Strict Scrutiny - An Unsealed Brief, Ghost Guns, & Antitrust Law as Social Justice

Episode Date: October 7, 2024

Leah, Melissa, and Kate kick off with a look at Jack Smith’s unsealed brief on Trump’s election interference case before digging into some cases the court is hearing this week, including one centered around ghost guns–unserialized guns that can be put together from component parts. Then, Melissa and Leah speak with Doha Mekki and Jonathan Kanter of the DOJ’s Antitrust Division about how antitrust law can be a vehicle for progressive social change.Listen back to our 2023 interview with one of Richard Glossip's lawyers Follow us on Instagram, Twitter, Threads, and Bluesky

Mr. Chief Justice, may it please the court. It's an old joke, but when a man argues against two beautiful ladies like this, they're going to have the last word. She spoke, not elegantly, but with unmistakable clarity. She said, I ask no favor for my sex. All I ask of our brethren is that they take their feet off our legs. Hello, and welcome back to Strict Scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it. We're your hosts today. I'm Melissa Murray. I'm Leah Littman. And I'm Kate Shaw. And today we're going to dive deeper into the cases the court will hear in the

first sitting of this term. We will then have a court culture segment that will quickly cover some state court matters as well as one federal court case. And finally, we're going to bring you a conversation about recent and exciting developments in antitrust law with some very special guests. But before we get to that, we have a bit of breaking news to cover. Judge Tanya Chetkin unsealed special counsel Jack Smith's brief outlining whether Donald Trump is immune from prosecution in the election interference case. Essentially, this is the brief where Smith lays out evidence about how Trump attempted to subvert the election, evidence that Smith thinks he should be able to admit at trial because it's not barred by the Supreme Court's horrendous immunity decision. Yes, we are going to be

dealing with the after effects of that clown show for a while. The brief is 165 pages, but do not be deterred by that length. It is an incredible and riveting read, both in general and in the individual state-level narratives that it unfolds. It opens with this line, quote, because, he claims, it entailed official conduct. Not so. Although the defendant was the incumbent president during the charged conspiracies, his scheme was fundamentally a private one. You can almost hear the Chief Justice whining, you guys said you weren't going to fact-check us. I think it sounds better in the original German. Let's have J.D. Vance say it.

Okay, well, why don't we hear it from the mouth of one J.D. Vance slash in German. Thank you, Governor. And just to clarify for our viewers, Okay, well, why don't we hear it from the mouth of one J.D. Vance slash in German. Thank you, Governor. And just to clarify for our viewers, Springfield, Ohio, does have a large number of Haitian migrants who have legal status, temporary protected status. Well, Margaret, but... Senator, we have so much to get to. Margaret, I think it's important because... We're going to turn out of the economy. Thank you. Margaret, the rules were that you guys weren't going to fact check. And listeners, while we thought we had basically heard it all regarding the Oval Office shenanigans that took place on January 6th, 2021, this brief may actually spill some new tea.

So let's briefly run through some of the new evidence that Jack Smith presents before sharing our reactions. So one new tidbit is that Donald Trump told his vice president, Mike Pence, that Pence was, quote unquote, too honest, just doing the law. OK. Another bit of new tea is about a conspirator who gleefully endorsed inducing a riot in order to stop the counting of the votes at the TCF Center in Detroit, Michigan. So according to the brief, a colleague told this conspirator, quote, look, if you instigate this, you'll be starting something like the Brooks Brothers riot. And FYI, if you don't know what the Brooks Brothers riot is, it refers to a violent demonstration led by

Republican staffers, hence the Brooks Brothers moniker, on November 22nd of 2000. That was during the recount of the votes cast in the 2000 presidential election. The goal of the Brooks Brothers riot, which incidentally, Roger Stone continues to take credit for, was to shut down the recount. And in fact, it actually worked. The officials came in after those acts of violence and those demonstrations to shut down the recount early. In any event, when this conspirator was warned that he might be instigating something akin to the Brooks Brothers riot of 2000 in real time at the TCF Center, this conspirator seemed remarkably unmoved, responding only, quote, make them riot, end quote. That's like a Marvel villain. I know. There's a lot of cartoonish villainy,

like on the pages of this filing. Here's another example. So another nugget from the brief is that after an aide told Trump that Pence had been forced to leave the Capitol because of threats and concerns that his life was in danger, Trump allegedly responded, quote, so what? I mean, real villain shit there. And this also serves as a reminder of the hugely important context of the discussion at last week's VP debate about why exactly Mike Pence was not on the stage and is in fact not running on the ticket with Donald Trump. His boss was fundamentally agnostic about whether he was murdered, right? So what?

It turns out it's hard to come back from that. And in fact, they did not. Although, would Pence have run with him again if asked? Probably. Undoubtedly. Undoubtedly. I think you're probably right. The brief also details Trump's alleged decision to,

quote, reinsert into his speech at the Ellipse on January 6th, remarks targeting Pence for his refusal to challenge certification, which again, seems to suggest at a minimum, that the president, the then President Trump was agnostic about whether protesters were going to try to harm his vice president, and indeed, the real possibility that he made a decision to affirmatively instigate that. We also learned from the brief that when advisors told Trump that he wouldn't be able to substantiate his claims of voter fraud in a court of law, Trump simply replied, quote, the details don't matter, end quote. It's more about the vibes. I have concepts of evidence. Right, but concepts of evidence.

We have vibes. Vibes. Vibes are off. Along similar lines, a co-conspirator said, quote, we don't have the evidence, but we have a lot of theories, end quote. And honestly, I think that's basically how the Supreme Court has been writing a lot of its decisions. We don't have the evidence, but we have a lot of theories.

All of them are original. We have our talking points. Yes. Anyway, the CEDCO conspirator also seemed quite surprised when Republican legislators actually wanted evidence of the non-existent voter fraud, remarking, quote, man, I thought we were all Republicans, unquote. That actually is my favorite line. I know. It's like, what's a little evidence among Republicans?

Yeah. And there's a version of that in the Arizona narrative, the Michigan narrative. It's like he's saying this to everyone. And kind of party over evidence. Actually, not. Thankfully, it doesn't fly with any of them. Evidence over party. So there's also a ton of details about Pence trying to flatter and puff up Trump so that Trump would accept the results of the election. This is Mike Pence basically trying to Kris Jenner, the former guy into accepting the results of the election.

Like, you're doing great, sweetie. You lost this time, but there's always 2024. Don't worry, it's going to be fine. And the former guy is having none of this like ugly tears. Kim Kardashian crying. Yeah, sadly, there this like ugly tears you know kim kardashian crying yeah sadly there are no ugly tears in this file there are no i wish there were kim kardashian and of course while they seem vaguely aware of stringer bell's sage advice not to take notes on a motherfucking criminal conspiracy they were incapable of actually following that advice

so one conspirator texted another quote careful with your texts on text groups no reason to text things about electors to anyone but this other person and me end quote all the while like furiously texting about the big collectors and they're so close to getting it actually like on the cusp of a revelation just slim charles would never slim charles would never never um one of my personal favorites because it concerns my home state is that while trump was talking with a republican state legislator from michigan about you know having lost the election the state legislator told him quote trump had underperformed with educated females, end quote, which is why he lost the state. I want like educated females against Trump, you know, as some sort of...

The new blue wall, literally. Right, exactly. Educated females. Oh, love it. Underperforming is kind of an understatement, I think, at least with this group of educated females. So they found you repulsive. Like they were literally. Yeah, sir. Yes.

