Strict Scrutiny - "Ghost Guns" are Guns (Duh)

Episode Date: October 14, 2024

After covering some breaking news, Kate, Melissa and Leah recap last week's oral arguments at the Supreme Court, including cases about civil rights, ghost guns, and the death penalty. Come for the palpable tension between Justices Alito and Kagan, stay for SG Prelogar gently explaining to Justice Alito how a gun isn’t like an omelet. 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. I'm Alyssa Murray. I'm Leah Littman. And I'm Kate Shaw. And newsflash, we are less than one month out from the November election,

which you know if you haven't been living under a rock. But if you are listening to this podcast, we need you to do a couple of things. First, we need you to make sure you are registered to vote. And second, we need you to check in with your friends, your book club, your swim team, your yoga instructor, all your physical therapist, your PT, your actual therapist, everyone, all of them, and make sure that if they are eligible to vote, they are registered to vote. Deadlines are coming up fast in a lot of places. They have already passed in a few states. In Pennsylvania, where I teach these days, the deadline to register to vote is October 21st.

So in a lot of places, you still have time to have big impact. And please, please make sure you do not miss that opportunity. We're begging you. We're also halfway through the court's October sitting. So if that doesn't bestir you to go check your registration, I don't know what will. Wait until you hear what these guys think about executing potentially innocent people, right? And you want to vote. You really do. You really do. So here's how this episode is going to run. We are going to break down some breaking news,

and then we're going to recap the big arguments that the court heard last week. And then we'll briefly look ahead to what's on deck for this week. So first, breaking news. So remember, Moyle last term's EMTALA case, the case about whether the Emergency Medical Treatment and Active Labor Act forbid states from prohibiting hospitals from providing medically necessary abortions, where the court punted and said that it had granted certiorari improvidently and therefore didn't decide the case. Remember when some folks in the media said this was a big win for abortion rights? Remember when we called it bullshit and told you not to believe it?

Well, the plot has thickened. So the question in Moyle, again, was whether a federal law, which requires hospitals that receive federal funds to provide emergency care to pregnant patients in crisis, applied even in states with extreme abortion bans. Idaho said the federal law doesn't apply. Supremacy of federal law, don't know her. And the Supreme Court initially sided with Idaho, staying a district court opinion and letting Idaho enforce its extreme ban, regardless of federal law and regardless of the threat to a pregnant patient's health, leading women in that state to routinely being airlifted

out of Idaho to get the necessary abortion care. The court ultimately decided that it had intervened too early in the case. We could have told them that, and they then sent it back. But we warned you that this might be no more than the court finally getting that abortion was a salient electoral issue, and this happens to be an election year. And so perhaps this decision to send back as improvidently granted was really just a punt designed to minimize the impact of abortion and this decision in the electoral cycle and in our politics. The passive vices of the Supreme Court. I mean, neutral virtues as they were. Anyway. Well, listeners, a nearly identical

case was back at the court last week, though this time it was Texas rather than Idaho trying to enforce its extreme abortion law, notwithstanding the impact of federal law. And in an unsigned order, one of the many that the court issued last week, the court again allowed a state to defy federal law and enforce its draconian abortion ban. So let's just break this down. The court is willing to intervene to block a lower court opinion when the lower court acts to respect federal law and protect pregnant patients in Idaho. But the court stays hands off and leaves the status quo intact when the lower court allows a state abortion ban to trump said federal law. I think I get it now. What is it like fool me once, fool me twice,

etc, etc. Just keep fooling me with your six to three conservative supermajority. Right. Have your way with us. Shame on them in all events. And to be clear, the federal government here was actually just asking the court for what's called a GVR, a grant, vacate, and remand. So they were asking for an order in which the court grants cert but then vacates the decision below and rather than hearing arguments on the merits, remands the case for further proceedings below. So the federal government was just asking the Supreme Court to tell the lower courts to take another look at this question in light of Moyle, and in particular, in light of the federal government's concession at oral argument that individual doctors can lodge conscience objections in circumstances where they do not want to be compelled to provide abortion care. And the court's refusal to even grant that modest ask, right, a GVR in light of the dig

in Moyle and the opinions that were written in Moyle, I think sends an incredibly ominous signal about what the court is likely to do when the question is back before the justices in a non-election year or maybe, I don't know, later this year after the election. So they've now had to- Like literally on November 6th. Well, I think, yeah. So in terms of the timing, they have had... I'm just kidding. It's not November 6th. No, but it could be... It'll be November 7th.

