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No joke, what are your manners or

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years of your beautiful ladies like peers

1:01

were worried? Have the they. Were. Spoke

1:05

eloquently unmistakable part

1:08

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1:10

know they are

1:12

for myself. All

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I ask about. Is

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that they take that? The. Next.

1:35

Hello and welcome back to Strict Scrutiny your

1:37

podcast. About the supreme court and illegal culture

1:39

that surrounds it we are Your host was

1:41

a chairwomen if you, well. I'm

1:44

teacher. I'm Melissa Marie and I'm Leah.

1:46

Let men and you can hear and

1:48

see Melissa roll her eyes if you're

1:51

watching us that youtube. Anyway,

1:54

I have. Some people have been up

1:56

since the earliest hour as of the

1:58

more and downloading new. tracks.

2:01

I am rested, however, because I slept

2:03

in. And I am here

2:05

to tell you what we have in store for you

2:07

today, because it is a big episode. First,

2:10

we will recap the arguments in the cases

2:12

that the Supreme Court heard last week. And

2:15

quick spoiler, the Supreme

2:17

Court may be ready to blow up

2:19

many of the January 6th prosecutions, including

2:21

potentially two of the charges that Jack

2:23

Smith filed against Donald Trump. So we

2:26

will cover those developments first, and then

2:28

we will briefly discuss the other arguments

2:30

that the court heard last week. And

2:33

after that, we are going to do

2:35

a lightning round on some recent SCOTUS

2:37

opinions. SCOTUS fired off a bunch of

2:39

decisions. And notably, these decisions

2:42

were relatively cohesive,

2:44

coherent, not a lot of

2:46

dissents. In other words, the

2:49

court is at this moment, donning

2:51

is very, very moderate, totally cohesive,

2:54

despite our many ideological differences drag,

2:56

which can only mean that

2:58

we are getting closer and closer to

3:01

the time when this goblin court decides

3:03

it's going to make some very bad

3:05

decisions. So don't get lulled

3:07

into a state of complacency. It

3:10

is coming. Do that be fooled

3:12

by these unanimous decisions? We'll say

3:14

more about that. And then finally,

3:16

as is our want, we will

3:18

dip into some court culture, including

3:20

some shadow docket breadcrumbs that gesture

3:22

toward the court's views of the

3:24

constitutionality of laws banning gender affirming

3:26

care, and perhaps maybe even giving

3:28

us an idea of what the court

3:30

might ultimately say about those laws when

3:33

those issues arise on the merit docket.

3:35

And we'll also briefly note likely multiple

3:37

times how Taylor Swift honest to goodness

3:39

dropped some strict scrutiny Easter eggs on

3:41

the Tortured Poets department. Great.

3:44

I feel like we didn't actually make reference for, I don't

3:46

know, the 1% of our listeners who might have missed it

3:48

at the time of the show, which is we

3:50

are I don't know if we're chairwomen or

3:52

deputy chairwomen, but we were recording this episode

3:54

mere hours after the release of the Tortured

3:56

Poets department. I think everybody got that. I

3:59

think one. 1% of our listeners might

4:01

not have, and it is for them that I am clarifying.

4:03

I am that 1%. But,

4:08

as Melissa just mentioned, first up, argument recaps,

4:10

and we are going to start with the

4:12

January 6th case, Fisher versus United States. This

4:15

case involves one of the January 6

4:17

defendants, and it is also more broadly

4:19

about whether the January 6 defendants were

4:21

properly charged with violating a specific law,

4:23

18 U.S.C. Section 1512C2,

4:26

which prohibits corruptly obstructing an

4:29

official proceeding. The defendant

4:31

in Fisher argued that the law did

4:33

not apply to the January 6 defendants

4:35

because the congressional proceeding to certify presidential

4:38

votes was not the kind of

4:40

proceeding that the law prohibits obstructing. More

4:42

particularly, the argument is that the law applies

4:45

only to the sorts of proceedings that involve

4:47

investigations or the collection of evidence, documents, records.

4:49

But the defendant, in this case, Fisher, as

4:51

well as some lower court judges, had also

4:53

offered different theories about why this law, 1512C2,

4:56

might not apply to the defendant, Mr.

5:00

Fisher, specifically, or some smaller subset of

5:02

January 6 defendants because they did not

5:04

actually obstruct any proceedings since Fisher concedes

5:06

that he was at the Capitol, but

5:08

not at the time protesters were attempting

5:10

to disrupt the certification of the electoral

5:12

college votes, but instead after Congress had

5:14

already recessed. So, when we previewed the

5:16

case, we weren't sure whether the Supreme

5:18

Court was going to go big in

5:20

this case and blow up a bunch

5:22

of January 6 cases and potentially two

5:25

of the charges against Donald Trump arising

5:27

out of January 6 because

5:29

the other arguments, some of which were fairly particular

5:31

to the defendant and others of which might not

5:33

rule out the applicability of this law to January

5:35

6 defendants, which was large, gave the court ways

5:37

to go small and say something about Mr. Fisher's

5:39

case in particular, again, who entered the Capitol after

5:42

Congress had already recessed. As

5:44

Leah suggested, we did not have really high

5:46

hopes for how this argument was going to go.

5:49

And I have to say, I think it

5:51

was even more alarming than even we

5:53

expected. So at least three of the

5:56

justices, let's call them the three horsemen

5:58

of the apocalypse. Thomas,

6:00

Samuel Alito, Neil Gorsuch, all seem

6:02

to be drawn to the view that

6:04

the law just doesn't apply to January

6:07

6th. Full stop, because the

6:09

certification of presidential votes doesn't count

6:11

as an official proceeding or because

6:13

the challenge conduct wasn't the kind

6:16

of evidence tampering that the statute

6:18

on their view was meant to

6:20

cover. Their view of

6:22

all of this would undo many of

6:24

the charges against many of the rank

6:26

and file January 6th defendants, though we

6:28

should say that many January 6th defendants

6:30

have been charged for other crimes as

6:32

well. So not everyone is

6:34

off the hook entirely. But it does

6:37

seem like if their reading of the

6:39

statute prevails, it would wipe out a lot

6:41

of the charges against many of these protesters.

6:43

And some notes. I

6:45

just want to make really clear

6:47

here that in this statutory interpretation

6:50

exercise, our favorite textualists

6:52

on the court do not seem

6:54

especially interested in getting some of

6:56

that good textual healing, right? They

6:58

do not seem interested in it

7:00

at all. Instead, it seems

7:02

that their concerns are really rooted

7:04

in what the statute was intended

7:07

to address. Like, what was the

7:09

statute's purpose? Purposeivism

7:12

takes a seat on the couch next to me,

7:14

which is really surprising because I was

7:16

under the impression that we were all

7:18

textualists now. So color me. Color

7:20

me surprised. Who the fuck was that guy? Like,

7:23

what's textualism? When I

7:25

get that feeling. Anyway, I'm just also

7:27

going to note that Justice Clarence Thomas

7:29

did not show up at work the

7:31

day before this oral argument. And

7:34

incidentally, no one at the Supreme Court

7:36

ever explained why that was the case.

7:38

Although when other justices have been absent,

7:40

they have given us an explanation. But

7:42

nothing to see here. What is transparency?

7:45

Nothing. But you better believe

7:47

that Pinpoint Georgia's favorite son got his

7:49

butt off the couch to show up

7:51

for the January 6th defendants the very

7:53

next day, as one does when your

7:55

wife has been shown to send

7:58

text messages to Mark Meadows. Anyway,

8:00

Justice Thomas wasn't going to miss

8:02

the chance to let this go

8:04

unspoken by him. So maybe his

8:06

absence the day before was simply

8:09

an attempt to hydrate and limber

8:11

up so that he could be

8:13

in full fighting form for the

8:15

Fisher argument. And

8:17

he sure was. First question out of the gate, referring

8:19

to the January 6th defendants or the January 6th

8:21

events as a protest to protesters.

8:23

I mean, it was really something

8:26

for him to have been absent without explanation,

8:28

which is, Melissa was suggesting other

8:31

justices say why when they miss a

8:33

sitting. It's like pretty standard practice. And he's

8:35

so contemptuous of pretty standard practice. And then

8:37

to return and just hit the ground running, it

8:39

really just felt like an affidavit to the credit.

8:41

You can't just say Harlan Crow's plane was delayed.

8:44

And so I couldn't get there. My

8:47

bad. He couldn't say I

8:49

was engaged in consulting services and wasn't able to

8:51

make it. All right. Yeah.

8:54

So he probably spent a lot of time speculating about where he was.

8:56

He did return in fighting

8:59

form to the bench on Tuesday. And

9:01

again, together with Justice Alito and Justice

9:03

Gorsuch seemed really inclined to vote against

9:06

the government and for Mr. Fisher. So

9:08

that's three. Then there were two

9:10

other justices, the chief justice and

9:12

his fan voice slash personal assistant. I

9:14

mean, maybe call him the deputy chairman

9:16

or deputy chief. Also

9:19

seemed pretty hostile to the government's interpretation of

9:21

the law, although to me at least it

9:23

wasn't clear as to these two whether

9:25

and how they might embrace a narrower

9:27

theory of 1512C2 rather than the government's

9:30

interpretation of the law. So it's possible

9:32

they would go with the three horsemen,

9:34

Thomas, Alito and Gorsuch to say the

9:36

law doesn't apply because this wasn't the

9:38

kind of proceeding Congress contemplated when it

9:41

drafted the law that purposivism. Melissa was

9:43

just talking about another narrowing theory might

9:45

focus on the defendant's state of mind. That

9:47

is what the government has to prove about their

9:49

mental state or intent during the obstruction.

9:52

And that would turn on what the word in

9:54

the statute corruptly means. The concurring opinion

9:56

in the case below in the D.C. circuit

9:58

said corruptly requires proof proof that the defendant

10:01

knew that they were obtaining an unlawful benefit

10:03

and that was the defendant's purpose. But

10:05

the government said that corruptly actually isn't

10:07

limited to those precise circumstances. So those

10:09

are all ways that potentially those two,

10:11

again, the chief and Kavanaugh could join

10:13

the three horsemen and rule in

10:15

favor of Mr. Fischer. But I also think

10:17

it's possible that the government ultimately does get

10:19

their votes. I really wasn't totally sure where

10:21

they were. And if it

10:23

does, I think that is going to be

10:26

entirely attributable to the superb oral argument of

10:28

Solicitor General Elizabeth Preloger. Is

10:30

it ironic that these guys

10:32

are going to determine the meaning of the

10:34

term corruptly and it's going to make the

10:37

whole difference in this case? I

10:40

mean, and this is the only corruption case on

10:43

their docket this week. This is

10:45

what they are fixated on. They are the

10:47

ones to determine like what is corrupt under

10:49

current law. And this is what we were

10:51

alluding to last week when we said like

10:54

these issues, these cases keep arising and somehow

10:57

some people delude themselves into thinking, and this

10:59

will be the one where it's all going

11:01

to be on the level and we should

11:03

just trust them to approach this

11:06

in completely principled ways. And

11:08

no. Karma is a justice bringing the

11:10

law down on me anyway. Okay,

11:14

so zooming out, there very

11:16

well could be five votes to reject

11:18

the government's theory of criminal liability here.

