Strict Scrutiny - You Can Crime If You Want To

Episode Date: May 15, 2023

Melissa, Kate, and Leah cover the gift that keeps on giving-- a.k.a. billionaire Harlan Crow, who can't seem to stop giving undisclosed gifts to Justice Clarence Thomas. They continue the discussion on the deluge of stories about questionable ethics at the Supreme Court following a report that said Leonard Leo arranged for Ginni Thomas to be paid tens of thousands of dollars for "consulting work". The cherry on top? Two recent Supreme Court opinions about political corruption and fraud. Finally, they are joined by John Mills, an attorney for Richard Glossip, who was sentenced to death for a crime for which there is powerful evidence he did not commit.Listen to an interview with Justin Elliott, one of the ProPublica reporters who broke the news about Harlan Crow and Justice Thomas.The hosts covered the arguments of the opinions for Percoco v. US and Ciminelli v. US in this episode.In this episode, the hosts discussed the arguments for Santos-Zacaria v. Garland, another one of the opinions discussed.This past episode discusses the arguments for National Pork Producers Council v. Ross, an opinion the hosts talk about this week.Follow @CrookedMedia on Instagram and Twitter for more original content, host takeovers and other community events. 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 Melissa Murray. I'm Kate Shaw. And I'm Leah Lippman.

And we are not twins. No, we are different people, even though our voices sound similar. I don't think they do. I don't think they do. I don't either, but I'm just reporting things people say on the internet and elsewhere. Okay, so as always, we have a jam-packed show for you. We are going to start with some news up top before we move on to opinion recaps, since the court is actually deciding opinions. And then at the end of the show, we will touch on some additional news that

has developed about a case we have been following thus far and could be playing out over the next Supreme Court term as well. So first up is le news. All right, because the Supreme Court beat stops for no woman, we have lots of breaking news since we recorded our last episode. No mention of Ginny Thomas, though, right? Do not mention Ginny Thomas anywhere. No mention, of course, of Ginny. Okay. We have some updates about the finances behind Ginny's lobbying on behalf of conservative advocacy organizations that have business before the court, by which we mean gifts that were, quote, given to Ginny for reasons. We recorded an episode topper for the last Listener Grab Bag episode, and literally within 24 hours, there were two

more ethics scandals, and then a third shortly thereafter. It's almost like the court is completely broken and the justices behave as if they are above the law. It can be really hard to keep all of these ethics scandals straight. So we are going to proceed in loose chronological order of the ethics scandals as they unfolded since we recorded our last episode. So we're going to begin with a return to our old friend, though not the kind of friend who invites us on his private jet, Harlan Crow. So listeners, you may remember that when Justin Elliott from ProPublica

came on the April 17th show to discuss ProPublica's initial reporting about the luxury travel and gifts that Harlan Crowe had lavished on Clarence and Ginny Thomas, we asked Justin if there was another shoe to drop. And he basically said that, yeah, they were actively reporting. So let's play that clip here. It's definitely possible. I mean, my two colleagues and I are actively reporting. We've gotten some really interesting responses and tips in response to these stories. And I should say, I mean, we genuinely are interested in any Supreme Court justice on either side. I welcome that. Indeed you were, sir, because on May 4th, ProPublica broke the story that Harlan Crowe paid for at least two years of private boarding school tuition for Mark Martin, who is a grandnephew of Justice Thomas and who Justice Thomas and Ginny Thomas had taken in and were raising like a son.

And I don't know about you, but I used to love that book, The Love Languages. Did you ever read this book about the five love languages? Yeah. Yeah. Yeah. Oh, OK. OK. Like words of affirmation, acts of service, gifts. I think Justice Thomas's love language is like private school tuition, or maybe just cold hard cash. Or is that Crow's love language? I think it's Crow's love language.

Right. Yeah, exactly. Both ways. Both ways. It works both ways, I think. I think it works both ways. But yeah, so again, private school tuition is not cheap. Ask me how I know. And someone else is paying for it. I love this for him. Well, we know from the literal receipts that ProPublica has managed to get its hands on that Crow paid for at least a year at the Hidden Lake Academy, which is a private boarding school in Georgia, where the tuition was more than $6,000 a month. And we also know that Crow paid for at

least one year's tuition at the Randolph-Macon Academy in Virginia, which is Crow's alma mater. Now, Crow was actually not the first benefactor who had assisted Thomas with the tuition expenses for his grandnephew. In fact, years earlier, Thomas received a $5,000 gift for his grandnephew's tuition from another friend. Man, his friends really like to give him that. I was just about to say, I feel like I need some new friends because I literally need at least $5,000, if not more, to buy some additional Taylor Swift tickets to the Cincinnati show. Friends, where are you? I'm right here. You know how to contact me. Well, I mean, I'm side-eyeing both of you too. Like,

you guys are really shit friends if this is what people are doing. We have given you no multi-thousand dollar gifts. That's true. So yeah, the earlier gift was different from the Crow tuition gifts in one important respect, which is that Thomas disclosed that gift. He reported it. So he was definitely familiar with the concept of disclosing tuition assistance, but he strikingly, conspicuously did not disclose Crow's assistance. Harlan Crow responded to ProPublica's questions with this statement, quote, Harlan Crow has long been passionate about the importance of quality education

and giving back to those less fortunate, especially at-risk youth. Crow and his wife have supported many young Americans at a variety of schools, including his alma mater. I mean, the man's love

language is tuition. It's his passion in life. And who could be mad about that? I love how Mark Martin was an at-risk youth living in a justice's house. Yes. So Thomas's defenders, by which we mean one of the guys depicted in the pastoral painting together with Leonard Leo, Clarence Thomas, and Harlan Crowe, that's Mark Paoletta for those of you following along at home, Paoletta said this didn't have to be disclosed because disclosure laws only require you to disclose gifts to dependents, which include children but not grandnephews, suck it libs. On the other hand. Textualism. Textualism.

Some textualism. Textualism. That's what that is. Some textual healing. On the other hand, some people suggested that the tuition assistance was maybe also a gift to Clarence Thomas, not just his nephew, and therefore had to be reported. And in response to Paoletta's point, ProPublica's article suggests that Thomas was his grand nephew's legal guardian at the time, which could also be relevant. But whether or not it had to be reported, this is what happened. A Republican mega donor who is active in Republican causes paid for the tuition of a Supreme Court justices dependent who the justice was raising like a son in loco parentis. Like, that's a pretty big deal. Sidebar, at least for me,

this is really interesting because there's a non-trivial chance that the court in a few weeks is going to dismantle affirmative action. And there's also a very non-trivial chance that Justice Thomas will be the one to write the majority opinion that will do so. And there's an extremely non-trivial chance that when Justice Thomas writes such an opinion, he will likely resume his habit of talking about affirmative action like it's an undeserved form of government largesse, all while he seems to be receiving from a wealthy friend private largesse intended to give his grandnephew an educational leg up. So just want to point that out. That's just because his friend is very passionate

about education. And he thinks it's constitutionally unproblematic for each and every one of us to get a billionaire friend to help subsidize our offspring's and grandnephew's education. As long as the government's not doing it. Yeah, that's fine. Small government, big billionaires. Put that on a t-shirt. The ProPublica story also included some details gleaned from Mark Martin himself, who often accompanied Clarence and Ginny Thomas when they were guests of Harlan Crow on these lavish trips. And Mark Martin disclosed to ProPublica that some of these trips included travel to Russia and to the Baltics, where there was helicopter touring, and also in attendance were individuals like the head of the American Enterprise Institute, who was a guest of Harlan Crowe's during one of these jaunts. So, oh, to be a fly on the wall, but so great for Mark Martin to have his horizons expanded with this luxury travel, this at-risk youth.

