Strict Scrutiny - Doing Government on Twitter

Episode Date: November 6, 2023

Melissa, Leah, and Kate recap cases the Supreme Court heard last week about whether government officials can block people on social media platforms. Do the justices actually understand how social media, or even the Internet, works? Unclear! Plus, a recap of the case over whether the phrase "Trump Too Small" can be trademarked. They also preview the upcoming second amendment case, United States v. Rahimi, which challenges a federal law prohibiting people subject to domestic violence restraining orders from possessing guns.Read Melissa and Kate's op-ed in the New York Times, "One of the Most Brazen Republican Schemes Around Abortion Is Happening in Ohio."Check out our new shirts, dropping just in time for holiday shopping!Bluesky: leahlitman.bsky.social, profmmurray.bsky.social, Kateshaw.bsky.social, [e-mail], [e-mail]: @profleahlitman, @profmmurray, @kateashaw, @strictscrutinypodcastFor a transcript of this episode, go to crooked.com/strictscrutiny Follow us on Instagram, Twitter, Threads, and Bluesky

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She said, I ask no favor for my sex. All I ask of our brethren is that they take their feet off our necks. Welcome back to Strict Scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it. We're your hosts. I'm Leah Littman. I'm Alyssa Murray. And I'm Kate Shaw. This week, we have something of a more traditional episode for you than we did last week. So we'll begin by recapping the big First Amendment cases the court heard last week, as well as a case about civil forfeiture, which we actually didn't preview in our last episode. We will then briefly look ahead to next week when the court will be hearing the hugely important Second Amendment case,

United States versus Rahimi. But we are going to reserve a lot of time to talk about that case in our next episode after the court hears oral argument. And as for today's episode, as always, we will end with some court culture. So on to the recaps. Last week, the court heard the social media blocking cases, O'Connor Ratcliffe versus Garnier and Linkey versus Freed. And just as a reminder to those of you who didn't have an opportunity to listen to last week's episode, these cases are about the First Amendment and specifically whether the First Amendment applies or rather when and how the First Amendment applies when a government official blocks someone on social media platforms like Twitter or Facebook.

And again, for those of you all the way in the back, the First Amendment, as we discussed last week, applies only to state action. So don't go to the supermarket talking about your First Amendment rights unless that supermarket is run by the state. They don't care. State action is action by the government, and the First Amendment only applies to restrict state actors. And so these social media platforms, I hate to break it to you, are not actually the government. And so there are circumstances where government officials have accounts on these platforms, and they may actually use them for all sorts of purposes, including communicating with the public and their constituents about what might

actually be official or governmental matters. And so the question in these two cases is, when do those accounts on those social media platforms make the transition from being private to being state action? Or even more particularly, when do certain posts cross over and become state action? So let's share some overall thoughts before we get into the nitty gritty of these arguments. You know, first, not on the substance. These arguments were insanely out of control long. I was listening. Long.

Pack a lunch. Pack a lunch long. These were ridiculous. They went on forever. The second argument in the second case, which is about the same issue, didn't start until 1147. That meant the first argument was over 90 minutes when arguments are just supposed to be an hour. And at various points during the second argument, it was clear everyone had run out of steam. You know, the justices and the advocates were kind of like, well, I was discussing the first argument.

Like, dudes, get this under control. Lock this down. Dude, get this under control. John Roberts, what are you doing? Get this under control. Lock this down. Dude, get this under control. John Roberts, what are you doing? Chief Justice Roberts, get this under control. Yeah. Yeah. No, he has lost control of things in more ways than one. All the ways. All the ways. All the ways. Now shifting to the actual merits of the cases, the justices seemed somewhat cautious or maybe a little bit nervous about making broad pronouncements about how all

of social media might work and when you have government officials with accounts on social media platforms. So there's some hope that we might get like a fairly narrow ruling in this case or cases, as we suggested last episode. And that would probably be a good thing, although it's a little unclear. There did seem to be real hesitation among the justices about what general tests to adopt in order to determine whether there has been state action. And so they wanted to know whether the legal tests should be framed in terms of whether the government has a particular duty to do something or the authority to do something, or should there be a different legal test, like whether there

should be a test that's based on the appearance and function of these social media accounts. Or maybe there's a different test, whether the legal test should be whether or not the action or activity on social media is framed in terms of the official doing his or her job. And then courts might consult formal law practices and other guidance to determine that there's been state action. But that seemed to be the big question. Like, is there an actual test by which we can determine in this context whether state action has occurred? There's also a lot of uncertainty, given the uncertainty of the tests that might apply in this context, about what factors or evidence might be relevant to whichever of these legal tests the court might adopt to determine whether an account tips over into being state action.

So, for example, there might be a situation where a public servant has a disclaimer on his account that says, this is my own personal account. So in that situation, can it ever be state action? Would it matter when the account was started? Like, was it started before the person became a government actor? Or was it after? Does it matter what proportion of official versus personal content the account contains? And that actually got really kind of hilarious, because they parsed the whole question of what is the proportion of dog posts to school closure posts? And I thought that was pretty funny. But again, the whole thing is turning on the test and whatever test they choose will then determine what kinds of evidence would be marshaled to determine whether or not the account has tipped over into state action. Yeah. So another part of

the question that the court was asking was whether court should focus on stuff the government does as a matter of custom or practice that might not be necessarily written down in the law, like say, the government generally communicates with the public, you know, or is generally starting social media pages, even though that's not written down in law. You know, we should say like, this category of things, customs and practices seems like it definitely has to matter because the civil rights statute 1983, which is the law that allows you to sue state and local officials, you know, when they're violating that allows you to sue state and local officials when they're violating the Constitution, says there is state action not just through laws, but also customs and usages. And this came up in the oral argument. Plus, in some 1960s cases, the Supreme Court has

said that a government official can still be a state actor even when they are violating state law. So there doesn't necessarily have to be a state law authorizing an official to do something in order for there to be state action. So in addition to parsing the actual accounts at issue in these cases, the justices were very fixated on coming up with hypotheticals to try to test out how the different theories being floated might apply on the ground. Some of these hypotheticals, one from Justice Sotomayor, and though it pains me to say this, one from Justice Kavanaugh, were actually pretty helpful. Although don't worry, we will also identify places in the argument where Kavanaugh gets no credit. But there were other hypotheticals,

