0:02

Mr. Chief Justice, may it please the

0:04

court? It's

0:06

an old joke, but when a argued man

0:08

argues against two beautiful ladies like this, they're

0:11

going to have the last word. She

0:15

spoke, not elegantly, but

0:17

with unmistakable clarity. She

0:20

said, I ask

0:22

no favor for my sex. All

0:25

I ask of our brethren is

0:27

that they take their feet off

0:30

our necks. Hello

0:44

and welcome back to Strix Gertner, your

0:47

podcast about the Supreme Court and the

0:49

legal culture that surrounds it. We're your

0:51

hosts. I'm Alyssa Murray. I'm

0:53

Leah Litman. And I'm Kate Shaw. The court has

0:55

a lot on its plate in the January sitting

0:57

that starts this week. But because we tried to

0:59

take a real break over the last couple of

1:01

weeks, there is also a ton of legal news

1:03

that we need to catch you up on. So

1:05

we're going to cover some of the big legal

1:07

news and court culture topics first, and

1:09

we will then move on to a relatively quick

1:12

preview of the January cases, or at least the

1:14

cases that will be argued during the first week

1:16

of the two-week January sitting. Don't

1:18

worry, though. We are going to go into

1:20

all of the January cases in more depth

1:22

when we recap them after oral arguments and

1:24

in future episodes. So do not worry. We're

1:26

going to get you up to date. But

1:29

after we do the quick previews of the

1:31

cases that are being heard this week, we

1:33

are then going to have a very special

1:35

additional court culture segment at the end of

1:37

the episode. And that additional segment is going

1:39

to help us stay sane and centered for

1:41

what is shaping up to be another bonkers

1:43

year at the Supreme Court. And

1:46

now for some of that court culture and

1:48

legal news. So ProPublica gave us a

1:50

little end-of-year stocking stuffer the day our

1:52

favorite things episode came out. Great timing,

1:54

guys. The gist of their latest story

1:56

is that conservative billionaires basically

2:00

stepped up to create a GoFundMe for

2:02

Clarence Thomas. After Thomas complained

2:05

to Republican officials that his judicial salary was

2:07

so low, he was considering stepping down. So

2:09

in case you didn't have a chance to

2:12

read it, or you did, but it now

2:14

seems like it was surely some, like, eggnog-induced

2:16

holiday fever dream, let's walk through some of

2:18

the reporting. In one of

2:20

the most jaw-dropping episodes in the piece,

2:22

ProPublica reports that on a flight back

2:25

from Awakening, which is a conservative conference

2:27

that's very much like Eyes Wide Shut, the

2:29

Stanley Kubrick movie. Am I wrong? They

2:33

actually made me think of Life Spring,

2:35

which, if you can't remember who that

2:37

is, look it up. But

2:40

back to the flight and the ProPublica reporting.

2:43

So to quote the piece, quote,

2:45

Thomas brought up the prospect

2:47

of justices resigning to

2:49

Representative Cliff Stearns, the Republican

2:51

lawmaker, close quote. According

2:54

to the reporting, it was clear that

2:56

these resignation impulses were animated by concerns

2:58

that the justices' salaries were too low.

3:01

And after the flight, Stearns wrote a

3:03

letter to Thomas promising to, quote, look

3:05

into a bill to raise the salaries

3:07

of members of the Supreme Court. The

3:10

letter goes on to say, quote, as

3:12

we agreed, it is worth a lot

3:15

to Americans to have the Constitution properly

3:17

interpreted, close quote. How much?

3:20

Exactly, billionaires. A lot. A

3:22

lot. Many private jet

3:24

rides. Many, many, many. So the letter

3:26

continues in cases all wasn't really clear

3:29

already. We must have

3:31

the proper incentives here, too.

3:34

It's getting stringer bell. You

3:37

taking notes on a motherfucking

3:39

criminal conspiracy again, you dolt.

3:42

The here too is really interesting, which suggests like

3:44

there are other efforts of the

3:47

court for these incentives. And

3:50

here, too, these same kinds of incentives are

3:52

really critical. So I want to know about

3:54

these the other efforts. Doesn't that

3:56

beg to totally get on it? make

6:00

millions of dollars. Yeah, no. So and they can

6:02

supplement with teaching income and things like that. So,

6:04

you know, I do think I do feel like

6:06

there are people out there even on the left

6:08

who are like, you know, 275 or someone who's

6:10

been practicing. Look, it's obviously a lot of money

6:12

in objective terms. But in terms of what he

6:14

would make as a law firm partner, it is

6:17

way, way less. And yet I don't think that actually

6:19

captures what it means, not even in

6:21

terms of political and cultural capital

6:23

and status, but actually like the

6:25

material conditions of your existence, I think look different than

6:27

what a $275,000 salary

6:30

would otherwise afford. So this sounds

6:32

bad. Does everyone agree? I mean, yeah, let's leaving aside like

6:34

whether or not $276,000 a year is a lot of money

6:36

or not. If you think this

6:40

all sounds like weird suspect

6:42

cronyism, you are obviously

6:45

mistaken and wrong because it's not

6:47

right. So the article explains that

6:49

quote, George Priest, a Yale Law

6:51

School professor who has vacationed with

6:53

Thomas and Crow told ProPublica he

6:55

believes Crow's generosity is not intended

6:57

to influence Thomas's views, but rather

6:59

to make his life more comfortable.

7:02

Quote, he views Thomas as a

7:04

Supreme Court justice as having a

7:06

limited salary. Priest went on to

7:08

say, quote, so he provides benefits

7:11

for him, end quote. And

7:13

the TLDR of this is kind of what

7:15

is the big deal you all are making too

7:17

much of this. This is just like softening the

7:19

blow of being a public servant for someone who's

7:22

been a public servant since he was like 41.

7:25

Like this is all very,

7:27

very normal. Stop bitching, Liv.

7:29

Well, he's been a public servant for

7:31

most, right, with the exception of that

7:33

brief period. I'm talking specifically about the

7:35

time on the bench where it seems

7:37

not accepting gifts from large

7:39

donors. I'm just saying I'm not sure he

7:41

was not accepting gifts. I think some of

7:44

the ProPublica reporting suggests that even back in

7:46

EEOC days, he may have already been inclined.

7:48

But maybe it's actually even more important not

7:50

to at the time he ascends to the

7:52

bench. It's probably right. Whatever the

7:55

case, you know, the level of shamelessness

7:57

of the George Priest quote is for

7:59

me giving the Real

8:01

Housewives of Salt Lake City level of

8:04

finale shamelessness, like Monica is not

8:06

who you say she is, you

8:08

are an internet troll in cyberbully.

8:11

Reala, Reala Chita-Vangi. Exactly,

8:14

exactly. Because just a reminder for

8:17

listeners that George Priest is the

8:19

same Yale Law professor who then

8:21

feeder Judge Alex Kaczynski called when

8:24

Kaczynski needed a clerk and George

8:26

Priest recommended his favorite pickup basketball

8:28

player Brett Kavanaugh. And this is

8:31

very consistent, of course, with Republicans'

8:33

position that they are a workers' party now.

8:35

And just to be consistent in pointing out

8:38

the hypocrisy on both sides, I'd like to

8:40

note that Democrats say they are a workers'

8:42

party and support raising wages until it's a

8:44

Supreme Court justice wanting a bunch of perks

8:46

above and beyond. They're guaranteed $200,000

8:49

plus a year salary for life and

8:51

various other ancillary benefits. Like why do

8:54

you try to keep the working man

8:56

down, Democrat? What has Joe Biden done

8:58

to help an unemployed, nonprofessional basketball

9:00

player in his term and office?

9:03

Not one thing. Not one thing.

9:05

I feel like that should lead

9:07

to presidential campaign ads, absolutely. And

9:09

we're wondering why there's flagging support for

9:12

the Biden administration and justice for pickup

9:15

basketball players and clerkships for them too.

