0:00:00.7 Speaker 1: Just when I thought I was out, they pull me back in.

[music]

0:00:09.1 Andrew Parsons: Hey, everyone. This is not Leon. It's Andrew Parsons from Prologue Projects. I'm filling in for Leon while he is away. On this episode of 5-4, Peter, Rhiannon, and Michael are talking about the upcoming Supreme Court term. This term will include the usual attempts to curtail reproductive rights. The court will also take up a case that might challenge the principle of double jeopardy and hear case about haddock. Yes, the fish, that's of interest to everyone from Ted Cruz to the vaping industry. And while we don't know every case the court will hear this year, we've seen enough to conclude it's gonna be another rough one. This is 5-4, a podcast about how much the Supreme Court sucks.

0:00:54.3 Peter: Welcome to 5-4, where we dissect and analyze the Supreme Court cases that have rattled our civil liberties, like repeated sex rattling a quarterback's brain. I'm Peter, I'm here with Michael.

0:01:06.7 Michael: Hey everybody.

0:01:08.3 Peter: And Rhiannon.

0:01:09.3 Rhiannon: Hello.

0:01:10.6 Peter: And our friend Chris Geidner.

0:01:12.5 Chris Geidner: Hello.

0:01:13.4 Peter: Chris, welcome to the show.

0:01:14.8 Chris Geidner: Thank you.

0:01:15.6 Peter: Chris, for those who don't know, an independent legal journalist, publisher and author over at Law Dork, which for my money, probably the single best place for law news right now.

0:01:29.3 Michael: Yes.

0:01:29.3 Chris Geidner: Wow, thank you.

0:01:31.2 Peter: And I mean that because I have other friends that do law news and I think their publications are worse.

[laughter]

0:01:38.1 Michael: Eat shit, Jay Willis.

[laughter]

0:01:41.0 Chris Geidner: Yeah, I'm gonna get a text five minutes after he hears that.

0:01:47.6 Rhiannon: No, but it's a great resource.

0:01:48.8 Michael: It is.

0:01:50.0 Rhiannon: Yeah. Law Dork is excellent.

0:01:50.6 Michael: It really is.

0:01:53.1 Chris Geidner: Thanks so much.

0:01:54.3 Michael: I forget if we were doing a live stream on YouTube or like a Q&A with listeners or something at some point, but I recommended Law Dork. Peter and Rhiannon and I had never really spoken about it prior, and I was like, I subscribe, I'm a paid subscriber, and Peter was like, I am too. And Rhiannon was like, me too.

0:02:09.1 Rhiannon: Yeah, where do you think I'm doing the research for these episodes y'all? Duh.

0:02:12.3 Peter: Absolutely.

0:02:14.7 Michael: Yeah.

0:02:15.1 Peter: Some people think that we read the opinions as they come out.

[laughter]

0:02:21.5 Peter: I just read Law Dork.

0:02:23.4 Chris Geidner: I mean hey, there are worse possibilities. Literally, many.

0:02:29.2 Peter: Yeah.

0:02:29.6 Michael: Yeah.

0:02:30.7 Peter: So today, we're gonna do a little term preview, the October 2023 term is impending, and we thought we would bring in Chris to help us walk through some of the upcoming cases, we'll be talking about LGBT rights, reproductive rights, the administrative state, criminal justice, all sorts of stuff. The court has to date, accepted fewer blockbuster cases I think this term than the last couple of years, but there are still some big cases that might come to the court and perhaps, or even likely going to come to the court, and we would be remiss not to cover those. And so I think we will start there. Chris, there are various cases concerning the constitutionality of anti-trans legislation that have been winding through the federal courts. We spoke with Aaron Reed a couple of months ago about some of these cases, you've covered them extensively at Law Dork. The court hasn't granted cert on any of these cases yet, but it seems inevitable that one of them will sort of in some form or fashion wind up before them. So I guess our question for you is, what's up with that stuff?

0:03:48.4 Michael: What's that all about?

0:03:48.7 Chris Geidner: Yeah, I think you're right, that we are right now at a position that it does seem like sooner rather than later we are going to get one of these cases before the justices. I might not have said that if we had had this conversation like two months ago, because at that point, there was sort of unanimity. Even Trump judges, multiple Trump judges have gotten these cases, Biden judges, Obama judges, across the board, any district court judge who has heard a challenge to one of these bans has granted a preliminary injunction against the enforcement, at least of the hormone therapy bans that are contained in these bans on gender affirming care for minors. And so it did seem like as the summer was getting underway, particularly, there was this day when federal judges in Tennessee and Kentucky both issued injunctions on the same day. And you all know how slow things move in federal courts when you get two injunctions from two different federal judges on the same day, going the same direction, it sort of seems like things are reaching a consensus. And then, enter Jeff Sutton. Judge Jeff Sutton on the sixth circuit, he's the Chief Judge of the sixth circuit right now, in July, issued a ruling, he and Judge Amul Thapar issued a ruling that put both the Kentucky and Tennessee bans back in effect.

0:05:29.1 Chris Geidner: It was initially only for Tennessee, and then they heard oral arguments on the preliminary injunction on September 1st. And in the meantime, we also got another ruling from the Eleventh Circuit that was on the merits of a preliminary injunction that ruled 3-0 in favor of the Alabama ban and said, yeah, that's likely constitutional, despite the fact that no other judges had said so.

0:06:02.9 Michael: And so the plaintiffs who are to be clear, challenging this gender affirming care ban, the trans rights activists actually have requested a rehearing en banc from the Eleventh Circuit that has been filed and now we just have to wait and see if they're gonna take it up.

0:06:22.1 Rhiannon: Right.

0:06:23.6 Chris Geidner: What that means for when this goes to the Supreme Court, the Sixth Circuit case, we could be getting a decision there by the end of the month, and the Eleventh Circuit, we probably won't know whether they're taking it en banc until sometime in November, December, later. If however, the Sixth Circuit rules by the end of the month that the Tennessee and Kentucky bans are constitutional, that could really fast forward things and get us up to the Supreme Court rather quickly if they decide not to try to go en banc.

0:07:04.1 Michael: And for our lay listeners, en banc is when a decision is re-heard with the entire suite of judges in an appellate circuit, so every judge in the Eleventh Circuit Court of Appeals will weigh in, rather than just the typical three-judge panel.

0:07:22.9 Chris Geidner: Yeah, normally when these cases go up, they start with three judges, but particularly when they're big issues when they are key constitutional questions, something that the court has been split on before they will hear it en banc. There's also a procedural reason in civil rights litigation why plaintiff's lawyers might try to go en banc, and that applies here. It's when you [0:07:51.4] ____ won below, if you go en banc, you pull the original three-judge decision. So in this case, what that would mean is that the injunction against Alabama's law would remain in effect while this goes en banc.

0:08:06.9 Peter: Right.

0:08:06.9 Chris Geidner: So if they do take it en banc, that could be another year or so.

0:08:10.9 Rhiannon: Right.

0:08:11.0 Chris Geidner: Or even longer by time you get an actual decision, because then you've got... I mean, do you think in a normal case, you've got the three judges deciding in an en banc? You've got 11 more judges having to hash out opinions and footnotes and they're going back and forth, and so sometimes that could mean that that Alabama injunction could be back in place, and those kids in Alabama could be safe for another year before you had to have a ruling.

0:08:40.6 Rhiannon: That's right.

0:08:40.7 Michael: That makes sense.

0:08:40.8 Peter: Right. We wait with baited breath, because who knows what Sam Alito thinks of the equal protection claim here?

[laughter]

0:08:46.0 Chris Geidner: The thing that I did write about in writing about the Sixth Circuit is like, Jeff Sutton has been here before. He was the judge on the Sixth Circuit who wrote the decision upholding marriage bans back in 2014. He was the only circuit... The Sixth Circuit was the only circuit that upheld marriage bans after the 2013 decision striking down DOMA and Windsor.

0:09:13.7 Michael: Right.

