00:00 [Archival]: We'll hear argument now, Number 04-278, The Town of Castle Rock v. Jessica Gonzales.

[music]

00:10 Leon Neyfakh: Hey everyone. This is Leon Neyfakh, host of Fiasco and co-creator of Slow Burn. On this week's episode of 5-4, Peter, Rhiannon and Michael are talking about Castle Rock v. Gonzales.

00:23 [Archival]: Back in 1999, three little girls aged 10, 8 and 7 were shot to death by their father.

00:31 Leon Neyfakh: This is a gruesome case, brought in 2005 by a Colorado woman named Jessica Gonzales. Gonzales had a restraining order against her ex-husband. But when he kidnapped her three children, the police ignored her requests for help. All three children were murdered. The Supreme Court ruled that the police had no obligation to enforce the restraining order.

00:50 [Archival]: So, if restraining orders are not enforced, then they're not worth the paper they're written on.

00:57 Leon Neyfakh: This is 5-4, a podcast about how much the Supreme Court sucks.

01:08 Peter: Welcome to 5-4, where we dissect and analyze the Supreme Court cases that have weakened America, like rust slowly eating a steel beam. [chuckle] I am Peter, Twitter's The Law Boy, and I am here with Michael.

01:25 Michael: Hey everybody.

01:28 Peter: And Rhiannon.

01:29 Rhiannon: Hi.

01:30 Peter: And we are all coronavirus quarantined remote from our closets. [chuckle]

01:35 Michael: Yes.

01:35 Peter: What a terrible world we all live in, [chuckle] but we will never let it stop us from podcasting about the law.

[laughter]

01:45 Michael: That's right, that's right.

01:47 Peter: Today's case is Castle Rock v. Gonzales, a case that features two of my least favorite things in the world, procedural technicalities and the brutal murder of innocent children.

[laughter]

02:01 Michael: In no particular order are those two things, yeah.

02:06 Peter: This case is, I think maybe the most tragic and poignant in a long line of cases in the Supreme Court and in other courts that have allowed police officers and police departments to escape any legal responsibility, even in cases where their actions are grossly negligent and lead directly to the loss of human life.

02:25 Michael: Right.

02:25 Peter: The issue here, simplifying a little bit, is whether the police are liable under the 14th Amendment's, Due Process Clause, when they don't even attempt to enforce a restraining order involving a rather insane husband, shall we say?

02:40 Michael: Right.

02:42 Peter: We'll get into the semantics, but the real question is this, I think, "Do the police owe the public, anything at all?" [chuckle] And the Court thinks probably not.

02:53 Michael: Spoiler alert. [laughter] No, no.

02:58 Peter: It's the first time we've covered a majority opinion by our boy, Antonin Scalia, who is, I mean, let's be honest, he's gonna be a recurring character on the podcast.

03:08 Michael: Yeah.

03:09 Rhiannon: Yeah.

03:10 Peter: He was nominated by Reagan to a spot on Supreme Court in 1986, and nominated by God to a spot in hell in 2016.

[laughter]

03:21 Peter: So, he's most famous for popularizing textualism as a method of statutory interpretation, widely idolized on the right, primarily just because he's like a doctrinaire conservative, but also because he's very snarky and condescending in his writing, in a way that I think is very viscerally satisfying for the conservatives. I think this case is important because it highlights a couple of things about him along those very lines, one is that his commitment to textualism is perhaps a little more flexible than he might lead on, and two, is that when he steps outside of the subject he's most comfortable with, which is just like blatant homophobia, [laughter] he often comes across as a very mediocre intellect...

04:04 Rhiannon: Right.

04:06 Peter: Who is not very impressive. And I think that cuts against not just the conservative perception of him, but the perception of him that we're all taught in law school. I don't know if you guys got the Antonin Scalia is borderline, a legal god...

04:18 Rhiannon: Yeah.

04:19 Peter: Sort of spiel from law school, but it was prevalent for me.

04:23 Michael: Yeah.

04:24 Peter: And it took a little bit to kind of shake it.

04:27 Michael: Yup.

04:27 Peter: When you first realized he's sort of a moron, it's like an important step towards [chuckle] understanding the Court and the weird reverence of it.

04:35 Michael: There were a couple of moments I remember in law school very clearly and one was when I was interning for a judge after 1L and I read an opinion, and it was written by Thomas, and it was just so much better written than anything I had read from Scalia and everything you learn in law school is that Thomas is a crank.

04:52 Peter: Right.

04:54 Michael: And maybe not the most impressive justice and Scalia is the fucking intellectual Titan.

05:00 Rhiannon: Right.

05:01 Michael: And I was like, "Wait a minute, actually this is the first time I've been impressed by one of these two guys and it's not Scalia." And then the other time was, as I mentioned in an FIB episode, which was when all these law professors were sure that Scalia was gonna rule in favor of ObamaCare and they were very wrong. [chuckle] And I do wonder how many, if any of them re-evaluated their prior held beliefs about his integrity and intellect after that.

05:26 Peter: Well, they will, when they hear our podcast.

05:28 Michael: That's right, if they have not yet. We are going to brow beat them into submission.

[laughter]

05:35 Peter: That's right. We should get into the facts here, which I have to say, no joke are a little bit harrowing.

05:40 Rhiannon: Yeah.

05:41 Peter: So, to help ease the facts into your brain, the soothing voice of Rhiannon, [chuckle] I think, it will be useful here.

05:52 Rhiannon: Okay, so up top, I just wanted to note for listeners up front that the facts of this case are really difficult. It's a horrific case and I wanna make sure that we treat this case with the care that it warrants, care that was clearly not afforded to this case, into the plaintiff by the highest and most powerful legal institution that we have in this country. For me, when I was prepping this case, I was thinking about how sometimes dealing with difficult facts like this, it means that I get with my two buds, Peter and Michael, and we laugh and we make fun of this stuff because it's a way to cope, and I think sometimes levity is a way of subtly undermining, just a little bit, the seriousness and the deference that we're supposed to give to the Supremes.

