissent

3:19

and therefore do not become binding law. That

3:21

said, future litigants will sometimes pick

3:23

up on these dicta and incorporate them

3:25

into their briefs. And so if a

3:28

future judge finds those dicta compelling, they

3:30

could eventually make their way into later

3:32

opinions and become part of those cases

3:34

holdings. And in that way, eventually

3:36

become binding law. Just like

3:38

the reasoning in a dissent can one day in

3:40

the future become the reasoning of a majority opinion.

3:43

But for the purposes of your question,

3:45

dicta are just passing comments and legal

3:47

opinions with no actual binding legal authority.

3:54

This question comes in an email from Eric, who

3:57

asks, can a president issue

3:59

executive orders? to alter the composition

4:01

of the Supreme Court, such as

4:03

imposing term limits or compelling justices

4:05

appointed during a non-popular vote-winning presidency

4:07

to resign. Well, that's

4:09

an interesting way of thinking. The short answer to

4:12

your question is no way. Presidents don't have that

4:14

power. Imagine if they did, it would wreak some

4:16

kind of havoc. Presidents can't

4:18

force justices to resign, can't get rid of them,

4:20

can't take away their life tenure on their own

4:23

authority, and certainly not through an executive order. Now,

4:26

the fact that Supreme Court changes and reforms cannot

4:28

be done by executive order doesn't mean it can't

4:30

be done at all. Many features and

4:33

characteristics of the Supreme Court, for instance, the

4:35

number of justices or control over the

4:37

court's docket, are not specified in

4:39

the Constitution. The Constitution's silence on

4:42

those issues, therefore, means Congress

4:44

is free to legislate as it sees fit

4:46

on those kinds of issues. In

4:48

fact, various acts of Congress in the past

4:50

have changed the number of justices on the

4:52

court a number of times. Until

4:54

the number was ultimately fixed at nine.

4:57

Nine is not specified in the Constitution

4:59

itself. And by the way, as

5:01

my guest, Steve Lattic, points out in our conversation coming

5:03

up, the Supreme Court Case Selections Act

5:05

of 1988 effectively gave the

5:07

court almost complete discretion over its docket,

5:10

whereas before the justices lacked that degree of

5:12

power. There are, however, as

5:14

I suggested, certain things that are specified

5:16

in the Constitution, like life tenure. And

5:18

that's the thing that can't be legislated

5:21

away without a Constitutional amendment. So

5:23

again, although the president alone cannot reform

5:25

the court by fiat, there are still

5:27

several avenues of reform available to Congress,

5:30

assuming it can find the will and consensus

5:32

to act. So don't hold

5:34

your breath. This

5:40

question comes in an email from Adam. Dear

5:42

team, a question for the legal Eagles. Why

5:45

was the Julian Assange indictment filed today,

5:47

filed in the United States District Court

5:50

for the Northern Mariana Islands with two

5:52

question marks from Adam? Is there

5:54

a legal reason about jurisdiction or was

5:56

it simply because the terms of his guilty plea was

5:58

he flew straight home to Australia? and that

6:01

the islands was a logistically convenient US territory

6:03

to officially sentence him at in a quick

6:05

stopover before he gets back on a plane

6:07

to go to Australia. Loving Cafe

6:09

and Cider from afar, warmly from Sydney,

6:11

Australia, Adam. So Adam, thanks for your question

6:13

about your new neighbor. Julian Assange,

6:16

one of the founders of WikiLeaks, who was

6:18

facing a serious set of charges, federal charges

6:20

in the United States, on

6:22

Wednesday, did plead guilty in

6:24

the district for the Northern Mariana Islands, was

6:27

already sentenced, and has landed safely in

6:30

Australia, where he is a citizen. Now,

6:32

there are a lot of things that are odd about the resolution

6:34

of this case, but maybe that's in part because there are a

6:36

lot of things that were unique and odd about the unfolding of

6:38

the case in the first place. As

6:40

a reminder, Julian Assange was charged in federal

6:42

district court in the US in the Eastern

6:44

District of Virginia with 18

6:46

total counts, 17 charges of espionage,

6:48

and one charge of computer misuse in

6:50

connection with publications by WikiLeaks, which as

6:52

I mentioned, he co-founded in 2006. This

6:56

week, however, he pled guilty, and it's

6:58

important that he pled, he didn't plead

7:00

guilty. He pled guilty under the US

7:02

Espionage Act to a single criminal count

7:04

of conspiracy to obtain and disclose national

7:06

defense information. And I think partly what

7:08

was going on here was not sort of a

7:10

legal jurisdictional reason why he had to plead guilty

7:12

in the Northern Mariana Islands. In fact, it's very

7:14

unusual for someone to plead guilty in some

7:17

district that they were not charged in. Ordinarily

7:19

you'd plead guilty in front of the judge to whom

7:21

your case was assigned and where the case was brought.

7:24

And in fact, under the federal system, you must be

7:26

present for your guilty plea for a lot

7:29

of purposes, including for the judge to be able

7:31

to make an in-person determination that the plea is

7:33

voluntary and knowing, and then you haven't been compelled

7:35

to coerce in any way, and that you understand

7:37

the consequences of your plea. So

7:39

why the Mariana Islands? Well, it seems from

7:41

the reporting, especially from the Wall Street Journal,

7:43

that there had been negotiations underway between

7:46

the Justice Department and Julian Assange's lawyers

7:48

for the last number of months. And

7:50

in March, the Wall Street Journal reported, one

7:52

of the sticking points was that Assange, for

7:54

whatever reason, had a desire to never set

7:56

foot in the U.S. or at least the

7:58

continental U.S. And it may be

8:00

the case that the US had the same desire to

8:02

not have Assange come back to the mainland of the

8:05

United States. So I think for

8:07

diplomatic reasons, legal reasons, and all sorts of other

8:09

reasons, both sides wanted to resolve the case. There

8:12

was diplomatic pressure being placed in the United States by

8:14

Australia and some other folks as well. And

8:16

so probably people thought it wasn't a big

8:18

deal to accede to the request to

8:20

plead guilty in some place other than

8:23

the Eastern District of Virginia. While

8:25

we're on the subject, though, I would note that there are two other unusual

8:28

things about this resolution. One

8:30

is that Assange pled guilty and was

8:33

sentenced basically simultaneously to 62 months that

8:35

he'd already served in a prison in the UK. Ordinarily,

8:39

as you may know, if you listen to the

8:41

podcast on a regular basis in the federal system,

8:43

if there's a guilty plea or a conviction due

8:45

to jury verdict, a few months goes by for

8:47

a pre-sentence report to be created for people to make

8:49

arguments about what the proper sentence should be. And

8:52

the sentencing takes place many, many weeks

8:55

after the conviction. Not so in this

8:57

case, so it's a little bit unusual, although not unheard of. And

8:59

the other unusual thing is the nature of the

9:02

allocution. The allocution is a statement

9:04

that a pleading defendant makes in his or her

9:06

own words asked by the judge, what did you

9:08

do that was wrong? What did you

9:10

do that's causing you to plead guilty? And so

9:12

usually for a judge to find that a

9:15

guilty plea is voluntary and knowing, and is

9:17

based on actual guilt, as opposed to some

9:19

other factor, the defendant is required to

9:21

say in his or her own words what they did

9:23

wrong and express some contrition. Here

9:26

interestingly, and I haven't read the whole

9:28

transcript in fairness, but the excerpts I've

9:30

seen in the press today, Wednesday, June

9:32

26th, read as follows. This is

9:34

Assange speaking, quote, working as a journalist,

9:36

I encouraged my source to provide information that

9:39

was said to be classified in order to

9:41

publish that information. I believe

9:43

that the first amendment protected that activity. I

9:46

believe that the first amendment and the espionage

9:48

act are in contradiction with each other, but

9:50

I accept that it would be difficult to

9:52

win such a case given all the circumstances.

9:55

That is not a statement of guilt. That

9:57

is not a statement of contrition. That's a

9:59

statement of innocence. if you read that excerpt

10:01

by itself. But then elsewhere, according to

10:03

the reporting, Julian Assange said in court,

10:06

as he must have been required to, in order

10:08

for the judge to accept the guilty plea as proper and

10:10

appropriate, Assange said, quote, I am

10:12

in fact guilty of the charge, end

10:14

quote. So it's a little head

10:16

scratching, but if both sides are okay with it

10:18

and the judge is okay with it, it's

10:20

done. And here it was done.

10:29

I'll be right back with my conversation with

10:32

Steve Vladek. has

10:54

the answers. Just

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13:48

Supreme Court term has no shortage of big

13:50

ticket cases and they're still coming down. Law

13:53

professor, Supreme Court expert, and good friend of

13:55

the show, Steve Laddick, joins me to make

13:57

sense of the high court. Steve

14:02

Vladek, welcome back to the show. Thanks, Pete. Great

14:04

to be with you. It's good to have you.

14:06

We're in the midst of Supreme Court season. We

14:09

are not done with the term, so I should

14:11

point out to our listeners that Steve,

14:13

you and I are having this conversation on

14:16

Tuesday, June 25th at about 1 p.m.

