Advisory Opinions - Supreme Court Narrows 2020 Ruling on Tribal Lands

Episode Date: June 30, 2022

On Wednesday, the Supreme Court ruled that Oklahoma state authorities can prosecute non-Indians who commit crimes against Indians on Indian reservations. Narrowing its 2020 decision in McGirt v. Oklahoma. David and Sarah then debate the case for prosecuting Donald Trump after this week’s surprise January 6 hearing. They also look at a surprising death penalty decision from last week.   Show Notes: -Torres v. Texas Department of Public Safety -Oklahoma v. Castro-Huerta -French Press: “The Case for Prosecuting Donald Trump Just Got Much Stronger” -Nance v. Ward Learn more about your ad choices. Visit megaphone.fm/adchoices

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To hear them in person, plan your trip at tnvacation.com. Tennessee sounds perfect. You ready? I was born ready. Welcome to the Advisory Opinions Podcast. I'm David French with Sarah Isker. And Sarah, we've got more SCOTUS stuff to talk about. Well, there's actually so much SCOTUS stuff to talk about that we're not going to be able to get to it all, but we're going to get to as much as we can. So we're going to talk about a new case handed down today, fascinating case where Justice Gorsuch joined the three progressive

justices in a dissent. And we'll give you one guess, one guess as to what the topic was that led him to dissent with the three progressive justices. Then we will talk about the January 6th commission from a legal standpoint, not the political stuff that we talked about on Dispatch Live last night, plug on Dispatch Live last night, plug for Dispatch Live, which I thought was a really good discussion, from a legal standpoint, whether any of the evidence that was disclosed yesterday or alleged by Cassie Hutchinson, Mark Meadows' former aide, was legally significant for a potential Trump prosecution, was legally significant for a potential Trump prosecution,

some SCOTUS potpourri. And if we have time, then we're going to talk about a well-regulated militia. So, Sarah, do you want to start us off with some SCOTUS? Yes. So, first of all, we finally got an announcement tomorrow, David, Thursday. It's the final hand down. Do-do-do-do. Do-do-do-do. Okay. So, that means tomorrow we will get the EPA case on climate change.

This will be a big decision, I think, on who has the power, Congress or the executive branch. And the Migrant Protection Protocols case we are still waiting on, that's an immigration case. Although, frankly, we're kind of expecting that to be 9-0. It was the last case to argue. That's why I think it's hanging on until the end here. The EPA case, I actually just expect to be really long. But today, we got a state sovereign immunity case. And who doesn't love state sovereign immunity? Actually, everybody. This is super interesting. So this is when you can sue

a state under the Constitution. You actually can't sue a state. We've talked about this in the abortion context in that Texas SB8 law. That's why they created that, because there was no one to sue. You can't sue the state of Texas. You have to sue an enforcing official. And the reason you can't sue the state of Texas? State sovereign immunity. So it's been interesting. That's like a thing going up the Supreme Court where state sovereign immunity has gone up. It's gone down. There was a case recently, if you remember, on eminent domain that because the Constitution said you were entitled to compensation, that that abrogated state sovereign immunity. Similarly here, the court held that the war powers of Congress allowed it to abrogate state sovereign

immunity in limited circumstances. David, what made this case particularly interesting for just casual court watchers is that the majority was Breyer, Kagan, Sotomayor with the chief and Kavanaugh. Yeah. And it makes sense, right? Like the institutionalists maybe aren't the biggest fans of state sovereign immunity because the idea that you just sue an official has always been a bit of a legal fiction. So if you want to sort of have just a well-ordered country, state sovereign immunity can get in the way. But David, this brings

us to our next case because this is the most institutionalist versus non-institutionalist case ever. Well, second ever because McGirt was the first one. Well, wait, wait, wait. We didn't say how the sovereign immunity case came out. Oh yeah, you can sue the state. So the state's sovereign immunity is abrogated by Congress's war powers. Yes, and this is an interesting case

because it actually deals with something that I dealt with a lot in my time in the Army Reserves, which is the Uniformed Services Employment and Reemployment Act, USERRA, which basically says if you go and you deploy, you get to kind of sit, go right back. If you have to deploy, you get to go back to your employment and sort of fit in exactly where you would have been had you not left. So in other words, your deployment cannot sort of harm your career prospects. It can't harm your job. And in this case, Torres said that he worked on burn pits, which, by the way, I read this and I was like, oh,

I spent a lot of time around burn pits in Iraq. And anyway, it gave him a condition called constrictive bronchitis. And so he requested accommodations of his employer, which was Texas Department of Public Safety. Now, if he had requested accommodations for his bronchitis in a private employment situation, he would have gotten those accommodations. But Texas said, no, come on, Texas, support the troops. Sarah, what do you have to say for Texas here? Texas is used to losing at the Supreme Court, frankly. I mean, Texas loses all but two of its death penalty cases ever, I think. Yeah, yeah. So they're used to it.

