UNBIASED - June 27, 2024: Supreme Court Decides Purdue Pharma Opioid Bankruptcy Case, Idaho's Abortion Case, and Others. Plus Oklahoma Says Bible To Be Taught In Schools, Presidential Debate, and More.

Episode Date: June 27, 2024

1. Supreme Court Releases Four New Big Decisions: Ohio vs. EPA (2:53) Harrington vs. Purdue Pharma (6:09) SEC vs. Jarkesy (12:21) Moyle vs. Idaho (13:28) 2. Quick Hitters: Walgreens to Close "Significant" Number of Stores, Average 30-Year Mortgage Rates Drop Slightly, Oklahoma Carries Out Death Row Execution, Oklahoma Superintendent Says Bible Must Be Taught in Schools, and Three Presidential Candidates Gear Up for Tonight's Debates (18:33)SHOP THE LIMITED-EDITION 'UNBIASED' HAT NOW: SHOP HERE.Support ‘UNBIASED’ on Patreon.Watch this episode on YouTube.Follow Jordan on Instagram and TikTok.All sources for this episode can be found here.  Learn more about your ad choices. Visit podcastchoices.com/adchoices

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call the Conax Ontario helpline at 1-866-531-2600. BetMGM operates pursuant to an operating agreement with iGaming Ontario. Welcome back to Unbiased, your favorite source of unbiased news and legal analysis. Welcome back to Unbiased. Today is Thursday, June 27th, and this is your final news rundown of the week. Yesterday was a really big day, and I just want to first take a minute to say thank you to each and every one of you that showed your support for my hat launch. It truly means so much to me, and I just really want you to know how thankful I am. For those of you that may have missed out yesterday, the shop is still live, but this is your last reminder because by the time I'm back with you on Monday, the shop

will no longer be live, so make sure you take advantage of it. I don't want you to miss this drop because this is probably the only time I will drop this exact hat. I probably won't recycle the design. So if this is something that you want, definitely go ahead and secure that today, tomorrow at the latest. As a reminder, tonight is the presidential debates. I will be going live on Instagram so you can catch me live there on my profile at jordanismylawyer.com. Not sure how long I'll be live because I do need to actually pay attention, you know, for purposes of reporting and things like that. But if you want to catch that, it's on at jordanismylawyer. So now, without further ado, and with those few things out of the way, let's get into today's stories. Today is heavily focused on the Supreme Court, and I'll explain why in a minute. But today marked day two of the Supreme Court's three-day opinion release run. Out of it, we got four decisions, which means the justices still have six or seven more to release before they head off on summer vacation. And the reason I say six or seven is because two of the cases are actually

very similar. So it depends if the justices decide both cases together, or maybe they just, you know, they decide to issue two separate opinions. Despite the cases being similar, we just don't know. When the chief justice announced this morning that the justices are going to be back tomorrow to release more decisions, he did not indicate that tomorrow would be the last day of the term. And what that tells us is that the justices will likely be going into the first few days of July. Now, I had said that this episode is going to be very Supreme Court focused, and that's just because this time of year, like these two weeks that we're in, is what I call Supreme Court season, where the Supreme Court decisions kind of just take over the news cycle. So this episode and then at least one episode next week will be very Supreme Court heavy.

But then once the court is done releasing their decisions for the term, the news cycle will, of course, go back to normal. The episodes will go back to normal. Because there were four decisions released today, and I only have so much time in my day before I have to get these episodes out, we're just going to sort of swim in the shallow waters of each case. We're not necessarily going to dive in too deep. You'll still hear everything you need to hear. It's just that I'm not going to do a 10 minute discussion for each case. So the first decision was in a case called Ohio versus EPA. A little bit of