14:18

Eastern time. And we're still awaiting

14:20

some of the big decisions, the immunity decision and

14:23

some others, but there have been quite a few important ones that

14:25

have come down. We're going to get to that in

14:27

some detail in a moment. But, you know, at this point, even

14:29

though we're not done, do you

14:31

have any general observations about this

14:33

Supreme Court term or is

14:36

it too early because we're waiting for these

14:38

last few opinions to drop? So,

14:40

I mean, I think it's too early except

14:42

in one respect, which is, you know, folks

14:44

ought to understand that it is really not

14:47

usual to have this many, you

14:49

know, blockbuster cases, not just crammed into

14:52

the last week of decisions, but just

14:54

in general. I mean, if you look

14:56

at, you know, big Supreme Court terms

14:58

from 5, 10, 15

15:00

years ago, what made them big was maybe

15:03

they had five or six major cases, you

15:05

know, one especially huge case. But, you know,

15:07

we're talking about 18 to 20, like,

15:10

major nationally important cases at the Supreme

15:12

Court this term. And I think it's

15:14

worth taking a step back and saying,

15:17

hey, like, this is, yeah, this is

15:19

different. So, I think

15:21

it's a combination of two factors. I mean,

15:23

I think one, you

15:25

have some lower courts, especially the Fifth

15:27

Circuit, the federal appeals court in

15:30

New Orleans that covers Louisiana and

15:32

Mississippi and Texas that really are,

15:34

you know, I think somewhat consciously

15:36

trying to push the Supreme Court to the right.

15:39

I mean, 11 of the Supreme Court's cases out

15:41

of, you know, 58 or 59 this term are

15:44

from the Fifth Circuit. And most of those have

15:46

ended and are going to end in reversals. So,

15:48

some of it is that the court has to

15:51

take cases like the Mifapristone case, like

15:54

Rahimi, which we're going to talk about

15:56

the gun case, like the social media

15:58

jawboning case courts

16:00

are forcing on their hand. And pretty

16:02

think some of it is that you have a majority of

16:04

justices who love them or hate them,

16:07

know that they have a majority. And so what

16:10

used to be the sort of

16:12

the Anthony Kennedy effect, which was

16:14

keeping the court from getting too

16:17

into itself and too excited about taking big

16:19

cases, just take big cases, I

16:22

think is no longer there. And so they're

16:24

not shy about interjecting themselves into the middle

16:26

of all of our biggest disputes. The Trump

16:28

immunity case is a good example of that.

16:31

And so when you add those two things together, you

16:33

get just this crazy high profile docket

16:36

that whether it was compressed into

16:38

the last week of the term

16:40

or not would still be unusual

16:42

by historical standards. Well, how would

16:44

you compare the blockbuster nature, the

16:46

numerosity of blockbuster cases, this term

16:48

as compared to last year or the year

16:51

before when we got DAWS, which overruled

16:53

Roe? Yeah, I mean, two

16:55

years ago, I think, is probably the closest

16:57

thing we've seen. And so folks remember, in

16:59

addition to DAWS, we got Bruin, the

17:02

big gun case. We got West

17:04

Virginia versus EPA, the big environmental

17:06

law case. And we had a

17:08

series of significant religious liberty decisions,

17:10

like the Coach Kennedy case, a

17:13

case about private school vouchers in

17:15

Maine. And I

17:18

guess my reaction is that those

17:20

were seven or eight major decisions,

17:22

a couple of which, Bruin and DAWS

17:25

were just epically major decisions. We

17:28

still have twice as many this

17:30

term and cases that affect everything

17:32

from access to mifepristone to

17:34

emergency abortions. We're still waiting for that from

17:36

the Supreme Court. Can

17:38

states regulate social media companies?

17:42

We're still waiting for that. The

17:44

Trump immunity case, the January 6th prosecution, these

17:47

major, major cases about the future

17:49

of administrative law in this country.

17:53

I guess I just, DAWS might have

17:55

been more visible to folks, at least

17:58

compared to everything except Trump. But

18:00

I just, I can't remember

18:03

a Supreme Court term in

18:05

our lifetimes that had just

18:07

this many cases that 10 years ago would have

18:09

been the defining case of the term. Can

18:12

you explain to folks the timing and how it works? Obviously,

18:16

someone doesn't file a lawsuit on a

18:18

Monday directly with the Supreme Court, right?

18:20

There are multiple levels of review that

18:23

occur before something got to the Supreme

18:25

Court with some very limited exceptions. So

18:28

this blockbuster term that you're talking about,

18:30

the seeds for this were planted when?

18:34

I think the seeds for this were planted,

18:36

frankly, to some degree, by those big cases

18:39

two years ago, by Dobbs and Bruin. I

18:41

mean, we're going to talk about Rahimi, you

18:43

know, the Mifepristone case and the emergency abortion

18:45

case are both direct reactions to Dobbs. How

18:47

so? Well,

18:50

so the Mifepristone case, you know, the

18:53

challenges to Mifepristone, this drug that's so

18:55

important in the most common

18:57

and the safest form of abortion, was

19:00

filed four or five months after

19:02

Dobbs was decided. So I've

19:04

been saying with Joyce Vance on

19:06

our Insider podcast that

19:09

we're seeing a wave of litigants being emboldened by

19:11

the overturning of precedent. So why not take a

19:13

shot? Is that fair? I think that's right. And

19:15

I would just add to that. And we're seeing

19:17

lower courts that are usually

19:19

better at screening these, you know,

19:22

sort of fringe

19:24

cases, not screening them. I

19:26

mean, I think that's the Fifth Circuit effect.

19:28

You know, when we when we look at

19:30

the final scorecard for this term in a

19:32

week or two, we're going to end up

19:34

seeing on the Fifth Circuit, having been reversed

19:36

in, you know, the Mifepristone case in Rahimi,

19:39

in the CFPB, the Consumer Financial

19:41

Protection Bureau funding case, probably

19:43

in the social media cases, probably

19:46

in the jawboating case. And

19:48

that is, I think, an example of

19:51

right wing litigants, you know,

19:53

steering cases into district courts

19:55

in Texas and the Fifth

19:57

Circuit, getting pretty favorable ruling.

19:59

from those courts and then putting the

20:02

pressure on the Supreme Court to either

20:04

rein them in or

20:06

to let it go. And I think that's the

20:08

Supreme Court is in this awkward position of in

20:11

one set of rulings signaling that

20:13

it's open season for these kinds

20:15

of cases and then in another

20:17

set of rulings saying, wait a second, lower courts,

20:19

what are you doing? And that's actually ironically part

20:21

of what's going on in Rahibi. Can

20:24

you explain whether or not circuit courts, the Fifth Circuit

20:26

in particular, and I'm going to ask you some general

20:29

questions about the circuits to explain to the audience as

20:31

well. But is there some lesson

20:33

that gets learned either by litigants or

20:35

the lower courts or does everyone just take their

20:37

shot as best as they can? In other words,

20:40

the bad sort of box score

20:43

achieved by the Fifth Circuit in this term, as you have referred

20:45

to it, will that tell the

20:47

Fifth Circuit judges individually or as

20:49

a whole to be a little

20:51

more cautious going forward or not? I

20:54

think the answer is yes, in the

20:56

sense that there are 17 active judges

20:58

on the Fifth Circuit and their

21:00

success rate at the Supreme Court or lack

21:02

thereof will hit differently with each of them.

21:05

What is so striking to me, Preet, is

21:08

the Fifth Circuit might end up with a terrible

21:10

scorecard this term, but it had a terrible scorecard

21:12

last term. I mean, last year it had the

21:15

worst success rate in the Supreme Court of any

21:17

lower court in the country and

21:19

that didn't seem to impose any limit. But

21:23

what's interesting about that is, right, that's

21:25

because I think you're saying that the

21:28

Fifth Circuit is even more out of whack,

21:30

more conservative, more ideologically right than the Supreme

21:32

Court. But you could also imagine the circuit

21:34

that was progressive that would have a bad

21:37

scorecard in the Supreme Court too. Do we

21:39

see any of that? So we

21:41

actually don't. I mean, so historically the... The

21:43

Ninth Circuit I thought was maybe in that

21:45

category from time to time. So I would

21:47

say pretty 10 or 15 years ago that

21:49

was true. I mean, so 10 or 15

21:51

years ago you would see terms where the

21:53

Supreme Court would take 12, 13,

21:56

14 cases from the Ninth Circuit, which by itself

21:59

is not crazy because the Ninth Circuit... Here's more

22:01

cases than any other federal appeals court. Here's

22:03

almost twice as many as the Fifth Circuit alone,

22:06

but then would reverse maybe like three quarters or 80%

22:08

of them. Pretty, at least

22:10

as we're talking, on June 25th, the

22:13

Ninth Circuit so far, this term is five for 10. So

22:17

it's batting exactly 500. And

22:19

ironically, the only court right now

22:21

that has a worse record than

22:23

the Fifth Circuit is the Second

22:25

Circuit, the federal appeals court that you

22:27

know so well in New York. And

22:29

that I think is partly a function

22:32

of just a disconnect between even pretty

22:34

moderate judges on the Second Circuit and

22:36

the Supreme Court when it comes to

22:38

the interpretation of federal criminal statutes. But

22:42

I think that the reality is that there

22:44

is no court that is nearly

22:46

out of step as out of step

22:49

with the Supreme Court on the left

22:51

side of the ideological spectrum today as

22:53

the Fifth Circuit is on the right, which is pretty remarkable when

22:56

you think about where the Supreme Court itself is. It's

22:58

a six-three court. Can you do

23:00

a little primer for the audience about

23:03

the circuit courts? So there are

23:05

three levels in the federal system. You

23:07

have the United States District Courts, Southern

23:09

District of New York is one, there are four district courts

23:12

in New York. Some states have one

23:14

district court like Massachusetts and like Arizona.

