Legal AF by MeidasTouch - Supreme Court Buries CODED MESSAGE in RULING

Episode Date: June 15, 2024

Michael Popok finds that buried in a new decision by the MAGA Supreme Court about whether the phrase “Trump is Small” can be copyrighted under the First Amendment is the making of a feud between Clarence Thomas and Amy Coney Barrett. He reports over her rejecting MAGA’s use of phony “historical analogies” without historical context, to strike down proper regulations, strip away a woman’s right, and deny sensible gun control laws. Is this the beginning of the end for the use of phony “history” to trample rights and protect Americans? Upgrade your sleep with Miracle Made! Go to https://TryMiracle.com/LEGALAF and use the code LEGALAF to claim your FREE 3 PIECE TOWEL SET and SAVE over 40% OFF. Visit https://meidastouch.com for more! Join us on Patreon: https://patreon.com/legalaf Remember to subscribe to ALL the MeidasTouch Network Podcasts: MeidasTouch: https://www.meidastouch.com/tag/meidastouch-podcast Legal AF: https://www.meidastouch.com/tag/legal-af The PoliticsGirl Podcast: https://www.meidastouch.com/tag/the-politicsgirl-podcast The Influence Continuum: https://www.meidastouch.com/tag/the-influence-continuum-with-dr-steven-hassan Mea Culpa with Michael Cohen: https://www.meidastouch.com/tag/mea-culpa-with-michael-cohen The Weekend Show: https://www.meidastouch.com/tag/the-weekend-show Burn the Boats: https://www.meidastouch.com/tag/burn-the-boats Majority 54: https://www.meidastouch.com/tag/majority-54 Political Beatdown: https://www.meidastouch.com/tag/political-beatdown Lights On with Jessica Denson: https://www.meidastouch.com/tag/lights-on-with-jessica-denson On Democracy with FP Wellman: https://www.meidastouch.com/tag/on-democracy-with-fpwellman Learn more about your ad choices. Visit megaphone.fm/adchoices

See yourself buying a home one day? Do future you a favor. Open a Questrade first home savings account and help that future come faster. The FHSA is a tax-free account where all your investment gains are yours to keep and put towards your first home. With Questrade, you can open an FHSA online, no bank appointment needed. It's easy and only takes a few minutes. The sooner you get started, the more time your down payment has to grow. Open an account today at questrade.com.

How do stop losses work on Kraken? Let's say I have a birthday party on Wednesday night, but an important meeting Thursday morning. So sensible me pre-books a taxi for 10 PM with alerts. Voila, I won't be getting carried away and staying out till two. That's stop lossders on Kraken. An easy way to plan ahead.

Go to kraken.com and see what crypto can be. Non-investment advice. Crypto trading involves risk of loss. See kraken.com slash legal slash ca dash pru dash disclaimer for info on Kraken's undertaking to register in Canada. To support sustainable food production, BHP is building one of the world's most sustainable potash mines in Canada. Essential resources responsibly produced. It's happening now at BHP, a future resources company. Everyone's got a thirst, a drive to be the next big thing, to put the world on notice. If you answer when your thirst calls, Sprite's for you. Sprite's for the makers and creators.

The visionaries putting in the work to build their dreams. Whether you're shooting a cinematic masterpiece on your phone, filling notebooks with sketches, or up all night turning your bedroom into the booth, thirst is everything. Obey your thirst. Sprite. Your thirst, bright. This ad was expressly recorded to create a sense of simplicity. Just a few simple sounds. No complexity.

complexity. Like neutral. Made with just vodka, soda, and natural flavor. Neutral. Refreshingly simple. This is Michael Popak, Legal AF. Now see, sometimes when I start a hot take, it goes in one direction. By the time I'm done with the research and thinking about it, it ends up in a completely different one.

See, I thought I was going to do a hot take about the right-wing Supreme Court, led by Clarence Thomas for the second time this term, or this week, making a ruling that there is no copyright protection, intellectual property protection under our laws if somebody wants to use somebody's first name or last name like Trump in a copyright application. So the lawyer back in 2017 that tried to sell t-shirts that said,

Trump is too small or Trump is small, which was a reference to Marco Rubio in a debate with Donald Trump, suggesting that Donald Trump's equipment was too small. A play on words related to that was not entitled to trademark or copyright protection. That was written by Clarence Thomas. But now having looked at the concurrence by Amy Coney Barrett, I see some fissures. was not entitled to trademark or copyright protection. That was written by Clarence Thomas.