Right. So they have had two chances to clarify that pregnant patients are entitled to care under EMTALA. They have declined to do that both times. So I think that is a really important kind of top line. In the near term, the decision will compound the horror that is a medically complicated pregnancy in the state of Texas. So remember the Texas Supreme Court in the Zoroski case made clear that the medical exception in state law is essentially meaningless. And now ERs can't even abide by federal standards when pregnant patients show up in acute distress. It is appalling. But in terms of like when this may be back before SCOTUS, so no, it won't be November 6th or 7th, but it could be kind of fast, probably not out of Texas, but out of Idaho. Because in the Idaho case, Moyle, actually the on-bank Ninth Circuit is in the midst of getting briefs and has scheduled oral arguments for the week of December 9th. So the Texas case

actually will probably involve a remand to the district court, and I'm not sure when that one will be back. But it seems like Moyle could be back in front of the Supreme Court as early as, you know, the first couple of months of 2025, at least with a petition pending. I know what Sam Alito's New Year's resolution is. I've got to guess now. Suspend the protections of EMTALA nationwide. Yeah, yeah. So I guess Idaho, I was just stopping to think whether he would have a preference as between the two. It doesn't really matter. He would like to make sure that no one in any state gets the benefits of EMTALA.

You say Idaho potato, I say Texas potato. Like, it won't really matter. It won't really matter. In other news, the court also denied Sarshaari in an appeal of the Alabama Supreme Court's decision holding that fertilized embryos are extra uterine children for purposes of Alabama's wrongful death statute. Melissa, I truly love the way you say extra uterine children. Let me say it again. I want it as my ringtone. Yeah, it's just like dripping with disdain. It is. It's very apparent.

I mean, you can drip with swag or drip with disdain. I prefer disdain in the case of extra uterine children. In any event, the Alabama Supreme Court, if you will recall, issued a decision in which it said that fertilized embryos are extra uterine children for purposes of Alabama's wrongful death statute. And when that came down, we were all I think, rightfully shocked by the Alabama Supreme Court's very, very fetal personhood curious stance. But the issue here really presented a number of issues that are really questions of state law. So it wasn't that surprising that the Supreme Court denied this petition for review. But again, just another reminder that Fetal Personhood Watch is really on and it's coming. So stay tuned. On that beat, we have an update on one of the anti-abortion cases brought by Jonathan Mitchell. This is the case

filed by the ex-husband after, you know, the wife obtained medication abortion. The ex-husband sued the people he said helped his wife procure an abortion. And the plaintiff in the case, the ex-husband dismissed the case after the court refused to compel the production of evidence the plaintiff had sought, including where they got the abortion medication and whatnot. And that's a good result, to be clear. But the reasoning in the case is a little scary. So the court refused to compel production of the evidence in part because it suggested doing so might cause the parties to incriminate themselves by indicating they violated, wait for it, the Comstock Act by distributing medication abortion through the mail. So that's scary, right? This is a court

suggesting that there is a chance the Comstock Act, the 1873 Victorian anti-vice law, does in fact prohibit the distribution of medication abortion through the males and functions as, again, an abortion ban that is already on the books that a Republican administration could begin enforcing without Congress having to pass a new law or at least try to do so. That case was also really fetal personhood curious as well, because you'll recall that Texas already has the Heartbeat Act, which is the bounty hunter law that allows private parties to sue other citizens for helping someone to get an abortion. So that law could have been used here. But instead, Jonathan Mitchell and the ex-husband actually filed suit under Texas's

wrongful death statute. And that was really important because a wrongful death statute only applies in circumstances where a person has been killed. So the idea here is that the provision of medication abortion that these women helped the pregnant person get was the homicide of the fetus. And the fetus is a person for whom the husband can now recover in wrongful death. So layers, there are layers to this stuff. Well, it's scary in its inception. And the era that we are in is one in which even a good outcome or result in a particular case is fucking terrifying as the case here. When you're like, you're happy about the Comstock Act, but also not happy. That's where we are. I know. I know. So, okay. In other news, last week, friend of the pod, Senator Sheldon Whiteboard Whitehouse issued a report, evidently six years in the making, about the FBI's investigation or really, as the report tells it, non-investigation of the sexual Blasey Ford accused Kavanaugh of attempting to sexually assault her when they were both high school students. After she testified, the Senate