23:17

Some have multiple like New York and California.

23:20

And then all of those district courts feed

23:23

into one designated

23:26

appeals court. Do you describe

23:28

how many appeals courts there are and

23:31

how they're divided up, allocated? Yeah, so in

23:33

the federal system, there are 13 federal appeals

23:35

courts. 12 of them are

23:37

geographic. So there's the first

23:39

through 11th circuits and there's the DC

23:41

circuit. And those 12 courts,

23:44

all of their jurisdiction is basically defined

23:46

by where they sit. So the Second

23:48

Circuit covers New York and Connecticut and

23:51

Vermont. The DC circuit

23:53

covers DC, but that's an unusual number of

23:55

cases of how many lawsuits against the federal

23:57

governor file there. And then there's

23:59

the federal. the sort of the weird

24:02

stepsister of the other

24:04

12 courts of appeals, which hears

24:06

appeals in sort of a smorgasbord

24:09

of specialty cases,

24:11

veterans appeals, contract claims

24:13

against the federal government,

24:16

patent appeals, tax

24:18

appeals, those all go to the federal

24:20

circuit. And the idea, Preet, is that,

24:22

you know, with the exception of the

24:24

federal circuit, this kind of geographic distribution

24:27

is actually a pretty healthy way of, you

24:29

know, having a little bit of local influence

24:31

on the law, but also having judges who

24:33

come from that part of the country resolving

24:36

the issues that are coming up in those

24:38

states. And so the Supreme

24:40

Court, you know, obviously in addition to reviewing all

24:43

50 state courts, reviews

24:45

all 13 federal courts of appeals, it's

24:48

actually, you know, these days pretty

24:50

close to 95% of

24:53

the cases the US Supreme Court takes are

24:56

from the lower federal courts. It's really actually

24:58

now pretty rare to see the Supreme Court

25:01

taking a bunch of appeals directly from state

25:03

courts. In the old days, that wasn't

25:05

true. In the old days, like as recently as 40, 50

25:08

years ago, it was closer to half and half.

25:10

And so we've seen a real shift toward

25:12

the federal courts of appeals, Preet, having the

25:14

last word because, you know, the Supreme Court's

25:16

taking 60 cases a

25:18

year, whereas there are tens

25:21

of thousands of cases where,

25:23

you know, the federal courts of appeals

25:25

say what they're going to say. And then the Supreme

25:28

Court either isn't asked to or doesn't agree to take

25:30

up an appeal where the federal courts of appeals are

25:32

getting the last word. It's part of why they've become

25:34

so important in really every

25:36

facet of federal litigation today.

25:39

In your mind and in your view, should

25:42

the Supreme Court be taking more cases or

25:44

fewer cases or different kinds of cases? I

25:47

am a bit dogmatic about this. I

25:49

think the Supreme Court really ought to

25:51

be taking more cases of every shape

25:53

and size. I mean, this is going

25:55

to be probably the fifth term in

25:58

a row where the Supreme Court issues

26:00

60 or fewer, what

26:03

we call signed decisions in merits cases. So

26:05

the sort of the, you know, the real

26:07

sort of full nine yards. What

26:09

is striking about that number is that before

26:11

five years ago, the last

26:14

time the Supreme Court had handed down 60 or

26:16

fewer decisions, Preet was 1864. You

26:20

know, 30 years ago, the court was handed down- I barely

26:22

remember 1864. Who does? I

26:24

was a very young lad in 1864. Fighting

26:27

in the Union Army. I don't even think

26:29

Carter was born in 1864. I

26:32

don't even think Biden was born in 1864. So,

26:35

you know, but what's striking about that- Can you explain?

26:37

So are they just getting lazy because they're going on

26:39

a lot of junkets? No,

26:42

I mean, I think they're getting

26:44

arrogant, which is in some respects

26:46

worse than lazy. So, you know,

26:48

part of what happened is that

26:51

in the 1980s, Congress gave the

26:53

Supreme Court complete control over its

26:55

docket. So up until 1988, the

26:58

Supreme Court still had to hear

27:00

a pretty decent number

27:02

of appeals, especially from state courts.

27:05

And in 1988, Congress passed a

27:07

statute that says no, Supreme Court, except for

27:09

a really small slice of cases. You basically

27:11

can pick and choose which cases you're going

27:13

to hear. And, you know,

27:15

Preet, for the better part of 20 years, the

27:19

court used that power pretty aggressively. It

27:21

was hearing, you know, maybe 90 cases

27:23

per term in the 1990s. That

27:26

number may have sort of dropped into the 80s in the

27:28

early 2000s. But now that

27:30

we're in the low 60s and high 50s,

27:33

I think part of what's going on

27:35

is that, you know, you no longer

27:37

have the ability of both ideological sides

27:40

of the court to force a grant.

27:42

It takes four votes to grant certiorari.

27:45

And, you know, obviously there are

27:47

not four Democratic appointees. So every

27:49

grant today requires a Republican

27:51

appointee to join it. I

27:53

think you have a court that is, you know,

27:56

less worried about its middle. So, you know, in

27:58

the old days, you'd have grants. just because Justice

28:00

Kennedy or Justice O'Connor wanted the court to grant

28:02

and they'd get somebody to go along with them.

28:06

That's less of an issue now. And

28:08

I think the category that has

28:10

fallen out the most is

28:12

the court has stopped taking for the

28:14

most part direct appeals in state criminal

28:16

cases where you have criminal

28:19

defendants in New Mexico or New York

28:21

or Texas who have

28:23

constitutional objections to some feature

28:25

of their trial, their conviction or their sentence.

28:28

And the Supreme Court in the old days would

28:30

take a whole bunch of those every year to hash

28:33

out what the criminal procedure rules were.

28:36

Last term, so the term that ended a year ago, the court

28:39

took one direct appeal in a criminal case from a

28:42

state court. I think this term, the total is going

28:44

to end up being two. And

28:46

that's a pretty remarkable disappearance and a pretty remarkable set

28:48

of cases. And why is that because the states are

28:50

getting it all right every time now? You

28:55

know, I mean, you're the former prosecutor, not me.

28:59

No, I think it's

29:01

because the court just doesn't care. And

29:04

I think that's unfortunate. And it's unfortunate not

29:06

just because... But they care about federal criminal

29:08

law quite a bit, but not state criminal

29:10

law? Well, I think so. I think they

29:12

care about federal substantive criminal law. So I

29:14

think they care quite a bit about the

29:16

meaning of federal criminal statutes. But

29:19

Preet, we're not seeing this court take

29:21

a bunch of Fourth Amendment cases or

29:23

Fifth Amendment cases or even Sixth Amendment

29:25

cases. And that matters

29:27

not just because of the individual

29:29

defendants in those cases who aren't

29:32

getting potential relief. It matters

29:34

because, Preet, as you know, the court

29:37

needs to make law not

29:39

just for the party before them,

29:41

but because if you want to

29:43

prevail in a habeas petition, if

29:45

you're a post-conviction practitioner,

29:48

if you are a civil rights

29:50

plaintiff, it often really matters whether

29:52

or not the underlying law is,

29:54

quote, clearly established, unquote. And

29:56

the fewer of these cases the court has taken, the

29:59

less law the court has achieved. Is there

30:01

something to be said for the trend,

30:03

as I see it in the last few years, and you've mentioned

30:05

a bunch of these cases, the

30:08

trend towards overturning even fairly recent

30:10

precedent, whether it's in the

30:12

area of affirmative action or reproductive rights or

30:15

anything else. How does that

30:17

play into litigation strategy?

30:21

And are people bringing cases, I guess we talked about this a little

30:23

bit at the outset, are people

30:25

bringing cases that they wouldn't have thought about bringing some

30:27

years ago because they

30:29

think stare decisis or the respect for

30:31

precedent, is that a fairly all-time low?