0:09:15.4 Chris Geidner: And he basically said like, yeah, I get your argument, but we think democracy should be allowed to have the final say. And notably in the arguments on September 1st, that was how the Kentucky Solicitor General and in his arguments, he's like, we shouldn't stop democracy here, the states are engaged in a discussion. So it's entirely possible that Sutton could be writing another decision that will send an outlier that will lead this back to the Supreme Court again and do the same thing.

0:09:47.8 Rhiannon: Yeah.

0:09:49.0 Michael: Yeah.

0:09:49.4 Chris Geidner: But now we've got obviously a very different Supreme Court than we had in 2015.

0:09:53.8 Michael: Yeah.

0:09:53.9 Peter: Sure do. Alright, so sticking with the theme of other potentially catastrophic decisions that have not yet crept up to the Supreme Court, it wasn't long ago that there was extensive litigation about the legality of Mifepristone and medication abortion, and Matthew Kacsmaryk, a federal judge in Texas provided a batshit ruling, basically saying post-Dobbs, that Mifepristone, no good. You can fully fucking ban it.

0:10:30.2 Rhiannon: Yeah.

0:10:31.3 Peter: And so there's a question of whether that case eventually winds its way up to the Supreme Court, so we'll go to our local reproductive rights correspondent, Rhiannon.

0:10:41.9 Rhiannon: In Texas, yeah.

[laughter]

0:10:45.5 Rhiannon: Coming at you live.

0:10:46.4 Michael: On location.

[laughter]

0:10:49.8 Rhiannon: So Peter gave a good summary here, listeners, I think will remember, we've talked about this case before, and it really did make headlines when the ugly ghoul Matthew Kacsmaryk came out with a ruling... He sits in the Northern District of Texas. If you'll recall, there was a lot of news around this case too and other cases that he's ruled on in the past couple of years, that there is some judge shopping going on in Texas. Petitioners here challenging the FDA's approval of the drug Mifepristone filed this very likely on purpose in the Northern District of Texas, they have a very, very, very high chance of their buddy Matthew Kacsmaryk hearing this case, and Matthew Kacsmaryk ruled just the way they wanted. So again, the issue is the FDA's approval of the drug Mifepristone; that approval by the FDA happened more than two decades ago. These challenges, wonder why they're happening now? And a case like this could obviously have much broader implications for the pharmaceutical industry and the FDA's regulatory authority over lots of medications. Right? So yes, this is about reproductive rights. Yes, this is about Mifepristone.

0:12:00.4 Rhiannon: This is also about... We talk about it a lot, the administrative state. The FDA's authority to do what it is assigned to do by Congress. So most recently, what has happened on this case, the Supreme Court has not accepted that it will hear this case this term. What's happened most recently is that a federal appeals court, so Matthew Kacsmaryk ruled, that ruling was appealed by the Biden administration, so that means it went up to the Fifth Circuit Court of Appeals. In that ruling, the Fifth Circuit upheld the legality of the pill, upheld the legality of Mifepristone, but really imposed a lot of restrictions on how Mifepristone can be distributed. So the Fifth Circuit said, for example, that Mifepristone cannot be sent through the mail, right, and also that it cannot be prescribed by telemedicine. This is really important, even while they uphold the legality of the drug, kind of in theory, de facto on the ground people who need and are seeking abortions in banned states right now are often accessing medication abortion through telemedicine, getting those pills in the mail from prescribers who are in other states where prescribing is not banned.

0:13:15.9 Rhiannon: So that Fifth Circuit ruling has been basically appealed again by the Department of Justice, right. So the Department of Justice, just a few days ago as of this recording, has asked the Supreme Court to take up the case. So it remains to be seen. I don't feel good in my belly about the Supreme Court taking the case, but at the same time, just letting the Fifth Circuit's decision stand, it's also completely untenable for millions and millions of people. The Department of Justice in their filing asking the Supreme Court to hear the case said, "For many patients, Mifepristone is the best method to lawfully terminate their early pregnancies. They may choose Mifepristone over surgical abortion because of medical necessity, a desire for privacy or past trauma." So, up in the air. Doesn't feel good.

0:14:04.3 Michael: Yeah.

0:14:05.0 Peter: Yeah.

0:14:05.7 Chris Geidner: I think it is important, the fact of how extensive this could affect the industry writ large. It's notable that Danco Laboratories, the maker of Mifeprex is also one of the parties and they're represented by Hogan Lovells, and so we have both sort of like this combination power team of some of the best government lawyers and some of the top corporate lawyers in the country fighting this, and they're fighting against Erin Hawley.

0:14:39.1 Michael: Yeah. Josh Hawley...

0:14:41.6 Chris Geidner: Josh Hawley's wife.

0:14:42.6 Peter: And just so our listeners know, Hogan Lovells, a big law firm with a really ultra prestigious Supreme Court practice, notably the current home of Neal Katyal...

0:14:53.3 Michael: Right.

0:14:54.2 Rhiannon: Right.

0:14:55.9 Michael: Burning Man survivor.

0:14:56.7 Peter: That's right. God knows what would have happened to that case had Neal Katyal died at Burning Man.

0:15:01.8 Rhiannon: Well, we don't know for sure he's arguing it right?

0:15:02.5 Peter: No, he's not.

0:15:02.6 Chris Geidner: He's not. It's Jessica Ellsworth and Cate Stetson is also on it.

0:15:07.1 Peter: They know enough not to put Neal Katyal on the reproductive rights beat.

[laughter]

0:15:13.1 Chris Geidner: One that is something to note. Everybody has been putting forward... I mean, you've got Erin Hawley arguing, she's not like the normal face arguing for Alliance Defending Freedom, which still makes me want to vomit, saying that.

0:15:28.8 Peter: She gets to do the as a woman, I hate women thing.

0:15:32.1 Michael: Right.

0:15:32.7 Rhiannon: God bless.

0:15:32.8 Peter: Very effective.

0:15:33.7 Michael: I just wanted to respond to something Rhi said about, she doesn't feel good about asking the Supreme Court about this, I don't either, but both Roberts and Kavanaugh wrote concurrences in Dobbs expressing, I think in one way or another, some discomfort with how broad the other four conservatives were going with this. So assuming the Supreme Court does take this up, I think it'll be an interesting test for just how uncomfortable they are, right?

0:16:03.7 Rhiannon: Yeah, yeah.

0:16:04.5 Michael: And what their limits are.

0:16:05.6 Peter: Yeah. Optically a huge opportunity for Roberts...

0:16:09.0 Michael: And Kavanaugh.

0:16:10.0 Peter: To reposition the court as moderate, right, to say, look, we're not just anti-choice here.

0:16:16.9 Michael: Right.

0:16:17.8 Peter: We're very nuanced on this issue.

0:16:20.1 Michael: Right.

0:16:21.6 Peter: I sort of agree that there's potential, especially with such a sort of obscene claim...

0:16:26.9 Michael: [0:16:27.0] ____ Evoking a 20-year-old FDA approval.

0:16:30.7 Rhiannon: Right.

0:16:31.2 Peter: Exactly. The claim is so obscene that it really gives... If I'm John Roberts, I'm looking at it sort of thinking like, this is good PR in the making, right?

0:16:40.2 Michael: Yeah.

0:16:40.5 Chris Geidner: Well, I think they're right now hoping for a petition for cert because both of the petitions from DOJ and the government now, because of the way the Fifth Circuit decided, they only have to address the later loosening of restrictions, the question is gonna be presuming, ADF comes in and says, we think you need to decide based on 2000. So I think you're right. They then grant all of them and say, okay, we'll hear it all, and they can then say, oh no, we're not wild, we're not going to upset the apple cart with how the FDA does this, but we are gonna get rid of the mail order because that was new, and that was really a result of the pandemic, and they should have gone back to the old way once people were able to leave their house again.

0:17:29.4 Rhiannon: Yeah.

0:17:30.0 Peter: Right. And just so our listeners have some clarity here, there are multiple components here. One is the FDA approval from 20 odd years ago. The other is some later developments, including the mail order aspect, right. So the court could theoretically address these things separately, even if they all come to the court at once.

0:17:51.8 Chris Geidner: Yeah.

0:17:52.2 Rhiannon: Yeah. And before we move on, I just wanna make one final thing clear for our listeners. Mifepristone is still available today. The Supreme Court ruled back in April that until this case comes to a final decision, a final completion in the federal appellate system, Mifepristone is available today.