Judiciary Committee asked the FBI to conduct a supplemental background investigation into these allegations and some others, adjourning the hearing to ostensibly allow the FBI to investigate. Except that the report suggests that the investigation was kind of a sham. According to the report, the Trump White House prevented the FBI from investigating witnesses and following up on those leads. It says that the FBI set up a tip line, but then all of those thousands of tips went directly to the White House and the FBI never investigated any of them. And yep, despite all of those deficiencies, multiple senators cited the investigation's failure to produce corroborating evidence of sexual assault as a reason that they

could comfortably vote for Brett Kavanaugh. And that, listeners, is how we got the fifth vote to overturn Roe versus Wade. So good work, fellas. Absolutely legendary. So with that breaking news, let's go on to recaps. We are halfway through the October sitting, as we said at the top. So we're going to recap the biggest cases the court heard last week. The very first case the court heard this term was Williams v. Washington, a case about when you can file a Section 1983 federal civil rights claim in state court. Section 1983 is the general federal civil rights statute. The parties frame the case as whether the exhaustion of state administrative remedies is required before a plaintiff brings a federal civil rights claim in state court. So what that means is whether a plaintiff has to first try to prevail or resolve a matter through state administrative agencies before filing suit in state court. A prior Supreme Court decision,

Patsy v. Board of Regents, had held that exhaustion of state administrative remedies was not required to bring a federal civil rights action, and the court has since made clear that this rule equally applies when you're trying created an exclusive state administrative scheme in state law and the state rule was jurisdictional. This is nonsense. States can't nullify or alter the federal rules established by federal law here by the general civil rights statute section 1983. It doesn't matter whether the state has cast them as jurisdictional or exclusive, right? If it walks like a duck, quacks like a duck, it's a duck. And in general terms, the kind of theory at the heart of this case is one that could pose a genuine threat to civil rights enforcement, right? Section 1983 is an incredibly important vehicle for the protection of rights and ruling for Alabama, which was the state here, could give states permission and perverse incentives

to erect all kinds of procedures that litigants would have to pursue before filing a claim in court. Luckily, though, there really didn't seem to be a majority on the court inclined to rule for the state here. There also didn't seem to be a whole lot of palpable warmth between the justices on the bench during this first oral argument of the term. So if you were wondering whether absence from Samuel Alito has made anyone's heart grow fonder for the gentleman, I think the answer is a resounding abso-fucking-not. CEG, this Sam Alito effort to make nice with Justice Kagan and her, shall I say it, chilly response? Roll the tape. Can I ask about the dimensions of your argument in two different ways?

I'll give you just a couple of hypotheticals. I don't want to derail Justice Kagan. I think he had a number of hypotheticals, so I don't want to interrupt that. But eventually I do want to ask you about Mr. Unikowski's narrow argument. Did you want to? It doesn't matter which way we do it. Translation, shoot your shot, Ace. I'm going to pay you in dust.

Elena Kagan pouring one out for all the women who do not aspire to be humble, as against Sam Alito. That was a reference to if you haven't listened to it, Vice President Harris's interview with Alex Cooper on Alex Cooper's podcast, Call Her Daddy. It's a fantastic interview, definitely go listen to it. But in the podcast, Alex asked Vice President Harris about remarks that, you know, Vice President Harris didn't have any children keeping her humble. And Sarah Huckabee Sanders, I think you're referring to the governor of Arkansas said that. Yeah, the one who wants to send children to the mines. Yeah, she was asked about her remarks and Vice President Harris had some things to say about it. So that's that. Anyways, so on the first day of the term, the court heard another civil rights caseutes provide that parties who prevail in federal

civil rights actions may be entitled to attorney's fees. The question here is whether to be a prevailing party for purposes of the civil rights statutes, you have to obtain a final favorable ruling from a court, such as a judgment on the merits or a court-ordered consent decree, as opposed to here what the plaintiffs got, a preliminary injunction, which indicates that you are likely to prevail on the merits. There's one more wrinkle here, which is the plaintiffs challenged a Virginia fines and fees scheme and were granted a preliminary injunction. But while the case was pending, after the litigants prevailed in their request for a preliminary injunction, the Virginia state legislature, at the urging of state officials, repealed the fines and fees scheme that the plaintiffs had challenged. So that further