30:35

I think the issue that is clearly yes. The

30:39

only thing I might suggest

30:41

a friendly amendment to, whether it's because it's

30:43

just about less respect for stare decisis or

30:45

because they think they just have the votes

30:47

in particular areas, you end up in the

30:49

same place. A really good example of this

30:51

is a case that is almost certainly going

30:54

to get back to the Supreme Court next

30:56

term, which is the

30:58

challenge to Texas' state-level

31:01

deportation system, which

31:04

its shorthand is SB4, is the

31:06

bill in Texas. This

31:09

came up to the court in March on

31:11

an emergency application. It sort

31:13

of fizzled away because the Fifth Circuit actually

31:15

put the law on hold pending

31:17

appeal. We're still waiting for the Fifth Circuit's

31:19

decision in the appeal. What's

31:22

fascinating about SB4 is here's a

31:24

piece of state legislation whose

31:26

proponents, including Governor Greg Abbott,

31:30

explicitly said that the purpose

31:32

of the legislation was to

31:34

adopt Justice Scalia's dissent in

31:37

a Supreme Court case from 12 years ago called

31:39

Arizona versus the United States. Well, the

31:42

only way that you're going to win, the only

31:44

way that a law that's based on the dissent is going

31:46

to be upheld by the Supreme Court is if the dissent

31:48

becomes the majority. It's

31:51

pretty clear that the whole sort of conceit

31:53

of SB4 is to get the Supreme

31:56

Court to revisit the Arizona case. I

31:58

mean, that's a really... like a specially

32:00

visible example, but there are countless other

32:02

examples across the litigants. How radical is

32:04

that? My recollection is even with Dobbs

32:06

that overturned Roe, at the

32:08

lower court level, I

32:11

thought that the litigants were trying to

32:13

assuage concerns of the court by

32:15

saying they were not, maybe I have this wrong, you know,

32:17

correct me, professor. I thought they were

32:20

suggesting to the lower court that they

32:22

didn't have an interest in and they were not seeking reversal

32:24

of Roe, but they were seeking

32:26

something more narrow than that. Am I correct

32:28

about that? I think that was right up

32:30

until Justice Ginsburg died. And

32:32

I think when Justice Ginsburg died in September

32:34

of 2020 and

32:36

was replaced by Justice Barrett, I think the tone changed pretty

32:39

quickly. I mean, if you go back and look at the

32:41

cert petition, you know,

32:43

the first filing by

32:45

Mississippi in Dobbs, you know, you

32:47

will find no request to overrule

32:49

Roe. I'm

32:52

imagining once upon a time that

32:54

was doomed to failure and it would

32:56

have been futile to outright in the lower

32:58

court litigation, say that your hope

33:00

and prayer and aim was

33:03

to overturn a precedent that by the way, multiple

33:06

Supreme Court justices when they were nominees paid

33:09

some homage to as being, you know, super

33:11

precedent or subtle precedent. That's all out

33:13

the window for real now, isn't it? I

33:16

mean, I think the short answer is yes.

33:18

I mean, are there going to be cases

33:20

where the Supreme Court, you know, sort of

33:22

falls back on the idea of stare decisis

33:24

to justify following earlier precedent? Sure. I mean,

33:26

we saw that just last week in

33:29

this nerdy federal criminal case where the

33:31

justices were fighting over the meaning of,

33:33

you know, this older decision called Almandaras

33:36

Torres. Is stare decisis actually

33:38

going to be the reason why the court

33:41

is, you know, not in a hurry to overrule

33:43

precedents? No. And I think, you know,

33:45

Preet, if we expand this out half

33:47

a step, it's not

33:49

just that the current court is,

33:51

you know, more willing to sort

33:53

of consider dramatic

33:56

shifts in its doctrine. It's

33:58

that the shifts are themselves I

34:01

mean, if you think about all of the administrative

34:03

law cases that the court has

34:05

decided this term that the court still is going

34:07

to decide this week and next week, you

34:10

know, the real sort of unifying theme of

34:12

them is that we're

34:15

not going to have this

34:17

stable universe of deferring to

34:19

executive branch agencies. It's

34:21

really going to be just, you

34:23

know, does each individual court reviewing

34:25

each individual federal program believe that

34:28

the program is, you know, within

34:30

all fours of the relevant statutory parameters.

34:33

And when you think about how ideologically

34:36

diverse the federal bench is, that

34:38

means, right, that, you know, plaintiffs are going

34:40

to find the most sympathetic

34:43

judges they can, and

34:45

every single federal program all of a

34:48

sudden becomes, you know, potentially subject to

34:50

serious judicial constraint. How we

34:52

feel about that might vary based on who's

34:54

in charge at the given moment. And in

34:56

the main, what that really is is a

34:58

recipe for chaos. So

35:01

let's get to the case we've mentioned a couple of times. Rahimi,

35:04

gun case, 8 to

35:07

1, so pretty lopsided

35:09

majority there. The

35:11

one dissenter, Clarence Thomas. So

35:14

why don't you tell folks what the case is about? Sure.

35:16

So I mean, this is a great example of

35:18

everything we've been talking about. So, you know, two

35:20

years ago, the Supreme Court in the Bruin case

35:24

really radically shifted its approach to

35:26

Second Amendment cases. And

35:28

what the real shift was, was

35:31

requiring government defenders of

35:33

any kind of gun control regulation,

35:35

any kind of ban, to

35:38

find some kind of analog

35:40

during the relevant historical time period, whether

35:42

that's 1791 when the Second Amendment was

35:45

adopted, or 1868 when the

35:48

14th Amendment was adopted, which

35:50

is how the Second Amendment applies to local

35:52

and state governments. And

35:55

this was a shift because for 14 years

35:57

after the Heller case in 2008. lower

36:00

courts had been doing basically a sort

36:03

of a balancing test of

36:05

you know, how compelling was

36:07

the government's justification for the

36:09

regulation versus how over-broad or

36:11

under-inclusive Was the regulation

36:14

and now the gut now the court says no,

36:16

no, no, no, no None of that matters. It

36:18

doesn't matter how good an argument the government has

36:20

is there an analogy or not? And

36:23

so lower courts have taken that and run

36:25

with it and Rahimi is a great example

36:27

So Zachary Rahimi was convicted of Possessing

36:30

a firearm while he

36:32

was subject to a domestic violence

36:35

related restraining order Basically,

36:37

you know where a state

36:39

judge in Texas had found that

36:41

Rahimi presented an imminent

36:44

threat of serious bodily

36:46

harm to his

36:48

intimate partner and The

36:50

Fifth Circuit the federal appeals court we've been talking about

36:53

Held that that law the federal ban

36:56

on gun possession by those subject to

36:58

domestic violence restraining orders Was

37:00

unconstitutional after brewing because there was

37:02

no such thing as a domestic violence

37:05

related restraining order As

37:07

Dyleth we pointed out on the podcast

37:09

recently in fact, there were

37:11

no laws really protecting women from domestic violence

37:14

and There was

37:16

carte blanche so and women couldn't vote

37:18

I mean so women couldn't vote to back

37:20

up half a step the the federal government

37:22

which you know Obviously was the prosecutor and

37:24

Rahimi argued that it didn't need to show

37:26

that there were specific Bands on

37:29

domestic violence during the relevant historical

37:31

periods It was enough that at

37:33

the founding there were plenty of

37:35

examples of state

37:37

laws that banned guns disarmed people

37:39

who were dangerous and people who

37:41

were dangerous in lots of different

37:43

respects and So the government's

37:46

argument was hey, you know someone who

37:48

was currently subject to a domestic violence

37:50

related restraining order has been Adjudicated

37:52

to be dangerous by a judge

37:55

and that should be enough It wasn't enough

37:57

for the Fifth Circuit and it was enough for you

37:59

know eight of the nine justices on the Supreme Court.

38:06

I'll be right back with Steve Vladek after

38:09

this. Support

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40:36

Atlassian. Donald

40:41

Trump's first public appearance after his

40:43

conviction on 34 felony counts

40:45

in New York last month. Also with

40:47

us tonight, 45. Donald

40:49

Trump is in the building in the form of presence. He

40:53

went to a UFC fight. He used that

40:55

night to launch At Real Donald Trump. The

40:57

president is now on TikTok. It's my honor. Take

41:00

photos with fighter and men's rights weasel Sean

41:02

Strickland and revel in cheers of We Want Trump.

41:06

If you're not an Ultimate Fighting Championship fan, you

41:09

may be unaware of this long-running relationship between

41:11

candidate Trump and the league. But

41:14

it's real, and in 2024, it's meaningful if

41:16

you want to understand Trump and his base, and

41:19

also John Wick and football. Today

41:25

explained on how UFC explains USA.

41:28

We're in your feeds every weekday. Dahlia

41:44

Lithwick and I also talked a lot about originalism and

41:47

her critique of originalism. Could

41:49

you, I want to get to that and how

41:52

the decision in this case arguably

41:54

undermines the

41:56

whole theory of originalism. Why did

41:58

Clarence Thomas dissent? Well,

42:01

I mean, I think Thomas wrote the

42:03

majority decision in Bruin. I think Thomas

42:05

thinks that he meant what he said

42:07

in Bruin. And so, you know,

42:09

for Justice Thomas, at least, that

42:11

kind of very woollen analogy

42:14

hunting is exactly what he

42:17

instructed lower courts to do, and that's what

42:19

the Fifth Circuit did in this case. So,

42:21

you know, from Thomas's perspective, this

42:23

is exactly what he meant to reek. Yeah.

42:26

So, from his perspective, and

42:29

pursuant to his brand and

42:31

style of originalism, there was

42:33

no proper history or tradition

42:36

in the right time period to

42:38

allow the statute to be the

42:41

law of the land, right? Is that

42:43

fair? Exactly so. Okay. So, why didn't

42:45

he get anybody else to join him? Well,

42:48

so this is what's fascinating about Rahimi, right?

42:50

So, you know, there are six separate

42:53

opinions just by the

42:55

eight justices and the majority. And I

42:58

think part of what's going on is...

43:00

And that's... So, for the audience, how

43:02

unusual is that? Very. I mean, you

43:04

know, Preid, it's not unusual at all

43:06

to have one or

43:08

two concurrences in a majority

43:11

opinion, especially in a divisive

43:13

case. Five is a lot.