like ones from Justice Alito, which were generally speaking less helpful. So let's start with a couple that seem to move the ball forward. We'll begin with Justice Kavanaugh, who asked about a situation where a city manager posts on Facebook about new recycling bins that people have to use. Would that be state action, right? And in response, the lawyer for one of the officials seemed to say that's not state action, at least if this new information about the requirement to use these recycling bins is announced elsewhere. But, of course, what if it's only announced on the official's Facebook page, right? That might be different. The lawyer said the same thing, that is, it is not state action about posts announcing things like school closures, though there too, as the argument

proceeded, it seemed pretty clear that maybe everybody agreed that if the only place something important and official was announced was that government official's private Facebook account or other social media account, probably that would have to be state action. And I'm not sure by the end of the nine hours or whatever it was, anybody was really suggesting otherwise. But it's often the case that things appear on private as well as governmental sites. And there, I think there was a lot of disagreement. So basically, every city manager in America is now going to issue a press release in addition to a Facebook post for every official action undertaken is the upshot of all of this. Justice Sotomayor also had a very, very helpful hypothetical. And it was one that took place

outside of the context of social media. So again, sort of trying to see how these tests might play out in other contexts. So her hypothetical framed up this scenario. What if a government official sets up a hotline for people to call when there is an emergency? And people would call, they would report their emergencies, and the state would respond by providing emergency services. Wouldn't all of that be state action, Justice Sotomayor queried? Well, according to the lawyer, only responsive emergency services would constitute state action. So only what the state did in response to the calls would be state action. Setting up the hotline to receive those calls would not be considered state action, which

seems a little weird. Yeah. And as Kate was suggesting, the ball really seemed to move against the officials and in favor of the individuals who were blocked when Justice Kagan got the federal government to agree with the lawyer for the officials claims that none of this is state action. You know, that felt kind of like a turning point to me, like that was just a little too close to the sun and a majority of the court was not going to accept a theory that that would lead to that result. Alito also offered some less helpful hypotheticals. He came up with this, you know, real gem, which is, okay, what if an official calls some friends over to his backyard? Probably landscape. To Hagrid's Hut.

To Hagrid's Hut. Landscape and company. Nice, Melissa. Read up on your older ProPublica investigations if you can't even remember what Hagrid's Hut refers to anymore beyond the Harry Potter books. A life-size replica of Hagrid's Hut specifically. You know, when we were all young and naive and thought that there was really just one sort of like luxury jaunt. Just the one.

Just the one. There are so many scandals now. It's the Adirondack compound. Right. Complete with the life-size replica of Hagrid's Hut. I need a refresher everyone's backyard obviously exactly all right and also there's like a counter where they make you like ice cream and things right like the name is malt shop right yeah yeah love that okay so now maybe

dark money isn't all bad it's delicious all. So imagine you're a government official has friends over or if a government official is approached in the grocery store and the official basically says, like, I'm shopping and I can't have a substantive conversation with you right now, are you saying that's a First Amendment problem? And I don't think anyone was, but that was what the suggestion was. There's just this slippery slope. And if we do allow that these social media accounts are sometimes state action, then all of a sudden public officials are going to be overrun with constitutional claims every time they tell somebody to let them pass in the grocery store. What would be next, Kate? Like investigating whether or not justices have friends? I mean, this could go anywhere.

Are you saying it's unconstitutional for me to have friends, right? Like definitely unconstitutional to have people over at your house, your very large house. Well, that's what the left wants, wants to make all of that unconstitutional, clearly. Friendship is unconstitutional. Uh-huh. Yeah. So this is a point they sort of came through in a bunch of alito's questions yeah and pam carlin who you know was characteristically fabulous in addition to i think like pretty funny um had no problem with dealing with these hypotheticals she was

like if your ice cream is gonna melt you sad little boy you can tell them you're gonna eat your ice cream and not talk to them and like the first amendment won't stop you from doing that um at another point she was kind of like poking some holes and like making fun Amendment won't stop you from doing that. At another point, she was kind of like poking some holes and like making fun of the idea that government officials are always on the job by saying, you know, look, nobody thinks they can claim a right to come to your house when you're reading briefs.

Like get over it, dude, be serious. I love that moment. Sam Leo late at night pouring over his briefs. Yeah. Well, that was not the only humorous moment at oral argument. So let's play some of the most hilarious moments in this long, long oral argument. I'm glad there were moments of hilarity because it kind of broke up the unbelievably lengthy frame of this. So let's hear this one from Justice Barrett.

I think it's very difficult when you have an official who can in some sense define his own authority. So I think for a governor or, you know, President Trump, it's a harder call than someone like a police officer who's a subordinate. Or I could, you know, my locker could just start posting things and say this is the official business of the Barrett chambers, right? And that wouldn't be okay. But if you know that, that wouldn't be okay. I have questions. What do you think is going on in the Barrett chambers? I was curious. Do not know.

I mean, we have sometimes wondered whether one of her law clerks like might need a safe word when we speculated that maybe someone in that chambers was listening to strict scrutiny. And, you know, so who knows? Maybe. We'll know when that clerk is dropped off in a drop box. That's right. To be adopted by the left. Okay, so another tip we have previously offered, but is going unheeded, so we need to repeat again, is that advocates, please do not respond to Justice Kagan with your own hypothetical. It's not going to work. You may think it never worked for anybody else, but it will work for you. You're wrong. That's not how any of this works. So let's play that clip here. Let me give you an example closer to the school board case. There are often... Well,

why don't we do my example? Because how are you going to know where the road closures are? I mean, now you're being — I thought that we were starting off from a point of if the only place that somebody can know where the road closures are is on your private site. Mr. Wu Pan said that was state action. I was going to go on from there, but you seem to be contesting that. I guess our view is that if there's a specific duty to make that information available. It's not a specific duty, Mr. Joshi. Duties don't work like that. You're in charge of road closures. That's your duty, to be in charge of road closures. And if you are not obligated to talk about road closures and tell the public about road closures, if you do it on your private site, then I think

you are probably acting in your personal capacity. Now, I agree, there may be duties to inform. And in those cases, if the only place you do it is on your personal site, that may well be state action. Whereas if you do it on both sites, it wouldn't be. No, why don't we do my example? Yeah. I need to learn. This should not have been surprising that she was uninterested in having her hypothetical varied. Nope.

It's a trap. It's a trap. Just answer her question. Do not give her a different hypothetical. Just continue. I think one reason why we are anticipating a narrow ruling here is that this case leaves a lot of details to be worked out. And I'm not exactly sure, and I think you two would agree, that these are the nine people who really get the internet and social media and are in a position to sort out those details. So, for example, Justice Gorsuch had a particularly interesting vision of how Internet harassment works. So let's hear from him. What if the individual harasses the public official

on all of his personal cat pictures and children pictures and he finally gets fed up and he just blocks them from the channel? No, no, all the harassing in my hypothetical has to do with cats. The commenter hates cats. And maybe he hates your children too. I don't know. All those cat pictures, they'll really get you. Really make the internet a hostile place.

