Some More News - Under-The-Radar SCOTUS Disasters w/ the 5-4 Podcast

Episode Date: September 16, 2022

Hi. In today's episode, Rhiannon, Michael, and Peter from the 5-4 Podcast (@fivefourpod) join Katy and Cody to talk about a few Supreme Court rulings that likely got less attention than they should have in the wake of the Dobbs ruling that overturned Roe v. Wade. They discuss junior varsity football coaches, Border Patrol agents using excessive force, and our vanishing Miranda rights. Please fill out our SURVEY: https://kastmedia.com/survey/ Check out our new series SOME THIS! - https://www.youtube.com/playlist?list=PLkJemc4T5NYbcqTbNmyH3uqutwcj8fHf3 Support us on our PATREON: http://patreon.com/somemorenews Check out our MERCH STORE: https://www.teepublic.com/stores/somemorenews?ref_id=9949 SUBSCRIBE to SOME MORE NEWS: https://tinyurl.com/ybfx89rh Subscribe to the Even More News and SMN audio podcasts here: Apple Podcasts: https://podcasts.apple.com/us/podcast/some-more-news/id1364825229 Spotify: https://open.spotify.com/show/6ebqegozpFt9hY2WJ7TDiA?si=5keGjCe5SxejFN1XkQlZ3w&dl_branch=1 Stitcher: https://www.stitcher.com/show/even-more-news Secure yourself with the number-one-rated VPN on the market. Visit ExpressVPN.com/morenews, and get three extra months for free. Get ahead of the holiday chaos this year. Get started with Stamps.com today. Sign up with promo code MORENEWS for a special offer that includes a 4-week trial, plus free postage and a free digital scale. No long-term commitments or contracts.Get an immune-supporting FREE 1 year supply of Vitamin D AND 5 free travel packs with your first purchase if you visit AthleticGreens.com/morenews and try AG1 today.Support the show!: http://patreon.com.com/somemorenewsSee omnystudio.com/listener for privacy information.

Hello and welcome back to even more news the first and only news podcast the only one my name is Katie Stoll that's right don't look it up or do we're not the boss of you i'm cody and the last name is a different word it's johnston hi johnston yeah and uh joining us today for what the third time i don't know i think so we're really really thrilled to welcome rianne and michael and peter from the five four podcast welcome hello welcome hi thanks for having us that's exciting i mean truly thank you because when you guys show up it's a treat for us where we prepare not very much and learn a whole lot yeah yeah cody we'll take it from here thank you don't have to pretend i know what i'm talking about well first first we have to celebrate something for fuck's sake.

Oh, yeah. I mean, start off strong and then we'll go downhill from there. But we are celebrating today, September 15th. Which is? National Linguini Day. All right. Mamma mia. Mamma mia. All right.

Our writer Katie Golden lives in Italy now. That's true. She eats all the linguini. This is offensive, probably. Because we have to meet earlier because bedtime is different there. Yeah. So when she ends meetings, it's for bucca di bedtime. Oh, gosh.

She's great. Happy linguine day. Work from home. How about it? Oh, how about it oh how about it she moved to italy um september 15th also national felt hat day i don't feel like that's worth it i don't know but september 16th is national working parents day i think all parents are working yeah so pushing back on that it's the hardest job of all. Yeah. Are you guys parents? No, but it seemed like it was hard for my parents. It seems hard.

I have two very demanding dogs. I was hard to raise for sure. Yeah. Oh, yeah. A demanding dog, really. Woof. Basically. Woof.

Sorry. I have a demanding dog. I moved to the mountains recently, and my dog has become something else entirely he's like he's become a beast i mean i love him for it but i mean he doesn't go too far but he will dash off everywhere and come back just covered in filth eating everything throwing it up oh god jumping in water like cody it would be your nightmare he was always really wily so he was always really wily but like maxed out i just don't know and he if i'm not walking fast enough or i'm not doing what he wants he comes up and he barks at me mad and then says come on anyway unacceptable do not accept that so yeah i i am a national working parent i guess that's right that's right

there you go okay so today we're going to be talking about a few felt hats. Yep. A few different felt hat fashions for fall. No. A few different under the radar SCOTUS cases that maybe definitely absolutely got overshadowed by Roe v. Wade and the Dobbs ruling. But as it was happening, I mean, it all felt incredibly alarming and like too much to process. And so we reached out to you guys and, you know, we know there's more coming soon. And so this never ending Ferris wheel of fun. And so, yeah, we wanted to bring you guys on. And I'll just give the disclaimer that you have recorded episodes about these cases. So that's all available for people to go back and dig into. Although also, we use this time to chat with people.

I heard you guys both, two of you had COVID. That's right. How was that? Did you get it together? Read it in the news. No, no. Just at the same time. Yes, they were kissing. I didn't have COVID, but I had some other sort of chest infection and sore throat and

cough. It was pretty miserable. And then Peter had actual COVID. I had COVID. Yeah, I went to, me and my fiance were invited to a wedding out of the country and we were like, oh, that'll be fun. Let's pop out for a wedding and have a really nice time. I was jet lagged for 24 hours and then immediately got COVID and that was it.

