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They're going to have the last word. Hello,

1:16

and welcome back to Strix scrutiny, your

1:18

podcast about the Supreme Court and the

1:20

legal culture that surrounds it. We're your

1:22

hosts. I'm Alyssa Murray. I'm Kate Shaw.

1:24

And I'm Leah Lippmann. And

1:27

we are actually all in the same

1:29

place right now, which basically never happens

1:31

outside of live shows. Let the rapture

1:33

begin! So things

1:35

might get kind of weird, and

1:37

that might be part of why.

1:40

Because today we're going to be looking ahead to the cases

1:42

that the court is going to be hearing during the March

1:44

sitting. And it's a big one. Ladies

1:46

and gentlemen, and Sam Alito, buckle

1:49

up because it's Conservative Grievance Week at the Supreme

1:51

Court. The court is kicking off the sitting with

1:53

two First Amendment cases that ask whether the real

1:55

victims of government coercion today are conservatives with fringe

1:58

views. So we're going to be looking ahead. Then

2:00

a couple of cases. And then during the second

2:02

week of them are sitting the court is going to be

2:04

hearing at the Medication abortion case which we talked about a

2:06

good amount on his podcast. So. Going to be doing

2:08

some previewing of that case to remind everyone of

2:10

what is it stake. And we're also gonna talk

2:12

about a recent fifth circuit decision restricting access to

2:14

contraception. And after we previewed those cases,

2:16

we are going to have a court culture

2:18

segment. so we're going to do something we've

2:20

been wanting to do for a long time,

2:23

which is to take. A deeper dive on

2:25

the death penalty and the shadow Doc at and

2:27

we are also when you do a very. Quick.

2:29

Recap of some of the recent decisions

2:31

that the court has announced and. We.

2:34

Will have a very special

2:36

announcement at. The end of the

2:38

show so as they settled law

2:40

actually do not switch off. Of

2:45

so wanting to say that for like

2:47

five year I could remember the. First

2:50

stop the previous so the

2:52

first actually. The first day of

2:54

the March sitting, the Supreme court is

2:57

hearing to cases about the role of

2:59

the First Amendment where the government may

3:01

be attempting to influence how private. Parties

3:03

treat other private parties. The

3:05

cases are about identifying the limits

3:08

on the government's ability to effectively

3:10

coerce or pressure private parties to

3:12

do things as a government could

3:14

not directly require. The private parties to

3:16

do and. Both cases and lucky that

3:19

principle in a very particular context. So

3:21

they revolve around the idea that among

3:23

various interest groups and identity group set

3:25

exists in our society Today, the group

3:28

that the government really has it out

3:30

for the group that the government expressly

3:32

targets is republicans. With friends conservative

3:34

views and this is actually something

3:36

that both Melissa and Leah have

3:38

written about that is the courts

3:40

fixation on the idea that conservatives

3:42

and conservative Christians in particular are

3:45

the minorities most in need of

3:47

judicial protection. Today it's Melissa has. An.

3:49

Article titled Inverting Animus Masterpiece Cake Shop

3:51

and a New Minorities in the Twenty

3:53

Nine Teen Edition of the Supreme Court

3:55

Review. And that's a terrific piece about

3:58

how the court took Animus Doctrine. We

4:00

the principal the government can't sing aloud,

4:03

disadvantage certain groups based on animal toward

4:05

or a beer desire to harm members

4:07

of those groups. And applied

4:09

that principal. To protect religious objectors

4:11

to marriage equality. Insisting that when

4:13

government acts to protect marriage equality,

4:16

And nondiscrimination. It may also

4:18

be a vincent animus toward

4:20

religious. Objectors To Marriage Equality. She's followed

4:22

that up with a forthcoming Duke Law Journal

4:24

article called Story. To sizes and remedies

4:26

that. Elaborates on the teams in the

4:29

Supreme Court review Peace. and Leo also

4:31

has a terrific peace This one in

4:33

the Michigan Law Review titled desperate Discrimination

4:35

about how the course first to mimic

4:37

cases are built around a theory it's

4:39

almost extrapolated from John Her. He leaves

4:42

democracy and distrust that conservatives today face

4:44

unfair bias and prejudice, and that courts

4:46

should therefore more closely scrutinized laws that

4:48

burden conservatives or are inconsistent with their

4:50

views. And this is also as we

4:52

said before part of her forthcoming book,

4:55

Lawless Little Be Out next year. So

4:57

those articles provide really important framing and contacts

4:59

for the two cases that are going to

5:01

start off the mark sitting and they really

5:03

kind of put on display. Those cases do

5:06

a framework for the articles provide. So

5:08

one of those cases that as

5:10

about all of the ways in

5:12

which conservatives are actually very beleaguered

5:14

and very much in need of

5:16

the court solicitude of called Mercy

5:18

vs Missouri the case of filed

5:20

by private parties who argue that

5:23

the Federal government affectively coerced and

5:25

strong arm social media companies to

5:27

block plaintiffs content and social media

5:29

and that makes least plaintiffs the

5:31

modern day incarnation a same So

5:33

Celeste Eugene Debs at least in

5:35

the Fever. Dream Mind of Sam

5:38

Alito. The plaintiffs here

5:40

are individuals who posted or

5:42

repost said the anti vax

5:44

and high mask and other

5:46

similarly covered forward contacts during

5:48

the pandemic. The point is

5:50

also complained that the Federal

5:52

government's encouragement that the platforms

5:54

adopt anti hack materials policies

5:56

stifled them from bringing to

5:58

the for certain in. For

6:00

a new story is like Hunter Bidens

6:02

laptops and other very, very topical stories

6:04

that would point a light on the

6:07

vast left wing conspiracy that is truly

6:09

taken over America. I just have to

6:11

say I think we have a couple

6:14

cases coming up right now where Santa

6:16

Leaders questions could be truly and next

6:18

level: Whether he's gonna be diving into

6:20

all of the news stories that a

6:23

lame stream media doesn't want you to

6:25

hear, or if he's gonna be developing

6:27

another analogy like it's no longer Eugene

6:30

Debs. Is that these plates are

6:32

like anti mask Mandate policies are

6:34

basically the modern day equivalent. Of

6:36

Martin Luther King's letter from a Birmingham

6:38

jail. Like as your destiny be on the

6:40

tip of letters and a Birmingham laptop. It's

6:44

like. That's that's where families with

6:46

mine is gonna go. So this is

6:48

gonna be better than Black Santa isn't

6:50

it? I just think again we have

6:53

a lot of potential coming off any

6:55

between the medication abortion case, these cases,

6:57

the Trump immunity case I mean the

6:59

and holidays Sam Alito is just going

7:02

to be ready and rearing to go.

7:04

But and with this particular case involves

7:06

to states led by republicans they joined

7:08

the case arguing that the Federal government's

7:11

conduct these are the the social media

7:13

companies entered the states. As well and

7:15

are a few discrete legal issues in

7:17

the case that will shape how the

7:19

court ultimately rules. One is whether the

7:21

plaintiff has standing, That is whether they

7:23

can show they are likely to be

7:25

injured by the government conduct their challenging

7:27

which is here the governments interactions with

7:30

social media companies. So I doubt if

7:32

you take and constitutional law you know

7:34

that it can often be very difficult

7:36

for plaintiffs to establish standing in claims

7:38

for injunctive relief because you're basically asking

7:40

the court to prevent someone from doing

7:42

something. that may not actually

7:44

happen it's inherently speculative and the parenting

7:46

matic case for this is called lions

7:49

vs city of los angeles where victim

7:51

of police violence sought injunctive relief that

7:53

would prevent the police from using a

7:55

dangerous chokehold maneuver going forward into the

7:58

future the court in lions concluded that

8:00

the plaintiff didn't have standing because he

8:02

couldn't show that he was going to

8:04

actually be put in a chokehold by

8:06

the Los Angeles Police Department at some

8:08

point in the future. The injury that

8:10

he was trying to prevent hadn't happened

8:13

and it was entirely too speculative to

8:15

assume that it would actually happen to

8:17

him. But I don't know

8:19

if the court is going to care

8:21

about lions in this instance because the

8:23

facts of this case are just too

8:25

exciting for this particular court. My strong suspicion is no.

8:27

They are not going to be governed by that case. Again,

8:30

when you just consider how extensive and

8:32

pervasive the discrimination against Republicans with unhinged

8:34

views is, it's a certainty. It is

8:36

a lock that they are going to

8:38

experience discrimination in the future. Again and

8:40

again and again. Exactly. The court has

8:42

to stamp it out before it happens

8:44

again. We're getting a little bit ahead of

8:47

ourselves. So that's one issue these cases raise should

8:49

these plaintiffs be in court at all. Another

8:51

issue that will be big in this

8:53

case is whether the social media companies

8:55

effectively became state actors subject to

8:58

the First Amendment because the government

9:00

made the companies moderate plaintiffs content.

9:02

So another sort of core principle of

9:04

constitutional law, only state actors are subject

9:06

to the First Amendment.

9:09

So private companies generally aren't. That means

9:11

to make out a constitutional claim based

9:14

on private companies content moderation, the

9:16

plaintiffs would have to show that the government

9:18

is closely responsible for the content moderation that

9:20

they are arguing violates the First Amendment. And

9:22

then finally there are questions about the scope

9:24

of any remedy. So if some parts of

9:26

the government acted illegally, how should

9:28

the court write an injunction to respond to

9:30

that? So some procedural history is

9:32

in order here. So let me give a

9:34

little sketch of how this case got to

9:37

the court. First, a Louisiana

9:39

District Court concluded that the government

9:41

was trying to censor conservative speech

9:43

and issued a sweeping injunction that

9:45

largely barred communications between the White

9:47

House and several other government agencies

9:50

in between government and

9:52

social media platforms about

9:54

virtually all content. So again,

9:56

broad, broad order here. This

9:59

has enormous consequences, as you might imagine, because

10:01

lots of parts of the government, including

10:03

entities involved in law enforcement,

10:06

national security, public health, and

10:08

other functions, routinely

10:10

communicate with big social media companies.

10:12

And this district court injunction essentially

10:14

stopped all of that, blocking it

10:17

entirely. So pro free speech, he's

10:19

going to prevent any speech between

10:21

the government and private companies. So

10:24

shockingly or not, the Fifth Circuit

10:26

mostly upheld the injunction. The court

10:28

accused the government of a, quote, coordinated

10:30

campaign that jeopardized a fundamental aspect of

10:33

American life, end quote, namely being able

10:35

to see the Hunter Biden laptop story,

10:37

I guess. I don't know. But the

10:39

court of appeals did limit the district

10:41

court's order just to apply, just to

10:43

apply to the White House, the Surgeon

10:45

General, the Centers for Disease Control and

10:47

Prevention, and the Federal Bureau

10:49

of Investigation, since Republican courts are

10:51

now really into, like, defunding and

10:54

disabling the FBI. The

10:56

new abolition. The

10:59

new abolition. So interestingly,

11:01

the Supreme Court actually halted the injunction, even

11:03

the modified injunction. So they put that injunction

11:05

on hold, meaning the government actually wasn't barred

11:07

while the case was pending from doing all

11:10

the things that the district court and the

11:12

Fifth Circuit said that it was barred from

11:14

doing, at least until the Supreme Court has

11:16

an opportunity to hear and decide the case.