So, look, I mean, the thing is, all of this appears in the brief, but it should have already been presented at a trial where a jury of Trump's peers would have been able to determine whether Trump unlawfully conspired to interfere with the 2020 presidential election in violation of multiple federal criminal laws. Instead, thanks to the Supreme Court and its abominable immunity decision from July 1st, all we get for now is this lengthy legal document. Yeah, a note about the timing and then generation of this document. You know, some people are calling this an October surprise, but it's not a surprise. Like this happened and it happened now because of the Supreme Court. It's because of the court's outlandish immunity decision. And because of the court's slow walking this case unjustifiably that this brief gets unsealed now a month before the election and while early voting is already underway in some places. But John Roberts had so deluded himself aided by Brett Kavanaugh and Neil Gorsuch,

that his immunity ruling was going to soar above politics, he couldn't grasp the possibility that maybe what the American people deserved is a trial on these extremely serious charges about whether a candidate for president attempted to abuse the powers of the presidency to stay in power despite losing the election. And instead, what he forced to happen is a federal employee writing 165 page document about whether Donald Trump threatening people over Twitter constituted an official act like that's what this great immunity opinion got us. And, you know, we all saw the defining moment in the vice president debate where J.D. Vance again refused to admit Trump had lost the election. Tim, I'm focused on the future. Did Kamala Harris censor Americans from speaking their mind in the wake of the 2020 COVID situation?

That is a damning non-answer. It's a damning non-answer for you to not talk about censorship. Obviously, Donald Trump and I think that there were problems in 2020. We've talked about it. I'm happy to talk about it further. He is indicating if push comes to shove, he will do what Mike Pence wouldn't, you know, abuse the powers of his office to undemocratic ends. So if you take the time to read all 165 plus pages of this brief, you can go through the evidence that's presented because it really brings home just how galling it is that the court all but ensured that there would be no trial in these election interference charges before Americans had to go to the ballot box to decide whether or not Donald Trump should be reinstalled in the office he allegedly abused and misused in an effort to try and subvert democracy. But I think that's kind of par for

the course with this court. A majority of these justices basically don't think that women should be allowed to make decisions about their own bodies. And they also apparently don't think that DC jurors should be allowed to make decisions about whether Donald Trump is an insurrectionist and a criminal. And that's basically the TLDR. So again, the fallout from the Supreme Court's disastrous, lawless, immunity-vibe-laden decision continues to hang over our heads and our democracy as we proceed into this new October term. So yes, that's right, folks. We're going to do this all over again, have a whole new term full of new fuck shit, and it's going to be great. I mean, I would love to say nowhere to go but up, but

I can't. No, Kate, that's your optimism again. I'm stopping myself this time. Thank you. But to pivot to what we know is on the docket for the October sitting, it's a pretty light sitting. Neither the October nor November calendar is chock full of blockbusters. But we're going to highlight in depth today two cases the court will hear during this first week of the October sitting. And then we will briefly note the other cases the court will hear this week. And let's start with Garland versus Vanderstock, which is a case we mentioned last week about ghost guns. Well, folks, if you like cargo, you'll love Garland versus Winterstock. Are listeners? Probably not.

No. I mean, I was trying. This is a challenge to the 2022 ATF regulation of ghost guns. That is, guns that can be privately assembled from component parts and that are unserialized. The relevant statutory scheme here is the 1968 Gun Control Act, which regulates firearms, which the statute defines to include, quote, any weapon which will or is designed to or may readily be converted to expel a projectile by the action of an explosive, end quote, as well as, quote, the frame or receiver of any such weapon. That part's important. When ghost guns first cropped up, ghost gun parts and kits were

basically being able to be purchased online without any vetting, without background checks, without any of the restrictions that are typically required for firearms under the act. And that meant that individuals who were otherwise prohibited from purchasing firearms because they were minors or because they were subject to domestic violence restraining orders could instead just go to the internet, purchase a ghost gun kit and ghost gun parts, and quickly and easily assemble them into firearms, evading the statutory scheme. And in 2022, ATF sought to close this loophole by issuing a regulation clarifying that certain products that can readily be converted into an operational

firearm or a functional frame or receiver fall within the scope of the Gun Control Act. And under the new regulation, ghost guns are subject to the same restrictions as traditional already assembled firearms. Basically, that means instead of being able to purchase a ghost gun kit without a background check or other vetting, individuals have to go through the same regulatory procedures that are in place for already assembled firearms. As the federal government notes in its brief, Polymer 80, one of the parties to this case, sold a buy-build-shoot kit that allowed a purchaser to assemble a fully functional Glock variant semi-automatic pistol

in as little as 21 minutes. It's basically like Legos for serial killers. Right. And companies basically marketed them that way, you know, marketed, quote, partially complete or unassembled frames or receivers that can, quote, readily be completed or assembled to a functional state, you know, by removing a few temporary plastic rails, which, again, could take minutes. So all this to say the ATF was trying to address a major regulatory issue. Ghost guns were on the rise. They were difficult to trace because they weren't subject to the same checks as traditional firearms. In 2017, law enforcement agencies submitted roughly 1,600 ghost guns to ATF. So this is guns they've recovered at a crime scene, given them over to ATF for tracing. By 2021,

that number was more than 19,000. So an increase of more than 1,000% in just four years. And again, ATF can't really trace these guns because of the lack of serial numbers and transfer records for ghost guns. So of the 45,240 unserialized firearms submitted for tracing between 2016 and 2021, ATF was able to complete only 445 traces to individual purchasers, which is less than 1%. And because of the regulatory pressure from the 2022 ATF rule, as well as litigation challenging the ghost gun purveyors, Polymer 80 actually shut down. Like, there's no market for this once the regulations kick in and they're forced to shut down. Though, of course, it's worth noting that depending on what happens in this case, it could very easily

get up and running again. And maybe they have an emotional support billionaire who could just help them out in this instance. In any event, the ghost guns at issue in this case have been involved in numerous gun deaths and shooting. And again, this is part of what spurred the need for regulation. Everytown for Gun Support Safety Fund has issued a report that details many of these cases. And the Washington Post recently reported on cases that specifically involve teenagers. Again, the point here is that teenagers cannot buy guns because they're minors under the ordinary regulatory scheme, but they can get ghost gun kits and parts online, and they can separately assemble them into firearms,

avoiding the whole regulatory apparatus. So this case that the court will hear this week has some pretty notable procedural history that we wanted to walk through. The initial challenge was filed in a Texas district court, because of course it was, and the district court issued a nationwide injunction invalidating the ATF rule in its entirety. Again, of course it was.

Because of course it did. The judge in that case was Judge Reed O'Connor, the guy who, I can't remember if this is originally your Leah or your Melissa's coinage, but Reed O'Connor, just this tells you everything you need to know about him, basically walked so Matthew Kazmarek could run. He's that guy. He's a Bush II appointee. He's the one who declared the Indian Child Welfare Act unconstitutional. He tried to declare the entire Affordable Care Act unenforceable. He's the judge that attempted to enjoin the Pentagon

from enforcing a COVID-19 vaccination requirement for Navy SEALs. He was just an enormous thorn in the side of the Obama administration. And Kazmarek has essentially assumed that function. But O'Connor's not out of the game yet in, you know, 2024. He's still at it. Definitely. Nobody puts baby in a corner. So that's the guy who enjoyed ATF's efforts to regulate ghost guns.