Yeah. Okay, but it's Indian country time, David. Oh, I know. I mean, this actually has been a big deal. So McGirt, this is the majority opinion from a couple terms ago where Justice Gorsuch writing for the majority says, oh, dear Oklahoma, you are mistaken. All of that is now Indian territory, including the city of Tulsa. And we're not going to really discuss for what purposes that

might be Indian territory, but it just, it is. It is not under state control. This caused havoc. And obviously the state of Oklahoma wanted to go up again on the question. This time they went up on a non-Indian committing a crime against a tribal member. In this case, his five-year-old stepdaughter who he had horribly abused. Um, well, let me just give you the punchline. The punchline is McGirt gets seriously narrowed. The majority, not with Gorsuch, finds that the state has concurrent jurisdiction to bring criminal cases against non-Indians who committed crimes against tribal members on Indian land. on Indian land.

So in this case, the city of Tulsa, Oklahoma. David, I don't know, man. I still think Gorsuch has the better argument here. And you know that because the majority opinion keeps citing all the practical consequences of what's happened since McGirt.

All of these cases now in backlog. The federal prosecutors do not have the resources to bring what would otherwise be this just glut of state criminal prosecutions. And therefore, people are getting prosecuted,

are getting pled way, way down because of the resource problem. Or the previous convictions are having to be revisited, pled down, not retried, people released. I totally understand. Tons of practical consequences. And do you know who could fix that?

Congress. Yes. Yes, indeed. Yes, indeed, Sarah. Congress could fix that. And, you know, this is one of those, we see a pattern with Gorsuch, right, on these cases that it's not just where that he is, this is his area. Like if you're going to say, what is the thing that where a justice stands out from the other justices in sort of knowledge and commitment to a line of authority, and this is Gorsuch.

knowledge and commitment to a line of authority. And this is Gorsuch. And he has this pattern, right, where he begins with history. And he talks about history. And he begins his descent with history. And I think that this is really, really interesting. So he begins like this. In 1831, Georgia arrested Samuel Worcester, a white missionary, for preaching to the Cherokee on tribal lands without a license. Really, the prosecution was a show of force, an attempt by the state to demonstrate its authority over tribal lands. Speaking for this court, Chief Justice Marshall refused to endorse Georgia's ploy because the state enjoyed no lawful right to govern the territory of a separate sovereign. The court's decision was deeply unpopular, and both Georgia and President Jackson flouted it.

But in time, Worcester came to be recognized as one of this court's finer hours. The decision established a foundational rule that would persist for over 200 years. Native American tribes retain their sovereignty and lessen until Congress ordains otherwise. Worcester proved that even in the courts of the conqueror, the rule of law meant something. Now here's the killer line that follows next, Sarah. Where this court once stood firm, today it wilts. So David, first of all, is it Worcester or Worchester? Whatever that case

is actually called. It's the bookend to Chief Justice John Marshall's tenure. So if you feel like Chief Justice John Marshall is on the court forever, he was. He was the Chief Justice from 1801 to 1835, which is just going to encompass all of these incredibly important cases from McCullough v. Maryland at the beginning of his tenure and this case in 1832 at the end of his tenure. And I understood why Justice Gorsuch did not include the famous line from Andrew Jackson about this case. This case is maybe best known for Andrew Jackson's response to it, not the actual facts of the case, where a sitting

president purportedly says, John Marshall has made his decision. Now let him enforce it. Meaning that in fact, the president would ignore the Supreme Court, that he was the executive branch and would do whatever he wanted, sort of his own version of nullification. Now, as it turns out, that might be an apocryphal quote. In fact, it almost certainly is since the first time it ever appears is 20 years after his death. But nevertheless, it captures a feeling, David. And sometimes, no, that's not true. I hate apocryphal quotes. You guys know that. I go to great lengths to debunk them. But it is the case that President Jackson absolutely flouted that law and led to the trail of tears.

Right. Absolutely. And, you know, it's interesting to me, and this is something that is sort of fascinating to me about constitutional history and the history of the Supreme Court. So it is not the case if you sort of look back on the pre-Brown versus Board of Education court, that it was sort of this howling wilderness of oppression, right? So the same court that says that Korematsu, that in Korematsu upholds Japanese internment, also in West Virginia v. Barnett,

says, no, even in the middle of World War II, you preserve your rights of conscience and you can't be required to salute the flag, which is a remarkable ruling in a time of existential threat to the country. But then, at that same time, they do Korematsu. And if you go back to early supreme court precedent you know here's a court that's sort of presiding over um the institution of slavery it's presiding over you

know in a few years it would decide dred scott and then here in the midst of all of that it you know puts it decided one of its you know it reaches one of its prouder moments or it decided one of its, you know, it reaches one of its prouder moments, or it has one of its prouder moments. This is really kind of a microcosm of American history, this sort of American history, which is often three steps forward, 2.9 steps back. But at the end of the day, there is a steady progress. I just found that interesting. If you were going to say, when was an example where the Supreme Court stood against American oppression? And you'd say, hey, 1831, it did it. Didn't work, sadly, unfortunately, but it did it. And I thought it was an interesting microcosm or illustration of the complexity of American history.