11:18

So that's what the court is now going to

11:20

do. And at that prior stage, we should note that

11:22

Alito, Thomas, and Gorsuch would have actually left the injunction

11:24

in place because, as always, of course they would. I'm

11:26

sure they would have liked to revert to the broader

11:28

district court injunction, but they just wanted to leave in

11:31

place what the Fifth Circuit had done. Not

11:33

only would we have liked to keep the injunction,

11:35

we also would like to stone Mark

11:37

Zuckerberg and all of the other owners

11:39

of social media. Whoever's running the CDC

11:41

and FBI. Maybe all of

11:43

them. All of them. So the first issue

11:45

in the case is, as we noted, standing,

11:48

which we know this court takes very seriously.

11:50

That was a laugh line. That

11:52

was a joke. Sorry.

11:56

So the federal government maintains that

11:58

these private plaintiffs... are complaining about content

12:01

moderation decisions that are not fairly traceable to

12:03

the government and that even if they were

12:05

traceable to the government, these past incidents are

12:07

not enough to supply grounds for standing, that

12:09

is, that they might be subject to them

12:11

in the future. As to the

12:13

states, the federal government argues that they are not

12:15

injured and have no relevant First Amendment rights anyways

12:17

here, but it seems like the court

12:20

is just going to want to get to the

12:22

merits. So I feel like they will probably steamroll

12:24

through all of this, like no law,

12:27

just vibes, look ma, no hands, no

12:29

law. I

12:32

think that's right. So that means that the real action

12:34

in this case will likely be on the merits, which

12:36

will turn on, as we talked about a minute ago,

12:38

the state action question. So has the

12:41

government sufficiently injected itself into the

12:43

platform's content moderation decisions such that

12:45

the platform's content moderation decisions are attributable to

12:47

the government? That is, that they are

12:49

basically the government's own decisions. This

12:51

question involves the government's own speech

12:53

and its power to persuade, as

12:56

well as private individuals or the

12:58

speech of private companies. The

13:00

federal government's brief argues that, quote, presidents

13:02

have long used the bully pulpit to

13:04

shape private conduct, including by

13:07

criticizing private speech. Theodore Roosevelt,

13:09

who coined the term bully

13:11

pulpit, famously lambasted, quote unquote,

13:13

muck raking journalists, end quote.

13:16

The brief also lists other examples

13:18

of presidents who have tried to

13:20

influence various parts of the media.

13:22

For example, there's discussion of Woodrow

13:25

Wilson and Ronald Reagan, who said

13:27

that media executives should, quote, take

13:29

active steps against drugs or drug

13:31

use, including through tough reporting

13:33

on drugs. So this is not unprecedented.

13:36

The idea of the government having some

13:38

say in the kinds of media that

13:40

is disseminated throughout our society and

13:42

the federal government, again, wants to underscore

13:45

that. This is not unusual. In fact,

13:47

it is business as usual. Yes. And

13:49

Kate has written a lot about presidential

13:51

speech, including in her award-winning piece Beyond

13:53

the Bully Pulpit in the Texas Law

13:55

Review. As the examples Melissa

13:58

just listed and Kate's writing show. there's

14:00

a robust tradition of presidents and executive

14:02

officers using their platforms and positions to

14:04

call for changes, including to criticize other

14:06

speech. And the federal government

14:09

says, that's all the government was doing

14:11

here, exercising its power to persuade and

14:13

engage in government speech. The government says

14:15

it did not cross the line into

14:17

coercion. Yes, the federal government

14:19

worked with companies, but the federal government

14:21

emphasizes that there weren't any specific inducements

14:23

or threats. The government didn't say, for

14:25

example, take this content down or we'll

14:28

punish you or anything like that. Instead,

14:30

says the government, look, there were ongoing

14:32

conversations about federal regulation of social media.

14:35

Like that was true and they included hearings

14:37

on the topic, but plaintiffs basically point to

14:39

statements that the government made, such as when,

14:41

quote, during a July 2021 appearance on

14:44

a cable news program, the White House communications director

14:46

was asked whether the president was open to amending

14:49

Section 230 to allow platforms to be

14:51

sued for spreading false information that causes

14:53

Americans harm, close quote. So again, the

14:55

brief continues. She declined to take a

14:57

position on Section 230 stating we're reviewing that.

15:00

And the plaintiff suggests that all this essentially was

15:02

tantamount to a set of threat from the federal

15:04

government that coerced these social media

15:06

companies into taking down content in ways

15:08

that injured these plaintiffs. In

15:10

addition, the federal government was flagging a lot of

15:12

content for platforms and communicating with the platforms about

15:15

the kind of content that its agencies determined

15:17

undermined public health guidelines or election

15:19

integrity. The federal government says,

15:21

again, this is entirely consistent with historical

15:23

practice regarding both public communications by government

15:26

and interactions between government and these kinds

15:28

of platforms. But what the plaintiffs are

15:30

arguing is all of this activity by the

15:32

federal government essentially reduced to coercion and

15:34

compulsion. Now, to be very clear,

15:36

the federal government isn't suggesting that it

15:39

has an unfettered license to communicate with

15:41

these social media companies. And indeed, it

15:43

concedes that significant encouragement might be illegal

15:45

when it effectively compels the party to

15:47

act in a certain way. But

15:50

the government here says that significant encouragement

15:53

does not exist when the government merely

15:55

urges a private party to act, even

15:57

if it does so repeatedly or in strong terms.

16:00

So a lot of this case really seems like it's going to be

16:02

a lot of parsing of the

16:05

record below and examining exactly what the

16:07

government did here and how often they

16:09

did it and the terms in which

16:11

they did it. And

16:13

I think that just portends absolute

16:16

disaster because we know how

16:18

poor some of these justices are

16:21

at one reading to reading this record

16:23

below. Like, they just don't care most

16:25

of the time. Or they're very

16:27

selective in what in that record they are

16:29

interested in and how to characterize it, right?

16:32

That we have seen time and time again. There was also just

16:34

as a matter of doctrine, this sub-fight in the case about what

16:36

cases should determine the legal framework for assessing

16:38

whether there has been significant encouragement.

16:41

Everyone agrees that Bantam Books versus Sullivan, which is a 1963

16:44

case, is an example of government action

16:46

that effectively did coerce private action.

16:48

In that case, a state agency

16:50

identified certain objectionable publications, asked

16:53

for cooperation in removing them, said the

16:55

agency had a duty to recommend prosecution

16:57

of people who provided objectionable publications and

16:59

assured that cooperative action will eliminate the necessity of

17:02

our recommending prosecution. The government also relies on other

17:04

state action cases that are less about threats or

17:06

coercion and more about state regulated industries and the

17:08

plaintiffs say that those cases aren't at all relevant.

17:11

So what is going to form the framework that's

17:13

going to actually resolve the cases is one of

17:15

the embedded questions that the case presents. There

17:17

are a number of amicus briefs here supporting

17:20

the plaintiffs. One comes from Turning

17:22

Point's Charlie Kirk. There

17:25

is another from Twitter Files

17:27

journalist Matt Taibbi. And

17:29

there are a bunch of briefs that are

17:31

filed on behalf of neither party. And that

17:34

basically means that the briefs don't take a

17:36

position on whether the government acted unlawfully here,

17:38

but they do ask the court to keep

17:40

a bunch of stuff in mind while thinking

17:43

about this case. And those briefs include a

17:45

brief from NetChoice, one from the Electronic Frontier

17:47

Foundation, one from the Knight

17:49

Institute, and one from the United States

17:51

Chamber of Commerce. And again,

17:53

the fact that there are so many briefs

17:56

on behalf of neither party really underscores that

17:58

this is a very complicated question. question.

18:01

And there are a lot of big

18:03

questions that this case will implicate. Because

18:05

there are things that the government can

18:07

do. And sometimes this kind of government

18:09

action is referred to as

18:11

jaw boning. I think they really

18:13

need to get a different way to describe this,

18:15

but jaw boning is what they call it. And

18:17

this jaw boning is basically when

18:20

government aims to pressure private actors,

18:22

like the platforms here. But at a certain point,

18:25

some argue that these jaw boning

18:27

tactics cross the line from permissible

18:29

to impermissible. Think, for example, about

18:32

the threats from possible AGs in

18:34

the Trump administration. So again,

18:37

there are lots of questions on both sides of

18:39

this. No idea how this court

18:41

is going to deal with them. We do know

18:43

that they are terribly sympathetic to

18:46

conservatives who want to spread anti

18:49

COVID, anti-mask, anti-vax sentiment. And so

18:51

that may shape all of this.

18:53

But here, a lot

18:55

of this record, at least to us seems like

18:57

some of the stuff is kind

18:59

of okay and fine. It seems pretty innocuous. But I

19:02

do think it's a little bit like the net choice

19:04

cases in that there are it's important that the

19:06

court not do too, too much, because unduly

19:08

tying the hands of government, when

19:10

government needs to act in ways that really are

19:12

critical to the public health and other sort of

19:14

national interest would be hugely problematic, but unduly

19:18

empowering government, if we're talking about

19:20

like, yes, maybe a second Trump term and what

19:22

kinds of overreach might be involved there would be,

19:24

I think, really scary too. So I just hope

19:26

that the court is somewhat modest and narrow, whatever

19:28

it does. I think they're always modest and narrow.

19:32

Surely, surely that will happen. Yeah,

19:34

that'll be fine. Although, actually, there was a little bit of

19:36

a well, we'll get at the end of the episode, we'll talk about

19:38

one of the decisions they just issued. They are sometimes that

19:41

way in internet cases, acknowledging that

19:43

they don't actually know how to program

19:45

their phones. Exactly. Stay back.

19:47

Yeah. So On the

19:49

same day that the court is hearing Murthy,

19:51

the court is also hearing the case NRA

19:54

versus VULO. This is a qualified immunity case.

19:56

That means the question is not just is

19:58

the government act unconstitutionally. But whether

20:00

the government violated clearly established constitutional law

20:03

and if there's one thing the republican

20:05

just says think is clearly established, it's

20:07

that one. Conservatives are the victims and

20:09

to sometimes accurately describing what conservatives are

20:11

doing and what their views are is

20:13

unconstitutional discrimination like in the Ferry case.

20:15

Aren't that? That's a bit of a

20:18

parody. It does seem like the state

20:20

officers here may have messed up, but

20:22

the justices I think will take this

20:24

case to see their complex and kind

20:26

of. Over exaggerate a problem

20:28

relative to it's actual nature.

20:31

So in this case, the At our

20:33

A claims that the former Superintendent of

20:35

the New York State Department of Financial

20:37

Services. Dfs. Violated the

20:40

First Amended by coercing insurance companies

20:42

and financial institutions to terminate their

20:44

business relationships with the An Array

20:46

in an effort to suppress the

20:48

at Our Age probe an advocacy.

20:50

One thing that may be relevant

20:52

here is that the An Array

20:54

and it's former Ceo Wayne Lapierre

20:56

was recently found liable in New

20:58

York for crop said and for

21:00

misappropriating the organization funds. A jury

21:02

found that La caused over five

21:04

point four million dollars and monetary

21:06

harm to the and our race.