And then I had to come back home. It was not pleasant. It was awful. Peter, subtly admitting to traveling while knowing you as COVID. I tested negative before traveling. However, in my heart, I was like, oh my God. Michael, thank you for calling that out. Actually, I've already reacclimated to the idea that, yeah, we travel sick now, I guess. I still haven't been on a plane. Really? I know. I know. Not because I'm afraid of it, although the travel has seemed very unappealing with all the delays.

It's awful. like I had a lot of family things happen and then we got really busy as stuff has reopened up and then I moved and so it there hasn't been an opportunity for me to to travel anywhere but I've seen what's happened to people I know someone who went to Italy for a wedding and got COVID and then yeah but yeah they they've changed the rules so you know well you're also right that air travel right now is just absolutely hellish. Flights delayed, canceled. I also recently went on a trip. I went to Montreal and I did not get COVID, thank goodness, but I did lose my luggage. Ah! Yeah.

I know, I hear those stories. Right. It's just like, I don't think it's just awful. COVID cut five years off my life, but Rhiannon lost her bags for two days, so I guess that's a... It's not working out for anyone you know 2022 the worst year ever in all the ways

that's right I didn't mean to violate your HIPAA rights by the way I just listened to your last episode and thought that it would be okay yeah we put it out there that was a waiver on our part so my guess is that you all have COVID right now.

Before we get into talking about all these cases, how's the experience of doing that? I mean, it's hard to be, is it cathartic for you guys to have this opportunity, this platform to talk about what you're seeing happen? Or is it a lot of pressure in a certain way because it's i know you have a lot big fan base you have a lot of listeners and i know that it's important but it can be hard yeah yeah it's definitely cathartic i i find it's like it's it's a good vent for me

uh in a lot of ways uh i don't know if i would say that there's pressure anymore just because we're so sort of adapted to doing this yeah but um it's it it's sort of i guess if i step back there's some pressure because we are you know the vanguard of the army of heaven fighting against the supreme court that's what they all say yeah i think we would all be pretty uh immersed in this stuff regardless That's why we're doing the podcast. We care about it. We follow it. Yeah. At the same time, it is challenging.

There are times when if I didn't have the podcast, I would be taking breaks. You know, I would be taking breaks from reading and caring or being on Twitter and stuff. And you can't really take breaks. And it can be a little, it starts to wear on you. So it's a challenge for sure. Yeah, I would say like the best part of it, though, is like the our listeners, the community that's built. I mean, just finding that people are also interested in this kind of thing and aware and want to know what's going on at the Supreme Court. I think that that helps a lot. But yeah, it's for sure. It's pretty depressing. I relate so much to what everyone

has said. Both like, I'm paying attention anyway, so it is cathartic. But there is this reality of, I don't know that things are going to get any better. And you have to make sure to carve out time for peace. And I'm so grateful for the community and the listeners because it makes me feel not alone. Yeah. So before we get into the actual cases, we were curious about what we assume will be your reaction to this Nate Silver tweet. Quote, warm take. The Supreme Court is a political body that considers electoral implications in its jurisprudence.

So the increasingly evident electoral backlash to Dobbs may factor into its future decision making. Do you think that the Supreme Court is likely to pull back on this sort of trajectory that we're seeing with them because they're considering the electoral consequences? Would you agree with this, Nate Silverthwee? Not to influence your answer by my tone of asking the question. What is this gotcha journalism, Cody? Go ahead, Michael. And the judges below them in the 11th Circuit and the Fifth Circuit and the district courts and all that are not subject to reelection or any realistic possibility of removal, which means they don't have electoral consequences for themselves to worry about. And that is the point of controlling the judiciary. You can enact your policies. Yeah.

And nobody can do anything about it. Yeah. I'd also say that- But what if they're unpopular? No, look, the time to pontificate about this was before this past term, right? Right. This is like saying, this guy is chopping me up with an ax. Will my screams make him reconsider what he's doing?

Right, right. Nate Silver, you just stick to- Right when you were watching him buy the ax and you were like watching him buy you make him reconsider what he's doing. Right. Right. Right. When like you were watching him buy the axe and you were like, exactly. You while he bought the axe. Exactly. Didn't say anything. Watching him write notes about how he's about to chop you up with that.

Yeah. I mean, this, this trajectory might have implications for Senate races for house races on that level. But yeah, to them, that doesn't matter because what they've done is enshrine it. They've made this the law.

Right. Well, wouldn't it just embolden them because if the midterms go poorly for their party, then won't they be like, well, then we're going to do even more because we'd want them to lose, right? Like we're the, yeah, exactly. We're the ones left. Yeah, no, that's right. That's the only thing that will chasten the conservatives on the courts right now would be a realistic threat of some sort of court reform. You know, it doesn't have to be court expansion. It could be something

else. It could be jurisdiction stripping. It could be term limits. There are a million, you know, there's a 250 page Supreme Court and Court Reform Commission report that Biden had done. And there are a ton of things they could do. And if they were actually concerned that their power being messed with, that might chasten them. But right now, that seems unlikely, regardless of the outcome of the midterm elections. So no, I don't think they will be chastened at all. And you know, if anything, they're going to be feted wherever they go. They go to their country clubs and their federal society meetings, and they are heroes. They're conquering heroes. Yeah, exactly. I think a really important perspective is that these people were put on the Supreme Court

to do this, to overturn Roe versus Wade, right? So they did it. They achieved their goals, and that's not they feel good about what they're doing. It doesn't matter what happens. They feel righteous. This is downstream

of elections, right? 2016, 2018. Those elections happened and part of the victory is this right now. This is like those elections manifesting. So that's a hard disagree

on the Nate Silver tweet. Yes. As much as I love him and his charming demeanor. I didn't mean to put you on the spot to disagree with. An idol. I would say you're here. Our his charming demeanor. I didn't mean to put you on the spot to disagree with. An idol. I would say you're here.