And fascinating, by the way, that you have a case revisited so quickly on this court. Now, the majority never says they're overturning McGirt, but they simply define McGirt very narrowly. They say that the court decided in McGirt that these tribal lands were still in effect and then just doesn't say anything else that McGirt says. And you have Gorsuch in the dissent being like, well, that's not all that McGirt said. It said all this other stuff. But from this point forward, Oklahoma now concurrent jurisdiction with the federal government and tribal authorities to prosecute those state cases, which basically, A, puts this all to rest. We're not going to really hear any more about it, I don't think. And B, totally takes the pressure off Congress to do anything, which we've seen time and time again.

time and time again. I'm very frustrated because I've made the point that if you care about climate change, for instance, you want the EPA to lose in this upcoming climate change case for the very reason that if the EPA wins, it means Congress won't do anything. Here, I guess the Supreme Court felt like they gave Congress a couple of years. Congress didn't do anything. So they're stepping back in. I just That's not philosophically consistent with what this court thinks in other places. Yes, right. And I think, yeah, that's very well said. And now that you raise EPA, and you raise the court making Congress do its job, here's the interesting tension there, Sarah, just as a practical matter. I mean, I think the court should decide on the law and the facts, even if by punting back to Congress, Congress doesn't rise to the occasion, which is entirely

possible. Congressional inaction is not proof that they abrogated their duty. I've used the word abrogated way too much in this podcast. Sorry, folks, I'm out of words today. Congressional inaction in and of itself can be seen as a choice. Right, absolutely. And so here's the interesting conundrum, or here's the interesting thing the American people might face, is that it's entirely possible, and we should leave open the possibility and maybe even call it a probability, that even as the Supreme Court properly rules that a lot of things that have been punted to the executive branch should not have been punted and that the Constitution does not permit them to be punted, and even when these are issues of urgent need for congressional intervention, Congress just may not and, can we say, probably won't intervene.

the consequences of congressional failure get worse before there is sufficient demand for things to get better. And I feel like we might be in that position in a lot of fronts, Sarah, to be honest, that I think the aftermath of Dobbs, a lot of things can get worse before they have the possibility of getting better. In other words, a democratic compromise that sort of settles the abortion issue democratically. We could have a lot of things get worse before they get better. And the same with punning things back to Congress. Things could get worse before they get better. And all of these things getting worse before they get better are landing in a moment of extreme partisan dysfunction. So on that happy note, that's a good preview for EPA. That is. Just a note to listeners, we would ordinarily take this Monday off because it's July 4th, but we're going to have the final

hand-down day of opinions this week. So all of the remaining cases are going to have the final hand down day of opinions this week. So all of the remaining cases are going to come out. So we can't just leave that hanging. So we're going to do something very risky. Just, I'm going to go ahead and warn everyone, Sarah, we,

because producer Caleb is going to be taking much deserved time off on July 4th, like all decent people should be doing. So we are going to record it ourselves. Yeah, last time it didn't go well. Was it perfect? It wasn't perfect last time. But we're going to try again. And producer Caleb has given us a warning that this is our last chance. Yes, we have to do this right. Yes, it is our last chance. All right, so you'll get the regular podcast Tuesday like you normally do, and this will include EPA and the immigration case. Don't you worry, but no emergency podcast. No emergency

pod. Yeah, yeah. We've been putting a ton of advisory opinions content into the field. So this is kind of going to be an emergency because we wouldn't have ordinarily recorded. It's just delayed. That's true. This ad for Fizz is only 25 seconds long, but we had to pay for 30. Those leftover five seconds shouldn't just disappear, right? It's kind of like what happens to your unused mobile data at the end of each month. Except at Fizz your unused mobile data at the end of each month. Except at Fizz, your unused data from the end of the month rolls over so you can use it the next month.

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So, Sarah, let's do something a little different because you, and I sympathize with you because you find yourself often in this position where you're the one who is when, you know, Jonah or me or Steve is saying, you know, I think this is a real problem for Trump. You're often the person who, sometimes you disagree with this, you know, you actually disagree with this.

Sometimes you feel rightly that somebody's got to play devil's advocate to make this an interesting conversation and to sort of push everybody's reasoning. So you're always in the position, it seems like, and of being the Trump, Donald Trump defender, right? It's reasoning. So you're always in the position, it seems like, of being the Donald Trump defender, right? It's true. And let me give a third reason also. Sometimes I agree with myself. Sometimes I think we want to have an interesting podcast.

And sometimes it makes it sound like it's the obvious answer, whatever you guys are saying, when it's in fact not at all obvious or maybe not even the majority like legal opinion. Right. So yeah, which are all good reasons to do it. But a lot of times listeners don't quite understand what's going on and it gets cast as Sarah Trump supporter, David, Jonah, Steve, Trump, you know, Trump critics. It's true. Yeah. And so it can be frustrating at times, which can be absolutely frustrating. you know, Trump critics. It's true. Yeah. Which can be frustrating at times. Which can be absolutely frustrating. So we're switching. But it's my own fault because I don't actually say what I'm doing.