So in the wake, actually not of this last round of ProPublica reporting, but the earlier ProPublica revelations, Senator Ron Wyden, who is the chair of the Senate Finance Committee, asked Crowe to report to the committee all gifts of more than $425 that Crowe has bestowed on SCOTUS justices. Well, last week, Crowe responded in a letter from his lawyers that I think basically just told Senator Wyden to shove it. Leah, is that like a fair TLDR of the response? Yeah, like Crow's lawyers took a page from the chief justice's response to Durbin and just said deuces. See ya.

Nope. The letter is. I'm sorry. I can't. Don't hate me. Right. The burger post it. But in like four-page form. The letter is yet another fuck you to the

concept of congressional oversight over corruption and ethics at the court. It has all kinds of crazy in it. One thing I wanted to highlight in particular is that it suggests the request to Harlan Crowe, quote, implicate the separation of powers and require a heightened showing. And they cite the Trump subpoena case, Trump versus Mazars, as support for this, to which I want to ask, are you saying that Harlan Crowe is exercising government power, the judicial power of the United States, and therefore requests of Harlan Crowe are effectively requests to the federal courts? Because I'm not sure that's the vibe you want to convey. Maybe I'm missing something.

Or perhaps it's just that Crow's relationship with Thomas is so deep. The two are so connected that a subpoena to Crow is effectively one to Thomas. I'm just not sure. I think Roy Wood had it right. Maybe Justice Thomas is an NFT. That Roy Wood speech. That was great. At the White House Cor white house correspondence dinner if you haven't watched it to do so immediately he talks about the supreme court and skandaval basically that speech is my personality in a nutshell can we play a clip of that it was so good you never come up with a new thing y'all buy space rockets you bought twitter this man bought a Supreme Court justice.

Do you understand how rich you have to be to buy a Supreme Court, a black one on top of that? There's only two in stock. And Harlan Crowe owns half the inventory. We can all see Clarence Thomas, but he belongs to billionaire Harlan Crowe. And that's what an NFT is. Like I finally learned what an NFT was. Now, because we are a fair and balanced podcast that is committed, deeply committed to airing both sides of an issue. I mean, we're basically like the Federalist Society. And we regularly engage with criticizing Democratic appointees when they too engage in financial transactions

that raise the specter of corruption. So with that in mind, it behooves us to note that one time, Elena Kagan's high school classmates from Hunter College High School decided to send her some bagels and lox from Russ and Daughters, which is a very famous New York deli, to cheer her up for having to work with, well, I mean, basically a band of goblins. And they decided to send her some lox, some bagels, some whitefish from Russ and Daughters. And do you know what Elena Kagan did with this lavish would-be gift of bagels, lox, and whitefish spread? She told these prospective gift givers to hold off, to exercise restraint, because such a priceless gift of whitefish might raise the appearance of impropriety.

That is a true icon. Let's just take stock of the current ethics scandals at the court. We have some number of unclear scandals at this point. Private jet gate, private tuition gate, property transaction gate, Gene Thomas bags of money gate, and then locks gate. Right. Well, the first few you name do involve the republican appointees

um and then the democratic appointees like elena bagel have bageled in this competition um sorry i had to make that joke but seriously the woman returned bagels and locks that were sent to her and i quote as a sign of support for the nightmare of having to go to work i don't think she got them i think they told her they were sending she was like was like, no, no, don't do it. Yeah. Well, okay. So since she stopped these bagels and lox from ever being sent, but I'm going to read that quote from Hunter College alum, Sarah Schulman, who wanted to send her this stuff as a sign of support for the nightmare of having to go to work with Kavanaugh and Amy Coney Barrett and Neil Gorsuch. That was a quote from her. She said that. We didn't say that. That was her, not us.

I know. Love it. Love the energy. Speaking of my personality. And it's not just Locke's Bagel Gate that's really getting us here. We have to go back to Ginny Thomas. I will not stand for Ginny Thomas erasure. It is summer.

And, well, it's not really summer, but it feels like summer. It's getting hot again. And Ginny Tonics are back on the cocktail menu, which means Leonard Leo is speaking her love language. So let's talk about that too. I'm not sure, again, if this is Ginny's love language or Leo's love language. I think it's both. It might be both. In addition to, so Dolly Lithwick and Mark Joseph Stern at Slate have coined the phrase quid pro crow to refer to Harlan Crow in their coverage of this scandal. We want to try out a coinage which is not quite as good as quid pro crow, but decent, which is quid pro Leo, which I think sort of works.

Anyway, Leo is, of course, Leonard Leo, longtime leader of the Federalist Society. And also since we last recorded, the Washington Post has reported on documents revealing that Leonard Leo, also of the famed pastoral painting that Leah was referencing earlier involving Mark Paoletta, that Leonard Leo arranged for Ginny Thomas to be paid tens of thousands of dollars for consulting work done for the nonprofit group, the Judicial Education Project, which also, by the way, files briefs in the Supreme Court. So this story is going to sound a little bit like conservative or MAGA Mad Libs. So just bear with me for a second. But the Post reported that Leonard Leo told, drumroll please, Kellyanne Conway, that he wanted to, quote, give Ginny, quote, another $25,000 as friends do. It's the another that gets me, the another. Right.

As friends do reference this, of course, about the other ethics scandal, the Harlan Crow one. In this current one, Leonard Leo directed that there should be, quote, no mention of Ginny, of course, when it comes to these payments, which is something that very innocent people say when doing very innocent things. You know, basically, the bad LL was saying you do not under any circumstances take notes on this motherfucking criminal conspiracy. Leonard Leo would also like you to know that while he's siphoning money to Ginny Thomas without putting her name on it, because that would not be cool. The reason he's not putting her name on any of this is because the liberals made him do it.

So he had this to say about his decision to instruct Kellyanne Conway to keep Ginny's name off the payments. He said, knowing how disrespectful, malicious, and gossipy people can be, I've always tried to protect the privacy of Justice Thomas and Ginny. I feel so seen. Disrespectful, malicious, and gossipy. Do you think he's the one writing the meme reviews of our podcast? I'm 100% sure. He's doling out $25,000 to Ginny to write them, right? The one who called us harpy lid chicks and like an abortion of a podcast, that was Ginny and she got tens of thousands of dollars for that. I think we see the unmistakable pen of the same person on both of those writings. Absolutely.

You can talk to us in your love language, Leonard. It doesn't have to be all mean tweets. It's cool. So back to the reporting on the scandal. This particular scandal. Again, hard to keep track,

but we're talking about Leo to Conway to Ginny with no trace, ideally. With the candelabra in the library at Harlan Crowe's Adirondack Resort. Exactly.

Maybe. I don't know, though. Now we're merging the scandals. I'm not sure, but it's possible. That's where this went down. I think the scandals are already merged, Kate. I don't know where you're coming from, but... They might be.