11:20

And that would undo some

11:22

uncertain number of January 6th charges

11:24

here. And it would also throw

11:26

into doubt two of the four

11:29

federal charges against former President Donald

11:31

Trump in Jack Smith's federal January

11:33

6th election interference case. So again,

11:35

more to see here, watch the space. And

11:38

there were, I think, a few notable moments in

11:40

the argument we wanted to highlight, some of which

11:43

underscore the ecosystem, the justices

11:45

inhabit and the worldviews that are informing

11:47

their adjudication of these cases. So we'll

11:49

start with Neil Gorsuch, who seemed to

11:52

prove that Sam Alito is not the

11:54

only Fox News grandpa on the court

11:56

and that if you want

11:58

to understand the justices. you also need

12:01

to watch Fox News to understand like what

12:03

is being pelted at them day in, day

12:05

out, and what is on their minds. So

12:07

here is Neal floating out just

12:09

some hypos. If I might. So

12:13

what does that mean for the

12:15

breadth of this statute? Would

12:18

a sit-in that disrupts a

12:20

trial or access

12:22

to a federal courthouse qualify? Would

12:25

a heckler in today's audience qualify or

12:27

at the State of the Union address?

12:31

Would pulling a fire alarm before

12:34

a vote qualify for

12:37

20 years in federal prison? And

12:39

again, if you're like, where is he getting this? This

12:42

is Neil Gorsuch asking about Representative Jamal

12:44

Bowman pulling a fire alarm to delay

12:46

a vote and whether that violates the

12:48

law. He's also maybe asking about whether

12:50

Marjorie Taylor Greene, Joe Wilson, who heckled

12:52

Obama or Sam Alito could be thrown

12:54

in jail for violating this law as

12:56

well as hecklers at the State of

12:58

the Union. And also

13:01

just wanted to underscore the false

13:03

equivalencies between a sit-in on one

13:05

hand and

13:08

January 6th on the other.

13:10

Like when people are sitting in

13:12

in order to protest some law

13:14

or some court proceeding, they're not

13:17

bringing zip ties and threatening violence

13:19

against the people in the proceeding.

13:22

And both Justice Kagan and Solicitor General

13:25

Prelogger attempted to get at some of

13:27

these differences and they just

13:29

completely bulldozed past them. Like oh, these

13:31

things are totally the same. You mentioned

13:33

Justice Thomas referring to this as a

13:35

protest. Justice Gorsuch being like, oh

13:37

yeah, what about sit-ins? It was

13:40

wild to me. No, they're positing an equivalence. Absolutely

13:42

like that was in their questions, even though Alito at one point

13:44

tried to suggest he wasn't. They

13:46

all were. Well, I mean, I'm going to be fair to

13:48

Sam Alito here because I think there was a moment where

13:51

he might have been persuaded by the

13:53

government's theory of the case. And that

13:55

was specifically when he asked a

13:58

hypothetical about protests. at

14:00

the Supreme Court itself and whether that

14:02

was the disruption of an official proceeding.

14:04

So let's hear that clip. Well,

14:06

General, let me give you a specific

14:09

example, which is picks up but provides

14:11

a little bit more detail with respect

14:13

to one of the examples

14:15

that Justice Gorsuch provided. So we've

14:18

had a number of protests in

14:20

the courtroom. Let's say that

14:23

today, while you're

14:26

arguing or Mr. Green is arguing, five

14:29

people get up one after the

14:31

other and they shout either, keep

14:33

the January 6th insurrectionist in jail

14:35

or free the January 6th Patriots.

14:38

And as a result of this,

14:41

our police officers have to remove

14:43

them forcibly from the courtroom. And

14:45

let's say we have to delay, it delays

14:48

the proceeding for five minutes. And

14:50

I know that experienced advocates like you and Mr.

14:52

Green are not going to be flustered by that,

14:55

but when in another case, an advocate might

14:57

lose his or her train of thought

14:59

and not provide the best argument. So

15:02

would that be a violation of 1512 C-2? Not

15:06

really sure how this hypo cuts, because on

15:08

the one hand, he seems like I would

15:11

really like to throw these protesters in jail

15:13

under Section C-2. Me

15:15

personally. He wants to jail them. He wants to

15:17

jail them. Yeah. On the other hand, he was

15:19

like, but the peaceful

15:21

protesters of January 6th, it would be a bridge

15:23

too far to

15:26

criminalize their conduct. I

15:28

mean, personally, I find

15:31

it very humanizing when the justices really

15:33

seem to wrestle with the

15:35

differing consequences of their ideological commitment.

15:37

So I found this exchange really

15:40

interesting, maybe even a little heartwarming. You

15:44

know, Melissa, you like Taylor

15:46

always write the worst men

15:48

the best. That was

15:50

truly a very sympathetic reconstruction

15:53

of what was going on with Sam here. I

15:55

just want it to be known, like in this

15:57

age where we are lacking in ideological diversity. We

16:00

give Sam Alito his due every

16:02

single time. We get him. We

16:04

do. We get him. Is he the

16:06

smallest man like that? He's definitely in the running. Oh,

16:08

I think, for sure. He's in the running. But,

16:11

you know, this fixation on Sam

16:14

Alito wanting to unleash penalties on

16:16

people who were protesting or criticizing

16:18

the Supreme Court has now come

16:20

up repeatedly this term, right?

16:23

Because he threw out the hypotheticals about how about

16:25

I get the SCOTUS Public Information Office just to

16:28

call up and yell at people who say things

16:30

I don't like about the Supreme Court. And

16:32

now he's like, well, how about we throw

16:35

people in jail, protest the Supreme Court? And

16:37

this is just so clearly front of mind

16:39

for him. The fact that people are saying

16:41

mean things about him is definitely frontal lobe

16:43

material. For sure. For sure.

16:46

For sure. And the exchange about, well, could

16:48

this law, this theory potentially allow people who

16:50

protest the Supreme Court to be thrown in

16:53

jail led to this exchange between Justice Alito

16:55

and Mr. General Prelogger that we wanted to

16:57

highlight? I could imagine defendants in that scenario

16:59

suggesting that they thought they had some protected

17:01

free speech rights to protest. They might say

17:03

that they weren't conscious of the fact that

17:06

they weren't allowed to make that kind of

17:08

brief protest in the court. And I think

17:10

it's in a fundamentally different posture than if

17:12

they had stormed into this courtroom, overrun the

17:14

Supreme Court police, required the justices and

17:16

other participants to flee for their safety,

17:19

and done so with clear evidence of

17:21

intent to obstruct. Absolutely. What happened on

17:23

January 6th was very, very serious. And I'm not

17:25

equating this with that. I wanted to

17:27

highlight this one because I think you

17:29

can literally hear Sam Alito gagging and

17:32

choking on the words. January 6th

17:34

was very, very serious. It's

17:37

like he knew he had to say it, but he

17:40

didn't want to. Well, it reminded

17:42

me of the Mipha Pristone case

17:44

where he had to concede that

17:46

obviously Article III is very important.

17:49

Can we play that? I just want to hear it. I love hearing it.

17:52

Yeah. I understand that. I

17:54

think it's your argument. Again, this should be a t-shirt. Say

17:56

what you want. It's

18:00

great that Justice Alito and all

18:02

of us can at least agree

18:04

on these baseline premises. And with these

18:06

points of agreement, where else

18:08

can we go with more opportunities to

18:11

engage? I know. She

18:13

just, a prelogger does these like triple axles around him and

18:15

he's like, okay, fine, Article III is important. Okay. You

18:18

know, he says, I should guess. Fine. Same

18:20

reason, it's a experience. Fine. Yeah. Yeah.

18:23

But also in addition to the Mifepristone case, I

18:26

was reminded in that exchange that we just played

18:28

of another Alito prelogger exchange from NFIB versus OSHA,

18:30

which is what we tend to refer to as

18:32

the I'm not saying what I'm saying exchange. So

18:34

let's play that clip here. All right. So it's

18:37

different in that respect. And here's another respect in

18:39

which it may be different. And

18:41

I don't want to be misunderstood in making this point

18:44

because I'm not saying the vaccines are

18:46

unsafe. The FDA has approved them. It's

18:48

found that they're safe. It said that

18:50

the benefits greatly outweigh the risks. I'm

18:52

not contesting that in any way. I

18:54

don't want to be misunderstood. I'm sure

18:56

I will be misunderstood. I just want

18:58

to emphasize I'm not making that point.

19:00

But is it not the case that this,

19:03

these vaccines and every other vaccine of which

19:05

I'm aware and many other

19:07

medications have benefits and they

19:09

also have risks and that some

19:11

people who are vaccinated and some people

19:13

who take medication that

19:15

is highly beneficial will suffer

19:19

adverse consequences. Is that not

19:21

true of these vaccines? And

19:24

if that is, is that true? That

19:26

can be true, but of course there is

19:28

far, far greater risk from being... But there are... There

19:31

are... ...by orders of magnitude. Right.

19:33

There is some risk. Do you dispute that?

19:36

There can be a very minimal risk

19:38

with respect to some individuals. But

19:40

again, I would emphasize that I think that

19:43

there is no basis to think that these

19:45

FDA approved and authorized vaccines are not safe

19:47

and effective. No, I'm not making that point.

19:49

I tried to make it as clear as I

19:51

could. I'm not making that point. I'm not making

19:53

that point. I'm not making that point. There

19:56

is a risk, right? That's

19:58

a deep cut, Kate. That's a really... But

20:01

all three are in the same spirit. Yes. Our

20:04

one-trick pony works his trick. He really

20:06

does. Yep, sure does. Yeah. All

20:10

right. Just to underscore some of the

20:12

dynamics here at the court and with

20:14

repeat advocates, we should note that because

20:16

this argument happened on a day that

20:18

ends in a Y, Sam Alito once

20:20

again tried to play gotcha with solicitor

20:22

general Prey Lager, tried again to use

20:24

her words against her, and

20:26

once again, she bested

20:29

him, which raises the question, is Sam

20:32

Alito secretly a communist because it seems

20:34

that he doesn't mind being publicly owned

20:36

time and time again? Yeah. Let's

20:39

roll the tape. I was struck by

20:42

the contrast between your argument here

20:45

that the court should read in

20:48

a minimal exception

20:50

with the argument

20:52

that you made earlier

20:55

this term in Muldrow

21:00

versus the city of St. Louis where

21:02

the question was whether an adverse

21:06

employment action has to

21:08

be significant or not. And you said,

21:10

no, it doesn't have to be significant

21:12

because, quote, the text

21:14

likewise admits of no distinction between

21:16

discrimination that results in a significant

21:19

or insignificant disadvantage. So in Muldrow

21:21

you told us, no, don't read

21:24

in an atextual requirement

21:26

of significance, but here you seem to

21:28

be arguing, yes, you've got to

21:31

read in an atextual requirement

21:33

of something that's more than

21:35

minimal. No, that is not our

21:37

argument here. We are grounding this in the

21:39

text. We're not suggesting that there's a basic,

21:41

de minimis principle that applies throughout all the

21:44

various legal statutes that are out

21:46

there, not anything like that. Instead, we ground

21:48

this in a particular understanding of what it

21:50

means to obstruct and what that word conveys.