9:18

And Supreme Court appointments as well. All

9:21

of it. So back to the specifics

9:24

of the ProPublica story, it seems like

9:26

we have reached the point at which

9:29

possible violations of

9:31

the law by Supreme Court

9:33

justices are kind of relegated

9:35

to the status of parentheticals in these ProPublica

9:37

stories. So the story includes this line,

9:39

quote, Thomas reported 11 free

9:42

trips that year on his annual

9:44

financial disclosure, mostly to colleges and

9:46

universities, but did not disclose the

9:49

conservative conference that the awakening conference

9:51

on a current violation of federal

9:53

disclosure. We don't

9:55

know what went down at that conference, Melissa, to be fair. And

9:58

I mean, look, it's just an aside in the piece. But

10:00

certainly the facts do suggest strongly that

10:02

there was a violation of the federal

10:04

disclosure law there And I do

10:06

hope that congressional Democrats who do seem to

10:08

be starting 2024 with a little bit of

10:11

fire in their bellies Will do something

10:13

about this because it's really important to not

10:15

allow the stuff to be normalized including in

10:17

the form of just like casual asides

10:19

in bombshell reporting that no one does

10:21

anything to follow up on follow

10:23

up So on to

10:25

other news in our new year's

10:28

episode friend of the pod Jonathan van Ness

10:30

asked us to do more on the state

10:32

courts a big part of state court dockets

10:34

right now is Basically devoted to

10:36

deciding whether or not Donald Trump can

10:38

actually appear on a state's ballot either

10:40

in a presidential primary Or

10:43

in a general election. So boom

10:46

Lawyerd state courts back in the news

10:48

and other state actors as well So

10:51

there's been a lot of news since we last recorded So

10:53

we're gonna have to be brief in covering

10:55

it But first the main Secretary of State

10:57

determined pursuant to a state process under which

10:59

voters can challenge candidate Eligibility that

11:01

Trump is ineligible to appear on

11:03

that state's ballot But she

11:06

also said given the novelty and the importance of

11:08

the question that her ruling that is the state

11:10

Secretary of State's ruling wouldn't go into effect

11:12

until courts had had a chance to review

11:15

it Okay So that's Maine also before the

11:17

holiday and before the main ruling the Colorado

11:19

Supreme Court ruled that Trump was ineligible to

11:22

appear on that State's presidential primary ballot they

11:24

also stayed their ruling until the day

11:26

before the ballots would be printed or Until

11:29

there was Supreme Court review of the

11:31

decision provided that Trump asked for Supreme

11:33

Court review before January 4th Which

11:35

he then did so that decision remains

11:37

stayed and actually after we

11:40

sat down to record this episode The court

11:42

granted the petitions asking for review of the

11:44

Colorado Supreme Court decision So that is now

11:46

added to the courts already loaded docket for

11:49

this winter and spring So

11:51

the question whether Trump can appear on

11:53

a state's ballot turns on section 3

11:55

of the 14th amendment which provides quote

11:58

No person shall hold any office civil

12:00

or military under the United States or

12:02

under any state who, having previously taken

12:04

an oath as an officer of the

12:06

United States to support the Constitution of

12:08

the United States, shall have engaged in

12:10

insurrection or rebellion against the same or

12:13

give an aid or comfort to

12:15

the enemies thereof. But Congress, made by

12:17

a vote of two-thirds of each House,

12:20

remove such disability." So,

12:22

on a previous episode, we rattled off

12:24

all of the legal questions that courts

12:27

would encounter in trying to determine whether

12:29

Section 3 of the 14th Amendment

12:31

disqualified Donald Trump. And some of those

12:33

questions include, one, whether the

12:36

provision applies to the office of

12:38

the president, two, whether courts can

12:41

disqualify someone absent an act of

12:43

Congress authorizing such disqualification, three, whether

12:45

states can disqualify someone absent a

12:48

similar act of Congress, four, what

12:51

actually constitutes a finding that someone was

12:53

engaged in an insurrection? Do you have

12:55

to have a criminal conviction of insurrection?

12:58

If so, under what criminal

13:00

statutes would that be plausible?

13:03

Then you have to decide, number five,

13:05

whether Trump was engaged in an insurrection,

13:08

and six, whether the stuff that Trump

13:10

allegedly did in furtherance of an insurrection

13:12

was consistent with the First Amendment and

13:14

protections for free speech. So, does he

13:16

get a get out of jail free

13:18

card because of free speech, essentially? And

13:21

then, finally, whether the processes that

13:24

states have set up to resolve

13:26

these qualification and disqualification questions comply

13:28

with other constitutional guarantees, like,

13:30

for example, the Due Process Clause of the

13:33

14th Amendment? For the most part, Trump would

13:35

just need to prevail on one of these

13:37

arguments of the list that Melissa just offered.

13:40

So, either the provision doesn't apply

13:42

to presidents, or Congress has to pass

13:44

enabling legislation, or the state proceedings in,

13:46

say, Colorado weren't sufficient for making this

13:48

kind of finding. So, differently,

13:50

the entities trying to keep Trump off the ballot

13:52

have to run the table to keep him off. So,

13:55

we're not going to spend time now getting deep into the

13:57

weeds of each of these arguments, but we cannot resist offering

14:00

just a few thoughts. And we will start with some

14:02

big picture thoughts on how to think about all of

14:04

this. We didn't do a Festivus episode

14:06

hindsight 2020. So I have a bunch of

14:08

grievances, I would like to level at people

14:10

for how this issue has been covered, at

14:12

least in some quarters. One big

14:14

complaint I have is how some punish

14:17

commentators scholars have seized on Trump's argument

14:19

that enforcing this provision would be undemocratic.

14:21

And they might mean that in a

14:23

few different ways. One, it

14:25

might be undemocratic because doing so limits

14:27

the options in an election. Two, they

14:30

might mean it's undemocratic because courts are

14:32

enforcing a constitutional provision against elected officials.

14:34

But if you think about that for even

14:36

just one second, limiting the options

14:39

in the political process is how most

14:41

of constitutional law works. Roe

14:43

limited political options. It said state legislators

14:45

couldn't force women to become septic in

14:47

parking lots. And I don't see the

14:49

Supreme Court justices saying, oh, we can't

14:52

enforce the Second Amendment because that's undemocratic

14:54

and hasn't been understood to confer an

14:56

individual right to own firearms for 200

14:58

years. Plus, enforcing some things

15:00

against the political process and limiting

15:02

political options actually is undemocratic because

15:04

some things are preconditions for democracy to

15:07

function like hypothetically or not so hypothetically.

15:09

If a legislature said women can't have

15:11

health care or autonomy, invalidating that law

15:13

wouldn't be undemocratic. It would be

15:15

undemocratic in the sense that courts would be overturning

15:18

a law passed by the political branches. But I'm

15:20

going to go out on a limb and say

15:22

that would still be okay for democracy. And this

15:24

particular provision section three is a provision designed to

15:26

facilitate multiracial democracy. Unlike other requirements

15:28

like the president be a natural born citizen

15:31

of a certain age, which I don't see

15:33

people declaring that unenforceable because it would be

15:35

undemocratically preventing fetuses from becoming commander in chief.

15:37

To me, in order to think about this

15:39

issue or this question, you have to think

15:42

about stuff like the aftermath of reconstruction and

15:44

redemption. What happened when you didn't punish insurrectionists

15:46

and let them back into power? I don't

15:48

think this is an easy question or that

15:50

there's an easy answer as to which way

15:53

the high politics of democracy cut. You

15:56

know, I think you have to think about like where the greater

15:58

risk to democracy lie and what courts proper rules. should be,

16:00

but these arguments about why it's undemocratic to enforce

16:02

Section 3 don't cut it and to me they

16:04

are just part of a larger campaign to neuter

16:06

the 14th Amendment because conservatives don't like it. Well,

16:09

I think it's easier to do all of this

16:11

work if you have no idea what reconstruction or

16:13

redemption is because you basically made it

16:15

illegal to teach any of those things

16:17

in a public school. That's fair. Again,

16:19

that broader campaign as you were mentioning.

16:21

So I'll

16:24

just say one thing. I think the Supreme Court is

16:26

going to go in for a very surgical way to

16:28

kind of get in and out of this. And as

16:30

you say, Donald Trump only needs to prevail in one

16:32

of these arguments to win here. And I think the

16:35

cleanest way to deal with this without ever

16:37

having to delve into the history. Well,

16:39

I know you have to delve into the

16:42

history somewhat, but you don't really dig into

16:44

it too much because there is an existing

16:46

case. But I think you could say, and

16:48

I think the court will say that you

16:50

actually need enabling legislation in order

16:53

for this to happen. And since there is

16:55

none here that wipes the question off the

16:57

table, not just in Colorado, but in every

16:59

state. And they can

17:01

get to say they're following precedent because they're

17:04

following Griffin's case, which is a circuit

17:06

justice case. Let's just

17:08

what what what we are. What what

17:10

we are. I hate this argument. I

17:13

hate the enabling legislation argument so much because

17:15

you don't like it. I

17:17

mean, I know, but like you

17:19

can summarize it. But then I guess like

17:22

wearing a polo shirt. I

17:24

don't love it, but it matches my khakis.

17:26

Like I'll put it on. It's serviceable. Like

17:28

I think it's a serviceable argument for them.