complicates the question of whether the plaintiffs are prevailing parties entitled to attorney's fees. In our last episode, we also briefly flagged Royal Canaan, a case about federal jurisdiction, and we're not going to go into a whole lot of detail about it. But it did seem from the oral argument that it was very likely that the respondent in the case was going to prevail, which is to say that the court seems very likely to say that when a plaintiff amends their complaint to take out a federal claim, the case isn't removable. So there was this really interesting exchange with the respondent's lawyer that we did want to highlight, just for kicks. So, let's roll the tape. Counsel, we have had cases where we came out the other way than every court of appeals had come out, right? Yes, you have, Mr. Chief Justice.

Like what? I think there are, that's a great question. And none spring to mind, but I am positive that I could find some. Well, I mean, it's pretty bold to take the position without knowing one. Fair. Was that the case in Chadha? INS versus Chadha? Yes.

I don't know. I apologize. Somebody will check. Gosh, I'm not sure which way that cuts. I love the idea of just confidently asserting a proposition to the Supreme Court when you don't actually have any examples to substantiate it. Oh, but somebody will check. Oh, somebody will check.

I mean, of course, there are examples, right? This describes Rehaef and whatnot, but it's just like, you know, find sight here is basically the attitude that the litigant took in front of the Supreme Court. And I guess I just wanted to step back, you know, we're kind of a month into law school, you know, there are first years who are just kind of getting their bearings. And I know it oftentimes seems like the people who are speaking quickly, confidently, right, with like punchy turns of phrases and whatnot, they're the ones getting all of this. No, not necessarily, right? Like that is one skill. There are many, many, many other skills that go into being an excellent lawyer. Reading, researching,

not making shit up, the list goes on. So just wanted to kind of step back and make that note for the law students in the audience. All right. So moving on to one of the big cases that we wanted to talk about from last week, and that is Garland versus Vanderstock, the case about whether the ATF has the authority to regulate ghost guns like any other firearms. We struck a fairly pessimistic note about this case last week when we predicted that the case might well go the way of Garland v. Cargill, which was a case that last term struck down an ATF regulation of bump stocks. And I am delighted to report that we may well have been wrong in our pessimism. When we're wrong, we say we're wrong.

I'm not sure we totally... Wait. Yeah. Yeah. So I'm not totally sure we predicted that, given that we noted that the court had stayed lower court decisions putting it on hold. And I'm also unwilling to just take from the argument that this is definitely what the court is going to do, although I think it is more likely than not that they uphold the regulation. Sorry, Melissa, did you want to? Well, we'll get to this. Like, so I'm happy to be wrong on this, but I think it's still too early to say that we were totally wrong on this one.

So let's see. And again, the devil is in the details. Really, Clarence Thomas is in the details. So you kind of have to wait. You know, it turns out. So Solicitor General Prelogger argued the case herself on behalf of the federal government, you know, somewhat interesting because her deputy, Brian Fletcher, had handled Cargill, although of course she had argued the big Second Amendment case, Rahimi. And while she is always excellent, she did seem to once again transcend to a higher plane of advocacy during this argument. How many more planes are there, do we think? We have highlighted before all of the ways that Solicitor General Prelogar has

perhaps turned Justice Alito into a communist because he seems to have no trouble getting publicly owned by her on a regular basis. And this argument was absolutely no exception. So let's roll the tape. No, I want to stick with the definition of weapon for just a second. I'm going to show you. Here's a blank pad and here's a pen. All right. Is this a grocery list? I don't think that that's a grocery list, but the reason for that is because there are a lot of things you could use those products for to create something other than a grocery list. If I show you, I put out on a counter some eggs, some chopped up ham, some chopped up pepper and onions. Is that a Western omelet?