21:08

And he's already paid over one million

21:11

dollars back to the organization by jurors,

21:13

actually? Ordered La Pierre to pay. For

21:16

point three, Five million. In

21:18

restitution so. Again, this

21:20

is all looking in the background of

21:22

this case, right? So that's kind of

21:24

background/atmosphere expert in terms of was actually

21:26

an issue in this case. The case

21:29

involves investigations into insurance policies of the

21:31

and or a promoted as part of

21:33

an affinity insurance programs which just meant

21:35

insurance that it encouraged it's members to

21:37

use. So Dfs concluded that one of

21:39

these insurance policies can carry guard actually

21:41

related New York law and Dfs entered

21:43

into consent decrees based on insurance law

21:45

violations associated with carry guard and other

21:48

and are indoors programs with other companies.

21:50

and in the consent decrees three insurance

21:52

companies admitted that they provided some unlawful

21:55

and or indoors insurance programs and agreed

21:57

no longer provide any and or endorsed

21:59

insurance programs including lawful ones to New

22:01

York residents. The companies also agreed

22:03

to pay fines of $7 million in one

22:05

case and a million and five million in

22:08

two other cases. And the NRA

22:10

also reached a settlement with DFS. And

22:12

those agreements, that is the consent decrees,

22:14

are actually part of the plaintiff's case

22:17

arguing that the state government bullied private

22:19

businesses into not doing business with the

22:21

NRA. And to me, that seems like

22:23

a big stretch. It can't possibly be

22:25

the basis for a constitutional violation, the

22:28

fact that the government sanctioned parties who

22:30

conceived that they violated the law. There's

22:32

always going to be some prophylactic measures

22:34

on top of a consent decree or

22:36

settlement. Leah, enforcement can sometimes tip into

22:39

discrimination. Yeah. I think you

22:41

have to acknowledge that. Obviously. And

22:44

that is the lesson of

22:46

Masterpiece Cakeshop, of 303 Creative and

22:48

all of the COVID cases. So

22:52

having said that about the consent decrees, there are

22:54

other parts of the case where, at least

22:57

I think the NRA has a point. And

22:59

reading the briefs, I really felt like this

23:01

was the onion meme, like when the worst

23:03

person you know makes a good point. Or

23:06

Neil Gorsuch. Stop clock. Right.

23:09

Yes. Twice a day.

23:11

Exactly. Any of those we'll do,

23:13

we'll come back to our little stop clock, Neil

23:15

Gorsuch, at the end when we discuss Pulsifer. But

23:18

just to take an example of where I think the NRA

23:20

has a point, they say after

23:22

the shooting at Marjorie Stoneman Douglas

23:24

High School in Parkland, Florida, that

23:26

DFS communicated to banks and insurers

23:28

that they would face regulatory action

23:31

if they failed to terminate their

23:33

relationships with the NRA. And they

23:35

have an allegation in their complaint

23:38

that DFS presented their views on

23:40

gun control and said

23:42

they discussed an array of technical

23:44

regulatory infractions that these companies might

23:46

be engaged in. And allegedly made

23:49

it clear that DFS Was less

23:51

interested in pursuing those infractions so long

23:53

as the business stopped providing insurance to

23:55

gun groups. And That seems pretty questionable.

23:58

That's pretty close to the end. they

24:00

will look the other way and your

24:02

legal violations of you Stop doing business

24:05

with this organization whose policies I object

24:07

to. So that's what I had mind.

24:09

So the complaint also identifies as problematic

24:12

some things that may not actually be

24:14

that problematic. So for example, there is

24:16

a guidance letter that points to the

24:19

social backlash against organizations that promote done

24:21

and says that these concerns can no

24:23

longer be ignored and that society as

24:25

a whole has a responsibility to act.

24:28

And the guidance letter approvingly cited. The

24:30

recent actions of a number of financial

24:32

institutions that severed their ties of the

24:34

An Array as an example of businesses

24:37

fulfilling their corporate social responsibility at It

24:39

then went on to encourage regulated entities

24:41

to continue evaluating and managing the risks

24:43

including reputation arrests that may arise from

24:45

their dealings with the An Array or

24:48

similar then promotion organizations, and to review

24:50

any relationship they have with the An

24:52

Array or similar A Gun Promotion organizations

24:54

and to take prompt action to manage

24:56

the threats and promotes public health and

24:59

safety. and again, That kind of

25:01

days later seems like the sort of anodyne

25:03

thing that a government agency would do, even

25:05

in circumstances involving an issue that might be

25:07

diverse of are fraught like gun control. Okay,

25:09

so because this case arises at the motion

25:12

to dismiss stage, that means you take everything

25:14

the plaintiff and that's the an array here

25:16

alleged in the complaint as true and you

25:18

ask if that's all true has a plan

25:20

have shown that experience a constitutional violation that

25:23

is clearly established and as we just talked

25:25

about some of the things that. Are

25:27

alleged are it seems actually quite troubling and

25:29

something much less significant. But it does

25:31

seem that at least based on the first allergies

25:33

and which concerns state officials saying. Like literally,

25:35

we won't seek penalties against if you stop doing business

25:37

with the an array which I don't. Like that seems

25:39

like maybe a plausible basis for the claim. And

25:41

then there are other parts of the complaint that

25:43

just. Seem like they can't be like. the

25:46

fact that regulators impose penalties on companies

25:48

that were violating the law like that

25:50

can possibly be a constitutional violation, let

25:52

alone a violation of crew establish law.

25:54

And will also say that the damages the entering

25:56

received are far from clear, like it's difficulty in

25:59

finding and sure. Than other companies to deal

26:01

with. it could have something to do, maybe

26:03

not just with this sort of state conduct

26:05

but potentially repeated violations of the law which

26:07

we lose a topic. Any of those are

26:09

my got to all of the abide by.is

26:12

not the sort of thing that is typically

26:14

gonna be litigated that closely at the motion

26:16

to dismiss stage, so I doubt that's gonna

26:18

be super relevant. Yes, and the An array

26:20

and this case is actually being represented by

26:22

a C L U with David Cole the

26:24

head of the A C L U expected

26:26

to argue the case. The case also has

26:29

some advocates brace and support of neither party

26:31

as a previous case dad and that includes

26:33

one from federal government who has as to

26:35

participate in this argument and the federal government

26:37

brief while unsupported neither party I think it's

26:39

pretty friendly. To the and our rights, it

26:42

says the complaint, as we were suggesting plausibly

26:44

say the First Amendment claim at least based

26:46

on some allegations but not others and a

26:48

part of he wondered whether the Federal government

26:51

filed this brief in order to bolster it's

26:53

position in Murthy. to say look, we recognize

26:55

governments can't improperly encourage are significantly into private

26:57

action and we can identify that when it

27:00

actually happened. But we didn't do that in

27:02

our own case. a family that's. Gonna be

27:04

like the are willing to throw New York under the

27:06

bus, but you're defending what your officials, oh yeah, convenient

27:08

area. Again, he is just going to

27:10

be all over so many of these cases.

27:12

Can least you and so many more. Yeah,

27:14

that's just the first ten. Hours

27:17

a day. I know a lot

27:19

them that. However, spring break up

27:22

the. Like. That's her lack. Strict.

27:26

Scrutiny as but you by Americans United

27:29

for Separation of Church and State. Oklahoma

27:31

recently approved the nation's first religious Public

27:33

School. You heard that correctly. A religious

27:35

Public school. If you paid attention to

27:37

the Supreme Court over the past few

27:39

years, you probably noticed a trend. The

27:41

Supreme Court's ultra conservative. Faction that a

27:43

church say protections in order to funnel

27:45

public money to private religious schools. Oklahoma

27:47

is Christian nationalist. Latest test case, a

27:50

blueprint for other conservative states to follow

27:52

Americans United for Separation of Church and

27:54

State. Such a dangerous precedent or religious

27:56

public school would create across the country

27:58

and promptly filed a lawsuit. probably if

28:00

it or a Seville Catholic Virtual School

28:02

in Oklahoma this is the latest effort

28:04

to blur the lines between church and

28:06

state, Taking tax money and directing it

28:08

to a religious school that will indoctrinate

28:10

students into a faith with plans to

28:12

discriminate against. Anyone who doesn't appear goes

28:15

against the founding principles of our country.

28:17

Americans United will keep fighting for freedom

28:19

without saver a quality without exception. Keep

28:21

up with this issue at a you.org.

28:23

At the you for your store we know

28:25

things can get busy. This upcoming holiday you

28:28

can count on us to be open and

28:30

ready to help with any packing and shipping

28:32

or anything else you might think you can

28:34

feel. i'm actually I don't have a good

28:36

voice amp birds. New

28:39

but are certified citing experts. Go

28:41

back and zip just about anything.

28:43

We sat. C U P S

28:45

thorn be unstoppable. Most of his sons are

28:47

independently are products of surprising and I was

28:49

of offers me their recent protests come in

28:51

today to get your house. There's.

29:00

No said. Said that occurred as some

29:02

other cases it's hearing in that first week

29:04

of the March settings. We wanted to be

29:07

sure to flag one case that will be

29:09

heard and the second week of the city

29:11

and that is the. Medication. Abortion

29:13

case. Alliance. For hippocratic, I

29:16

was gonna say hypocritical. I

29:18

do too. I had only

29:20

time every every single time.

29:22

Alliance for Hippocratic Medicine vs.

29:24

Sta. This. Is the case filed

29:27

by the Organization for Anti Abortion Doctors

29:29

that initially sought to revoke the Ft

29:31

his approval of never pressed down one

29:33

of the drugs used in the to

29:35

drive medication abortion protocol the supreme court

29:38

did not grant across petition. Seeking review

29:40

of the issues related to the As

29:42

Da's initial approval of Never For Sounds.

29:44

So that issue whether misrepresents

29:46

be declared an unauthorized drugs

29:49

is mercifully not. Before the

29:51

court inside. the court it's

29:53

are viewing only the fifth circuit reinstatement of

29:55

a bunch of restrictions on the for sounds

29:58

that the as to a deemed medically warranted,

30:00

including restrictions on telemedicine, in-person

30:02

pickup, the timing of mifrapristone

30:05

use, i.e., how late in pregnancy

30:07

that it can be used, and others. And

30:10

again, if you have been following this

30:12

podcast for a while, we covered some

30:14

of the loosening of these restrictions during

30:17

the pandemic, like right after the Biden

30:19

administration came into being. So

30:22

these are all sort of Biden-era

30:24

policies. Back to the case. Before

30:27

the Supreme Court could or should review

30:29

those claims that are now before it,

30:31

it would have to find, again, against

30:33

all evidence and reason, that the doctors

30:36

in this case face a risk of

30:38

injury because the FDA deemed those

30:40

restrictions unsound. That's essentially a

30:42

standing question. So basically, were

30:45

the FDA-specific protocols for how mifrapristone

30:47

should be used somehow increasing the

30:50

risk that these doctors would be

30:52

called upon to treat patients for

30:54

complications related to mifrapristone? How

30:56

were they injured by these restrictions?

30:58

So that's kind

31:01

of an obstacle. But don't worry, we

31:04

can surpass that obstacle very

31:06

easily. Honestly, I think if

31:08

the court does the right thing here,

31:11

they are going to say the plaintiffs

31:13

actually don't have standing because I just

31:15

think this theory is so ridiculous. It

31:17

rests on the idea that there are

31:19

complication rates from mifrapristone that just do

31:21

not exist. It rests on the idea

31:24

that the FDA's precise restrictions on mifrapristone

31:26

that the plaintiffs are challenging are what

31:28

injures them. And the idea that

31:30

there are these complication rates from mifrapristone have been

31:32

debunked. You recall that two of the studies the

31:34

district court relied on in this case have since

31:37

been attracted. And the doctors would

31:39

have to show that the specific protocols

31:41

are challenging the dosage and timing and

31:43

telemedicine provisions are what injures them. And

31:45

I just don't even think that Kate

31:47

Middleton's Photoshop skills could fudge those statistics.