As though specifically to the Ginny Payments, the Post reports that this group, the Judicial Education Project, despite being an obvious financial juggernaut, especially in recent years, so the Post reports that it had revenue in 2021 of over $100 million, that this entity has only a few employees and uses literally a UPS store as its address. As you do. Which is, of course, how you do when you're running a very

legit and not at all shady operation, obviously. But this is good news. This means that Leonard Leo can give me gifts of several tens of thousands of dollars to attend the Taylor concert. They've got the cash to spare. But, you know, taking a step back, like if you told someone that the guy who handpicked, handpicked three Supreme Court justices secretly funneled several tens of thousands of dollars in dark money to the wife of another Supreme Court justice for their work on behalf of an organization with business before the court, business that included dismantling multiracial democracy, that plot would get dismissed as unrealistic,

overly conspiratorial, wingnut delusions. And yet, here we are. Let's stay on this Leonard Leo beat for a second longer. We previously discussed the deal that Leonard Leo made with billionaire mega donor Barre Saeed. I don't even know if I'm saying that because I don't hang around with billionaire mega donors. So I just don't know. But it's spelled B-A-R-R-E-S-E-I-D, Barre Saeed. If he wants us to pronounce it correctly, again, tens of thousands of dollars in Taylor Swift tickets, my DMs are open. Just leave them in an unmarked bag. Don't put our names on it because we don't want any malicious, gossipy, disrespectful people getting in our biz.

Anyway, the pair structured a series of transactions that resulted in $1.6 billion being given to a nonprofit that Leo ran, the Marble Freedom Trust. The transaction reportedly not only invigorated the coffers of the Marble Freedom Trust, it also reportedly allowed Saeed to avoid something like $400 million in taxes. So that's truly a quid pro quo. Like, that's what friends do for each other. Politico now has reported how Leo and Saeed met, which is to say that they were introduced by Eugene Meyer, the longtime director of the Federalist Society. And at the time that this introduction was made, Leonard Leo was the executive vice president of FedSoc, and to which I say, not bad for a debating society. I wish the Palm Beach Catholic Forensics League, to which I belonged back in the day, had also been as good on the networking tip as the Federalist Society, an ostensible debating society has been. Yeah, you know, I also did high school debate, still waiting for those several hundreds of millions of dollars in Taylor Swift tickets,

you know, again, I'm here. So in light of these scandals, and others we'll touch upon briefly, Data for Progress released some updated polling on people's views about ethics regulation and the court, some high-level takeaways. When asked whether people support proposed legislation requiring the Supreme Court to adopt a code of ethics, 77% of people support that, only 15% oppose. And when asked whether Thomas's sale of property to Crow's company and failure to disclose it is ethical or unethical, they said 70% unethical, 18% ethical. That's Mark Paoletta voting a few times. And 12% didn't know. That's the same numbers for abortion and for gun control,

so real interesting. Democracy, Justice Alito. That's democracy. I'm really excited for him to accuse us of driving his poll numbers down the next time he decides to take to the interview circuit. We have uteri. Will he even know we're here? Exactly. Maybe not. Maybe not. It's just Adam Serwer and Steve Vladek. That's right. Okay, so the Senate Judiciary Committee recently held a hearing in response to all of, you know, gestures, this. And we unfortunately don't have bandwidth to cover that hearing in depth. Senator John Ossoff of Georgia and the Republican witness, former judge and attorney general Michael Mukasey, during which the former judge and Bush administration official said he is not so sure he would have refused private jet trips and free vacations from billionaire friends. So let's play that clip here. As a judge, is it fair to say that you most likely would have declined an offer of

foreign travel worth hundreds of thousands of dollars because, quite reasonably, you would have had the concern that public disclosure of such travel could have undermined public confidence in the impartiality of your judgment. Simply because it amounted to, I mean, if somebody took me, I mean, if I were a district judge and somebody wanted to fly me on his private plane on a vacation with his family. I were friendly with that person. Would I have refused and endangered the friendship? I'm not sure that I would have.

I appreciate his honesty. I appreciate his honesty. Okay, that's not good. Look at you spinning it in such a positive light, Melissa. I mean. I have to say, in all seriousness, I really love John Ossoff. I thought he was kind of a scene stealer. You and every Jewish mother in the United States.

Come on. But I feel like it was the mothers, yeah, the younger generation has sort of come around now. He's been great. Yeah. And he was great and kind of a scene stealer at a couple of points during the KBJ confirmation hearings. And he was just really good in this exchange. Less good was the other participant in the conversation. I mean, I thought it was a shocking answer, but I guess this kind of comes back to something that we have now highlighted a couple of times in this episode,

which is I think we actually are all working with real different understandings of friendship. And maybe the three of us just need to update our outdated notions of really the kind of the core features of friendship. But updated? I'm waiting for those bags of cash. Again, I'm just – compare this to Justice Thomas in that Fakukta documentary where it's like, I would rather be in a Walmart parking lot than the beach because I'm a real person and I'm from real people's stock and that's what I like. I'd be like, at least Michael Mukasey was like, would I rather be on a private jet than in an RV parking lot at Walmart?

Hells yeah. And I applaud that because me too. I don't want to be in a parking lot. Nobody does. It turns out Thomas doesn't either. Just tell me that. I mean, like I knew, but like you don't have to lie to my face.

Anyway. So moving on in the ethics scandals slash appearances of corruption, we wanted to briefly touch on a New York Times story by Joe Becker and Steve Ader about the Antonin Scalia Law School, formerly known as the Antonin Scalia School of Law, which was formerly known as George Mason. The story describes a coordinated effort to build relationships with Republican Supreme Court justices to enhance the institutional capital of the school. And there was one line from the story I wanted to quote just because it's so good. The documents show how Scalia law has offered the justices a safe space in a polarized Washington, an academic cocoon filled with friends and former clerks where their legal views are celebrated. They are given top pay and treated to teaching trips abroad and their personal needs are anticipated from launch orders to, in Justice Gorsuch's case, house hunting.

I want that for me, too. Doesn't it sound cozy? Doesn't it sound fun and cozy? You know, again, in addition to updating our notions of friendship, I think we will need to update our notions about what it means to teach and be an academic, as this story will reveal. The story describes the school's renaming from George Mason, a founding father, if you will, to Antonin Scalia School of Law, a new kind of founding father. The abbreviation

for this new renaming happens to be asshole law. A-S-S-O-L. Asshole. I might have thought about that earlier, but whatever. They've since changed things around with the Koch Network, for which the school agreed to form a center for the study of the administrative state and a liberty and law center. So by 2019, the law school had hired Gorsuch, Kavanaugh, and Thomas. And for teaching summer courses that are about two weeks-ish, Justices Gorsuch and Kavanaugh each made— Almost like a vacation. They're like vacation-length courses. Is that right? Almost. Except they seem to coincidentally align with the duration of an ordinary vacation, but the kind of vacation for which you are paid handsomely.