That's what everyone's worried about on the internet. All the cat pictures, all that trolling, that feline trolling. It did seem like the justices were unnecessarily hostile to and skeptical of people using social media accounts to post about their pets. This is further evidence to me that the justices might be sociopaths. So let's play that clip here. Well, I mean, on these pages, people have both a job in the government and they have all sorts of other things, whether it's cats or children or whatever it is. And the problem, it seems to me, is we kind of have to disaggregate that, right? And say, well, you know, you have to have a governmental page and you have to have a private page and you can't mention the government on your private page or else it's going to become a government page.

And as I understand it, you basically say if you've got 5 percent government, then we the government can basically say the whole thing, even if the rest of it is all about your children and the dogs. That's ours. And if we don't like little dogs, we can say, you can't put pictures of little dogs on there. And it seems to me that that effort to kind of disentangle the two things doesn't really reflect the reality of how social media works. So, Your Honor, I have to push back in two respects. First...

About the dogs or... A little bit about the dogs. To me, it sometimes felt like they don't understand or are just pretending not to understand that part of politics is like presenting a persona and personality and aspects of your personal life. You know, maybe if like you don't have a personality or like you have a bad personality, you like wouldn't get this. But I mean, I don't know. It was just like a little strange to me. There was also this moment where the chief attempted to describe the internet and like all of social media in the following terms. I mean, usually we're told in these, you know, social media, whatever cases that it's not a

question of a physical asset. And in what sense is this really private property? It's just the gathering of the protons or whatever they are. This was his hello, fellow kids moment. Hello, fellow kids. Want to get on the protons with me? Are we really surprised by this? I mean, we just had this new Daily Beast reporting that suggests that the new Speaker of the House, Mike Johnson, doesn't have a bank account. Is it that surprising that maybe the Supreme Court justices don't know how the Internet and social media works? I mean, checks out. I would say that there are real differences between them on that score. And that was clear during the argument.

Among the justices, not between Mike Johnson. The chief and Johnson, I don't know. No, I meant between the nine on the Supreme Court. So Justice Sotomayor, for example, she was self-deprecating, but she clearly did seem to know, unlike the chief, what she was talking about. So either she spent some time, time alone, time with her law clerks, who knows, learning about these platforms, or maybe she actually is extremely online. I truly don't know if she did the research or if this was all authentically coming from her, but let's play one clip here. So what do we do with what was then Twitter? I'm going to continue to call it Twitter because that's what it is here. Okay. What do we do with Twitter where the blocking blocks, especially now, blocks access?

Previously, you could still look at the Twitter account. You just couldn't post. What happens now when if you don't have your own Twitter account, you can't even look? And if you're blocked, you're not permitted to look. What was then Twitter? I know it was a little bit like, it's always Twitter to me. But like, if you don't have any relationship with the place, I'm not sure you care that much. Super savvy social media, Sonia. I love this. She was dropping a lot of knowledge. Like she wanted it to be clear, like, I am not like the

rest of these people. I have a Finsta and I'm not afraid to use it. You know who was at pains to make clear that he is not a Facebook person? Justice Thomas. So let's play that clip. What exactly is the property? The contract talks about terms of services, I guess. I'm not a Facebook person, but I assume they would not consider the service property. Did this seem credible to you?

I am not a Facebook person. And neither is anyone in my family. Not in my household. Not. No, no, no, no. Thomas is know anything about that platform. Yeah. I mean, it's just a little conspicuous.

Like we all have seen Ginny's Facebook posts. It was like calling attention to his relationship to Facebook specifically just felt like, I don't know, trolling. Maybe he's always trolling. I'm not sure. He should have been like, I'm not a threads person, or I'm not a blue sky person. I'm not in the metaverse. I do think he's subtweeting us constantly, but whatever. In any event, I think we're all sort of cautiously optimistic that we'll get a ruling here that suggests some of these accounts slip into being state actioned. And I think one of the reasons I think that is good that it's going to be a limited ruling is because of something Kate alluded to in the last episode. And that is specifically that the whole act of blocking and censoring certain constituents or people online

might be part of a very anti-democratic trend that is nascent at the moment. And this alongside other anti-democratic activity could be a lot at a time when our democracy may actually be particularly vulnerable and fragile. So I hope that this will be more limited and that this is one of the upshots of that. Yeah. I want to say something about the kind of democracy implications, but actually in terms of the kind of, you know, our hope that this will be a limited decision. I hope that they are careful not to tie the holding too tightly to the specific features of Twitter and Facebook as they existed during these events. Because as came up in the oral arguments, like this is just such a dynamic environment. And so to my oral member posed a question about, well, why didn't the official just disable comments as opposed to blocking this person?

And the answer was that actually the features of Facebook at the time just like did not enable that. And so I just like, I hope they have the wisdom to just like abstract a little bit. I guess that's what I mean. Not to broaden, but to abstract somewhat the principles. I hope they remember MySpace. Remember when everyone was talking about MySpace? And like, who talks about MySpace now? Like, you've got to build a rule that endures beyond MySpace. That should be the principle. Yeah. But so back to the kind of democracy point, I mean, one thing I wanted to say was actually about the position of the solicitor general in this argument. So that's the lawyer representing the federal government. And as we mentioned last week, the SG's office was in the case on the side of the local officials. So the federal government

wasn't actually a party, but they participated basically advocating for a rule that would very rarely, though, you know, not never result in accounts like these being deemed state action. So they said, you know, if an official is like doing notice and comment rulemaking, like asking for public comment on a proposed rule just using Facebook, that would have to be state action. So it wasn't, you know, an extreme position. But there was like just a couple of places where the tenor of the federal government's argument really troubled me in that what the thrust seemed to be was like, we shouldn't bring the First