No, because again, those items have well-known other uses to become something other than an omelet. The key difference here is that these weapon parts kits are designed and intended to be used as instruments of combat, and they have no other conceivable use. Shorter pre-logger. My dude, do you even know what an omelet is? Is this consuming raw eggs and vegetables every morning? And that's why he's so cranky when he gets on the bench. He's eating raw eggs, doing P90. I just loved, right? So he's clearly, in the first example, he's holding up his pad, he's holding up a pen, and he thinks he's like, gotcha, by asking, is this a grocery list? This is going to be the time. This is going to be the

time. Is this a grocery list? I brought props, and I'm going to best her with my props. And she has to concede it's not a grocery list. This is not a grocery. It's a pad of paper. And you can do other things. And then with the egg example, it would be amazing if he did. I was not in court, but I do not believe he actually pulled out eggs to show her to ask if in fact eggs plus ham were aiden for all. I would have respected him so much more if he had. If he's just cracking raw eggs up at the

to be like the problem is i didn't bring enough exhibits and i will next time um but you could just hear him deflate when she answers like she just got him and it was glorious. He's like, okay, it's not an omelet. All right. Right. Okay, fine. So in the government's brief, General Prelogger had analogized a ghost gun to an Ikea furniture flat pack. That is, just because it's not assembled doesn't mean it's not furniture. And it appears that Sam Alito took that analogy personally, as he is often wanted to do. So roll that tape here.

So what level of expertise is taken into account? What collection of tools is taken into account? Can you provide any sort of a time limit? How long must it take? Some of us who are not and don't have a lot of mechanical ability have spent hours and hours and hours trying to assemble things that we've purchased. I'm with you on that one, Justice Alito. As someone who struggles with IKEA furniture, let me do my best to try to be responsive to that question. I like how she was just sort of like,

okay, sir, we're going to find some common ground here. I can't put together ikea furniture either like it's one of the weird places where i'm not great at everything how about you sure elizabeth sure you struggle you're just trying to make sam feel better right exactly but she's like also like a task rabbit and putting those things together for people in her spare time well we know she put stuff together because separately in the argument, she talked about actually having assembled one of these ghost guns herself. So she clearly decided to literally take this question into her own hands

because she knew she was going to get pressed with a lot of questions about the specific mechanics of assembling one of these. And clearly she decided that she wanted to be able to speak from experience about the answers to those questions. So take a listen to this clip. I actually had the experience of putting one of these kits together, and it's just like what the record shows. There are usually only a couple of steps. The first thing that most of the kits require is drilling the holes.

Usually it's six holes, and you do it with the jig. So you have the product there in the tool, and it removes all of the trial and error or guesswork. You know exactly where to drill in seconds. The second step is to remove the extra plastic blocking tabs. That, again, doesn't require much work at all because you clip them off with a pair of pliers or a box cutter. You can file it down with a jig as a template using a metal nail file or using a Dremel rotary tool that a lot of people, especially dog owners, own because it's helpful for trimming your dog's nails. At that point, you have a fully functional frame or receiver, and you can quickly assemble it into a gun in no time at all. That's how the products were marketed. That's how they were sold. I love that she went full amosexual on them. It's like, yes, I put together a ghost gun.

It took me 15 minutes. This was also just like a big, you know, not all women aspire to be humble moment. Like I've just been assembling ghost gun kits in my spare time. Sam, what have you been doing? Making omelets. Also, did she maybe say she cuts her own, her dog's toenails herself? And that. Yes, she did say that.

She does. She said some people do. She was not. And that is not for the faint of heart. Let me know. I mean, I've never done it. I can't even really cut my children's fingernails. It's not easy.

But she said she had one of those implements that you use to literally cut and file down your dog's nails. Or she said someone. Yeah, she says it's like people might have them. Yeah. Yeah. But you don't know about that unless you actually have one. That was my read. I think so.

It's not easy. She does make it look easy, though. She does. And for that reason, by the end of the argument, I did feel pretty confident that she had a solid majority on her side, which again, maybe I read our preview differently. I felt because of Garland versus Cargill and because it's a different statute, the arguments are distinct, but the vibes are very similar. And because of that, I thought there was a really good chance that this was going to go the way of Cargill. I really think this is in the vein of

the Colin Allred, Ted Cruz, Senate race in Texas, where it was solidly in the Republican camp. Now it's just leaning Republican because Allred has made some real inroads. But the real question is, what the fuck, Texas? Like, why are you voting for the gentleman from Cancun all over again when you have the option? Who abandoned his dog. Right? This is all in the realm of that. Like, I don't understand how that race is not solidly like a runaway race for Colin Allred. I similarly don't understand why this isn't going to be a nine to zero unanimous opinion in which the federal government gets a resounding win. Yeah. And just to underscore like why it is so perplexing, this statute literally