21:53

Yeah. I mean, he kept trying to best

21:55

her and she just kept, again, like dancing away. They

21:58

say the definition of insanity is... You

22:00

know, A

22:02

guy that it's That's why we. Coyote

22:04

Energy. Cia, the

22:06

road Runner, but I'm at all. But

22:09

honestly, I'm not really upset about me.

22:11

They're they're always results in this. he

22:13

said. Sonos a wheelbarrow from your how

22:15

on her own Hundred and twelve hours

22:17

and over. I know, I know, some.

22:19

Moving on to some of a little

22:21

fellow travelers. There is also

22:24

may have. Revealed a Fox News habit

22:26

of her own in addition to a widow

22:28

which we knew and midcourse it's Who seem

22:30

to be giving some hints and during this

22:32

argument or least I thought that with her

22:35

invocation of the phrase. Stop the steel so

22:37

let's play that clip here. Okay

22:39

let me ask you a lesson that

22:41

I guess it's and the the same

22:43

points that Justice Elite Us questions were

22:46

getting. Yes, so what s On January

22:48

Six, the capital itself had not been

22:50

breached. The protests is going on outside

22:52

the capital. Off the steel,

22:54

stop the cel. Police. Aren't

22:56

you know and megaphone saying dispersed

22:59

disperse their to close the capital

23:01

their goal is to impair and

23:03

p to stop the preceding south

23:05

the counting of else. Does.

23:08

That violate the statute in your view. Under

23:10

this impede language I know, am I wrong

23:12

That I mean the government does not use

23:14

afraid as brief. It appears very like once

23:16

I think and Fishers brief but it does

23:19

seem to roll off the time. It is

23:21

me either. The motto is the only time

23:23

she. Had said that his mother for without

23:25

any I had it is kind of

23:27

in the ether flag has been bandied

23:29

about in so many places. To describe

23:31

their efforts is overturned the twenty Twenty

23:33

election and it's I read it seem

23:35

to like roll off the tongue and

23:37

a certain way on my i wasn't

23:39

exactly sure how emily need more money

23:41

yeah from yeah ok er it suggests

23:43

isn't settle for justice but not determinative.

23:46

So. A fight a lot with made

23:48

of the fact that quote this statute hasn't

23:50

been used in cases that didn't involve. The

23:53

destruction of records and quote and.

23:56

gonna just note that not entirely clear

23:58

that that's actually true but As

24:01

we know, there is a deeply rooted

24:03

history and tradition of getting history and

24:05

traditions wrong at this court. So all

24:07

of this checks out. But to

24:09

give you an example of what we're talking

24:11

about, here is Justice Thomas' opening question to

24:14

Solicitor General Preylager. General,

24:16

there have been

24:18

many violent protests that have interfered

24:21

with proceedings. Has

24:23

the government applied

24:26

this provision to other

24:28

protests in the past? And has

24:30

this been the government's

24:32

position throughout the lifespan

24:35

of the statute? And

24:38

then Sonia Sotomayor stepped in to

24:40

pre-butt all of this in an

24:42

exchange with the petitioner's lawyer. So

24:44

here she is. We've never had

24:46

a situation before where there's

24:48

been a situation like

24:51

this with people attempting to

24:53

stop a proceeding violently. So

24:57

I'm not sure what a lack of history

24:59

proves. All to say

25:01

that Sonia Sotomayor is over

25:03

history and tradition and wants

25:06

everyone to know that the United States doesn't

25:08

actually have a history and tradition of coups.

25:11

So continue. Yeah. So

25:14

maybe we can just kind of talk

25:16

loosely about predictions at this point. I

25:18

agree it was a little bit hard

25:21

to read, particularly the Chief Kavanaugh Barrett,

25:23

where they were leaning. I think it's

25:25

possible there was kind of a narrower

25:27

ground thrown out and about an argument

25:29

that maybe the Supreme Court would say

25:31

something about how they weren't adopting the

25:33

government's broader interpretation of the law, but

25:36

would say something like 1512C2 charges require

25:39

some showing about records or whatnot and allow

25:41

the government to argue that obstructing the January

25:44

6 certification involved interfering with electoral

25:46

certificates. The defendant resisted this reading saying

25:48

certificates aren't evidence in the hearing sense,

25:50

but it's possible this theory could mean

25:52

that while many rank and file January

25:55

6 didn't violate the law, Trump may have

25:57

since Trump was involved in generating the electors

26:00

slate, but if that is

26:02

the theory, figuring that

26:04

out is going to create additional

26:06

delays pretrial with pretrial briefing. And

26:09

so that's just another kind of

26:11

aspect to note about the case.

26:14

And in terms of my sort of big takeaway, as I

26:16

agree with everything you just said, Leah, I and, you know,

26:18

Melissa, you alluded to this earlier, it

26:20

is just it was so hard to swallow.

26:22

You know, I was like, I'm gonna have

26:24

an aneurysm listening to this argument with these

26:26

self-identified textualists and all they wanted to talk

26:28

about was how the preceding provision, C1, impacted

26:32

the meaning of the words of C2 or

26:35

how the Sarbanes-Oxley slash Enron

26:37

scandal origins of the statute

26:39

had to inform the meaning

26:41

of the statute and almost

26:43

didn't seem to maybe treat it

26:45

as an afterthought, the words of the

26:47

statute itself, which just was so galling.

26:49

Oh, I guess there's one other thing

26:51

they cared about whether the application of the statute in

26:54

other cases might raise First Amendment or related concerns.

26:56

But again, that's not about the text of the

26:58

statute. And I just think about

27:00

the like text. So yeah, we're so fixated

27:02

on this word otherwise that appears in 1512

27:04

C2. And just

27:07

to underscore to our listeners, like why that isn't textualist.

27:09

So the justices were like, well, 1512 C2 says otherwise.

27:12

And so that must incorporate the reference

27:14

to evidence and records from C1. But

27:18

C2 is a separate section. So that's

27:20

one thing. And second is reading

27:22

otherwise to incorporate some set of similarities

27:25

with C1 inevitably devolves into assessments of

27:27

purpose because it requires the judge to

27:29

ask, well, how are the things in

27:31

C1 similar or like what similarity was

27:33

Congress trying to get at? Because one

27:36

possibility is they just cared about obstruction

27:38

by other means. Another possibility is they

27:40

cared about the destruction of evidence or

27:42

records. And in order to make that

27:45

determination, the judge is going to have

27:47

to think about like what was Congress

27:49

trying to do? Totally.

27:51

And pre-lugger, I thought, had a beautiful description of

27:53

what these two different parts of the statute did.

27:56

The first one is about records and documents. The

27:58

second one says otherwise obstructs or interfere. years with

28:00

an official proceeding, those are targeting different kinds of

28:02

conduct like that should be the end of the analysis

28:04

and none of the text on the court seems to

28:06

be that interested in that theory. Although again, I

28:09

ultimately think there is a chance that she prevails.

28:11

And I just wanted to maybe highlight one other thing. Leah, you

28:13

just said this but this is something that

28:16

Melissa's colleague at NYU, Ryan Goodman, has

28:18

highlighted. Even if Fisher

28:20

wins, it is totally possible that wouldn't impact

28:22

Trump at all as a bottom line matter

28:24

with respect to these two charges against Trump

28:26

because the evidence against him is really different

28:29

than the evidence against Fisher in that it's

28:31

not just about January 6 itself but all

28:33

of this involvement in the fake electors scheme

28:35

and trying to induce and facilitate fake electors

28:37

and fake certificates. Even

28:39

if they do decide to impose some document

28:41

requirement on C2, that's just not – it's

28:43

very possible the evidence against Trump could satisfy

28:45

it. But timing is everything

28:47

and it could well mean that you have to

28:49

build a new – the case under

28:52

C2 and I don't know at that point whether

28:54

Jack Smith and his team would decide it's better

28:56

just to pursue the other two charges if

28:58

there is even a time for a trial. I mean

29:00

I think they're probably already thinking of that right

29:02

now, how to streamline this case if they even

29:04

get the opportunity to go to trial. Given

29:08

that it seems that there is a

29:10

very good chance that the Supreme Court

29:12

does not just affirm this conviction and

29:14

follow the most natural textualist reading of

29:17

this statute, we just

29:19

wanted to note that the outcome

29:21

here seems to be very different

29:23

from the court's point

29:25

of other kinds of protests and we

29:28

are thinking specifically of the case involving

29:30

D'Ray McKesson. D'Ray McKesson is an

29:32

activist and organizer who's been involved

29:34

in the Black Lives Matter movement

29:36

for more than a decade. He

29:38

is also the host of Crooked's

29:40

Pod Save the People podcast and

29:43

he helped organize a protest near

29:45

police headquarters in Louisiana after the

29:47

police murdered Alton Sterling who was shot

29:49

six times despite being pinned to the ground.

29:51

Stream this protest, someone, and we do not

29:54

know who, threw a rock. The

29:56

rock struck a police officer, severely injuring him.

30:00

sued McKesson for inciting a

30:02

riot. McKesson organized the protest but certainly

30:04

didn't throw the rock, doesn't know who threw the rock

30:06

and did not ask anyone to throw the rock. And

30:09

so McKesson raised First Amendment defenses. The defense

30:11

he raised primarily relied on the Supreme

30:13

Court's previous decision in NAACP versus

30:15

Claiborne, which was an important 1982

30:18

decision in which business owners sued the NAACP

30:20

for organizing a boycott of white businesses. And

30:23

the business owners said that threats of violence

30:25

against their businesses had cost them money, but

30:27

the threats were from other people, not from the

30:29

NAACP and the

30:31

Supreme Court in that case said the First

30:33

Amendment barred these claims against the

30:35

NAACP and still the police officer

30:38

pressed these negligence claims against Dore

30:40

McKesson. And most gallingly,

30:42

the lower courts have allowed these claims

30:44

to continue without the Supreme Court lifting

30:46

a finger. At an earlier stage

30:49

of this litigation, the Supreme Court sent the

30:51

case to the Fifth Circuit saying that the

30:53

Fifth Circuit needed to clarify Louisiana State Court

30:55

law. Louisiana State Courts purported to

30:57

do that and said, yep, this claim can

30:59

proceed. And the Fifth Circuit declined

31:01

to dismiss the case so that under the

31:03

Fifth Circuit's ruling, it is set to move

31:06

forward. And the Supreme Court declined

31:08

to disturb that ruling, almost as if they

31:10

are saying like some mass protests are good

31:12

and others aren't. I mean, Leah,

31:15

we have never had a history and tradition

31:17

in this country of Black Lives

31:19

Matter. So, you know, that does

31:22

seem to be a possible distinction. And it's

31:24

part of what to me makes the justices

31:26

indications of the parade of horribles about the

31:28

government's theory under 1512

31:30

C2. So hollow and in some respects

31:33

just disingenuous because right

31:35

now people are using laws against

31:38

Black protesters and you Supreme Court

31:40

are doing jack squat about it.

31:42

And instead, you're raising the prospect

31:45

of the government using this law

31:47

against sit-ins and nonviolent protests as

31:49

a reason to excuse criminal liability

31:52

for the January 6th attempted insurrection.