06:42 Michael: If we couldn't joke and laugh about it, I would punch a fucking hole in my wall. Like there's only two emotional states...

06:47 Peter: Yeah.

06:48 Michael: To be in with this and it's like angry, but laughing at the absurdity of it and maybe getting your anger out by being mean to the pieces of shit who signed onto this opinion or just raging out uncontrollably 'cause it's fucking awful. So...

07:07 Rhiannon: Right. Yeah, it makes me think too of Toni Morrison, I don't know if you guys have ever heard this, but Toni Morrison said that she started writing because she realized that she needed to be the one to write the books that she wanted to read. No one else was writing books that she wanted to read and so, she was like, "Fuck it. I'll do it myself," and so I look around and I kind of wanna make the podcast that no one else is making, and today that is a podcast episode where we rip apart the evilness and the stupidity that our legal system enacted on Jessica Gonzales in the wake of a tragedy that was absolutely preventable.

07:40 Peter: Oh yeah.

07:44 Rhiannon: So, the facts of the case, just a little bit of legal background and the statutory context, so VAWA, the Violence Against Women Act is passed in 1994 after really massive grassroots campaigns and organizing by women's rights groups and a broad network of organizations, including advocates for survivors of sexual assault and intimate partner violence, prosecutors and law enforcement agencies, etcetera. Throughout the '80s and early '90s, they're organizing and finally, VAWA gets passed, and VAWA is passed because local governments and these organizations are saying, we need guidance from the federal government to effectuate a justice structure, a justice mechanism that's responsive to what we're seeing on the ground, which are massive issues with domestic violence.

08:32 Peter: Yeah, so if anyone ever asks you when society, American society started to do anything serious about domestic violence, you can say 1994.

08:41 Rhiannon: Yes. [chuckle] Thank God for Joe Biden. [laughter] In the years immediately following the passage of VAWA, states and local governments adopt similar or even more protective statutes to try and address domestic violence in their jurisdictions. And so, it's in this legal context that Jessica Gonzales's case comes to the Supreme Court.

09:03 Rhiannon: So, what happened? It's May, 1999 and Jessica Gonzales obtains a temporary restraining order against her estranged husband, Simon Gonzales. This all happens in the town of Castle Rock, which is in Douglas County, Colorado. She obtains a temporary restraining order because she says that Simon has been acting erratically and violently. Even though they're split up, he has been stalking her, continuously stalking her and her three daughters, just violent and scary harassment behavior from Simon. So, the temporary restraining order says, "He shall not enter the family home and shall remain at least a 100 yards away from this location at all times." And in fact, the judge makes a special finding that goes into the temporary restraining order and that finding says that, "Physical or emotional harm would result if Simon was not excluded from the home." So, Jessica Gonzales has demonstrated a lot that her ex-husband is dangerous to her and her daughters.

10:08 Rhiannon: About 10 days later, after she gets the temporary restraining order, the restraining order is made permanent by the Colorado State Court and she's also granted sole physical custody of their three daughters. Simon Gonzales is permitted a pre-arranged mid-week dinner visit with the girls and alternate weekend visits, but otherwise they live with Jessica at their home. On June 22nd, just over two weeks after the restraining order is made permanent, Simon kidnaps the girls from their front yard, where they're playing, and at that point, when Jessica Gonzales realizes that her daughters are missing, she makes a first of many phone calls to the police at about 7:30 PM, and the police come over to the house.

10:56 Rhiannon: She shows them the restraining order and she asks that it be enforced. She says, "My daughters are missing. My ex-husband is dangerous and I want my kids to be returned to me immediately." In response to that, the police, true to the form that I know police to be operating on at all times, [laughter] are like, "Mmm, no can do. Let's just see if your crazy violent ex-husband brings them back by 10:00 PM."

11:25 Peter: Right. So, weird that the police would side with the abusive husband in that case. [chuckle] I wonder what's going on there.

[laughter]

11:33 Rhiannon: So, the police leave her house. She gets a hold of Simon on his cell phone and he says that he and the girls are at an amusement park in Denver. She calls the police back and tells them, "This is where they are. They're at the amusement park. Here's a vehicle description. Please go look for them there. Please return my children to me." The police again say, "There is nothing we can do, ma'am. Wait and see if he comes back with them at 10:00 PM."

12:08 Michael: Kind of seems like there's something they could do. Just gonna throw it out there. You know, maybe...

[overlapping conversation]

12:15 Peter: You're thinking that they could maybe go to the amusement park?

12:20 Michael: Yes, and look for the car.

12:22 Rhiannon: I don't know. Maybe that's like fucking rocket science or something.

12:23 Peter: Interesting.

12:24 Michael: It's just a thought.

12:24 Rhiannon: Okay, so 10:00 PM comes and goes. At 10:10 PM, she calls the police again. This is her third call and says, "My children are still missing." At this point, she is told, "Ma'am, how about we wait till midnight then?"

[chuckle]

12:42 Michael: Fuck these people.

12:44 Rhiannon: Getting absolutely no help from the police, she goes herself to Simon's apartment and realizes that nobody is there. At about midnight, she calls the police station again and she's told to wait for an officer to arrive, that an officer will be sent out to Simon's apartment to meet her there. Nobody ever shows up. So, she drives herself to the police station, arrives there at about 12:50 AM and she files an incident report on the spot. Now, the officer who took the incident report, this officer, you would think, "Okay. I just got all this information of a series of hours and phone calls and... "

13:19 Michael: Kids have been missing for half a day now.