background here. I'll try to simplify this as much as possible. When the EPA set standards for air pollutants, states have to submit what are called SIPs, or state implementation plans. Because air currents carry pollution across state borders, states have to design these SIPs with neighboring states in mind. And this stems from what's called the Good Neighbor Provision of the Clean Air Act. If a state's SIP fails to adequately satisfy the requirements of the Clean Air Act and fails to correct its deficiencies, the EPA can issue a federal implementation plan or a FIP. So a few years ago, the EPA said it was rejecting more than 20 SIPs because it felt that the

states did not properly address their obligations under the Good Neighbor provision. And the EPA then went ahead and issued a one single proposed FIP to bind all 20 states. And the EPA also said that if any states drop out, the plan would continue to apply to the remaining states unchanged. Meanwhile, litigation is happening because these states that had their SIPs rejected sued the EPA. Courts then put the EPA's FIP on hold in those states, which meant that the EPA couldn't apply its FIP in those states. The remaining states then brought suit and argued that the EPA's decision to apply the FIP after so many states had been dropped was arbitrary or capricious and therefore unenforceable. So those remaining states asked the D.C. Circuit to stay any efforts to enforce the FIP against

them while they sued. The D.C. Circuit declined to do so, and the states then brought it to the Supreme Court. So the question for the court was whether it should temporarily block the EPA's FIP, Federal Implementation Plan, while litigation continues. And today, the court granted that request in a five to four decision. Justices Gorsuch, Alito, Thomas, Kavanaugh, and Chief Justice Roberts were in the majority. Justices Barrett, Sotomayor, Jackson, and Kagan dissented. Remember, to grant a stay or a temporary injunction, which is what happened in this case, the court has to find four things. One, that the applicant, the party asking for the stay,

is likely to succeed on the merits of their argument when the time comes. Two, that the applicant would suffer irreparable harm without the stay. Three, that a stay would not substantially injure any other party involved. And four, that the public's interest lies in granting the stay. So the majority today obviously answered those four questions in the affirmative and granted the stay. The dissent, however, said that the majority's decision is based on a, quote, underdeveloped theory that is unlikely to succeed on the merits, end quote. So those four dissenting justices did not feel that the states met their burden on those four questions to warrant granting the stay. Note, though, that this case could very well end up back in the Supreme Court once the D.C. Circuit rules on the actual merits

of the case. It just hasn't gotten to that point yet, but once it does, it could be back in the Supreme Court's hands. Just as a little fun fact as well, Justice Gorsuch's mom was actually head of the EPA during the Reagan administration. So it's a little bit of a crossover, not really, but kind of. Moving on to the second opinion of the day, which was in a case called Harrington versus Purdue Pharma. This case stems from the opioid crisis and Purdue Pharma who sits at the center of that crisis. By the way, if you've never seen Dope Sick, it's a show on TV on some streaming platform. I don't know which one at this point, but I highly recommend it. It's all about the opioid crisis and the role that the government agencies played in it. Purdue Pharma, the Sackler

family, really, really great show. But between 1999 and 2019, hundreds of thousands of people died from prescription opioid overdoses. And this was in large part because of Purdue Pharma's drug, which was marketed as a less addictive painkiller. Meanwhile, it was incredibly addictive. By 2019, Purdue was facing many, many lawsuits and ultimately filed for bankruptcy. But in the years leading up to that, between 2007 and 2017, the Sackler family, who was at the head of Purdue Pharma, withdrew about $11 billion from the company, which was roughly 75% of the company's assets. They were worried that soon this litigation against Purdue would impact them personally, so they're taking all this money out. During Purdue's bankruptcy process, the Sackler family, who did not declare bankruptcy, offered to return roughly $4 billion of the money that

they had withdrawn and put it back into Purdue's estate. But in exchange, the Sackler family would be released from all opioid claims. No victim would be able to go, you know, sue any member of the Sackler family for their role in the crisis. Now, note that the majority of the victims were actually on board with this plan because doing it this way would have set aside roughly $750 million for the victims. This lets the victims get in and out of litigation quickly and walk away with anywhere from $3,500 to $48,000 per victim. Also, all 50 state attorneys general were on board with the plan as well. It just, it's what made the most sense for everyone.