The Fifth Circuit stayed the injunction as to the portions of the rule that the challengers hadn't challenged. Yes, Judge O'Connor had enjoyed portions of the rule that the challengers hadn't challenged. Yes, Judge O'Connor had enjoined portions of the rule that hadn't been challenged, because of course he did. And then the Supreme Court stayed the decision entirely, which, you know, allowed the regulation to go into effect while the case was pending. Then the Fifth Circuit came back and was like, let's try this one again, and tried to reinstate the injunction as to the challengers in the case. The Supreme Court once again, stayed that. So again, this regulation is in effect. We should say the stays were five, four votes at the Supreme Court with a three horsemen, Thomas Alito and Gorsuch and the

court's gun control wingnut Brett Kavanaugh, saying they would have left in place the district court's nationwide injunction invalidating the ghost gun regulation. And the fact that this regulation has been in effect, as we noted last week, allows us to see that it's actually quite significant. It has shut down some ghost gun manufacturers, dramatically reduced the number of ghost guns used in violent crime. So it's working. So the question in this case is whether the statute, that is the 1968 gun control law Melissa mentioned a few minutes ago, authorizes the ATF to regulate ghost guns in this way. So this is not a Second Amendment case per se. It's more like Garland v. Cargill, the bump stock case from last term.

And that means it's about whether the statute, as written, allows ATF to regulate certain types of firearms. But I think it's fair to say that these guys' ardor for the Second Amendment may have some impact on how they read the statutory language in this case, just as it did in Cargill. What Kate means is that we're likely in for another round of gun porn, or alternatively, the textualist case for unregulated deathly firearms. So that will be fun. Part of the issue in this case depends on whether the language frame or receiver that's referenced in the statutory definition of the term firearm has to be a complete or functional frame or receiver in order to qualify under the law. The rule interprets frame or receiver to include partially complete, disassembled, or non-functional frames and receivers that may be readily completed, assembled, restored, or otherwise converted to function as frames or receivers. That's how they sweep in

the ghost guns here. But the manufacturers argue that frame or receiver, as specified in the statute, defines only complete or functional frames or receivers, not the component parts that are used to assemble ghost guns. So parts as parts, basically, is what they're saying. I like the federal government's argument in its brief that, you know, when you go to Ikea, you're still buying furniture, even though it's not assembled. You know, we don't call that something else like schmurnature when it's not assembled. But another facet of the case turns on the fact that Congress defined firearm to include any weapon that quote, may readily be converted to expel a projectile by the action of

an explosive. And the rule says a weapons part kit that may readily be completed, assembled, restored, or otherwise converted to expel a projectile by the action of explosives is a firearm. And the challengers primary argument seems to be that other provisions in gun control laws specifically regulate parts or combinations of parts. But at least me personally, I don't think that means the natural meaning of quote, may readily be converted to expel a projectile should just be ignored or read out of the statute. Well, you're a feminist, Leah, so you don't count. So shut up. An educated female in the state of Michigan. Like I said, it sounds better in the original.

Educated females are allowed to interpret statues. That's true. I mean, the language that you just read, Leah, to my mind is so clearly in the government's favor. Like, obviously, these qualify. But if the text alone is not enough, the government notes, again, as it did in Cargill, without success. But I think it's important. It, without success, but I think it's

important it was right there. And I think it's really important here. Congress specifically included a bunch of anti-evasion or anti-circumvention provisions like these in the law, which indicated that Congress thought it was restricting efforts to work around the technical definitions by assembling firearms that do the same thing as the restricted firearms, like may readily be converted, obviously suggests that Congress wanted to capture things that would later emerge that would let people get guns they wanted regulated like the guns already in existence in 1968. So the government's reply brief explains, quote, respondents do not deny that their interpretation would allow more minors, felons, domestic abusers, and other prohibited persons to circumvent the act's core requirements by easily buying and quickly assembling firearms without serial numbers, records, or background checks. Indeed, respondents have in fact promoted their products by emphasizing that they are sold with no background checks.

Ten bucks, Sam Alito is going to write either a majority opinion or a concurrence is like this is really on Congress. Ten bucks. Yeah. Which which disadvantaged group is Sam Alito going to insist that ghost guns help because remember last year in Cargill, he insisted that bump stocks were really designed to allow people with physical limitations to have the necessary experience of knowing what it feels like to fire a machine gun. Yeah, arthritis, I think, came up in the oral argument. Like, that's who's really being targeted by these individuals who want to restrict bump stocks, right? He's going to say this regulation is unconstitutional under the 19th Amendment. Like, we're like, educated women want this.

Exactly. Anyway, as Kate said, this is not a Second Amendment case on its face. It's a statutory case, a regulatory case, if you will. But that didn't stop some of the amici, I'm looking at you, NRA,

from gesturing toward the Second Amendment and explaining why the regulation should be invalidated. The NRA brief literally says, quote unquote, throughout American history, private gun making was not regulated, end quote. Stay tuned for that. It's going to be the big

case, I think, this week and a big opportunity for this court to continue with its antipathy for regulation and its love of guns. Moving on to something else the court likes, the death penalty, Leah. Now we get to discuss Glossop versus Oklahoma. So we've talked about this case before, and we actually had one of Mr. Glossop's lawyers, John Mills from the public interest law firm Phillips Black on the show previously to discuss Mr. Glossop's case at an earlier stage before the Supreme Court had granted review. It would be difficult, if not impossible, to cover all of the insanity and misogynist that has gone into this case, but we're going to give you a snapshot of it. Briefly, Richard Glossop was convicted of the murder of Barry Van Treese based on the testimony of Justin Sneed, the person everyone agrees physically murdered Van Treese. After being questioned and coached, Sneed agreed to plead guilty and testify

that Richard Glossop had planned the murder, and that agreement allowed Sneed to avoid the death penalty. Right, so you did hear that right. The person who actually committed the murder was not sentenced to death. And there's no allegation that Glossop personally did any of this. And as we'll talk about, the evidence of Glossop's involvement at all is deeply, deeply sketchy. So almost 20 years after Mr. Glossop's conviction, the state disclosed files showing that the state knew but failed to disclose that Sneed, who was addicted to methamphetamines and had an untreated bipolar disorder, had been prescribed lithium by a psychiatrist, and the combination of drugs and conditions would have cast doubt on Sneed's perception

and memory if it had been disclosed. It could also have bolstered the defense theory of the case, which is that Sneed committed the murder impulsively without any involvement from Glossop, and that combination of drugs and conditions can contribute to impulsive, uncontrollable behavior. The state also allowed Sneed to testify falsely that he had never seen a psychiatrist when in fact he had, and there was conceitedly zero forensic evidence linking Glossop to the murder. It's just Sneed's testimony. At Glossop's second trial, the state said that he and Sneed conspired to murder Van Tries for money, which they then split. And the prosecution to support that pointed to the fact that Glossop had over $1,000 on

him when he was arrested. But there's evidence of a statement from a witness who told the police that the money actually came from Glossop selling his possessions. There's also evidence that the state coached Sneed to account for the discrepancies in his case, including whether or not Sneed used a knife. To editorialize for one minute, Glossop's case has been up and down a few times. The Supreme Court will talk in a minute about the lethal injection protocol challenge. But it was up as well in 2008, actually, when I was a law clerk there. And I have to say,