Our hero. Our icon. Please welcome our surprise guest. It's over. Now there's seven people on this call. One of them is very sweaty. Fun. Fun.

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contracts. Just go to stamps.com. Click the microphone at the top of the page, and enter code MORENEWS. Yum, yum, yum, drink up. Okay, so speaking of all that, let's get into some of these cases that kind of got buried in all of the hullabaloo of the past few months. Yeah, it was interesting because it was like, there were like two weeks where you'd see, it was like during uh during the rover turn where it's like every like every like fifth story was like oh there's also this other case going on that sounds bad but then yes you know it just sort of yeah slowly we have such well we have short memories but also like there's a saturation point yes and it's very difficult. And we see a lot of alarming things all the time, all the every day, almost. And it's hard. So it's not against anybody. But this is our time to focus on it. Sure. Yeah, you get to it when you get to it. It's okay. Yeah, that's right. All right,

guys, I'm throwing to you. Which case do you want to talk about first? I mean, I we're happy to go in any direction. Well, I've got Egbert versus Boulet. Yeah. I believe it's Boulet. Ogbert versus Boulet. Egbert v. Boulet. Yeah. I would be happy to talk about it. So glad you're all here to talk. I'd be happy to talk about Egbert v. Boulet.. You got it right. Yeah. So, you know, this is a case about excessive force by police, which is your Fourth Amendment rights. But it's more than that. There's also a little harassment from a public official that implicates your First Amendment

rights. So there's a lot of constitutional violations going on here. And in this case, the Supreme Court says, and this is Clarence Thomas writing for the majority, they say that, you know, there's nothing you can do in this situation to vindicate those rights. Sorry, not sorry, but that's where we're at. So just a little bit about the case, kind of the facts. This guy, Robert Boulay, he owns a bed and breakfast in northern Washington state. It's really close to the border with Canada. The area, including the bed and breakfast, is kind of teeming with Border Patrol.

You know, these are federal agents because it's so close to the border and people are known to cross illegally there and to smuggle drugs. And actually, fun fact, Boulay's Bed and Breakfast is actually known around the town as Smuggler's Inn because it's known to federal law enforcement and everyone else in the area that people use the inn sometimes to smuggle drugs and do other cool party stuff. So Boulay actually had served. That name's got to be bad for his business. I mean, once you've given a name that they know about. It depends what you mean. You would think so, but his vanity license plate was like smugglers. He was leaned into it. Smugglers in fame.

It's like, you want it? I got it. And, you know, he had actually served like as a confidential informant to Border Patrol in the past. So, you know, this is yeah, this is kind of par for the course for the area and and and his bed and breakfast location. But actually, in this case, nobody does anything illegal. This is about a cop's illegal response to somebody, right? So there was a guy who had just arrived in the United States from Turkey. He was staying at the bed and breakfast. The man was in the U.S. legally. No issues there.

He's not undocumented. But a Border Patrol agent wanted to get more information, wants to harass the guy. And Boulay, the bed and breakfast owner, he puts himself physically in between the border patrol agent and the Turkish man. And he tells the border patrol agent to leave his property. The border patrol agent gets mad. He slams Boulay into a car. He slams him into the ground. There's the Fourth Amendment violation, the excessive force, right? Boulay isn't doing anything illegal. He's asking a cop to leave his property well within his rights.

The cop assaults him. You know, the Constitution should have something to say about that. And so when Boulay files a complaint to the officer's supervisor saying, hey, this guy, this guy assaulted me, the officer finds out and then retaliates against Boulay by getting the IRS to investigate Boulay's taxes. Come on. I know. Come on. That's all sorts of illegal, right?

Exactly. Yes. There is your First Amendment violation that I referred to. A government official cannot retaliate against you for exercising your First Amendment rights. Or can they? Right. Which here would be the filing of the complaint. So Boulay sues the officer for damages, meaning money compensation for the harm that was done to him.

Right. This federal officer violated my Fourth Amendment and my First Amendment rights, and he should have to pay. Now, just as background kind of legally, there's this special case called Bivens that allows people to sue federal officials for money damages when those officials violate people's constitutional rights. But what Clarence Thomas says here is, yeah, we know that Bivens sort of allows this sometimes. And we know, too, that Boulay's rights might have been violated. We're not saying they weren't violated. But Boulay does not have a cause of action here.