17:32

It's not actually serviceable because the rest

17:34

of the 14th Amendment like September which

17:36

there is a legal protection of the law. Even

17:40

if Congress doesn't pass a

17:42

statute enabling it and like Section

17:44

three of the 14th Amendment is

17:46

an essential component of rejection. That's

17:49

all I really I know. I

17:51

know. I

17:53

don't know if you've all read Mark

17:55

Graber's book punish treason reward loyalty, but

17:57

it really makes I think just an

17:59

overview. overwhelmingly persuasive case that

18:01

these kinds of provisions were

18:05

Understood as integral to reconstruction and then

18:07

the idea that those parts would be

18:09

unenforceable to me is just

18:14

So again, I think just thinking

18:17

about what is an expedient and practical way because I

18:19

mean just as a practice matter I don't think there

18:21

is any way that this court is going to allow

18:24

The Colorado decision to stand because it would

18:26

create a patchwork closure Before

18:28

the election and like they just don't want that

18:30

predictably 100% I

18:32

also think in dear this is not my own

18:34

thought but this is something that I'm cribbing from

18:37

Darrell Miller of Duke Law School This is kind

18:39

of like a ticket to

18:41

ride like this one good for one trip

18:43

only like this issue is the bush versus

18:45

gore I mean, I don't know that this

18:47

question is going to come up over and

18:49

over and over again and future it seems

18:51

like very specific very idiosyncratic for this particular

18:53

candidate and You

18:55

know the way you decide it for this

18:57

particular candidate will have real repercussions For

19:00

the incentives that other people have to use this provision

19:02

going forward And I think they just want to cut

19:04

it off at the knees But also the

19:06

enabling with the Delia's point the enabling legislation

19:08

as a basis for like taking an off-ramp

19:12

Does that call into question like the actual first ability

19:14

of other provisions the Constitution's including of the

19:16

Fourth Amendment? Like maybe it all requires enabling

19:18

legislation. I mean, that's a two-fer, right? I

19:21

agree like with the predictive claim Melissa

19:28

that that seems very likely and I also agree with

19:31

Lee and I think you agree to Melissa that it's

19:33

a I don't Think that's a good argument. Um, so

19:35

I find this all really hard not because that

19:37

argument is hard or really on the merits

19:39

Like honestly, I think that if you take

19:42

the Constitution seriously And that means like its

19:44

words in context its values the consequences of

19:46

different potential rulings like Trump should be ineligible

19:49

Like I actually don't think it's hard on the merits But I

19:51

do think the kind of question of sort of constitutional politics are

19:53

hard I I don't know what

19:55

the court should do here. I just like I know

19:58

how bothered I am by some of

20:00

the arguments that I have heard made. And there

20:02

is this kind of general chorus that has been,

20:04

I think, kind of bipartisan

20:06

cross ideological, which is just like the

20:08

Supreme Court must decide this. And,

20:11

Eww. Practically- Those guys really-

20:13

Exactly. It's like the

20:16

uniformity argument is powerful. That makes sense. Like

20:18

a patchwork where ballots look totally different from

20:20

the perspective of the major party candidate

20:22

across the country seems intolerable. On the

20:25

other hand, right, it just is so

20:27

uncritically accepting of this

20:30

notion that only the Supreme Court can decide the

20:32

most important questions in our democracy. Like that's

20:34

something that I feel like we have been working very, very

20:37

hard to resist, you know,

20:39

in the podcast and elsewhere for a long time. And so like that

20:41

as the kind of precondition to all

20:43

of those arguments that the court must swoop in, I

20:45

think, revise this notion of the Supreme

20:47

Court as the ultimate and only arbiter of the

20:49

meaning of the constitution. And even if that might

20:51

practically be the case here, like I don't want

20:53

to uncritically accept that. And so I think a

20:55

lot of people, no matter what they think the

20:58

right answer is, like all seem to agree that

21:00

the court has to answer the question and I

21:02

am really troubled by that assumption. Yeah. I

21:04

mean, like me too, because like ordinary politics

21:07

are also happening, right? Like people tried to

21:09

convince the Republican Party to let Trump go

21:11

with the January 6 hearings and opportunities to

21:14

discuss about Trump and they are still happening

21:16

now. And like, I'm also concerned about giving

21:18

the court and courts outside's role in our democracy,

21:20

but at least some of these cases like

21:22

May and Rose in the context of another

21:24

institution and official concluding Trump is disqualified. So

21:26

courts like hypothetically could say our role is

21:28

just to decide whether that determination falls within

21:30

the bounds of some zone of reasonableness of

21:32

like constitutional democracy. But of course that's not

21:34

what they're going to do. But I can

21:37

only hear you. Another sort of strain

21:39

of commentary that is also just like driven

21:41

me bonkers is this suggestion that, you know,

21:44

people invoking the 14th Amendment Section 3 are

21:46

like doing this in some sort of, you know,

21:48

in the hopes that it will serve as a

21:50

deus ex machina and like it'll be this easy

21:53

out that will let us avoid the messy and

21:55

difficult work of like politics and democracy. And like

21:57

that is, I think wildly unfounded in part. of

22:00

what you just alluded to, like the messy and hard work

22:02

of politics and electoral democracy happened in 2020. It

22:04

resulted in the resounding defeat of an incumbent, which is

22:07

not a super common event

22:09

historically. And that defeated incumbent

22:11

attempted to cling to power using multiple

22:13

lawless means in ways that should disqualify

22:15

him from future office holding. Like that's

22:18

the argument. I think it's a sound

22:20

one. And so this is not about

22:22

avoiding politics. This is about, you know,

22:24

meeting up constitutional consequences for an effort

22:27

to completely usurp politics and democracy. So

22:29

I think that that argument gets it

22:31

basically exactly backwards. Yeah. And

22:33

if I could just say one thing about Griffin's

22:35

case, which is the case, Melissa, that you noted

22:37

that the justices like might rely on to say

22:40

that enabling legislation is required to enforce Section three.

22:42

That was, as you said, a case that a

22:44

Supreme Court Justice sitting as a circuit judge decided.

22:47

But the case is pretty thin

22:49

because a specific issue in the

22:51

case was basically whether to invalidate

22:53

all of the acts of the

22:55

provisional government set up in the

22:58

form of Confederacy. And that's a

23:00

very different question than deciding ex

23:02

ante, whether someone is

23:04

qualified to run for office versus whether you

23:06

are going to say, actually, this government that's

23:09

been doing all of these things to set

23:11

things up in the wake of the civil

23:13

war, we're actually going to say everything they

23:15

did is unlawful, right? There are documents like

23:18

the facto officer and whatnot that basically say,

23:20

even if someone is might be like illegally

23:22

appointed or whatnot, you still can invalidate everything

23:25

they do. And so the idea that that

23:27

case results in also like is not exactly

23:29

the firm support the Supreme Court might suggest

23:31

it is. That's the last part is, I

23:34

think, really important, because I think a lot

23:36

of the people who have been harping on

23:38

and on about Griffin's case are taking a

23:40

very a nuanced view of it. And I

23:42

think the court's likely to parrot back that

23:44

very a nuanced view. Speaking

23:46

of nuanced views, though, a very wise

23:48

man once said that there

23:51

are no Trump judges or Obama judges,

23:53

there are just federal judges

23:55

doing their level best. I

23:57

bring this up because Donald Trump.

24:00

seem to be feeling pretty

24:02

confident that in fact there

24:04

are some Trump justices. In

24:06

fact, they've gone so far

24:08

as to suggest that one

24:10

Brett Kavanaugh, a formerly

24:12

unemployed pickup basketball player, come law clerk

24:14

will fight for Donald Trump in much

24:16

the same way Donald Trump fought for

24:19

Brett Kavanaugh, resulting in him having a

24:21

lifetime appointment to the highest court in

24:23

the land. So let's play this clip.

24:25

I think it should be a slam

24:27

dunk in the Supreme Court. I have

24:29

faith in them. You know, people

24:31

like Kavanaugh, who

24:33

the president fought for, who the president

24:35

went through, helped to get into place,

24:37

he'll step up. I like that she

24:40

used basketball analogies too. Chef

24:43

kiss. Giving a

24:45

little like the refs turns on the plane, like you

24:47

do something for me and I do something for you,

24:49

sort of like the atomic conversation. You scratch my back,

24:52

I'll scratch yours. So we're joking

24:54

a little bit about, you know, the idea that Donald

24:57

Trump thinks some of the justices

24:59

are in the bag for him.

25:01

But I will also make clear

25:04

that there are some people who

25:06

are becoming literally unhinged about the

25:08

prospect of the court taking on

25:10

these cases and the threat of

25:12

political violence here is actually quite

25:14

real. So the main secretary of

25:16

state has been the victim of

25:19

a swatting attempt after her decision

25:21

to disqualify Donald Trump from that

25:23

state's ballot and there have

25:25

been threats against the justices of the

25:27

Colorado Supreme Court as well as that

25:30

state's secretary of state. CNN

25:32

reported that someone allegedly broke into

25:34

the Colorado Supreme Court building an

25:37

open fire while holding a guard

25:39

hostage. So again, all

25:41

of this is in response to that

25:43

state court's decision to disqualify Donald Trump

25:45

from the ballot in Colorado. So

25:58

in other Trump related news Since we last... The

26:00

Horn and it's the Supreme Court denied

26:02

sort before judgment in Special Counsel Jack

26:04

Smith case against Trump related January Sixth

26:06

of Recall that Trump is arguing here

26:08

that he is immune from prosecution. He

26:10

is. Basically saying that if the president does it,

26:12

it is not illegal. Or and is

26:14

making a couple of other similar claims and

26:16

Jack Smith as the supreme court to quickly

26:19

resolve these questions so that a trail could

26:21

proceed as scheduled. This spring it's he was

26:23

seeking was called cert before judgment, asking the

26:25

court essentially to agree to bypass the court

26:27

of appeals and to directly hear the appeal

26:29

from the district court. I thought there was

26:31

a decent chance the court actually would grants

26:33

or before judgment because I thought it would

26:35

look so bad. Not too. But I think

26:37

the petition was undermined by the Dc Circuit

26:39

decision to set a very fast argument in

26:41

the appeal from the district courts. So I

26:43

think that the Supreme court could be understood

26:45

to have denied sort of our judgment in

26:48

order to let that court take a quick

26:50

first pass. And I do hope and I

26:52

expect that dead Dc circuit will decide to

26:54

case very quickly, so Scotus will again have

26:56

the question whether to take it up and

26:58

to decide it swiftly so the trial can

27:00

happen or not like it'll really be in

27:02

the supreme court hands at that point. There

27:05

was a lot of discussion on

27:07

cable news and elsewhere about whether

27:09

this was an unalloyed victory for

27:11

Donald Trump or in of. This

27:14

is just a very minor delay

27:16

given that the Dc Circuit will

27:18

hear oral arguments on Tuesday, January

27:20

nine switches tomorrow. But as

27:22

I say, I think it is kind of

27:25

a tactical victory for him because I think

27:27

at this point in time given. The

27:29

limited amount of time for a trial

27:32

like any delay is really a problem.