Amendment into this, like shouldn't constitutionalize any of this. Because if we have a government official who is blocking people on social media, politics should be the kind of remedy. Let's leave politics to sort of take care of it. And it just felt to me kind of willfully obtuse about the fact that if the conduct in question is distorting the democratic process, politics and the democratic process are just not that likely to take care of the problem. And so sometimes constitutional values are the way we stop distortions. I mean, this court has been obviously, you know, public enemy number one to a functioning democratic process. But so that felt especially problematic to be making that argument before this court, just let our distorted politics take care of this problem

when the problem might be trying to further distort politics. Anyway, there's one exchange that I wanted to play that I thought sort of illustrated this theme from the federal government. So can I just go back to Justice Alito's hypothetical, which I thought was really good, and ask this question. Suppose the public meeting doesn't occur. So we have the mayor of the town, and there's this controversial policy, and there is no public meeting to start because the mayor fears that there's going to be quite a bit of acrimony with people who want to come out differently than the mayor does. And so instead of the public meeting, the mayor says privately, I'm going to have a meeting on my farm, or maybe he even announces

the meeting, but we're only letting in people who are likely to agree with my view. Same result, no state action in that situation? I think probably no state action in that situation. I think it's something that government officials actually do all the time. They might not want to meet with even their own constituents who disagree with them. They might speak only to Democratic Party meetings and only take feedback from Democratic Party donors. And, you know, the solution for that, as I said, for elected officials might be the voters. And for appointed officials and employees, the state as employer can regulate that kind of behavior. To stay on this point for another minute, Justice Kagan, I thought,

also emphasized this democracy issue, these democracy angles to these cases in a couple of clips we wanted to highlight. So one really kind of questioned how useful some of the hypos that we were just talking about were given the unique role of social media in our democracy today. So let's play that first clip here. Take this as another version of the Chief Justice's question about the apparent, let's call it archaic nature of your test. And I guess what strikes me about it is that, you know, it's hard to predict the future. But change has happened very quickly in the last however many years and is going to continue to happen.

And part of that change is that more and more of our government operates on social media, more and more of our democracy operates on social media, public discourse. This is the forum for officials to talk to citizens, for citizens to talk to officials, for citizens to talk to each other, and it is becoming increasingly so. And I worry that the rules that you're suggesting and even the analogies that you're proposing, as though we can satisfy our, as we can solve this case by thinking about grocery stores, is really not taking into account the big picture of how much is going to be happening in this forum and how much citizens will be foreclosed from participating in our democracy if the kind of rule you're advocating goes into effect.

So I guess I would like you to comment on that. You know, it's a big picture challenge about the nature of the world we live in and we're going to live in, and the need for rules that are going to meet a world that we don't really have any idea what it will look like. That was directed at you, Sam. So the other clip just mentioned how certain cases really do seem to involve core aspects of having informed citizens with reference to one high profile social media user in particular. You know, I think we got a sense spoiler of how Justice

Kagan might have voted if the challenge to Trump's practice of blocking critics on Twitter had ever made it to the court. This makes me think that like, my vault tracks might be like Justice Kagan's like hidden unloading on the federal government for trying to act that like the real Donald Trump account wasn't actually state action as it was announcing like national policies. But anyways, here are those clips. So that means President Trump's Twitter account was also personal. But he seemed to be doing, you know, a lot of government on his Twitter account. I mean, sometimes he was announcing policies, even when he wasn't. I mean, I don't think a citizen would be able to really understand the Trump presidency, if you will, without any access to all the things that the president said

on that account. It was an important part of how he wielded his authority. And to cut a citizen off from that is to cut a citizen off from part of the way that government works. I love the idea that she has opinions written in cases the court never took that are her vault tracks that, like, at some point she might just drop on there. Like, she has her majority, fantasy majority opinion finding that Donald Trump violated the First Amendment. 2022, Elena's version. Exactly. Or no. I want to see, like, Amendment. 2022, Elena's version. Exactly. Or no, it was like 2018, 2019. I want to see like Rucho, Elena's version, right? Like, say la la, Elena's version. Like, done with this bullshit, right?

Like, no. Okay, so we obviously know where Kagan was on Trump. She's actually drafted a whole Voltrak opinion on the blocking question. I did actually find her a little hard to read on the facts of these cases. In general, all of the justices, in particular, as the arguments proceeded, you know, their hypotheticals or interventions did seem to move the ball toward the idea that some of what is going to be a difficult account. Well, I mean, they had three hours to do it. I mean, I would hope there would be some movement. Hopefully they made some progress.

Yes. Yeah. And Pam Carlin did a phenomenal job and really did seem to be pretty successful in pushing the justices to adopt at least much of her theory of the case, which really did turn on whether government officials are doing their jobs via social media. You know, even sort of whatever final formulation the test takes, that's kind of the heart of it. In addition to being very good, like at the substance of oral arguments or maybe related to that, like Pam is very funny. And I wanted to play some clips highlighting that. So here's one. Here, I think putting the disclaimer there, but then saying things like, we want you to respond to our surveys on whether we should change the election system. We want you to respond to our survey. We are working hard. She's not using I. And if you compare this to her campaign website, which is a website, not a Facebook page, there she uses I. Here she uses we. And honestly,

as Mark Twain said, the only people who should use we in the singular are royalty and people with tapeworms. And, you know, I don't think she's either of those. And here's the other. And is it not a well-established custom for any elected public official to inform constituents about what he or she is doing. So if that's how you understand duty, then are you not saying that anything that an elected public official, let's leave it at that, tells constituents about what that person is doing constitutes state action? I think the starting point is, yes, they could rebut that. For example, talking, you know, at Thanksgiving dinner, somebody says, pass the gravy. And you say, and I also passed a bill last month. Yes, that would be that would be private. At one point, Justice Kavanaugh seemed to have a moment where he seemed to be telling a little bit on the conservative legal movement

and how the whole Operation Higher Court project was working. So let's hear from him. But it goes back to who you want to include and who you want to exclude, I guess. And I think elected officials and appointed officials rely on groups of people who are supporters, friends, people they've known, people who are fair-minded, not people who are just going to come and scream at them to get advice, thoughts, including negative and critical thoughts. But they want to exclude the person who's the jerk who's going to interrupt the whole thing. Hmm. Hmm. Not supposed to tell. One of the first rules of Fight Club is that you don't talk about Fight Club. Don't tell. So what are our predictions here? I've already told you mine. to determine whether these accounts are state action is not just about whether government officers are performing a duty or exercising some authority granted to them in state law in some

narrow sense that is like broader than you know the government officials are arguing for and I think at least in the case that Pam was arguing I think they will say that that account is state action I don't know necessarily if they're going to determine whether the specific accounts are state action but I think that they will reject the super narrow test that the government is seeking. Yeah, but that's such an interesting idea that the cases themselves, the court actually applies whatever test it announces to the cases. Yeah, like they could come out differently. I mean, in part because, as Melissa alluded to a couple minutes ago, the ratio of like pet and kid picks to official communiques was different as between the two cases. And I don't know, it's possible that'll actually mean the test produces different results in the

two. They are creating incentives to be cat ladies. Are we mad about that? No. No. We have other interesting cases to unpack. Okay, so the next one we're going to talk about is Vidal v. Elster. This is the case that challenges a provision of the trademark law that prohibits the issuance of trademarks that contain the name of an individual without the consent of that individual. Or that individual's wife in the case of the president. Only when it's a president. Only when it's a president. Only when it's a president. And the statute actually says wife. It is bonkers. I was not aware of this provision of law. I don't,