43:16

And what's striking about that is with

43:19

the exception of, you know, the

43:21

three democratic appointees, five

43:23

of the justices who are in the majority in

43:25

Rahimi are in the majority in Bruin. And... Professor,

43:28

explain. I mean, I think the

43:31

short answer is that they really...

43:33

Either they didn't mean what Thomas

43:35

said back in 2022, or they

43:38

didn't realize just how

43:40

cataclysmic the consequences of it were going to be.

43:42

Yeah. So, I want to get to that because

43:44

we talk about principle and we talk about these

43:46

doctrines, some of which seem to be

43:49

made up, some of which are quite new, some of

43:51

which fade. And I'm not even necessarily suggesting

43:54

what I'm about to say is a bad thing. At some

43:56

point to the justices, look at

43:58

something. common sense and

44:01

open eyes and realize the

44:03

idea of saying that somebody who has

44:06

an adjudicated restraining order because they have

44:08

engaged in domestic violence to

44:10

give that person a gun, when the

44:12

legislature has said reasonably,

44:14

you can't have a gun during the pendency

44:16

of the restraining order, to

44:18

come up with that decision is just completely

44:21

batshit nuts. And we're

44:23

going to dress up our decision, whether

44:26

it goes against some other doctrines that we

44:28

have previously espoused or not, and

44:30

not let that happen. I'm

44:33

not even saying that's necessarily a bad thing, but

44:35

is that fair to attribute that

44:38

motivation or underlying principle,

44:40

which is not really a principle to

44:42

this? Not only is it fair, I

44:45

think Justice Barrett almost says that out

44:47

loud in her concurrence. And

44:49

what's striking about that prete is it's

44:51

not just that it's a methodological indictment

44:53

of originalism, it's that it

44:55

is the epitome of what folks like me

44:58

would call common law judging, which

45:00

is one of your jobs as a judge

45:03

is to live in the real world and

45:05

to appreciate that the

45:07

law is not an abstraction. The

45:10

law must be stable, but it must not stand

45:12

still. And that's, I think,

45:14

what was so crazy about

45:16

Bruin when it came down two years ago.

45:18

And I think we've seen the consequence. Now,

45:21

I should say before folks pat

45:23

themselves on the back and bust out the

45:26

victory cigars for the demise of

45:28

originalism, Rahimi was the lowest hanging

45:30

of low-hanging

45:33

fruit. And so the

45:35

court is going to have to

45:37

take much harder cases about guns

45:39

and this historical approach probably

45:42

as soon as next term. I mean, just

45:44

to take one example, there is a federal

45:47

law that bans possession of firearms by anyone

45:49

who's been convicted of any felony. There are

45:51

plenty of felonies that are not by

45:53

anyone's definition violent. And so,

45:56

you know, I think the question is going to

45:58

be how much is the the

46:00

seeming consensus in

46:02

the majority of concurring opinions

46:04

in Rahimi just a function of

46:07

how easy a case this was versus

46:09

the harder cases still to come. How

46:11

much does it matter in each of these gun possession

46:13

cases that the trigger for

46:15

taking away the firearm is something

46:17

that has been formally adjudicated? So, for example,

46:20

in this case, there was a formally

46:22

adjudicated restraining order, which I think was

46:25

important. In the examples

46:27

that you mentioned felon possession cases, which we in

46:29

the Southern District brought all the time, my first

46:31

criminal trial as a young lawyer was

46:33

in that kind of case. There's

46:35

a proper legal adjudication of a conviction.

46:38

And the reason I ask that is the elephant in

46:40

the room with regard to this species

46:42

of cases to me is the Hunter Biden case. Where

46:46

there's another statutory provision

46:49

that disallows someone who is addicted to

46:52

narcotics to possess a gun and there's

46:54

no adjudication of that necessary. What

46:57

was a challenge to that going to play out and what kind of

47:00

strange bedfellows are we going to find? So,

47:02

you know, I had thought that that

47:04

was one weird feature of the Rahimi

47:06

case. And this came up during the

47:08

oral argument. Justice Gorsuch in particular, and

47:10

at least to me, not especially surprisingly,

47:12

was worried about the due

47:14

process side of this, which is disarming

47:17

someone based upon maybe

47:19

a very minimal level of process. Pretty

47:22

as you say, that's not an issue in

47:24

Rahimi because he actually was adjudicated to be

47:26

violent. It's not an issue in the felon

47:28

in possession cases because they've been adjudicated to

47:30

be felons. But yeah,

47:32

I think the court's going to have real

47:35

concerns. And it might be not

47:37

exactly the ideological line-up you'd expect. I mean, I

47:39

could see a world in which someone

47:41

like a Justice Jackson would be

47:44

on the Gorsuch side that

47:47

where the underlying predicate

47:49

is not the result

47:51

of an intact and

47:54

valid judgment of a court of record. That's

47:57

even more of a reason to be wary of it. But

47:59

that's more a due process. process point to me, I think,

48:01

than a second amendment piece. But where

48:03

does, so in that case, which presumably

48:06

will maybe one day get up to the

48:08

Supreme Court, the addict firearm possession scenario, going

48:11

back to the point we were making about the

48:13

common sense in the domestic violence situation, does

48:16

common sense play a role in the addict

48:18

scenario? I mean, do people really want someone,

48:20

whether it's adjudicated or not, but

48:23

there's some evidence of and proof

48:25

of serious narcotics addiction, put

48:28

a firearm in the hands of that person? I

48:30

mean, I think that's, folks are gonna have

48:33

different answers based on their sort of their

48:35

second amendment priors. I mean, I'm pretty, I'm

48:38

a bit idiosyncratic on the second amendment. I actually

48:40

think that there are features of Heller that are

48:42

not crazy, but I do think that

48:45

the right answer- That's your text is talking. Hey,

48:48

I'm trying to get out. But

48:51

even Justice Scalia thought that there were plenty of

48:56

regulations of guns that

48:59

would be perfectly constitutional. And I think what

49:01

has happened in the 15 now, I

49:03

guess now 16 years since Heller, is

49:06

the pendulum has swung further

49:08

in favor of the, no

49:10

regulation crowd than I would have thought. And

49:13

that's where Justice Thomas basically is. I mean, Thomas

49:15

is like, unless you can show that this exact

49:17

kind of regulation had this historical pedigree, we're not

49:19

gonna allow it today. And I'll

49:21

just say, I mean, the last point to me

49:23

about that is on the sort of, what is

49:25

originalism? I mean, what's striking about the separate opinions

49:28

in Rahimi is that they all have slightly

49:30

different conceptions of what originalism even is. Justice

49:33

Barrett at one point even coins

49:35

a new kind of originalism, she

49:37

calls contours based originalism, original

49:39

contours originalism. And, you

49:42

know- I've got one, I've got one. You wanna hear mine? Please.

49:44

Numbers of originalism, how about that? I mean,

49:47

it's what we're doing. And, you

49:49

know, this is- So doesn't

49:51

that just confirm- Yes. Clearly

49:54

the doctrinal bankruptcy of originalism in

49:56

any form? Yes, and so this

49:58

is something that- I think the nerdy

50:00

law professors I think are well aware of but

50:03

don't talk about enough. There

50:05

is a real disconnect between the sort

50:07

of the pure academic originalism

50:09

that you'll see in certain law

50:12

review articles and what the Supreme

50:14

Court is doing. And what the

50:16

Supreme Court is doing is not

50:18

really defended that aggressively even by

50:20

the most, I think, staunch academic

50:23

originalists because it's just not originalism.

50:26

And the problem with that period is, you know, keep

50:28

in mind, I mean, this is not just a fight

50:30

over methodologies. For decades, the

50:33

defense of originalism has been that

50:35

it is the one true God,

50:37

right? That it is the pure,

50:39

objective way. I think it's in

50:41

the commandments, which we're going to

50:43

talk about also. Well,

50:45

that's coming too. But, right,

50:48

the defense of originalism as the

50:50

dominant methodology of constitutional interpretation is

50:52

that it is singular and produces

50:55

objective answers. And the

50:57

more that it becomes clear to everyone

50:59

that it is not singular and that

51:01

it does not produce objective answers, the

51:04

more that it's just like any other

51:06

way of interpreting the Constitution, which doesn't

51:08

make it per se invalid. It just

51:10

makes it no better and no more

51:13

entitled to, you know, prime of placement

51:15

than anything else. Can

51:17

you address a procedural question? So, the court was

51:20

pretty much obligated to take up the

51:22

Rahimi case, given what the lower court

51:25

had left the world with. So, in other words, if the Supreme

51:27

Court had not taken up Rahimi, right,

51:30

the highest circuit court would

51:32

have decided that you can't take the gun away

51:34

from this person. Would that

51:36

have been applicable only in

51:39

that circuit or all over the country? How would

51:41

that have played out if the court had simply

51:43

decided, we're too busy, we're not taking this case?

51:45

So, it would have only played out

51:47

in the circuit. I mean, circuits only

51:49

bind themselves and courts within their circuit.

51:51

So, you know, the fifth circuit. But

51:54

then, wouldn't this have spread? Wouldn't

51:56

there have been more challenges? Yes.