31:50

I feel so seen. I know. I paused.

31:53

I paused. I just wanted to let that

31:55

sink in. Time out for a minute. Yeah.

31:58

What a week this has been for me. I

32:00

mean, and by what

32:03

a week, I want to note that

32:05

Melissa is not primarily referring to the

32:07

fact that her book was named a

32:09

New York Times bestseller, number one bestseller,

32:11

but the fact that the mainstream media

32:13

got hooked onto all of the Kate

32:15

Middleton theories that Melissa has been immersed

32:17

in for like four years. I

32:20

mean, it's so gratifying. I'm sure

32:22

even a worm must turn at

32:25

last. I'm so gratified. And

32:27

also Meghan Markle came back to Instagram. I

32:29

just wow. American Riviera, American Riviera orchard. Okay, I

32:31

haven't looked at that, but I did watch the

32:33

little excerpts that you could get from the South

32:35

by Southwest appearance that she made. Yeah, with Aaron

32:37

Haines. Yeah. And Katie Kirk, friend of the pod.

32:39

And Brooke Shields was on there too on that

32:41

stage. I don't know if she's a friend, but

32:43

I bet she is. She could be. She

32:46

has friend potential. Um, she

32:48

was glorious. She was glorious on stage.

32:50

Meghan Markle came back with American Riviera

32:53

orchard and I'm here for it. I'm signed up. I'm ready

32:55

to get an email from Meghan. I don't care what it

32:57

is. I don't know what it is. I don't know what it

32:59

is. I don't know what it is. Okay. Like,

33:02

I don't know what it is. Maybe we should get back to the

33:04

Mephistone. Yeah. I like this detour, but I

33:06

guess we should get back to my Mephistone.

33:09

All right. Um, apologies for that frolic

33:12

listeners. Now obviously we

33:14

are going to debrief in depth

33:16

this oral argument when it actually

33:19

happens. But for now we wanted

33:21

to highlight a few notable amicus

33:23

briefs that underscore what a big

33:26

deal this case is for so

33:28

many aggrieved conservatives and to

33:30

underscore for all of you the absolutely

33:33

enormous stakes of the

33:35

upcoming election for

33:38

both reproductive justice and

33:40

the courts that are going to be fielding huge

33:42

numbers of reproductive rights cases over the

33:44

next couple of years. So there is

33:47

an amicus brief for the American Center

33:49

for Law and Justice and don't let

33:51

that name fool you into thinking that

33:53

it is actually concerned with law and

33:55

justice. It is led and represented by

33:57

Jay Sekulow. And in this brief...

34:00

They argue that the Comstock Act

34:02

prohibits not just the distribution of

34:04

medication abortion, but distributing

34:06

anything that could be used for

34:09

abortion. And just to refresh, the

34:11

Comstock Act is an 1873 law

34:14

that prohibits the distribution in interstate

34:16

commerce of articles intended for immoral

34:18

purposes. And although the

34:21

law is no longer enforced, it's

34:23

never actually been repealed. It's

34:25

basically lying in wait like a

34:27

serial killer or a zombie

34:30

to be resuscitated by

34:32

some enterprising Republican president.

34:35

And it can be used to do lots of

34:37

things like stop the transmission in interstate commerce of

34:40

medication abortion or any kind

34:43

of implement that might be

34:45

used in a surgical abortion. Yeah. And

34:47

so that's in some ways a big part

34:50

of this brief as well, because the brief

34:52

is telegraphing where this is going. It urges

34:54

the resuscitation and interpretation of the law that

34:56

would mean not just a ban on medication

34:58

abortion, but given that medical equipment is made

35:00

in between the states, a ban on all

35:03

abortions nationwide. So it specifically notes in the

35:05

brief that the restrictions in the

35:07

brief's words apply to devices or equipment in

35:09

addition to drugs. There

35:12

is also an amicus brief filed

35:14

by 145 Republican representatives in Congress

35:16

that also argues that the Comstock

35:19

Act prohibits distribution of medication abortion.

35:22

So that is 145 sitting

35:24

Congress people, all Republicans who

35:26

are behind the idea that federal

35:28

law can be used to criminally

35:30

prosecute distributors of medication abortion. So

35:33

just to spell this out really clearly, what this means

35:35

is that if you live in a blue state and

35:38

in the post-dobs era, you feel like

35:40

things are crazy elsewhere, but your repo rights

35:43

are safe because the laws in your state protect

35:45

your ability to obtain an abortion should you need

35:47

one. That's actually not necessarily

35:49

going to be the case for long because

35:51

if the Republicans gain control of the White

35:53

House and both houses of Congress, there

35:55

will almost certainly be a nationwide ban

35:57

on abortion and that does not need

36:00

mean a new law gets passed that,

36:02

you know, both cause of Congress approve and

36:04

the president signs, it could mean they just

36:06

decide to revive enforcement of the Comstock

36:08

Act in a way that makes medication

36:10

abortion impossible no matter how blue your

36:12

state. Like, everywhere. They don't even need

36:14

to win back Congress to do that.

36:16

That's right. All they need is to win the presidency and

36:19

then they can just deploy this

36:21

newly constituted Department of Justice to

36:23

start enforcing the Comstock Act again.

36:25

Full outright ban if they have

36:27

a triumvirate and even if they just had the

36:30

executive branch they could start enforcing the Comstock Act

36:32

as these briefs contemplate. So Congress

36:34

not required at all to

36:36

make this essentially zombie

36:38

law spring back to life and do

36:40

the work of making it impossible to

36:43

obtain nipristone and

36:45

to have a legal medication

36:47

abortion anywhere in the United

36:49

States. And all of this is important

36:51

because this Comstock issue is not even

36:53

before the court since the court isn't

36:55

reviewing whether the FDA's initial approval violated

36:58

federal law and yet you still have this

37:00

many Republican representatives signaling their support for an

37:02

abortion ban. And so if you want a

37:04

big bat signal about the stakes of the

37:06

2024 election, this is it. This

37:09

is what they're saying they want to do. So here's

37:11

a question. There are a lot of implements that are

37:14

used in surgical abortion that are also used

37:16

in sort of standard gynecological care like

37:18

Pap smears for example that use like

37:20

a speculum. How are they

37:22

going to deal with the shipment and interstate

37:24

commerce of those implements for just standard? I

37:27

think Pap smears are probably immortal too. Exactly.

37:29

No reproductive health care for women. 2024

37:31

hashtag vote Republican. I mean

37:34

look if it could be used for multiple

37:36

purposes I don't see why a Trump administration

37:38

AG wouldn't go to court and say well

37:40

this implement could be used for this purpose

37:42

and we have reason to suspect that this

37:44

person was going to use it. And so

37:47

it's gonna enforce the law aggressively

37:49

and that will make

37:51

it more difficult to actually

37:53

distribute health care services and items.

37:57

That was grim thank you. Thank

37:59

you. My lady parts, thank you. Another

38:02

highlight in the Amici briefing is

38:04

an amicus brief filed on behalf

38:06

of Students for Life for America.

38:09

This brief argues that in approving

38:11

Mipha Pristone in the first instance,

38:13

the FDA violated – now wait

38:15

for it – the

38:17

Endangered Species Act. That

38:20

is, the FDA violated the Endangered

38:22

Species Act by not considering how

38:25

the approval of Mipha Pristone affected

38:27

endangered species back in 2000 when

38:29

the drug was first approved. The

38:32

brief says, quote, the current list

38:34

of endangered species recognized by the services

38:36

contain nearly 1,500 different species. Multiple

38:40

endangered species may be affected by the

38:42

approval of Mipha Pristone, but the extent

38:44

is unknown due to the FDA's failure

38:46

to consult as required by Section 7

38:48

of the Endangered Species Act. Now

38:51

as far as the species that might possibly

38:53

be affected, the brief lists the

38:55

following. The red wolf, Kemp's

38:57

Ridley sea turtle, the

38:59

leopard darter fish, the California

39:01

condor, the whooping crane, and

39:04

the sockeye salmon. There are exhibits

39:06

of each of these species in the brief,

39:09

should you choose to pull it up, and

39:11

search for the potential environmental impact

39:13

that the approval of Mipha Pristone could possibly have

39:15

had. It's eluded me

39:17

so far, but maybe I'm

39:20

not a close enough reader. They need the sockeye

39:22

salmon and deprive women of reproductive health

39:24

care, right? That's the country song, right?

39:28

Environmental law is everywhere. This

39:31

brief literally reads

39:33

like a salt burn free verdrine.

39:37

Like, murder on the dance floor. I

39:39

love this. I loved it. The

39:41

good news is that it does seem as though Republicans,

39:43

or at least this group, has finally found

39:45

environmental regulation that they are interested in enforcing.

39:48

So I guess that's a silver lining. We should all, you know.

39:50

You really dig deep. Right,

39:52

because it is only when convenient to stop

39:55

women from controlling their bodies. So, but at

39:57

least under those circumstances, environmental law comes to

39:59

the fore. So this case is going

40:01

to be argued the second week, and we

40:03

will focus on it more when we do

40:05

the recap. But we want to link what

40:07

is now unfolding in the medication abortion case

40:09

to a recent decision from the Fifth Circuit

40:11

in a case we covered in a special

40:13

segment after the argument before the Fifth Circuit.

40:15

And that is the case about whether the

40:17

Title X sabbling planning program can provide access

40:19

to funding for contraception to minors whose parents

40:21

oppose contraception. So we're going to play our

40:24

recap of that argument in

40:26

the Fifth Circuit because it was

40:28

a scene. And that's a

40:30

big scene. One case the Fifth Circuit heard

40:32

oral argument in was the contraception case, Deanda

40:34

versus Becerra. This is a

40:37

case we have previously talked about.

40:39

It's Judge Kaczmarek's contraception case in

40:41

which the court said that the

40:43

Title X program was unconstitutional because

40:45

it violated parents' rights, and particularly

40:47

a regulation that allows minors access

40:49

to contraception. When

40:51

the government's lawyer pointed out that the

40:54

parent challenging the program didn't identify his

40:56

daughter's age, the judge suggested that it

40:58

doesn't matter. Before they're

41:00

18, more than likely, they're going

41:03

to be old enough and in a

41:05

position to get pregnant. They're

41:07

also going to be in a position where people

41:11

are wanting to have sex with them.

41:13

Okay? Whoa. Okay.

41:16

Very, very normal. Not

41:19

at all. And speaking

41:22

of not very normal, we also got

41:24

more than one invocation of Robert Bork,

41:26

since Robert Bork is apparently treated as

41:28

governing legal authority in the Fifth Circuit.

41:31

So Robert Bork was Ronald Reagan's nominee

41:33

for the Supreme Court. He was a judge on

41:35

the D.C. Circuit and former Solicitor General during

41:37

the Nixon administration, during which

41:39

he became Acting Attorney General after other officials

41:41

refused to fire the special prosecutor investigating

41:43

Nixon. But Bork was like, sure, I'll do it.