I should say, like, I agree with this or I don't. But, like, I actually sort of like, it's frustrating at times, but also I kind of like that people don't necessarily know what I believe on certain issues. I can argue many different sides. Well, exactly. No, I think it's great. But we're going to switch around today. So today, I am going to be Donald Trump's defense attorney, and you are going to be Donald Trump's prosecuting attorney on the charge of incitement. on the charge of incitement, okay? And the reason why I feel compelled as Donald Trump's defense attorney to rise to the occasion to defend him is because people like you, Sarah, are reading too much into Cassie Hutchinson's testimony. And Cassie Hutchinson's testimony does not change the actual text of Donald Trump's speech on January 6th.

This is exactly the opposite of the case that you made in your newsletter. So if people want to hear in David's own voice the other case instead of through my voice, feel free to check out his newsletter or Liz Cheney's tweet about it. How dare you, Sarah, direct people to specious arguments while we're in the middle and you're interrupting my opening argument. My goodness, this is. So anyway, so here here is and let me do some just some flat out legal table setting, if you don't mind.

For sure. So the legal table setting is there are two cases that really deal, that are, that are two cases that are, have not been overturned. They are controlling law as of now, settled precedent as of now regarding the concept of when can you prosecute somebody for inciting violence. The first one is a case called Brandenburg versus Ohio. We've actually talked about this before in this podcast about this very issue. And in Brandenburg, what you had was two videotapes of a Klan leader who was addressing small numbers of Klansmen. In one, there was a burning cross.

It was about a dozen people. In another one, there was no burning cross. There was about six people. Some of them were armed. And he called for a march on Washington, Florida, and Mississippi and threatened, quote, revengeance if the president of the United States continued to, quote, suppress the white Caucasian race. He was arrested, he was convicted, and the Supreme Court threw out the conviction. And it said that, look, you can threaten violence or disorder. In other words, you can say the government should be overthrown. A mob should attack the Capitol. You can say all of that unless the advocacy is, quote, directed to inciting or producing imminent lawless action

and is likely to incite or produce such action. Okay, so that's 69. In 1972, there's a case called Hess v. Indiana, which is much less well-known, and it just sort of fleshes out the Brandenburg test, or re-emphasizes it. And this is one where an anti-war demonstrator is arrested after saying, we'll take the effing street later, or it was conflicting testimony, could be, we'll take the effing street again. And the court said, nope, nope, nope, can't arrest him for disorderly conduct because his words were, and this was sort of a shortening of Brandenburg, much even more concise Brandenburg. His words were not, quote, intended to produce

and likely to produce imminent disorder. So intended and likely to produce imminent disorder. So it's got to be intentional. It's got to have a probability. So there's an intentionality, there's a probability, and there's an imminence. So you got to have all of those things in play if you're going to get somebody for incitement. And Sarah, all of those things are just not in play. And you know how I know they're not in play? Because Donald Trump, in his own words, said we should peacefully,

not we, like I'm his defense attorney, I wasn't his rioter. He said that his supporters should peacefully and patriotically make their voices heard. And all of the other rhetoric like fight like hell or you have to be strong or all the other rhetoric from other speakers at the January 6th rally, what Trump did was, yeah, he intended to send people to the Capitol, but he intended as his own. And what better evidence is there of his intent than his words? And by his words, he said peacefully and patriotically. And yeah, there's evidence he knew the mob was armed, but a lot of folks are kind of twisting that evidence, Sarah. How dare they?

And what they're twisting the evidence is that they're sort of saying that, like Liz Cheney emphasized the word me. So here's the evidence that what Trump said about the crowd. This is what Cassie Hutchinson says she heard Trump say. You know, I don't effing care that they have weapons. They're not here to hurt me. Take the effing mags away. Let my people in. They can march to the Capitol from here. Let the people in. Take the effing mags away. Well, some people have emphasized they're not here to hurt me, but that's not the way Hutchinson described it. He was just saying flatly they're not here to hurt me, but that's not the way Hutchinson described it. He was

just saying flatly, they're not here to hurt me. And he wasn't, there's, if you're saying he's implying they're here to hurt somebody else, that's totally your implication. That's not what the quote says, Sarah. And you're not trumping Trump's admonition that the march occur peacefully. Counselor, you rest your case. I rest my case. That's all well and good. I'm just curious, when Br'er Rabbit said, please don't throw me into that briar patch,

do you think he was telling the fox not to throw him into the briar patch? Or potentially, do you think that there might be some other way to interpret what Br'er Rabbit was saying at that point to Br'er Fox? You don't need to answer that. Let me continue. The point is not why he thought they were armed there. I concede, of course, that there's various ways for a reasonable person to interpret Ms. Hutchison's testimony on the point that they're not here to hurt me.