31:54

And again, like the

31:56

dual treatment is quite striking. Now,

31:58

we should see the Justice

32:00

Sotomayor issued a statement in Dore McCesson's

32:02

case saying that the legal issue here,

32:04

that is, whether Dore McCesson can be

32:07

sued consistent with the First Amendment, is

32:09

already clear. And she said the court can

32:12

deny certiorari, that is, decline to intervene for

32:14

many reasons, including that the law is not

32:16

in need of further clarification. And she suggested

32:18

that the Supreme Court's recent decision in Counterman

32:21

versus Colorado on First Amendment and the true

32:23

threats kind of already resolved this issue. But

32:25

still, the Supreme Court not stepping in to

32:27

end the case now prolongs it. It requires

32:30

more legal fees and time, all

32:32

of which is a deterrent to

32:34

protesters and organizers, whatever the

32:36

ultimate outcome in Dore's case

32:39

ultimately is.

32:44

The constant political chaos can be a lot.

32:46

You got to mix it up with a

32:48

little regular chaos. Go behind the pods with

32:50

terminally online, Crooked's loosest show, where the news

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33:00

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33:06

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33:12

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33:15

Time comes for all of us. You

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33:35

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33:37

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ad has not been authorized by any candidate or candidate's

34:33

committee. Up

34:41

next at corruption week at the

34:43

Supreme Court is Snyder v. United

34:45

States, the political corruption case about

34:47

the law, Section 666, that

34:50

criminalizes corruptly soliciting or demanding or accepting

34:52

or agreeing to accept anything of value

34:54

that exceeds $5,000 that is

34:57

intended to influence or reward any business,

34:59

transaction of an organization, or government that

35:02

receives federal funds. As we

35:04

forecast it in our preview, the tenor of

35:06

the oral argument suggested that the court seems

35:08

inclined, perhaps even unanimously, to narrow

35:11

the reach of this law. And

35:13

it will perhaps say that unless there is

35:15

some kind of quid pro quo agreement, that

35:17

is, where there is an offer of money

35:19

or reward that is explicitly tied to the

35:22

commission of some official act, then

35:24

there can be no violation of this law.

35:27

And there's some chance that they adopt some other

35:29

limitation on this, but it's clear,

35:31

at least to us, that they're

35:33

not just going to affirm this

35:35

conviction, because this is

35:37

a case that involves political corruption. And that's

35:40

just not how they roll these days. Say

35:42

no more. Well, you know, just to delve a

35:44

bit more into the details of the statute, that is definitely the

35:47

bottom line. But Here are the

35:49

facts. So This case involved a Mayor who

35:51

allegedly structured a bidding process to ensure a

35:53

trucking contract would go to a particular company,

35:55

Peterbilt, and then the company turned around and

35:57

hired the Mayor for, quote unquote, consulting services.

36:00

Well and no, no, no, I

36:02

mean that's what the court basically

36:05

said. The Federal government to the

36:07

contrary said these kinds of arrangements

36:09

that involve these rewards that sometimes

36:11

called gratuities or tips violate federal

36:13

laws. They are done to influence.

36:15

Behavior Sweeten the pot. Things like that. Guy

36:19

or my sister in keep talking and all, but

36:21

it's a way to rather to offer that intervention

36:24

later. Us like. I didn't realize the

36:26

defendant is pissing the quote. just

36:28

the tip theory. Of Federal government

36:30

and for upset. that

36:34

that out of my announce our says.

36:39

Sorry, I'm sorry to everyone. I've

36:41

been listening to the Torch and Bugs and

36:43

for like endless our is my mind of

36:45

not wow. I

36:48

think for himself something that was great. How

36:50

many hours as Cowboy Carter do I need

36:52

to listen? To get that out of my

36:54

head of a sudden. The

36:57

first. Eight. Or

37:01

eight onwards. so the federal government says

37:03

of these kinds of her words for

37:05

to these tips violate federal law as

37:07

they're done to influence behavior and the

37:09

defendants as know these are just basically

37:11

indistinguishable from think it was you get

37:13

a bottle of wine or thank you

37:15

gift for a doctor after successful surgery

37:17

which sidebar like could throw. The argument

37:19

was as notion that everyone is giving enormous

37:21

lavish gifts to like the people in their

37:24

lives who they pay for things like medical

37:26

care and I mean like we give gifts,

37:28

idyllic research assistants and like friends and family

37:31

members and like so I'm as dingy on

37:33

the on the gift brought up for as

37:35

like holiday gifts panelists and who are in

37:37

authors reasonable us to the idea that that

37:40

it is sort of compromise agile as a

37:42

given the day thousand yard or else and

37:44

dockers or thousand Obama one was invokes like

37:47

a normal thing to give us a. Gift

37:49

and we thought might as well as anybody or consisted

37:51

of we have a plan very. Definitely not thousand dollar

37:53

wine I know. Remember that he had that was

37:55

a call back I don't know at least as

37:58

or maybe if I got of I know. I

38:00

know, but in any event, what they just

38:02

doesn't seem. To be suggesting is that

38:04

this is completely ordinary behaviorists and

38:06

it's the. Fact. That this kind

38:09

of a completely ordinary behavior might be subject

38:11

to some kind of threat of prosecution. And

38:13

this was an intolerable. You

38:16

know, I don't know. Constitutional concern. Obviously, this

38:18

case was predicated on stashed for interpretation as

38:20

opposed to some scandal unconstitutional theory, but you

38:22

know, concerns about the implications broadly. Speaking of

38:25

allowing these kinds of prosecutions go forward permeated

38:27

the arguments and there was zero concerned voiced

38:29

by a single justice on the bench for

38:31

the kinds of cases that a narrow interpretation

38:34

of the law might just let off the

38:36

have to. that's I think where things left

38:38

off with the argument. so maybe just a

38:40

player handful of clubs. Here's just of Cavanaugh

38:43

with hypothetical along the lines that we were

38:45

just. Talking about your tonsils are

38:47

changing the hypothetical that both the

38:49

hypotheticals the actions taken. An aide

38:51

citizen gives the thank you and

38:54

it could be ah of his

38:56

gift cards as Starbucks or could

38:58

be tickets to a concert game

39:00

and just drops it off to

39:03

the person. Thank you for all

39:05

your hard work on this issue.

39:08

Free. Hear you. Now. Lisa

39:10

Blatt with are doing for their descendants

39:12

of petitioner in this case, which means

39:14

we were treated to the Lisa Black

39:16

jokes in the course of trotting out

39:18

the possible downstream consequences of the governments

39:21

butter interpretation of the law. So step

39:23

right up, listeners as we're about to

39:25

play the Lisa Vlad game. Or show

39:27

with this series of Quit Said Doctor

39:30

Who, Remove Your warts, Fine, but the

39:32

doctor who takes her gallbladder out or does

39:34

your face like my plastic surgeons now that's

39:36

worth ever five thousand. Seriously,

39:39

I'm not joking. Snow removal worth over

39:41

five thousand and writing a letter for

39:43

your kids to get into college? that's

39:46

priceless. There are actually go on and

39:48

on and on and if you charge

39:50

I again. I'm sure you will ask them

39:52

what the jury should be charged, What common. sense

39:54

ethical rules are i mean the restaurant

39:57

example alone i don't know where it's

39:59

i'd pretty sure Chipotle would be okay

40:01

and that little Washington wouldn't, but asked him

40:03

about the Cheesecake Factory. Well,

40:07

I'm not going to ask him about the Cheesecake

40:09

Factory. Somebody else may. Okay. But I'm going to

40:11

ask. I'll be here all week. That

40:17

was chaotic. Yes. Like side

40:19

note, do we believe

40:21

that Justice Gorsuch regularly goes to the

40:23

Cheesecake Factory? I mean, like, first of

40:25

all, like full disclosure, I'm sorry if

40:27

this sounds snobby, but I fucking hate

40:29

the Cheesecake Factory. Like I do not

40:31

understand the Cheesecake Factory. Okay. You and

40:33

my husband can go together because I

40:35

fucking hate it. Like I do not

40:37

understand a restaurant with a menu that

40:39

is so varied that it

40:42

actually has to be spiral bound. Like

40:44

that seems excessive to me. Like absolutely

40:46

excessive. Like it's enormous. It's a big, big

40:48

menu. Seriously. Is Neil Gorsuch like

40:51

no, I think this is drawn from

40:53

Lisa's hypotheticals. I don't think he was

40:55

invoking the Cheesecake Factory in particular. So

40:57

she was invoking back to the like,

40:59

I don't know what world these people live in. They're

41:01

like the invocation of the Inn at Little Washington, which is like

41:03

a preposterously expensive area restaurant

41:06

and the Cheesecake Factory. But

41:08

also just like, Hey, we

41:10

all know what the Inn at Little Washington is.

41:12

Like that I like really irked me, but I

41:15

digress. So just to

41:17

kind of take this home, it

41:19

is clear where the court is leaning and they

41:21

are leaning that way against the government because of

41:23

their apparent sense that the facts of this case

41:25

are just kind of how we do things indistinguishable

41:28

from scenarios that they think just can't and shouldn't

41:30

warrant prosecution, which came out

41:32

in this clip that we've already alluded to.

41:34

And so we'll just play here. Well, how

41:36

about this? I mean, this statute applies

41:38

to more than government officials. It

41:41

applies to pretty much every hospital. It

41:43

applies to pretty much every university. So

41:46

let's say a billionaire patient comes to

41:48

a hospital and gets extra special treatment.

41:50

He gets appointments when nobody else would

41:52

get it. He gets surgery scheduled when

41:54

nobody else would. And It's

41:57

all done because everybody knows he's a

41:59

billionaire patient. Then they're hoping that whole

42:01

given eight figure gift to the hospital.

42:03

How about that to success. So it

42:06

needs to be. As we walked through

42:08

the statutory requirements the paid their needs

42:10

to be the acceptance or the solicitation

42:13

of money in connection with particular business

42:15

world and there's definitely going to accept.

42:17

The a trigger gift when economy sorry.

42:20

About that they're on the promise as

42:22

as a figure just about a lot

42:24

of Rodin. Lot of people do not

42:26

think it's good. To give super

42:28

rich people better health care then

42:31

not so super rich people. So

42:33

I could see a jury saying

42:35

that's pretty immoral, but probably every

42:37

hospital in America doesn't. It

42:40

was just really interesting to hear probably

42:42

every hospital on America does. It adds

42:44

that with their understanding of. The.

42:47

Way things work. As a

42:49

business as usual, why enough? Because

42:51

at your point, takes most of

42:53

these cases dealing with political corruption

42:55

or unanimous or nearly unanimous. So.

42:58

This. Is I think where this one is likely

43:00

headed? Yeah, and I think I'd like the idea

43:03

that everyone is suing. That's like even the liberal

43:05

justices seem to accept that. You're.

43:07

At A Music is deeply disheartening. I think

43:09

it's true, but I think is likely to. Embolden

43:12

this kind of conduct relic all kinds of

43:14

sketchy behavior because. It's increasingly clear

43:16

to officials and private individuals that most of

43:18

what they do is gonna. Be beyond the

43:20

reach of Federal criminal law and I do think

43:22

the result of that will be government services. And

43:25

if Six Sixty Six can also reached the provision

43:27

of private services by recipients of federal funds, so.

43:29

By all kinds of entities that can

43:31

you know dole out there goods and

43:33

services on a preferential thesis is is

43:35

that the court seem to be thanks,

43:37

happens and is fine and just doesn't.