I remember that the court, when I was there, called for the record in Glossop's case, which meant like all the files from the Oklahoma courts came to the Supreme Court. And I remember reading it. It's odd that I remember. I remembered it so well that I just checked the docket to be sure I was right. And yeah, the court called for the record while I was a clerk there. Anyway, I remember just how serious the questions about the evidence against Glossop were back then. And the court didn't take the case then. But all this to say, there have been questions that have stalked this case from the beginning

about Glossop's potential actual innocence. Right. Because as you're alluding to, even before any of the evidence we were just recounting came to light, the Oklahoma legislature appointed an independent investigation commission that concluded Mr. Glossop's conviction should be set aside. Another independent investigation that the Oklahoma Attorney General commissioned agreed, you know, it reached those conclusions on the ground the state had destroyed critical physical evidence and suppressed other evidence. The police had not searched Sneed's room at the motel or

questioned most of the motel guests and whatnot. The Oklahoma AG agrees that the conviction must be overturned, not surprisingly, given everything that has been said. But yet, despite that concession, the Oklahoma Court of Criminal Appeals refused to vacate the conviction and sentence and said there had been no Brady violation, nor had there been a Napoo violation. And a Brady violation refers to the prosecution's failure to turn over exculpatory evidence, evidence that would suggest the defendant's innocence. And a Napoo violation refers to the prosecution presenting knowingly false testimony. So basically, the Oklahoma Court of Criminal Appeals was basically like, eh, what's the big deal? Sure, the evidence suggests he's a little innocent, and some of the evidence was a little false. But in the big scheme of things, it's just the death penalty. What's that we hear the Oklahoma Court of Criminal Appeals saying?

The rules were that you guys weren't going to fact check. So that's like the one thing that's the one good thing that's going to come out of that whole debacle is we're going to use that for forever. Agreed. So the Oklahoma Court of Criminal Appeals also suggested that procedural limits on post-conviction relief in Oklahoma state courts meant they couldn't or wouldn't consider Mr. Glossop's claims. The court said Mr. Glossop couldn't present the claim now because the issue could have been presented previously, even though the state had concealed the evidence. But it doesn't appear that these are what we call adequate and independent grounds for refusing to vacate the conviction because they're bound up with the state court's assessment of the federal constitutional claims, and the state had waived the procedural limits in any case. Just a few other things to note about the case. One is that, as I alluded to a couple minutes ago, Mr. Glossop was part of an Eighth Amendment challenge to method of execution protocols in the case Glossop v. Gross, which is a case in which the court turned away his challenge

to Oklahoma's lethal injection protocol and set an insanely high standard for individual sentenced to death to satisfy if they are challenging the method the state is going to use to execute them. And the fact that yet another major death penalty case involves yet another possibly innocent defendant is yet another indication of serious, serious flaws in our country's administration of the death penalty. I think this Glossop case has the makings of a this just cannot be, you know, disagreement among the justices, you know, the division between what I previously referred to as the pro Kafka and the anti Kafka justices, you know, those who just look at something and say, these consequences are unacceptable. And

those who say, no, watch me prove my legal bona fides by basically embracing a totally perverse, unacceptable consequence, you know, so maybe 6-3, maybe 5-4 with the chief and Justice Kavanaugh joining with the Democratic appointees, possibly Barrett as well is kind of what I see, or at least that. I hope you're right. And I also do think that the fact that you have the Oklahoma prosecutors on the same side as Glossop represented by a distinguished conservative Supreme Court lawyer, Paul Clement. So the court had to appoint someone to take the other side of the case. Suggest there's, I agree, a good chance that that happens. And it would just be an absolute travesty if it did not. Yeah. So quickly run through some of the other cases the court will hear this week. Royal Canaan

USA versus Wolfschlager is about federal jurisdiction, basically, when you can remove cases from state court to federal court. Then there's Williams versus Washington, an important civil rights case about when you can file a federal civil rights action in federal court when the state has provided you nominally some other administrative remedy to go through first. And then finally, there's Lackey versus Stinney, which is about when plaintiffs in civil rights cases are entitled to attorney's fees because they are the prevailing party when they obtain a preliminary injunction, but then the legislature repeals the statute or scheme that they were challenging. So we will try to return to at least some of those cases once they are argued. And now it's time for some court culture.

And we're going to start with state courts, beginning with some developments from the Arizona Supreme Court. So first, Arizona Supreme Court Justice Robert Brutinell announced his retirement effective later in October, which means that Democratic Governor Katie Hobbs will be in a position to appoint his successor. And notably, two other Arizona Supreme Court justices, Clint Bollock and Katherine Hackett King, are up for retention election. If they lose their retention elections, then Governor Hobbs would also get to make the two appointments that would fill their seats. Speaking of those retention elections, if those names, Bollock and King, sound familiar to you listeners, well, they should because both Justices Bollock and King were among the justices who, in a 4-2 decision issued in April,

voted to reinstate Arizona's 1864 abortion ban. That's right, 1864, before Arizona was a state and before women could vote. Side note, only six justices participated in that decision because one justice on the seven-member court, Justice Montgomery, was forced to recuse himself when a 2017 Facebook post in which he likened abortion to genocide surfaced unexpectedly. Another side note, if the name Clint Bollick sounds really familiar, you're not crazy, but you have been drinking too many Ginny tonics. Clint Bollick is the former vice president of the Goldwater Institute. He's also a co-founder of the Institute for Justice, which incidentally was started with Koch Brothers money. He's also a close friend of, going back to their days in the Reagan EEOC, Justice Clarence Thomas. In fact,

Thomas is the godfather to one of Bollock's children. Another side note, Bollock's wife, Shawna Bollock, is a member of the Arizona State Legislature and was one of the state legislators with whom Ginny Thomas was ardently messaging about overturning the 2020 presidential election. Amazing. Again, both Bollock and King are up for retention elections in November. Two people who reinstated a 19th century law that women played no role in enacting because democracy. Yes. Arizona voters, you have the opportunity to do the absolute funniest thing ever here. Just going to leave it at that. Another state court development, which is jurismandering, has expanded to Texas. We discussed the phenomenon of jurismandering

in an episode last spring. Basically, it's like gerrymandering for the courts. Republicans in a good number of states have modified the rules governing courts in ways that force litigants or certain kinds of litigants to have to file their claims before courts that are staffed with judges who were predisposed to rule against them. And it looks like Texas decided to get in on that game. So Texas Governor Greg Abbott created a new state appeals court that hears all civil rights claims. So this was seemingly designed to circumvent the state having to litigate in state courts that might rule against them. The court is going to be fully appointed by Governor Abbott. Seems like kind of a problem under the Texas Constitution,

but it went into effect September 1st. And, you know, this could be really troublesome for organizations like the Texas Civil Rights Project or LULOC, who, you know, are being raided and investigated for election fraud merely by trying to help people vote. And right now, their recourse is that civil rights court or a federal court that will end up in the Fifth Circuit, which is a problem. I believe the term is fuckery. Yeah, that also works. Now for some positive state court news. Let's hear it for the Peach State, Georgia. A Georgia state court judge, Robert McBurney,

found that Georgia's six-week abortion ban violated the state's constitution and he consequently enjoined it. The decision, which is known as Sister Song Women of Color Reproductive Justice Collective versus Georgia, reasoned that the Georgia constitution protects an individual's ability to choose to have an abortion prior to viability via a right to privacy, or as Judge McBurney puts it, a quote unquote liberty to privacy. And here's some key language. Quote, because the Life Act, that's the Georgia six-week ban, infringes upon a woman's fundamental rights to make her own health care choices and to decide what happens to her body, with her body, and in her body,

the act must serve a compelling state interest and be narrowly tailored to achieve that end. The opinion is a powerful read. It also said, quote, for these women, the liberty of privacy means that they alone should choose whether they serve as human incubators for the five months leading up to viability. It is not for a legislator, a judge or a commander from The Handmaid's Tale to tell these women what to do with their bodies during this period when the fetus cannot survive outside the womb any more so than society could or should force them to serve as a human tissue bank or give up a kidney for the benefit of another. The Georgia Supreme Court has previously said the right to

privacy in the Georgia Constitution is broader than that contained in the federal constitution. I have to say, as I was just reading this excerpt, did it make you wonder whether Melania Trump got an advance copy of this decision and use it to... Have you seen this crazy little excerpt from her novel or her memoir that is circulating? I cannot even engage with that. It is just so woefully insulting. It's truly insane. I am just noting that some of the language, which... I don't care. Do you? Yeah, exactly. Fine. All right. Let's move on. I'm noting a few rhetorical notes of rhetorical overlap.