So for each of these two-week vacations, each of the justices made salaries that approached the legal cap on certain outside income for justices, so roughly $30,000. These programs have sent Gorsuch to Iceland and Italy, Kavanaugh to the UK. When the law school was recruiting Gorsuch to take one of these vacations in 2017, it asked him to help choose the Italian city where he would co-teach a seminar on, obviously, the separation of powers, because you have to go to Italy to teach that seminar. The Times described a memo from the school that offered Gorsuch a choice between three cities. Wait, wait, what were the cities? Like, was Venice? It was Venice, Padua, and Bologna. And Bologna, yeah, and Bologna. So he picked Padua. I don't know,

I would have picked Venice personally, but I mean, you can't go wrong. And the school told him his teaching responsibilities would just include mornings, which would leave him afternoons for trips, to which he responded by email, fantastico. Fantastico! That is now mandatory reading. Everywhere. Every time we quote a Neil Gorsuch line on this podcast. Fantastico! One of us has to erupt with,o okay so just get ready get ready listeners okay

so it appears that justices gorsuch kavanaugh and thomas used employees in their judicial chambers to coordinate these outside academic duties even though there is a judicial advisory opinion which the justices say they voluntarily follow, wink, that says staff members should not help, quote, in performing activities for which extra compensation is to be received. And yet Justice Kavanaugh's staff seemed to work extra hard to get him extra compensation because they asked where his paycheck was and when he would be getting a raise. Bitch better have my money. Pay me what you owe me.

That was very thirsty sounding. Yes. Parched. Very parched. But obviously out of our relentless commitment to fairness, we are going to report that Democratic appointed justices have participated in some Scalia law events. The piece notes that Kagan and Sotomayor have been on panels.

And I will say just head off any future scandals. I, too too once did a panel there. Not in Italy, to be sure. Definitely in DC. So, you know, they haven't invited me to Italy. I can't quite figure out why. But it turns out Kagan and Sotomayor panels were not in Italy either, right? These are DC panels. So I am beginning to see who gets what kinds of invitations there. Okay. All right. I hope Kagan and Sotomayor are beginning to see too.

Remember when Linda Evangelista was like, I don't get out of bed for less than $10,000 a day? Yeah, totally. I don't get out of bed unless we're getting on a cella and going somewhere. Unless you give me $30,000 to go to Italy. I mean like a cella to New somewhere. Unless you give me $30,000 to go to Italy. I mean, like, a cella to New York, at least. Like, get them out. There are others who are commanding much, like, a larger size. Yeah, I mean, I hope they're clocking that. Kagan, though, appeared, it seems likely unwittingly,

in what appeared to have been a multi-day fundraising bonanza for the school directed at conservative donors. Like, I gotta believe she did not knowingly sign up for that bonanza. And I gotta believe she's not thrilled to learn about it with the rest of us. So can I just say something about that? Like, when I was interim dean at Berkeley, we had an event with Justice Sotomayor. And, you know, it was like a big thing for the whole campus. And lots of people came. And then afterwards, I wanted to organize a dinner with like faculty, with the justice and whatever. And her office was just like,

there can absolutely be no fundraising component to this at all. Like no, you know, no whales, no prospective donors, nothing like that. And they were just so adamant about it that I just thought this was like pro forma. Like you just could not do this. And everybody knew that.

Fantástico! So maybe now we go on to opinion recaps, since the court managed to issue some opinions around these trips to Italy, Iceland, United Kingdom, and Lord knows where else. So we'll start with covering the opinions that are kind of related to the news we have been covering, namely political corruption and fraud, and then briefly discuss the others as well. So the court issued two essentially unanimous opinions that significantly narrowed the reach of federal public corruption statutes. The first case, per Coco, involved a defendant who solicited a quid pro quo

exchange along the lines of, you give me some money and I get the governor to do something for you, while the defendant was briefly not in the governor's office, though he had been, but was on the governor's re-election campaign and planned to later go back into office. The second case was Simonelli, which involved a group of defendants who participated in a system that rigged how bids for government contracts were awarded, basically ensuring that the defendant's companies would be awarded the contract. There, the court rejected the idea that there could be fraud when an individual deprived others of the right to control their property by withholding valuable economic information. We'll break these cases down, but just to start at a very high level of generality,

it's worth stepping back to think about how much the Supreme Court has narrowed the reach of federal law targeting public corruption. This has been going on for a long time, but it's hard to miss the significance of the court further narrowing laws against corruption at the very moment that we are seeing much needed attention on public corruption and influence and access campaigns at the Supreme Court. Kate has written a lot about this too. So I just want to call out Kate's writing. One of her articles, Partisan Creep, is forthcoming in the Northwestern Law Review, and it talks a lot about this. But we've been talking about this since our first season with Bridgegate, Governor Chris

Christie shutting down the George Washington Bridge and the court's narrowing of what corruption is and making it much harder to prosecute corruption. And again, I think you're right, Leah, and I loved your tweet the other day. Really interesting that they're wading in and not really embarrassed at all to be wading in in this fashion given everything that's going on. No, and despite, as you said, Melissa, there's a line of cases that I write about some in this partisanship creep paper. And they weirdly kind of don't cite one another. A lot of them are narrowing, like really narrowing different parts of the federal criminal code and sort of pretending that they're not part of some like larger unified

project, but they clearly are. And this is no exception. I think maybe the Thomas, there's a concurrence that cites Kelly, the Bridgegate case, but there's a lot of cases that aren't cited that I think are quite germane. But so let's maybe start by breaking down Percoco and Simonelli, and then we can talk a little bit more about sort of the broader themes in the two cases. But as Leah mentioned, as to Percoco, the scheme here involved a top aide to New York Governor Cuomo, Joseph Percoco, who had this brief period off of the governor's staff just to run the governor's reelection campaign. And during that brief period, he took tens of thousands of dollars from a developer who was trying to get favorable treatment from a state agency. After getting that payment, Percoco made a call to the agency. Lo and behold,

the agency dropped the requirement. It had actually been this labor peace requirement that it initially imposed on entities that wanted to receive certain state funding. Three days later, after brokering this deal, Percoco returns to the governor's staff. And I mean, all of this sounds really corrupt. He's being paid in order to leverage his influence with government officials. He does that. The payor gets the benefit

and Percoco immediately returns to the governor's staff. And the prosecutors thought this was clearly corrupt. He was convicted by a jury of honest services fraud. The Second Circuit affirmed. But actually, according to the unanimous court here, everyone else was wrong. Our intuitions about this were wrong. This conduct was fine. And this was an Alito opinion.

And I am curious if you guys agree with this assessment. But it really had, to me, something of the flavor of the Wall Street Journal interview, quote, interview that Alito gave, blaming everyone but the court for the court's cratering public approval. Like because it was defensive and grievance-laced? Yeah, it basically was. It was like, look what all of you made us do. We have to reverse this conviction. We have no other choice. This is interesting. I thought it was interesting that this is one of those rare opinions where Justice Alito is on the side of a criminal defendant. So let's just clock that. I think it's just wild that they even issued this opinion. I'm thinking back to last term when there were all of those shootings like Uvalde and we were waiting and waiting and waiting to get the opinion in Bruin.