0:18:11.5 S?: Yeah.

0:18:11.6 Chris Geidner: Yeah.

0:18:11.7 Rhiannon: And for checking on your own access or checking on the availability of Mifepristone, wherever you are, you can go to plancpills.org.

0:18:18.6 Michael: So we've talked about trans rights, LGBTQ stuff, we've talked about Mifepristone and your right to reproductive choice, we're sure these are things that are on the minds of most of our listeners. The next big issue we wanted to cover that we're sure you're thinking about as well, is the Magnuson-Stevens Act, and the requirement of private fishers to pay for monitors to monitor haddock in the North Atlantic Fisheries.

0:18:48.5 Rhiannon: Beautiful transition, Michael. Yes.

[laughter]

0:18:51.3 Michael: This is the big one.

0:18:53.0 Peter: I was gonna suggest a transition about the administrative state, perhaps something like that.

[laughter]

0:18:58.9 Peter: Yeah. But you went right to the haddock.

0:19:02.9 Rhiannon: Yeah.

0:19:03.5 Michael: That's right.

0:19:03.6 Peter: Monitoring Atlantic haddock. More culture war bullshit.

[laughter]

0:19:08.4 Rhiannon: Front and center, keeping our listeners up at night. What is going on with the haddock?

0:19:11.0 Chris Geidner: This is clearly is a Kavanaugh day...

[laughter]

0:19:15.3 Chris Geidner: Or maybe this is Alito. Maybe he fell in love with haddock when he was up on his trip in Alaska.

0:19:20.0 Rhiannon: When he was up in Alaska!

[laughter]

0:19:22.9 Michael: That's right. But I do think this case, Loper Bright Enterprises v Raimondo, remember that name, law students, you will be reading it in case books, for sure. I do think this could be the biggest of the term, despite how ridiculous that sounds from those facts because of its implications for administrative law and the structure of American government. To that point, I wanted to read you guys a little list of all of the Conservative foundations that have already filed amicus briefs in this case. We have the Atlantic Legal Foundation and the Pacific Legal Foundation.

0:20:02.0 Rhiannon: One-two punch.

0:20:02.8 Michael: And if you're missing middle America, we got the Mountain States legal foundation and the South Eastern Legal Foundation. So we got all the geography covered. We got Chamber of Commerce and lower chambers of commerce, individual state chambers of commerce, we've got the Cato Institute, we got the Manhattan Institute. We've got the Goldwater Institute. If you want an institute named for a famous segregationist, we have the America First Legal Foundation, if you want one named for famous Nazis. We got them all.

0:20:37.6 Peter: I do appreciate the Goldwater Institute, because nowadays all the Conservative institutes have these vague ass, name.

0:20:44.6 Michael: They're all here man.

0:20:46.7 Rhiannon: Yeah.

0:20:46.9 Peter: And so it's nice when they're just like the George Wallace Institute for legal change.

0:20:51.9 Rhiannon: Right, right.

0:20:53.4 Michael: And if you're like, well, this sounds all very businessy, sure it is, we have NFIB, the group that challenged Obamacare, but we also have the Little Sisters of the Poor...

0:21:01.6 Chris Geidner: Oh, God.

0:21:02.5 Rhiannon: Who went after contraception.

0:21:06.5 Peter: Those are like mean little snitch sisters, by the way. It's not regular...

[laughter]

0:21:10.2 Michael: Gun Owners of America.

0:21:10.6 S?: Sure.

0:21:11.8 Peter: Weighing in. Sure.

0:21:14.7 Michael: Why not? Governor Kemp, the US House of Representatives, which is helmed by Republicans. Ted Cruz, he's in here. Everybody's here. It's a big Conservative party, and the reason is, this case is asking the Supreme Court to overrule a very old precedent, which created a doctrine that we call Chevron Deference because the case name was Chevron v. National Resource Defense Council or something like that. And Chevron is a rule of statutory interpretation, but more than that, it's a statement about the court's place between the two branches of government. So when Congress creates an agency, they pass a law, it's a statute, we call them organic or organizing statutes, and the agencies can then use law-making power to pass regulations. And Chevron stands for the idea that when the court isn't quite sure if the agency is maybe exceeding its power, it tends to just give the agency the benefit of the doubt. The statute's ambiguous as long as the agency is being reasonable, that's the idea. It's like any reasonable reading of the statute, they will sort of say, you know what, this is the two elected branches doing policy about North Atlantic haddock. What the fuck do we know about any of this? Right.

0:22:39.6 Rhiannon: Right, right.

0:22:41.7 Michael: This is not our place. And so we're just gonna leave it to the experts. Congress delegated this authority to the experts, so that they can do what is necessary to affect Congress' goals, which in this case are conservation in the prevention of over fishing, which is a major problem in the North Atlantic right now with herring and haddock and all sorts of fish. And this is a real basic thing that all the conservatives want to do away with. They want to reposition the court as the arbiter between the two branches, which would create a large burden on Congress when it's trying to delegate authority to the executive branch in being very specific and very detailed, which is the whole point of agencies, is so that they don't have to do that so the agencies can handle the minutiae. Right?

0:23:30.1 Peter: So you don't need an act of Congress for every little thing that an agency does.

0:23:35.6 Michael: Right.

0:23:36.3 Rhiannon: Right.

0:23:37.1 Michael: But the problem for the conservatives is that they know how to jam up the works in Congress, but there are all these agencies who can continue doing stuff even without further congressional authorization, and so they wanna turn that back, and this is a long time project of the right...

0:23:53.0 Rhiannon: Yeah.

0:23:53.3 Michael: And it's one that Gorsuch has been a big fan of. We should assume right off the bat that we have at least four votes who are going to be in favor of striking down Chevron Deference.

0:24:05.4 Peter: And I think it's worth noting here that we've talked about the major questions doctrine before, which is this idea that if Congress delegates the power of some sort to an agency, and there's dispute over the scope of the agency's power, the court can basically ignore Chevron Deference if it's a "major question," a question of major political or economic importance, and that has been the Roberts Court's kind of novel end run around Chevron Deference, and this is basically them being like, why settle for an end run?

0:24:40.5 Rhiannon: Right. Let's just do away with it.

0:24:43.2 S?: Yeah.

0:24:43.3 Peter: We can just toss Chevron Deference out.

0:24:48.0 Michael: Sorry, I just remembered one more amicus brief that's been filed on behalf of the electronic nicotine delivery system industry stakeholders.

0:24:53.2 Rhiannon: My goodness.

0:24:55.1 Michael: Vaping, why not?

0:24:55.8 Rhiannon: Yeah.

0:24:56.1 Peter: The vaping industry wants to get rid of Chevron deference.

0:25:00.0 Michael: Of course.

0:25:00.6 Rhiannon: They do not want to be regulated at all.

0:25:01.4 Michael: That's right.

0:25:02.5 Peter: So on the sort of same tack, the question of the administrative state, we should talk about CFPB, the Community Financial Services Association. The CFPB, of course, the Consumer Financial Protection Bureau agency formed in 2011 with the aim of regulating predatory practices in the financial sector, like anything ranging from what happens at banks to pay day lenders. It was part of Dodd-Frank, the Wall Street Reform Bill right after the financial crisis, championed by Liz Warren, big thorn in the side of large banks. So of course, there have been efforts to attack it in the courts from the very beginning, and this is a challenge that has been sort of notably successful to date. The CFPB a unique funding structure where it receives funding directly from the Federal Reserve. The Fed gets its funding from bank fees, so the idea was to tie CFPB funding indirectly to the banks and keep it slightly insulated from political maneuvering, because the funds aren't subject to Congressional review on an annual basis.

0:26:14.2 Michael: Right.

0:26:15.8 Peter: Now, the claim here is that the funding process is itself unconstitutional because it violates the appropriations clause of the Constitution. The Appropriations clause says, "No money shall be drawn from the treasury, but in consequence of appropriations made by law." And that's all it says. So the Fifth Circuit said, yeah, that's not an appropriation actually, it's something else. It didn't say what exactly that is, but it's in their mind, it's not an appropriation. And the CFPB said, look, Congress passed a law that provides for an amount of money, it provides for where that money comes from. Isn't that an appropriation? What's this distinction here?