Yes. So in other parts of the opinion, like the footnotes, which is always where some good stuff is highlighted, the court decided to fact check claims about originalism, textualism and democracy. So, quote, Georgia, however, is not just the peach state. It is also the land of constitutional fecundity. We have had not one or two, but 10 different constitutions. So textualism requires a journey further back in time if the present constitutional language was imported from a previous version. And that is the case here. That right toism, is that the plaintiffs whose rights are at issue in this litigation had no or very limited rights when the constitutional provision was adopted. Liberty for white women in Georgia in 1861 did not encompass the right to vote, and of course, liberty did not exist at all for Black women in Georgia in 1861. Thus, any rooting around for original public meaning from that era would yield a myopic white male perspective on an issue of greatest salience to women, including women of color, end quote.

That kind of seems to be the whole point behind originalism. I'm just going to say. Again, you can hear Sam Alito screaming. The rules were that you guys weren't going to fact check. Leah, that's right. That seems basically the whole point of originalism. And too bad Judge McBurney decided to fact check. He also found the statute violated Georgia's Equal Protection Clause because it contained an exception for circumstances where pregnancy endangered a woman's life and physical health, but not in circumstances where a woman's mental health was compromised.

Other notable passage, quote, this leads into the, quote, weird issue of lack of process required to obtain these health records. I just like the use of the word weird. This felt like Taylor Swift signing off her endorsement childless cat lady, like kind of a fuck you. It's an Easter egg. It's kind of an Easter egg. Exactly. If you're interested in staying abreast of these state court developments and more, I'd encourage you to subscribe to the Brennan Center's state court report, which will have all of these decisions and many more. And a quick note on a federal court decision we wanted to flag. This is a district court decision that is surprisingly not from a district court in Texas.

It is from the district of Columbia. Yes. It is an opinion by Judge Trevor McFadden, one of Trump's nominees, who found that the Biden administration violated the National Environmental Policy Act when it canceled construction of the border wall and ended the remain in Mexico policy. NEPA requires an agency contemplating a major federal action to analyze the environmental effects of that proposed action. But weirdly, the Biden administration did not analyze the environmental effects of immigration policies. So strange. And Judge McFadden took that personally. In a real galaxy brain move, he found that this oversight injured Arizona ranchers because the immigration policies

harmed the environment, apparently by allowing immigrants to exist on American property, I guess. The judge noted that migrants trespassed onto one of the plaintiff's land, and that was at least part of the environmental impact. But even if that did impact the environment, it is wild that the judge would attribute this to the Biden administration's policies, because in order to trespass onto the plaintiff's land is utterly bizarre. Same with ending the remain in Mexico policy. But that is literally the testimony of the plaintiffs and what the court relied on. So here is a passage from the court's opinion. Quote, Smith, that is like one of the plaintiffs who testified, border wall and refused to support the directives to stop using words like illegal alien. two former officials, including Rodney Scott, former chief of CBP, who supported the border wall and refused to support the directives to stop using words like illegal alien. The other

was Mark Morgan, who's now at the Heritage Foundation. After serving as acting commissioner of CBP, he was Trump's pick to be acting director of Immigrations and Customs Enforcement. You know, so we are still living with the downstream effects of Donald Trump's personnel decisions. This is part of what happens when you staff the government with weirdos. One other note, the Supreme Court granted a bunch of cases, 15 for this term. We're not going to cover them in depth now, but we will once they're scheduled for arguments. Among the big cases is a case brought by Mexico against gun manufacturers for the chaos and devastation and destruction caused by American guns in Mexico. There's a case about access to DNA testing in Capitol cases. There are some civil rights and non-discrimination cases, a Fourth Amendment case and more.

All right, we'll leave it there. Up next, an interview about the goings on and future of antitrust. But first, we wanted to flag a couple of things. Voter registration deadlines are this week in Arkansas, Arizona, Florida, Georgia, Indiana, and more. So now is the time to make sure that you, your friends and family are all registered. And you can go and do that at votesaveamerica.com forward slash vote. If you want to get the word out, Vote Save America has great infographics on their Instagram page that you can share. And for those who are willing to do more, Vote Save America has critical volunteer ask. If you're in states like Michigan, Pennsylvania, Georgia, North Carolina, and Arizona,

they need you to sign up to be a poll watcher. Republicans are ramping up attacks on election security. In states like Georgia, Trump-backed officials want to hand count all of the ballots, despite warnings that it breaks state law. So you can go and help out. Sign up with Vote Save America right now at fairfight.com forward slash LFGV. This message is paid for by Vote Save America and has not been authorized by any candidate or candidates committee. Next thing we wanted to flag for you was today's episode of Assembly Required with Stacey Abrams, where she sits down with national voting rights correspondent and our friend, author Ari Berman. They tackle one of the most urgent issues of our time, voting rights. Join them as they dive into what has changed since the last presidential election, uncover the latest

threats to voter access, and give you the tools you need to push back. New episodes of Assembly Required are available every Thursday, wherever you get your podcasts. There has been a lot of talk about antitrust enforcement, in part because of the Biden administration's efforts under the auspices of the Federal Trade Commission and the Department of Justice's antitrust division to curb anti-competitive behavior that negatively impacts consumers and the markets. There's been very intensive coverage of Lena Kahn's tenure as commissioner of the FTC. And in August, the DOJ's antitrust division earned a significant win in a suit against Google, the largest DOJ antitrust enforcement action since the Microsoft lawsuit in the late 1990s and early aughts.

But the interest in antitrust goes deeper than these recent efforts to enforce antitrust laws and curb anti-competitive behavior. Broader questions about how to approach market competition and ensure competitive markets have divided the conservative legal movement and have given progressives fresh insights into harnessing competition laws to serve social justice ends. To take stock of all of these developments and to help us understand what it all means, we are joined today by some hot shots from the DOJ. Joining us is Jonathan Cantor, who is the Assistant Attorney General for Antitrust at DOJ, and Doha Mekhi.