27:34

And you know. There's going to

27:36

be an argument before judges Henderson,

27:38

Pan and Chiles I'm we don't

27:40

know if there might be and

27:42

on Bark Review. Of. Any decision

27:44

from that panel and then it goes to

27:46

the court. We don't know how long the

27:48

court will take to take up a petition

27:50

for reviews. I mean, I.

27:53

think this is a tactical victory for him

27:55

because it adds more time to the clock

27:57

and there just isn't that much christian here

27:59

for all of this to happen

28:01

in time for the election. And so,

28:04

you know, it's possible we could

28:06

get a quick panel decision with a limited

28:08

stay in order to push this along. But

28:10

again, all of the other things that I

28:12

mentioned, I think are in the offing and

28:14

are real possibilities. And we'll

28:16

just have to see. But it seems clear that the

28:18

Supreme Court is definitely not willing

28:20

in this case to do the

28:22

kinds of things that we have

28:24

seen the Supreme Court do in

28:27

other issues where it has been

28:29

very happy to grant cert before

28:31

judgment. See, for example, all

28:33

of the times they did it for

28:35

the Trump administration, all of the times

28:37

they did it with affirmative action, for

28:40

example. So it

28:42

feels a little inconsistent, but I'm not

28:44

surprised. All right. So this is another

28:47

kill, surprise moment. And we'll just have

28:49

to wait and see if there is going to be a trial before

28:51

the summer and before the election. I

28:54

think we've heard a rumor about what might

28:56

happen or someone who might be present at

28:58

this D.C. Circuit oral argument. This happens when

29:01

you hang out in Washington, D.C., which I

29:03

don't do that often. But I like was

29:05

just hanging out in an elevator and I

29:07

heard a little hot tip. And that hot

29:09

tip was that one DJT might

29:12

be in the audience at the D.C.

29:14

Circuit on January 9th when his case

29:16

is literally pled before that three judge

29:18

panel. How do you think that's going to

29:20

go? I mean, this is not a

29:22

man who's a repeat player in

29:25

the appellate audience. Does

29:27

he know how to behave there? I mean, this is not a place where

29:29

it's not like a district court

29:31

or a trial court. He's

29:34

been pretty doctor when he's appeared in courtrooms, I would say,

29:36

to date, like when he is the defendant in court. So

29:38

I think he's like now he's had a lot of practice

29:40

in the last few months. That's true. I think

29:42

that's that he has been a player in

29:44

the court. I

29:47

will say from in terms of him in the

29:49

audience, he was I was in

29:51

the Supreme Court for the

29:53

Gorsuch Investiture and he was there. I'm pretty

29:55

sure that's when it was. And he was

29:57

sitting in the front row of like the.

29:59

justices benches and if you've been inside the

30:01

Supreme Court courtroom like everything is really small

30:03

like the benches are small the seats are

30:05

small and Donald Trump is

30:08

a very tall and large man

30:10

and like he kind

30:12

of looked like like Will Ferrell in

30:14

those scenes in Elf on the South

30:17

sitting on the

30:19

elf sized

30:22

you know like toilet and table and stuff and he just

30:24

like his knees are like in his nose it's sort of

30:26

like what Donald Trump in the Supreme Court looked

30:28

like to me I don't know the dimensions of

30:30

the DC circuits courtroom so I don't know if

30:32

he's gonna look similar there I'm kind of

30:35

hoping there will be some like live tweeting or

30:37

live posting on true social from the

30:39

arguments but I'm really

30:41

interested to find out what happens during

30:43

that oral argument I do love

30:46

that Kate is the one that everyone thinks is

30:48

the nice one and she never snark and she

30:50

literally just dropped Donald Trump looked like Will Ferrell

30:52

sitting on an elf toilet and

30:57

not allegedly I saw him with my eyes

30:59

and new year I'm just I

31:01

was also getting really

31:04

getting to start our recording oh

31:06

that's a good segue though but the real

31:08

per JVN we need to spend more time

31:11

talking about state courts and on

31:13

our favorite things episode we discussed the oral

31:15

arguments in the Wisconsin Supreme Court challenging the

31:17

state's heavily gerrymandered state legislative

31:19

maps and that court delivered

31:21

an early Christmas present for democracy

31:23

by invalidating those maps not on

31:25

the ground that they're a partisan

31:27

gerrymander but the fourth reappinions written

31:30

by Justice Kirovsky concluded the maps

31:32

violated the state constitutional requirement that

31:34

districts be contiguous and on

31:36

the merits the opinion is like a

31:38

super straightforward application of the text of

31:41

the state constitution which requires districts to

31:43

be constructed from contiguous territories but in

31:45

some ways the most interesting part of

31:48

this case were the dissents which were

31:50

practically feral not all

31:53

that surprising given the practically feral

31:55

participation by the dissenters during the

31:57

oral argument in the case so

32:00

I'm just gonna start with the

32:02

first sentence from Justice Rebecca Bradley's

32:04

dissent. Quote, riding a Trojan horse

32:07

named Contaguity, the majority breaches the

32:09

lines of demarcation, separating the judiciary

32:11

from the political branches in order

32:14

to transfer power from one political

32:16

party to another. Bracket,

32:18

just the horrific writing. Girl,

32:20

read the fucking Iliad. Read

32:23

the fucking Iliad. Do

32:25

you know how a Trojan horse works? You

32:27

can't ride a Trojan horse. It doesn't work

32:29

if you do. The whole point is that

32:31

you hide in it so as not to

32:33

appear. Details.

32:38

The fourth sentence of the opening paragraph

32:40

explains that, quote, these handmaidens of the

32:43

Democratic Party trample the rule of law,

32:45

dishonor the institution of the judiciary, and

32:48

undermine democracy, end quote. And somebody obviously got

32:50

a Book of the Month Club membership last

32:52

year because not only is she not reading

32:54

the Iliad, she might also not be reading

32:56

the handmaid's tale. She's just like ordering these

32:59

books and they're on her shelf and she

33:01

just occasionally quotes them. But

33:03

I just want to explain to Justice Bradley that the

33:06

political party that is actually associated

33:08

with forced childbirth and the denigration

33:11

of women is not the

33:13

party of the majority in

33:15

this decision. It's like wrong

33:17

party, wrong book, wrong

33:19

horse. She did cite

33:22

a book that she does seem to understand

33:24

and that is Robert Bork's The Tempting of

33:26

America that factored into

33:28

Justice Bradley's dissent and

33:31

Chief Justice Ziegler's dissent for her part,

33:33

not much better. She

33:35

noted that she was vociferously dissenting,

33:37

which I think is like the

33:39

strenuously object equivalent for judicial dissent.

33:43

And yeah, that's that's gives

33:46

you a little taste of what was

33:48

going on in the Wisconsin Supreme Court.

33:50

The Wisconsin Supreme Court told the legislature

33:52

you can submit new proposed maps. We're

33:55

not going to allow a partisan gerrymander

33:57

because we court have to maintain political

33:59

neutrality and and

36:00

what circumstances are not sufficiently

36:02

exigent to warrant the invocation

36:05

of the exemption law. So,

36:07

all of this, again, continues

36:09

to be utterly terrifying, but,

36:11

you know, that's Texas. The

36:14

decision was basically expected based on

36:17

the oral argument. And in

36:19

this case, remember, we highlighted the way

36:21

the challenger's lawyer likened this guidance and

36:23

requiring stabilizing care for abortions to organ

36:26

transplants where doctors go out and take

36:28

someone's organ if a patient needs an

36:30

organ transplant and that would stabilize them.

36:33

So, let's remind folks about exchange with this clip.

36:36

The organ donation example, I think,

36:38

makes it very, very clear that

36:40

physicians are not authorized or

36:42

required by M.T.A.L.A. to act outside the law.

36:45

There could be a circumstance where a

36:47

patient comes into the ER and the

36:49

only way to stabilize them is an

36:51

organ transplant. No one would

36:53

think that the hospital has violated M.T.A.L.A.

36:56

by failing to go and unlawfully

36:59

steal an organ or somehow acquire

37:01

an organ outside of the governing

37:03

law. Despite

37:06

being expected, the Fifth Circuit opinion is

37:08

not persuasive. It

37:10

boils down to a few fallacies

37:12

we wanted to highlight. One is,

37:14

as Melissa noted, that Texas law

37:16

contains a real exemption that, in

37:19

effect, does what M.T.A.L.A. would do,

37:21

namely allows abortions that are medically

37:23

necessary. This is belied by

37:25

just about everything we know. We have

37:27

the entire Zorosti case, which documents how

37:30

doctors are not able to provide abortions.