But now having looked at the concurrence by Amy Coney Barrett, I see some fissures. I see some separation by Amy Coney Barrett about the use and the consistent use of historical precedent and research by the MAGA right wing like Alito and Thomas in order to rip away rights and limit and eliminate restrictions on regulation.

It's happened time and time again. Every time the right wing majority wants to rip away some power of an agency of the federal government to regulate in an area where they are authorized by the Congress to regulate, whether it's clean energy, clean water, whether it's a woman's right to choose, whether it's gun rights, any of that. They'll say, Oh, historical precedent. There's no historical precedent in old timey times for this type of regulation. And therefore we're not going to allow it. Making policy, exactly the thing they attack the left and the middle for,

which is judicial activism and making policy, they're doing it. This isn't conservatism. This is judicial activism. And every time they talk about, as soon as I see historical analogies research, and this is like a warning, inside of a Supreme Court decision written by Clarence Thomas Alito or the rest,

I know I'm in trouble. I know whatever regulation was present, whatever law or right was present is about to be ripped away. Warning, warning, right? It's like a horror movie. Whenever you see somebody, lights are off, doors are locked, and they pick up the phone,

you know the killer's in the house, right? It's like you know in every horror movie when they go to the car, somehow, even in the modern era, car's gonna be out of gas or doesn't start. Same thing here. You see historical analogies and they use AI to go find it and they talk about old timey times, about gun regulation, about consumer protection, about women's rights

without having any context to it, whatever. Like for instance, back in old timey times, women had no rights. Women were chattel owned by their husbands. Women did not have the right to vote. Women could be subject to domestic violence because they weren't humans. They weren't citizens.

All men are created equal. So the story goes. They leave that out completely. It's always this childless, you know, 60 year old, 70 year old guys that are that are taken away some sort of right, except when it comes to guns. Then when it comes to guns, they use old timey time references to say, well, back in the day, we didn't have regulations about that particular type of gun use. And, we didn't have regulations about that particular type of

gun use, and therefore we can't have it today, as if the founding fathers and the framers of the Constitution in creating the Second Amendment anticipated modern-day warfare, modern-day armament, modern-day handguns, modern-day firearm, and the ability to have machine guns, AK-47s, bazookas, 50 caliber weapons, weapons of mass destruction and shootings. That they anticipated that. Wouldn't we have thought our founding fathers who had a brain and dignity and ethics would have regulated that? Not to the Supreme Court. So now even Amy Coney Barrett has had enough. Now she still votes with the majority, right? She still thinks the policy that they're

creating is right, right? Ripping the mask off that the Supreme Court doesn't make policy, they do. And she's okay with the policy. Trump's name shouldn't be given copyright protection when somebody else tries to use it. Yeah, I get the policy, Justice Barrett, but she critiques and criticizes strongly, almost like fighting words, what Clarence Thomas writes. And this is the same Clarence Thomas that used historical analogies and precedents made up completely out of whole cloth, which have no proper basis, right? In lieu of creating a judge-made test, which is what they're supposed to be doing, doing

the hard work of being a judge. Let's go back to 1850. Let's go back to 1850, let's go back to 1830, let's go back to the gold rush. What did they do there with gun rights? He used that in the Bruin decision. I'm sorry, the Bruin decision. New York Rifle Association versus Bruin, in which they found that there's almost an unfettered right

for a person to have carry, to carry a weapon, to have a second amendment right, a personal right of an individual. Completely writing out the well-regulated militia introductory clause of the second amendment. And he did that by saying, we stand on the shoulders of historical precedent, only the historical precedent that they want to recognize,

not the context around it, not how black Americans were treated before they were Americans. And I mean, by that slavery, how women were treated before they were Americans. And I mean by that slavery. How women were treated before they were even given the right to vote, even after they were given the right to vote. And the second class citizens that exist in the society

and the disenfranchised that exist, they ignore that. It's always what did some cigar chomping guy, white male back in 1800 or 1700 decide was a proper regulation or not? It's hot outside and your nighttime bedroom temperature has a huge impact on your sleep quality. If you wake up too hot or too cold, I highly recommend you check out Miracle Maid's bedsheets.

Using silver infused fabrics inspired by NASA, Miracle Maidade Sheets are thermoregulating and designed to keep you at the perfect temperature all night long, no matter the weather. So you get better sleep every night. These sheets are infused with silver that prevent up to 99.7% of bacterial growth, leaving them to stay cleaner and fresh

three times longer than other sheets. No more gross odors. Miracle sheets are luxuriously comfortable without the high price tag of other luxury brands. And feel as nice, if not nicer, than sheets used by some five-star hotels. Stop sleeping on bacteria. Bacteria can clog your pores, causing breakouts and acne.