He's not allowed to sue for damages. You know, for the Fourth Amendment violation, Thomas says, well, this is a new context. And, oh, we're talking about Border Patrol and they deal with issues of national security. So suing them isn't allowed. And then for the First Amendment violation, Thomas says, you know, the court has never agreed that someone can sue a federal official for damages for a First Amendment violation. We're not going to start now. So that's kind of it. Like, we talk on the podcast a lot about this idea of rights without remedies. Right. So you supposedly have these constitutional rights.

But what does it mean to have a right if you can't do anything about it when the right is taken away? Right. Do you really have that right then? Right. What does it mean if I have a right not to be assaulted by the cops? If I can't do anything when the cops assault me. So, yeah, that's that's a really it's a really important case.

It is. And it's part of this trend, right, where the court is doing different things in different areas of the law. So your lawsuits against state officials, you know, they're they're hollowing out those those remedies. This is about your lawsuits against federal officials for damages. They're hollowing that out, too. Right. So they're doing it in all these different areas, although this case specifically is about, like you said, suing federal officials. Yeah. And the idea that Border Patrol is in like areas near the quote unquote border are like sensitive areas that automatically mean like federal officials, but you can't sue them if they violate your rights.

It's like pretty big implications because the border isn't just like this imaginary line in, you know, the Rio Grande and, you know, Montana and stuff. It is 100 miles from the physical border everywhere, including any international airport. So that's where Border Patrol operates. And including coasts. So like, right. Coasts, airports. It covers something like a massive, massive portion of the population.

Well, over 50 percent. I forget what the precise number is, but it's like most of the country lives within the jurisdiction. Two thirds. Yeah. Most like big cities. It's like any major city in America you can think of, it tends to land in there. In the jurisdiction of what is now an above the law branch of law enforcement.

It's chilling. Two out of three people live in that zone. It's chilling. Absolutely. Did Clarence Thomas write something? I don't have the opinion in front of me, but I made a note that Clarence Thomas wrote something that allowing people to sue border patrol agents could endanger national security in some way. Yeah, that's.

Yeah. Could endanger national security. You got to let them do their shit. Like they got it. They have to be able to live their life. Otherwise, you never know who's slipping through. Right. That's the basic reason.

Live your truth. If you're a Border Patrol agent and you can't report someone to the IRS for complaining about your misconduct, well, is the homeland safe? Right. Well, especially now that they're operating within 100 miles of whatever, Indianapolis International Airport. That was, by the way, my least favorite episode of 24 was when Jack Bauer was just calling the IRS about that guy. Hour 17 is just retaliation. It's like going through receipts and stuff. Way to bring some good jokes back in.

So the liberals dissented in regards to the Fourth Amendment claim, but they didn't for the first. Is that right? I think so. historically just because of you know who's controlled it for the last decades done as much as they can to like sort of limit Bivens to its facts now that's kind of ridiculous in this case because Bivens was about law enforcement trespassing on someone's property and roughing them up which is precisely what happened here so like the idea that this wasn't a Bivens claim like they literally had to hang their hat on like well they're border patrol and that's different yeah because that implicates like national security and foreign relations and stuff and so I think the libs saw that as like an easy like are you

fucking kidding me right yeah it's like what are we talking about here uh moment but yeah I mean but it's it's true that they I mean they they conceded on the First Amendment argument. I mean, essentially buying Thomas's argument that like this is just sort of novel enough that it's that we can't address it under Bivens. I mean, I think we discussed this on the podcast originally, but I just thought it was soft, soft liberal bullshit from from the libs frankly that's out of character I'm sure we won't talk about any of that for the rest of the episode hey there little squirt it's DJ CJ hucking mad advertisements at your tiny squirt face you know someday

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Maybe we should go on to another one, which will be more uplifting. No. This one is Vega V Tico. Nailed it. Yes. Nailed it. Well, Jonathan wrote it out for me phonetically.

Presumably in the span of time from the first one to this one. That's a good producer right there. I didn't put an accent on Boulay, though. Huge ball drop. So Vega, this is a case about your Miranda rights,

right? Which is, I think most people are familiar with, at least your miranda rights right which is i think most people are familiar with at least from tv or whatever which is when you're arrested the cops are supposed to read you a list of your rights that say you have the right to remain silent you have the right to an attorney anything you say can and will be used against you in the court of law this is a case from the 60s called miranda v arizona which basically said, look, cops are really good at getting people to implicate themselves. And, you know, we have these amendments that say you don't have to implicate yourself.

And people need a lawyer and they need notice that they are in this system right now where there are they're being, you know being antagonized essentially by law enforcement. They need to be put on notice on that in order to protect their rights. And it is sort of a foundational case. And it's probably one of the most well-known Supreme Court cases in modern history. And this case is about what happens when your Miranda rights are violated? And typically the answer is that your testimony, your self-incriminating testimony is not admissible against you in court, which means that if cops don't read you your rights and you say something incriminating, they don't get to haul you in front of a jury and bring those statements out and show them to a jury. That's

not what happened here. What happened here was this guy's Miranda rights were not read to him and he made incriminating statements and they were used against him. He was acquitted. He was twice, tried twice. And afterwards he was pissed. And so he sued. He sued for money damages. And he said, my rights were violated. And there's this statute, you know, sh. And he said, my rights were violated. And there is this statute, you know, shorthand for it is just called Section 1983. It's a civil rights statute that says you can sue, you know, government officials for violating your rights. If you have a right protected by the Constitution, you can sue someone for money damages if they violate those rights. And so he sued under Section 1983.