37:32

They deem medically necessary. Texas insisted in

37:34

that case that Texas law was somehow

37:37

not responsible for denying women the abortions

37:39

because Texas Attorney General Ken Paxton hadn't

37:41

personally threatened them with liability if they got

37:43

an abortion. But then in the Kay Cox

37:46

case, when Texas Attorney General Ken Paxton did

37:48

threaten hospitals with liability if they provided cops

37:50

with an abortion, the Texas Supreme Court still

37:52

said, if doctors can provide an abortion if

37:55

they want to. And that,

37:57

of course, is a load of hogwash. This

37:59

exemption it's

40:00

coming at least I'll just talk to

40:02

myself way faster than I expected. It's

40:04

a counter to what the Zorowski and Cox cases

40:06

do which I think is like not only

40:08

playing to a court of law

40:10

but also the court of public opinion where it's

40:12

like informing the public like everything you thought about

40:14

abortion is like completely wrong. It's actually women

40:16

like you with wanted pregnancies who have health

40:18

problems who are going to be denied abortions

40:20

in ways that may threaten your future health

40:23

and that's shifting the social meaning of what

40:25

it means to seek abortion care and I

40:27

think in the same way

40:29

the sort of casual use of

40:31

the sort of fetal personhood curious

40:33

forward rhetoric is attempting

40:35

to counteract what the

40:37

Zorowski and Cox cases are doing and

40:39

shift the overtone window towards thinking about

40:41

the fetus as an entity imbued with

40:43

constitutional rights that courts are obliged to

40:45

protect. And this issue though not this

40:47

case is now headed to the Supreme

40:49

Court. Late Friday the court decided to

40:52

hear an emergency application from the state

40:54

of Idaho that sought permission to enforce

40:56

that states near total abortion ban. The

40:58

Ninth Circuit had let stand an injunction

41:00

that prevented the state from enforcing its

41:02

abortion ban to the extent the

41:04

ban conflicted with the Biden administration's

41:06

guidance that MTALA required hospitals to

41:08

be able to perform abortions that

41:10

the hospitals in their professional judgment

41:13

determined were necessary for stabilizing care.

41:15

So now the Supreme Court is

41:17

going to wade into whether women

41:19

are entitled to life saving health

41:21

savings medical care and apparently though

41:23

it's only the first week of

41:25

January it's already time for some

41:27

bad decisions at the Supreme Court

41:29

because the court said Idaho could

41:31

enforce its near total abortion ban

41:33

while the court decides its very case putting

41:36

the lower court injunction on hold. So

41:38

now this MTALA issue whether women can

41:40

get abortions necessary for stabilizing care and

41:43

the disqualification issue are on the Supreme

41:46

Court's duff kit. The MTALA case will

41:48

be argued in April and disqualification at

41:50

a special session in February. So

41:53

taking some more of JBN's notes for

41:55

us in the new year and carrying

41:57

them forward we also wanted to highlight

44:00

Is that crazy? Could they be that inconsistent? Uh, I think

44:03

it's possible. I think it's possible. But

44:05

like, these are all the things, whether we're talking

44:07

about judicial or administrative, that could happen

44:10

without any need to federally pass

44:12

a nationwide abortion ban. Which

44:14

of course is also a possibility with a

44:17

Republican trifecta, but there's lots of other things

44:19

that could happen that would have largely

44:22

or functionally the same effect

44:24

as such a nationwide ban. Indeed.

44:35

Now on to the bad court. Okay,

44:39

the preview. So this week the court

44:41

will be hearing a number of cases,

44:43

among them FBI versus FICRE. This

44:46

is a case about the court's power

44:48

to hear challenges to the no-fly list.

44:50

And, Leah, can you explain

44:52

what the no-fly list is? I mean, I think we all

44:55

know, sort of, have an idea. We

44:57

do. And yet, well,

45:00

it's difficult to describe because there isn't actually

45:02

a law authorizing the no-fly list, which some

45:04

people might say means the government's ability to

45:06

bar people from flying is a major question

45:08

that shouldn't be lightly inferred from statutes. So

45:10

I'm eagerly awaiting the Chief Justice and Brett

45:12

Kavanaugh using the major questions after I'm too

45:14

invalidated, but I won't hold my breath. Keep

45:16

waiting. I don't hold your breath for that.

45:19

In terms of what we are talking about when we talk

45:21

about this a textual no-fly list, there

45:23

is a center that is overseen by the FBI

45:25

that maintains a terrorism watch list. And one

45:28

part of that watch list is what is

45:30

known as the no-fly list, essentially a list

45:32

of names of individuals who can't fly into

45:34

or out of or within or I think

45:36

even over the United States. And some people

45:38

on the list may also be required to

45:40

undergo enhanced security screening. So the

45:42

respondent is a U.S. citizen who says that while he

45:45

was in Sudan in April of 2010, FBI

45:47

officials questioned him about his ties to a mosque and

45:50

then told him he was on this no-fly list

45:52

and could not return to the U.S. and then

45:54

offered to remove his name from the no-fly list

45:56

if he became an informant. He refused. the

46:00

UAE. He says that he was then abducted and says

46:02

his abductors told him the FBI

46:04

had requested his detention. He subsequently

46:06

flew to Sweden. Sweden denied him

46:08

a flan and deported him back to

46:10

the United States. He froze suit challenging

46:13

the no fly list while he was in

46:15

Sweden in May of 2013. The government moved

46:17

to dismiss his complaint because he hadn't exhausted

46:19

his administrative remedies by filing a request with

46:21

the Department for Homeland Security to review his

46:23

placement on the no fly list. So he

46:26

did that and then the government kept him

46:28

on the no fly list for a few

46:30

years afterwards but then removed him from the

46:32

list in May of 2016. So

46:35

the question arose because there's a

46:37

broader issue about whether or not

46:39

this case is moot. That is

46:41

whether there is actually a live case

46:43

or controversy for the court to decide

46:46

since the suit challenging his placement on

46:48

the no fly list is

46:51

about that question and he's no longer

46:53

on the no fly list. So this

46:55

is a question about whether there still

46:57

exists a case or controversy for the court to

46:59

weigh in on. The district court

47:01

concluded that the case was moot and

47:03

so dismissed it. The court said the

47:05

case couldn't be heard under the so-called

47:07

voluntary cessation doctrine which provides that even

47:09

if a case is technically moot the

47:11

court can still hear it if the

47:13

defendant voluntarily ceased the illegal conduct but

47:16

did that in a way that suggests

47:18

the illegal conduct would or might recur

47:20

after a court dismissed the case. Basically

47:22

the doctrine exists to prevent gamesmanship.

47:24

So to prevent defendants from

47:26

stopping engaging in the

47:28

offensive or illegal conduct thereby muting

47:30

the case and then resuming the

47:32

offensive or illegal conduct. And

47:35

for all of those reasons the bar

47:37

for invoking voluntary cessation is very high.

47:39

So those seeking to moot a case

47:41

on the ground that the offender stopped

47:43

doing the offensive conduct have to actually

47:45

show that there's almost no likelihood that

47:47

the offender will subsequently resume the conduct.

47:50

And with that high standard in mind

47:52

the Court of Appeals here reversed the

47:54

district court's decision muting the case saying

47:56

that it quote wasn't absolutely clear the

47:58

allegedly wrongful behavior could not reasonably

48:00

be expected to recur." And

48:03

the question in this case is whether a challenge

48:06

to the no-fly list becomes moot when the person

48:08

challenging the no-fly list is removed from the list

48:10

and the federal government provides a sworn declaration that

48:12

says they won't be placed on the no-fly list

48:14

in the future based on currently available information. The

48:17

case has important implications not just for no-fly list

48:19

challenges, which of course are important themselves, but also

48:22

for other civil rights challenges, which the government can

48:24

sometimes try to moot by stopping, perhaps temporarily, the

48:26

conduct that's being challenged. All right, so one of

48:28

the things I'm really going to be looking forward

48:31

to in that oral argument is how to actually

48:33

pronounce the litigants name. Is it

48:35

Fyker, Fikre? Yeah. Like I

48:37

had lots of different options, but I am

48:40

actually very interested. I hope the guy who did

48:42

Jarkasy is there who can help us out in

48:45

any event. It also happens to

48:47

be takings month at SCOTUS and the

48:49

court is apparently ready to start the

48:51

new year off right by thinking about

48:53

hobbling not only the administrative state, but

48:55

also state and local government. So buckle

48:57

up, America, at least as long

48:59

as we have roads to drive on. So

49:02

first up for takings week is a

49:04

case called Sheets versus County of El

49:07

Dorado, California. And this case is about

49:09

whether you can challenge certain kinds of

49:11

permit exactions under the court's takings jurisprudence.