13:22 Rhiannon: Right. Kids have been missing. Exactly. Well, that officer who took the report doesn't do anything, and in fact, this is noted in the opinion, he just went on break, I guess. And did his shift and went to dinner. So...

[chuckle]

13:38 Peter: "Ma'am, I realize your kids are missing but it's 1:00 AM, I... "

13:40 Rhiannon: Yeah.

13:41 Peter: "I'm gotta grab a bite to eat."

13:45 Rhiannon: Right. That's correct.

13:45 Peter: "It's eating time over here at the station."

13:46 Rhiannon: Exactly.

13:47 Michael: The Denny's is open. [laughter] I got... My heart's set on Moons Over My Hammy.

13:52 Peter: "It's 5% off for police officers, ma'am... "

13:54 Rhiannon: That's right.

13:56 Peter: "So, I gotta be heading over there real quick."

13:57 Rhiannon: On the minute, they're gonna be at the fucking 24-hour diner for sure. [chuckle] Okay, so then a few hours later, 3:20 AM, Simon Gonzales drives to the police station and opens fire, on the building, at the police, with a gun that he purchased earlier that evening. A police shoot-out ensues, the police are shooting back at him and the result is that Simon Gonzales is killed. When the police go up to the car to the look over his body and investigate, they realize that the three girls are in the car and that they were already killed earlier by Simon.

14:38 Peter: Ugh.

14:39 Rhiannon: Yeah.

14:41 Peter: So, Jessica Gonzales sues the state under Title 42, Section 1983 of the United States Code, the statute that allows individuals to sue the states for civil rights violations. What she alleges is that the police's willful failure to enforce the restraining order was a violation of her 14th Amendment right to due process.

15:05 Rhiannon: Yeah.

15:06 Peter: The Due Process provision protects "life, liberty, and property." So, there's a question of whether the right to have a restraining order enforced, counts under the Constitution as a property interest, right? And what counts as a property interest under the 14th Amendment is pretty broad, it's not limited to tangible property.

15:23 Rhiannon: Yeah.

15:24 Peter: The bottom line is that it's anything that a person would be entitled to. So, the Court, throughout this opinion is constantly referring to whether or not she has a property interest in the restraining order, but you can sort of ignore those semantics. The question is whether she's entitled under Colorado law to the enforcement of that restraining order.

15:43 Michael: Right.

15:45 Rhiannon: Right.

15:46 Peter: And the relevant Colorado law is a 1994 bill designed to target domestic violence, in part by ensuring that police are compelled to enforce restraining orders. [chuckle] In this opinion, Antonin Scalia holds that Gonzales was not entitled to the enforcement of the restraining order, primarily because enforcement is generally considered to be optional for the police.

16:07 Michael: Right.

16:08 Peter: And therefore you can't be relied on as an entitlement by a citizen.

16:12 Michael: Right.

16:14 Rhiannon: Ugh.

16:16 Peter: And in addressing how incorrect that is, [laughter] I think it's important that we talk about the text of the Colorado law.

16:23 Michael: Yeah, I think that's a good place to start.

16:24 Peter: And the restraining order itself...

16:25 Rhiannon: Yes, that's important.

16:26 Michael: There's a really brilliant legal scholar by the name of Antonin Scalia [laughter] who tells us, "First go to the text, that's where we need to start."

16:35 Rhiannon: You gotta go to the text.

16:35 Michael: You gotta go to the text.

16:35 Rhiannon: The answers are gonna be right there.

16:39 Peter: So, the law says that police "shall use every reasonable means to enforce this restraining order." [chuckle] Now, I don't know how you guys read that, but to me that seems to suggest some sort of affirmative obligation on the police to enforce the order.

16:56 Rhiannon: Right.

16:56 Peter: He uses the word, "shall" which is the word that God used in the Ten Commandments.

[laughter]

17:02 Peter: So, I think that sounds pretty clear to me. There was also, it should be noted, some legislative history that's relevant here. The sponsor of the bill stated that under the law, "Police must make probable cause arrests." For these reasons, the court below had ruled in favor of Jessica Gonzales saying, "Of course, she's entitled to enforcement of the restraining order. It says so right here in the law." So, how does Antonin Scalia, the guy who thinks that the text of the law is the guiding light to its interpretation, who literally led a movement to centralize the text of the law in statutory interpretation...

17:38 Rhiannon: Right.

17:40 Peter: Get around this extremely clear text? [chuckle] He does it by saying that the text can be ignored because there is "a well-established tradition" of police being able to choose whether or not they enforce the law.

17:55 Michael: Right.

17:57 Rhiannon: People think this guy is smart.

17:58 Michael: Yeah.

18:00 Peter: All right. [laughter] So, I don't wanna lose my cool too early in this episode.

18:05 Rhiannon: Yeah.

18:05 Peter: He says that the tradition is well-established, but he doesn't really cite a lot, in support of that.

18:08 Michael: You expect a string cite of Supreme Court cases and circuit court cases and state supreme court cases, going back a 100 years or some shit, right?

18:20 Peter: Right. He doesn't cite a lot in support of it at all. In fact, he really just cites, I think one Supreme Court case. Again, the language is "that the police shall use every reasonable means to enforce this restraining order." And Scalia agrees that it's clear. What he's saying is, "Yeah, that seems to suggest that they have to do this, but we think that the history of police discretion in these matters outweighs what the text says." Literally the opposite of what he suggests doing...

18:49 Michael: Right.

18:50 Peter: In almost every other case.

18:50 Rhiannon: Exactly.

18:50 Michael: Right.

18:50 Peter: I will say one thing though, before we move on to tearing his argument apart. If what he's saying is that there's a well-established tradition of police ignoring the plight of citizens, for no other reasons than their own laziness and selfishness, I completely agree.

[laughter]

19:01 Rhiannon: You got it right.

19:03 Peter: He's right about that traditional.