And it seemed like they held off on that, just understanding the public mood, like they could literally read the room. And maybe it's that they understand that the public is probably not tracking these cases as closely, but it just feels like a stunning absence of just IQ, EQ to release this at a time when they're, yeah, read the room. But I mean, again, I don't know that many people besides us are clocking this in the same way, and they probably understand that too. But for people who are court watchers, I think this probably landed like a lead balloon. Like you're seriously doing this at the time you're all being looked at for that. And what Alito basically says is we have to reverse this conviction because the law doesn't encompass this sort of conduct by a private

citizen because Percoco was technically not on the government payroll at the time of the conduct charged. And what Alito says is the law just doesn't encompass this kind of conduct just because somebody has informal political or other influence over governmental decision making. And the opinion does say it is not holding that private individuals can never be held accountable in this way. Like maybe they could be if they're truly acting as arms of the state. But that wasn't the case here. And I'm not so sure Alito actually really would ever find that, you know, those requirements satisfied. But in terms of the Wall Street Journal piece of it, it was just like, here are like, you know, listing everyone whose errors led to the conviction,

like sort of seemed to me like what Alito was doing, which is that Congress hasn't passed laws that are explicit enough that this kind of conduct is illegal. And prosecutors have written the wrong kinds of charging instructions. And lower courts, including the lower court here, like they're to blame too. So like we have no choice but to reverse this conviction. And it casts the court in this like really reactive posture, which is all we're doing is like everyone's overreaching and we are protecting values of notice and due process and avoiding the criminalization of this like really warped view of ordinary politics, which the court thinks needs some constitutional protection, as far as I can tell. This reminded me of something very different, not the Wall Street Journal interview, although it might be related. I thought his whole discussion of Percoco as a private

individual as opposed to a government employee very much sounded in the register of Kennedy versus Bremerton School District from last term. That was the praying coach case. This idea that this man has a right to be in a place that is nominally public, but doing his own thing, as long as he's sort of off the clock, however briefly, like, like, there's just all of this privacy for men to do these things. And here too, I mean, like, Percoco went back to Cuomo's staff like three days later. But for that one brief moment of time, he's a private citizen. And apparently, he can crime if he wants to, and accept money. So you know, the whole thing just seemed very much in that vein. And once again, Justice Alito and much of the court sort of

taking up for these beleaguered men who are doing things that maybe they ought not be. Bro's rights, dude process. Men get to do what they want. Yeah, exactly. From Scrotus. Scrotus. You heard it here first. So Kate, you mentioned how this opinion reflects Alito's warped vision of ordinary politics. I wanted to highlight two passages along these lines from the opinion that stuck out to me,

especially in light of what's been reported. So one read as follows, quote, from time immemorial, there have been eminence Greece, individuals who lacked any formal government position, but nevertheless exercise very strong influence over government decisions. Some of these individuals have been reviled. Others have been respected as wise counselors. This was basically him describing Leonard Leo, as best I can tell. And one more quote. Is it enough if an elected official almost always heeds the advice of a longtime political advisor? Is it enough if an officeholder leans very heavily on recommendations provided by a highly respected predecessor, family member, or old friend who gives them free personal jet rides or gives $25,000 to their wife

with no mention of her? Of course, I added that last phrase to be clear. It ended at old friend. It was implicit. Duh. Back when this case was argued, we highlighted some clips from the oral argument. And once again, some of these clips just hit a little bit differently in light of subsequent reporting. So let's play some of Neil Gorsuch and Sam Alito's hypotheses for how politics might work and various things they are worried about criminalizing. And that might be the in-office argument. Your bright line. I understand that. But if the court were to go beyond that, is there any stopping point?

Is this statute cover all lobbying potentially? What do you say about somebody who is a super, super effective lobbyist? So let's say this person is a childhood friend of the person, the elected public official. They played together on the high school football team. This person was the elected official's best man or maid of honor at the wedding, spearheaded the person's political career, campaign manager for every campaign, helped this elected public official out of numerous political scrapes that everybody thought meant the end of the person's political career. Now as a lobbyist, lobbies lots of different public officials, has lots of clients, has a 100% success rate with respect to this public official. There's a concern about interpreting this statute to sweep in lobbying, but would that person be covered in your view?

This town is full of such persons, and presidents have had kitchen cabinets since the beginning of time. And those people are often taken quite seriously in the halls of government, whether they should or not. It's an interesting public policy question. But I would have thought that many of those persons would be functional government officials. Is that your phrase? Let's say he does, that he's in the White House or in the halls of Congress on a regular basis. And people know that he is taken very seriously by the elected official

and that they have to listen to that fellow and do as he says because they know he speaks for the president or the senator or whatever. So Gorsuch and Thomas wrote a concurrence here. And the concurrence basically has a flavor of saying without saying explicitly that the whole idea of honest services fraud as a federal crime, about which there has been a lot of court-Congress dialogue since the 1980s, just cannot be salvaged. It's just irredeemably and irretrievably broken. And, you know, I don't know what else to say about this, Leah. Apparently, there's nothing Congress can do about public corruption. They are making public corruption great again. I love it. Keep criming.

I definitely agree. The concurrence, I think, says explicitly what the majority can't bring itself to say, but I think actually does believe, which is that much of the conduct that prosecutors have historically reached under sort of honest services fraud theories can't constitutionally be prosecuted. So it's not about the laws being slightly drafted wrong or the charging instructions being a little wrong. It's just that the court doesn't criminalize this stuff. off yeah and i think that gorsuch and thomas say this except for then there's this weird part of the of that concurrence where gorsuch does sort of say in this like of course like obnoxious self-aggrandizing way and like peak gorsuch prose that like maybe there would be a way to write a properly drafted statute that could survive i don't know do i subject we subject our listeners you got to do the last sentence the last sentence is just incredible it's okay okay so there are a couple sentences in which Gorsuch says, I have no doubt

that if all nine justices put our heads together, we could rewrite Section 1346 to provide fair notice and minimize the risk of uneven enforcement, but that is not a path the Constitution tolerates.

Under our system of separated powers, the legislative branch must do the hard work of writing federal criminal laws. Congress cannot give the judicial... I'm sorry.

I don't know if I can get through this line. This is the line. You gotta do it the judiciary... I'm sorry. I don't know if I can get through this line. This is the line. You gotta do it. Okay, I'm gonna try. Congress cannot give the judiciary uncut marble

with instructions to chip away all that does not resemble David. Fantastico! He's like, I saw that when I was in...

I saw that statute in Italy. When I was in Padre, we took a little side trip to Florence. A side trip to Firenze, and we saw David, and so I know all of it. We saw it all. Uh-huh. Yeah, okay. So there's more.

We could linger for longer, but let's briefly cover the second political corruption case, which is Simonelli versus the United States, also involving a fraud prosecution growing out of New York and the Cuomo administration. It's almost like there's a lot of growing out of New York and the Cuomo administration. It's almost like there's a lot of crime and stuff going on during the Cuomo administration. Well, no, all these things actually, Melissa, were not crimes. We were all wrong. Oh, that's right. This is just politics.

It must have pained Sam Alito to be overturning the convictions of these Democratic staffers, but sometimes this is because he's principled. And people say the court is partisan. Come on. Come on. Democrats, Republicans, they can all engage in political corruption. Does Andrew Cuomo go to the Bohemian Grove? We're going to find out.

That's a great question. I'm going to go with yes. It's powerful men. It's mostly conservative, but it's powerful men. And I think that if that's the sort of key criterion. Sandra Day O'Connor's husband went to the Bohemian Grove, like a lot. I thought you were going to say Sandra Day O'Connor went. I was going to be really surprised. All right. So Simonelli involves the Cuomo administration's Buffalo Billion Initiative

to invest a billion dollars in upstate New York. Simonelli was the owner of a construction company that was involved with a scheme in which Simonelli paid a Cuomo aid, large sums of money, for that aid to smooth the path to Simonelli getting these lucrative contracts that were part of the initiative. One of them was the $750 million project. So slightly different facts from Percoco, but the same basic idea. Bags of money without anyone's name on it. So not surprisingly, Simonelli ends up being charged with fraud, but not under the same honest services theory as Percoco. Instead, it's under a theory developed in the Second Circuit that's known as the right to control theory, under which the government

shows that the defendant's scheme to deprive a victim, here the New York state authorities, of potentially valuable economic information necessary to make discretionary economic decisions. But for different reasons that probably pertain to the same underlying reason, Justice Thomas, again writing for a unanimous court, found that this conduct didn't actually violate the wire fraud statute because the statute, 18 U.S.C. Section 1343, requires a scheme to obtain property. And Thomas says that the property referred to in that statute does not include intangible interests like the right to control the use of one's assets. So once again, the jury was improperly instructed. And once again, the conviction is reversed.