49:13

And for those of you who are

49:15

not familiar with it, the takings clause

49:18

of the fifth amendment provides that private

49:20

property shall not be taken for public

49:22

use without just compensation. The

49:25

14th amendment incorporates that provision by

49:27

preventing the states from depriving individuals

49:29

of life, liberty and property without

49:31

due process of law. A

49:33

permit exaction is just a condition the government

49:35

puts on obtaining a permit. The permit exaction

49:37

here was enacted by the California legislature. It

49:39

imposes fees on property owners who propose and

49:42

develop new projects that increase traffic on public

49:44

roads. And the fee schedule is based on

49:46

the kind of development involved, whether it's single

49:48

family or commercial. The

49:50

petitioner here challenged this fee schedule saying

49:52

that it was an unconstitutional condition on

49:55

his property and was effectively a taking

49:57

of his property, i.e. by the

52:00

child care center and the a circuit decision we've

52:02

talked about that said private parties can't bring suit

52:04

to enforce the Voting Rights Act is a part

52:06

of this trend. But and here's

52:08

the but the court loves,

52:10

loves the takings clause. So I

52:13

think they are going to find

52:15

a private right of action here

52:17

somehow, some way. So

52:19

the case here arose out of a Texas

52:21

highway project that caused flooding allegedly caused

52:23

intentional flooding. A group of local

52:25

landowners felled sued in state court, Texas removed

52:27

the case to federal court and Texas said

52:29

the owners did not have a cause of

52:32

action for their suit. The federal civil rights

52:34

statute, Section 1983, doesn't allow you to sue

52:36

the state, only state officials who enforce state

52:38

law. And Texas said they didn't have

52:40

a cause of action under the takings clause. To

52:43

me, you know, this case calls to mind

52:45

and relates to the SB8 case, you know,

52:47

the bounty hunter law that Texas enacted to

52:49

nullify abortion. There, the court said it's no

52:51

big deal. Texas can write a law to

52:53

get around our cases that allow private parties

52:55

to sue state officials who violate the Constitution

52:57

and who cares if that means a right

52:59

is nullified. And here I think the court

53:01

might be, I don't know, troubled by the

53:03

fact that Texas has affected it taking in

53:05

a way that might not give these plaintiffs

53:07

someone to sue in order to get a

53:09

remedy. And so I think the court is

53:11

just going to say the Constitution allows them

53:13

to sue in those circumstances, which of course

53:15

will be very consistent and judicial, by which

53:17

I mean not especially judicious at all. All

53:21

right, stepping back from the takings clause

53:23

for a minute, the court is also

53:25

going to hear a major case on

53:27

the confrontation clause. This case is called

53:29

Smith versus Arizona. The confrontation clause is

53:31

a provision of the Sixth Amendment that

53:33

says that in all criminal prosecutions, the

53:35

accused enjoys the right to be confronted

53:37

by the witnesses. Again, the

53:39

question here is whether the confrontation clause

53:41

allows the government to present testimony by

53:43

a substitute expert who relays the testimony

53:45

of a non-testifying forensic analyst. So imagine

53:47

the state puts on a stand, a

53:50

lab technician who performed a drug test, but

53:52

part of their conclusion relied on things that other

53:54

lab techs did or said, and those other lab

53:56

techs aren't put on the stand. The

53:58

state argued that was from a state. It was permissible

54:01

because the testifying expert offered some independent

54:03

opinion and the non-testifying analyst statements were

54:05

not offered for their truth, but just to explain

54:07

the experts' opinion. So some background

54:09

to explain this case and the issues

54:12

in it. In a previous case, Melendez

54:14

Diaz versus Massachusetts, the Supreme Court said

54:16

the confrontation clause applies to testimony about

54:18

drug analysis. That is, the government can't

54:20

just introduce an evidence, a certificate,

54:22

or lab report that says this substance tested

54:24

positive for cocaine. They have to put on

54:26

the stand a witness, the lab technician, to

54:29

testify about the results. Then

54:31

in Williams versus Illinois, the court

54:33

said the confrontation clause does not

54:35

prohibit testifying experts from relying on

54:37

the findings of non-testifying experts to

54:39

reach their conclusions. There the non-testifying expert

54:41

had identified forensic evidence on the victim

54:44

and a separate sample from the accused

54:46

and then matched the results, i.e. had

54:48

to rely on some things other lab

54:50

technicians did. But technically in

54:52

that case, it was just a

54:54

plurality of four justices who made

54:56

that broad rule that testifying experts

54:59

could not rely on findings or

55:01

opinions of non-testifying experts. Justice Thomas

55:03

concurred, writing only for himself, saying

55:05

that the particular statements did not

55:07

trigger the confrontation clause because he

55:09

has somewhat idiosyncratic views. Shocking, I

55:12

know, about the confrontation clause and

55:14

what it means. So

55:17

this case is a follow on to the two cases

55:19

Leah just mentioned, Melendez Diaz and Williams. And it's

55:21

really about the future of the confrontation

55:23

clause. So all of the recent appointments

55:25

and changes in the court's personnel raised

55:28

the possibility that the court's confrontation clause

55:30

jurisprudence might fundamentally change. Why is that?

55:32

Because this is about law, not people. I've

55:34

checked it. I've checked it.

55:37

I don't know if you're in a little

55:39

different mode. I don't understand. Well,

55:43

I mean, this is an interesting area actually, because here

55:45

it's not just that you have more conservative justices,

55:47

you previously had more liberal justices, and so

55:49

things like the right to abortion are all

55:51

of a sudden gone. Here, it's actually some

55:54

of these conservative for conservative substitutions might change.

55:56

So I think it is interestingly different from

55:58

some of the other doctrinal changes. we have seen

56:00

in recent terms. And

56:03

that's because Justice Scalia, in addition to Justice

56:05

Ginsburg, but notably among the conservatives,

56:07

Justice Scalia was very protective of

56:09

the confrontation clause. So Scalia and

56:11

Ginsburg get replaced by Gorsuch and

56:13

Barrett, respectively. And then Kennedy

56:15

and Pryor were not that protective of the

56:18

confrontation clause in the right to confront witnesses.

56:20

They were replaced by Kavanaugh and Jackson. Williams

56:23

was a 414 opinion, so there could be

56:25

movement between that decision. And now it

56:28

may be that Gorsuch is

56:30

aligned with Scalia on confrontation clause. I think

56:32

we just don't know yet. I

56:34

do think it'll take him more than 10 minutes to

56:36

decide. He doesn't want

56:38

to actually confront time. This

56:43

is an important question like a takings clause

56:45

case would involve. I see. It'll

56:48

take hours. Yeah. All right.

56:50

So we're going to learn something about

56:52

the future of a confrontation clause in

56:55

this case. We also may learn something

56:57

about whether different justices make for different

56:59

jurisprudence. I am honestly

57:01

befuddled by that possibility. Kate

57:03

seems to think it's more normal and wants

57:05

to normalize that whole thing. Good for her. But

57:08

I'll just say that this is a super

57:10

important issue in criminal prosecution, so we'll be

57:12

watching this avidly. And in

57:15

more, you know, huge change could be in the

57:17

offing news. We're going to have to be brief

57:19

on this, but we do have, during the second

57:21

week of this sitting, another pair of cases that

57:23

are part of the general 2024 as

57:26

the end of the administrative state year. That

57:29

pair of cases is Loperbright versus Romondo

57:31

and Relentless versus Department of Commerce. Relentless

57:33

is exactly the right captain.

57:35

Yes. I know.

57:37

Relentless. We waited. We

57:39

waited. We got the right court

57:41

and now we're taking it on. Work

57:44

that day. Yeah. So these

57:46

are the cases that represent this full

57:48

frontal attack on Chevron and

57:51

deference to administrative agencies. Do

57:53

not worry. We are going to cover these cases

57:55

in more depth in future episodes. We're also going

57:57

to try and find out the conservative legal movement

57:59

literally. really found a litigant

58:01

named relentless in much the same way the

58:03

Lovings came to the court because they're trolling

58:06

us at this point. But we will try

58:08

and figure that out. This is

58:10

all to say that these cases are

58:12

about the future of the administrative state

58:14

and whether we are going to literally

58:17

give the authority to interpret federal statutes

58:19

to federal courts alone

58:21

or whether there will be some

58:23

role for independent agencies and the

58:25

experts who are housed within them

58:27

to make some of these determinations

58:29

about the millions of questions that

58:31

agencies now decide. I

58:34

know we're going to do a preview next

58:36

time and we will get into the stakes

58:38

more. But just to get some of the

58:40

stakes up front, this is about who decides

58:42

as between courts and agencies questions that inevitably

58:45

arise in the course of interpreting statutes, like

58:47

all of the laws that govern all of

58:49

our lives, like what counts as a new

58:51

stationary source emitting pollution that has to be

58:53

regulated or who will bear the costs of

58:56

certain monitoring devices as required by federal law.

58:58

And at least for me personally, I do

59:00

not want Neil 10 minute Gorsuch to be

59:02

the one deciding this stuff. Amen.

59:06

And now for our special end of

59:08

episode court segment, we are delighted to

59:10

have with us Ross Rayburn, Peloton Yoga

59:12

and Meditation instructor extraordinaire and author of

59:14

the new book, Turning Inward, the Practice

59:16

of Introversion for a Calm, Joyful, Authentic

59:18

Life. Welcome to Strix scrutiny, Ross. Hi,

59:21

everyone. Thank you. It's such an honor

59:23

to be with you all. We are so excited to

59:25

have you and we were hoping Ross, you could

59:28

help us with a few things we don't want

59:30

to over promise, but at least talk us through

59:32

one, how to help stay

59:34

focused amidst the careening out of control

59:36

court, especially as it's about to be

59:39

time for some bad decisions like some

59:41

really bad ones. Also, Ross,

59:43

we're really hoping you will give us some

59:45

advice on how to stay focused. So we're

59:47

able to put in the work we need

59:49

to do on the upcoming election, which has

59:51

such enormous stakes for so many

59:54

of the issues that we talk about on

59:56

the podcast, like reproductive rights, democracy, whether

59:58

or not we will be careening. toward

1:00:00

authoritarianism, all of these things.