I have to find some way to teach it in statutory interpretation. And I don't know, maybe elsewhere too. In any event, the respondent in this case was prohibited from getting a trademark on the phrase Trump too small, which was an allusion to Donald Trump and his teeny little itty bitty hands, and specifically to a memorable exchange that he had with Marco Rubio during the 2016 presidential primary. Possibly the only memorable thing that happened involving Marco Rubio during that primary? It was Marco Rubio. There was a water bottle. There was that water bottle.

Oh, that's when he did the response. That was a State of the Union. No, no, he did that in the State of the Union response where he was like so parched he had to keep stopping repeatedly. Reached off screen. Okay, so that's another memorable Rubio moment, possibly the only other one, but not in fact No, no, he did that in the State of the Union response where he was like so parched he had to keep stopping repeatedly. Reached off screen. Okay, so that's another memorable Rubio moment, possibly the only other one, but not in fact during that primary. In any event, whether or not Mr. Elster succeeds in getting the law in question struck down, that's what he's trying to do.

He definitely did succeed in having the phrase, Trump too small, uttered 13 times at one first read. And that is not nothing. So he does have something to show for himself, whatever else happens with his lawsuit. So just a brief kind of recap of the underlying issues here. As we mentioned last week, the Supreme Court in the last few years has actually had a lot to say about the interaction between the First Amendment and trademarks. In a case called Mattal versus Tom, the court struck down a law prohibiting trademarks for disparaging marks, because the court said that was basically unconstitutional viewpoint discrimination. And the court reached the same conclusion in a case called Iancu v. Brunetti,

which was about a law that prohibited trademarks for scandalous or immoral marks. So that's, two wins for the First Amendment against these restrictions on trademark issuance. The real question is, does this case follow from those or is the court going to find some way to distinguish it? So in Vidal, the government argued that the law denying the respondent a trademark for Trump too small was not a law that engaged in viewpoint discrimination. Predictably, the respondent argued that it was viewpoint discrimination because people, including and maybe especially government officials, would be more likely to refuse consent to marks where those marks criticize them. And Justice Jackson had a lot to say about that during the argument. The government also argued that the

law was constitutional and should be upheld because it was simply a condition on a benefit, not a coercive regulation that penalized people. But some justices were skeptical of that view. So let's hear this clip. I said what I think about the government benefits theory in Mattel versus Tam. So there's no secret about that. And if your argument requires, if I could not vote to sustain this without saying this is the attachment of a condition to a government benefit or that it's analogous to the attachment of a condition to a government benefit, I mean, you don't need my vote to win your case. I'm trying to see if you have any argument that maybe you've just decided, well, Alito's a lost cause here.

As we noted last time, some justices, I hadn't actually remembered the number, but it's only four, I think as Leah, you reminded us, rejected that theory in the TAM case. So that was Alito and the chief and Thomas and Breyer, who was then on the court. But that means only four. So the theory itself actually hasn't been decisively rejected. And it got a lot of play during this oral argument. Justice Sotomayor had a similar clip later in the argument. Let's play that one here. Well, I think in the example you just gave, Justice Sotomayor, if I'm remembering correctly, that's the Trinity Lutheran case. In which I dissented, so be careful. I think, well, fair enough. The justices also wanted to know if any theory,

you know, at issue in the case or the outcome of this case about trademarks might apply to laws governing copyright as well. So that was also of concern to the justices. And then, you know, Justice Barrett had another kind of interesting hypothetical, as she did in the social media blocking case, that we wanted to highlight. So tell me how you think the analysis would play out. Let's imagine that there's a similar restriction for copyright, and somebody wants to write a book called Trump Too Small that details Trump's pettiness over the years and just argues that he's not a fit public official. Are you saying it would be like a rational basis standard for analyzing whether that copyright restriction was permissible? I thought this was interesting because it seems, okay, I'm just gonna float a theory here. It seems like Barrett kind of has the urge to want to try to distinguish herself

from at least some of her Republican colleagues and has kind of gone out there, you know, as well to say that the court isn't political. Remember, she did this when she appeared at the Mitch McConnell Center to say this. As one does, right? Right, duh. But it's like, she wants this when she appeared at the Mitch McConnell Center to say this. As one does. Right. Duh. Yes. But it's like she wants to do this, but she has yet to actually really meaningfully distinguish herself from her conservative colleagues like on the substance and actually like depart from them. Like they're all a little different. And I think she's smarter than like Neil and Brett and more deft than Sam at like PR, but like still boards of a feather. But she like kind of wants to distance herself from them

and be like, no, I'm like not actually like them. Or she just wants to distance herself from Donald Trump because I thought this was, I mean, for a woman who stood so close to him in the Rose Garden super spreader event, like, I mean, she basically said he's petty and he's not fit for public office. And she said this in open court.

I mean, that's also true. I guess I was also thinking about like her concurrence in the student debt relief case about saying, well, I actually think the major questions doctrine is like perfectly consistent with textualism. And like, that's why I'm doing it. Right. And just like a few other things like that. But I think this might be do you remember during Justice Gorsuch's confirmation hearings, like the whole flap came out about Trump's disparagement of Judge Curiel. And Justice Gorsuch said, you know, meaningfully demoralizing confirmation. Yeah. I mean, I think it was meant to signal independence for the judiciary, especially at a moment where people might think that these justices are kind of in the bad for a particular political party or person. And I thought that's what this meant, not necessarily distancing herself from the conservative project. Yeah. A little credit to Neil, since we gave some to Brett earlier in the hour.

I mean, he actually did it when he was still waiting for confirmation. And it wasn't like some enormous act of bravery or anything. But reporting later suggested that Trump was really displeased with what was reported as Gorsuch's sort of condemnation of or at least distancing himself from Trump's remarks. It's kind of costless for Barrett to do that at this point. And so, you know, OK, thanks. It's a little too little too late. And yet hearing her voice articulate this view, unfit, petty, you know, that was definitely struck me during the argument as well. But I just wasn't sure I understood the motivation.