41:46

Bork had previously been an academic where

41:48

he had criticized, among other things, Roe versus

41:51

Wade, the Supreme Court's decision in Griswold,

41:53

protecting the right to contraception, and Marbury versus

41:55

Madison, and the Senate decided not to

41:57

confirm him. And this is the guy that the

41:59

Fifth Circuit is. It really

42:01

is a sign of the times you have

42:03

conservative jurists disavowing Justice Scalia and

42:05

embracing Robert Bork. I think that's actually

42:08

a hugely important data claim. Yes, it's

42:10

like the fantasy SCOTUS, like the one

42:12

where Robert Bork was Chief Justice. Yeah,

42:15

I think that's the court, the Fifth

42:17

Circuit thinks it lives under, and they're

42:20

just deciding cases as though that's the

42:22

state of the world. Okay,

42:24

so we also wanted to play two

42:26

clips of some of the judges summarizing

42:28

the claim that Judge Kaczmarek ruled for,

42:30

and that the Fifth Circuit is definitely

42:33

open to ruling for. So here's

42:35

one. It's my understanding periods

42:38

can start pretty young, not

42:40

five, but some even I think

42:42

eight or nine year olds get their

42:45

periods. So it's not 15, 10

42:47

is pretty common. So

42:51

it is not that old that these

42:53

young girls need to be to be

42:56

old enough to get pregnant should

42:58

they have this interaction with

43:01

this other guy, that they're trying

43:03

to again, get medicine,

43:05

get advice, deal

43:08

with the fact that they had the sex

43:10

and address that, whatever it is. And

43:12

he's trying to avoid that

43:15

pathway because once she's

43:17

gone and had sex with someone,

43:20

she's not a virgin when she gets married.

43:22

And again, I'm not myself judging

43:24

that. I'm simply saying he would on

43:27

his religion. And I respect that. And

43:31

here's another. If she did

43:33

receive contraceptives without my

43:35

knowledge, that interferes in a

43:37

dramatic way with my ability

43:40

to parent, because

43:42

the child now has a

43:44

means of engaging

43:46

in sexual activity and avoiding certain

43:48

consequences of it in that. Are

43:50

you there, God? It's me, the Fifth

43:52

Circuit. Like why doesn't

43:55

anyone know how menstruation works? Or

43:57

so why don't they know how consent works? If

44:00

you are eight or nine, you cannot legally

44:02

consent to sex. If you

44:04

are a minor, right, in some cases, you cannot

44:06

like, or even if you're a woman who just

44:08

like, has sex, right, you are not or shouldn't

44:11

be thought of as just being like, okay,

44:13

like, and therefore you can become pregnant, right?

44:16

Like, that is not just like accepting the

44:18

consequence of having sex. I just can't get

44:20

over just sort of the general like, I

44:22

heard a thing about periods once. Like,

44:24

you know, it's like, what? Just like,

44:26

go ask a physician, like go to

44:29

like, but this is the thing they

44:31

don't trust experts. I

44:33

think those clips show that we're

44:36

basically always right. Correct.

44:39

Soot seers, even so guess

44:42

what listeners, we got a decision

44:45

in the case and surprise the

44:47

ruling as we predicted was for

44:50

the challenger and again, surprise, the

44:52

Fifth Circuit's decision invokes Robert Bork

44:55

in the process. We really did

44:57

call it. Yes, we sure did.

44:59

Yeah. The Fifth Circuit

45:01

said that Title 10, the federal family

45:04

planning program does not prevent Texas from

45:06

enforcing a law that gives parents the

45:08

right to consent to their children under

45:10

18 obtaining contraception. This effectively

45:12

allows parents the ability to refuse

45:14

and to block efforts to provide

45:16

contraception. Now, to

45:19

be very clear, the case, which

45:21

is called Deanda versus Becerra involves

45:23

the question of federal preemption. That

45:25

is, whether the law that authorizes

45:27

Title 10, the federal family planning

45:29

program, preempts the Texas state law

45:31

that would require minors to secure

45:33

parental consent for contraception. And

45:35

it's a very similar issue as that presented

45:38

in the Idaho and Tallah case that the

45:40

court is going to hear in April.

45:43

So all to say that we're going to be hearing

45:45

a lot about the conflicts between federal laws

45:47

and batshit crazy state laws going

45:49

forward. Yes. Looking forward.

45:51

Yes. But For today, we

45:53

wanted to highlight some of the Fifth Circuit's

45:55

reasoning in this decision, which goes beyond contraception

45:57

as the oral argument questions that we were.

46:00

The talking about suggested that the court

46:02

would say that this are good reasons

46:04

quote Apparent alleges injuries to his religious

46:06

exercise and parental rights that have perennially

46:09

been honored by American courts. For example,

46:11

he claimed to secretaries policy burdens his

46:13

right to exercise his Christian belief that

46:16

is minor, children should abstain from premarital

46:18

sex. Such rates are, as the Supreme

46:20

court has explained, part of our enduring

46:22

American tradition. That. Right to chested.

46:25

Yes. Deeply rooted. The opinion as expected

46:27

and as we noted sites Robert Bork

46:29

awkward that here judge boards opinion sheds

46:31

more light on the issue before us.

46:33

Have any opinion on that? We said

46:36

this was written by store called Duncan

46:38

who is a Trump appointee. It's. And

46:40

a San as law school? yes

46:43

use fancy it and. Yeah, and

46:45

they and they have him. them. So to

46:47

to underscore how this is linked to

46:49

the medication abortion case like they are

46:51

telling you what they are working toward.

46:53

It is not just and acting a

46:55

federal abortion ban, it is using existing

46:57

law to enforce a federal abortion ban

47:00

that having to enact wind it is

47:02

not just a medication abortion ban, it

47:04

as a federal ban on abortions. It

47:06

is not just abortion. It is contraception.

47:08

They're challenging programs that provide access to

47:10

contraception and their reasoning suggests it's not

47:12

just about contraception, it is about premarital

47:14

sex. The circuit modified some parts. Of

47:16

the cat marriage to support opinion. The Kashmir

47:19

District court opinion had vacated the rule under

47:21

the A P A even though the plaintiffs

47:23

had not thought review under the ape. Yeah,

47:25

it was just completely wilde. But the fifth

47:27

Circuit what they did is they held that

47:29

this Texas law isn't preempted, essentially preserving the

47:31

effect of the opinion in Texas and still

47:34

moving the law to the riots. And I

47:36

just think this is the exact same dynamic

47:38

as a myth. A priest in case of

47:40

so many other cases filed new in has

47:42

mirrored district court right in order to get

47:44

him to do something totally wilde. He

47:46

does it. This is circuit modifies it slightly

47:49

in a way that is still insane moderating

47:51

the insanity while still being and saints and

47:53

that potentially take it up for this greengart.

47:56

That's. The Playbook Moderating insanity. You are

47:58

still being insane. When. The

48:00

greatest. T. Shirt ever. I'm.

48:03

Not sure harm I want to

48:05

walk around with that applies er

48:07

advice or a bad idea. Know.

48:10

It's. During held onto my like to that's should

48:12

enjoy. A rather eat is called it.

48:14

Finding it has merit court like that's now

48:16

a thing. It is like a singer require

48:18

a right. It's not illegal practice among. The

48:20

Spirit of Legal All Ninety more Motorola Moto other

48:23

before we do. but as mentioned that during the

48:25

March sitting the court is also going to be

48:27

hearing some important cases about the rules of evidence

48:29

and the right to a jury trial. We're not

48:31

gonna cover those cases in this preview, but we

48:33

will spend time talking about them after them are

48:35

sitting when we sit down to recap oath as

48:37

cases. And as we were just alluding

48:39

to before we got to Army Corps culture

48:41

segment, we have a development that's related to

48:44

the procedural history of both the Medication Abortion

48:46

case and Title Ten Contraception case. So as

48:48

we were to saying both cases were filed

48:50

in a particular to this end in the

48:52

Southern District of Texas all to ensure that

48:54

they would be heard by the country's leading

48:56

scientists. And now for most absence advocate Us

48:58

Judge Matthew Kazmir Exo to combat this kind

49:01

of judge Shop banks the Judicial Conference which

49:03

is the national policy making body for the

49:05

Federal courts and else to policy change didn't

49:07

release the actual policy. But their announcement says

49:09

the new policy is that in case

49:11

is seeking injunctions and declarations the cases

49:13

will be a side on a district

49:15

thesis eliminating the opportunity to hand pick

49:18

your judged by filing a complaint in

49:20

a single judge division. So we wanted

49:22

to get is a hat tip to

49:24

law professor with a twitter account and

49:26

friend of the pod Steve Ladakh who

49:28

has really ban on the forefront of

49:30

highlighting this issue and drawing attention to

49:32

how it is really difficult to swear

49:34

it with the rule of law on

49:36

and Steve's for those of. You who

49:38

may have heard is moving to Georgetown

49:41

Law School in the fall and so

49:43

I All Texas courts breathe a sigh

49:45

of relief as outline entered the last

49:47

ah breathing that are that the answer

49:49

is no sir. He's just going to be doing

49:52

all right. Maybe when it comes Amarillo, his work is done

49:54

so he can decamp such. as

49:57

i wonder why a lot of

49:59

out I'm

50:04

also going to note that this has got to be

50:06

a real blow to the Amarillo

50:08

Chamber of Commerce and Tourism Board

50:10

because there were

50:12

so many litigants flocking to

50:15

Amarillo. There were organizations incorporating

50:17

in Amarillo. Like the Alliance

50:19

for Hippocratic Medicine. Again, Amarillo

50:21

really had a boom because

50:24

of the Casmeric court, like

50:26

people booking hotel rooms, eating

50:28

at Amarillo restaurants and cafes,

50:31

all for the chance to

50:33

have Judge Matthew Casmeric confirm

50:35

their legal views.

50:39

And I really hope this does

50:41

not spell economic doom for Amarillo.

50:44

Maybe Chip and Joanna Gaines can

50:46

be called in to revitalize the downtown

50:48

area. You know, we'll see.

50:51

We'll see. All right. Just

50:54

to be very clear, it's not just

50:56

the Amarillo Chamber of Commerce that is

50:58

put out by this development. You

51:00

know who else is also hopping mad that

51:02

the litigants can no longer pick their judges

51:05

and assure their preferred outcome by filing

51:07

in a particular court? Well, two

51:10

of the most esteemed judges

51:12

of the most esteemed circuit

51:14

are very, very unhappy about

51:16

this new policy change. Any

51:19

guesses, ladies, as to who the

51:22

two aggrieved judges are? I

51:24

mean, one, I think they're a library. Is there

51:27

a portrait? Right. Exactly. Was

51:29

this person sworn in at Harlan Crow's library?

51:32

Ding, ding, ding. Tell her what she's fun.

51:34

You're right, Leah. Jim

51:36

Ho has communicated his happiness

51:38

about this particular development by,

51:40

wait for it, giving

51:43

a statement to a Volok

51:45

conspiracy blogger about his discontent,

51:47

as one does. Do

51:50

you want to wager a guess? Kate asked who the

51:52

second one was? Well, it's not Duncan, right? Very good

51:54

guess, like always a good wager. And Leah, do you

51:56

want to go two for O? You know,

51:58

it is the job. that

52:01

I think walked so Justice

52:03

Rebecca Bradley could run and

52:05

that is Judge Edith Jones

52:07

of the Fifth Circuit. Absolutely correct.