Justice Zialito opinion was concerned about the application of this version of honest services fraud to an upstanding lobbyist. Thomas here is concerned about bringing state law corruption under federal law. So this is a breezy little nine pager. Justice Alito writes a separate concurrence to say that perhaps there is another path to prosecuting Simonelli, this time on a more traditional property fraud theory. I'm not willing to let him off the hook entirely, it seems. But that might be because this is all part of a Democratic administration. So more grievance. Let's move on to the next opinion, which was about pork. So related to just excess earmarks and whatnot.

This was National Pork Producers Council versus Ross. And I'll just say, this was a messy, messy, messy, splintered opinion. It's nominally a 5-4 opinion, but it really is a kind of 3 to 2 to 4 opinion at various points. But the bottom line is that the Supreme Court upheld Proposition 12, which was California's law that prohibited in-state sales of pork that were raised in inhumane conditions. And the partial dissent here comes from the Chief Justice, Justice Alito, Justice Kavanaugh, and wait for it, Justice Jackson. So a very atypical lineup. And this whole case just made me think of Charlotte's Web. Some pig. This was some opinion. the reason it is kind of as melissa just said a three two four

opinion is that justice gorsuch has what is styled as the opinion of the court and for very significant portions of it it is the opinion of the court but there are also portions of justice gorsuch's opinion that aren't joined by all five justices and there are parts of the opinion that are actually rejected by the six justices who didn't join certain parts of the opinion that are actually rejected by the six justices who didn't join certain parts of that opinion. And then there are a bunch of separate writings from the justices in the majority, one by Justice Sotomayor, one by Justice Barrett, and that is in addition to a separate writing that is a partial dissent by Justice Kavanaugh on top of the primary dissent by the Chief Justice. But the court does affirm the Ninth Circuit opinion

dismissing the challenge to the California law. So whatever these separate writings might mean for the Dormant Commerce Clause, for future challenges to state laws, including to this law, for now, California's law remains untouched. So this is a big win for California, a real win for the piggies, some pigs, all the pigs. So let's try to break this down a little further. The bottom line here is that California can prohibit in-state sales of pork that were raised in inhumane conditions, even though the overwhelming majority of pork is actually imported into California from other states. Recognizing this, the plaintiffs had argued for a sweeping vision of the Dormant Commerce Clause. And the Dormant Commerce Clause is the

notion that the Constitution's grant of power to Congress to regulate interstate commerce also includes, by implication, a prohibition on states passing laws that would discriminate or impede that kind of commerce. So here, the plaintiffs argued for a broad interpretation of the Dormant Commerce Clause, an interpretation that would basically prohibit virtually all state laws that have the practical effect of controlling commerce outside of the state, even if the laws were not intended to discriminate against out-of-state economic interests. So a much broader vision of the Dormant Commerce Clause in the court had previously recognized.

Writing for the court in his typical extremely tortured and overwrought style, Justice Gorsuch rejected that argument, noting that the Supreme Court's Dormant Commerce Clause jurisprudence focused on preventing purposeful discrimination against out-of-state economic interests and adopting the plaintiff's proposed rules, Gorsuch said, would cast a shadow over a broad range of existing state laws that affect out-of-state behavior but are permissible. Then in another section of the opinion that has an actual majority, the court rejected the plaintiff's other argument. That was a portion that challenged the California law is unconstitutional under the Supreme Court's 1970 decision Pike v. Bruce Church, and that theory maintained the law's benefits for California residents did not outweigh the costs that the law imposed on out-of-state economic interests. And this is where it kind of gets interesting. According to the court, this Pike balancing test was designed to identify laws that are intentionally trying to suppress out-of-state

commerce, so to be discriminatory. And in this case, Proposition 12 was not intended to suppress out-of-state interests. Those are the only portions that commanded a majority, but there's more. Because in the following sections, Justice Gorsuch wrote for one plurality of justices that included himself, Justice Barrett, and Justice Thomas, maybe the biggest insanos on the court, at least in some ways. But that trio said that pike balancing is another one of those areas of law that has been maybe abandoned, maybe overruled, but in any case, no longer really exists, at least in any meaningful form. So those sections- This is exactly what they did to the lemon test.

Yes, exactly. Exactly. Like, it's been abandoned. Right. Like, these sections of the Gorsuch plurality opinion suggest at various points that courts just can't do pike balancing at all or maybe that they at least can't do it when a law has non-economic benefits. But as we said in the opening, these are writings by three justices that appear to be rejected by six justices. As Justice Kavanaugh writes in his partial dissent slash concurrence, although parts 4B and 4D of Justice Gorsuch's opinion would essentially overrule the Pike balancing test, those subsections are not controlling precedent, as I understand it. So I do think the math means Pike remains. Yeah, no, I think that's right. Brett showed us he can count to five. For now. He gets a cookie. All right, so what happened in the other concurrences?

And specifically, how is it that Justices Sotomayor and Kagan end up voting for the same bottom line result as Justices Gorsuch, Barrett, and Thomas, that the California law is constitutional, even though they don't necessarily reject the concept of pike balancing as the trio did. In Justice Sotomayor's concurrence, in which she was joined by Justice Kagan, she writes, quote, I vote to affirm the judgment because petitioners fail to allege a substantial burden on interstate commerce as required by Pike, not because of any fundamental reworking

of that doctrine. So she's like, I still think Pike is good law. I haven't abandoned anything, blah, blah, blah. And Kagan, together with Sotomayor and Thomas, joined the section of the Gorsuch opinion that says that the plaintiffs didn't show that the law had a substantial burden on interstate commerce. That portion of the opinion said, yeah, the burden falls on out-of-state commerce, but so what? It benefits out-of-state commerce as well. Producers that raise pork in humane conditions will benefit being able to send their products to California where there's now a market for it. So it offers a choice for primarily out-of-state businesses, change your business practices, or forego doing business in California. And if they change their business practices, they can and might pass along the costs to California consumers.

Economics, the market, all the things, right? Yes. So Justice Barrett also wrote a concurrence to say, no, actually, the plaintiffs did allege a substantial burden on interstate commerce. And then she just cites some Scalia opinions and writings to say that the dormant commerce clause and or pike balancing just aren't a thing. I've read the Barrett opinion like three times. It's very short. I have no idea what she's saying. Like, I feel like she threw like 20 sentences at a page and they have nothing to do with each other. And the thing does not make any sense. The opinion by the chief justice is the primary dissent. And in that opinion, the chief justice would remand for further Pike analysis, given that they say that the plaintiffs did allege a substantial burden on interstate commerce.