It's costless vis-a-vis Donald Trump. It's not costless vis-a-vis a public that thinks six of these people are in the bag for Republican politicians. Right. And in that way, benefits. like it is similar to her efforts to distance herself from her Republican colleagues and major questions doctrine because she's like, oh, no, actually, this thing that is totally bananas and inconsistent with our theory of statutory interpretation is perfectly consistent with it. So it's like giving legitimacy to the court, even though they are pursuing the same substantive project. I don't know. But that was just-

Does it matter that that concurrence in the student debt cases was the most unbelievably unconvincing piece of writing I've ever read? It was so unpersuasive. I know. She's trying so hard and no one believes it um right i mean because she's not actually that different yeah that's a interesting parallels to draw so if amy is gonna amy i guess as we just established neil will obviously kneel uh so let's play a clip of him really kneeling out well i think if i'm not aware of history before the Lanham Act that would show that sort of if what your honor is suggesting is. Let me help you. Common law, there's a long and robust history about restricting names.

Now, sometimes they took on secondary meanings like Brooks Brothers. All right. But that was pretty rare. And trademarks always had some content-based restrictions, if you want to use that kind of abstract heuristic. Geographic names, descriptions, functions, generally. There are always exceptions, but generally not trademarkable. Fantastico! So what are your predictions in this case? I think they uphold the statute and say the mark doesn't have to issue.

Going in, I assume this would result in the same basic outcome as Mattal and Yonku, which was this restriction would also fall, but it actually does not seem like that's going to happen coming out of the argument. So Penn Law's Jennifer Rothman is a real trademark and a right of publicity person seems totally to agree in her write-up of the argument. I'm not sure I totally understand why that should be the case if the court isn't prepared to revisit what it said in these earlier cases. It does seem to me that this is kind of like, you know, a lot like viewpoint discrimination, but I don't know. But I did want to say we didn't have a chance to really say much about John Taylor's argument. And I thought he was great. And I really loved the accessible way that he framed his opening. So can we just, will you indulge me if we can play a short clip of that here? purpose wholly unrelated to the purposes of trademark law. Unlike the separate prohibitions

on false association and marks likely to confuse or mislead, both of which are tightly connected to the purposes of trademark law and trademark registration, the government's interest in discouraging marks because they hurt the feelings of public figures has nothing to do with the purposes of trademark registration. This is about protecting the feelings of famous people, and it does feel to me like the law should not give them any special protections. And as I heard him during the actual argument and then just now listening to the clip again, it brought to mind the idea that not just in the social media cases where the justices are thinking about things that their friends were public officials and stuff like that, it did occur to me that justices could have some skin in this, right? Like they are obviously

people whose names or likenesses I can imagine someone wanting to get a trademark sending up. Maybe they, in a self-interested way, want to make sure that the First Amendment is not going to be read in a way that would allow just anybody to get a t-shirt trademarked that says anything about the nine of them. I don't know. Well, maybe you could still do some other ones. What if you got one that said, I paid for my own damn land yacht? Or we'll accept an otherwise unoccupied seat on a private jet or something along those lines. Do you think you could put something like that on a candle as well as a t-shirt? Maybe.

We'll find out. I think you're tipping our hand, Kate. Not yet. Not yet. Just a teaser. Easter egg. The court also heard oral argument in Culley v. Marshall, which is a case we did not preview last week because we did that extended segment on the Trump cases. But not to worry, we're still going to cover it in this episode.

This case is very important because it's about civil forfeiture laws. And civil forfeiture laws are laws that allow the state to take some property because it thinks you've used that property in the course of wrongdoing. So these are civil rather than criminal forfeitures because the state doesn't take your property subject to a criminal trial. Instead, the property forfeiture occurs via civil proceedings, which, interestingly, lack many of the procedural protections that the Constitution requires in criminal proceedings. So you're getting a flavor for how this is shaping up. They can take that land yacht a lot easier.

So the specific question in the case is whether there is a constitutional claim. And if so, what does that constitutional claim look like about what happens to the property the state is trying to seize in the interim? That is what happens after the state makes some claim to the property, but before the state makes a final determination

in civil proceedings about whether the property is actually forfeited to the state. So the governments involved in the case, Alabama and the federal government, arguing as Namikis, agree that the due process clause entitles property owners to a timely final adjudication that complies with due process. And the petitioners, the property owners, say they are entitled to something else. They say there also needs to be a hearing to determine what happens to that property before the final timely hearing, which might take a long time. This is all occurring against the backdrop of considerable reporting, which the justices alluded to during the argument about how many states have actually abused their civil forfeiture

laws. So some states might take possession and indeed do take possession of property and do so for a good long time. And that causes harm to the individual property owner, even in circumstances where those individuals are ultimately determined to be rightfully entitled to their property in the end. And here's Justice Kagan reiterating a point that Justice Sotomayor has made repeatedly. And that point is that since the court's early decisions upholding civil forfeiture schemes, there has surfaced a lot more information and facts that make clear the pitfalls of such schemes and their abusive potential. So here she is. And I think Justice Sotomayor raises a very important point, which is that we know a lot more now than we did when 8850 and the other case were decided about how civil forfeiture is being used in some states,

about the kinds of abuses that it's subject to, about the kind of incentives operating on law enforcement officers that tend toward those abuses. So if we look around the world and we think there are real problems here, and those problems would be solved if you got a really quick probable cause determination, why shouldn't we do that? At oral argument, there was definitely some strange bedfellows energy. Both Justice Sotomayor and Justice Gorsuch were really pointedly highlighting abuses in the civil forfeiture systems. Justices Jackson and Kagan seemed to be on that side as well. And Justice Gorsuch, in expressing sympathy for the due process claim, had this kind of hilarious slip up I wanted to highlight. And after we'll play it, we'll explain why it's

potentially a slip-up and funny. So here's the clip. Let's put it this way. I mean, due process has various components, you'd agree. One component is how quickly your claim can be heard. Another component would be what procedures your claim is going to be decided pursuant to, right? Yes, Your Honor. So there's a substantive aspect to it. Wrong word. Idea, though, that the procedure has to have some robustness to it. Yes.