defines firearms to include items that can readily be converted into firearms. And that is exactly what a ghost gun kit does. And yet some justices are going to say that is not a firearm that ATF can regulate, which is what makes this so outlandish. So another big case that the court heard last week was one that they should be relatively familiar with because it has been up and down to the Supreme Court a number of times, although on other issues. And this was, of course, Glossop versus Oklahoma. We previewed Glossop last week. It's a death penalty case that features the rare episode where the prosecutors actually

admit to committing some errors here, which is to say that the Oklahoma Attorney General is admitting that the prosecutors in this case violated the Constitution and is asking that the defendant, Richard Glossop, be granted a new trial. So this was definitely an argument with real here come the generals energy. Two former Solicitor Generals were there representing Mr. Glossop. Seth Waxman was there representing Glossop directly. And Paul Clement was there representing the Oklahoma Attorney General, which again was asking the court to order a new trial. There was an appointed amicus who argued in defense of the Oklahoma court's position here. So here is Paul Clement distilling the issue in the case, and he's talking about Oklahoma Attorney General Drummond.

And General Drummond reached the conclusion, regretfully, but reached the conclusion, our prosecutors elicited perjury here and a man's going to go to his death. We can't allow that to happen. But despite the facial clarity and simplicity of the claim that Clement was making to the court, at least some members of the court seemed to say, not so fast. Maybe we can allow that to happen. So if we were, or at least I was unduly pessimistic in Vanderstock, I think it's possible that we are unduly optimistic here. And while it's clear that the Democratic appointees are on the side of Glossop and the Oklahoma attorney general and justice. It's also clear that Alito and Thomas and I think Roberts are not. And I found it at least just pretty hard to read Kavanaugh and Barrett. And that's the whole case because Gorsuch is recused. And just to underscore what is happening here, like the Supreme Court is literally deliberating over whether when prosecutors elicit perjured testimony, refuse to disclose exculpatory material, then admit their error, can state courts nonetheless force the state to execute a potentially innocent person, like this is the big legal question that they're devoting their time to.

And the fact that the chief, I mean, I was less sure exactly where the chief was leaning. I think sometimes he just asked difficult questions of both sides. In a lot of these cases where it's a this just cannot be situation, he does ultimately find his way to the right side, but not at all confident, which again, is that should be the story here. Like we don't know how the court is actually going to rule on this issue, which is wild. And a lot of the argument turned on whether the Oklahoma court decision rested on what's called an independent and adequate state ground that is a state rule that was not related to the underlying federal constitutional claims.

And so there was some fairly technical parsing of the Oklahoma Court of Criminal Appeals opinion being reviewed, whether the decision rested on state or federal grounds, and also whether there had been a waiver, that is whether the state had waived its objection to any state law procedural requirements that might be an impediment to reaching the federal constitutional claims. But again, I just don't think this is that hard because their reason, the court reason for why they weren't going to consider the federal constitutional claims to the extent they didn't is that the defendant, the defense could have discovered them earlier, but that's bound up with whether the prosecutors failed to disclose exculpatory material and also with whether they elicited perjured testimony. And aside from that, in any

case, like where a state is conceding error, you know, as the justices, the Democratic appointees noted, the courts have been totally fine with just accepting that concession of error. And now all of a sudden they aren't. So sometimes you, I think, are genuinely in a difficult position where these technical legal doctrines and principles of justice are in actual tension. But that does not seem to be the case here, which will make it just so wildly lawless and unjust if some solid portion of the court, God forbid up to a majority of it, decides like, you know, oops, maybe there was a little perjury, a little false testimony, but there's nothing to be done here. So a couple of other things to note about the argument. I at least found it pretty unsettling how much attention was paid to an amicus brief that had been filed in the case by the family of the victim. The family was represented by former federal judge Paul Cassell. And despite the fact that this amicus brief contained information that was conceitedly not in the record of the case, it came up again and again in the oral argument, including the theories that it offered to explain one important piece of evidence in the case. Again, this brief itself was filed in the Supreme Court, not in the lower courts, and it floated theories to explain evidence that were also very much not

in the record. So let's just play a couple of places where this brief was referenced. And the Van Treese family's amicus brief provides a pretty compelling counter-reading of that. And you want us to say, well, just pretend it doesn't exist and read those notes the way we think they should be read. As the Vantrese family's amicus brief explains, it indicates that the investigation the Attorney General conducted here and the other independent investigations were not particularly thorough. Okay, I want to ask you about the standard of review for looking at Smotherman's notes, because one of the difficulties, I think, with the notes is that putting aside whether the Van Treese brief is in the record, it's not. It still reveals that there are multiple plausible interpretations of the notes.