1:00:02

So again, guidance. And finally,

1:00:04

maybe this will be the most challenging,

1:00:06

but we had hoped you could help

1:00:09

some of the justices on the Supreme

1:00:11

Court flow their role and calm the

1:00:13

F down as well. So with that

1:00:15

opening, Ross, can you talk to us about

1:00:18

the goal of the book and help

1:00:20

us break down what introversion is and

1:00:22

what you're kind of trying to achieve

1:00:25

with your intended audience with the book? Absolutely.

1:00:28

I mean, one of my main

1:00:30

goals is, when I

1:00:32

started teaching meditation, I hated it. When

1:00:35

I closed my eyes, my brain would

1:00:37

go wild. And

1:00:39

it wasn't until I met my teacher that

1:00:42

she said, listen, you're already meditating.

1:00:44

When you exercise, even now,

1:00:46

like when I scroll through on my phone, I

1:00:50

think a lot of people don't

1:00:52

call it meditation, but anything that

1:00:54

takes you out of the binary

1:00:57

navigation, especially

1:00:59

with 2024 coming up and all the complexities and with the

1:01:02

things going on at the court, it's

1:01:04

so easy for us to get stuck

1:01:06

in the muck of

1:01:09

specifics and complexities. The

1:01:12

reason why I called the book turning inward was

1:01:15

it costs nothing to

1:01:17

basically just take a deep breath. Now

1:01:19

the rub is, of course, remembering to take a deep breath,

1:01:22

but when you turn in and

1:01:24

take a deep breath, or when you pause before

1:01:27

you speak, there

1:01:29

can be a magical amount of strategizing,

1:01:33

even shifting of your perspective to where

1:01:36

you back off from maybe what you were gonna say, and

1:01:38

maybe see a little bit of what is a shared

1:01:41

agenda. And that

1:01:43

can be really powerful. And

1:01:45

so the idea was to write a book

1:01:47

that said, you're probably already doing it, you

1:01:49

just don't call it meditation. You

1:01:52

don't need to sit still. Really,

1:01:54

all of the stuff that people think is

1:01:56

meditation, a lot of it is BS for

1:01:58

most of us. We just... that ability

1:02:01

to not get stuck, to just

1:02:03

get unstuck. Definitely. I like

1:02:05

the analogy of exercise as meditation because for

1:02:07

me, that has always been the most helpful

1:02:09

method where I go, I exercise really hard,

1:02:11

it clears and focuses my mind, and then

1:02:14

that's oftentimes when I get my best ideas.

1:02:16

And after I step off the bike or

1:02:18

out of the pool, I'll take out my

1:02:20

phone and just record a few thoughts of

1:02:22

me talking to myself, and those will be

1:02:25

some again of the clear thoughts that I

1:02:27

will end up having. So

1:02:30

Ross, as a preview for what I think is

1:02:32

a must read book with great tips, that's T-I-P-S,

1:02:35

turning in practices.

1:02:39

Could you help us with some quick guidance

1:02:41

to help our listeners and us stay sane

1:02:43

in what is shaping up to be another

1:02:46

absolute nightmare of a Supreme Court term? Don't

1:02:48

give it all away, but maybe just a

1:02:50

little taste of some tips

1:02:52

or thoughts that they could

1:02:55

read more about in the book. Yeah,

1:02:57

and to be honest too, I do

1:02:59

think it's important to realize that especially

1:03:01

depending upon your level of privilege, depending

1:03:03

upon where you are in your life,

1:03:06

I never wanna get so woo woo about like

1:03:08

saying a deep breath in that it doesn't actually,

1:03:11

even my belief in that it's important to

1:03:14

step back from panic and

1:03:16

like it to use your word, the nightmare

1:03:18

situation, I never want us

1:03:20

to be cavalier about sometimes we need

1:03:22

to be in a fight position, we

1:03:24

need to be ready. That

1:03:27

said, there is so much

1:03:29

value, like any great strategist will tell you,

1:03:31

like you just said, to have a moment

1:03:33

where you pause and give

1:03:35

kind of a nebulous space

1:03:40

where you don't have to know

1:03:42

the idea, you aren't grasping for

1:03:44

the answer, but that kind of

1:03:46

open space to where the

1:03:48

strategy, the answer, the solution

1:03:50

arises organically. Like

1:03:52

that is again, that's so valuable and

1:03:55

it's definitely harder to do when

1:03:57

you're the one who's more like when it's an

1:03:59

existential question. However, recognizing

1:04:01

that it's possible just knowing

1:04:03

that it is within our

1:04:05

capacity, especially when we have

1:04:08

a moment in the day, say after exercise or

1:04:10

in the morning when you're brushing your teeth, to

1:04:13

just say like the intro

1:04:15

chapter is called, You'll Be Okay. And

1:04:22

that is a big statement, again,

1:04:24

not to be cavalier, but

1:04:26

that ultimately realizing like we do have

1:04:28

a lot of power within, we do

1:04:30

have a lot of power as a

1:04:32

community. And that to me

1:04:34

alone gives me a lot of peace

1:04:37

and calm. It doesn't fix

1:04:39

everything and turning inward is not meant

1:04:41

to be a panacea. It

1:04:44

is however, an opportunity to just

1:04:46

do it a little bit better

1:04:48

to maybe just navigate it a

1:04:50

little bit more intelligently and mindfully.

1:04:53

I have to say I really liked how

1:04:55

the book was not a cavalier mantra of

1:04:58

just calm down and it will be okay.

1:05:00

But instead, you know, there were passages where

1:05:02

you said go to bed angry is not

1:05:04

necessarily a bad thing. And

1:05:06

in some way, you know, the breathing exercises

1:05:08

that were sprinkled throughout the book

1:05:11

reminded me of what has been my

1:05:13

absolute favorite fiction read recently. And that's

1:05:15

the Court of Silver Flames. I don't

1:05:17

know if any of our listeners or

1:05:20

you have read but there the warrior

1:05:22

Nesta Archeron learns breathing exercises to become

1:05:24

one of the fiercest kind of warriors

1:05:26

ever. And so yeah, I just

1:05:28

I really appreciated that kind of balance. I appreciate

1:05:30

this idea because I do think there are times

1:05:32

when you know, our students talk

1:05:34

to us about this, like everything feels really

1:05:37

overwhelming. It can be very difficult to understand

1:05:39

how one person can make

1:05:41

an intervention that is meaningful

1:05:44

against what feels like just a

1:05:46

rising tide of crap. And

1:05:50

you turning inward recognizing that you

1:05:52

can only manage yourself in this

1:05:54

situation and do what you do,

1:05:56

I Think is

1:05:58

incredibly liberating. It doesn't have

1:06:00

to be disempowering, like actually can be incredibly empowering

1:06:03

to sort of. I can get my side of

1:06:05

the street cracked and figure out how to work

1:06:07

with other people who are also trying to get

1:06:09

their side of the street cracked. And maybe together

1:06:12

we can clean up a lot of different streets

1:06:14

and in either. that was a very powerful part

1:06:16

of the book. like you're responsible for yourself, but.

1:06:19

All. Of this people. To. Responsible

1:06:21

for themselves working and concerts actually be

1:06:23

quite forceful. Jump Thank you! I appreciate

1:06:25

that so much. I mean, this does

1:06:28

kind of border a little bit on

1:06:30

the Eu side of what you find

1:06:32

when you turned inside, especially when you

1:06:34

do with someone who truly is. A

1:06:37

kind of agency. On any

1:06:39

one of my favorite words: perspicacity

1:06:41

and is the ability to rise

1:06:44

above and see an aerial view.

1:06:46

Of. The situation. And. To where

1:06:49

everybody else in the room instance

1:06:51

describing the chaos. On. To

1:06:53

actually see the pattern that may be

1:06:55

someone out no one else is realizing.

1:06:57

That kind of aerial view actually happens

1:07:00

when you go inside. Don't try to

1:07:02

shut your thoughts off. your see your

1:07:04

thoughts are supposed to be fast. Don't

1:07:06

try to be still. All. Just

1:07:08

as if you think let that happen

1:07:10

but just kind of going in and

1:07:13

trusting that there is wisdom to his

1:07:15

creativity to so much inside. For.