And the Supreme Court said in a 6 decision, no, you can't bitch. Surprise! Which didn't make any sense. This doesn't make any sense. So what they said was, well, look, yeah, if your Fifth Amendment rights are violated, you can sue someone,

but Miranda rights aren't Fifth Amendment rights. They are something different. That's pretty much it. That's the long and short of it. They said that it's a prophylactic rule designed to protect your rights, but they are not actually constitutional rights in and of themselves. Therefore, you cannot sue if they are violated. So what's the point of them if there's no recourse for your rights being violated?

Listen, you get it. That is a good question. No, there's this is like there's like something that can like we was just talking about how rights need remedies. That's not how conservatives view rights. They view them as like conceptual. So like, yeah, it's like you got this right. Sure. Yeah.

Now, what does that actually mean? Nothing other than it's on paper in and of itself. Yeah. That's real. That's like truly how like conservative legal academics conceive of rights. Yeah. It's like this like imagery, this sort of like ideal and like it's the document is the important part. But in the material world, it doesn't really matter. No, no. Right. Exactly. And even more sort of alarming is there's a footnote where Alito, who wrote the opinion, sort of ponders whether the Supreme Court can engage in this sort of prophylactic rulemaking that Miranda or other sort of seminal Supreme Court cases engage in.

And so he's calling into question whether those Miranda warnings are even necessary and maybe inviting challenges to Miranda itself, which is alarming. So like doing away with them altogether. That's exactly right. Yeah, that's right. So the regime before Miranda was basically, if you felt like, you know, cops didn't have to warn you of anything, and they could hold you in interrogation for hours, and they could use all their sort of tricks and whatever, to get you to elicit self-incriminating statements. And if you felt like it was not a voluntary, you know, admission that you made,

you'd have to sort of litigate it on a case by case basis, arguing like, well, you know, I had been in this interrogation room for six hours and I hadn't had anything to drink. And they said X, Y, and Z and try to make the case that like, this wasn't a voluntary thing that, that you, you got out of me, you got me to say something, but, you know, it wasn't voluntary. Very onerous, very much stacked against the defendant. Not something I think we'd want to go back to. Cops are very good at eliciting self-incriminating statements, as is even with Miranda warnings. is even with Miranda warnings,

it's like we mentioned in the podcast, something like a third of cases where people have been exonerated by DNA or other new technology and proven to be factually innocent have self-incriminating statements elicited, right? Like cops are good at getting innocent people to incriminate themselves. They're good at it.

So giving them more tools to do that is very bad. And the libs and dissent, once again, some soft lib bullshit, four pages long. Don't even mention this sort of looming threat to Miranda. Make like a little bit of an argument about, you know, well, this is still a right. It might not be your Fifth Amendment right, but it is a right. And getting into like what it means to be right. And I agree, but it's just not what we need in this moment. Does it make me feel like they're fighting that hard

in those rooms? Yeah. Does it make me have a lot of confidence in the work they're doing back there? Yeah, I want like a full-throated defense of Miranda itself, the regime, the benefits it brings to society, and why we should be very protective of it and everything around it. Instead, we got like a four-page little, you know, sort of nitpicking. Come on, guys.

Yeah. Shame, shame, shame. Yeah. Who decides what? And I'm sure the answer to this is just Samuel Alito. Who decides what's a constitutional right and what's just like a made up right that you might not get a right? Whoever has the majority on the Supreme Court. That's right.

Whoever has five votes. Nice. Whoever has five votes. Yeah, good stuff. Great system. Feel real confident about that. He really thought this whole thing through well it makes you think you just need we need non-stop constitutional

amendments to like get any of this stuff in there i'm gonna say like so many of these situations seem like okay so i guess like congress needs to like do something like every step of the way just like do something which obviously like that like, that's not going to happen. No, they just can't seem to do it. Yeah. But it just does seem like, okay,

so I guess you need to do like an amendment about this. You need to do like, make the, like codify this, codify this, codify this. And it's like every single one and not one is going to happen. Right.

It also probably wouldn't work. Right. I mean, at least not to the extent that you'd want it to. And we just we haven't released it, but we just recorded an episode about a case from like the 1870s right after the 14th Amendment was passed and how the court just started like immediately whittling it down to nothing. So I'm not even confident that there are like constitutional solutions to a court like this. Yeah. You do wonder what it's going to take to get like the Democratic Party to take the court head on.

Yeah. You know, I honestly thought Dobbs might be it. Right. I thought that might be the moment. The last year I was sort of waiting, figured this was going to happen. But like, how would the Democrats respond? I thought there might be a push. You didn't like their emails? I got to I did get a text push a bunch of it.