Now, on the Van Treese issue, that's non-record evidence. So it's not before us. It's not only not before you. It wasn't the basis on, it wasn't before the Oklahoma Court of Criminal Appeals. This is what happens when you have theories, not evidence, you know, as we talked about last week in the unsealed immunity brief. A lot of theories. Justice Thomas does this a lot as well. There was another death penalty case a couple of years ago where he, I can't recall if it was a death penalty case or a Fourth Amendment case, but something involving a pretty heinous crime. And he just like, again, went over and over into this brief that really detailed the family's perspective. And again, so victim impact statements, pain, all of that.

This stuff is, this is their bread and butter and they love it. You know who Justice Thomas also thought was unfairly victimized and pained by this entire case? Who? The poor prosecutors who the defense was suggesting had elicited perjured testimony and failed to disclose exculpatory evidence. Like there were several moments in the argument where he seemed just indignant at the prospect that anyone would deign to suggest prosecutors violated the Constitution without giving them an explanation or an offer to explain themselves,

even though they had such an offer and chance to explain themselves in this case. It was just wild. I mean, it was like taking Sam Alito's conservative victimization complex and persecution complex and then just applying it to states trying to execute people like it was it was just wild. Well, you actually, Leah, I'm glad you mentioned Justice Alito, because I am old enough to remember when in the context of a state prosecution or a request for information in a state investigation of Donald Trump, Sam Alito had a lot to say about the nefarious

influences of state level prosecutors. Or you remember when Justice Thomas, for example, basically suggested anyone who thought the Trump administration's addition of the citizenship question to the census was engaged in some cockamamie conspiracy theory, and how could you possibly think that? So it's not like these guys are above maligning state and federal officials when it suits them. But God forbid anyone suggests, right, prosecutors might have elicited perjured testimony in order to send a potentially innocent man to death, that's just going too far. Follow us for more tips on calling out Supreme Court hypocrisy.

But it's both obviously the contrast, the hypocrisy with, you know, their suppositions about prosecutors and their motives in the Trump cases. But it was also so bizarre here because there was a suggestion that the prosecutors hadn't even been interviewed or questioned. And in fact, they definitely had. So the factual predicate for the indignation was completely wrong. But when does that ever stop them? It's like, we're just going to ignore the evidence in the record and choose to focus on the evidence outside the record, right? Choices, as Tatiana would say. So in part because of this amicus brief filed on behalf of the Vantrese family, it did seem to me that

there was at least a chance the court would send the case back down for an evidentiary hearing, which is something that came up a couple of times. And I think that would just create truly terrible precedent around amicus briefs and their ability to totally change or derail the trajectory of a case, right? If you can file an amicus brief at the Supreme Court, including facts and speculation, and then have the justices decide that whatever has transpired below a new evidentiary hearing is required. I just think you pair that with like the way that the diagrams and gifts from the Firearms Policy Coalition amicus brief in the Cargill case seem to really shape Justice Thomas's opinion. You know,

remember those appeared, you know, five of them maybe in the actual published opinion, those diagrams and a link to a GIF from the amicus brief. It just feels like the court will have fully created a set of incentives that if interested parties want to change policy in this country, not just alter the trajectory of a particular case, but maybe like change policy writ large, there is no reason to bother with Congress, the executive branch, elections, none of it. Get a, you know, good amicus brief, file it in the Supreme Court. And that is the most expeditious and efficacious way to actually change the law and to change policy. And like, that's madness. So it's actually, it's such a terrific point, especially when you layer on like there are so few checks for amicus briefs, like anyone can file an amicus brief,

nobody checks that what is being purported in the amicus brief is right is factually accurate. I mean, Allie Larson at William and Mary has written tons of stuff on this. And again, all really terrific points. The incentives are already profound toward amicus briefs, and this would just expand those. I don't know why, but when you were saying no one really checks these, an image popped into my mind kind of from The Office episode where Michael learns that Oscar is gay. And I don't know if you remember this, but like Jim gifts him an item that he tells him is gaydar. And it's this item from Sharper Image that just like randomly beeps. And so Michael is just like kind of throwing it in the air