But he absolutely knew at that point that several of the people in the crowd were armed. So when he told them to go to the Capitol, he was sending knowingly an armed group to the Capitol. He was sending knowingly an armed group to the Capitol. So to be clear, he brought them to the vicinity of the Capitol and then told them to go to the Capitol armed. He knew they were armed. That is the imminent question that meets that prong. And so regardless of him saying, Breyer Fox, don't throw me into that. Sorry, Breyer Fox, don't throw me into that Breyer patch. We can look at his actions and his

knowledge now with her testimony and say that if incitement means anything, surely it means a president sending an armed mob to the Capitol while electoral votes are being counted. Counselor, that's all well and good. But aren't you forgetting a little something called the Second Amendment here? We're in the District of Columbia, sir. Well, you know, not all of the quote-unquote weapons were guns. So we don't knowunquote weapons were guns. So we don't know how many people had guns.

And in fact, when I watched a lot of that January 6th footage, and I didn't see any guns. I did not see any guns. And so- Fashioning a flag into a spear is still sending an armed mob to the Capitol. But it is a mob that he's specifically told to be peaceful. Specifically told to be peaceful. And the evidence- With a wink and a nod.

Anyone in the audience would have known he was winking at them about that because of all of the other things he had said about the election being stolen, that they need to be strong, that Mike Pence, if he doesn't stand with us now, is being weak. So there's one line that you can point to versus literally everything else he said. Look, if you look at the totality of Hutchinson's testimony and strip from it the media hysteria, Sarah, what you'll see is what he was concerned about was not that the mob retain its weapons to hurt anyone, because in fact, he told them to be peaceful. What he wanted, and he just knew that they weren't going to, no one was there to try to hurt him. And so therefore, the extreme

security measures that you'd normally take for a presidential speech, he wanted them to be removed. And yes, he wanted them to be removed for a photo op. I mean, this is so for the optics. I mean, this is Trump. Trump is a, you know, a TV star in addition to a president. And he understands optics. He understands visuals. And so, yes, he had given his rally at the Capitol, Mike Pence then simultaneously releases his letter that he is not going to affect the certification of the vote that will remove Donald Trump from power. So what was the purpose of telling people to go to the Capitol then? Because obviously, what they had been doing hadn't been working. So what did he think they would accomplish by simply standing near the Capitol and saying the same stuff they'd been

saying? I mean, he wanted to go to the Capitol as well, but he had just given a rally. He had just said all those things. None of those things changed the outcome. What did he think would change by going with these people who he knew were armed to the Capitol after he had already given a rally speech? Presumably it's because he wasn't intending to given a rally speech. Presumably, it's because he wasn't intending to give another rally speech. He was intending for himself and those armed people in the crowd to do something more effective because the speaking hadn't worked yet. Well, Sarah, as we know from peaceful protests that occur outside of people's homes all of the time, peaceful protests that occur outside, let's homes all of the time, peaceful protests

that occur outside, let's leave homes out of it, outside of the Supreme Court, right around the Supreme Court, right around the Capitol, have occurred even in the Capitol in some circumstances. I mean, we've seen people disrupt congressional hearings before by shouting in the middle of them. The point of the protest is to be heard. The point of the protest is to place pressure. When he said, be peaceful, he's telling them to fight. He's using normal political language. How many politicians have said, I will fight for you. We need to fight these people. Fight, fight, fight. I mean, this is just super common political language that only in hindsight, because of the fact that there was a to Trump unforeseen

riot that occurred because there's no evidence that he knew the Proud Boys were going to breach or try to breach the Capitol on January 6th. And in fact, Sarah, there's some evidence that they knew there could be violence that day. But that's why he admonished them to be peaceful. And in fact, some of the evidence indicates, some of the best evidence indicates, the breach started to happen even before Trump was done speaking. So this breach was going to happen, Trump or no Trump. And so you got a causation issue here as well.

All right, hats off. Which side do you think has the stronger argument, David? Well, I think you have the stronger argument, but I've written that. Everybody knows that. I think you have the stronger argument. I don't think it's even close. But I do have an interesting,

you know, I don't think Trump's getting charged with anything. I don't think it's close. But, you know, you and I have talked about that before. What I think is interesting is the question over John Eastman, Rudy Giuliani sending in an alternative slate of electors to the National Archives and to Congress. They had no authority from any state to do that. And so that actually might be prosecutable under some of these fraud statutes that we've talked about before. And the president's involvement with that could or not be interesting depending on if they can show whether he was involved in that effort. Right. And I put that

in the same category that I put the, the questions about what, what did Trump know about the proud boys or the oath keepers or the three percenters or whatever that there's, there's speculation of was, was Trump in contact with abandoned and abandoned in contact, you know, was Trump, you know,

that's, but, but we don't have the same sort of direct evidence. We just have the possibility that if Trump was involved in other activity that really seems to be pretty clearly criminal, that, you know, that's much more speculative. But to the extent they've, you know, rated, for instance, Jeff Clark, this is the DOJ head of the environmental division

who tries to have his own little DOJ coup. That appears to be potentially what they are looking for is evidence related to this electoral slate that was, again, like they literally just got people's names, had them sign something when the people, it looks like, didn't really know what they were signing. No state authority. This is an electoral count act stuff where you have dueling slates of electors. This is just John Eastman's slate of electors. And if you submit that to Congress and the National Archives, there's a question, not really much of a question, frankly, that that meets the fraud standard that he knowingly and willfully sent something in that he knew was not an actual slate of electors signed off by any state. Right. Now, that's super interesting. And I still maintain, I still maintain,