19:06 Rhiannon: Yup. That's right.

[laughter]

19:06 Peter: So, what he does is, play a series of what I think are just empty rhetorical games.

19:12 Michael: Yeah.

19:12 Peter: He says that the Supreme Court in the past has recognized that police officers have some discretion in these matters. And I think what he does, is conflate the issue of whether police have any discretion, with whether they have discretion under this law in this circumstance, to choose whether or not they feel like enforcing the restraining order.

19:30 Rhiannon: Right.

19:31 Peter: You know, it's sort of obvious that police have some discretion, right? They have limited resources, right? You can only do so many things at once. They have to make decisions about their priorities, but that's not what's happening here. A situation where police did literally nothing, rather than take any steps to locate this woman's husband and her children, who he had kidnapped.

19:49 Rhiannon: Yeah. Right. Exactly.

19:50 Michael: It's not a close case.

19:52 Peter: It's really not.

19:53 Rhiannon: No.

19:53 Peter: Although, this might be a good point to note that this is a seven to two decision.

20:00 Rhiannon: Yup.

20:00 Michael: [chuckle] Yes. Yes.

20:01 Peter: And we're gonna get into this in a minute, but...

20:01 Michael: Fuck all these people.

20:04 Peter: Breyer and Souter, two of these ostensibly liberal justices, are just outright terrible in criminal law cases, and this is a fucking great example.

20:13 Rhiannon: Yeah, and so Scalia pulls like another empty rhetorical little trick here, where he keeps saying that it can't possibly be required for police to arrest someone if they don't know where that person is, but that's not the question. The question isn't whether they have to arrest somebody, it's whether they have to take reasonable steps to arrest somebody.

20:35 Peter: Right, like the law says.

20:36 Rhiannon: Right. You can kind of argue about what that means in practice, and Scalia like kinda takes that argument up in the opinion, but it doesn't mean like going to dinner, it doesn't mean ending your shift and peacing out and not doing anything. So without going into every detail, a large part of the majority opinion here, or a large part of Scalia's treatment is predicated upon the obviously false premise that the police obligation in question is to arrest the person rather than doing what the law says, which is take reasonable steps to arrest a person.

21:11 Michael: Yeah, like maybe go to the fucking amusement park...

21:14 Rhiannon: Exactly.

21:14 Michael: That he said he was at.

21:14 Rhiannon: Just see if his car is there, like that's, you know.

21:17 Michael: Yeah and it's... This is... Underlying all this is the fact that like look, even if you grant that there's a history of police discretion, like the entire fucking purpose of this statute is to eliminate that discretion to help combat violence against women and children. Right?

21:37 Rhiannon: Exactly.

21:38 Michael: The reason this movement is happening in the '80s and '90s is not because domestic violence just appeared in 1978. It's been on for a while, the problem that's trying to be addressed here is that there's been no redress for victim of domestic violence up to this point, because cops don't take them seriously, those claims.

21:57 Rhiannon: Exactly.

22:00 Peter: And there's something so obscene here because Scalia ignores the text, which he usually focuses on, and then he also ignores the intent of the law, so what else? If you want to change the law, are you supposed to do? You write the law that you have to reinforce restraining orders, you are doing it explicitly for that purpose, and the Court still says, "Well no, that's not how we're gonna interpret it, because you used to not have to do this." And it's such an important point because reactionaries on the court use history as a weapon.

22:32 Rhiannon: Yes.

22:33 Peter: And progressives are generally speaking, fighting against norms and traditions that they believe are inequitable, and the conservative position is not just that those norms and traditions are valuable, but that there is wisdom in tradition itself, and that wisdom is carried down through generations, and it manifests itself in modern norms. And this comes up in other context, Scalia has often argued, or I shouldn't say has often argued, often argued...

23:00 Rhiannon: 'Cause he did.

[laughter]

23:04 Peter: Scalia often argued that gay rights are not constitutionally protectable because there's a long history of people disliking gay people in the United States. That with the fundamental argument under the 14th Amendment that he made, and here you have him saying that the long tradition of police doing whatever the fuck they want is so important that it outweighs the clear language and intent of a law, and as absurd and detached from history as it sounds, reactionaries in many ways believe that change itself is fundamentally dangerous.

23:35 Rhiannon: Yeah, that's absolutely right. They'll weaponized history in a very specific and intentional way. So just like when they're using legal rhetoric in a specific way, they're gonna use history in a way where there's a completely opposite argument for how history could be weaponized here to come out with the exact opposite result. But here, Scalia acts like, "Oh, you just look at history. And the result is obvious," but actually he's making a choice, he's choosing to see history as the one where police are given broad discretion, and so we shouldn't stray from that, but he's choosing not to think critically about the long history of women and children getting murdered by men, and the Colorado legislature trying to do something about that. But I guess the women and children murder is too important a tradition to Scalia to let go, I guess.

24:27 Peter: A long history of letting insane husbands rule over their family with the threat of violence. I mean that's...

24:33 Rhiannon: Exactly.

24:34 Peter: What the actual history in play.

24:35 Rhiannon: Right, right.

24:36 Peter: And I mean, we have, during various episodes of this podcast, talked about the use by the judges of doctrines and norms of statutory interpretation or constitutional interpretation, and why they're not real or why we don't believe they should be regarded as being useful. And this is a great example, because Scalia is the textual-ism guy. He is a guy who really took statutory interpretation and turned it into a methodical process where you look at the text first rather than the intent of the legislatures first. And he is completely ignoring it here for an incredibly hollow reason, and when a case like this drops it should be the fucking end of the discussion with respect to this man's intellectual integrity or consistency. And it just gets glossed over and it's so fucking frustrating to read this sort of thing, and when your law professor is teaching a class another case, they'll be like, "Well, Scalia's the textual-ist guy right?" And no, he's not, he just finds it useful in many of his cases, and he'll discard it when it's not.