Doha is the Principal Deputy Assistant Attorney General for the Antitrust Division. So welcome to Strict Scrutiny, Jonathan and Doha. Thank you. Thank you so much for having us. Yeah, we're delighted to be with you. So you all have been very busy, and yet you graciously made time to appear on the podcast, as we were talking about just a second ago in August, after a lengthy bench trial before Judge Amit Mehta of the District of the

District of Columbia, DOJ's antitrust division secured a major victory against Google. And this was the first major antitrust lawsuit against a tech company to make it to trial in decades. And Judge Mehta ruled that, quote, Google is a monopolist, and it has acted as one to maintain its monopoly, end quote, in online searches. Can you give us some background on the theory of the case and your plans going forward to defend DOJ's victory? Sure, I'll start. So thank you. It's great to be here. This is a really important case in a really important area of law. When the Department of Justice filed the case against Google, it was the first significant monopolization case that the Department of Justice had filed in

20 years, which is remarkable because Section 2 of the Sherman Act, monopolization is really the cornerstone of antitrust enforcement. And we won the case. It was the second major victory in 50 years, only two. But now it exists against the backdrop of numerous other cases that we filed. And so the case, and it's still live litigation in terms of the remedies, so I'm going to be very careful about what I say and our ability to talk about the case and stick to what's in the court's opinion. But the court was very clear that the company had monopoly power and the company misused its monopoly power and legally maintained it by engaging in, among other things, contracts and other kinds of restrictions that impacted the ability of its partners to work with other rival search engines. Google has been very clear, Jonathan, that it plans to appeal this ruling. And it maintains that its dominance in the online search engine market is because it offers a superior product, one that consumers

prefer because it is effective and user-friendly. Google's position reflects what some call the Chicago school approach to antitrust. And this is the idea that practices that law might consider anti-competitive might actually be good for consumers and competition. And this approach to antitrust was very closely associated with Robert Bork, the Yale law professor, the D.C. Circuit judge and the the Supreme Court's antitrust jurisprudence and laid a foundation for antitrust theory going forward that really focused on whether quote unquote anti-competitive behavior was actually consumer friendly and benefited consumers. The Biden administration's approach to antitrust differs radically from this Chicago school

approach. It reflects elements of what some have called the neo-Brandesian approach. Or hipster antitrust. I like that better, hipster antitrust. Can you explain this approach for us and how it shapes the administration's priorities in antitrust? Sure. I'll start and then turn it over to Doha. But first and foremost, the approach that we take to antitrust is one that's really based on, you know, sound application of the antitrust laws and binding precedents. And so we go back to the words of the statute, which talk about preserving competition, protecting the economy against mergers that might substantially lessen competition.

And then we go back all the way to the Sherman and Clayton Acts, which were enacted in 1890, 1914, respectively, and then updated since, and enforced the law as it's written and as it's been interpreted by courts. I think what happened in the Bork era was there was an attempt, without going to Congress, to essentially rewrite the antitrust laws and essentially infuse certain values about efficiency being the sole objective of antitrust law enforcement. And that's never been the case. It wasn't the case when Congress wrote the law, and it hasn't been the case when Supreme Court has interpreted the law.

And so we just went back to first principles. So you brought some textual healing, right? Like the antitrust version of textual healing to antitrust law. Love it. I think that's one way to put it. But I think it's worth just lingering on this point that Jonathan made, because it's really important. I mean, there are certainly critics of a healthy antitrust enforcement regime. And it's really no secret or mystery why the

critics tend to be closely associated with the interests of monopolists and plutocrats. But there is a rich history that supports a robust antitrust enforcement regime. And to the extent that there was anything radical, it's actually what Robert Bork and people who thought the way he did interpreted the law beginning in the 1980s. So when we look to the foundations of the Sherman Act, what we see is a very deep concern that the kind of private coercive power of corporations that the framers of the statute were concerned about was, quote, inconsistent with our form of government, right? And that's a quote from the floor debate. And it's also important to note that this is a statute, the Sherman Act, that was passed in 1890. And I think all but one senator voted to pass it, right?

I mean, this was a, I think, deeply rooted, to borrow some interesting terms, a deeply rooted sense that monopolies are antithetical to our form of government. And again, I would just sort of borrow from the floor debate that Senator Sherman declared that if we'll not endure a king as a political power, we should not endure a king over the production, transportation, and sale of any of the necessities of life. And if we would not submit to an emperor, we should not submit to an autocrat of trade. And so there are these ways in which the kind of open, vibrant markets and economic opportunity, like as a value that are enshrined in the Sherman Act, kind of rhyme with our most closely held social, political, and economic ideals. It's almost as though there's

a history and tradition of not letting corporate interests stick it to the little guy. Yeah, it's exactly right. I mean, antitrust law is about standing up to bullies. And it's making sure that people have freedom, freedom to choose which products and services they want to use, freedom to choose where they want to work, freedom to choose where they want to live. And if you have a great idea, regardless of where you come from and who you are, if you work really hard, you canities of life, including housing, groceries, you know, the things that allow us to air travel are really important to our way of life and our freedom. And so these are the ideals that animated the creation of the antitrust laws. And these are the ideals that we keep in mind when we enforce the antitrust laws. So I want to ask a question about freedom in a second. But just to kind of underscore something that both Jonathan and Doha have been talking about, which is the skepticism of consolidated and coercive economic power. You know, I think

we did a series of episodes on Project 2025, in which we went through some of the proposals to, for example, give private companies, billionaires, tech bros, finance bros, the power to control nuclear energy, right? And if you think What could go wrong? Right, exactly, about like the vast amount of wealth that is behind some of these corporate interests, you can see why people like FDR, or the creators of the Sherman's Act and Clayton Act, were concerned about such huge, immense, vast capital power competing with government power, or being able to influence government power to the extent where, you know, it's difficult to disentangle the two. And that's

part of what, you know, antitrust law is designed to remedy. But now my freedom question. So, Jonathan, you spoke very eloquently about how enforcing antitrust law enables freedom. I would like one of you to maybe explain how hipster antitrust or the neo-Brandesian approach to antitrust could help me get Taylor Swift tickets. That is, I want to be free to be in my Taylor era. So it is no mystery that we have brought enforcement actions in a lot of industries where people have firsthand experience about how they're experiencing the market, about the availability of goods and services. And all of our cases are important to us.

We think they're important. They're right on the facts and the law, and we love litigating them. But there are certain cases that seem to be more resonant than others. And I think we were really touched to see the public engage with our Section 2 monopolization breakup case against Ticketmaster, because it was really a company and experience of the market that needed no introduction. And so this is really, and I should say that's live litigation. So we won't get into, you know, the merits of that case, because it's playing out in a federal court in New York right now. But again, there's this ability of the public to see, okay, this is how the government is addressing corporate power. And it, you know, it helps connect us to the people that we're entrusted

to protect. And I should say, we love our sister agency down the street of the Federal Trade Commission, they do really important work. There is a wonderful history and tradition associated with that institution. But there's also a really deep history and tradition in the the governed, right? And so when people understand what we're doing, when people understand that the government has something to say about coercive power, making their lives worse, making their experience of markets worse, I think it helps connect us to the people that we're entrusted to protect. And that's very cool. Yeah. And there was an interesting, you know, in the 80s, when the antitrust enforcement took a downturn, there was an interesting side effect, which is the evolution of the law,

right? And so antitrust is statutory, but it's a general statute that's often, you know, refined by interpretation from courts, including all the way up to the Supreme Court. I think back to law school and the case books were filled with US v. Somebody all the way up until the 80s. And then antitrust law case books stopped including as many cases of US v. Somebody because the US stopped being people as frequently. And it's been over 40 years since we've been to the Supreme Court as the antitrust division in the Department of Justice on an antitrust case. During that period, antitrust law has taken a turn.