0:27:00.6 Michael: Right.

0:27:01.8 Peter: So, this could be a chance for the court to basically abolish the CFPB either outright or functionally by saying it needs to be subject to review by the congressional appropriations committee, which would basically be a guarantee at this stage that its funding gets kneecapped. It's also a threat to other agencies with non-traditional funding structures, like the postal service gets its funding from postage, for example. If you're doing your analysis like the Fifth Circuit, that's not an appropriation, I suppose. Also, the Fed itself, it would be weird to say that the CFPB's funding, which is derivative of the Fed's funding, is unconstitutional but the Fed's funding is somehow fine. So, worst case scenario, end of the Federal Reserve and the weird libertarian gold bug guys are now in control of our government. That's worst case.

0:27:54.6 Rhiannon: Right, right. Yeah, yeah.

0:27:56.2 Peter: There is one other case...

0:27:56.3 Michael: They're gonna re-value the Iraqi Dinar.

0:27:57.4 Peter: Yeah, that's right. The rise of Bitcoin starts with this case.

0:28:05.4 Chris Geidner: Here it is. They told us. We didn't listen.

0:28:07.9 Peter: There is one more case threatening to unwind some post-2008 reforms, SEC v. Jarkesy. As of now, if the SEC finds that someone has violated the law, they can sue that person in federal court, or much more likely, they can bring an enforcement action against them in what is called an agency adjudication, which is basically just like an official arbitration within the agency. Dodd-Frank made this much more feasible and in recent years, most SEC enforcement actions have been through agency adjudication. This case has challenged those proceedings saying that perhaps they violate the Seventh Amendment right to a jury trial and/or the non-delegation doctrine, another administrative state issue. So we don't need to get into the details on this one, but it's not out of the question that the court defangs two post-2008 reforms all in one term. And we go back to 2007...

0:29:12.2 Michael: Yeah.

0:29:13.0 Rhiannon: Right.

0:29:14.6 Chris Geidner: And it is important to think about the fact that the non-delegation doctrine was basically, not dead letter law, but was not something that we were talking about a lot, but Gorsuch has taken some time and side opinions on some of these major questions doctrine cases to basically explain the non-delegation doctrine, which is a constitutional clause, is the underlying whosiewhatsit rationale that justifies the major questions doctrine. So, these are related.

0:29:49.8 Peter: Right. The major questions doctrine might be subsumed by whatever rule they create when they end Chevron Deference, if they end Chevron Deference, and that might look a lot more like what Gorsuch calls the non-delegation doctrine. Who knows? I try not to speculate about such things other than to predict every year that it will be back.

[laughter]

0:30:11.2 Michael: Yes. And it's worth nothing that all these cases are very extreme and all these questions are very extreme, so it's possible that they overrule Chevron, but generally leave CFPB intact and SEC intact. That would still be radical, right, the right wing going one for three would still be a radical departure from the status quo and a remaking of the government, as would just trimming the CFPB's sails rather than outright saying, you're no more, or whatever, right? There are a lot of things they could do here that would be less than what's being fully asked of them, that would still be extremely radical, it's something they've been building towards with the major questions doctrine, with these extra concurrences talking about the administrative state. It really feels like this is going to be a big sea change that's coming on the horizon one way or another.

0:31:10.3 Peter: Yeah.

0:31:11.0 Rhiannon: Yeah.

0:31:11.4 Peter: Alright.

0:31:12.1 Rhiannon: Transition?

0:31:13.9 Peter: I don't have a good... This is again where I ran out of good transitions. Let's talk about criminal law.

0:31:22.1 Michael: Yeah, let's transition to something lighter, [0:31:25.0] ____ and the remaking of American government.

0:31:26.2 Peter: Let's hear from our Criminal Law correspondent.

[laughter]

0:31:28.3 Rhiannon: Coming at you live, in Texas! Yeah, I do wanna talk about a couple of criminal law, or at least criminal adjacent cases, but actually these two cases that I'm about to talk about, it's actually not super clear to me, and Chris and YouTube clowns, I'd love to hear what you all think as well, but it's not super clear to me that these two cases will come out terrible. So this might be a little bit different from the administrative law cases that we just talked about. These are two that I am personally interested in and definitely keeping an eye on. So first, let's talk about civil asset forfeiture. This case is called Culley v. Marshall civil asset forfeiture. We talked about this in our episode back in 2020...

0:32:17.5 Peter: Thirty-two years ago.

[laughter]

0:32:21.0 Rhiannon: Yeah, decades ago. But this is the practice, civil asset forfeiture is the practice by which law enforcement takes people's property, forfeits their ownership of their property, even without proof that the person they're taking from is guilty of any crime. Right?

0:32:34.8 Michael: Right.

0:32:35.5 Rhiannon: This happens across the country, in states, the federal government does it too, basically a massive scam by which law enforcement literally generates billions of dollars nationwide for itself every single year. Now, generally, because the government can't take property from you without due process, there has to be some sort of legal proceeding to determine whether the police have seized your property legally and if it really is at least related to a crime, even though you might not be guilty of the crime, right?

0:33:05.7 Rhiannon: And because of due process, a person can contest the forfeiture of their property, they can present legal arguments for why the forfeiture was not legal. But the way states and the federal government effectuate Civil Asset Forfeiture in a lot of cases, is that that process that they give you theoretically, those processes can be really, really onerous and difficult and expensive, right? The government uses all manner of tactics to deter people from fighting the forfeiture of their property, and many times people just end up giving it up, right? They just took my car, I don't have the money to hire an attorney to argue for me, I don't know what I'm supposed to say when I go to court and appear before the judge. People just give up their property because these processes are so difficult. For example, state and federal rules can require that a person show up to multiple hearings to fight the forfeiture of their property, the process can take forever, literally years.

0:34:04.0 Rhiannon: So, we know from cases like Bennis v. Michigan and decades of jurisprudence on this, the Supreme Court has allowed civil asset forfeiture, they've greenlit it, we have a whole episode about it, but this case, this term, Culley, at the Supreme Court, is about one of those deterrence tactics that law enforcement and governments use to make fighting forfeiture of your property basically impossible, which is those delays, the government delaying the process and what rights people have to their property while the forfeiture case is ultimately decided. So briefly, let's talk about what happened in Alabama; this case is two consolidated cases out of Alabama. Two women were the victims of civil asset forfeiture, both had their cars seized by the cops, one had lent her car to a friend who was arrested while driving the car and the cops found that he had meth in the car. The other lent her car to her son who got arrested for marijuana possession. Both of these women were the owners of their cars and they had absolutely nothing to do with these crimes, tey had no knowledge that the people they lent their cars to were doing anything illegal, right?

0:35:09.8 Rhiannon: Still, even though they have what's called an innocent owner defense, Alabama took over a year in one case and almost two years in the other case to finally have a hearing where a judge was like, oh yeah, the person who owns this property, the person who owns this car had nothing to do with this crime, so yeah, they get their property back, right? Side note, Alabama says that it gives people a right to their property while the proceedings are pending while they're taking two years to ultimately decide these cases. They say they give people a right to their property. That right is that the state requires the owner to pay a double value bond to get their property back while they are waiting for the decision; that means you must pay double the value of your property to use it for the year you are waiting for the court to decide if they can finally take your property from you.

0:36:00.6 Michael: That's smart. And then Alabama invest that in Bitcoin.

[laughter]

0:36:05.7 Rhiannon: Anyways, this case at the Supreme Court is narrowly actually about what legal test has to be used to determine whether a person gets a quick hearing about whether or not they can retain their property over the course of the proceedings, but I think it's an interesting one to watch, because after the Supreme Court has given a green light to Civil Asset Forfeiture in cases like Bennis v. Michigan, now people across the country are getting absolutely bulldozed, and the Supreme Court is now tasked with retro-actively, how do you patch up this awful breaking of a dam, what does due process really require? And you wonder if it's too little, too late, really.