43:39

That. Obviously. lead to kind of further. Stratification

43:42

and thus and a more profoundly distorted vision

43:44

of democracy. I feel like that is the

43:46

past of this court of the sign of

43:48

cases is on us and I just find

43:50

it incredibly disturbing writ large. But as of

43:53

this particular case it's very clear this and

43:55

a crush on Saturdays going to be narrowed

43:57

and possibly unanimously. So. briefly.

44:00

going to mention two other cases that the court

44:02

heard argument in. One was Gia Verena versus City

44:04

of Napoleon. This is the Fourth Amendment case we

44:06

weren't able to preview at our last episode because

44:08

we were attempting to give you a sense of

44:10

the court's power by taking through a bunch of

44:12

cases the court would be hearing throughout this entire

44:14

sitting. This particular case

44:16

is about how an individual can

44:19

make out a claim of malicious

44:21

prosecution when they are charged with

44:23

multiple offenses. So a malicious prosecution

44:25

claim argues, as the name suggests,

44:27

that you were charged, i.e. prosecuted

44:30

maliciously, not because you actually

44:32

violated the law. But the

44:34

twist in this case is how

44:36

a malicious prosecution claim works when

44:38

you're charged with one offense for

44:40

which there is no probable cause,

44:42

i.e. there's no reasonable belief that

44:44

you committed the offense the prosecutors charged

44:47

you with, but you're also

44:49

charged with some other offenses for

44:51

which there is probable cause. So

44:53

sort of malicious prosecution on the one

44:56

hand, but maybe you actually did the other

44:58

thing and, hmm, so confusing. Yeah, so Isha

45:00

Anand of Stanford Supreme Court Litigation Clinic was

45:02

arguing the case for the petitioner and was

45:04

fabulous as she has been in all of

45:07

her arguments this year, her first year arguing

45:09

at the court, and it seems like this

45:11

is going to be, at least I thought,

45:13

another win for her. Recall she got a

45:15

unanimous win in the first case she argued

45:18

this term, Murray. The Court of Appeals below

45:20

in this case seemed to say that as

45:22

long as there is probable cause for one

45:25

of the charged offenses, you can't make out

45:27

a malicious prosecution claim. And Isha was arguing

45:29

for a different rule that you can make

45:31

out a malicious prosecution claim if there wasn't

45:34

probable cause for a charged offense, and

45:36

that resulted in a seizure of your person. Yeah,

45:39

I mean, she also just had really good rapport with all

45:41

the justices. I was like, they're just gonna fix them.

45:43

They're gonna, they're gonna come out reasonable because I can

45:45

fix them. I know I can. Exactly. At

45:49

the end of the day, she can't. Yeah,

45:51

okay. Well, the whole spring's eternal, and she

45:53

can't fix these guys either. But it felt

45:56

like there was something. Maybe as to this case, though,

45:58

in terms of how she pitched. She

46:00

butcher as one in which there was radical agreement

46:02

which echoed a decision the court issued the previous

46:04

week in She's Which We're gonna talk about in

46:06

a little bit. She was supported by the lawyer

46:08

for the Federal government to agree that the court

46:10

below was wrong and the fight seem to be

46:12

about what else the court might say in this

46:14

case. The Solicitor General seem to want the springboard

46:16

to say little bit more than obsession are dead

46:18

so you know the government, one of the court

46:20

has had a petition or is required to show

46:22

that malicious prosecution cause a seizure. Although the government

46:24

didn't want the core to elaborate on how to

46:26

establish causation or make rules for what happens if

46:28

there is and on charge defense. Or different

46:31

variations. Understand the played. The

46:33

respondents lawyer here really tried to resist

46:35

the suggestion that there was radical agreement

46:37

on these issues, but I think if

46:39

we had to guess, it seems. Like

46:42

isa is headed for another. When and

46:44

the Supreme court will say that it's

46:46

not a defense for malicious prosecution, claim

46:48

to charge someone with other offenses for

46:50

which there might be probable cause, and

46:52

it will leave a lot of the

46:54

details to be worked out down the

46:56

road, but it will. Be I think

46:58

a win for Isa and for this defendant.

47:00

And maybe let's just play her closing here

47:03

which lays out the states that even though

47:05

those steaks might seem small given the agreements

47:07

now I'm that is actually misimpression. And she

47:09

makes that clear here. This court

47:12

can do a lot of good bye just

47:14

resolving the question present tense and saying that

47:16

sit the any crime rule As just as

47:18

courses said, you can always come up with

47:20

some crimes which there's probable cause and so

47:23

the any crime rule allows police officers to

47:25

entirely insulate their misconduct by just packing on

47:27

of a chart for which there is probably

47:29

comparable cause for just about any one is

47:31

called. Can do a lot of good bye

47:34

just saying that that rules and correct that

47:36

a plaintiff can make out a malicious prosecution

47:38

claim even if some charges are supported by

47:40

probable cause. And will fight about all the

47:42

complexity that your honors heard about. On

47:44

remand and you. Hate.

47:47

the court also heard thorn l vs jones

47:49

and this is an important sixth amendment right

47:51

to counsel case and we didn't have time

47:53

to preview it in the last episode that

47:55

kate did al to it briefly so in

47:57

order to establish a violation of the amendment

48:00

right to effective assistance of counsel,

48:03

defendants have to show deficient performance.

48:05

That is, their counsel performed below

48:07

an objective standard, and then they

48:10

also have to show that there

48:12

was prejudice, which means that there's

48:14

a reasonable probability that their counsel's

48:17

deficient performance actually affected the proceedings.

48:19

In this case is about how courts determine prejudice and

48:22

how appellate courts review district courts determinations

48:24

about whether there's prejudice. Here the Ninth

48:26

Circuit concluded that the district court aired

48:28

by requiring defendants to effectively establish mitigating

48:30

factors by a preponderance of the evidence

48:32

and to show that it's more likely

48:34

than not that the outcome of the Senate thing

48:36

proceeding would have been different even though that's not

48:38

how the prejudice standard is supposed to or

48:40

typically understood to work. And there

48:42

was a somewhat testy exchange on how to read

48:45

the district court opinion and whether the Ninth

48:47

Circuit interpreted it correctly along these lines. Let's

48:49

play that here. Did the district

48:51

court ever say that it was applying a

48:53

preponderance of the evidence standard? No, Your Honor.

48:56

Is it a reasonable understanding of their

48:58

opinion to think that it was doing

49:00

fact-finding in the normal way? This brought

49:03

to my mind the kind of exchange

49:05

between them from Alexander earlier in the

49:07

term where they were defeating how to

49:09

read Justice Kagan's opinion in Cooper. Exactly.

49:12

But you know here in this particular Sixth

49:14

Amendment case the state says the Court of

49:16

Appeals in Ninth Circuit did not properly consider

49:19

the aggravating factors when it determined the defendant

49:21

was prejudiced and this is a habeas case

49:23

out of the Ninth Circuit where the habeas

49:25

petitioner, the defendant, won. So you know the

49:27

safe bet is this will probably end poorly

49:29

now that it is at the Supreme Court

49:31

and the question seems to be how much

49:34

the court is going to say about what

49:36

district court should do on the prejudice prong,

49:38

i.e. like how much harder they're going to

49:40

make it to establish a Sixth Amendment violation

49:42

versus focusing on a narrow error of omission

49:44

by the Court of Appeals, namely not considering

49:46

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51:18

Now for a lightning round of

51:20

opinion recaps. Next up,

51:22

we got the opinion in Sheets

51:25

versus El Dorado County. And this

51:27

is a unanimous opinion holding that

51:29

the Takings Clause doctrine doesn't have

51:31

a firm cutoff between legislative and

51:33

administrative land use permit conditions. And

51:35

this is an opinion written by Justice Amy

51:38

Coney Barrett where there were three concurrences. And

51:41

it was a very narrow resolution of the

51:43

case. By the time the case got to

51:45

the court, the parties had agreed on the

51:47

fact that legislative permit conditions were not

51:49

completely immune from Takings challenges. And

51:51

this clip from arguments indicates where

51:53

they were going on that front.

51:56

Here it goes. I think

51:58

you're right about all that. You know,

52:00

whether this is a tax is a

52:02

really interesting question, whether it's a user fee is

52:04

a really interesting question. But as I

52:07

read the Court of Appeals below, they

52:09

said we're not even going to

52:11

get into any of that because Nolan

52:13

and Dolan simply doesn't apply to legislative

52:16

enactments of any kind, whether

52:18

it's a tax, whether it's a fee, whether

52:20

it's something else. And

52:23

I thought we had taken the case to address

52:25

that question. And as

52:27

the Chief Justice has pointed out, I think there's

52:29

radical agreement on that question today.

52:33

I think if you read... And so why wouldn't... what

52:35

would be wrong with allowing both

52:37

sides to go back and make their

52:39

arguments recognizing that

52:42

Nolan and Dolan does apply to some

52:45

legislative enactments. And then we can... you

52:47

can go back to the courts below

52:49

and talk about whether this is a

52:51

tax, whether it's a user fee

52:53

or whether it isn't. But

52:55

there's just no categorical exemption from

52:58

legislative enactments. Radical agreement. All

53:00

right. We also

53:02

got the opinion in Macquarie Infrastructure Corp.

53:04

versus Moab Partners. The court held there

53:07

that pure omissions are not actionable securities

53:09

fraud in violation of Securities and Exchange

53:11

Commission regulations. Here, the company

53:13

had allegedly failed to discuss a regulation

53:15

by UN International Maritime Organization that

53:17

capped the sulfur content of fuel oil. The

53:20

company didn't discuss the impact of the rule in its

53:22

public offering documents. And this was a

53:24

unanimous opinion by Justice Sotomayor. Again,

53:26

as Melissa alluded to at the beginning of

53:28

our episode, the court really seems to be

53:30

in the posture of clearing the decks, getting

53:33

the uncontroversial and mostly unanimous opinions out before

53:35

the crazy really begins. Assume the

53:38

position, gentlemen. Oh, dear.

53:40

We're a little spicy today.

53:43

Yeah. So

53:45

we also got the opinion in Bissonnette

53:47

versus LaPage Bakeries Park Street. And it

53:49

was a unanimous win for Jennifer Bennett

53:51

of Gupta-Wessler on behalf of employees in

53:54

a Federal Arbitration Act case. That is

53:56

huge. You know, the Federal Arbitration Act

53:58

makes it difficult for workers. is to

54:00

challenge arbitration agreements in their employment contracts.

54:02

And the Supreme Court has generally been

54:05

very aggressive in expansively reading the

54:07

FAA to make it hard for

54:09

people to challenge arbitration agreements. But

54:12

here, the Supreme Court agreed with

54:14

Bennett's clients that the Federal Arbitration

54:16

Act exemptions for, quote, any class

54:18

of workers engaged in foreign or

54:20

interstate commerce, end quote, applies to

54:22

workers whose jobs involve transportation, even

54:24

if they do not work in

54:26

the transportation industry. So here, the

54:28

employees transported food items. And

54:30

so the group of employees, they are not

54:33

subject to the FAA's rules, making it hard

54:35

to challenge arbitration agreements. And this case, this

54:37

win follows Bennett's previous wins in Federal Arbitration

54:40

Act cases in Saxon and New Prime, which

54:42

were cited in the short opinion in Bissonnette

54:44

to explain the outcome, which I thought was

54:46

a really nice capstone in the testament to

54:49

what Bennett has been strategizing and able to

54:51

do for employees seeking civil justice. That's

54:54

substantive. And it was so great. I

54:56

guess the chief, this is completely superficial, but the

54:58

chief asked prelogger about this opinion in the Fisher

55:00

argument and was like pronouncing it like it's Boyzend,

55:02

Boyzend. Anyway, it was really weird. I don't

55:04

think Bissonnette's hard to say. But

55:06

Wise Men once read fake news and they believed it.