I have two thoughts on Trump and prosecution. I think there are now two credible avenues. Again, I'm not saying, when I say credible avenues, I'm not saying that we have sufficient proof or that I'm certainly aware of sufficient proof necessarily to actually try to indict President Trump. But we can't forget the Georgia situation and the Georgia grand jury. January 6th gets a lot of attention because of obvious reasons. And the whole Eastman scheme gets a lot of attention for obvious reasons and the fake electors for obvious reasons. But we still have the president on tape trying to strong arm the secretary of state of Georgia to find 12,000 votes and not at all subtly threatening criminal prosecution and an active grand jury there. Now, my own thought here is that there are two separate

questions. One is, is Trump's conduct indictable? That's question one. And question two is, will he be indicted? And those are not the same thing. There is an enormous amount of prosecutorial. This is where prosecutorial discretion is going to come in. And a lot of considerations about the kind of precedent that we want to set in this circumstance. Do you want to set a precedent that a former president and potential frontrunner is going to be is prosecutable and will be prosecuted or do you uh or and or do you want to set a precedent that says which has its own dangers that prosecuting a former president and a frontrunner has it has its own obvious dangers or do you want to set a precedent that indictable offenses won't be indicted if they're committed by a former president and current presidential frontrunner?

That is a precedent with obvious implications. And so that's why I say whether the conduct is indictable is going to ultimately in many ways, even if it is, you're not going to see an indictment flow directly from indictable conduct, even if indictable conduct can be proven. And we'll take a quick break to hear from our sponsor today, Aura. Ready to win Mother's Day and cement your reputation as the best gift giver in the family? Give the moms in your life an Aura digital picture frame preloaded with decades of family photos. She'll love looking back on your childhood memories and seeing what you're up to today. Even better, with unlimited storage and an easy-to-use app, you can keep updating mom's frame with new photos.

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All right, moving on. Yes. I wanted to revisit a previous Supreme Court case from last week that we didn't get to. This is on the method of execution. Well, it's kind of on that. A very interesting breakdown. It's Kagan writing for the majority with Breyer, Sotomayor, and the Chief Justice, and Justice Kavanaugh. Justice Barrett wrote

the dissenting opinion with Thomas Alito and Gorsuch. So one of those 5-4 splits that we're seeing a few more of. I wouldn't say there's any avalanche of these. But maybe it's not quite 3-3-3. We've said for a long time we don't really know where Barrett's going to fall on some of this institutional axis. But I'm starting to see more of this. You add in the Indian affairs case and this one, I'm starting to see Barrett as maybe on her own there with Roberts and Kavanaugh on that institutional axis, Barrett falling a little bit further down.

So David, this is about a guy in Georgia. He is set to be executed through lethal injection. And he objects. He says because his veins are very collapsible and weak that there's a high likelihood that the drugs would seep into surrounding tissue, causing him excruciating pain, and that that would violate the Eighth Amendment. The question, though, is does he need to bring that through a habeas petition or through 1983, which we've talked about several times? And before everyone rolls their eyes and tries to fast forward through this, it's've talked about several times, and before everyone rolls their eyes and tries to fast forward through this, it's going to get interesting. Hold on a second. Just give me a minute. Okay. So both of these methods are a way to challenge unconstitutional actions by the state.

But 1983, remember, is sort of that catch-all. It's like anything unconstitutional that the state does, you can seek damages, redress through 1983. We've talked about that in the First Amendment context, in the Fourth Amendment context. How they have interpreted this, though, is that 1983 isn't just a catch-all that subsumes all habeas underneath it, but in fact, it is a catch-all for everything but all habeas underneath it, but in fact, it is a catch-all for everything but what would otherwise fall under a habeas petition because habeas has other limitations with it. So to put this succinctly, what they've said in the context of death penalty cases is that if you are trying to, if you succeed, it would prevent you from being executed. So for instance,

you have new evidence, ineffective assistance of counsel, all of those things where a state has violated your constitutional rights, that's habeas because you're trying to prevent the execution. If what you're doing is a procedural violation of your rights, but you would still be executed after that. So think about the laying hands, David, the prayer case, that you could bring that through 1983. So this is interesting because in Georgia law, the only way to execute someone is through lethal injection. He says he wants to be executed by a firing squad. Other states allow firing squads, but Georgia just only has lethal injection. And so the question is, is this a habeas case or is it a 1983 case? Because if he wins and it's found that lethal

injection would be cruel and unusual, it is true that as of right now, Georgia can't execute him because of their state law. On the other hand, there's an argument that Georgia can just change its law. He's not saying he shouldn't be executed. He's saying he just doesn't want to be executed that way. He wants to be executed by a firing squad. So which one does it better fall under? The majority with Kagan writing says, look, this is clearly a 1983 one. He's not saying that he isn't going to be executed. He's just saying that Georgia needs to change their law and allow him to be executed by firing squad. Justice Barrett in the dissent saying, you've got to be kidding me. When he wins this, he now can't be executed until a state