51:58

If the fifth circuit opinion was allowed? Sure. And

52:01

there were even right after Rahimi. I mean,

52:03

even while the Fifth Circuit opinion was on

52:06

the books, we saw lots of litigants trying

52:08

to cite the Fifth Circuit's analysis as why

52:10

they should win, Hunter Biden being one

52:12

of them. I think the

52:15

short answer, Preet, is the court maybe

52:17

could have left this alone for a

52:19

year or two, but even in the

52:21

Fifth Circuit, I mean, even just if

52:23

every other court of appeals had ignored

52:25

Rahimi, you would still have a

52:27

world in which the Fifth Circuit was striking down

52:30

one gun control

52:32

regulation after another. And I

52:34

think this was, I think, a tacit recognition

52:37

by the court that it had to

52:39

cut this off relatively early on before

52:41

it spread. You're

52:43

now the third professor of law that

52:45

I am able to ask the question. The

52:48

lower court's decision in

52:50

Rahimi that went the

52:53

other way, what grade would you

52:55

give that legal reasoning? I'm

52:57

a softy, B minus. Not

53:00

a failing grade. No, because, I mean,

53:02

because, you know, listen, I think people can

53:04

debate how much of Rahimi is the Supreme

53:06

Court's fault in Bruin. It is clearly at

53:08

least partly the Supreme Court's fault. And

53:11

you know, I don't think that Rahimi, I

53:13

don't think that the Fifth Circuit's opinion in

53:15

Rahimi followed from Bruin at all. Thomas

53:18

clearly did. But I

53:20

also think that, like, when I think

53:22

of the wackiest and most indefensible things the

53:25

Fifth Circuit has done, Preet, in the last

53:27

couple of years, you know, Rahimi

53:29

is not that high on the list

53:31

just because Bruin itself, I think, was

53:34

vulnerable to just such a, you know,

53:36

a sort of a wooden application.

53:40

So here's the problem with the question I asked. And

53:42

I know I asked it, but I'm going to critique my own question. It

53:45

presupposes that judges are making decisions

53:48

competently or incompetently. Generally

53:51

speaking, people who have risen to be on the Supreme Court,

53:53

certainly, and the appellate courts

53:55

also are very smart. They're

53:58

very accomplished. They're good lawyers. sometimes

54:00

a dummy gets through once in a while, but it's not

54:02

frequent. So that in a way, the

54:04

question of how

54:06

you would grade an opinion presupposes something that

54:08

I'm not sure is true, that

54:11

an incorrect decision or decision you would disagree

54:13

with, or that ultimately the Supreme Court disagrees

54:15

with, turns on

54:17

the competency of the analysis as opposed

54:19

to some ideological factor.

54:22

Does that make any sense? It does. I

54:24

mean, it's a fair point. I guess I

54:26

would just say in response that

54:28

I think- You graded it, you fell for the

54:30

question. I did fall for it. Although I mean,

54:32

it's like instinctive. What grade would you give it?

54:35

What grade would you give this pizza? It's

54:39

just hard for people to understand. I want to get in as help

54:42

people who are thoughtful citizens who

54:45

care about these things, and they were not lawyers, and

54:48

certainly not constitutional lawyers, how it can

54:50

be that one set of judges who are

54:52

really smart and got appointed by a president and confirmed

54:54

by the Senate and a number of

54:56

them on a panel decide something one way, and

54:59

then a different bunch of robed folks who

55:01

also ideologically split decide something

55:03

completely a different way. Is that about

55:06

brain function and intelligence or

55:08

something else? I think it's a

55:10

combination of them. So I think part of

55:12

it is intelligence. I think you might be

55:14

slightly overstating the ability of the

55:16

media and federal judge. But

55:19

also- You know, judges listen to this podcast. I'm going

55:22

to hear from them. I didn't name names. I'm

55:25

not talking about anyone who listens to your podcast. But-

55:28

In canon? Well, so I was going to bring up

55:30

Judge Cannon, right? So Cannon's an interesting example. I mean,

55:32

I think there's a debate about whether she's just in

55:35

over her head or whether she's acting maliciously. And

55:38

I'm very reluctant in general to

55:40

ever impute bad faith to

55:43

anyone when there are plausible

55:45

explanations of how they did something

55:47

wrong, but in good faith. There

55:50

are lots of ways that judges doing

55:52

the best they can make

55:54

good faith mistakes. That's what

55:56

our legal, our legal system has three tiers of appellate

55:58

review, or at least two. full tiers of appellate

56:01

review because of that fact.

56:03

And that can be because a

56:06

judge just doesn't understand the

56:08

relevant doctrine the way that the appeals courts

56:10

do, or a judge is

56:12

just sort of so inclined

56:14

to lean in one direction in a

56:16

particular case, compared to their

56:18

brethren on the appeals court. It's

56:21

not true that just because the Supreme Court says something that

56:23

it's right. And so I just, I

56:25

think- I'm into that. But the point

56:27

here is that we are able to look

56:29

at an opinion and explain what is

56:31

good about it and what is bad about it. And

56:34

that's part of my job. I mean, I write my newsletter

56:36

to say, hey, take

56:39

last year's student loan case. So I wrote

56:42

a newsletter, the title of which was

56:44

the lawlessness of the Supreme

56:47

Court standing analysis in the student loan case.

56:49

And I chose that word very carefully because

56:51

I think most of what the Supreme Court

56:54

does is perfectly lawful.

56:56

I think the Supreme Court has the power to

56:59

interpret the Constitution, even when it interprets the Constitution

57:01

in ways I disagree with. I

57:03

think the Supreme Court can believe that equal

57:05

protection means different things than I think it

57:07

should mean. What was so

57:09

galling to me about the student loan case

57:12

was that the court was only able to

57:14

even reach the merits by

57:16

asserting power that I think the Constitution

57:18

didn't reasonably give it, right?

57:20

Because I don't think that Missouri had

57:23

standing. And I guess

57:25

I wanna die on the hill that

57:27

we can separate and we should be

57:29

able to separate judicial decisions

57:31

we disagree with because we just read

57:34

the relevant text in a way that

57:36

is reasonably different from the judges who

57:38

were reading it. And judicial

57:40

opinions that actually are, if

57:43

not lawless, at least like deeply,

57:45

deeply flawed. And that's a

57:47

fight I wanna have. Good.

57:51

I will let you do that in a few minutes.

57:53

I mentioned earlier the 10 commandments. And

57:56

this is something that I would expect would make its

57:58

way to the Supreme Court potentially as well. The

58:00

state of Louisiana, notwithstanding

58:03

direct constitutional precedent

58:05

to the contrary, has adopted a law

58:08

that will require classrooms throughout

58:11

the state of Louisiana to

58:13

post the Ten Commandments. Is

58:16

that another example of people just sort of taking their shot

58:18

because they have a number of personnel

58:20

changes on the court? Because

58:22

my recollection is that in 1980, the

58:25

Supreme Court ruled exactly the opposite way, that such

58:27

a thing would be a violation of the Establishment

58:29

Clause. And I can't remember if also the

58:31

Free Exercise Clause, but both of

58:33

those challenges have been brought by the ACLU already

58:36

in Louisiana. What the heck is going on

58:38

there? So I think part of what's going on

58:40

is exactly what you say. In

58:43

the middle of that crazy last week of the

58:45

term two years ago, when the court

58:47

handed down Bruin and Dobbs, it also handed down

58:49

those two cases, Carson versus

58:52

Macon and Kennedy versus Bramerton,

58:54

that really all but spelled

58:56

the end of the so-called Lemon Test,

58:59

this 50-year-old standard for

59:01

how to enforce the Establishment

59:03

Clause. And the 1980

59:06

case you mentioned was based largely on

59:08

lemon. And so Louisiana

59:10

says, well, hey, shoot, if lemon is

59:12

in the dustbin of history, as Justice

59:14

Gorsuch tells us it is, then

59:17

let's take our shot. But then what is this

59:19

thing? So can you take 45 seconds and describe

59:21

the reasonable lemon test? Let's back

59:23

up a second. The basic idea behind the Lemon

59:25

Test was that a law is

59:27

unconstitutional as an establishment of

59:30

religion if it expresses

59:32

a preference for a particular religious

59:34

view or even for religion over

59:37

irreligion. It was a pretty sweeping,

59:39

broad, no-holds-barred test that over the

59:41

last 15 or 20 years, as

59:47

our debates over religious freedom

59:49

had increasingly divided us along

59:52

ideological grounds, had become a bette

59:54

d'oir of conservatives because

59:56

it basically, in their view,

59:58

unduly handcuffed. government from

1:00:02

the way they would say it, putting religion

1:00:04

on equal footing, right, to irreligion. Without

1:00:07

the Levin test, you know, I don't know

1:00:09

that it's clear what the standard is for

1:00:11

Establishment Clause challenges other than that it's going

1:00:13

to be harder to prove them. And

1:00:16

you know, I think what Louisiana is counting on

1:00:19

is, you know, the worst case scenario here

1:00:21

is that, you know, three or four years from

1:00:23

now they get slapped down by the Supreme Court.

1:00:26

But maybe along the way, they get favorable decisions

1:00:28

from a district court and the fifth circuit. But

1:00:31

could this Ten Commandments case ultimately, if it

1:00:33

reaches the Supreme Court, turn

1:00:35

out to be like the Mipha

1:00:37

Pristone case or the Rahimi case,

1:00:39

that even though there are

1:00:42

conservatives dominating the court, that

1:00:45

at some point, like, it's a, come on, really,

1:00:47

we're going to force the Ten Commandments into all

1:00:49

of our public classrooms or no? With

1:00:53

the current court, yes. I mean, I think

1:00:55

if this issue is decided by this court,

1:00:57

this court will strike down the Ten

1:01:00

Commandments in the classroom. Even this court.