55:11

That's a lyric. I don't know what song.

55:13

See, you're so much more versed already than I. I'm

55:15

just hoping someone will ask me for my safe word.

55:18

I actually have a question, which is, Leah, I know you speed

55:20

read and write, but how is it possible to listen to music

55:23

faster than anyone else? You can't let speed up. But

55:25

nonstop at 6 a.m. and it's

55:27

just going and no one can talk to me.

55:29

OK, so you've had like eight hours-ish of listening

55:31

to it by now. OK, all right. That explains it

55:33

a bit. I thought you had some weird

55:35

event time in some way. OK. All

55:38

right, Melissa, we're concluding this Taylor conversation. Let's

55:40

move on. So we also got the

55:42

opinion in Rudecil versus McDonough. And with all due

55:44

respect to the lightning round, I am going to

55:47

say a little bit more about this, which I

55:49

think the takeout is really interesting here. So

55:51

in this opinion, the court held that

55:53

service members who accrue educational benefits under

55:55

two versions of the GI Bill, the

55:57

Montgomery GI Bill and the post-9-11 GI

56:00

Bill can use both sets of

56:02

educational benefits, not, as the federal

56:04

government had previously argued, only one

56:06

of the two sets of benefits.

56:09

So this was a 7-2 opinion

56:11

written by Justice Jackson in which

56:13

she cited the so-called pro-veteran canon.

56:15

And this is a canon of

56:18

statutory interpretation that instructs courts to

56:20

favor the rights and benefits of

56:22

veterans when interpreting ambiguities in federal

56:24

law. As Justice Jackson explained

56:26

in the opinion, quote, if the statute

56:29

were ambiguous, the pro-veteran canon would

56:31

favor Rudecil. But the statute is

56:33

clear, so we resolve this case

56:35

based on statutory text alone, end

56:37

quote, a real textual healer here.

56:39

But you might wonder, if the

56:41

statutory text is clear on its

56:43

face, why did she need

56:45

to big up the veteran's canon here?

56:48

And well, we think her

56:50

choices might be explained by some of

56:52

the separate writings in this case. There

56:54

was a concurrence by Coach slash Justice

56:56

Kavanaugh that Justice Barrett joined, as well

56:58

as a dissent from Justice Thomas in

57:00

which Justice Alito joined. And

57:02

in both of these separate writings, the

57:04

four justices seemed less tethered to the

57:07

veteran's canon. Indeed, Coach Kavanaugh noted

57:10

that there might be, quote, constitutional

57:12

questions about the justifications for a

57:14

benefits-related canon, such as the veteran's

57:17

canon, that favors one particular group

57:19

over others, end quote. He then went on

57:21

to observe that, quote, the judiciary's role is

57:24

to neutrally interpret those statutes, not to put

57:26

a sum on the scale in favor

57:28

of or against any particular

57:30

group, end quote. The

57:32

major questions, Dafran, would like a word,

57:35

sir, but go on, queen. I'm

57:37

glad you raised this. I wanted

57:40

to flag these separate writings to underscore,

57:42

one, that four Republican

57:44

appointees, Thomas, Alito, Kavanaugh,

57:46

and Barrett, wrote or signed on to

57:49

separate opinions that would sideline the veteran's

57:51

canon and make it harder for

57:53

veterans to take advantage of the full

57:55

scope of educational benefits to which they

57:58

are entitled. And again, this This

58:00

is the patriotic party of America

58:02

people. So it's really interesting

58:04

that they are on board for this. Also

58:07

interesting here is that this limitation

58:10

of the veteran's canon could

58:12

easily apply to other statutory

58:14

canons. And I could

58:16

totally see the line here,

58:18

the judiciary's role is to neutrally interpret

58:20

those statutes, being deployed to

58:23

gut Chevron in Relentless and Loper

58:25

Bright and, you know, Kavanaugh citing

58:27

himself or something like that. I

58:30

just cannot believe these major question enthusiasts can

58:32

say stuff with a straight face. They're

58:34

so inconsistent. So outrageous. Yeah,

58:36

yeah, absolutely inconsistent. Completely unsurprising. Like they

58:39

will continue to step on their soapbox

58:41

about how they are the only people

58:43

engaged in principled textualism, notwithstanding everything they

58:46

are doing in major questions

58:48

cases, notwithstanding what they were saying in

58:50

Fisher. It's just, yeah, anyway.

58:53

It's outrageous. Yeah. All

58:55

right. But because we have other cases to

58:57

get through, let's press on. So another opinion

59:00

we got was Devalier versus Texas. And

59:02

in this case, the Supreme Court ducked a question

59:05

about whether the takings clause provides a cause of

59:07

action that allows plaintiffs to sue if they say

59:09

they haven't received just compensation for a taking. And

59:12

the justices said they didn't have to resolve that question

59:14

because Texas law authorizes those suits for

59:16

taking without compensation. This was a unanimous

59:18

Thomas opinion. And although

59:20

the Supreme Court ruled for the petitioner, that

59:22

is the party other than Texas, and

59:25

vacated decision that had supported a judgment

59:27

for Texas, for some reason

59:30

Attorney General Ken Paxton took to

59:32

Twitter to proclaim that this was

59:34

a win for Texas. Literally, quote,

59:36

win. Today we secured a unanimous

59:39

9-0 win at the U.S. Supreme

59:41

Court. Not on the top

59:43

10 of the most insane and outrageous things

59:45

Ken Paxton has done in his career in

59:50

public service. But that was

59:52

so weird. No, just like the

59:54

why are you saying this bald

59:56

faced lie? Like, it's just ridiculous.

1:00:00

But proceeding on with the lightning round, we

1:00:02

also got the opinion in Muldrow versus the

1:00:04

city of St. Louis. This is the case

1:00:06

we've talked about before on the show. It

1:00:08

is the case about challenging employment transfer decisions.

1:00:10

In the case, the court held that an

1:00:13

employee who challenges a transfer decision under Title

1:00:15

VII must show that the transfer

1:00:17

negatively affected them or caused some harm to

1:00:19

the terms and conditions on their employment, but

1:00:21

that the harm need not be significant. The

1:00:24

lower courts, the Supreme Court said, had

1:00:26

held that employees have to show a

1:00:29

materially significant disadvantage from a transfer. This

1:00:31

was an opinion by Justice Kagan. That was

1:00:33

effectively 6 to 3, although the

1:00:35

three justices not with the six agreed

1:00:37

with the bottom line result of sending

1:00:39

the case back down to the lower

1:00:42

court. There were separate writings, concurring opinions

1:00:44

by Justices Thomas, Alito,

1:00:46

and Kavanaugh. Justice Alito wrote, quote,

1:00:48

I do not join the court's

1:00:51

unhelpful opinion. Just

1:00:53

the smallest man, the nastiest,

1:00:58

whatever. Whatever is going

1:01:00

on with him and Kagan right now, it is getting worse. It

1:01:03

just seems obvious to me. It is. And a part of me

1:01:05

makes me think whether he is

1:01:08

not getting what he wants in some of the

1:01:10

bigger cases, and that is producing some friction. So

1:01:12

if that happens, I feel like these were the

1:01:14

indications of that. But we'll see. Well, that's an

1:01:16

optimistic loss. That would be amazing if that's why.

1:01:19

The other one is that she's criticizing him, which of

1:01:21

course we know he can't handle, and that could also

1:01:23

explain some of the excitement. And the third is just

1:01:25

he's an abject misogynist. Right, yes. Any

1:01:27

of these three could all be contributing. Why not all

1:01:29

three? All three, yeah. So

1:01:32

this was a win for the employee and

1:01:34

petitioner. We wanted to offer congratulations

1:01:36

to Brian Wolfman of the Georgetown

1:01:39

Appellate Immersion Clinic, who had argued

1:01:41

the case. The petitioner had argued

1:01:43

for a standard that employees don't

1:01:45

have to show any harm beyond the transfer,

1:01:48

and the Supreme Court didn't go there, but

1:01:50

instead went with they have to show some

1:01:52

harm. And at least having listened

1:01:54

to the argument and talked about this with

1:01:56

you all, I think that is likely because

1:01:58

this is the case. case where some justices

1:02:01

had indicated they were interested in exploring possible

1:02:03

implications of the case for DEI programs and

1:02:05

specifically whether they could use this case as

1:02:07

a Trojan horse to bring them down. That

1:02:10

was kind of what justices Alito and some

1:02:12

others had been floating in argument and that

1:02:14

appears to have been warded off or at

1:02:16

least put off for another day by the

1:02:19

way that Justice Kagan wrote this opinion. Yeah,

1:02:21

I was going to say like hats

1:02:23

off to Justice Kagan. This actually reminded

1:02:25

me of when she dissented from the

1:02:27

majority opinion in Ramos back in 2020

1:02:31

and wasn't 2020 I forget they're all I think it was 1920.

1:02:34

Yeah, one of the one of those terms. But

1:02:37

that was a case where the question

1:02:39

there was the non-anatomy story rule in

1:02:41

Louisiana. And the majority wrote

1:02:43

this very long opinion about using

1:02:46

racist origins as a justification for

1:02:48

departing from starry decisis. And I

1:02:50

think she immediately sort of saw

1:02:52

the connection to Roe and

1:02:55

was like, nope, and joined Alito

1:02:57

and the chief to maintain

1:02:59

the precedent and to uphold the rule.

1:03:01

And so she does, I think, sort

1:03:03

of see the long view in a lot of cases.

1:03:05

And I think this here, I mean, it would have

1:03:08

been very easy to go with the no harm standard

1:03:10

and instead by inserting it, she, I think

1:03:12

cabins this opinion in a really important

1:03:14

way and safeguards DEI initiatives going forward.

1:03:17

And to that point, the NAACP

1:03:19

Legal Defense Fund issued this statement,

1:03:22

which sought to preempt any prospect

1:03:24

that Muldrow might be used to

1:03:26

gut workplace DEI measures by emphasizing

1:03:28

the narrowness of the decision as

1:03:31

they wrote, contrary to

1:03:33

what some have claimed, this decision

1:03:35

does not directly implicate programs that

1:03:37

create diversity, equity, inclusion and accessibility

1:03:39

DEIA. Unlike

1:03:41

the discriminatory transfer at issue in

1:03:43

Muldrow, DEIA programs generally do not

1:03:45

rely on race to determine the

1:03:47

terms and conditions of employment. The

1:03:50

NAACP statement called this quote, an

1:03:53

important victory for workers across the

1:03:55

nation, ensuring that Title VII protections

1:03:57

against racial discrimination are fairly applied.