That was part of what was so upsetting for me, and continues to be it. But especially when this first happened. Yeah, of course, you're furious at the courts and the people that have been chipping away and moving the ball in this direction for so long. But just the lack of a real response. And while that's happening, again, the reason we're here, all of these cases coming down, all of these things, it's like if it's not now, then never. They lost me a little bit. I know that this is a big, you know,

they're seeing some energy in a big way, hopefully for midterms and stuff, but they've lost me. I will officially, they've lost me for a while. But that was like a nail in the coffin for me in terms of they're not going to do what needs to be done. They absolutely are ill-equipped to handle what's happening. Because they knew. Because they knew.

It's like you're watching this ball get rolled in that direction and the entire crowd's like, hey, they're rolling the ball over there. And the other team is just like, where'd the ball go? And then it gets over there like, oh no, the ball's over there. We gotta get the crowd to like participate. Well, all right, what fucking game is this?

I mean, Dobbs itself was an insane example because the opinion leaked. So like politically, they had six weeks. It's like, we got their playbook they they leaked their playbook right like you you're you've got like it's like minority report it's like oh they're they're doing it you know like now what do we do um and then dobbs actually drops and like the messaging was flat-footed uh took them like two weeks to get anything together it was unbelievable i mean frankly they've been sort of they've been lucky that the public has like reacted negatively

towards Dobbs regardless. Certainly no thanks to Democratic messaging and also lucky that the Democrats seem to get their feet under them in a little bit in August. Right. On other issues. But I mean, we were talking all throughout July, just like even even as people who are like skeptical about the ability of the Democrats to take on the court, it was like even like rhetorically they weren't there. Right. Even in like the sort of aesthetic ways that you'd expect, they weren't showing up. It was kind of remarkable. Something to behold. Oh, yeah. Before we move on to the next case, I wonder if you could talk briefly about Matt v. Ohio. And I because it's a little worrisome if Alito is signaling that just your ability to have evidence that's uncovered illegally not be admissible, that that might go away. Yeah. So like Michael said, they identify Miranda as the creation of this prophylactic rule.

as the creation of this prophylactic rule, right? But the thing is, if Alito is calling into question the court's ability or tendency or desire to create prophylactic rules, if Alito is saying the court doesn't need to do that and maybe Miranda is at risk, maybe Miranda could be overturned, according to Alito, then that calls into question another prophylactic rule, which comes from the

case Matt v. Ohio. And in Matt, the court said that it basically created what's called the exclusionary rule. It's a really foundational kind of tenant principle in criminal law, which is what I practice. And it says that any evidence that is gathered from you in violation of your rights can't be used against you. So it's a very similar rule to Miranda, right? Whereas Miranda applies to self-incriminating statements and your Fifth Amendment, the exclusionary rule is about your Fourth Amendment evidence that's taken from you. Say if the police search your house without a warrant, right, and they find drugs in your

house, they can't use those drugs to show that you're guilty of having drugs. That's the exclusionary rule. And so, yeah, if Alito is calling into question when the court creates or did create back in the 60s, these prophylactic rules, then Miranda's at risk. Matt V. Ohio is at risk. It's extremely alarming. It's very horrifying. And this stuff also, it all ties together a lot too. Surveillance is so much more pervasive now than it used to be. And so a world where cops don't have to get warrants to collect evidence because they're not worried about evidence collected illegally being excluded from court and have like the power of the surveillance state available to them is a very scary world in general, but also one where, you know, getting an abortion is criminalized. That becomes very scary for pregnant people, right?

for pregnant people, right? Like those tools, like these things, we talk about these in siloed ways, but there's a scary world just a few years over the horizon where these cases are interacting with one another. Absolutely, yeah. In very disturbing ways. It's a dark future we're painting, but maybe- But an avoidable one, an avoidable one.

It is, it is. In theory. Yeah. If you can figure out how to stop time, you don't have to go to the future. That's it, guys. That's all you got to do. And if you figure it out, please let me know. But maybe this last case will turn this bleak picture around. that's a start imagine a junior varsity high school football coach that is the subject of this case he started Kennedy v. Bremerton school district we're again in Washington state a hotbed

the junior varsity coach at this high school you're putting a lot of sauce on junior varsity. Yeah. That's right. You got to, right? You got to. I'm becoming extremely aggressive in a jock high school way now towards this guy.

He starts praying after football games on the 50-yard line. He does this for many years. And I'm leaving some facts out. He also prayed in the locker room. He's a he's a prayer guy. And prayer baby. At some point after several years of this, the school catches wind and they're like, oh, we are a public school. The establishment clause of the First Amendment says that there needs to be some separation of church and state and like school officials can't be out there endorsing religion, which was sort of the prior rule before this case. And so you got to stop. And this is after complaints had come in. The reports were that he was very loudly praying at the 50-yard line.

It was obviously public. It wasn't like a little quiet prayer. He would sometimes hold students' helmets above his head. Normal stuff. Yeah. And at times large groups of students would join him, and there were reports that some felt pressured to do so. Of course they did. Of course, they're kids.

They're children. Exactly. Yeah, they're teenage kids on a football team. Of course, they feel pressured to do whatever their coach is doing. Yeah, exactly. Right, right. The response from him is to go to conservative media outlets and claim that his freedom of religion is being infringed upon.