25:46 Rhiannon: Yeah.

25:47 Michael: In preparation for this case, I busted out my old legislation and regulation textbook, 'cause it's got a nice appendix where it's got all the rules of interpretation, statutory interpretation, and I was looking for one, but I found this other that I didn't even know I was in here, but this is a textual rule, a grammar and syntax rules, so this is like right in Scalia's wheel house. May, the word "May" is usually precatory and connotes decision-making discretion, while "shall" is usually mandatory and suggests less discretion.

[laughter]

26:22 Michael: The question at the heart of this case was whether the word of "shall" granted police discretion.

26:30 Peter: Right.

26:30 Rhiannon: Right.

26:32 Michael: And the dictionary, which Scalia loves, and the rules of statutory interpretation, that Scalia loves, I'll say that actually the word "shall" suggests no discretion, and Scalia says, "Well, that's not really what I think though."

26:43 Rhiannon: So I read this case in law school, twice actually for two classes. I read it for 14th Amendment and I read it for Civil Rights Litigation, and the way that it's taught, is just like, "This is or is not a procedural due process right. Here's the argument for why. That's the rule."

27:04 Michael: Right.

27:05 Rhiannon: There's no question of, "Wait a second, but isn't this completely anathema to what Scalia is known for, to what he says he's doing when he's interpreting legislation?" There's no critical treatment of it when we're discussing the case to fucking future lawyers and future judges.

27:20 Peter: Scalia makes another point, which I just wanna bring up quickly. It's a very technical point, but it's so stupid that I have to address it. He says that it's unclear whether the restraining order is a "property interest under the 14th Amendment, because most property interests have a readily ascertainable monetary value and this doesn't." And he doesn't really explain what he means by this, but this does have a readily ascertainable value. The value of a restraining order is roughly what it would cost you to hire a private company to enforce it, right? First of all, it's a real thing you can do.

27:50 Michael: Right.

27:54 Peter: Second of all, it's a real value. You can't just look at something like this, which is essentially a contract between this woman and the State and say, "Well, there's no way to put a price tag on that."

28:05 Rhiannon: Right.

28:05 Peter: It's such a shallow, needless argument that he obviously gave very little thought to. It's less important than the point about police discretion, but it just goes to how fucking little he cares about this shit, when it comes to reaching the conclusion he wants to reach.

28:21 Rhiannon: Yeah, and how results-oriented it is, right? He has the conclusion first and is going to fashion whatever ridiculous legal argument for getting there.

28:31 Peter: Right.

28:32 Michael: It's also lovely, because early in the opinion, he quotes the dissent saying, "Look, the way the majority is coming out with this, is gonna render domestic abuse restraining orders utterly valueless," and he says, "That's hyperbole," calling this valueless is hyperbole."

28:47 Peter: Right, right.

28:48 Michael: But then he goes to great lengths to argue that. Well, it has no monetary value and it doesn't actually confer any meaningful rights on you, and you don't have any enforceable actions you can take against the police, but [chuckle] calling it valueless, that's ridiculous.

29:06 Peter: Right.

29:07 Rhiannon: That's a really good point, Michael.

29:07 Michael: Nothing or next to nothing from it, but...

29:09 Rhiannon: Yeah.

29:09 Peter: Right, right.

29:10 Michael: But it's certainly not valueless.

29:12 Peter: Well, another thing we should talk about is that, conservatives love to talk about judicial restraint. But here was a great opportunity for them to make a very narrow holding, stating that, look, cops don't have to drop everything to enforce a restraining order, but this situation that played out right here is unconstitutional. It's below par.

29:30 Michael: It's too much.

29:30 Peter: Right, it's...

29:31 Rhiannon: Exactly.

29:31 Peter: It's just a little too much of a failure. You can't go to dinner when someone is telling you that their kids were fucking kidnapped by their lunatic husband.

29:40 Rhiannon: Right.

29:40 Michael: In violation of a restraining order.

29:42 Peter: Right.

29:43 Rhiannon: Right.

29:43 Michael: Right, right.

29:43 Rhiannon: Exactly.

29:43 Peter: And you could have said, "Look, it's limited to these facts. This isn't gonna apply to every restraining order," right? But the Court doesn't do that. The Court goes out of its way to say, "Look, cops don't owe you shit. [chuckle] I don't care if you got a contract with them or whatever. I don't care if you have a state ordered fucking piece of paper that says that they have to do this, they still don't." The Court goes out of its way to say that.

30:08 Rhiannon: Yeah.

30:08 Michael: Yeah.

30:08 Rhiannon: Yeah. When I'm thinking about questions, I guess, of judicial restraint, I always like to look back at what it is the plaintiff was actually asking for and it's usually something really fucking reasonable, and you gotta ask like, "What is the harm in finding for her?"

30:23 Peter: Yeah.

30:24 Rhiannon: Like here, the complaint alleges, "Look, I believe I have this constitutional right. I was entitled to this benefit of enforcement of this restraining order. I didn't get it and so I would like to be able to sue." And the complaint says that like, "Once I'm able to sue, what I'll be able to show is that the city, the police actions were 'taken either willfully, recklessly or with such gross negligence as to indicate wanton disregard and deliberate indifference to her civil rights.'" That's it, it's just that they're indifferent. If you rule in her favor, what is the big slippery slope problem?

31:01 Michael: Right.

31:02 Rhiannon: She's not saying anybody should go to prison. She's not saying abolish the police. She's not saying arrest and kill every man. She's saying, "As to my case, these police officers were indifferent and now my fucking kids are dead and maybe you all should pay me."

31:17 Michael: Imagine if you made cops do their fucking job though.

31:21 Peter: Right.

31:23 Rhiannon: Right.

31:23 Peter: I mean that really is...