52:09

Although I wonder, has anyone asked Bradley for her

52:11

take on this? She probably mad about it too.

52:13

It has nothing to do with her court. I'm

52:15

sure she'd be happy to post something on Volokh,

52:17

honestly. She also wants

52:20

Judge Kefirik to be able to set

52:22

nationwide healthcare policies. So I can only

52:24

assume. Volokh

52:27

conspiracy, for those of you who might

52:29

not know, is fan fiction. Fan

52:32

fiction, it is a blog

52:34

that is run by several

52:36

libertarian and conservative law professors

52:39

that have been at it for a while. Strix

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key. All

55:17

right, so we are now going to ship to some court culture.

55:19

And the first thing we wanted to do is not

55:22

a lighthearted court culture topic. We actually wanted to

55:24

take some time to discuss developments on the court

55:26

death penalty. And we've been thinking about doing this

55:28

segment for a while, but given the fire hose

55:30

of Trump related and just general SCOTUS news, we

55:33

haven't had an episode with sufficient time to dig

55:35

in. And so we're going to try to do

55:37

that now. So regular listeners know

55:39

that the court continues to use the shadow

55:41

docket to clear the way for executions. This

55:44

happened in January in Smith versus Ham when

55:46

the court denied a state of execution to

55:48

Kenneth Smith. Smith had been convicted

55:51

of murder, but the jury in his case

55:53

voted 11 to 1 to sentence him to

55:55

life imprisonment as opposed to to

55:57

death. But the judge overrode the jury's

55:59

recommendation and it's and imposed a death sentence. And

56:01

after that, the state set an execution date,

56:04

and Smith challenged the execution protocol. That is,

56:06

the cocktail of drugs the state was going

56:08

to use to kill him. And he sought

56:10

a stay of execution, which the US Supreme

56:13

Court denied. And what followed was horrific. The

56:15

state botched the execution. At the time, the

56:17

state was experimenting with legal injection protocols, which

56:19

resulted in three failed executions in a row

56:22

over five months. And Smith had specifically sought

56:24

a stay on the ground that the state's

56:26

new protocol was untested and didn't have a

56:28

reliable method. And he was right. So that

56:31

was last time the state tried to

56:33

execute Smith and failed. The next time,

56:35

the state scheduled an execution date and

56:37

announced that they would try to kill

56:39

Smith with nitrogen gas. And Smith

56:41

once again sought to challenge the state's method

56:43

of execution and sought a stay of execution,

56:46

i.e. to hold off on the execution until

56:48

he could raise his challenge to the execution

56:50

protocol and a court could review it. And

56:53

the United States Supreme Court once

56:55

again denied that stay. As Justice

56:57

Sotomayor wrote in her dissent from the

56:59

court's denial of Smith's request for a

57:01

stay, quote, the details are hazy because

57:03

Alabama released its heavily redacted protocol under

57:05

five months ago, close quote. And

57:08

when the state went to carry

57:10

out its execution, according to CNN,

57:12

Smith appeared conscious for several minutes

57:14

into the execution. And for two minutes

57:16

after that, he shook. He writhed on

57:18

a gurney. The nitrogen gas ran

57:20

for 15 minutes. Smith struggled against the

57:23

restraints. He could be heard gasping for breath.

57:26

This cycle repeated itself once again. And

57:29

then in the case of Thomas Creech, who

57:31

challenged Idaho's method of execution protocol, Creech

57:35

requested a stay, which the court denied. And

57:37

then at the end of February, Idaho failed in its attempt to

57:40

execute Thomas Creech. They failed eight times to establish

57:42

an IV line. And

57:44

Creech's sort of petition had asked the court to

57:47

take his case because Idaho had, quote, one

57:50

of the, if not the most stringent execution secrecy

57:53

regimes in the country, end quote. And

57:55

thereby, he didn't actually know that the court

57:57

had executed. And we wanted to connect what the court is

57:59

doing. in these capital cases to how

58:01

at least some justices view what is

58:04

happening in death penalty litigation more broadly.

58:06

So quick overview of developments over the

58:08

last decade and a half in this area. So the

58:10

first of these was Bayes versus Reese, a 2008

58:12

case in which the court rejected a

58:14

constitutional challenge to a method

58:16

of execution, sort of a particular lethal

58:19

injection protocol. Then in

58:21

2015 in Glossop versus Gross, that's Glossop

58:23

as in Richard Glossop who may very

58:25

well be innocent and whose case the

58:27

Supreme Court is actually going to hear next term. But

58:30

a previous case involving Mr. Glossop was before the

58:32

court in 2015 and there the court

58:34

said that not only if you're going

58:36

to successfully challenge a method of execution, not

58:38

only do you have to identify a substantial

58:41

risk of pain, but you also have to

58:43

show a reasonable alternative method of execution with

58:45

a lower risk of pain. So

58:47

placing an enormous and almost impossible

58:49

to satisfy burden on individuals challenging

58:52

the constitutionality of methods of execution.

58:55

And then in Bucklew versus Presythe in 2019,

58:57

the court made it even harder for litigants

58:59

to satisfy the Eighth Amendment test that they

59:01

had initially in Bayes and then later in

59:03

Glossop developed. And part of what

59:05

is going on in the background of all of

59:08

these cases is the movement for death penalty abolition.

59:11

But it seems in the court's eyes that's

59:13

like a movement for bad abolition, not good

59:15

abolition like the court

59:17

thinks in Murthy and maybe NRA versus Voulod.

59:20

But as part of that movement, people have

59:22

been pressing companies not to allow their drugs

59:24

to be used in executions. And some companies

59:26

have refused to sell drugs for use in

59:29

execution. Some might call

59:31

that an aspect of popular democracy, movements,

59:33

lobbying and whatnot. But that's not how

59:35

this court has viewed it or at least that's

59:37

not how all of the justices on the court have

59:39

viewed it. Surprising no one, right?

59:41

Sam Alito has been at the forefront of

59:44

this deep skepticism about the legitimacy of efforts

59:46

to engage in advocacy that is opposed to

59:48

the death penalty. So we wanted to play

59:50

a clip from the oral argument in Glossop

59:52

versus Gross. I was in the courtroom for

59:55

this argument and Alito in particular, I mean

59:58

I remember just being so shocked that he was suggesting that he was a criminal. suggesting

1:00:00

that this back story was relevant

1:00:02

to the court's decision

1:00:04

in the glossup case. So I'm not going to preview

1:00:06

it anymore. Let's just play the clip here. Yeah, I

1:00:09

mean, let's be honest about what's going on here. Executions

1:00:11

could be carried out painlessly. There

1:00:14

are many jurisdictions, there are

1:00:16

jurisdictions in this country, there are jurisdictions abroad that

1:00:18

allow us to do suicide and I assume that

1:00:20

those are carried out with little

1:00:22

if any pain. Oklahoma and other

1:00:24

states could carry out

1:00:26

executions painlessly. Now

1:00:29

this court has held that the death

1:00:31

penalty is constitutional. It's controversial

1:00:33

as a constitutional matter, it certainly

1:00:36

is controversial as a policy

1:00:38

matter. Those who oppose the death

1:00:40

penalty are free to try

1:00:43

to persuade legislatures to

1:00:45

abolish the death penalty. Some of those efforts

1:00:47

have been successful, they're free to ask this

1:00:49

court to overrule the death penalty. But until

1:00:51

that occurs, is it

1:00:53

appropriate for the judiciary to

1:00:56

countenance what amounts to a

1:00:58

guerrilla war against the

1:01:01

death penalty, which consists of efforts

1:01:03

to make it impossible for the

1:01:05

states to obtain drugs that

1:01:08

could be used to carry out

1:01:10

capital punishment with little if any

1:01:12

pain. And so the states are

1:01:14

reduced to using drugs like this

1:01:17

one, which give

1:01:19

rise to disputes about

1:01:21

whether in fact every possibility

1:01:23

of pain is eliminated. Now

1:01:26

what is your response to that? He

1:01:29

is basically saying, I think people who

1:01:31

are opposed to the death penalty are

1:01:33

fighting dirty, so I'm going to fight

1:01:36

back here from my position on the

1:01:38

court and the justices or at least

1:01:40

some of them you know just come

1:01:43

out and say they should take this

1:01:45

into account. Their view the death penalty

1:01:47

abolition is too successful or somehow untoward

1:01:49

in their account and how they treat

1:01:52

capital cases and it's not just Sam

1:01:54

Alito, here is Justice Scalia expressing a

1:01:56

similar sentiment. declined

1:02:00

to find that it was intolerable if

1:02:02

there was even some doubt about

1:02:05

this drug when there

1:02:07

was a perfectly safe

1:02:10

other drug available. But

1:02:12

the states have gone through two different drugs,

1:02:16

and those drugs have been rendered

1:02:18

unavailable by the abolitionist movement putting

1:02:21

pressure on the companies that manufacture them

1:02:24

so that the states cannot obtain those

1:02:27

two other drugs. And now

1:02:29

you want to come before the court and

1:02:31

say, well, this third drug is not 100

1:02:33

percent sure. The reason

1:02:35

it isn't 100 percent sure is

1:02:37

because the abolitionists have rendered it

1:02:40

impossible to get the 100

1:02:42

percent sure drugs. And you think we should not

1:02:44

view that as relevant to the

1:02:46

decision that you're putting before us?

1:02:50

And it's not just Scalia and Alito here

1:02:52

as Justice Kennedy. That doesn't

1:02:54

answer Justice Scalia's and Justice

1:02:56

Alito's question. The question is,

1:02:58

what bearing, if any, should

1:03:01

we put on the fact that there is a

1:03:04

method but that it's not

1:03:07

available because of opposition to

1:03:09

the death penalty? What relevance

1:03:11

does that have? None?

1:03:14

So, again, we just want to make

1:03:16

sure that people were aware that this

1:03:18

is something that justices want to say

1:03:20

matters to their analysis of death penalty

1:03:22

and method of execution claims, that

1:03:25

it's somehow the fault of the death penalty

1:03:27

abolition movement, that companies don't want their drugs

1:03:29

to be used for executions, and therefore the

1:03:32

state must use crueler methods

1:03:34

that are more likely to cause pain

1:03:36

and subject people to torture. That seems

1:03:38

to be the narrative. Yeah, right. That

1:03:40

is the fault of abolitionists that individuals

1:03:42

are suffering in the way that we

1:03:44

just described in states that are continuing to move

1:03:46

forward with Execution. Definitely Not the fault of

1:03:49

the states executing them. And I Think

1:03:51

this is linked to the conservative grievance

1:03:53

narrative that we identified in the first

1:03:55

cases from this sitting because it presupposes

1:03:57

that as groups successfully organize to... Lock

1:04:00

the death penalty and persuade company

1:04:02

is not to facilitate it's it

1:04:04

must be that those groups are

1:04:06

doing something untoward and unfair. That

1:04:08

course must counterbalance to allow states

1:04:10

to pursue their preferred agenda, and

1:04:12

the courts insistence that conservatives. Are the

1:04:14

real true victims here including of government coercion

1:04:17

of is also more galling when you think

1:04:19

about some of the cases the court could

1:04:21

hear, but. Has not yet decided to one

1:04:23

of those who. Wanted to highlight in Bosses

1:04:25

Are petition from Brenda Andrew. And we

1:04:27

don't Usually covers are petitions that we do

1:04:29

occasionally make exceptions and we're doing so here

1:04:31

for reasons that will probably become apparent when

1:04:34

we say what's happening in this case. So

1:04:36

Brenda Andrew was convicted and sentenced to death

1:04:38

and is seeking a red that hideous corpus

1:04:40

based on several problems with her trial and

1:04:42

or with convicted of murdering her husband who

1:04:44

she was separated from at the time of

1:04:46

the murder. She was the person who called

1:04:49

Nine One One to report the shooting and

1:04:51

was shot herself at trial. The prosecution call

1:04:53

to the stand andrus former sexual partners and

1:04:55

ask them details about. Their sexual relationships

1:04:57

even though she had seen one of

1:04:59

them and four years in the prosecution's

1:05:01

closing argument, he read from The Murder

1:05:04

Victims Journal describing a sexual relationship his

1:05:06

wife Brenda Andrew had had in college.