And he gets a lot of attention. And there is then another game where he goes and does his prayer after the media blitz and he has like attracted media to the game. He has attracted Fox News fans or whatever to the game. They like charge the field, knock over several marching band members. You're right.

This is funnier. The port can't do the tuba. He's getting knocked over. This is during a 27 to 10 loss to the visiting pelicans. That's right. Some visiting players also join. He does his prayer. He is disciplined for this because the school is like, we told you to not do it. And instead, you went on a media blitz and then did it again.

And knocked over a bunch of people. And made it even more disruptive. I mean, right. And the question here is whether like this guy's personal free exercise of religion rights conflict with the establishment clause the separation of church and state right so you sort of have this tension here where he has a right to practice his religion but then the school itself also has an obligation to not endorse religion and what's sort of extra bizarre about this case is that Neil Gorsuch writes the majority and he just lies like full on about it. Yeah.

He's like, well, this was like a small, a small private prayer. And like, it's just not true. And there are pictures. And for the like one of the very few times I've ever seen Justice Sotomayor puts a picture of like the prayer in her dissent. It's in there. Yeah. Yeah. You never, I mean as someone

who like has to read Supreme Court opinions for a podcast all the time, I was like oh, a picture. Nice. This is illustrative. The actual receipts. But yeah, you're looking at 30 students surrounding this

dude. And he's holding up the helmet. Right. But Gorsuch, i mean gorsuch is full-on lying he's sort of like like obviously this happens many times and he basically focuses on like a couple times when the coach started alone and then other people converged on him and so he's like gorsuch is like well it is a private prayer but other people can join if they want to and again he's on the 50 yard line yeah other kids can join if they want to play getting the news to go like and that's the like once you get the news to show up then it's not like definitionally it's not private there's no way to pretend that it is there's also there's

still this like lingering question even if you pretend this is a private prayer or whatever. What about like what about the extent to which it might endorse religion nonetheless? And the way the court deals with that is by just getting rid of that whole test that was called the lemon test from a case in the 1970s. And, you know, the test was if something looks like it's endorsing religion, then you can't do it. If you're a state official, right, or if it looks like the state institution is endorsing religion, then you can't do it. And the court was like, no, we're not doing that anymore. That is gone. And so there we are. We're basically this is like one of a line of cases that has basically taken the separation of church and state and started to just fully erase, just getting rid of that shit.

Clarence Thomas and Justice Gorsuch believe that it doesn't exist at all. So that's cool. Yeah. And that the- I bet they'd change their mind if it was a different religion. I think they might. Yeah. They might.

My guess. They might. religion. I think they might. They might. Their belief is that states can establish official state religions like was done at the founding. That's what they are working towards.

They're building on, they're using this JV football moron as a pawn in their game. Sorry if this was mentioned, but what happened to the JV football moron? Does he work there still? He's worth $20 dollars and works for bright part no i don't know i just believe yeah of course that's the natural trajectory of something like i think he left right didn't he leave well i know that the whole spectacle like wiped out the coaching staff like the other coaches got like death threats.

Yep. Many of them like did not return the following season. I mean, he just ruined this football season for the children, too. Like going forward. They've got this reputation. Now that's their school that had this whole thing happen. Yeah. I just have this instinct that he's doing well because

the right coddles these people. It's a safety net for people who are if you're willing to do a media blitz for the cause, they will protect you. That's just my best guess. You'll find a home elsewhere. He'll definitely be giving a speech at the

2024 RNC. Yeah, for sure. Yeah, that coach's name? Sam Alito. Does this case have any similarity to Dobbs in that it brings up like, well, is there a history or a

tradition of X, Y, and Z? This is not the only case to do it. So I mentioned that they got rid of the does it appear to be endorsing religion test. What they replaced that with is an examination of history, like historically would this have been OK, which is something they did in Dobbs, something they also did in Nyserpa v. case, basically taking all of these different strains of constitutional jurisprudence and being like the test for all of them is history and tradition, which I think Michael pointed out during our episode. In this case, you're replacing a test that's like very simple and any school

administrator can do. Like, does this seem to be endorsing religion? And then you're tasking those school administrators with figuring out whether a given practice is like consistent with the history of religious practice in America, in public institutions. How the fuck are they supposed to do that? Is it like where the place is? Is it like regional or just America? There is absolutely no guidance. is absolutely no guidance. If you look at, like, probably, like, the deepest dives on this were Dobbs and Bruin, the gun rights case, and

they were both all over the place, just like, bouncing from different times to, you know... That's what you gotta do. They're just, I mean, they're just cherry-picking. It's debate guy stuff, right? Where it's like, I found this, I found this, I found this, put it together, and there's my argument, I did it.

Right, right. Just, like, a found this, I found this, I found this, put it together, and there's my argument. I did it. Right. Right. Just like a tapestry of cherry-picked bullshit that they can weave together and present that as if it's like this, you know, irrefutable view of history. So, that's nice and bad. That's nice and bad. We've got a little bit of time.

What's up? How you guys doing? Actually, really bad. Really bad? Actually, really bad. Really bad. Oh, no. Well, now we can make this a therapy podcast if you want to get into it. What's coming up in the next go-to session that we should be afraid of? Well. Yeah.