31:23 Michael: If people could sue, if they didn't do their job?

31:26 Rhiannon: Right.

31:26 Peter: That really, I think any step towards accountability and potential legal liability for police is just a step too far. They will not go down that path even a little bit and it doesn't matter how far you are from that slippery slope.

31:41 Rhiannon: Yeah.

31:42 Peter: They are constantly eyeing it and they'll just never turn down it, period.

31:45 Rhiannon: That's right, yeah.

31:46 Michael: Yeah, it's like the last few sentences of the opinion is him saying like, "We don't want the 14th Amendment to turn into a font of Tort law."

31:51 Peter: Right. [chuckle]

31:52 Michael: He doesn't want people suing under the 14th Amendment.

31:54 Peter: Right.

31:54 Rhiannon: Right.

31:55 Michael: It's like, the states can do this if they want. The states can create this right. Apparently, even when they do it though, if they're not like fucking screaming in all caps...

32:05 Peter: Although the language, "shall use every reasonable means to enforce this restraining order," is in all caps on the restraining order.

32:13 Rhiannon: Right.

[laughter]

32:18 Rhiannon: It's literally in all caps. Yes, that's right.

[laughter]

32:20 Peter: On the sort of same topic of judicial restraint, there's also a sort of, what I view as a minor point, which is that, the real question here is, does Colorado law entitle Jessica Gonzales to enforcement of the restraining order? And that, in a lot of ways, should be a question for the Colorado Supreme Court. State supreme courts are supposed to be the authority on the interpretation of Colorado law.

32:48 Rhiannon: Yeah.

32:48 Peter: Scalia brushes that aside and says, "Well yeah, but the real question is whether that right is a 14th Amendment protectable right."

32:57 Michael: Right.

32:57 Peter: And that sort of also dodges the point, which is that, you have to establish the right first and they could have certified that narrow question to the Colorado Supreme Court.

33:04 Michael: Right. Yeah, there's this...

33:06 Peter: This is sort of like a technical bullshit that we don't care about too much, but it's worth noting for a couple of reasons. One is that again, they will weaponize these doctrines at their whim and then disregard the method in them.

33:20 Rhiannon: Exactly.

33:21 Peter: The other, is that the dissent leads with it, as if that's like the most important point here, like, "Oh, we should really defer to Colorado on this issue."

33:31 Michael: Okay, got you guys.

33:31 Peter: Right.

33:31 Rhiannon: Right.

33:31 Peter: Like, thanks dude, you really fucking bodied them with this one Stevens. This fucking woman's children are lying dead and he's like, "What does Colorado have to say about it?"

33:40 Rhiannon: Right.

33:41 Michael: Scalia's got an answer to it. That like, it is good enough. It's persuasive enough. He's like, "Stevens, you fucking asked their counsel this at oral argument," and they were like, "No, we want the Supreme Court to take it."

33:55 Peter: Right, right.

33:55 Michael: If the party turned you down on it, look, maybe you're right, maybe this is the prudent and proper way to handle it, but fucking [chuckle] where are your priorities?

34:05 Rhiannon: Right.

34:06 Peter: It's just more of the liberals trying to get them on fucking technicalities...

34:10 Rhiannon: Exactly.

34:12 Michael: Right.

34:12 Peter: Rather than attacking the heart of the argument. And the heart of the issue here is that Scalia is fucking ignoring the text of this law.

34:21 Michael: Right.

34:21 Peter: And ignoring the intent of the people who passed the law just to fucking manufacture a mechanism for cops to avoid any responsibility and...

34:27 Rhiannon: Yeah.

34:28 Peter: No, he doesn't call it out as such, even a little bit.

34:30 Michael: There are a number of different schools of thought on interpreting statutes, right? There's not just one or two, but there are two broader types and there's the text first and there's the purpose first, right?

34:45 Peter: Right.

34:46 Rhiannon: Yeah.

34:46 Michael: Whether you're formalist or textualist or new-textualist or an intentionalist or purposivist or whatever, it doesn't really matter. The main point is that Scalia is ignoring the text, but he's also ignoring the purpose. He's like ignoring both.

35:00 Rhiannon: Right.

35:00 Michael: Those are like your two load-stars. It's like one or the other.

35:04 Peter: Right.

35:05 Michael: You don't get to be like, "Whatever is in my fucking heart, whatever I believe."

[chuckle]

35:08 Rhiannon: Right, right.

35:08 Michael: It's not one of the options for you.

35:10 Peter: Right. Goddammit. This one gets to me, it is really genuinely shocking even as people who are going through shitty Supreme Court decisions one after another, for this fucking podcast, to realize that this was a 7-2 decision.

35:26 Rhiannon: Yeah.

35:27 Peter: It's just, it will break your fucking brain. It's emblematic of so many simultaneous problems with the Court that it's really hard for you to capture it.

35:34 Rhiannon: Right.

35:34 Michael: Like Souter writes a concurrence and the second sentence in it, I think is really good, 'cause it accurately sort of describes what's going on in the majority opinion but it's just so perfect. He says, "The Court emphasizes the traditional public focus of law enforcement as a reason to doubt that these particular legal requirements to provide police services, however unconditional their form, presuppose enforceable individual rights to a certain level of police protection." And so what he's saying is cops always do public services. So, we shouldn't read too much to the fact that a law about cops is asking them to do public services, and maybe in some abstract sense that sounds right, but what the fuck is an order of protection? That's literally what these are called, orders of protection...

36:22 Rhiannon: Right.

36:24 Michael: If not something, that includes an individual right to a certain level of police protection.

36:30 Peter: Right. If it's not that then what does it do?

36:32 Rhiannon: Right.

36:32 Michael: Yeah.

36:33 Rhiannon: Then what's the point?