changes its law. Surely that is not what's required simply to make that distinction between 1983 and habeas. I found it to be one of the more interesting opinions of this term, like a sleeper opinion, David. Yeah, it's very interesting. It is very interesting. And the lineup is really interesting because, again, you've got the Roberts and Kavanaugh joining, and then you have the Barrett, Thomas, Alito, and Gorsuch dissent. And what you're finding is, what's interesting to me is you're finding in a number of cases, the lineup is just all over the place until we get to the big culture war cases. Yeah, I mean, here's Barrett writing to the big, until we get to the big culture war cases. Yeah. I mean, here's Barrett writing, the court is looking too far down the road. In my view,

the consequence of the relief that a prisoner seeks depends on state law as it currently exists. And under existing state law, there is no question that Nance's challenge necessarily implies the invalidity of his lethal injection sentence. He seeks to prevent the state from executing him in the only way it lawfully can. I got to agree with Barrett here. I thought she had the stronger argument on that front. That being said, Georgia should change their law. Many states have, you will be executed by lethal injection or any other constitutional means. So they have like this catch-all.

Georgia should just add that because if this guy wants to be executed by firing squad, I just don't know. I don't care very much. That seems fine to me. And I think he makes a pretty good case that for him in particular, a firing squad would be more humane. Percentage chance is the firing squad will be quick and painless and that lethal injection has the possibility of not being. So like, shoot him. Now, I was thinking there hasn't been a

firing squad execution in a long, long time. But I'm wrong about that, Sarah. Yeah, I was going to say, I don't think that's true. Yeah. Yeah. For some reason I was thinking that, that, um, it was like going all the way back to like Gary Gilmore in 1977 or something like that, but it was, no, it was apparently 2010. Yeah. That sounds right. Yeah. Yeah. Yeah. That I, I, for some reason I was just like, no, wait, what? Was it Utah? Which state was it? Utah. Ah, nailed it. Man, that's good. Thank you. Thank you.

That is good. Okay. Two other interesting Supreme Court orders from this week. One, in a 6-3, the Supreme Court basically reinstated Louisiana's congressional districts. That is the last state we were waiting on. So we now have the congressional districts for 2022. But procedurally, it got really weird, David. They invalidated the federal court's stay from those new districts, granted cert before judgment, which also meant

treating their petition as one for cert before judgment, but then held the case in abeyance until after they decide this Alabama case, which is incredibly similar in terms of what's required under the Voting Rights Act and under the Constitution for these majority minority districts and the cracking and packing that we've talked about previously and that I am very tuned in for in the fall when this gets argued. It's already been scheduled for October. So that's all to say, when that case gets argued in October, we're not really going to be just talking about Alabama. We're very clearly also talking about Louisiana, where they plan to about Alabama. We're very clearly also talking about Louisiana, where they plan to GVR it, man,

grant, vacate, and remand, except it's already granted. So just remand, really, in light of this Alabama case. Interestingly, the three liberals dissented. They just said they wouldn't grant the petition to put the districts back in place, and that they wouldn't treat it as cert before judgment, which is also interesting. So just another 6-3 split that probably won't get counted in the final 6-3s for the stat pack. Also, David, though, and this is way up your alley. Yes. So an organization tried to join the Amazon Smile program. This is Amazon's charitable giving, matching funds, et cetera. They got rejected because the Southern Poverty Law Center

considers them a hate group because they don't, they believe in traditional marriage between a man and a woman, and Amazon relies on Southern Poverty Law Center for those designations. So the organization sued Southern Poverty Law Center for those designations. So the organization sued Southern Poverty Law Center for defamation. They lost many times, all the way.

Yeah. And they lost under different theories, depending on which court they were in front of along their appellate track. They sent it up to the Supreme Court. There clearly were not four votes to take this, but you have Justice Thomas saying he would take it and he would revisit that actual malice standard, meaning all you would need to do is prove that the language was false and that the person knew it was false, not that they had actual malice when they said the false, knowingly false thing. And he specifically cites media and interest organizations saying slanderous things against organizations that then have no

recourse. We've heard this from him before, but I'm sort of, I mean, Justice Thomas, man, he is off the leash. He is just going to say what he thinks at all times. He's said it before. He'll say it again. You don't like it. You think it's a bad time. Not my problem, says Justice Thomas. Yeah, it is very interesting.

And it's very interesting that he chose this case because the one thing that's been pretty darn clear for a really long time is that statements of opinion are not defamatory. It's false assertions of fact. And so the challenge that Coral Ridge, I think, had wasn't so much the actual malice standard here, is that they're dealing with a subjective judgment of an ideological opponent as to what is hateful and what is not hateful. Now, if the SBLC's allegations, if it's supporting evidence for its allegation of hate, rested on falsehoods that were known to be false, then you would have, or false statements recklessly

asserted, then you'd really have that actual malice issue popping up. But the Thomas dissent doesn't really dive into the facts that much at all. It's just a very quick drive-by on the actual malice standard. And so it's an interesting vehicle for it. And yeah, he's been doing this a lot lately, Sarah. He's been doing things where, so in the Dobbs case, there was no need. There was no need to say what he said. It didn't really add to the understanding of the opinion in the way that the other concurrences tried to sort of add to the understanding of the opinion or the way, say, the New York State Rifle and Pistol concurrences added to the understanding of the opinion. It was more like, here's my very short law review article musing about where I think the law should go.