So the bankruptcy court accepts this plan, noting's what made the most sense for everyone. So the bankruptcy court accepts this plan, noting that it was a bittersweet result. The court said, yes, you know, this sucks because it shields the Sacklers. They won't be held liable, but it's really the only way to provide funding for the victims. So once the bankruptcy court accepts this plan, a separate lawsuit is brought in district court in New York. And the district court vacates the decision of the bankruptcy court on the grounds that the bankruptcy code does not allow for the kind of protection from liability that the Sacklers were seeking. In other words, as a bankruptcy court, you can't revoke a victim's ability to sue the Sackler family without getting the victim's consent. Eventually, this ends up in the Supreme Court. And the question for the

justices was, does the bankruptcy code give a bankruptcy court the ability to accept a plan that releases a party from claims held by third parties without those third parties consenting to it. And today, in a 5-4 decision, the court said no. The breakdown of which justices voted which way is very interesting. Justices Gorsuch, Thomas, Alito, Barrett, and Jackson were in the majority, whereas Chief Justice Roberts and Justices Kavanaugh, Sotomayor, and Kagan dissented. Very interesting lineup. The decision came down to how to interpret one particular provision of the bankruptcy code. So specifically chapter 11, section 1123, subsection B6. What that provision says is that a bankruptcy plan can include, quote, any other appropriate provision not

inconsistent with the applicable provisions of this title, end quote. Now, the majority says that when you look at 1123 subsection B as a whole and you look at the kinds of provisions that can be included in a chapter 11 bankruptcy plan, all relevant provisions have to do with the debtor, in this case Purdue Pharma. To the majority, it doesn't make sense to infer that that catch-all phrase that is subsection B6, which I just read you, is meant to include anyone other than the debtor. The majority believes that the text of the bankruptcy code is clear, that it applies only to the debtor and no one else, and therefore it cannot be interpreted to mean that a bankruptcy plan can discharge anyone else of liability, in this case the Sackler family.

The dissent, however, disagrees. The dissent argues that the whole point of bankruptcy is to solve a collective action problem and, quote, preserve a bankrupt company's limited assets and to then fairly and equitably distribute those assets among the creditors and in mass tort bankruptcies among the victims, end quote. The dissent says that the bankruptcy court did this admirably, that's the word that Kavanaugh used, admirably, in this case, and that the plan was a, quote, shining example of the bankruptcy system at work, end quote. So in writing for the dissent, Justice Kavanaugh said it makes no sense to interpret the code in the way that the majority did, which ultimately hurts the victims. He wrote, quote,

given the broad statutory text, quote unquote, appropriate, the word appropriate, and the history of bankruptcy practice approving non-debtor releases in mass tort bankruptcies, there is no good reason for the debilitating effects that the decision today imposes on the opioid victims in this case and on the bankruptcy system at large. To be sure, many Americans have deep hostility towards the Sacklers, but allowing that animosity to infect this bankruptcy case is entirely misdirected and counterproductive and just piles even more injury onto the opioid victims. And no one can have more hostility towards the Sacklers and a greater desire to go after the Sacklers' assets than the opioid victims themselves.

Yet the victims unequivocally seek approval of this plan. End quote. Kavanaugh's dissent, which all dissenting justices joined, was quite passionate. He even asked that Congress amend bankruptcy law to, quote, fix the chaos that will now ensue, end quote. So that was Purdue Pharma. The third decision released today we'll spend very little time on. It's a case called SEC versus Jarkesi, and it's about whether the structure and enforcement powers of the SEC