And that turn has largely been driven by private cases. And as the Department of Justice, we have an obligation and responsibility to make sure that we are vindicating the rights of the public. And so private cases are important. Private attorneys general is a feature of the antitrust laws. But private cases are designed to vindicate the rights of private plaintiffs. When it's only in the United States Department of Justice and the Federal Trade Commission, you can step into the shoes on a federal level of the general public. And so it's important that we do that when we see violations of the law.

I like the idea of DOJ V-ing in like a va-va-voom kind of way. But Jonathan, as you were just saying, antitrust law was really shaped for a pretty extensive period by, as Melissa described, the Bork School of Antitrust, which really limited federal antitrust enforcement, you know, in the name of insisting that this was really in consumers' interests. You know, conservatives, while historically they have been in keeping with the Chicago school, the Bork school favored less antitrust enforcement. But in recent years, there has been something of a schism that has emerged, you know, among conservatives with at least a group of conservatives calling for greater enforcement of antitrust laws in at least particular contexts. So what's driving this schism and the interest in antitrust enforcement? So this is actually a super interesting phenomenon to observe. And if you'll indulge me for a moment, I'm going to try to explain the roots of what I think is like a

realignment on antitrust principles and concern over corporate power. I think that many of us, I consider myself an aging millennial, and so I feel like I've had a front row seat to this problem. Many of us saw the financial crisis, the two-tiered recovery, the fact that there was stagnating wage growth, that there was more inequality, that a small number of companies had outsized sort of wealth and success and power, that new business formation had really slowed. And then there's like the massive demand side market failure that's associated with the pandemic. And I think that for many people, watching the economy work less well for them caused them to ask questions. And someone much smarter than me remarked that people look to antitrust when they're uncertain about the future. And so I think there were just more questions about the power of corporations relative to

individuals. And interestingly, I think it's the conservative legal movement that I think was first to question corporate power. And again, we as sitting public officials, it's our obligation to talk to everybody without regard to politics, without fear or favor, and to really engage with citizens, you know, of all stripes about their concerns. And, you know, we have had occasion to engage, to study this concern. And I think it's, you know, the conservative legal movement is coming to antitrust in large part because of concerns about deplatforming, because of concerns about censorship. Personally, I take no position on how real or imagined that may be, but it certainly drives a certain kind of political engagement. That's okay. We have a position on that, Doha. Don't worry. We have an apparatus through different kinds of organizations to really lay intellectual foundations. But to give them some credit, I do think that there is support for this idea that the founders were skeptical of corporations, right? Corporations were a grant of the king, a common law. And this idea that corporations would participate

in our form of governance was something that was deeply questioned. And I think many of our most revered leaders were deeply hostile to the idea. And that's kind of interesting. Want to give a shout out to Joey Fishkins and Willie Forbaugh's book, The Anti-Oligarchy Constitution, that really goes into greater detail about what Doha, you were just saying. Exactly. We're big fans of that book. Well, I think Joey and Willie in their book make clear that there is no history and tradition of having an emotional support billionaire at the court or being primed for corporate deregulation at the court. But yet here we are. Well, your point about regulation is really important because a lot of conservatives are concerned about regulation by the government. But when you're regulated by a corporation,

that is far more invasive. There's no due process. You could be taxed in the form of higher prices and fees, junk fees sometimes. And there's no accountability. And so one of the reasons why our society works so well when our economy is competitive is because it gives people the freedom to vote with their feet, gives the people freedom to say, I don't like what this company stands for. I don't like their products. I don't like their services. I don't like them telling me what to see, think, or hear. And so I want to go elsewhere. And those kinds of freedoms me, I mean, he talked about true individual freedom cannot exist without economic security and independence. He talked about how people should have almost like a new bill of rights and the right to a useful and well-paying job, the right

to earn and provide adequate food and clothing and recreation for one's family, the right of farmers to sell products and have a reasonable turn on investment to earn a decent living, the right of businesses, large and small, to trade in an atmosphere of freedom from unfair competition and domination by monopolies at home and abroad, and the right of every family to a decent home. These issues resonated then in 1944, but they resonate now. And that's one of the reasons why we're seeing this resurgence in the discussion of antitrust and corporate power. It's a really interesting point and sort of linking it to social justice ends. I mean, like this schism within the conservative legal movement is really interesting, like this idea

that having a set of corporate overlords, whether it's big tech or something else, is sort of anathema to conservative principles. Not all conservatives subscribe to that. But it is interesting that there are some who are looking to you and looking to antitrust, even despite the turn away from Chicago school style antitrust enforcement in order to be able to do that. So that by itself is actually quite interesting. But what you just said, Jonathan, sort of speaks to the effort among young progressives to look at antitrust as perhaps an unexpected vehicle

for advancing social justice ends. I say unexpected. I don't think it's unexpected to you, but I think most people growing up and going to law school from the 2000s forward would not necessarily think of antitrust enforcement as a social justice vehicle, at least not in the way that it was taught and purveyed for much of that period. Yeah. Not when I went to law school, which I'll date myself. I graduated in 1998. But I've had, through this position, the privilege of visiting with law students across the country. And I've been to over, just in the last couple of years, over 20 law schools and business schools across the country.

And people are filling up rooms to talk about, students are filling up rooms to talk about antitrust. And it's not because they're interested in high paying jobs at big law firms. They're filling up rooms to talk about antitrust because they believe it's important to their way of life. They understand that it matters. They understand that if they want the American dream of being able to work hard and realize prosperity, they need that economic freedom and opportunity. And so it's really exciting. And so one of the things that we're seeing is this growth of interest, people coming to work at the Department of Justice. We have some of the most talented, exceptional young lawyers and economists who are coming here because they want to be here. They care deeply about our mission. And they believe that what they're doing is important, not just to output, not just to prices, but to our way of life.

It's such a good point. I was at a recent meeting of an If, When, How chapter, and one of the students in the group mentioned antitrust, and specifically in the context of religious hospital consolidations. And the question was essentially, is antitrust a useful vehicle for addressing the fact that so many hospitals, especially in rural areas, are consolidating, and they're consolidating under the umbrella of companies like Dignity or Catholic Health Services, which means that all of the hospitals in that area are under that umbrella. And that limits the degree of reproductive care, like tubal ligations, abortion services, contraception, all of that, whether that can be offered because those services are in conflict with the tenets of Catholicism. And I thought it was a really interesting question. And this idea that antitrust might have a relationship to

reproductive freedom, I think, was one of the students had not previously contemplated. Can I just add one additional potential example? You know, if you think about, for example, Hobby Lobby versus Burwell, where you have a corporation, right, asserting the freedom not to provide their employees with certain forms of reproductive health insurance, right, you can imagine a situation where you have a monopolistic employer, right, someone with a ton of corporate power, and then people not having the freedom or ability to actually find another employer who would offer them health insurance, you know, to cover certain forms of health care. I think that's exactly right. And to be unequivocal about it, antitrust has something to say about all of these forms of consumer choice. And antitrust, even Robert Bork,