1:07:17

You to even sometimes mysteriously realize

1:07:19

like wow, that's a pattern that

1:07:22

I don't think anyone else see

1:07:24

that feels not only like you're

1:07:26

just taking. Turns out that actually

1:07:28

is agency that actually is empowering

1:07:31

And then. All of a sudden,

1:07:33

you you literally might be the one person to

1:07:35

see something that no one else sees. when

1:07:37

you say that that reminds me so

1:07:39

much of what we thought we were

1:07:41

doing when we started this podcast like

1:07:43

there's a slight get a chaos around

1:07:45

the court they are doing all of

1:07:47

these different decisions and it's our whole

1:07:49

goal was literally to survey the entire

1:07:51

landscapes draw together seemingly desperate threads to

1:07:54

show that know there actually is a

1:07:56

pattern to this madness and you're not

1:07:58

wrong to be scared as actually incredibly

1:08:00

alarming what they're doing and being able

1:08:02

to call it out link them together

1:08:04

and Ratify the

1:08:06

feelings that other people are having

1:08:08

that something is desperately desperately wrong

1:08:11

Can by itself be empowering even if

1:08:13

it is alarming to recognize how completely

1:08:16

off the rails it is I also love until you

1:08:18

said that Melissa I hadn't had to stop but the

1:08:20

book has this like wonderfully capacious approach to meditation like

1:08:23

it is not you don't have to have A special

1:08:25

mat you don't have to sit in a full lotus

1:08:27

position You don't have to like there are many no

1:08:29

it or it could be it for us doing for

1:08:31

certain and both Nice, I suppose doing it and listening

1:08:34

to it can be a form of meditation Why doesn't

1:08:36

my peloton dot shot about that I go up in

1:08:38

this room? Where is my red

1:08:40

dot? Make

1:08:43

that happen. It's a lab we need I

1:08:45

love that. Yeah, I listen I think I love

1:08:48

all of that and and not to blow smoke,

1:08:50

but that is what you do. That's what you

1:08:52

do for me You know,

1:08:54

I remember Kate when you were on Ezra

1:08:57

Klein show I believe and you do it on

1:08:59

this you all three do it on this

1:09:01

podcast all the time the Concision and the clarity

1:09:03

that you all bring to these Incredibly

1:09:06

complex topics for people like

1:09:08

myself You're absolutely doing

1:09:10

what meditation is meant to do. It's

1:09:13

you know allowing us a gateway

1:09:15

to to a feel

1:09:18

a little bit better because We're human

1:09:20

beings love to feel a little bit of control a

1:09:23

little bit of orientation So absolutely

1:09:25

your you are doing that and

1:09:27

how do you maybe do

1:09:29

it a little bit more? How does anyone

1:09:32

do it a little bit more Kate to your point? I

1:09:34

think for me It's as simple

1:09:37

as say you scrolling through Instagram

1:09:40

takes you out of your head and that's what you

1:09:42

need to escape or a glass of wine or a

1:09:45

running on a treadmill doing

1:09:48

a peloton yoga class I Think

1:09:50

if someone says look I am doing

1:09:52

this for the purpose of feeling better. I'm

1:09:55

doing this intentionally To

1:09:57

get out of my head so that when I finish

1:10:00

per Leah's point earlier

1:10:02

so that I'm assuming

1:10:05

that my ideas are going to

1:10:07

be a little bit more crystalline

1:10:09

and useful, have

1:10:11

utility when I get

1:10:14

done, then it

1:10:16

is absolutely meditation. With

1:10:18

that in mind, we have a challenge for you.

1:10:21

We have some folks on the

1:10:23

Supreme Court who are

1:10:25

a little in their heads, as it

1:10:28

were, maybe overwhelmed by the

1:10:30

weight of the conservative

1:10:33

legal movement of their billionaire patrons. I

1:10:35

don't know. I don't want to speculate.

1:10:37

But do you have

1:10:39

any advice for people like,

1:10:42

say, Samuel Alito, Clarence Thomas,

1:10:44

Neil Gorsuch, to help them

1:10:46

calm down? How

1:10:48

could they use these introversion

1:10:51

techniques for healing and

1:10:54

empathy and patience and relaxation

1:10:56

as opposed to facilitating authoritarianism?

1:11:01

How might that work? What's

1:11:03

the phrase, this is above my pay grade? Well,

1:11:09

it depends on who's paying you. The

1:11:11

people of the United States. Maybe we

1:11:14

should start at $0.60 for billionaires to

1:11:16

step up and make this part of

1:11:18

your pay grade to get them to

1:11:20

be healed. Myfulness for justices. Listen,

1:11:24

I believe that, and

1:11:26

this is a philosophical belief, that everyone

1:11:29

deep down, that there is a kind

1:11:33

of spirit, there's a kind of

1:11:35

goodness that is

1:11:37

sometimes shrouded so much that maybe they're not

1:11:40

going to be able to find it or

1:11:43

reveal it or ever express it. There

1:11:45

may be no answer to someone

1:11:48

who's not going to see the light, see the light.

1:11:51

However, I remember reading

1:11:53

stories about when Anthony Kennedy would

1:11:56

lecture overseas and

1:12:00

being around the European

1:12:03

systems and different environments,

1:12:06

that that actually ameliorated some of

1:12:08

his views or softened

1:12:10

even. And I like to think

1:12:12

that Justice Jackson and

1:12:15

that there's probably a lot

1:12:17

of really incredible,

1:12:21

much greater than me, abilities to

1:12:24

tap into behind the scenes things

1:12:27

that are shared to values, especially now

1:12:29

with some of the interesting, like

1:12:33

with the cases coming up, how strict constructionism

1:12:35

is now kind of counter

1:12:37

to what conservative thought

1:12:39

would be. And I

1:12:41

just think there's a lot of potential for

1:12:45

other people on the court to help

1:12:47

them, maybe see some shared

1:12:50

space. I guess I'm just

1:12:52

an internal optimist when it comes to stuff like this. Help

1:12:55

me help you, Sam, right? That's my

1:12:57

offer to him. It reminded me when

1:12:59

you were talking just now, Ross, it reminded me of

1:13:01

the way you talk in the book about beginner's

1:13:03

mind, like cultivating beginner's mind. You

1:13:06

know, maybe you want to talk about that

1:13:08

a little bit. Is that part of what

1:13:11

you were driving at? If there was a

1:13:13

single prescription for, say, the ever certain Neil

1:13:15

Gorsuch, maybe practicing or cultivating beginner's mind might

1:13:18

be that prescription. Yeah,

1:13:21

listen, it's I mean, I,

1:13:23

I feel so blessed with like, my mom

1:13:25

used to my grandfather passed away before I

1:13:28

was born. He and my grandmother were both

1:13:30

actually pilots in the 1950s. And

1:13:33

they were in a plane crash before I was born. And

1:13:37

my mom actually had an 11

1:13:39

year old sister to raise. And

1:13:42

she spoke about my grandfather in such glowing

1:13:44

terms of that at his at his funeral,

1:13:47

the janitor and the mayor were

1:13:50

both there. And

1:13:52

she always said and says to this day, you

1:13:55

know, that humility is one

1:13:57

of the highest virtues that we can attained,

1:14:00

or we can possess. And,

1:14:02

you know, it's

1:14:05

not my place to say that that's not going to happen

1:14:08

with some people on the court. But

1:14:10

I do believe that there is a strong

1:14:12

link between humility and

1:14:15

beginner's mind. I bet all

1:14:18

the justices, especially if you said to them, you

1:14:20

know, in a private or, you

1:14:23

know, kind of safe space, if you will, humble

1:14:26

in the face of history, humble

1:14:28

in the face of the Constitution.

1:14:31

And what is it that they see

1:14:35

themselves in service of, that is

1:14:37

they're willing to say, you know

1:14:39

what, I don't know everything. I do

1:14:42

want to have a beginner's mind, if it

1:14:44

makes America, if it makes this country that we

1:14:46

all love a better place, a more perfect union,

1:14:49

some avenue with that to get

1:14:51

to beginner's mind. So it's not

1:14:53

just this kind of axiomatic thing

1:14:56

that they'll dismiss. All

1:14:58

righty. Well, maybe with that beginner's

1:15:01

tip for beginner's mind for some

1:15:03

of the justices, we

1:15:05

should thank you, Ross, so much for

1:15:07

joining us and recommend once

1:15:10

again to our listeners, Ross's fantastic new

1:15:12

book, Turning In Word, as well as

1:15:14

some of our non-listeners like say, Sam,

1:15:16

Neil, I don't know if they're non-listeners.

1:15:18

Sometimes you hate listening. That's

1:15:20

fair. That's fair. That's fair. That's

1:15:22

meditations too. Thank you again, Ross, so much for

1:15:24

joining. Thank you, Ross. Such a pleasure

1:15:27

to have you, Ross. Thank you. Thank you all

1:15:29

so much. Thank you so much. What

1:15:32

happens when one of China's most prominent

1:15:35

human rights activists escapes house arrest in

1:15:37

China, lands in America as a hero

1:15:39

of freedom and democracy, and then somehow

1:15:41

re-emerges a few years later as an

1:15:43

avid Trump supporter? This is

1:15:45

the story of Chen Guangchen. In

1:15:47

Crooked's newest podcast, Dissident at the

1:15:49

Doorstep, hosts Allison Clayman, Colin Jones,

1:15:51

and Yang Yang Cheng tell the

1:15:53

story of how a person can

1:15:55

become a symbol for American values

1:15:58

and what happens to them next. Listen

1:16:00

to new episodes of Dissident at the

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Doorstep each Saturday, beginning January 13th in

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1:16:13

Crutiny is a crooked media production hosted and

1:16:15

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