violate the Constitution. So this case began as an administrative proceeding by the SEC against an investment advisor who was also the founder of a hedge fund, and the SEC ruled that he and his firm had committed securities fraud and ordered them to pay $300,000 in fines and almost double that in repayments. The defendant then brought suit, arguing that some of the SEC's enforcement powers were unconstitutional. And on appeal, the Fifth Circuit agreed with him. The SEC then brought this case to the Supreme Court, and the question for the justices was specifically whether the Seventh Amendment allows the SEC to compel the defendant to defend himself before the agency rather than before a jury in federal court. And the court today, in a 6-3 decision,

held that when the SEC seeks civil penalties against a defendant for securities fraud, the Seventh Amendment entitles that defendant to a jury trial. Finally, the fourth decision of the day was the one that was inadvertently leaked yesterday. It's in a case called Moyle v. Idaho. This was the abortion Imtala case, and as expected, it was what's called improvidently granted. What it means to be improvidently granted is that the court is essentially saying they should have never taken up this case in the first place. So the question here centered around the supremacy clause, which says that federal law trumps state law. If federal law and state law conflict, federal law always wins. Idaho enacted

a state law called the Defense of Life Act, which in part criminalizes abortion procedures unless it's necessary to save the life of the mother. Not the health, not serious consequences, but the life of the mother. EMTALA, on the other hand, is a federal law which requires emergency rooms that participate in Medicare to provide necessary stabilizing treatment in cases of emergencies. So the federal government sued the state of Idaho, arguing that EMTALA supersedes the Defense of Life Act, and therefore Idaho cannot carve out such a narrow exception to its abortion ban. Hospitals still have to treat women that, you know, maybe their life is in danger, but they're suffering a medical emergency.

But note that EMTALA also explicitly says that it does not trump any requirement imposed by state or local law, except to the extent that state and local requirements directly conflict with EMTALA. Because of this, and because EMTALA doesn't mention abortion at all, Idaho says there's no direct conflict that would warrant EMTALA trumping Idaho's state law. So the government sues Idaho when Idaho enacts this law and the district court sides with the government. Idaho then appeals and asks the Ninth Circuit to put the district court's ruling on hold while the litigation is pending. They wanted to be able to enforce their ban. The appellate court says no. And Idaho then goes to the Supreme Court and asks the justices to do what the Ninth Circuit

wouldn't do and put the district court's ruling on hold while the case plays out so that they can enforce their ban while litigation is pending. What does the Supreme Court do? Not only does it put the district court's ruling on hold, but it also said, hey, you know what? While we're here, we're just going to set this case for oral arguments and decide the merits of this case ourselves. So arguments take place at the very end of April, and today the court says, you know what? We actually should have never agreed to hear the

merits of this case in the first place, so we're just going to go ahead and dismiss it as improvidently granted, which again just means that they granted the writ to hear this case when they shouldn't have done so. Justices Kagan, Sotomayor, Jackson, Barrett, Kavanaugh, and Chief Justice Roberts were in the majority. Justices Alito, Gorsuch, and Thomas dissented. The majority, the justices in the majority were split into two groups. So Justice Kagan wrote one concurrence, which Justices Sotomayor and Jackson joined, and then Justice Barrett wrote a separate concurrence, which Justices Sotomayor and Jackson joined. And then Justice Barrett wrote a separate concurrence, which Justice Kavanaugh and Chief Justice Roberts joined. And again, the purpose of a concurrence is you agree with the majority decision, you just have other reasons for agreeing.

So essentially, Justices Kagan, Sotomayor, and Jackson agreed with the decision to improvidently grant the case and said yes this case should have never been taken up on early consideration but it's because idaho's arguments about mtala do not and have never justified emergency relief or early consideration justices barrett cavanaugh and chief justice roberts similarly agreed that the court should have never taken up the case but instead or should have never taken up the case early, I should say, but instead reasoned that a lot has taken place in this case since they agreed to hear it. So given everything that's gone on, this case needs to continue on its natural path.