0:36:46.1 Michael: And to Rhi's point about these might not turn out as bad as we think, about six years ago the Supreme Court in 2017 turned back a challenge to Texas' Civil Asset Forfeiture law and Justice Thomas wrote one of his opinions we talked about on our Thomas episode is sort of like, I'm just thinking out loud here, my... Here's my half-baked thoughts, I'm not sure where he sort of just ruminated on the possibility that asset forfeiture is unconstitutional, just blanket-ly, and I think this is something that appeals to a lot of the libertarian right, like some of the people I mentioned, that are coming after Chevron like Cato Institute and stuff, they're not fans of it, so this is definitely an area where we might get a "good ruling" from the court, or at least a less bad one.

0:37:41.2 Chris Geidner: One, I think it's also a step further than that, oftentimes these cases, the ones that go well are the ones brought by... It's either brought by Institute for Justice or one of the various ex legal foundations. I mean normally, specific legal foundations.

0:38:00.5 Rhiannon: Right, right. Yeah, and IJ is behind this one. IJ actually has a really good report that they've updated almost yearly for a while called Policing for Profit, that is about civil asset forfeiture. People should check it out if they're interested.

0:38:13.4 Michael: Yeah.

0:38:14.8 Rhiannon: Moving to another case, this one about criminal procedure and specifically double jeopardy. This one is interesting because it really does have potentially massive ramifications for really foundational concepts in criminal procedure, but I don't even know if I want to say that I'm cautiously optimistic because the change would be so massive to this sort of foundational concept of double jeopardy. But that said, I feel like I know where Clarence Thomas is on this, and that's not good, but maybe everybody else, maybe the other conservatives take a little pause.

0:38:48.2 Peter: This is not one of the two things that Clarence Thomas is good on.

0:38:51.4 Rhiannon: Right, right. Exactly. So double jeopardy, widely known concept, right, in criminal procedure that people probably understand maybe kind of broadly to mean that you can't be tried twice for the same crime. It's not quite that. Right? Rules can be a little complicated about when double jeopardy applies and when it doesn't, there are legal tests for figuring that out, there are Supreme Court cases about double jeopardy, but actually the most fundamental double jeopardy rule is that an acquittal cannot be changed, you cannot be tried again if you are found not guilty of a crime.

0:39:26.4 Rhiannon: Sometimes legally, in explaining this concept, you might hear the word inviolate. An acquittal is final, it cannot be changed, it cannot be marred. If you have gotten to the stage of a jury or a judge handing down a verdict and the verdict is not guilty, double jeopardy applies, you cannot be tried again, this is old, old, old. Like you wanna talk about conservatives going back and looking at history and tradition on stuff, this is a very old concept back from the English Common Law. It doesn't matter, I just wanna emphasize, it does not matter if the person is actually guilty of the crime, it does not matter what reason a jury has for finding a person not guilty, if they find a person not guilty, you cannot be tried again for the same crime, except...

[laughter]

0:40:14.4 Michael: Except in Georgia.

0:40:15.4 Rhiannon: Except there's this fucking case out of Georgia where the supreme court is taking up this question. So, Damien McElrath was prosecuted by the state of Georgia for three crimes that come out of the same incident. There's three charges, malice murder, felony murder, and aggravated assault. Now, the jury found McElrath not guilty by reason of insanity on the first charge, but they found him guilty of felony murder and aggravated assault. Now, those verdicts are legally sort of inconsistent. If somebody is found to be legally insane, it means... This is a very, very basic explanation, if somebody is found to be legally insane, it means that they were incapable of knowing right from wrong, or they were incapable of having the intent to do the crime, they couldn't have even meant it. Right?

0:41:08.1 Michael: Right.

0:41:09.7 Rhiannon: So if the jury found McElrath not guilty by reason of insanity on one charge, that would generally mean he would be not guilty by reason of insanity on the other charge.

0:41:18.4 Michael: 'Cause they're all stemming from the same facts. Right?

0:41:21.4 Rhiannon: Same incident. Same facts, right. So if he couldn't mean it or if he didn't know right from wrong on one charge, it kind of indicates that legally, it seems like it would apply across those verdicts. Right?

0:41:33.4 Michael: Right.

0:41:34.3 Andrew Parsons: So McElrath through his attorneys is the one who appeals this decision. He says basically, if I was not guilty by reason of insanity on charge, my convictions on the other charges should be vacated. The state of Georgia, the prosecutors themselves don't fight that not guilty verdict on the one charge at all, but the Georgia Supreme Court vacates all of the verdicts and said all of them need to be re-tried. This is double jeopardy 101. He has been found not guilty by whatever reason the jury had...

0:42:03.8 Peter: No, this is 102 baby, new rules.

0:42:06.3 Andrew Parsons: Yeah. Double jeopardy should indicate that he cannot be tried again on that one charge, right?

0:42:12.2 Michael: Right. They could go again for the aggravated assault and the...

0:42:14.9 Rhiannon: Felony murder.

0:42:17.2 Michael: Felony murder.

0:42:18.4 Peter: Right. You could keep doing those over and over again, but once someone is acquitted...

0:42:21.2 Michael: It's done.

0:42:21.9 Peter: Done deal.

0:42:22.6 Rhiannon: Right.

0:42:23.1 Peter: No, that's fun. I think we should be exploring getting rid of all of the things that we learn like the first week of law school. Reasonable person standard, trash it.

0:42:32.1 Michael: Chevron Deference, get fucked.

0:42:36.5 Rhiannon: Exactly, exactly.

0:42:37.1 Chris Geidner: Two years of scrutiny, gone.

0:42:40.8 Rhiannon: Yeah.

0:42:41.2 Michael: Yes.

0:42:41.8 Peter: Well, that one might be good.

0:42:41.8 Rhiannon: So this would just represent such a massive departure from the understanding of double jeopardy foundationally. It's genuinely hard for me to see that the court says that the State of Georgia can try him again on the one that he was found not guilty on.

0:42:56.5 Michael: Yeah.

0:42:56.6 Peter: Alright, let's talk Second Amendment. Chris, I'll hand this over to you because basically, I feel like the background here is a couple of terms ago, the court said under the history and tradition test that they have concocted, New York's gun control regime was unconstitutional, and since then, in the lower courts there's been all sorts of fighting over different gun laws with people trying to figure out are there historical corollaries for these laws that we can point to or know, and the whole process and practice has been so ridiculous that many judges who clearly think that the Bruen decision was preposterous, have started to very openly throw up their arms and say, I'm not entirely sure what to do with this, and Rahimi seems to be the case where everything has come to a head in the darkest possible form. So I will let you describe the case.

0:43:58.7 Chris Geidner: Yeah. If we were trying to create a sort of like Frankenstein's monster, here's the worst case scenario of what Clarence Thomas is doing to the country, this is it.

0:44:13.6 Rhiannon: Yeah.

0:44:14.1 Chris Geidner: This is the federal law that says, it's 18 USC 922. And there's a provision that says if you are subject to a court order that was issued after a hearing that you received actual notice, so we don't have some due process issue here, that restrains a person from harassing, stalking or threatening an intimate partner or child of that intimate partner, it is found that they represent a credible threat to the physical safety of that person, that they cannot basically have a firearm that has been involved in interstate commerce. This is a law that protects people who are faced with domestic violence from their partner being able to have a gun after a restraining order has been issued against them.

0:45:13.2 Rhiannon: Right.

0:45:13.4 Michael: Right.

0:45:14.1 Chris Geidner: Enter our best friend, Fifth Circuit Court of Appeals. The Fifth Circuit has for a long time been a place where bad things happen, where Liberals have been afraid.

0:45:28.0 Michael: Yes.

0:45:28.4 Chris Geidner: But now, truly, you do this, how bad can the panel get? Oh, it can be worse. We talked about these three judge panels earlier, and now we get these situations where like the good days of Edith Jones aren't the problem anymore. Now, we have multiple Trump appointees, you can have panels that have majority Trump appointees and that's what happened here. And we had both James Ho and Cory Wilson on this panel with Edith Jones. And Cory Wilson wrote the decision, and what he said is that the question presented in this case is not whether prohibiting possession of firearms by someone subject to a domestic violence restraining order is a laudable policy goal. The question is whether that statute I just read you is constitutional under the Second Amendment in light of the Bruen decision. Three words, it is not.