and passing it, you know, across several people. And sometimes it beeps. I'm just imagining Sam alito with like some sharper image thing that he's just like running over amicus briefs and he's like oh that's a good one that's a good one anyway sorry that was a tangent okay so back to the rest of the argument uh justice kagan did try to cut to the heart of the issue in the case there's a separate question though about just he lied on the stand? And in a case where the entire case rested on the testimony of one person and his credibility,

if you can show that he lied on the stand when he said, I never saw a psychiatrist and I didn't get a prescription from the psychiatrist. It was, you know, they gave me lithium for a common cold. And then the prosecutor says, well, that was a lie. I better correct that under NAPU and doesn't. That seems pretty material to me. I mean, it's just your one witness has been exposed as a liar. A couple of responses, Justice Kagan.

I think first there are threshold elements under NAPU, including whether this was false testimony. I don't think it was false testimony, but I want to take your question on its own terms. This false testimony that Snead saw a psychiatrist, that would have been harmful to petitioner under his theory of the case. Remember, the prosecution... False is false. I love this. False is false. False is false. We're just going to stop there. Again, not all women aspire to be humble. We're just going to shoot that one down, boys. So she was great in this argument. I mean, you know, we were sort of talking about the chilly

affect, right, that she displayed vis-a-vis her colleague Sam, who seemed to be trying to like make nice. And I'm sure we were all trying to get a sense from this first week back of what the dynamics among them are really like. And as like sharp and excellent as she was and always is, like the liberals sound tired to me. Like they sound depleted. And I guess I'm not surprised. But the summer, whatever they did, did not fully expunge the madness that June and the beginning of July unleashed. So maybe I can add some color to this.

So when Justice Kagan recently came to NYU in September and we did this conversation, she did mention that they don't really have summers anymore the way that they used to where they had these long expanses of time away from each other that because of the uptick and shadow docket activity they actually are in conversation even if they're not physically at

one first street for much of the summer so the fact of the matter may well be she's like fucking tired because she can't get away from she's had to look samolito is always in her inbox right she can't just like auto delete that sliding into her dm that's no good she needs a break i think all She's had to look at his omelets all summer. I think you said maybe the kind of pro-reality, anti-Kafka majority would win going in, but coming out less clear. Yeah. I don't actually know the procedures in Oklahoma for clemency. There had been an unsuccessful clemency effort previously. I mean, I suppose it is possible that the safety valve of clemency, right, which does exist in some form in every state, would remain a possibility. But that is not a reason for the court to be excused from actually doing its job here. Up this week at the court, there are a number of cases.

There's a RICO case. RICO is the Racketeer Influence and Corrupt Organization Statute. If you watch The Sopranos, this is the federal legislation that Tony Soprano absolutely lived in fear of. There is also an immigration case, a case involving veterans benefits, and now wait for it, a really important environmental case, which means there is an opportunity for the court to continue to do more to completely jack up the environment. So this case is called City and County of San Francisco versus the EPA. And again, it's a quite technical case but the tldr is basically how did the biden administration violate the law again some more specifically how this time not if but how that's right we'll go deeper on that case after the argument and we are all just i think on

tenderhooks waiting to see what kind of election litigation related misogas Trump and his team, which have already filed lawsuits in many, many states, right, clearly seeking to lay the groundwork for post-election challenges once the votes shake out. And we will see what, if any, that litigation makes its way to SCOTUS. So a few notes before we go. On our previous episode, we talked about the creation of the Civil Rights Court in Texas and the problems that created for groups doing important civil rights work, including Texas Civil Rights Project and LULOC. In the summary, we meant to convey that one of those organizations, LULOC, was being raided and investigated for election fraud, but it was heard to suggest that the Texas Civil Rights Project was also being raided and investigated for election

fraud. We wanted to clarify that the Texas Civil Rights Project has not been raided and is not under investigation. Get ready to vote with Vote Save America's Build Your Own Ballot tool. It's your one-stop shop for everything you need to vote smarter with candidate bios and ballot measure breakdowns for everything you'll see on your ballot. It makes voting so much easier. Here's something you might learn by using

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