It's not appropriate to resolve the case at this time, to resolve it early, but, you know, it can eventually make its way back to the Supreme Court. Now is just not the right time. Justice Alito wrote the dissent, which Justices Thomas and Gorsuch joined. And the dissent basically says, we do not agree that this case should be dismissed. The court should have heard the merits of this case and decided it accordingly. And what they say in their dissent is that they would have ruled in Idaho's favor because the government's preemption theory is quote-unquote plainly unsound. So what today's decision does is it reinstates the district court's injunction, which prevents Idaho from enforcing its ban, and the case will now continue

on throughout the typical appeals process, perhaps ending back in the Supreme Court's hands soon once, you know, the appellate court hears the merits of the case. With these four opinions released, we're now down, as I said, to six or seven pending, and they're almost all big ones. Tomorrow, we'll get a few more, perhaps three or four, maybe even two, honestly. At this stage in the game, I'm not even wanting to make assumptions, but we'll get a couple more tomorrow and then either Monday, Tuesday or Wednesday of next week, we'll get the rest of them. It just depends when the justices set their next release day.

With that, let's finish with some quick hitters. Walgreens announced today significant closures of underperforming stores across the country as part of what the company calls a multi-year optimization program. The company has not settled on the exact number of stores that will be closing, but the CEO said in an interview with the Wall Street Journal that the store closures would make up a quote-unquote meaningful percent of the quarter or so locations that are underperforming. Currently, Walgreens has about 8,700 stores nationwide. In some home loan news, mortgage buyer Freddie Mac announced today that the average rate on a 30-year mortgage fell 0.01% this week, down to 6.86% from 6.87%. Though this drop is the fourth straight weekly drop, the average is still up from a year ago when it was 6.71%. A couple of execution updates. Last night, Texas did go ahead and carry out that execution I told you about in yesterday's episode. But this morning, Oklahoma carried out an execution of its

own. Richard Norman Rogem Jr. was executed today at 10.16 a.m. via the lethal injection after spending nearly 40 years on death row. He was sentenced to death for kidnapping, raping, and murdering his seven-year-old stepdaughter when he was just 26 years old. The seven-year-old's mother, Mindy Cummings, was actually the sister of Richard's cellmate while he was in prison for sex offenses against two teenage girls. She married him anyway, and the tragic events unfolded after that. Somehow over the years, Richard did successfully challenge his death sentence on two different occasions. He was resentenced both times in 2003 and 2007. And for his last meal today, he had two small double cheese, double pepperoni pizzas from Little Caesars, two cups of vanilla ice cream, and a ginger ale. Some other news out of Oklahoma. Oklahoma's state

superintendent announced today that every school district in Oklahoma is to adhere effective immediately to a new memo that says every teacher and every classroom in the state will have a Bible in the classroom and will be teaching from the Bible in the classroom. This announcement obviously comes after the state enacted the Ten Commandments law, that law that requires the Ten Commandments to be posted in each classroom. As we know, a lawsuit has already been filed challenging that new law, and I would imagine it's a matter of a day before another lawsuit is filed challenging this new memo that is now going to circulate in the school district. And finally, just as a reminder about the debates happening tonight, the debate between Biden and Trump is being hosted by CNN tonight at 9 p.m. Eastern time.

You can, of course, watch on CNN. Some networks are streaming it live on YouTube. So you have options as far as viewing goes. The other debate is RFK Jr.'s debate. His debate is being streamed on X and therealdebate.com at the same time, 9 p.m. Eastern time. His moderator will actually be asking him the same questions that CNN will be asking Trump and Biden. So that's his opportunity to answer those questions since he was not allowed to debate in CNN's debate. That is what I have

for you today. Don't forget to get yourself a hat if you haven't already because the next time I talk to you, they will no longer be available. I don't want you to miss out. You can shop unbiasedshop.com. Again, that's unbiasedshop.com. The link is in this episode description so you can always find it there. I hope you have a great weekend and I will talk to you on Monday.