He's doing that here. He also did that with regard to online speech. If you'll remember some time ago, where he talked about making online, you know, major social media companies, turning them into common carriers. And I just, I got to say, you know, and I respect the heck out of Justice Thomas,

I'd to say, you know, and I respect the heck out of Justice Thomas, I'd rather see, I'd really rather see speeches or law review articles. What I found interesting about this is that SPLC has a definition for hate group. That definition, to them, includes anyone who doesn't support gay marriage. Uh-huh. And so you also have to attack the term hate group and say that that in and of itself is defamatory, regardless of how they define it, that it has like a common meaning. If I call you a Nazi, I can't say like, well, I mean, I have a personal definition of Nazi because there's a understanding of the term Nazi. I don't think that's true for hate group. And as long as S.B.L.C. makes their definition known, I don't really I see why the court didn't take it because that's just a deal breaker for this case. I think different people find different stuff hateful.

It's like saying the word offensive. That's why you can't put it into speech codes because it doesn't have a standard concrete definition. And let me be clear. I think SBLC's definition of quote unquote hate groups is stupid and that Amazon in particular shouldn't be relying on it or any of these other groups because their definition is so broad. And it is true that I think that most people hear that and think it applies to what we would call domestic terrorism groups, Nazis, violent white supremacists, things like that, not First Amendment protected, you know, speech, obvious stuff and or a pretty mainstream beliefs. Right. Right. And and so so I'm going to agree with you completely.

The SPLC's hate group designation is ridiculous. There are some groups that are actual, what normal Americans would call, actually call hate groups, which that are in the SPLC designation, which is what makes this so toxic. Because you'll go through this list and you'll

have the Nordic Aryan Brotherhood of Northern Wisconsin or whatever, and then you'll have Coral Ridge Ministries. And it makes it, if you don't know what's going on here, you're thinking, what the heck is wrong with Coral Ridge Ministries to lump them with the Nordic Aryan Brotherhood of Northern Wisconsin? And it's not hard to imagine SBLC saying that if you promote voter ID, we consider you a hate group. Like, that's not that far off from sort of their very broad definition of the term. And at some point, the term then loses meaning. But again, not in a libel-y way.

Right. The real villain here in my mind, so I think SPLC is out of control ideologically. But what the heck, Amazon? What the heck? No, that's right. No one's making Amazon rely on this. Nobody, like SPLC, I think, can define for themselves

what they consider hateful speech all they want. And they should. And good on them, whatever. It's that other groups rely on them because of the traditional and brand associated with the Southern Poverty Law Center and what that used to mean. Right, exactly. Okay, David, wait, last one. Oh, last one, go. So, we had lots of people ask about the well-regulated militia.

Do you think we have time for it? Yes. No. Okay, I'll save it. But I have three things that I've, well, I have a lot of things that I've saved up from the last two weeks. But one, we hear you.

You want to hear about the prefatory clause to the Second Amendment. I've got a whole thing ready. Two, you want to hear about Congress's power to regulate abortion at the federal level. Hear you. Three, you would like to steel man substantive due process.

So basically the opposing side from Justice Thomas, got it. So all three of those definitely on our list on top of some of the other Supreme Court cases that we didn't get to yet and the ones yet to come. We have some roundups, some guests coming on the law side. Of course, we have August coming, which is our non-law guest. It's going to be really fun too. But first, we still have lots of Supreme Court stuff to dig through. We're not done yet. And I think those things you identified from Heller to steel manning, substantive due process, and congressional authority to regulate abortion,

all three of those, that could be a whole podcast. Each individual one could be a whole podcast. Oh, my gosh. Yeah, yeah, absolutely. No, I'm excited about all of those discussions, which is why I didn't want to spend two minutes on well-regulated militia. Fair enough.

Fair enough. But yeah, so we've got a lot coming. And the first guest we're going to have, that podcast is going to be lit. That is going to be. And we won't, we won't. Should we tease it or should we not tease it? I think we should tease it

because on Tuesday, folks are going to get our episode about the remaining Supreme Court cases that come out this week. Okay, then on Thursday's episode, that's when our first guest will be here to defend Coach Kennedy. Yes, Coach Kennedy's co-counsel will be here

and he will face Sarah Isker. Two will enter, one will leave. We'll let you decide. Outstanding. All righty. Well, thank you all for listening. Thanks for tuning in in a really huge week. I mean, we have blown out advisory opinions, listener records over the last week or so, and we're incredibly grateful. And if you're new to the podcast, thank you for trying us out. And if you've liked the podcast,

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