Well. Well, well, well. Well, well, well. We need a whole other hour. Right. You know, there's a couple of cases. We'll be talking about them soon on the podcast in a more in-depth way. One I'm looking at is called Brackeen.

This is a case that's going up to the Supreme Court in the next term or will be argued at the Supreme Court in the next term. It's a case about ICWA, the Indian Child Welfare Act. case about ICWA, the Indian Child Welfare Act, and very likely, I mean, just to put it shortly and bluntly, very likely to overturn ICWA, to get rid of that law, which protects basically Native families and prioritizes that Native American child and is saying that that preference in ICWA, that preference for Native American families to adopt Native American children, that that violates their rights. And to give an example of like, you might wonder why this law exists. Before it was passed, over 30 percent of all Native children were being adopted out of the community of all Native children. Exotic to this white family that's going to then raise this child without any semblance of their heritage exactly and that is how we decimate yeah wipe out tribes yeah that's how we do it right uh

we did it right schools exactly in the day now yeah no i mean it's it's a genocidal project exactly absolutely yeah right away there are other cases other cases coming up. Go ahead, Michael. So there's Merrill v. Milligan, which is a voting rights case where it seems like the Supreme Court will probably do a little more damage to the Voting Rights Act. It's already given it a bunch of real body blows. And this is like they want to finish off the pinata yeah this is a this is out of alabama where there was like a pretty blatant racial gerrymander denying you know african-american majority districts and uh yeah that that's going to be argued in a few weeks i think it's october 4th so we'll get a a real early look at whether Nate Silver's prediction. We won't have to wait long to find out.

Yeah, we'll get a real feel for it. There is one more case. It's also voting rights in a sense. Moore v. Harper. Yes. I don't want to get into the details of the case, but I will say that what is sort of the reason that it's gotten some headlines is this idea, this academic theory called the

independent state legislature theory. And the idea behind this is that the constitution grants at the state level, the authority to create election rules to state legislatures, not to state governments, to legislatures, not to state governments, to legislatures. It specifies legislature. And so there's this theory that that means that the actions of state legislatures on issues of voting rights are not subject to oversight of any type from the state Supreme Courts, for example. Right. So they're not subject to governor vetoes necessarily. They're not subject to their own state constitutions

and whatever limits those place on them. Which would, I mean, basically take any state constitutional rules concerning voting rights and say they're irrelevant, null and void. Yeah, which is, and state governments are often somewhat like terribly gerrymandered. Right. I mean, they're, you know, at the state Yeah, which is, and state governments are often somewhat like terribly gerrymandered. Right. I mean, at the state level, Wisconsin, for example, isn't really anything resembling a functioning democracy.

And this case is, who knows where exactly the court goes with it, but part of this sort of apparatus they have of constantly ignoring voting rights violations. And then when concerns like gerrymandering get escalated to the court, they just punt it back down and say, well, like, well, that's a political issue. That's not for us to decide, right? That's for elected officials to decide, even though that makes no sense because those elected officials are, you know, in a potentially rotten system. And that's why those cases are being escalated to the Supreme Court to begin with. Really nice little hustle they've got going on there when it comes to voting rights. This is exciting. Exciting months ahead for them. I wanted to ask, I don't know, you might not know the answer to this, if the Electoral

Count Act that like I think Collins and Manchin mansion are putting through does that stop any of this so the electoral count act i think is really more focused on um sort of the stuff that was like happening around january 6th right like secondary slates of electors and so there is like i think you can argue there's like some intersection but i think they're kind of separate i don't know what i'd say is it's it's hard to game out like what the next you know legalistic coup right look like yeah you know uh and so so it's hard to say uh you know the the benefit of the electoral count act i think more than anything is a statement from like elites that they don't want or at least at the federal level

they don't want these continuing coup attempts. It would be better if that was backed up by like, you know, that's good. I don't know the DOJ prosecuting the people involved in the last. It would also be better if they called it like the Ginny Thomas shenanigans prevention act. But yeah, it's sort of the nature of these things that they, they're just going to take whatever, you know, it's sort of like water. They take whatever form, you know, the container. Right. Like they are going to shape their their next efforts around, you know, whatever. I love the the visual of like Bruce Lee, but for for coups.

that i think the big concern with with morvey harper though is this is the supreme court has an opportunity here to either signal that they're not on board with these efforts or signal very loudly that they are yeah and uh give like a big you know yeah waving the checkered flag time to start your engines um yeah well we'll see but I have a feeling that's the way they're going to. Yeah. I don't feel so great about it. We'll see. Unless they feel properly reprimanded by the reaction to Doc. Yes.

The best case scenario is the world you live in right now. The worst case is one that's way worse. It's a one-way ratchet forever with the Supreme Court. I don't like the one I live in right now too much. And to discuss that further, here's special guest Nate Silver. Man, that's perfect comedy. Brought it right around, bookended this. And now the time has come to wrap it up, I think.

Thank you so much for coming back. I mean, it was depressing but interesting you guys are a kick we always have a good time thank you for having us please you know plug your things that you want to share

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Do we have next week off? Jonathan's shaking his head. We might not be back next week. But we love you very much. Very much.