Sleep clean with Miracle. Go to trymiracle.com slash legal AF to try Miracle-Made Sheets today. And whether you're buying them for yourself or as a gift for a loved one, if you order today, you can save over 40%. And if you use our promo code legalaf at checkout, you'll get three free towels and save an extra 20%.

Miracle is so confident in their product, it's backed with a 30 day money back guarantee. So if you aren't 100% satisfied, you'll get a full refund. Upgrade your sleep with Miracle Made. Go to trymiracle.com slash LegalAF and use the code legal AF to claim your free three piece towel set and save over 40% off. Again, that's trymiracle.com slash legal AF

to treat yourself. Thank you Miracle Made for sponsoring this episode. But even Amy Coney Barrett maybe has had enough and maybe this will pay dividends for the future. Let me read to you from her own, her own, uh, now it's not a dissent. She's not brave enough to do a, a dissent from this decision. Um, which is Vidal versus, um, uh, Essler. But here's what she wrote.

She said, in my view, the courts, and that means Clarence Thomas laser like focus on the history of this restriction, misses the forest for the trees. I see no reason to proceed based on pedigree rather than principle. Besides, as the court admits, its approach merely delays the inevitable. Eventually, the court will encounter a restriction in the future without historical analog, right? Something about artificial intelligence, something about something modern that our founding fathers and people in old timey times didn't know about.

How to regulate nuclear waste, for instance. And she goes on to say, there will be a restriction without historical analog and be forced to articulate a test for analyzing it, and that's a proper function of a court, she says. She goes on to say that even if the court's evidence was rock solid and it isn't, it's usually some sort of conjured up cherry picking of historical facts without proper basis, without proper historical references. She says, even if it were rock solid, I would still not adopt this approach. The views of preceding generations can persuade.

And in the realm of starry decisis, which is precedent, court precedent, even bind, but tradition is not an end of itself. And I fear the court uses it at this way. Relying exclusively on history and tradition may seem like a way of avoiding judge-made tests, but a rule rendering tradition dispositive, we always go back to tradition, is itself a judge-made tests, but a rule rendering tradition dispositive, we always go back to tradition,

is itself a judge-made test. In other words, it is a coward's way out. She also says that using historical analogies the way Thomas has done time and time again is wrong twice over. First, the court's evidence consisting of loosely related cases from the late 19th and early 20th century does not establish a historical analog for the name clause for the restriction at issue in this case about Trump's name being used on t-shirts. Second, the court never explains why hunting for historical forbearers on a restriction by restriction basis is the right way to even analyze the constitutional question. If she's right, and I believe she is, that they're using historical analogies as a cop-out,

as a coward's way out, as a way of reverse engineering to end up where they want to end up, which is to eliminate the restriction, to limit the agency's power given to it by Congress, to do its job, to implement the will of Congress in regulating the areas for which it has been given delegated authority. If that's what they're doing, then it should pay dividends in the future. If she can get another vote or two over

to her side, if she can get another vote or two over to her side, on the improper use of historical analogies, we won't see cases like Dobbs taking away a woman's right to choose, Gruen taking away, see cases like Dobbs taking away a woman's right to choose, Gruen taking away, or basically eliminating the ability to restrict the Second Amendment and the use of weapons in our society for mass destruction and mass shootings. I'm hopeful that over time, as she gets further away from her what was a slapdash appointment to the position and confirmation process in the waning 38 days before the end of the Trump administration, that she will find a way to advocate appropriately in caucus and bring a voter to over to her side and stop doing this.

And I'm going to continue to report on it right here on the Midas Touch Network and on Legal AF. Now you know why we call it that. It's a podcast at the intersection of law and politics, Wednesdays and Saturdays, 8 p.m. Eastern time, and then on audio podcast platforms of your choice. Give me a thumbs up and leave a comment. It really does help. It's not ego, it's algorithm.

Keeps me on the air, keeps our content and our lights on. We're building this network with our bare hands, with your help. We have no outside investors and all of our viewpoints are our own without censorship. No smoke or sunshine is blown here. So until my next hot take, until my next Legal AF, this is Michael Popak reporting. Heary, heary, Legal AF Law Breakdown is now in session. Go beyond the headlines and get a deep dive into the important legal concepts you need to know and we discuss every day on Legal AF. Exclusive content you won't find anywhere else, all for the price of a couple of cups of coffee.

Join us at patreon.com slash Legal AF. That's patreon.com slash Legal AF.