So, I mean, again, they are all over the place on Pike balancing, on the dormant commerce clause. Is it a thing? Is it not a thing? All the things. Like, this opinion is messy, messy, messy. So in terms of the upshot here, it does seem like maybe SCOTUS isn't coming for state laws with extraterritorial effect and that is a good thing for animal welfare for environmental

regulations and more like maybe internet and broadband rules or social media rules too although you know the valence of these things can vary lies lies lies you put an abortion law in here and we're going to be all up in extraterritoriality. Could be. Yeah. So I will. I'll happily eat those words. Not happily. I may be eating those words very soon. But at least as to the kinds of laws that I just listed, I actually think the Supreme Court is not going to be able to get to a majority. That's going to suggest that there's a constitutional problem there. But you're right. Abortion is subject to its own set of rules. Maybe guns, too. So let's move on and briefly tick through the additional opinions that the court released last week. So, one, we got an effectively unanimous opinion in Santos-Zacaria v. Garland.

This is an opinion by Justice Jackson. It makes it slightly easier for noncitizens to challenge removal orders. Specifically, it allows noncitizens to challenge removal orders in federal court even if they have not first asked the Board of Immigration Appeals for discretionary forms of relief, relief that isn't afforded or guaranteed as a matter of law. And here the petitioner did not ask the BIA to reconsider a decision. She says incorrectly did some fact-finding above and beyond what the immigration judge had done, but that failure is not fatal to her claim. So the court says she didn't have to pursue that remedy, a motion for reconsideration, because it's discretionary. And even before getting there, the court also concludes that the requirement to first try administrative remedies before going to federal court isn't jurisdictional, which means if the

government doesn't make a stink about it, courts can't bring it up on their own. Now, Justices Alito and Thomas, of course, would have done this differently. They wouldn't have decided the jurisdictional question. They just would have said that the requirement doesn't apply to discretionary remedies. And this is a short, tight KBJ opinion that on its surface is pretty focused on the sort of relevant statutory text, but also I think is obviously really interested in Congress's intent and purpose and also does a lot, I think, of sophisticated reading of the relevant statutory provision against other related statutory provisions. But I do think that it's significant

that she held the court together, a functionally unanimous court, on the style of the opinion. Nobody decided to break because I think she didn't do anything that sort of explicitly said we're focused on purpose and not text. She sort of weaved them together really deftly. And I hope that means that future statutory cases by this new court are going to be more willing to actually look to what Congress intended. So another note about how the opinion is written, the petitioner in the case is a transgender woman. The Supreme Court opinion uses she, her pronouns. Contra, the practice in the Fifth Circuit, at least by Stanford stormtrooper Kyle Duncan. The opinion also uses the phrase non-citizen rather than alien, which the court has done before.

Both of these things are consistent with prior Supreme Court practice, even if they're not consistent with some of the practice in some of the courts of appeals. Hopefully that's a useful signal to lower court judges that if, you know, Sam Alito is on board with providing a baseline level of respect to parties, like for the love of God, can the lower court judges please do the same? We also got the opinion in Financial Oversight Board of Puerto Rico versus Centro de Periodismo Investigativo. This is an 8-1 Kagan opinion with a dissent from Justice Thomas. It finds that Congress did not eliminate the board's immunity from lawsuits, saying federal law did not authorize suits against the board. And it's a pretty straightforward opinion that just says, look at our prior cases where we've said that what is required is a clear statement from Congress to abrogate immunity.

And here, there is no clear statement. So we're done. Thank you. Goodbye. So on the one hand, it is clearly a good thing that this opinion does not consign Puerto Rico to a kind of second class status among governments within the United States. It affords Puerto Rico the same kind of immunity that states and the federal government enjoy. Although we should say the court does not hold that Puerto Rico enjoys the same kind of immunity. It just says that it is assuming without deciding that Puerto Rico is immune from suit in the same way that states and the federal government are. And the court then asks whether in light of that assumption, the federal law overcomes Puerto Rico's sovereign immunity. It's also important to keep in mind that the upshot of this case is kind of bad and that

sovereign immunity blocks accountability and transparency. You know, this was a suit by a nonprofit media organization asking the board to give them materials related to Puerto Rico's fiscal crisis and process for debt restructuring. And, you know, the plaintiffs say the board's refusal to hand over those materials violates the Puerto Rican Constitution's guarantee of a right of access to public records. And this opinion means they can't get that access. So even though it's partially respectful of sovereignty in affording, or at least assuming Puerto Rico has sovereign immunity, it's not in other ways.

You know, the provision of the Puerto Rico constitution is a provision actually adapted by Puerto Rico, and that is going to go unenforced. So as promised, we also have some additional news we wanted to include that touches on a case we have talked about before that could also extend into the next Supreme Court term. And that includes a complicated update about this case. And that's the case of Richard Glossop, who's been sentenced to death for a crime for which there's now pretty powerful evidence that he just did not commit. So we're going to recap some of the facts for you with a very special guest. The last time we had discussed the case was when the Attorney General of Oklahoma had recommended clemency for Glossop, which seemed like a very positive development that could have brought all of this insanity to an end.

Alas, that didn't exactly happen. So with us to discuss where the case is now is one of Mr. Glossop's attorneys, John Mills of the law practice Phillips Black. The Phillips Black Project actually commemorates the work of Samuel Phillips and Hugo Black. Phillips was the United States Solicitor General during Reconstruction, and he unsuccessfully represented the United States in the opinions like Klaproth versus United States, Griffin versus Illinois, and Gideon versus Wainwright, you know, the decision establishing a constitutional right to counsel. Welcome to the show, John. Thank you. It's a real pleasure and honor to be here. Really love what y'all do here. Thank you. So could you just briefly recap for our listeners what Mr. Glossop was convicted of and some of the incredibly powerful evidence that

you all have since collected that raises such serious doubts about his innocence. Happy to do so. Rich Glossop was convicted of murder in Oklahoma, and he was convicted on a theory that he had hired Justin Sneed to commit the murder. Everybody has always agreed that Justin Sneed is the person who committed the murder. The only question has been whether or not Rich had anything to do with it. He's always maintained his innocence. And the only real connection between the murder and Rich Glossop was Justin Sneed's testimony saying that Rich had hired Sneed to commit the murder. Some of the evidence we've developed has cast some doubt on that. One of the evidence we've developed is Justin Sneed's effort to recant his testimony, as well as a memo from the prosecution indicating that they had coached Sneed to change his testimony to fit to some of the evidence. And a whole bunch of other issues,

including the little bit of money that our client had on him, had no blood on it. But Justin Sneed's, all the cash that he had on him did have blood on it, including microscopic droplets of blood. So the basis on which the state has implicated Rich has always been thin. And after they turned over some files that Mr. Gossett asked for over 20 years ago, they turned them over only recently, the state's case has really crumbled. And those files included the statements from prosecutors indicating that they understood several decades ago that even then, Justin Sneed was trying to recant his testimony. So this is not, you know, some very later in time attempted recantation. Correct. This is evidence that the state had at the time of his trial and had an obligation to turn over at the time of his trial. So can you tell us, John, what stage Mr. Glossop's case is at now and what the legal claims he's

raising now are? Yeah. So based on these recent disclosures, we sought relief from the Oklahoma state courts. Those courts denied relief despite the attorney general saying that he needs to have a new trial. And so after that denial, we filed a petition with the United States Supreme Court asking them to intervene and reverse the Oklahoma court decision. And it sounds like some of the legal claims you're raising are Brady

claims, which is the prosecutor failed to disclose evidence that cast Mr. Glossop's guilt into doubt. But any other legal claims that are kind of at issue in the case right now? Yes, absolutely. So there's two sets of issues that arose as a result of the disclosures. One was the Brady claim with regards to Sneed's recantation. And then the other is one that Sneed lied when he testified and that the state knew about it. Sneed testified that no, he never had seen a psychiatrist, wasn't under the care of one, didn't have mental health problems. In fact, the prosecution had in its files a statement from Sneed saying that he was under the care of a psychiatrist and had been prescribed lithium. And when combined with methamphetamine, which Sneed had an addiction to at the time, could make someone quite violent and may have explained his behavior in this case.