1:04:01

So good result, deftly constructed opinion by Justice

1:04:03

Kagan. I mean, will she be able

1:04:05

to control its potential future distortion by

1:04:07

her evil colleagues? Probably not. But

1:04:10

for a couple of years, exactly. A PIA

1:04:12

lives. Yes, not for lack of time. It's

1:04:14

safe. No, that's true. One

1:04:16

more opinion in the lightning round. The

1:04:18

Supreme Court decided McIntosh versus United States,

1:04:20

a case holding that a district court's

1:04:23

failure to enter a preliminary order before

1:04:25

sentencing as contemplated by federal criminal rules

1:04:27

about forfeiture does not preclude forfeiture later

1:04:29

on. And this was another unanimous, such

1:04:31

a my or opinion. So we're done

1:04:33

with the lightning round. Now it's time to

1:04:36

bring the thunder because it's court

1:04:38

culture time. Exactly. We're so excited because there's

1:04:40

a lot of court culture to dig into.

1:04:42

And the first thing we want to get

1:04:45

into is something that we actually found to

1:04:47

be a quite alarming development. So we're going

1:04:49

to talk a little bit about Idaho's

1:04:51

ban on gender affirming care. And

1:04:53

this got before the Supreme Court

1:04:56

recently through the shadow docket. And the

1:04:58

court made a decision that allows Idaho

1:05:01

to enforce its ban on gender affirming

1:05:03

care for minors as to

1:05:05

everyone but the plaintiffs who challenged the

1:05:07

law. And again, the

1:05:09

court did this on the shadow docket.

1:05:12

It granted Idaho's request for a stay

1:05:14

of the lower court decision that enjoined

1:05:16

the care ban after finding it unconstitutional.

1:05:18

And I'm just going to

1:05:21

say maybe the court's going to

1:05:23

start making its bad decisions right now

1:05:25

because this is a really bad decision.

1:05:28

It doesn't definitively say the court's

1:05:30

views on the merits of this

1:05:32

case, i.e. about whether laws like

1:05:34

the one in Idaho are constitutional.

1:05:36

And most of the separate writings were devoted

1:05:38

to fighting about the court's use of the

1:05:41

shadow docket and whether the injunction in

1:05:43

this case should be treated as a

1:05:45

universal or nationwide injunction for

1:05:47

context about the fighting over whether

1:05:50

or not this was a nationwide

1:05:52

injunction. It was an injunction issued

1:05:54

by an Idaho district court. Idaho

1:05:56

only has one judicial district and

1:05:59

that district. covers the whole state and

1:06:01

the district court for the entire state

1:06:03

of Idaho invalidated this particular state law

1:06:06

on a pre-enforcement challenge. In that sense,

1:06:09

it's fairly anodyne relief, the kind of

1:06:11

relief that you typically expect in most

1:06:13

cases. So I'm not sure what the fight

1:06:15

about the nationwide injunction was about, but they

1:06:17

decided to have that fight anyway. So again,

1:06:20

this is a court that's going to have

1:06:22

lots of fights about lots of things, even

1:06:24

when they're not obviously on deck in any

1:06:26

particular case. Yeah. And as Melissa mentioned, you

1:06:28

know, this ruling does not definitively indicate how

1:06:30

the Supreme Court will ultimately rule. It still

1:06:32

does send a pretty strong signal. And

1:06:35

that's in part because I think this is

1:06:37

sort of implicit in somewhat what you just

1:06:39

said, Melissa. The concerns about nationwide injunctions just

1:06:41

aren't present in this case, despite some of

1:06:43

the justices' efforts to insist that they were.

1:06:45

Again, this is a district court. Its injunction

1:06:47

just covered a state invalidating a state

1:06:49

law, and this case involved a

1:06:52

pre-enforcement challenge. So there were not concerns about

1:06:54

a lower court wiping a law off the

1:06:56

books all of a sudden, which some of

1:06:58

the justices have voiced by way of concerns

1:07:00

about these injunctions. Rather, the

1:07:02

Supreme Court here disrupted the status

1:07:04

quo in allowing this law to

1:07:06

go into effect and didn't really

1:07:09

have any basis to criticize the district court

1:07:11

for doing that because the law was not in effect

1:07:13

in the first place. And as this passage from

1:07:15

Justice Gorsuch's opinion suggests, quote,

1:07:18

likewise, this court is held that there's always

1:07:20

a public interest in prompt execution of the

1:07:22

law, absent a showing of its unconstitutionality. And

1:07:25

that's really scary and concerning given the

1:07:27

rash of caribans targeting the trans community, particularly trans

1:07:29

minors. And just to maybe say one more word

1:07:31

about the Gorsuch writing and why it's

1:07:34

so concerning, obviously there was a showing

1:07:36

of unconstitutionality. The district court that took a

1:07:38

very careful look at this law before it

1:07:40

went into effect concluded based on liberty

1:07:42

and equality principles that this law obviously

1:07:45

violated the rights of these kids and

1:07:47

their parents who were the plaintiffs in

1:07:49

this lawsuit. And Gorsuch is

1:07:51

clearly signaling he's not substantively constitutionally concerned

1:07:53

about this statute going into effect. And

1:07:55

that is really terrifying. Yeah,

1:07:57

someone needs to send him the leave trans kids

1:07:59

alone. you freak t-shirt from the

1:08:01

crooked store. So

1:08:03

the vote in this case, the Idaho case,

1:08:05

was probably 6-3, although technically the

1:08:08

Chief Justice did not indicate his vote. The

1:08:11

dissenters, of course, were the Democratic appointees.

1:08:13

Justice Kagan noted she would deny the

1:08:15

application. Justice Jackson, joined by Justice Sotomayor,

1:08:17

wrote to explain the denial. Justice Gorsuch,

1:08:19

as Kate was noting, issued a concurring

1:08:21

opinion that was joined by Justice Thomas

1:08:23

and Alito, the three horsemen. And then

1:08:26

Justice Kavanaugh, joined by Justice Barrett, also

1:08:28

did the same kind of explaining why

1:08:31

they granted this day. And it did

1:08:33

the same hemming and hawing about what is the

1:08:35

status quo that Justice Barrett had done in her

1:08:38

SB4 concurrence, even though again, in this

1:08:40

context, kind of clear what the

1:08:42

status quo is because it's a pre-enforcement

1:08:44

challenge to a state law. And then,

1:08:47

I don't know, I read this

1:08:49

and I was very annoyed both by the

1:08:51

Kavanaugh writing and the Gorsuch writing. And the

1:08:53

Kavanaugh writing had this line where he's like,

1:08:55

I fully agree with Justice Barrett's important insight

1:08:57

that the Supreme Court should consider a certain

1:08:59

worthiness in assessing whether someone has made

1:09:02

a likely showing of success on

1:09:04

the merits. And it's just like, Brett,

1:09:06

she's smarter than you. You

1:09:08

don't need to say she made a good point. Everyone

1:09:10

knows she's smarter than you. And I

1:09:13

don't know, it's just that little bit

1:09:15

annoyed me. And then the Gorsuch writing

1:09:17

did what I have repeatedly

1:09:21

just been so annoyed by, which

1:09:24

is it conflates and equates the

1:09:26

injunction against the Idaho law here

1:09:28

with the injunctions in Murthy, the

1:09:30

social media case, the job owning case, and The

1:09:33

Miffer-Pristone case, Hippocratic medicine, saying, oh,

1:09:35

well, this court granted emergency relief

1:09:38

in those cases where lower courts

1:09:40

had enjoined the federal government from

1:09:42

literally talking to social media companies

1:09:44

and had yanked an approved drug

1:09:46

off the market. So, sure, we

1:09:49

can do so here. And Just

1:09:51

like the false equivalencies, that is

1:09:53

their language and the decision making

1:09:55

register in which they traffic. And

1:09:57

It's just so annoying. Some.

1:10:00

Other court culture on this time

1:10:02

from Arizona where the Republicans continue

1:10:04

to block any effort to repeal

1:10:06

the eighteen Sixty Four abortion ban

1:10:08

which I guess we could also

1:10:10

equate to the Republicans allow the

1:10:13

cease eating leopards to eat their

1:10:15

own season over and over again.

1:10:17

So you all will call that.

1:10:19

In the wake of the Arizona

1:10:21

Supreme Court's absolutely horrific decision to

1:10:23

allow the enforcement of an Eighteen

1:10:25

Sixty Four ban on abortion, many

1:10:27

Arizona Republicans seemed to be it's

1:10:29

really opposed. To the enforcement of

1:10:32

this law, Perhaps recognizing that politically

1:10:34

this was a devastating thing to

1:10:36

do for their party's prospects in

1:10:39

the upcoming election again. Sensing.

1:10:41

That resuscitating a zombie law that with

1:10:43

pass at a time when women could

1:10:45

not vote in the age of consent

1:10:48

was twelve. The news: we're not the

1:10:50

makings of great politics. Even the National

1:10:52

Republican Party had tried to distance itself

1:10:54

from all of this nonsense with many

1:10:56

prominent Republicans including Donald Trump and Senate

1:10:58

candidate Carry Lake signaling their disagreement with

1:11:01

the court's decision allowing the it insists

1:11:03

he for bad she be enforced Even

1:11:05

like this is just so maddening because

1:11:07

carry weight had been seemingly singing the

1:11:09

praises of this eighteen sixty. Four largest

1:11:11

last year and the year before sunset

1:11:13

a fucking lame lady and Donald Trump

1:11:15

appointed the justices who cleared the way

1:11:17

for the air That a Supreme Court

1:11:19

to revise is eighteen Sixty Four Complete

1:11:21

total abortion ban like day On this

1:11:23

this is what you did say that

1:11:25

we are. Consistency is only for democrat.

1:11:27

so much snow, they were for it.

1:11:29

As or they were dumb set or and I'm a habit

1:11:31

of before they were for at least. Anyway,

1:11:34

despite all of these entreaties to

1:11:36

save themselves politically, the Arizona G

1:11:38

O P would much rather party

1:11:40

like it's Eighty Ninety Nine. Or

1:11:42

even Seventeen Ninety Nine in this

1:11:44

case. Oh, it's very hard to

1:11:46

tell. The State legislature, which is

1:11:48

very narrowly divided, but where the

1:11:50

republicans had a slight majority, very

1:11:52

tellingly decided to beat back a

1:11:54

democratic led. Effort to repeal the

1:11:56

eighteen Sixty Four Lol. It's the democrats

1:11:58

are trying to help. out generally,

1:12:00

but it would have helped the Republicans. And they

1:12:02

were like, no, we actually want this zombie law.