0:46:34.6 Chris Geidner: That was the Fifth Circuit's decision, and the Supreme Court took up this case, the Biden administration asked the Supreme Court to take the case. We had this Fifth Circuit ruling. It was as bad as it gets and not applied then to Texas, to Louisiana and to Mississippi. And so the federal government was like, we can't let that stand. And they asked the Supreme Court to hear it, and they filed their brief. Right now, we're not gonna get Rahimi's brief until later this month, but I just wanted to read from his argument against the Supreme Court taking the case. Rahimi said, don't take the case, let that Fifth Circuit decision stand. And this is the history and tradition test at play. What he argued as the reason for the Supreme Court not to take the case, is that the plain text of the Second Amendment clearly covers the conduct prohibited by the statute. And so the government bears a heavy burden here to affirmatively prove that the regulation is part of the historical tradition that delimits the outer bounds of the right to keep and bear arms. And the burden is even heavier, he writes, because it addresses a general societal problem that has persisted and yet, "No one attempted to disarm domestic abusers as a class during the first two centuries of our nation's existence."

0:48:16.4 Rhiannon: Woof.

0:48:16.6 Chris Geidner: So, because we let men beat their wives...

0:48:23.2 Michael: Yeah.

0:48:24.3 Rhiannon: Right.

0:48:24.4 Chris Geidner: This is the legal argument, this is not even me like bullshitting here. This was his actual argument, that because we allowed men to beat their wives in the early days of this country, this statute should be found to be unconstitutional. And even further, he was actually arguing the Supreme Court shouldn't even hear the case on this basis. So I mean, again, like we don't wanna make any... That's what's gonna happen on this case with this [0:48:53.1] ____ force and in this light of this history and tradition test, but like, this is as bad as it could get. And so I do think, again, we talk about like, oh, here's the chance for the court to really get some good public points by finding some limits to this history and tradition test that allow us to uphold a ban on domestic violence abusers having guns.

0:49:21.8 Michael: Yeah. Not just the good PR. There's also the real risk of bad PR.

0:49:27.8 Chris Geidner: Yes, yes, you're right.

0:49:27.9 Michael: Like the first time someone kills his ex-spouse with a gun that he was only able to get because of the Supreme Court decision, and people say, yeah, he only had this gun because of this Rahimi decision. The Supreme Court doesn't want their name next to a murderer's name in the news, so they might trim the Fifth Circuit's sails here, but I don't know. It's hard to know at this point.

0:49:55.6 Peter: I have a very hard time believing that they would strike this law down. I'm mostly interested in what fucking knots they tie themselves into trying to construct a test or an application of the test where the law is upheld. My best guess is that they uphold it and then it's like an incredible reach.

0:50:17.6 Michael: Yeah.

0:50:18.3 Peter: There's no other way for them to come out of this unscathed.

0:50:21.1 Chris Geidner: Yeah, I think it won't be a one ticket only.

0:50:24.3 Peter: They're gonna find some limitation on domestic, yeah.

0:50:28.3 Chris Geidner: They're gonna find some way that they're not giving free rein to New York and Illinois and these other cases that are working their way up.

0:50:37.8 Peter: Yeah, yeah. Alright, so that's the next steps for the Second Amendment. Let's step back and think about the Roberts court's body of work. They've attacked the rights of Muslims, black and brown people, immigrants, LGBTQ people, women, the poor, if you're a reactionary psychopath, you have to step back and think whose rights have gone insufficiently trampled, and if you said people who need accommodation due to physical disabilities, some assholes in the defense bar seem to agree with you, because there's a case called the Acheson Hotels v. Laufer. The Americans with Disabilities Act requires that places of public accommodation, meaning like retail stores, hotels, any business open to the public, take reasonable steps to ensure that their space is accessible to people with disabilities.

0:51:33.9 Peter: Now, the way that cases under this part of the ADA are brought is generally through what are called testers. Law firms will contract with an individual who is a "tester" and whose job is essentially to go from business to business looking for ADA violations. And if they find them, they will sue. It should go without saying that businesses have always hated this and it's become more contentious in recent years because of regulations saying that hotels need to list their ADA accessibility features on their websites, which allows testers to just go website to website looking for violations.

0:52:12.5 Peter: So this hotel chain got sued and then they said, hey, this person doesn't have standing to sue because they never actually intended to stay at our hotel, they're just going website to website, right? And that sort of violates traditional notions of standing. They weren't going to use what we are offering, and this is sort of a big deal because it's possible that the court basically says, yeah, this sort of structure for attacking the ADA is not allowed, you need standing, you don't have standing here. That's a big deal because without testers, ADA enforcement basically drops down to zero. The court could very easily say here, this sort of structure for bringing lawsuits under the ADA is not allowed. These people don't have standing. You need standing. That is a huge deal because without testers, ADA enforcement basically drops to near zero, right.

0:53:11.4 Peter: The way that this would work otherwise, is that a lay person who is using a space or a website would have to themselves identify an ADA violation, and I know that might sound easy, but we're not generally talking about, oh, this place doesn't have a ramp and they need a ramp. We're talking about much more subtle, nuanced issues.

0:53:32.6 Rhiannon: Right.

0:53:33.5 Peter: So, without testers, enforcement of the ADA, pretty difficult, right? And I also wanna point out that the hotel and the defense side here tries to make it seem like this is some big lucrative grift.

0:53:49.3 Rhiannon: That litigating these cases is like, yeah, you just make massive amounts of money on it. They're scamming the court system.

0:53:56.1 Peter: Right. These testers are just running around looking for problems and suing, right, almost like it's some kind of slip and fall thing.

0:54:01.5 Rhiannon: Right.

0:54:02.1 Peter: In reality, there's no big cash award in these cases. You only get two things if you win. One, they fix the accessibility issue, two, attorney's fees. So what happens functionally in almost all of these cases is they just settle right away. You find out about the violation, you say, alright, we'll fix it, we'll pay your attorney's fees to date, and that's that, right. It's not some big money making operation, literally no one is getting rich off of this. So we'll see what the court does. It's interesting, primarily because one of the themes of last term was the court going to obscene lengths to find standing for right-wing plaintiffs. And so it sort of makes sense that as a natural extension of that, this term will be about them doing the complete opposite for a progressive plaintiff, so that does feel like where this is going, frankly.

0:54:53.2 Chris Geidner: Yeah, and we talk about standing, we talk about how the court has treated standing, but these are real people, like they might not be on their way to the hotel, but they are hired by firms who do this work who know what accessibility is required, and they're real problems that they identify because they wouldn't win their cases otherwise. So having just come out of a year of covering 303 Creative, where this person who had never made a wedding website was allowed to create an exemption to states' non-discrimination laws. It seems like... I mean, I know, I'm gonna get a laugh from all of you, it would be the height of hypocrisy for this court to find that there's no standing here...

0:55:40.6 Rhiannon: It's true.

0:55:42.8 Chris Geidner: If Coach Kennedy had standing two years ago in the prayer case and...

0:55:47.5 Peter: What are you talking about? He was literally standing in the picture.

0:55:50.0 Chris Geidner: There was a photograph! It's real!

0:55:53.8 Rhiannon: Yeah. Hypocritical, but that's our bread and butter, Chris.

[laughter]

0:55:56.6 Michael: Kennedy didn't even live in the state anymore, and he was like, no, I intend to come back and coach. Coached one game and then quit.

0:56:03.6 Rhiannon: Yup. Just a couple of weeks ago.

0:56:04.1 Peter: Right. Look, the reality of this is that this whole system, this tester-driven law firm-driven system is basically due to the lack of regulatory oversight.

0:56:16.3 Michael: Right, 'cause we don't have an OSHA or something that will go do checks with this.

0:56:19.3 Peter: Right.

0:56:19.6 Rhiannon: Exactly.