It's like he was like, oh, my God, what did I just say? I can't admit that the due process clause has a substantive component. Like my Federalist Society card will be taken away, Leonard Leo will appear and like strike me down. Okay, now the explanation. So substantive due process is the name for the doctrine on which Roe versus Wade and Griswold versus Connecticut and other cases are based. It just represents the idea that like no matter what kind of process, like notice, hearing, and trials the state might give you, there are just some things the state can't do absent constitutional amendment. And conservatives have memed the living shit out

of substantive due process to suggest some kind of ridiculous idea, like due process can't possibly have a substantive component, since the Constitution implies states can take away liberty with due process. But the concept is actually coherent, as Justice Gorsuch's, like, intuition and initial version of his question suggested. I wish we had video of oral arguments, because I'm 100% sure that after he said this, Justice Thomas, like, gave him, like, an ice glare from across the bench. And he, Neil Gorsuch would have immediately known that his invitation to the Bohemian Grove might be lost in the mail this year. He's definitely not going now. All right.

Beyond that Freudian maybe slip, we also wanted to highlight some other clips just to give you a sense of how the oral argument played out. So here's an exchange between Justice Gorsuch and the petitioner's lawyer, Skadden Arps' Shea Dvretsky. And this was about whether it was the Supreme Court's fault that the case might not have presented the different issues in the cleanest and most accessible way possible. Here's the clip. So for one thing, I think this is the case, and the court granted cert on this question. Oh, I know we granted cert. It's all our fault.

Not blaming you. I appreciate it. Both can be true. But importantly, it was not all fun and games for Mr. Dvoretsky. At various points, some of the justices seem kind of frustrated with him and his framing of the issues in play. So here's an exchange between Juretsky and Justice Sotomayor. I think that's right. And I think the court shouldn't do that here, regardless of the fact. I also think on the fact, and I don't want to wear out my welcome, but I also think- You are wearing out your welcome, because like Justice Jackson, that's not the question before us, whether the process here was enough or not.

That's right. That was ice cold. I was like, oh, I have my blood ran cold in my veins when I listened to that. You are wearing out your welcome. Go home. Somebody who started my arc can cut a bitch. So predictions, you know, it seemed to me like Justice Gorsuch and the Democratic appointees want to do something to rein in civil forfeiture abuses. It's unclear whether they have a fifth vote to do so. And the technical question on which the court granted cert, you know, what legal test applies when a plaintiff argues the state's failure to provide an interim hearing before a final adjudication might not even allow the courts to resolve all that much anyways.

But there's interest if the question arises in another case in the near future, if they don't really resolve it. Yeah, at least from four of them, yeah. Yeah, but enough to take up another case, right? It only takes four. So let's pivot to previewing the enormous case that we mentioned at the beginning of the hour. That's the case set for argument on Tuesday, November 8th, United States versus Rahimi. This is a Second Amendment case challenging 18 U.S.C. Section 922 G.8, which is a federal law prohibiting those individuals subject to domestic violence restraining orders from possessing guns. And we should note that the law was adopted in 1994. And you might recall that 1992, in the wake of the Thomas Hill hearings, 1992 was the quote unquote year of the woman in which record numbers of women were elected to Congress. Now, as this critical mass of women entered politics, many of them began demanding that the government address domestic violence, and in particular,

address the role that guns could play in intimate partner violence. And Section 922G8 was one of the results of their efforts. So in 2022, so a year and change ago, the Supreme Court decided NYSERPA versus Bruin, and in that case, adopted a new legal test to determine whether firearm regulations are consistent with the Second Amendment. The Bruin test basically directed courts to consider whether laws fell within the nation's tradition of firearm regulation and very much not to focus on things like empirical evidence about the risks of violence by domestic abusers, often with firearms. There's one amicus brief that discusses studies showing that when there is a domestic violence incident, the presence of a gun increases by something like 500 times the potential lethality. So the stakes are incredibly high when it comes to this combination of domestic violence and firearms. That's what this law was designed to respond to. But what Bruin, this decision, seems to say is none of that matters when asking about the constitutionality of a gun law. The only thing that matters is whether that law falls within the nation's

history of firearms regulation. The question in this case is how that method, the Bruin method, is going to work, and specifically what counts as an analogy for a firearm regulation to demonstrate that a law falls within the nation's tradition of firearm regulation. an analogy for a firearm regulation to demonstrate that a law falls within the nation's tradition of firearm regulation? How similar does a firearm regulation have to be to the firearm regulation being challenged? Does it have to be a historic twin or simply echo the gist of some historic gun regulations? So here, Rahimi is arguing that the challenge law, which was enacted in 1994, has no exact historical twin. And Solicitor General Elizabeth Prelogger is arguing the case, which is a sign of the significance of this case to the government

that she chose to argue this case rather than, say, the social media blocking cases. I'm not sure if this is going to come out in oral argument, but I did want to highlight it for our listeners. There are two law professors, Reva Siegel of Yale Law School and Joseph Bloker of Duke Law School, and they've written a lot about the court's emerging approach to the Second Amendment. One of the things that they note is that this history and tradition approach, which has emerged since Bruin, is not neutral or objective, as many conservatives argue, but rather can actually be manipulated to produce certain outcomes. And so they note that the method allows courts to require that contemporary gun laws closely resembles laws of the distant past, even where the courts might actually define the scope of the Second Amendment

more expansively to protect weapons like AR-15s, for example, that the framers would never have contemplated. So they identify a kind of mismatch between how they approach this history and tradition method. So you have this really sort of granular question about the firearm regulation, but you have this broad and expansive understanding of the right itself. Yeah. So the guns don't have to look like the guns of yore, but the regulations have to look like the regulations of yore. So it's an enormous mismatch that, you know, redounds to the benefit of firearm owners who want unlimited access to guns and makes it very, very difficult for government to respond in new ways as weapons technology evolves. So Siegel and Blocher note some strange bedfellows history among the amicus briefs in Rahimi. So there are a number of briefs supporting the

government that do suggest that domestic violence was understood to be a problem at the founding. And some of these briefs show that at the founding, many states responded to the threat of domestic violence by doing things like issuing peace warrants and using sureties. And then the strange bedfellows part emerges because Rahimi's brief and other briefs supporting Rahimi's position that this law falls outside of the nation's tradition of firearm regulation emphasizes this history, noting that at the time of the Second Amendment's ratification, states did respond to such violence, but, and this is the big but, they insist that because governments did not respond to domestic violence by passing laws

that specifically disarmed domestic abusers, there is no historic precedent for a law like the one being challenged, and therefore it is unconstitutional. Can I just make a side note about this history? The court's version of history and how they are forcing individuals to argue about these laws, I really worry. Here it has echoes of the Republicans' attacks on, say, CRT education in schools or teaching histories of racial subordination or other kinds of discrimination, including against the LGBT community. Because here, essentially, you are basically forcing people to make the claim that domestic violence was recognized and treated as a crime. And that's certainly true in some instances.