36:34 Peter: The bottom line is they think it's a suggestion, right? Like there's no other way to read it other than they're like, "Yeah, a restraining order, that's a thing that cops get, so that they know, that they wanna do this, they could."

36:45 Rhiannon: Yeah.

36:45 Michael: Right.

36:45 Peter: It's just an optional thing that's presented to them and no matter what the circumstance is, that is obscene. That's so fuckin offensive.

36:53 Michael: The entire opinion is written from the frame that the purpose of this law was to empower police officers.

37:00 Rhiannon: Right.

37:00 Michael: That's their built-in assumption that they don't state, but that is lurking in every little piece of logic in this, is that cops have discretion and statutes that pertain to them are about empowering them to use their discretion. But, this law was passed precisely because cops were not using their discretion appropriately in the domestic violence context. So, it's backwards. The history is bad, in order to read the text bad. Everything is bad. It's just fucking awful in order to leave this woman with nothing, whose kids were taken from her.

37:33 Peter: Right.

37:35 Rhiannon: Yeah, exactly. I think it's related, in the episode that we did on Terry v. Ohio, the stop-and-frisk. Peter, you talked about how police say there's a cost to doing their work, that they're always in danger and in order to do their work, basically what they're saying is we have to transfer the potential for danger and violence to the community onto all of us. And in Terry, the Court doesn't weigh the cost of doing that. What is the cost of letting police do whatever they want while the rest of us have weaker constitutional protections? But here I think the Court almost does do explicitly that kind of weighing. The Court says here, that the police should be able to sit on their asses and do nothing if they want to and the cost of that is dead children, and that's worth it, to let the police sit on their asses, if that's what the police want to do.

38:29 Peter: Right. I mean, actually, one wild thing about this is that, both the majority and the dissent say, "Look, these facts are terrible, but the real question doesn't need to address the facts." And it's like, no, actually, I think you do.

38:40 Rhiannon: Yeah, right.

38:40 Peter: I think you need to address the fact that this rule that you've just handed down can result in zero police liability for their unbelievable gross negligence that resulted in the murder of three children. It's not a separate fucking question.

38:55 Michael: No.

38:55 Peter: And the fact that they have managed to reduce it to this incredibly technical sounding concept, which I don't actually think it's that technical, at the end of the day. The real issue is, is this woman entitled to some level of enforcement of this restraining order?

39:08 Rhiannon: Exactly.

39:08 Peter: And they keep making it seem technical by being like, "Well, is it really a property interest? I don't know." And it's important to think about what the 14th Amendment actually says, which is that the state cannot deprive a person of life, liberty, or property without due process of law. That's all it says, and all this technical discussion about property interests are just the framework the Court chooses to use. It could, if the political will were there, choose another framework and...

39:37 Rhiannon: Yes.

39:38 Michael: Yeah.

39:38 Peter: When a restraining order is issued, that means the state has agreed to enforce it, in my view. I don't think that's a weird thing to think.

39:44 Rhiannon: Right.

39:46 Peter: It is not absurd at all to think that the 14th Amendment places an obligation on the state to enforce the restraining order to protect the life, liberty and property of people like Jessica Gonzales and her children. And it seems sort of on its face, like a colorable argument and the Court has twisted itself into this bizarre framework. And it's like Jesus Christ, like rest in peace to those kids, burn in hell, Antonin Scalia, you fucking piece of shit.

40:15 Michael: I mean like the type of fucking pretzels he ties himself into at some point is, he talks about how it's ridiculous to imagine that this has created some special class of protected citizens. Again, how could a fucking order of protection do anything but create a class of protected citizens?

40:38 Peter: Right.

40:38 Michael: What else could it possibly be?

40:39 Rhiannon: Right, exactly.

40:41 Michael: What could it mean? And he could, he says, "Okay look, although Colorado's statute does speak of protected persons [chuckle] such as Jessica Gonzales, it does in a different context with different things, and so, sure, maybe it does create a protected class, but not in this narrow. Not in this narrative."

41:00 Rhiannon: He's so dumb. Can you imagine clerking for him? Like, I just...

41:05 Michael: You have to be a real piece of shit.

41:07 Rhiannon: Yeah, I mean you would be a piece of shit for sure. So, probably...

41:10 Peter: I would have turned it down for sure and I bet I would've... My grades would have totally gotten me there.

41:13 Rhiannon: Yeah.

[laughter]

41:15 Rhiannon: Yeah, Peter conscientiously objected to applying to be a Supreme Court justice.

41:20 Peter: I stayed out of the top 10% of my class just to avoid having to deal with the clerkship options.

41:25 Rhiannon: Right.

41:26 Peter: You know?

41:26 Rhiannon: Yeah, that's very honorable of you Peter.

[laughter]

41:29 Peter: Alright. So, I think one of the broad implications of this is like, what rights do you have to any police action on your behalf? If a state order saying that the police will keep your husband 100 feet away from you at all times and arrest him if he's not. If that is not an obligation the cops have to you, then what obligations do they have to you?

41:54 Rhiannon: Yeah.

41:56 Peter: And I think if we're looking within this 14th Amendment framework, I don't think that... If there's no obligation here, there's no obligation anywhere, under the 14th Amendment at least.

42:06 Rhiannon: Yeah, yeah. I think that's right. I think this case put the kibosh on these types of claims. So, you might have the question, "Okay. Well, do I have the right to police action when I call 911? Do I have the right for police to act... " In all these different ways? But this case makes particularly clear that under the 14th Amendment, those kinds of claims are not gonna fly. Now, I think that one space in where you see maybe some recognition legally, of an affirmative duty for officers or state actors to protect, is in prison cases, in prison civil rights cases. But the context of prison is totally different, that's where the state has taken literally a person's liberty, kind of like the ultimate mechanism by which discretion is removed. You've taken all discretion away from a person and therefore the state is sort of obligated to protect to a higher degree, than people on the outside.