I think, would concede that if he were living, he would concede that there are markets for all of these forms of goods and services. And the really beautiful thing about antitrust is that we as public officials don't have to choose which goods and services are available. If you have robust markets, if you have open, vibrant markets for health care, for information, and other sort of necessities of life, you can make those choices for yourself and pick what kind of health care works for you and for your family. So just in thinking about the kind of political through lines through a potential fissure or, you know, realignment in antitrust law, you know, as both you and Jonathan are describing the kind of underpinnings of

antitrust law, I do hear a lot of resonance with progressive principles, you know, being skeptical of too much consolidated power, being skeptical of domination, wanting to ensure that important decisions are made through institutions that are representative, care about the public interest, are made with due process. And so I hear all of that. And yet, maybe this is because I too am an aging millennial Doha, but I am used to the conservative legal movement always pressing this idea of freedom from government regulation, and that anything that is structured by the economy is just insulated from government power. While progressives respond that like, okay, you say we should just leave it to the free market, but markets aren't free, like the way markets look are structured by the laws that we have, or sometimes the absence of

laws. And while, you know, I have seen, you know, some of the calls from Republican Party officials, as well as the conservative legal movement against big tech and woke capital, you know, when those institutions are perceived as being hostile to the Republican Party interest. leading to a movement toward broader government intervention writ large outside the context of antitrust or, you know, anything else that you are seeing or observing as far as potentially revisiting, you know, some of the principles that I guess I had associated with the Republican Party? You know, we focus on antitrust, but to your point that, you know, there are a lot of the issues that you just raised are symptoms of a problem, a problem of people not feeling like they have control over their lives, and that there's an unaccountable entity who is making decisions for them. And if you're, I think back to a conversation I had with a friend of mine who is very conservative in his philosophy, but is pro antitrust enforcement.

This might be, you know, 10 plus years ago. It is when I first realized that there was some overlap. And what he told me was that he's opposed to concentration of power. And whether that's government power or corporate power, the decentralization of power and the deconcentration of power and freedom go hand in hand. And it was enlightening to me because it made me appreciate that there, you know, we might all come at this from different points of view, but there are certain underlying principles that you can, you know, string throughout.

The other thing I will point out is that, you know, there's in the 1980s, antitrust became almost like the foot in the door for a broader movement about law and economics, and a broader movement to infuse certain ideas about efficiency and deference to companies and corporations. There's a great book by Binya Applebaum called The Economist's Hour. He talks about how a lot of the economists used to be in the basement of government agencies, and then they all got the big corner offices. And there were some, again, the antitrust division relies on some of the most talented and brilliant economists, and economics has made a lot of strides, and we think there's a lot of value and benefit to working closely with economists.

But I think this sort of brand of economic philosophy that was sort of let in through antitrust became infused throughout government. And I think as we think about, okay, what is the right way to think about our economy? What is the right way to think about the relationship between economy and freedom and justice? You know, we need to sort of think about, you know, and it's not surprising to me that antitrust is becoming a focal point and a vehicle for that conversation. I mean, this idea that government has nothing to say about markets is such a joke, right? Government policy helps structure markets. And even if that were up to like reasonable debate, I mean, markets exist to serve people, people don't exist to serve markets, right? Just like as a threshold issue. Second, I mean, you mentioned your series

on Project 2025. What is Project 2025, if not a program to use the levers of government power to structure the lives of Americans? And so, you know, that is why Jonathan's point about being, you know, averse to concentrations of power in many different forms is a really important one. And I think it's actually a good uniting principle. You know, to go back to the point about antitrust being an important tool for people of all stripes, including young progressives. I mean, there are roots for supporting antitrust that you can see in the civil rights movement, right? You see MLK and Baird Rustin saying in the 1950s and 60s that they viewed their gains

in terms of political rights as being limited if they were not backstopped by economic rights, right? MLK was assassinated getting ready to stand in solidarity with sanitation workers in Memphis. That was about economic coordination rights. And so you see those principles infused in the civil rights era. And it is really interesting to observe that the conservative legal movement that grew to distrust government intervention was really upset about judges, right? They were upset. Robert Bork wrote at length in the antitrust paradox, as you pointed out, about what they saw as a form of judicial activism. And it's interesting to see

how that dovetailed with another conservative legal movement critique of the time that the Warren and Berger courts had engaged in activism to expand social and political rights. Ironically, a lot of what we're promoting is reducing activism, judicial activism in the context of antitrust. We're saying go back to the statute, go back to the original intent of the antitrust laws, go back to the binding Supreme Court precedent. And I think a lot of the Chicago school movement was about taking new principles and trying to, almost through activism, rewrite the antitrust laws without going to Congress.

That's actually a really good place to start because there has been no court that says more about judicial restraint but doesn't really practice it than this particular Supreme Court. We're a Supreme Court podcast. And although we don't talk a lot about antitrust, we have had some antitrust cases pop up over the last couple of terms. And so before we let you go, we thought we'd get your take on the court's most recent antitrust case, NCAA versus Alston. There was a majority opinion from Justice Gorsuch and a banger of a concurrence with Coach Kavanaugh that actually led to Reggie Bush getting his Heisman Trophy back. So might be the first time Brett Kavanaugh has had a salutary

social effect. Amazing. Yeah, Doha should jump in this. And the reason I jumped in is because Doha is the world's leading expert on the intersection between labor and antitrust and was the person in this country most responsible for reviving the intersection between labor and antitrust and has built out our labor antitrust enforcement program and is the most expert person in the entire world on this issue. And so I wanted to make sure everyone understood that the words you hear from her are going to be extraordinarily meaningful. Doha, I was going to say, I thought maybe Jonathan was going to say you were the foremost expert on the intersection of Reggie Bush and Brett Kavanaugh, but that seems not to be the case. So why don't you tell us about your work infusing labor or integrating labor law and antitrust? So let me say, Jonathan, I think is overly generous and very kind. It is true that labor and antitrust is very near and dear to my heart. And I spent many years thinking about the ways that the antitrust laws should be brought to

bear in labor markets to make sure that working people had the same kinds of opportunities that we want consumers to have when they go to the grocery store or try to buy a house. NCAA v. Alston is really meaningful. I think it's an early inflection point in the sort of set of events that get people, especially young people, excited about antitrust. The NCAA for many, many years essentially operated a cartel whereby they set the price of college athletes' labor at zero. And there is incredible literature and research about college athletes going hungry because it turns out when you're a Division I college basketball or football player, maybe you need 4,000 calories a day and the NCAA wasn't supporting

meal plans to get them the food that they needed in order to be college athletes. Of course, at the same time, the NCAA was a billion-dollar organization. I think many people have observed also that the victims of this cartel tended to be black and brown athletes. And so this had not been questioned since an older Supreme Court opinion called Board of Regents. And for 30 years, the tyranny of this really persisted. But a private action made it all the way up to the Supreme Court. And finally, you had nine votes saying price fixing labor is price fixing. That has been illegal in this country for over 100 years. And it's this really lovely moment where you get uniformity in the court about how wrong

this is, right, when this principle had not been questioned for 30 to 40 years. And I think you guys have spoken in ways that are compelling about court actions that we find disappointing as citizens, but this was really a bright spot and a moment to rejoice. Thank you so much, Doha and Jonathan, for joining us and for bringing more antitrust law into legal culture and more V-ing on behalf of the federal government as well. Thank you for having us. We will V away. Thank you so much. This was great. Strict Scrutiny is a Crooked Media production hosted and executive produced by me, Leah Littman,

Melissa Murray, and Kate Shaw, produced and edited by Melody Rowell. Michael Goldsmith is our associate producer. Audio support from Kyle Seglin and Charlotte Landis. Music by Eddie Cooper. Production support from Madeline Herringer and Ari Schwartz. Matt DeGroat is our head of production. And thanks to our digital team, Phoebe Bradford and Joe Matosky. Subscribe to Strict Scrutiny on YouTube to catch full episodes. Find us at youtube.com slash at strict scrutiny podcast.

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