0:56:20.1 Peter: If there were an agency body that had funding that could go around checking retailers and checking websites and taking complaints, then everything would be on the up and up, but since that won't get funded, we're stuck with this sort of makeshift sort of like pseudo-regulatory apparatus where what's basically happening is that this is sort of like substituting for a system where a violation is spotted and they get fined. The attorney's fees are like the fine that you hand over for your violation, that's what's basically being replicated by these testers and attorneys. And so what I feel like is quite likely to happen here, is that they scrap this sort of privatized agency that the government has sort of necessitated by failing to fund enforcement for the ADA, and we're left with nothing.

0:57:15.1 Rhiannon: Right.

0:57:15.2 Chris Geidner: Thanks.

0:57:17.4 Peter: Yeah. So Chris, one other thing we wanted you to talk about, because you've sort of covered this on Law Dork, is the ongoing drama with the voting rights in Alabama. Of course, our lone win this year was Alan v. Milligan where the court sort of allowed the Voting Rights Act Section Two to remain and not only that, but told Alabama, you have to create under the Voting Rights Act, another majority-minority district, and Alabama has been intransigent, shall we say, to this point, and it has raised questions about defiance of the Supreme Court across the political spectrum, etcetera, etcetera. So what is happening in Alabama is really my question to you.

0:58:00.9 Chris Geidner: Yeah, we got this ruling in June, and there was a strong reaffirmation of section two of the Voting Rights Act, which was the thing that we were told when Section 5 was this pre-clearance provision that was struck down in Shelby County, that was basically before the problematic states could make voting rights changes, they had to get approval.

0:58:24.0 Michael: Right.

0:58:26.8 Peter: That's been gone.

0:58:28.2 Rhiannon: Right.

0:58:28.3 Chris Geidner: But we were told by John Roberts back when Shelby County came down that you'd have Section Two that allowed outside people to sue after changes were made. And that's what happened here when Alabama tried to do redistricting, they lost, they were told that there was vote dilution, that the voting rights of black Alabamians were diluted and that they needed two opportunity districts, districts where black voters would have the opportunity to elect the candidate of their choosing.

0:59:03.1 Chris Geidner: And Alabama went up to the Supreme Court with that. They said, we think that that's wrong, and they sort of suggested that Section Two's vote dilution argument should be tossed out and they lost. And so what did Alabama do this summer? They passed another map that only had one, a majority black district and said, we're fine going back to court again, this is good.

0:59:31.4 Peter: Why not?

0:59:31.5 Michael: Yeah.

0:59:32.1 Chris Geidner: And the court, which these are heard before a three-judge panel of district court judges, they are really mad, they heard arguments over this and they honestly were like, you've got to be kidding us, and affirms their earlier ruling, they said this still violates Section Two of the Voting Rights Act. And so what did Alabama do? They asked for that to be put on hold while they go back to the Supreme Court, while they go back to the Eleventh Circuit, and what we got this week, the day we are recording this, was another decision by the three-judge panel saying we repeat that we are deeply troubled that the state enacted a map that the secretary readily admits does not provide the remedy that we said federal law requires.

1:00:28.3 Chris Geidner: They said, the law requires the creation of an additional district that affords black Alabamians, like everyone else, a fair and reasonable opportunity to elect candidates of their choice, period, without further delay, period. So, the three-judge panel was [1:00:45.0] ____ set on what's happening. It is pretty clear that Alabama is going to go back to the Supreme Court, they're trying to make this be delayed long enough that they can get this out of 2024.

1:01:02.9 Peter: Yeah, yeah, they're trying to get this held up so they can have their current shitty map last one more election cycle.

1:01:10.1 Rhiannon: Right.

1:01:10.2 Michael: Right.

1:01:10.1 Chris Geidner: I think that they're gonna lose.

1:01:12.6 Peter: Yeah, it does feel like they're gonna lose.

1:01:14.1 Chris Geidner: And this is a rare moment where what had happened, the reason why the one-district map went into effect for the last election was because Chief Justice Roberts joined the Liberal appointees, but Kavanaugh joined the Conservative majority saying, we'll let them put their bad map in place for this one election, but he was the switched vote this summer. He went with Roberts and the rest of the majority in saying, reaffirming the Voting Rights Act and affirming this district court ruling that said that there needed to be two majority black districts. And so I think we could get a pretty strong order from the Supreme Court that says like, cut out your bullshit, and a special master had already been appointed to be drawing maps, and the special master is supposed to have a map done before the end of the month, and so I think this is gonna go up to the Supreme Court, may be on the shadow docket, but I think Alabama is gonna lose. And I think it's gonna be pretty quick.

1:02:21.0 Peter: Yeah, that sounds right. I'm curious about whether we could do something remedy-wise along the lines of holding the entire Alabama State Government in contempt.

[laughter]

1:02:35.5 Chris Geidner: I think that they're gonna get away with basically having forced the court to do this.

1:02:42.8 S?: Yeah. Yeah.

1:02:43.0 S?: Right.

1:02:43.2 Chris Geidner: But I don't think that they're going to get away with using a one black majority district map, but I do think they're gonna get away with the way that they sort of subverted the system and forced the courts to do for them what they weren't willing to do and should have done under the court's orders.

1:03:05.8 Peter: Yeah.

1:03:05.9 Michael: Right.

1:03:06.6 Peter: We're rounding the bend here, and I think our episodes are never complete before we talk about the issue of ethics.

1:03:15.5 Michael: That's right.

1:03:16.0 Peter: The last episode was a premium episode, we updated everyone on the Thomas and Alito disclosures, and then somehow more happens incredibly, it never ends.

1:03:28.0 Michael: The fun never stops. The merry-go-round just keeps on going. So the big story we wanna talk about is Justice Alito. Our dedicated listeners will probably remember that after Dobbs, he was granted an interview by the Wall Street Journal by an editor at the Wall Street Journal, James Toronto, and private lawyer David Rivkin. The headline for that interview is Justice Samuel Alito: "This made us targets of assassination." About the leak of the Dobb's opinion. Later, more recently, after Alito's name became a little public because of ethics indiscretions and being the subject of a ProPublica piece, he got a second interview again by Toronto and Rivkin, this one titled Samuel Alito, The Supreme Court's Plainspoken Defender.

[laughter]

1:04:36.3 Chris Geidner: What a good guy.

1:04:39.3 Rhiannon: Sarah, Plain and Tall.

1:04:41.0 Michael: These are the definition of puff pieces, which the Wall Street Journal also let him post essentially a blog in response to...

1:04:50.9 Peter: Well, not in response, exactly.

1:04:53.4 Michael: Not in response to pre-empting the ProPublica piece, knowing it was coming out.

1:04:57.7 Peter: I wanna remind folks of the timeline here because I think it's crucial to understanding his relationship with The Wall Street Journal.

1:05:02.1 Chris Geidner: Yes.

1:05:04.4 Peter: ProPublica was writing a piece about some X concerns with Alito. They call him for comment being like, hey, fucking remember being on an all expenses paid trip to Alaska...

1:05:19.2 Rhiannon: With billionaires.

1:05:19.3 Peter: Paid by Harlan Crow.

1:05:22.7 Michael: Remember hunting the most dangerous game with your billionaire friends?

1:05:25.0 Peter: Where you hunted human beings?

[laughter]

1:05:28.2 Chris Geidner: I do have to interrupt here. You got your billionaire to justice chart wrong.

1:05:33.0 Peter: It wasn't Harlan Crow, was not.

1:05:36.7 Rhiannon: It was not Harlan. Yeah.

1:05:37.2 Chris Geidner: It was Singer.

1:05:37.3 Peter: That's right.

1:05:37.6 Chris Geidner: It was Paul Singer. Every Justice gets assigned a billionaire if you're Conservative.

1:05:41.8 Peter: Yeah. Yeah.

1:05:43.4 Chris Geidner: And it's hard to keep track of them.

1:05:44.9 Rhiannon: You have daddy billionaire.

1:05:46.6 Peter: That's right, that's right. And then, before the piece comes out...

1:05:50.0 Michael: He said, no comment.

1:05:51.8 Peter: He said, no comment. And before the piece comes out, he goes to the Wall Street Journal, asks them if he can front-run the piece with an op-ed that they then title... And I'm gonna paraphrase a little bit, ProPublica Misleads its Readers...

1:06:08.9 Michael: About a piece that had not been published.