1:01:02

Even this court. And

1:01:06

if President Trump is elected in November and

1:01:08

he gets to replace, you know, more justices,

1:01:11

I'm not sure how confident I would feel about that.

1:01:13

But at least with this court, even this court, what's

1:01:16

complicated about that period, of course, is then

1:01:18

you get folks who are defenders of this

1:01:20

court who will say, see, look, this court

1:01:22

is not nearly as bad as you crazy

1:01:24

people say it is. How do you respond

1:01:27

to that? I respond

1:01:29

to them with the notion that

1:01:31

elementary statistics should be mandatory education

1:01:33

in this country. Right?

1:01:35

Like, you know, you

1:01:38

can't measure the current court's ideological bent

1:01:40

in a vacuum and without regard to

1:01:42

the cases it's taken. You know, there

1:01:45

was a piece in Politico last

1:01:47

month that drove me almost to

1:01:49

insanity because it was like, look

1:01:51

at, you know, look at how

1:01:53

often the justices are not divided

1:01:55

along ideological lines. And

1:01:57

my response is, well, yeah, in a

1:01:59

bankruptcy. I'm not expecting the court

1:02:01

to be fighting over originalism. But

1:02:04

when you have ideologically charged cases

1:02:06

that are pushing even this court

1:02:09

further to the right than it wants to go, I

1:02:12

don't know that it tells us that much about this

1:02:14

court that they're pushing back, right? Compared

1:02:16

to what it's telling us about the lower courts. You make an

1:02:18

important point. It can always be worse. Well,

1:02:20

not only can it always be worse, but just

1:02:23

something we don't talk about nearly enough when we

1:02:25

talk about the Supreme Court is

1:02:27

how important selection bias is.

1:02:30

In any effort to describe the overall work

1:02:32

of the court and the fact

1:02:34

that the justices get to pick and choose, you

1:02:37

know, 98 to 99% of the cases that they decide ought

1:02:41

to be included, whether it's

1:02:44

sort of a op-ed or an academic

1:02:46

piece that tries to draw broader conclusions

1:02:48

from, you know, voting patterns. You

1:02:51

know, your point about selection bias and

1:02:53

their ability to select cases is very important, but it

1:02:55

leads me to, I guess, my final set of questions,

1:02:58

which is about the court's

1:03:00

ability to select which questions, even

1:03:02

within a case, it

1:03:04

will answer and select the

1:03:06

basis on which they will decide a question, whether

1:03:08

it's a narrow basis or a broad basis or

1:03:11

something in between, right? So

1:03:13

in the Mipha Pristone case, one of the

1:03:15

reasons you could have consensus was

1:03:17

that there was not really an addressing of

1:03:20

the underlying issues. It was all about standing and

1:03:22

whether or not these particular petitioners and plaintiffs had

1:03:26

proper standing under the law. So

1:03:28

they didn't have to have disagreements and squabbles about

1:03:30

the efficacy of Mipha Pristone or, you

1:03:33

know, the FDA's authority with respect to

1:03:35

Mipha Pristone. They chose

1:03:37

to decide the question narrowly. So

1:03:40

I guess my broader question is, and I want

1:03:42

to point to another Supreme Court case recently decided,

1:03:45

what's the theory behind which or under which justices

1:03:48

decide to go narrow or broad?

1:03:51

And shouldn't the, as I think

1:03:53

we were taught in law school, generally

1:03:55

speaking, shouldn't the court go narrow

1:03:57

as narrow as possible? This

1:04:00

is a big question. So

1:04:03

there is a huge tension. And I spend,

1:04:05

I mean, formally I spend half of one

1:04:07

class. In reality, I spend the entire semester

1:04:10

of my federal court's class on

1:04:12

the divide between what's called the dispute

1:04:14

resolution model and the law declaration

1:04:16

model of the Supreme Court. And the

1:04:18

dispute resolution model says, hey, your job is to

1:04:20

decide the case before you. And once

1:04:22

you've decided the case before you, you are done. And

1:04:25

it's actually inconsistent with your job to do

1:04:27

more than to decide the case before you.

1:04:31

The law declaration model is,

1:04:33

hey, your job is actually to settle what the

1:04:35

law means for everyone in the country. You

1:04:38

are a constitutional court. As a

1:04:40

constitutional court, your job is to bring finality,

1:04:42

not just to the individual cases, but to

1:04:44

the broader disputes that you're asked to decide.

1:04:47

And I think the reality is that

1:04:51

the Supreme Court, as it has taken, as

1:04:53

its docket has shrunk, and it's taken fewer

1:04:55

and fewer cases, I think

1:04:57

there's been a natural instinct and impulse

1:05:00

to gravitate more toward a law declaration

1:05:02

model. That's

1:05:05

after- Yeah, but they're not consistent. No, but that's the problem.

1:05:07

In the myth for, yeah. So there might be

1:05:09

an instinct, generally speaking, in a trend

1:05:11

towards law declaration, but boy,

1:05:14

that's a problem in the myth for a milestone case. We're

1:05:17

gonna go back to dispute resolution. But

1:05:19

does it really matter in the real world or not? I

1:05:21

think it matters in the real

1:05:23

world for two reasons. So first,

1:05:25

the inconsistency is never explained, which

1:05:28

leaves lower courts, those

1:05:31

trying to predict the Supreme Court- Isn't it

1:05:33

explained by professors? Is it explained by originalism?

1:05:35

I don't think so. That

1:05:38

was my joke. That was a joke. And I was

1:05:40

playing, but I was taking it seriously. That's

1:05:43

twice you've gotten me in this episode. I

1:05:48

think the problem is, take the Trump

1:05:50

immunity case. I mean, I was somewhat

1:05:53

horrified during the oral argument

1:05:55

in the Trump immunity case when Justice Gorsuch started

1:05:57

waxing on about how the court needs to write

1:05:59

a rule for the- ages. And

1:06:02

my reaction to that was, no, you don't.

1:06:04

There are contexts in which it would be

1:06:06

helpful to have a rule for the ages

1:06:08

because you might have future civil rights plaintiffs,

1:06:11

you might have future prisoners who can only

1:06:13

win if you have written a rule for

1:06:15

the ages. But when

1:06:17

you have these messy, one-off,

1:06:20

unlikely to recur constitutional cases,

1:06:23

if you can get a majority with a

1:06:25

narrow opinion that you couldn't hold with a broad

1:06:27

one, take the majority. And

1:06:30

I think the problem is that the court is

1:06:33

intensely aware of this tension.

1:06:37

And I think probably just as aware that

1:06:39

it doesn't do a good job of being

1:06:41

consistent in how it resolves this tension, but

1:06:43

it never resolves it. It never addresses

1:06:45

it. It never engages

1:06:48

with it. And I think we're going to see that come up a

1:06:50

lot in some of the big decisions we get

1:06:52

in the next week as we've already seen it in the Mipha

1:06:54

Pristone case. I meant to ask this question

1:06:56

earlier. How do you think

1:06:59

Justice Scalia would have thought

1:07:01

about and decided the

1:07:03

gun case we spent a lot of time talking about, the Rahimi case,

1:07:06

the restraining order gun possession

1:07:08

case? Would he have been with

1:07:10

Thomas? I doubt it.

1:07:13

I mean, the problem with Scalia would not have been with

1:07:15

Thomas. So the problem with Scalia is there really were two

1:07:17

Skoleas. There was the

1:07:20

Scalia of his first 20-ish years

1:07:22

on the Supreme Court, and there

1:07:24

was the Scalia of the last

1:07:26

five to seven. And the

1:07:28

Scalia of the last five to seven was, I

1:07:31

think, meaner. And

1:07:34

I think a little... Which one was funnier?

1:07:36

The first one. And

1:07:38

if you read a lot of Scalia opinions, and

1:07:40

not just in the high profile cases, his

1:07:43

early work is good. I mean,

1:07:45

I don't agree with a lot of it. I don't

1:07:47

agree with most of his dissent in Morrison, but it's

1:07:49

good stuff. His later

1:07:51

stuff got sloppy, and

1:07:53

it got lazy, and it got sort of angry

1:07:57

old man-ish. And so, you know,

1:07:59

if you're talking You're talking about Scalia or Alito?

1:08:01

Well, you know, as

1:08:04

one, so the other. If the robe fits.

1:08:07

But, I mean, it's interesting to ask the

1:08:09

question of why, I mean, it's a common

1:08:11

narrative that there are Republican appointees who, you

1:08:13

know, gravitated to the left while they were

1:08:16

on the court, whether it was John Paul

1:08:18

Stevens or David Souter or even Anthony Kennedy

1:08:20

to some degree. It's

1:08:23

interesting to me how I think Scalia and

1:08:25

as we're seeing with Alito have

1:08:27

really, you know, really gravitated not

1:08:29

just to the right, but to the sort of,

1:08:31

you know, almost the fringy right in

1:08:34

ways that I think are worrisome. So just to

1:08:36

answer your question about Alito, I think about Alito.