1:05:08

The elicited testimony about what she wore

1:05:10

including about her quote short skirt, low

1:05:13

cut tops, just sexy outfits deposit you

1:05:15

sent directly question a witness about her

1:05:17

clothing and the witness said quote miss

1:05:19

Andrew wasn't wearing a tire that I

1:05:22

would consider appropriate and quotes So they

1:05:24

essentially secured a jury verdict by plane.

1:05:26

to sexist stereotypes which is a constitutional

1:05:28

problem on top of all the others

1:05:30

in the trial if she was brought

1:05:32

into police questioning while still in hospital

1:05:34

gown after being shot in the state

1:05:36

that she wasn't in custody the same

1:05:38

one i mean friend andrew was literally

1:05:40

convicted and sent is based on shocking

1:05:42

instances of gender bias and sex same

1:05:44

potentially to death and you know since

1:05:46

as we are aware of family that

1:05:48

was very concerned about unconstitutional discrimination and

1:05:50

juri specifically we're sure he will be

1:05:52

inclined to hear brenda anders case but

1:05:54

to my mind this case read to

1:05:56

me a kind of like bucks vs

1:05:58

davis but for some gender discrimination,

1:06:00

Buck versus Davis was the horrific Texas

1:06:02

Capitol case in which Texas put on

1:06:05

expert witnesses who testified that black defendants

1:06:07

were more likely to commit crimes in

1:06:09

the future and were more dangerous. And

1:06:11

the court said, you can't engage in

1:06:13

that racist stereotyping and granted habeas petitions,

1:06:15

even though the court is not inclined

1:06:17

to do so. And

1:06:20

this case, I think, is extremely

1:06:22

important and part of, again, like

1:06:24

a broader pattern of state violence

1:06:26

to reinforce gender hierarchies, to the

1:06:28

detriment of women. And if you

1:06:30

want to learn more about Brenda's case,

1:06:32

you can go to savebrendaandrew.org. Have

1:06:34

they conference the petition yet? No. So

1:06:37

it's going to be up for a first... I think it'll be conference this week.

1:06:39

This week. Okay. Yeah.

1:06:42

So just like an incredibly important case, the justices should

1:06:44

take it up and... I just want to say one

1:06:46

thing. Part of the horrific thing about the distribution of

1:06:49

the current court is the Democratic appointees don't actually have

1:06:51

the authority to put a case on the court's agenda.

1:06:53

If there were four of them, they

1:06:55

could vote to grant and say, of course, this

1:06:57

case merits the court's attention, but they need

1:06:59

one of their Republican appointee colleagues to join to

1:07:02

put on the agenda. I wrote Buck v.

1:07:04

Davis, right? Like he actually... This case is egregious

1:07:06

in a way that is related for sure. And

1:07:08

maybe this is one where he would see the

1:07:10

light. I don't know, but he

1:07:12

certainly should. But yeah, the difference

1:07:14

between three and four is not just in outcomes in cases

1:07:16

that are being argued, but in the ability to get something

1:07:18

on the agenda in the first place. There

1:07:21

is another case that the court tried to get off

1:07:23

of its docket before, but looks like it could be

1:07:25

headed back. That's another death penalty case that we wanted

1:07:27

to mention. That's a case of Arely Escobar, who was

1:07:29

convicted and sentenced to death on the basis of DNA

1:07:32

evidence that the prosecution concedes was false.

1:07:36

So the testing was done at a lab that had

1:07:38

such serious deficiencies that the state of Texas ended

1:07:40

up closing the lab. And the

1:07:42

state court found that the evidence used to

1:07:44

convict him was false and misleading and unreliable.

1:07:47

And the prosecutor's office conceded that the petition

1:07:49

should be granted, but the Texas Court of

1:07:51

Criminal Appeals refused. The Supreme Court vacated the

1:07:53

decision and told the Texas Court of Criminal

1:07:55

Appeals to take another look. And that was

1:07:57

back in January of 2023. Well,

1:08:00

the Texas CCA took another look

1:08:02

and decided, yeah, the state of

1:08:04

Texas should kill someone. It

1:08:07

convicted on the basis of evidence it

1:08:09

now concedes as false and concedes involved

1:08:11

a constitutional error. Very,

1:08:13

very, very legal and legitimate.

1:08:16

Ladies and gentlemen, just want to make clear to

1:08:18

you, the courts will always

1:08:20

save us. Indeed, indeed. You can

1:08:23

always count on them. Yeah, the

1:08:25

Texas CCA is more extreme on

1:08:27

rights of criminal defendants than the

1:08:30

Texas prosecutor's office. Yeah. So

1:08:33

no other words. So the Texas

1:08:35

CCA said the defendant, quote, had not shown

1:08:37

certain evidence to be false and other evidence

1:08:39

that has been shown to be false is

1:08:41

not material, end quote. They literally say the

1:08:44

state's articulated special concern about the possibility of

1:08:46

contamination does not support the false evidence claim.

1:08:50

And so this case seems like it

1:08:52

is teed up to go back to

1:08:54

the U.S. Supreme Court. Unless

1:08:56

you think it's just the state

1:08:59

courts in Texas, they're absolutely off

1:09:01

the rails. It's also the federal

1:09:03

courts who are staying busy, vindicating

1:09:06

rights, not. Let's

1:09:09

talk about a Texas district court. And indeed,

1:09:12

one specific Texas district judge that- And it's

1:09:14

not Matthew Kasmir. It's not Matthew Kasmir. The

1:09:16

other thing I want to say is that

1:09:19

it's also not the good Judge Pittman. This

1:09:21

is confusing. And there are two Judge Pitts.

1:09:23

There's Robert Pittman. Yeah. Who

1:09:25

is that? Good. Delightful. He's

1:09:28

great. We just want to say I don't

1:09:30

want any of our listeners to be confused about which Judge Pittman

1:09:32

is responsible for what Melissa is about to say. It is the

1:09:34

bad Judge Pittman. Sorry, Melissa. Exactly. The

1:09:36

difference between the Duchess of Sussex and

1:09:38

the Duchess of something else, right? Judge

1:09:40

Pittman the good. Judge

1:09:42

Pittman the not so great. Judge

1:09:45

Dale Ho. Judge Jim Ho. Exactly.

1:09:48

Okay. So the

1:09:50

Judge Pittman to whom we are referring

1:09:52

is Judge Mark Pittman. Judge Mark Pittman

1:09:55

invalidated the Department of Commerce's Minority Business

1:09:57

Development Agency. And that agency has actually

1:09:59

been around for 55 years. It

1:10:01

assists minority-owned businesses in accessing

1:10:03

capital and government contracts. And

1:10:06

interestingly, noted liberal swish Richard

1:10:08

Milhous Nixon founded the agency.

1:10:11

And in the opinion in which he

1:10:13

invalidates this program, Judge Pittman writes, if

1:10:16

courts mean what they say when they

1:10:18

ascribe supreme importance to constitutional rights, the

1:10:20

federal government may not flagrantly violate such

1:10:22

rights with impunity. The MBDA has

1:10:25

done so for years. I

1:10:28

don't think that's what times up was meant for. But

1:10:31

you know, an interesting poll,

1:10:33

Judge Pittman, so you can

1:10:35

always repurpose rhetoric of the

1:10:37

left. This is as Melissa

1:10:39

repeatedly refers to the woke warriors,

1:10:42

right? The inversion of all

1:10:44

of these tropes and repurpose for

1:10:46

regressive ends. So the MBDA statute

1:10:48

directs the agency to serve socially

1:10:51

or economically disadvantaged individuals, which is

1:10:53

statute and regulations defined to include

1:10:55

certain groups, including black people, Latinos,

1:10:57

Native Americans, Native Hawaiians, and more.

1:11:00

And now the agency will help

1:11:02

everyone because all resumes matter. All

1:11:04

businesses. Hashtag all small businesses mattering

1:11:07

federal agencies. So yeah,

1:11:09

and I mean, this is when Students for Fair Admissions

1:11:11

came down, I think, you know, there was

1:11:13

a lot of debate about how

1:11:15

expansive the reasoning in the opinion was.

1:11:17

And there are many, many race-conscious programs

1:11:19

across state and local and federal government.

1:11:22

And the Pittman vision and, you know,

1:11:24

I think the Thomas vision as well and his Students for Fair

1:11:26

Admissions writing is that all of that

1:11:28

is constitutionally defective, fatally so. And

1:11:31

so it's just a matter of sort of

1:11:33

how exactly and when all of these chips

1:11:35

fall. But that I think is the path

1:11:37

that we are on, at least if this

1:11:39

opinion is any indication. So Pittman, it's I

1:11:41

guess not surprising, is the one taking

1:11:43

us down this path. He's a Trump

1:11:45

appointee. And you may remember him from

1:11:47

such hits as comparing President Biden's student

1:11:49

debt relief program to wait for it.

1:11:51

The Nuremberg Laws in Nazi Germany. That's

1:11:53

right. That happened in an oral argument

1:11:55

in the initial challenge to the loan

1:11:58

relief program. And so that is, again,

1:12:00

the Pittman. not to be confused with

1:12:02

the good Pittman, responsible for this really

1:12:04

expansive race-blind vision of

1:12:06

all state federal local laws.

1:12:09

I'm really going to need them to stop

1:12:11

doing these Holocaust comparisons. That

1:12:14

would also increase my udals, I would say.

1:12:16

Okay. In addition

1:12:18

to Judge Mark Pittman, we

1:12:20

also wanted to situate recent

1:12:22

reporting about the fallout from

1:12:25

the Supreme Court's work to

1:12:27

systematically dismantle the Voting Rights Act.