1:06:09.0 Peter: About a piece that he hadn't even seen yet, where he basically just tries to piece together what they were saying and then say that it's a [1:06:15.9] ____ lot.

1:06:17.7 Michael: Right.

1:06:18.4 Peter: So yeah, we had a situation where the Wall Street Journal was basically allowing him to run PR, to use them as a PR publishing arm...

1:06:28.1 Rhiannon: Absolutely. Yeah.

1:06:28.5 Peter: For his office. And that feels relevant here, that's all.

1:06:31.9 Chris Geidner: And that came in between those two interviews.

1:06:36.1 Michael: That's right.

1:06:37.5 Rhiannon: Exactly.

1:06:38.4 Chris Geidner: After they did that, they then sat down with him again for another interview.

1:06:42.3 Michael: So here's the thing. David Rivkin is a private attorney who has interest before the Supreme Court, who is named in a brief before the Supreme Court in a case called Moore v. United States, which is about taxing unrealized capital gains, something that sounds really opaque and doesn't matter to anyone, except the people who read the Wall Street Journal.

1:07:08.5 Rhiannon: Ultra rich.

1:07:10.2 Michael: Very much about this sort of thing.

1:07:12.6 Peter: Are they gonna get rid of unrealized taxes on capital gains? Is that what's happening in Moore? I'll be investing more aggressively if so.

[laughter]

1:07:19.5 Chris Geidner: There are some places that have this stuff and they are really fighting the ability for anybody to tax this, and it's like killing a wealth tax before it happens.

1:07:31.8 Michael: Right.

1:07:32.0 Rhiannon: Right. Right.

1:07:32.3 Chris Geidner: Is what it is.

1:07:32.8 Michael: And to be clear, capital gains is when some asset you own increases in value. Taxing it before it's realized means taxing before you've sold the stock, etcetera.

1:07:41.8 Peter: Before you've liquidated it.

1:07:43.6 Michael: Right. Turned it into cash.

1:07:44.4 Chris Geidner: Art work.

1:07:45.4 Michael: Very rare bottles of wine.

1:07:48.5 Peter: A horse, all of the classic investments we all make.

1:07:51.5 Rhiannon: Right, right. Exactly.

1:07:53.2 Michael: Here's the thing, though. This structure exists in law everywhere, but just about everywhere that has property taxes. If you own a home, they will regularly get re-evaluated and you will be taxed based on the new valuation even if you haven't sold the home.

1:08:09.9 Rhiannon: Right.

1:08:10.9 Michael: Even if you haven't realized that gain in asset value, this is normal. My property taxes literally just went up.

1:08:19.3 Peter: Yeah, I was gonna say, are they gonna get rid of property taxes? 'Cause if so, I'm about to get real Conservative. Trying to buy a home in New Jersey, folks.

[laughter]

1:08:29.4 Michael: So this is something that has existed in American law for a very long time and has been very uncontroversial for a very long time. But the second we've started maybe extending it beyond things that apply to the middle class as well as the wealthy, and they're like, maybe we should do this same thing with stocks, bottles of wine, private jets, what have you. We're asking whether or not it's constitutional. And Alito seems to have this very friendly relationship with one of the lawyers representing a party in interest here. And so Dick Durbin, chair of the Senate Judiciary Committee, said he should recuse from the case, and he just recently wrote a little four-page letter saying eat shit, I'm not recusing. He did the whole Wolf of Wall Street, I'm not fucking leaving! And the show goes on.

1:09:20.8 Peter: Just because this guy is essentially a business partner of mine...

1:09:26.2 Michael: Who manages my PR...

1:09:31.1 Peter: Who has intertwined his professional career with mine...

1:09:32.0 Michael: In the middle of a scandal.

1:09:33.5 Peter: And both of our stars rise with the same tide. I mixed metaphors there. That does not mean that I need to recuse. Just because I have kissed this man on the lips as a form of greeting every time I've seen him for the past five years, does not mean that I need to recuse.

1:09:49.7 Rhiannon: It does not mean we're close.

1:09:51.7 Michael: Right. I read the names of those pieces, by the way, the headlines, because I think it's important because one of the big things Alito says is that Rivkin acted as a journalist, not an advocate. Again, Samuel Alito, the Supreme Court's plainspoken defender...

1:10:07.8 Rhiannon: That's just the headline.

1:10:08.2 Chris Geidner: I mean, it's so offensive. It's actually like the way that he did this even down to that, like it's an order from the court on the agreement that you don't need to submit the appendix, and he issues this as a statement, as opposed to when Clarence Thomas on the filings hired an outside lawyer and like... The statement was on the lawyer's website, he put it within like Supreme Court font, and it's a statement from the justice, like some formal thing, it's not just him like having a slap fight with Dick Durbin.

1:10:47.5 Rhiannon: Yeah, exactly.

1:10:48.7 Chris Geidner: They're both being political. It's so offensive. And that's not even getting into the substance which is also BS.

1:10:56.3 Peter: His main problem is that it would look really weird for him to publish his defense of himself in the Wall Street Journal, which is what he would usually do.

1:11:03.9 Michael: He doesn't know where else to go.

1:11:06.6 Rhiannon: Exactly.

1:11:06.7 Michael: His normal PR approach has been cut off by circumstances.

1:11:10.0 Chris Geidner: Exactly.

1:11:11.0 Peter: He's supposed to befriend an entirely separate publication, like The Washington Examiner.

1:11:16.4 Michael: The Washington Examiner.

1:11:22.6 Chris Geidner: Free Beacon.

1:11:22.7 Rhiannon: Yes.

1:11:25.2 Michael: Another little Alito note is just last week, or at the time this publishes, it'll have been a couple of weeks, a friend of the podcast, Senator Sheldon Whitehouse lodged an ethics complaint against him, sent it to Chief Justice Roberts, more power to you Sheldon, but the whole judicial ethics body that has been allowing all of these abuses, they are appointed by John Roberts.

1:11:48.3 Peter: Yeah.

1:11:50.3 Michael: He's not your friend and ally on these issues.

1:11:51.9 Peter: You keep sending these guys letters, but unless there's... In them. I don't think anything is gonna change. So...

1:11:58.5 Michael: I think that's a good point to end on.

[laughter]

1:12:03.3 Rhiannon: Where can people find you, Chris?

1:12:04.1 Chris Geidner: I have been really appalled by the way that these ethics questions have been responded to by Roberts, by Alito, by Thomas. I think that it just shows a complete unwillingness to even address what is plainly in front of all of our faces. So I am continuing to cover that at Law Dork, in addition to the actual substance of the cases, in addition to the cases that are making their way up, and that's sort of the other area that I try to delve into is like, here are things that you're going to be seeing in the next term or two, because they are big issues, and there are going to be disagreements once we get up to the circuit courts. And so, particularly when it comes to LGBTQ issues and criminal justice issues, democracy issues, and sort of the post-Roe landscape, so would encourage people to check out Law Dork. You can just Google away or go to www.lawdork.com.

1:13:16.0 Rhiannon: Amazing, thank you so much for being with us, Chris. This was awesome.

1:13:19.5 Peter: Thanks, Chris.

1:13:20.3 Chris Geidner: Thank you all.

[music]

1:13:27.4 Peter: Next week, Hampton v. United States, case from the 1970s about entrapment. Everyone's always asking us about entrapment. Isn't that entrapment? Doesn't this seem like entrapment? And the answer is always no. And we're gonna help explain why.

1:13:42.4 Michael: That's right.

1:13:43.5 Peter: Follow us on social media at 5-4 Pod, go to fivefourpod.com/support for subscription options, for premium episodes, special events, access to our Slack, all sorts of shit. We'll see you next week.

1:13:57.7 Michael: Bye everybody.

1:13:58.2 Rhiannon: Bye.

1:14:00.2 Michael: Five-Four is presented by Prologue Projects. Rachel Ward is our producer. Leon Neyfakh and Andrew Parsons provide editorial support. And our researcher is Jonathan DeBruin. Peter Murphy designed our website, fivefourpod.com. Our artwork is by Teddy Blanks @chipsny. And our theme song is by Spatial Relations.