43:03 Michael: It's like an indictment of, I don't know, how impoverished our 14th Amendment law is, that a woman losing her children to her abusive ex-husband, despite ample opportunity for the police to do something, with notice, with a restraining order, is not considered any sort of deprivation of life, liberty or of property at any point. Like, how narrow are we thinking of those three concepts to think that that hasn't really happened here?

43:34 Peter: Yeah, it feels like it just has to be a disregard for the lives of the impoverished, right? Like, justices feel like having an abusive ex-husband is a problem that people like them don't have. I don't see any other way to look at the approach here, other than they view this as so distant from their lives, that it just doesn't resonate with them at all.

44:00 Michael: Or if they did have an abusive ex or whatever, or a crazy ex or however the case may be, if they called the cops, in their neighborhood, once the cops got through the gated security or whatever, they would take it very seriously, right? No, that's not a thing.

44:15 Peter: Right, right.

44:16 Rhiannon: Yeah.

44:16 Peter: "Are you okay, Mr. Scalia? Please... "

[laughter]

44:18 Peter: Here's a glass of water. We've got you a giant bowl of Bolognese. Please just spoon it into your mouth while you wait for us to come and bring this to a resolution."

[laughter]

44:30 Peter: So there's a weird thing here, where I'm sort of surprised. Ginsburg didn't write a dissent.

44:35 Rhiannon: Yeah, yeah.

44:37 Peter: She usually hits in these sort of settings where the rights of women are particularly implicated. And she doesn't. I'm not sure why. I don't have any real insight into it. It could simply be that she thinks on the legal merits, that Stevens' point is the point that needs to be made. It could be that there's a class issue at play where she really doesn't relate to this as a gender issue, and it could be simply that she thinks that writing an opinion, like that's not productive and it's just gonna have her be dismissed as being shrill or whatever. There could have been an dissenting opinion here that was like, "Hey, you know, the vast majority of the victims of domestic violence are women. The vast majority of the perpetrators of domestic violence are men. Vast majority of cops are men," and made this very gendered, because it is very gendered. But she didn't wanna do it for one reason or another.

45:33 Michael: It can't be emphasized enough how fucking weak this dissent is. You shouldn't be able to read through a single paragraph of this without hearing Stevens call out Scalia's bullshit. Stevens does the textual analysis that Scalia does not. A standard textual technique is to look at other parts of the act and see how they use similar language and handle similar situations, and he says like, "Look, there are other parts of the statute where they're able to afford police discretion clearly." And so the fact that they didn't use that language here, they used more mandatory sounding language is clearly a purposeful choice. That's a normal technique of textualism and Stevens could and should be saying... Citing to Scalia opinions on this point, right? Like, "As Justice Scalia has said," and he should be saying shit like, "Another example of Justice Scalia's fair weather appreciation of the primacy of the text..."

46:35 Rhiannon: Yeah. Hypocrisy, right.

46:35 Michael: You should be calling him a fucking hypocrite. You should be calling him out for being intellectually shallow. You lost this fight, it's 7-2. Your dissent is not gonna do anything. All you can accomplish with this is de-legitimize the majority. And you have a great opportunity. This is a fucking meatball down the middle of the plate. You should kill this.

46:58 Peter: Yeah. It's because he's acting like he's arguing against an idea and not a person. And you need to be able to understand and present an argument that accepts that what you're arguing against is someone who has biases and ideology and preferences, political and otherwise, and make him confront his hypocrisy here. I'm not saying it would change Scalia's opinion. I doubt it would, but make him look at it and make him address it and make readers of the opinion of your dissent aware of it. And he doesn't do it, he acts like the ideas just float out of Scalia's mind free form and not like they're being presented by an insanely ideological person.

47:40 Rhiannon: Right, exactly.

47:41 Peter: We obviously make a lot of jokes in this podcast, and it's a big part of it, but we want, especially in this case, to sort of center the very human experience of Jessica Gonzales.

47:53 Rhiannon: Yeah, like I said at the top, I really wanted to be able to treat Jessica Gonzales and her children in this episode with care. And when you look up Jessica Gonzales actually, she's dedicated her life since this case to pursuing a lot of reform to protect survivors of domestic violence and police reform and that kind of thing. And so I think we can wrap this episode up actually by highlighting some of Jessica Gonzales's words. So in an interview, she was asked why she fought this case all the way to the Supreme Court, and she said this, "Because I wanna make sure that no parent ever has to go through the pain that I went through. I wanna make sure that police are ultimately accountable for doing their jobs. We rely on the courts and the police for protection against violence. A restraining order is the only legal alternative offered for protection against domestic violence. Supposedly police function is to serve and protect. If the law's claimed purpose to protect is a fraud, we should know that. If the police will take no action to enforce an order of protection, then women need to know this before we go through the process and make our stalker or abuser even angrier."

49:07 Peter: Amen.

[music]

49:15 Peter: Okay, so next episode is Kelo v. The City of New London, a case about eminent domain, the right of the government to seize your property and just give you the fucking middle finger about it, and a very unique case because we will be opposing the liberal majority.

49:35 Rhiannon: Yeah, they suck ass too.

49:37 Peter: We hate them all. It's a bad decision.

49:39 Michael: It's terrible.

49:40 Peter: And the liberals are bad, and we're smarter than them too.

49:42 Rhiannon: Yep.

49:42 Michael: That's right.

[chuckle]

49:45 Michael: 5-4 is presented by Westwood One and Prologue Projects. This episode was produced by Katia Kunkova with editorial oversight by Leon Neyfakh and Andrew Parsons. Our artwork is by Teddy Blanks at Chips and Wine and our theme song is by Spatial Relations.

[music]

50:06 Leon Neyfakh: From the Westwood One Podcast Network.