1:12:29

So very recently, the Brennan Center,

1:12:32

which is a nonpartisan think tank

1:12:34

housed at NYU, full disclosure, I'm

1:12:36

a board member, put together a

1:12:39

very important report on the aftermath of

1:12:41

the Supreme Court's decision in 2013's Shelby

1:12:44

County versus Holder. The report

1:12:46

focused on racial disparities and voter

1:12:48

turnout in the wake of Shelby

1:12:50

County versus Holder. And again, that

1:12:52

decision struck down the pre-clearance formula

1:12:54

of the VRA. The

1:12:57

report found that since Shelby County versus

1:12:59

Holder, the gap in minority voter turnout

1:13:01

has grown and is growing most quickly

1:13:03

in parts of the country that were

1:13:05

previously covered under the pre-clearance regime of

1:13:07

the Voting Rights Act, which was suspended

1:13:09

by the court in Shelby County. The report

1:13:12

continues to say that, quote, while the gap

1:13:14

is growing virtually everywhere, Shelby County had an

1:13:16

independent causal impact in regions that were formerly

1:13:18

covered under Section By

1:13:21

2022, the black-white turnout gap in these regions was

1:13:23

about five percentage points greater than it would have

1:13:25

been if the Voting Rights Act were

1:13:27

still in full force, and the white-non-white gap was

1:13:29

about four points higher. And also,

1:13:32

quote, the turnout gap grew almost twice

1:13:34

as quickly and formally covered jurisdictions as

1:13:36

in other parts of the country with

1:13:38

similar demographic and socioeconomic profiles. And all

1:13:41

of this you have anecdotally obviously seen on the ground,

1:13:43

but it's really stark to see the actual data compiled

1:13:45

the way the Brennan Center did. So there

1:13:47

have been some folks who are, like, poo-pooing

1:13:49

the report on the view that, of course, things

1:13:51

are going to go down in terms of voter

1:13:53

turnout because Barack Obama wasn't on the ballot, to

1:13:56

which I say the same logic

1:13:58

could be applied to Chief Justice John R Roberts

1:14:00

rationale in Shelby County versus Holder

1:14:02

which talked about the uptick in

1:14:04

minority voting in recent years. So

1:14:06

yes, that's the thing about statistics.

1:14:08

They can actually be applied in

1:14:10

multiple directions. Yeah, they're

1:14:12

not all sociological gobbledygook as

1:14:15

John Roberts himself has suggested.

1:14:18

But what the report shows is that the

1:14:20

destruction of part of the Voting Rights Act

1:14:22

is kind of working as intended because as

1:14:24

I know, as Justice Ginsburg warned in her

1:14:26

dissent in Shelby County, you know, she said

1:14:28

throwing out the Voting Rights Act because it

1:14:30

was successfully stopping voter discrimination is, quote, like

1:14:33

throwing out your umbrella in a rainstorm because you're

1:14:35

not getting wet. And she warned about

1:14:37

second generation barriers to voting that states

1:14:39

have begun to implement. Okay, so

1:14:41

we are going to do a lightning round and quickly note

1:14:43

a few opinions the court has issued in cases that we

1:14:45

have talked about. First up Murray

1:14:48

versus UBS. That's a case in

1:14:50

which the court recently handed whistleblower plaintiff Trevor

1:14:52

Murray in no relation to Melissa and his

1:14:54

attorneys, Trix Fritney's superguest Isha Anand, a

1:14:56

unanimous win reversing a Second Circuit opinion

1:14:58

that had required Murray to show not

1:15:00

only that he was retaliated against for

1:15:03

protected activity, but also that his employer

1:15:05

acted with retaliatory intent. That

1:15:07

was wrong. And that's really no surprise after

1:15:09

the oral argument. We really felt like we

1:15:11

called that one and correctly, but it is

1:15:13

still a great result in Isha's first SCOTUS

1:15:15

argument. Congratulations, Isha and Clan

1:15:18

Murray. It's

1:15:20

the first time Clan Murray's won at the court in a

1:15:22

long time. Yeah, not the last.

1:15:24

We also got an opinion in McElwath

1:15:26

versus Georgia. The court in a unanimous

1:15:29

opinion by Justice Jackson ruled for the

1:15:31

defendant in this double jeopardy challenge. In

1:15:33

this case, a jury had convicted a

1:15:35

defendant of some charges and acquitted him

1:15:38

on others. And the state Supreme Court

1:15:40

concluded those verdicts were so incompatible and

1:15:42

inconsistent that they were repugnant. And therefore

1:15:45

the defendant could be retried. The

1:15:47

Supreme Court said that guess what,

1:15:49

folks? That's not how double jeopardy

1:15:51

works. If you were tried and

1:15:53

the jury acquitted you, even if the state

1:15:55

thinks that the jury was inconsistent in its

1:15:57

treatment of other charges, you cannot be retried.

1:16:00

tried, you cannot be put

1:16:02

in jeopardy twice for the same offense.

1:16:04

Hence the term double jeopardy,

1:16:06

the actual doctrine, not principle

1:16:08

of double jeopardy. All right. And

1:16:10

last week we got an opinion in

1:16:12

Linky versus Freed and the other social

1:16:14

media blocking case, which is O'Connor Ratcliffe.

1:16:17

These two cases were sort of a pair of

1:16:19

cases. They were about when the First

1:16:21

Amendment limits government officials' ability to block citizens

1:16:23

from seeing or engaging with their social media

1:16:25

accounts on things like Twitter and Facebook. So

1:16:28

the court in a unanimous and pretty narrow

1:16:30

opinion written by Justice Barrett

1:16:32

said that government officials' accounts on social

1:16:34

media constitute state action that is subject

1:16:36

to the First Amendment and therefore limited

1:16:38

in its ability to penalize people for

1:16:40

the content or viewpoint of their speech

1:16:43

by doing things like blocking them only

1:16:45

when the account purports to post on

1:16:47

the state's behalf while possessing actual authority

1:16:49

to speak on the state's behalf. It's

1:16:51

a pretty sensible rule and the court smartly

1:16:53

doesn't say a ton about how exactly the

1:16:55

rule applies to particular cases, leaving details to

1:16:57

be worked out by the lower courts and

1:16:59

potentially down the road, which is a smart

1:17:01

call given the evolving face of social media.

1:17:03

The court just emphasizes that the authority need

1:17:05

not come from state law but can come

1:17:07

from custom or consistent usage, but also that

1:17:09

the mere appearance of an account doesn't mean

1:17:11

the account is on behalf of the government.

1:17:14

So the generality and sort of under specification I think

1:17:16

is a virtue in many ways. I found it a

1:17:18

little frustrating and I was a little surprised that Kagan

1:17:21

didn't write separately because she seemed sort of

1:17:23

troubled by the kind of like arm

1:17:25

waving sort of generality of like what are you

1:17:27

authorized to do under law and she was like

1:17:29

well that's official, part of their job is talking.

1:17:31

I'm not sure, that's not really

1:17:34

enough of a test. But this might just be

1:17:36

an occasion where doing something minimal was more important

1:17:38

than being super clear and the lower courts. Just

1:17:40

know that sometimes you actually can violate the

1:17:43

Constitution as a public official even if you're

1:17:45

on what you say as a private account if you

1:17:48

are doing the work of government on there that it

1:17:50

converts it to kind of government action and the Constitution

1:17:52

applies. And so I do think that's actually a really

1:17:54

important principle to have preserved coming out of this case.

1:17:57

And we also got an opinion in a

1:18:00

much anticipated case, Pulsifer versus the

1:18:02

United States. This was the First

1:18:04

Step Act case about who is eligible

1:18:06

for resentencing under the First Step Act.

1:18:09

The First Step Act is a law

1:18:11

that sought to reduce the incredibly harsh,

1:18:13

severe mandatory minimums around federal drug laws.

1:18:15

And in this case, in a six

1:18:18

to three opinion by Justice Kagan, the

1:18:20

court adopted the government's interpretation of the

1:18:22

law that made those resentencings available

1:18:25

to fewer people. Basically,

1:18:28

the statute lists three conditions and

1:18:30

says that a defendant is eligible

1:18:32

for resentencing only if a defendant

1:18:34

does not have, A, one type

1:18:36

of conviction, B, another type of

1:18:38

conviction, and C, some other attribute.

1:18:41

The court said that meant that a

1:18:43

defendant couldn't have any of those individual

1:18:45

conditions. And the defendant had argued that

1:18:47

a defendant wasn't eligible only if they

1:18:50

had all of those conditions met, since

1:18:52

the statute used the term and

1:18:54

as opposed to or. As

1:18:57

Justice Gorsuch noted in dissent for himself, along

1:18:59

with Justices Sotomayor and Jackson, the

1:19:01

court kind of rewrote the statute so that the

1:19:04

phrase, quote, does not have, was no

1:19:06

longer before an M dash that preceded

1:19:08

conditions A, B, and C that Melissa

1:19:10

just mentioned, but instead was included in

1:19:13

all of the conditions. So the statute actually

1:19:15

read something like a defendant is

1:19:17

eligible for resentencing only if the defendant does

1:19:19

not have type A conviction, does not have

1:19:21

type B conviction, does not have type C.

1:19:23

That's not what the statute says, but that's

1:19:26

essentially what the majority did. And

1:19:28

this, too, seems like a case where the worst

1:19:30

person that you know has a point because,

1:19:32

as Gorsuch noted, yes, the government's implicit distribution

1:19:35

theory requires a reader to delete words before

1:19:37

the M-dress. Yes, it requires a reader to

1:19:39

reinsert them in three different places where they

1:19:41

do not appear. And the result in the

1:19:44

case makes sense in that a policy justification

1:19:46

for the defendant's interpretation might not leap off

1:19:48

the page or seem as plausible as the

1:19:50

government's, but that's not supposed to be the

1:19:53

lodestar for interpreting statutes. So

1:19:55

this was a very disappointing result, and in particular

1:19:57

because this is one of the rare cases where based

1:20:01

on the arguments coming out of the case, you were

1:20:03

optimistic about how the court's affinity for textualism. No, not

1:20:05

the argument. I think like in the preview before the

1:20:07

argument. I don't

1:20:09

see how anyone on this court can say that

1:20:12

they are a textualist with a straight face

1:20:14

after this. I mean

1:20:16

like what they are is pro-government any time

1:20:18

there is a criminal involved or someone who's

1:20:20

alleged to be a criminal. Disappointing.

1:20:22

They intone it so often we are all textualists that

1:20:24

like you begin to take it seriously but maybe that

1:20:26

was just like our mistake. And

1:20:28

like sometimes they stick to it, right? But it's

1:20:31

just difficult to get a sense for what. Yeah.

1:20:33

Yeah. Okay. One final point, which is that it

1:20:35

is an election year. And so we are watching

1:20:37

a lot of litigation involving the ballot across the

1:20:39

country and we wanted to flag an issue and

1:20:41

a lawsuit in New Jersey that involves this

1:20:43

quirky issue of the design of the ballot.

1:20:45

So basically in New Jersey, as I have

1:20:48

recently learned, where you appear on

1:20:50

the ballot is largely determined by whether you

1:20:52

get the county party's endorsement. If you get

1:20:54

the endorsement, you get the super preferential placement

1:20:56

on the ballot, which is an enormous advantage.

1:20:59

And this matters a lot because there is

1:21:01

an important primary election happening for the Senate

1:21:03

in June in New Jersey. So people will

1:21:05

recall that Senator Menendez under indictment has refused

1:21:08

to step down. So there is this heated

1:21:10

primary race involving Congressman Andy Kim and New

1:21:12

Jersey First Lady Tammy Murphy. And the lawsuit

1:21:14

basically says it is messed up for these

1:21:16

county parties to have this role that will

1:21:19

maybe determine who the Democratic candidate in the

1:21:21

general election for Senate is. And the Senate is

1:21:23

going to be close and it's going to matter a lot.

1:21:25

So there's a hearing in this case next week and we're

1:21:27

going to keep our eye on it. So

1:21:29

that is all we have time for this

1:21:31

week. If you are still listening to us,

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