1:12:04

We want to hurt everyone, women and ourselves. Yeah,

1:12:07

and just to underscore that, they literally blocked

1:12:09

an effort to hold a vote. The

1:12:12

perfect encapsulation of how this dob's

1:12:15

line of returning the issue to

1:12:17

the political process and the state

1:12:19

legislatures is just a joke, because

1:12:21

they will bulldoze through democracy. If

1:12:24

democracy stands in the way, we

1:12:26

only want democracy that is actually

1:12:28

anti-democratic, like gerrymandered democracy. And

1:12:31

democracy that's the board of next women. And

1:12:34

as you were alluding to the

1:12:36

decision to leave this law in place,

1:12:38

it might be good for electoral politics

1:12:41

for Democrats in the sense that it

1:12:43

seems likely that the move will activate

1:12:45

progressive voters in the swing state, but

1:12:47

it is absolutely awful for pregnant people

1:12:50

in Arizona who have to live under

1:12:52

a law that literally allows for no

1:12:54

exceptions unless a pregnant person's life is

1:12:56

in danger, a medical assessment that can

1:12:59

be second guessed by law enforcement. Just

1:13:01

this past week, the Associated Press did

1:13:03

a story about some of the people

1:13:05

who miscarried in the lobby restroom of

1:13:07

an ER after they were refused admission. Or

1:13:09

the woman who learned that her thesis had

1:13:12

no heartbeat. And the day after a security

1:13:14

guard turned her away from the facility, a

1:13:16

woman who gave birth in a car after

1:13:18

an ER wouldn't offer an ultrasound, and

1:13:21

the baby later died. That is what

1:13:23

the Republicans in Arizona are like, yes,

1:13:25

that is our status quo. And the

1:13:27

harrowing details of that AP piece, I mean, people really should

1:13:29

read it because it's one

1:13:31

absolutely horrifying account after the next. And that

1:13:34

is what this has enabled. Another

1:13:37

piece to read about all of

1:13:39

the misjaguness that's happening in Arizona is

1:13:41

an op-ed written in the LA

1:13:43

Times by Arizona State University law

1:13:45

professor Caitlin Millott. She's an assistant

1:13:47

professor at Arizona State.

1:13:49

And she's currently pregnant right now. And

1:13:52

she talks about how this

1:13:54

is a high risk pregnancy for her. And

1:13:56

the genuine fear that she feels right now

1:13:58

living in a state of state where

1:14:00

the only prospect for an abortion

1:14:03

if something goes wrong is someone recognizes

1:14:05

that it's a threat to her life

1:14:07

and that that may be a very

1:14:09

sort of shifting calculus depending on

1:14:12

the timing of things. It's a really terrific

1:14:14

op-ed, a really interesting perspective that

1:14:16

we don't always get from the legal

1:14:18

academy. So applause to Caitlin for

1:14:20

what is a very personal and

1:14:22

courageous writing. Yeah, shout out to Caitlin

1:14:25

for that and also just terrific up and

1:14:27

coming scholar. Everyone should give an eye on. Whose

1:14:29

work we've mentioned on the show before. And

1:14:32

finally, because no court culture segment

1:14:34

is complete without some mention of

1:14:36

the Fifth Circuit, we need to

1:14:38

cover Judge Jim Hoe's audition for

1:14:41

the next terrible, horrible, no good,

1:14:43

very bad Supreme Court justice. And

1:14:46

this audition came in the form of

1:14:48

a speech to the Midland County Bar

1:14:50

Association, which of course he allowed a

1:14:52

Volok conspiracy blogger to republish because this

1:14:54

is what federal judges do these

1:14:56

days. The speech is about judge shopping and

1:14:58

why it's good actually, or at least why

1:15:00

the judicial conference was wrong to try and

1:15:02

take Matthew Kastmerich out of the business of

1:15:04

being chief everything for the United States. So

1:15:06

why don't we just pick through a few

1:15:09

highlights? Okay, I'll go first.

1:15:11

Here's one that I actually love. This

1:15:13

is a statement from Judge Hoe in

1:15:15

his audition slash speech, quote, but

1:15:17

lately some critics of the judiciary

1:15:20

have chosen to bemoan rather than

1:15:22

celebrate the fact that many Americans

1:15:24

across the country are served by

1:15:26

a single local federal district judge,

1:15:28

end quote. Talk

1:15:32

about false equivalencies

1:15:34

like my goodness.

1:15:36

There's elites with all of their

1:15:38

different district court judges in a big

1:15:40

district like the Southern District of New

1:15:42

York just laughing at us down in

1:15:44

Amarillo. Some

1:15:47

of us, there's just one garden scene in which we

1:15:49

can be painted with some of our closest friends. It's

1:15:51

not like an enormously expansive garden. There's just one. There's

1:15:54

just one fountain to purge in front of. Yes,

1:16:00

please, please. Quote,

1:16:02

I spend many of my weekends

1:16:04

in a small, one-stop-like town in

1:16:06

Texas. We have just one

1:16:08

supermarket in that town. Now,

1:16:10

do I immediately assume that something

1:16:12

illegal or untoward has happened just

1:16:15

because there's only one supermarket? End

1:16:17

quote. Supermarkets are not

1:16:19

federal court. Also,

1:16:21

the liberals want to make your

1:16:24

supermarkets illegal is what he seems

1:16:26

to be saying. I

1:16:28

really thought that this was

1:16:30

his audition for a Harlan

1:16:33

Crow-funded biopic about him where

1:16:36

he would say, I'm for regular stuff. I

1:16:38

like the RVs in the parking lots, so

1:16:40

they could play that line again. I park

1:16:43

my RV at HEB, and I just end

1:16:45

up with one supermarket in my small Texas

1:16:47

town. I thought he lived in Dallas. When

1:16:50

is Dallas a small Texas town? Okay,

1:16:52

can I do one final one? Please, please. All

1:16:55

right, all right. Quote,

1:16:59

look, I get what the critics

1:17:01

are doing. This isn't about forum shopping. It's

1:17:04

about forum shaming. It's

1:17:07

about shaming judges who won't distort their

1:17:09

rulings to do their bidding while

1:17:11

rewarding those judges who do. End

1:17:14

quote. The

1:17:16

guy, do both start with S,

1:17:18

so good job. But

1:17:20

he doesn't just go after the judicial conference.

1:17:22

He decides to go after the Chief Justice

1:17:24

as well in that speech. Again, I guess

1:17:27

that's part of the audition tape, but I

1:17:29

was pretty startled by

1:17:31

it. Okay, read it, Kate. Okay, okay.

1:17:34

It's also important to say what he went after the Chief

1:17:36

Justice. Okay, let me read it, and then I'll explain. So,

1:17:38

quote, many of us thought it was strange when

1:17:40

back in 2018, the Chief Justice criticized the sitting

1:17:43

President of the United States for criticizing a federal

1:17:45

judge. So,

1:17:47

what Ho is referring to here is

1:17:50

Chief Justice Roberts back in 2018 actually went after

1:17:53

then President Trump after Trump lashed

1:17:55

out at a district court judge in San Francisco

1:17:58

who had ruled against his asylum. policy

1:18:00

and he called that judge a,

1:18:02

quote, Obama judge. And

1:18:04

then someone called John Roberts and asked for a quote,

1:18:07

what do you think about the sitting president attacking judges

1:18:09

for ruling against him? And Roberts issued a very rare

1:18:11

statement basically saying there are no Obama judges

1:18:13

or Trump judges. We just have all these

1:18:15

federal judges working hard trying to do their level best. And

1:18:19

it was for a sitting chief justice

1:18:21

a pretty sharp rebuke of a

1:18:23

president and who's mad about

1:18:26

that rebuke six years later, will not let

1:18:28

it stand. Jim Ho really,

1:18:31

really trying to audition for a potential

1:18:33

future president Trump and you know, trying to

1:18:35

make sure that if there's a vacancy that

1:18:37

he's the next he's the next justice appointed to

1:18:39

the Supreme Court. It's

1:18:42

a great audition. It was as

1:18:45

a great audition and he was

1:18:47

like, light camera, bitch, smile. I

1:18:49

am ready. FYI, I

1:18:51

mean, truly, I think if Donald Trump wins

1:18:53

the presidency, Justice Ho

1:18:55

is not a far gone conclusion. Even

1:18:57

if there's no vacancy, right?

1:19:00

It's no legislation. Just

1:19:05

put him on there and you know, he's going to stop him. Oh,

1:19:08

God, I can't believe I said that. What if he doesn't? Let's

1:19:11

let that end in a very somber. Before

1:19:15

we go, just one issue. A reminder, we are out

1:19:17

of time to talk substantively about any of these cases,

1:19:20

but we have an enormous week of arguments coming up.

1:19:22

This includes arguments about whether states can

1:19:25

prevent emergency rooms from providing appropriate care

1:19:27

to pregnant patients who are in extreme

1:19:29

distress. Also, the court

1:19:31

is going to consider whether the president is

1:19:33

absolutely immune and can never be prosecuted no

1:19:36

matter what horrific crimes he commits. And

1:19:39

we're talking about possible prosecution after he has

1:19:41

left office. So we will be

1:19:43

watching and listening to all of that, alternating at

1:19:45

least a couple of us will be between those

1:19:47

horror shows and the tortured poets department. And

1:19:50

we will fill, we will identify connections between

1:19:52

the two and bring all of

1:19:54

those to you in our next episode. And

1:19:56

that is a great segue. This is

1:19:58

the final call to submit. questions or

1:20:00

topics of discussion for the grab bag

1:20:03

episode. We are going to be holding Strict

1:20:05

Scrutiny office hours where we answer

1:20:07

your questions and discuss topics of your

1:20:09

choosing. So please submit the questions today

1:20:11

and we will do our best to

1:20:14

listen to them. And I just want to

1:20:16

say thank you to all of the listeners

1:20:18

who have pointed out that Taylor Swift is

1:20:20

indeed a Strict Scrutiny listener for releasing a

1:20:22

track called Cassandra in which, you know, the

1:20:24

lyrics are literally so they killed Cassandra first

1:20:26

because she feared the worst and tried to

1:20:28

tell the town. So they filled my cell

1:20:30

with snakes. I regret to say, do you

1:20:32

believe me now? Like this is literally about

1:20:35

being a Cassandra. Exactly. So

1:20:37

I'll just, you know, offer it once

1:20:39

more. Taylor Swift invitation still stands to

1:20:42

come on the podcast. You know, you

1:20:44

listen, girl. Exactly. We know you're listening.

1:20:46

Exactly. Don't make us beg, but

1:20:48

I will. She will. It's

1:20:50

true. Well, the better woman would be about begging, but

1:20:52

I'm not. Also, if you

1:20:54

are in the market for some excellent merch,

1:20:56

you should know that book bands are on

1:20:59

the rise and it's on us to fight

1:21:01

back and you can fight back by going

1:21:03

to the crooked store where there is a

1:21:05

flash sale on all free the books merchandise.

1:21:07

So take a look at it. Free the

1:21:09

books. Tees, sweatshirts and magnets are 30% off,

1:21:12

but the sale won't last long. So make

1:21:14

like a conservative who just found out that

1:21:16

your local library has a book with a

1:21:19

gay character and run on over there and

1:21:21

jump on it. All right. Get on that

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sale. How's a crooked.com/store to shop

1:21:25

before the sale ends. Strix

1:21:36

scrutiny is a crooked media production hosted and executive

1:21:38

produced by Leah Littman, Melissa Murray and me. And

1:21:49

if you haven't already, be sure to subscribe to Strix

1:21:51

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an episode. And if you want to help other people

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find the show, please rate and review us. It really

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helps. You

1:22:10

didn't hear this from me, but Normal

1:22:12

Gossip is back for its sixth season.

1:22:14

Join host Kelsey McKinney as she shares

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the juiciest gossip from the real world.

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Each episode she's joined by a special

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guest, and you might recognize a couple

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this season from the Radio-Topia universe. Normal

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Gossip is out now on all your

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favorite podcast platforms. New episodes are out

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now.