So with the disclosure of the state's knowledge about Snead being treated, it was clear to us then that the state had knowingly presented false testimony. And that's what the Oklahoma Attorney General confessed error on. And that is at issue before the United States Supreme Court as well. And we'll return to sort of what's pending right now before the Supreme Court, but I just wanted to quickly remind our listeners of something, which is, John, I'm not sure if you were involved with Mr. Glossop's representation at this point, but people may have heard Glossop's name in the context not of questions about his guilt in the context of this particular offense, but in the

context of a challenge that he brought to the method of execution that Oklahoma was planning to use in his execution that resulted in a 2015 Supreme Court case in which the court rejected the challenge, basically put the onus on individual sentence to death to supply themselves what the court deems a constitutional method of execution. The case drew a concurring opinion that we have described before by Justice Thomas that is a truly ghastly opinion and some important dissents, including a really powerful dissent from Justice Sotomayor. Were you involved in the representation at that stage as well, John? I was not involved at that stage. However, that decision has loomed large over Rich's case and

our efforts here. I think that that case, at least in the minds of some people in the court, represents why the death penalty needs to be faster and more brutal. And a hurdle for us is to overcome that. And I think the evidence that's come to light since that decision came down has given at least five members of the court some pause, which I think we'll probably talk about shortly. It's another kind of stunning example about how in the court's Eighth Amendment cases on the constitutionality of the death penalty, several of those cases, it turns out, involve individuals who are possibly innocent. You know, we've discussed before the writing of Justice Scalia, who basically challenged Justice Blackmun's criticisms of the death penalty and raising doubts about whether the death penalty was constitutional. And Justice Scalia said, well, you didn't say so in this other

case involving the McCollum brothers. Well, guess what? It turned out the McCollum brothers were innocent. And now it turns out this foundational case that the court used to make it substantially more difficult to challenge methods of execution. And Justice Thomas writes separately, basically saying states should be allowed to execute people more quickly and in more grotesque ways, like also involves someone where there is a very real chance that they are innocent. And it's just the entire edifice of the court's death penalty jurisprudence is built on cases involving real questions of innocence. It's just really stunning.

It is stunning. And in some ways, you know, Rich's case is all too familiar for those of us who work closely on these cases. It involves poor police work, failing to collect evidence and interview witnesses who surely would have had relevant information for them. A coercive interrogation of Justin Sneed. Sneed had not named Rich Glossop or implicated him in any way until after the state had named Rich six times and suggested that Sneed could be facing the death penalty and that Rich Glossop was putting it on Sneed real bad. And so it was a very coercive interrogation. It's a case out of Oklahoma City. It's from a time period in which the lead prosecutor was seeking death very frequently and committed misconduct at a stunning rate. And that's something we see at the death

penalty more largely, is that it's not just a state or two that is responsible for most convictions in the sense of death. And it's not even necessarily a handful of counties. It's a handful of prosecutors nationwide that are responsible for most death sentences. And that's true here. And then, you know, to actually have a death sentence imposed requires breakdowns in terms of representation by trial counsel, and then breakdowns in the post-conviction process. And really, it's been a convergence of all those factors in Rich's case. So just to take us back to the present. So the Oklahoma Attorney General recommended clemency, had previously recommended the conviction be vacated, but the Oklahoma Pardon

and Parole Board voted against recommending clemency, which meant the execution date remained. And you then asked the Supreme Court for a stay of execution. The Oklahoma Attorney General acquiesced in that stay request and papers filed actually by former Solicitor General Paul Clement. And the Supreme Court granted a stay. That's the at least five justices that you just referenced. So what happens now or what beyond this temporary stay is needed to prevent the execution of a possibly innocent man. So what happens now or what beyond this temporary stay is needed to prevent the execution of a possibly innocent man? So what happens now is the court will have a chance to resolve both the petition about the Brady evidence and the petition about the false testimony. And that's what the state does. The state is just allowing the status quo to continue

while the court considers both of those cases. The state is going to have a chance to file a response to our petition about the false testimony. And it's likely just because of the timing that the court is not going to resolve even whether or not to accept the case until next term. In terms of what's going to be required in order to get real relief for Mr. Glossop, it will take a reversal of his conviction and sentence. Right now, all we have is an order that the state can't kill him. And if the United States Supreme Court declines to accept review of the case or does not reverse based on the grounds we presented, then his execution date could be again set and be vulnerable to execution. Our listeners have been following this pretty closely, John, and I think a number of them

would like to know if there's anything that we could do to help with Mr. Glossop's case. Is it lobbying legislatures? Is it putting pressure on media to cover this more closely? What do you all need from us right now? Well, one of the unique things about Mr. Glossop's case is that he has the support of 62 legislators in Oklahoma, led by a legislator who is a vocal supporter of the death penalty. But he has looked closely at Rich's case and is really troubled by it. He is looking at creating some legislation to prevent manifest injustices like this from happening again, including making it easier to seek post-conviction review and giving more effect to the attorney general's confessions of error. So pressure, lobbying the Oklahoma state legislatures to push forward with these reforms is something we're hoping people will do. Visit SaveRichardGlossop.com and you can see ways to get involved in supporting that effort.

John, thank you so much for not only your work on this case, but for taking time out of your busy schedule to give us an update about what is happening with Mr. Glossop's case. Thank you so much for having us and for your attention to this case. So last episode, we gave a shout out to Martha, who we speculated might be our youngest listener at eight years old. Well, since then, we've actually learned about another listener who is seven. So we wanted to give this special shout out to Layla. We love that you're listening, Layla. And we also can't wait to read the Supreme Court opinions that you are going to write one day. I love this race to the bottom. Are we going to have a fetus? Like I listen to Strict Scream. And then when Democrats finally get the message, we will be appointing these six and, not just with the Supreme Court, but with other judges about money and like questions about money is because these people are getting appointed too

early. And they haven't made a lot of money. And they have kids and private school and college to pay for. And I just think it makes them susceptible to these kinds of overtures. Or if you have someone who's 60 years old, and they've like, yeah, it's like a capstone, like their kids are grown. I mean, I like... Yeah, it's like a capstone. Their kids are grown. Yeah, their kids are grown. I mean, like, I wonder... That's interesting. That's an argument against putting Layla on the bench right now. I think so.

And an argument against... It's also an argument against fetal personhood. That too. All right. So that's all we have time for on this episode. Don't forget to follow us at Crooked Media on Instagram and Twitter for more original content, host takeovers, and other community events. And if you are as opinionated as we are, consider dropping us a review. And thank you to our amazing

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if that's your vibe, head over to thecricket.com forward slash store to shop your heart out. Strict Scrutiny is a Crooked Media production hosted and executive produced by me, Leah Littman, Thank you. Ari Schwartz, digital support from Amelia Montooth.