Limited instances. But like, is it exactly exactly. But like, is it universally recognized as the problem it was today? Right? Like, are there uniform criminal laws? Exactly, exactly. And so I just worry that like, but in order to like, argue that these laws are constitutional, you have to basically say like, the framers are enlightened people, of course, they recognize domestic violence is a problem when that really like obscures like the real problem of like gender subordination and gender inequality that this country has had. And I don't think that is at all to criticize, you know, advocates within the paradigm the court has like set forth and I don't think you are. It's completely understandable

advocacy to say these are our marching orders and there are threads in the historical record that we can sort of weave together to make an argument that this regulation is supported by history. So, you know, I think that they are successfully doing what the court has instructed. And yet the broader implications that we're all, you know, that there's now going to be an enormous like like, swath of individuals. Complicit in this whitewashing of history is unbelievably disturbing. I think I want to write a lot of the article about this. You should do that. There's a lot of stuff going on here. Again, just sort of the use of history, maybe the misuse of history is something that we ought to be attentive to. One of the things I think is really interesting about the writing that Siegel and Booker have done here is that

they know that in the decision below, the Fifth Circuit kind of took a similarly asymmetric approach to the Second Amendment, which is to say that the Fifth Circuit acknowledged earlier forms of regulation against domestic violence, you know, and noted surety laws or peace warrants, but nevertheless concluded that there were ample grounds for striking down 922 G8, this federal law that disarms those subject to domestic violence restraining orders, because none of those historical responses was sufficiently like 922 G8 in disarming domestic abusers. So again, this is all to say, and Siegel and Booker make the case very succinctly, the manipulation of history is very live here and very easy to do. And it shows how originalist methods, again, are not these sort of

neutral and objective methods as their proponents claim. In fact, they can be manipulated. And in this case, they are being manipulated to produce a mismatch between the past and the present by describing the problem and various solutions for that problem at very different levels of generality. Rhea Siegel has done great work on the same set of questions in Dobbs, right? And just the manipulation of history. And it's sort of the complete pretense of objectivity that originalism offers. And I think she dismantles it incredibly effectively. Okay, in the little time we have remaining, let's do a bit of court culture. Indeed. The Senate Democrats seem to be interested in maybe doing something on Supreme Court ethics. I mean, I guess we'll see if it actually materializes. But they have announced

a plan for subpoenas. Chairman Durbin of the Judiciary Committee has said he is requesting subpoenas for Leonard Leo, Harlan Crowe, and Robin Arkley, three individuals really at the heart of ProPublica's reporting about the justices and their various luxury jaunts. So, you know, we have been suggesting for many episodes that Durbin and the rest of the Dems need to get on this. And just like, thanks for listening, guys. We are really appreciative. Yeah. And you know, this follows on the reporting about how Senator Ron Wyden's inquiry revealed that Justice Thomas had not actually paid back the loan for his land yacht slash RV. And I wonder if they're like, oh, gosh, wow, actually exercising investigative subpoena powers can do something.

Maybe we should get on that. And yeah, anyways. So another thing we wanted to note is Jezebel and other outlets have reported that Ohio Secretary of State LaRose has purged over 25,000 voters from voter rolls ahead of the upcoming vote in November about whether the state will add a provision to the state constitution to protect reproductive freedom. The deadline to register to vote for this election was earlier in October. You know, there isn't same day registration in Ohio, which is pretty problematic. Kate and Melissa, it seems like you all have an article that might speak to this anti-democratic efforts to undermine efforts to use democracy to protect reproductive rights and justice. It does seem like Ohio and many other places, like this promise that democracy will just

resolve the questions around abortion, like this is something that Republican elected officials are not that happy to actually allow to play out. So you have an addition of purges, rewording of the actual ballot question. So, you know, listeners might remember back in August, the Republican effort to make it way harder to amend the Constitution failed pretty spectacularly. But we do have a big question whether, you know, given some of these anti-democratic forces that have been brought to bear on the actual vote on the ballot question, what the result is going to be. So you're in Ohio, make sure you're registered to vote. Hopefully you weren't purged. Get out there. This is so important.

We also wanted to offer belated birthday wishes to Liz Tobin Tyler from her daughter, Claire, who says that Professor Tyler is one of the OGs of medical legal partnerships and was part of the first one at Boston Medical Center. She is now focused on reproductive justice and domestic violence, so therefore is paying particular attention to Rahimi, which we will be watching alongside of you. So happy belated birthday, Liz. Guess what? The holidays are coming up, people, and it's time to get festive, whether you like it or not. And to help you get the holiday vibes going, the Cricut store has brand new goodies that you can use to either deck your tree or just shove under the tree as gifts for your nearest and dearest. And so what better way to tell those that you love,

thank God 2023 is almost over, than with an ornament to remember this craptastic year by. This new ornament is inspired by all of the Trump indictments that have come out this year, but we're also bringing back a couple of favorite ornaments from holidays of yore. We also have a new collection of strict scrutiny t-shirts there is the elite strike force legal team shirt for all you people who are

into conspiracy shit beamed down from the mothership then there is the fantastico shirt for all of you who love your paid junkets to italy and don't like substantive due process and then there is a remake i really really do not like substantive due process. And then there is a remake of the- I really, really do not like substantive due process. I want that to be very clear. I promise, guys. I'm 100% against substantive due process. And for those of you who want to get rid of all of substantive due process,

there is a remake of the Stare Decisis is for Suckers t-shirt. So you can shop a collection of new and best-selling holiday sweaters and tees, perfect for the family holiday party, where you know your conservative cousin is going to corner you and talk about the plight of millionaires.

So head to crooked.com slash store to shop. Okay, in all seriousness, these new t-shirts are so soft and the designs look great. I'm so happy with them. They're soft as Donald Trump's itty-bitty baby hands. Just never seen a lick of real work. Soft as Sam Alito's skin.

Exactly. Strict Scrutiny is a Crooked Media production, hosted and executive produced by Leah Littman, Melissa Murray, and me, Kate Shaw, produced and edited by Melody Rowell. Our associate producer is Ashley Mizzuho. Audio support from Kyle Seglin and Charlotte Landis. Music by Eddie Cooper. Production support from Madeline Herringer, Michael Martinez, and Ari Schwartz. If you haven't already, be sure to subscribe to Trick Scrutiny in your favorite podcast app so you never miss an episode. And if you want to help other people find the show, please rate and review

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