1:08:38

That's Scalia. I think if it was, you know,

1:08:41

the Scalia who wrote Heller, I think

1:08:43

he probably would have upheld the

1:08:45

law in Rahimi. And I think his majority opinion

1:08:48

of Heller, you know, specifically identifies other gun control

1:08:50

laws that he would have voted to uphold. If

1:08:53

it was the Scalia a couple of years later, I don't know.

1:08:56

And I think that's, you know, that was an

1:08:59

interesting tension in Scalia's own jurisprudence. I don't think

1:09:01

we've done a lot with in the, you know,

1:09:03

eight years since he left

1:09:05

us. So with Alito and Thomas,

1:09:07

the Dies pretty much cast and they've been on

1:09:10

the bench for a while. In

1:09:12

Thomas's case for a very long while, some

1:09:14

of these newer folks like the

1:09:16

Trump appointees, Kavanaugh, Barrett and

1:09:19

Gorsuch, can you glean any

1:09:21

or make any predictions about where they may

1:09:24

drift and shift in one

1:09:26

direction or another in the coming years

1:09:28

based on the few terms that have just been completed?

1:09:31

So I mean, I think

1:09:34

it's pretty easy now to

1:09:36

predict where Gorsuch and Kavanaugh are going

1:09:38

to be in many of the big

1:09:40

cases. Yeah. You know,

1:09:42

I think Gorsuch has a libertarian

1:09:45

streak that comes out only in

1:09:47

some very small places, only with

1:09:49

regard to, you know,

1:09:52

criminal defendants in, you know,

1:09:55

sort of some procedure in some statutory

1:09:57

cases, immigrants in some cases. Native

1:10:00

Americans, I think, across the board. I mean,

1:10:02

I think he's been as sympathetic a judge

1:10:05

for tribes, as we've seen on the court in a long

1:10:07

time, but as otherwise, I

1:10:09

think, deeply in the Thomas

1:10:12

Alito camp and the voting patterns, I

1:10:14

think, reflect that. Kavanaugh,

1:10:16

I think, is... By

1:10:21

the way, I'm going to note again for the

1:10:23

record, as I have with previous guests, that

1:10:26

for some reason our law professors, when

1:10:29

talking about the court, sigh. I

1:10:34

think Melissa Murray sighed multiple times during

1:10:36

our conversation and Professor Vladek, you too. It's

1:10:39

hard not to sigh. I mean, an

1:10:42

institution that you care a lot about,

1:10:44

and it's like when your kids do

1:10:46

something wrong. You chastise them,

1:10:48

but you also sigh, because it's like, how have I

1:10:50

failed them? So,

1:10:53

Kavanaugh, I mean, there's a great quote

1:10:55

in Ruth Marcus's book

1:10:57

about his confirmation, where

1:11:00

Ruth got one of his colleagues on the DC

1:11:02

circuit to say something to the effect of, the

1:11:05

thing we have to understand about Brett Kavanaugh is

1:11:07

that he's a fantastic colleague, except when it

1:11:09

matters. And

1:11:13

that's a pretty... I mean, if someone ever

1:11:15

said that about me, I would crawl under

1:11:17

a rock somewhere and probably never come out.

1:11:21

But I think, I mean, that's Kavanaugh. I think

1:11:23

Kavanaugh is going to be sort of

1:11:25

in the middle in a lot of these

1:11:27

big cases, but probably not that

1:11:30

many cases where he's going to be

1:11:32

the fifth vote with one of the

1:11:34

other Republican appointees and the three Democratic

1:11:36

appointees. And so that leads me to

1:11:39

the person who I think is the most interesting

1:11:41

in this whole conversation, which is Justice Barrett.

1:11:43

I think it's going to be a really fascinating

1:11:46

week. I mean, just between when you and I

1:11:48

are recording and next Tuesday for

1:11:50

Justice Barrett, because I think she's going to be in the

1:11:52

middle of many, if

1:11:54

not most of the big remaining cases. I

1:11:57

think she has the assignment, meaning that she's probably

1:11:59

right at the... opinions in the social

1:12:01

media cases, which would be a big deal.

1:12:04

I think it's entirely possible that she's the

1:12:06

median vote in the Trump immunity case. And

1:12:10

I think the big difference between Barrett

1:12:13

and Kavanaugh is a result

1:12:15

of their backgrounds. Kavanaugh

1:12:17

was a political operative

1:12:20

in the White House. Politics

1:12:23

were first, law was second. Whereas

1:12:25

Barrett, I mean, she has rather

1:12:29

far to the right views, but she was

1:12:31

an academic first and a judge

1:12:33

second. And so I think it's

1:12:35

entirely possible that by this time next week, it's

1:12:37

going to be clear that this is actually Amy

1:12:39

Coney Barrett's court. And lo

1:12:42

though I wish it weren't so, if

1:12:45

we find ourselves come January of next year

1:12:47

at the beginning of a second Trump presidency,

1:12:50

I think she probably becomes the most important person

1:12:52

in this country. And

1:12:54

that's a bit of a horrifying thing to say,

1:12:56

but I'd rather it be her than some of

1:12:59

the other folks on the court right now. Steve

1:13:06

Vladek, always great to have you on the show. Thanks so much. Thanks

1:13:10

for having me.

1:13:14

My conversation with Steve Vladek continues from

1:13:16

members of the Cafe Insider community. And

1:13:19

the bonus for insiders, we discuss judicial

1:13:21

ethics and accountability for this Supreme Court.

1:13:24

I mean, there's so much Congress could do

1:13:27

where you could have the same justices

1:13:30

and they would at least be

1:13:32

a little bit worried about the repercussions of

1:13:35

running the Constitution off of a cliff. To

1:13:38

try out the membership for just $1 for

1:13:40

a month, head to

1:13:42

cafe.com/Insider. Again, that's

1:13:44

cafe.com/Insider.

1:13:55

To end the show this week, I want to

1:13:57

take a moment to bring to your attention a

1:13:59

new advisory from the U.S. Surgeon General, Dr. Vivek

1:14:01

Murthy, who's been a guest on the show. The

1:14:04

new advisory declares gun violence in America a public

1:14:07

health crisis, addressing for the first time

1:14:09

the dire issue of gun-related deaths as

1:14:11

a matter of health rather than

1:14:13

politics. The advisory mirrors

1:14:15

similar ones from the past for smoking,

1:14:18

climate change, or as we've discussed here,

1:14:21

loneliness. Dr. Murthy's newest

1:14:23

report outlines just how much of a crisis

1:14:25

gun violence is, especially for

1:14:27

youth. As 2020

1:14:29

the report details, firearm-related injury has been

1:14:31

the leading cause of death for U.S.

1:14:33

children and adolescents ages 1 to 19. Surpassing

1:14:37

car crashes, cancer, and drug

1:14:39

overdoses are poisoning. Now

1:14:41

the 1 to 19 grouping obviously excludes

1:14:43

infants, and some suggest that including 18

1:14:46

to 19 year olds skews the stats. But

1:14:49

that does not change the fact of a

1:14:51

public health crisis that's just devastating the young.

1:14:54

And that's shameful. The report lays

1:14:56

out substantial research on the use, impacts,

1:14:59

and contributing factors to gun violence.

1:15:01

It calls for increased research into

1:15:03

health effects and prevention measures and

1:15:05

recommends a series of gun safety

1:15:07

precautions proven to decrease gun-related deaths,

1:15:09

like safe storage and background checks.

1:15:12

It also identifies education, mental

1:15:14

health care, and socioeconomic status as

1:15:16

factors that contribute to gun violence.

1:15:19

As the New York Times reported, Surgeon

1:15:21

General advisories can have a tangible impact.

1:15:24

After a 1964 smoking advisory was

1:15:26

issued, Congress voted to require health

1:15:29

warnings on cigarette packages, and smoking

1:15:31

began to decline significantly. Dr.

1:15:33

Murthy said this about the report, quote,

1:15:35

This issue has been politicized, has been

1:15:38

polarized over time. But I think

1:15:40

when we understand that this is a public health

1:15:42

issue, we have the opportunity to take it out

1:15:44

of the realm of politics and put it into

1:15:46

the realm of public health, end quote.

1:15:49

Gun violence is so pervasive and lethal in

1:15:51

this country that oftentimes it can feel

1:15:53

out of our control. It is devastating

1:15:55

communities, schools, and our nation's

1:15:58

youth. So I hope you'll join me. in

1:16:00

applauding this effort to address the health crisis

1:16:03

that it is. Well,

1:16:18

that's it for this episode of Stay Tuned. Thanks

1:16:21

again to my guest, Steve Vladek. If

1:16:28

you like what we do, rate and review

1:16:30

the show on Apple Podcasts or wherever you listen.

1:16:33

Every positive review helps new listeners find

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the show. Send me

1:16:37

your questions about news, politics, and justice.

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Tweet them to me at Preet Bharara with

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the hashtag AskPreet. You can also

1:16:44

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leave me a message at 669-247-7338. That's

1:16:51

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1:16:54

you can send an email to letters

1:16:57

at cafe.com. Stay

1:16:59

Tuned is presented by Cafe and the

1:17:01

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1:17:04

executive producer is Tamara Seppert. The

1:17:07

technical director is David Taddeshore. The

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deputy editor is Celine Rohr. The

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editorial producer is Noah Azoulay. The

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associate producer is Claudia Hernandez. And

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