An Unsealed Brief, Ghost Guns, & Antitrust Law as Social Justice AI transcript and summary - episode of podcast Strict Scrutiny
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Episode: An Unsealed Brief, Ghost Guns, & Antitrust Law as Social Justice
Author: Crooked Media
Duration: 01:19:31
Episode Shownotes
Leah, Melissa, and Kate kick off with a look at Jack Smith’s unsealed brief on Trump’s election interference case before digging into some cases the court is hearing this week, including one centered around ghost guns–unserialized guns that can be put together from component parts. Then, Melissa and Leah speak
with Doha Mekki and Jonathan Kanter of the DOJ’s Antitrust Division about how antitrust law can be a vehicle for progressive social change.Listen back to our 2023 interview with one of Richard Glossip's lawyers Follow us on Instagram, Twitter, Threads, and Bluesky
Summary
In this episode of Strict Scrutiny, the hosts explore Jack Smith's unsealed brief on Trump's election interference, highlighting evidence suggesting Trump's disregard for the law and potential violence on January 6. The conversation shifts to the rise of ghost guns and regulatory challenges faced by the ATF. The discussion also covers antitrust law as a tool for progressive change, featuring insights on recent victories against monopolistic practices under the Biden administration. The episode concludes with insights into the intertwining of economic rights and social justice.
Go to PodExtra AI's episode page (An Unsealed Brief, Ghost Guns, & Antitrust Law as Social Justice) to play and view complete AI-processed content: summary, mindmap, topics, takeaways, transcript, keywords and highlights.
Full Transcript
00:00:02 Speaker_00
Mr. Chief Justice, please report. It's an old joke, but when a man argues against two beautiful ladies like this, they're going to have the last word. She spoke, not elegantly, but with unmistakable clarity. She said, I ask no favor for my sex.
00:00:25 Speaker_00
All I ask of our brethren is that they take their feet
00:00:44 Speaker_05
Hello, and welcome back to Strict Scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it. We're your hosts today. I'm Melissa Murray. I'm Leah Littman. And I'm Kate Shaw.
00:00:55 Speaker_08
And today, we're going to dive deeper into the cases the court will hear in the first sitting of this term. We will then have a court culture segment that will quickly cover some state court matters as well as one federal court case.
00:01:05 Speaker_08
And finally, we're going to bring you a conversation about recent and exciting developments in antitrust law with some very special guests.
00:01:12 Speaker_06
But before we get to that, we have a bit of breaking news to cover. Judge Tanya Chetkin unsealed special counsel Jack Smith's brief outlining whether Donald Trump is immune from prosecution in the election interference case.
00:01:24 Speaker_06
Essentially, this is the brief where Smith lays out evidence about how Trump attempted to subvert the election, evidence that Smith thinks he should be able to admit at trial because it's not barred by the Supreme Court's horrendous immunity decision.
00:01:36 Speaker_06
Yes, we are going to be dealing with the after effects of that clown show for a while.
00:01:41 Speaker_08
The brief is 165 pages, but do not be deterred by that length. It is an incredible and riveting read, both in general and in the individual state-level narratives that it unfolds.
00:01:52 Speaker_08
It opens with this line, quote, the defendant asserts that he is immune from prosecution for his criminal scheme to overturn the 2020 presidential election because, he claims, it entailed official conduct. Not so.
00:02:04 Speaker_08
Although the defendant was the incumbent president during the charge conspiracies, his scheme was fundamentally a private one.
00:02:10 Speaker_06
You can almost hear the Chief Justice whining. You guys said you weren't going to fact check us. I think it sounds better in the original German. Let's have J.D. Vance say it. Why don't we hear it from the mouth of one J.D. Vance slash in German.
00:02:25 Speaker_07
Thank you, Governor. And just to clarify for our viewers, Springfield, Ohio does have a large number of Haitian migrants who have legal status, temporary protected.
00:02:35 Speaker_01
Well mark mara, but thank you senator. We have so much to get to margaret I think it's important because we're gonna turn out of the economy.
00:02:41 Speaker_05
Thank you margaret the the rules were that you guys want to get a fact check And listeners while we thought we had basically heard it all regarding the oval office shenanigans that took place on january 6th 2021 This brief may actually spill some new tea So let's briefly run through some of the new evidence that jack smith presents uh before sharing our reactions.
00:03:03 Speaker_05
So One new tidbit is that Donald Trump told his vice president, Mike Pence, that Pence was, quote-unquote, too honest, just doing the law. Okay.
00:03:15 Speaker_05
Another bit of new tea is about a conspirator who gleefully endorsed inducing a riot in order to stop the counting of the votes at the TCF Center in Detroit, Michigan. So according to the brief, a colleague told this conspirator, quote,
00:03:32 Speaker_05
Uh, look, if you instigate this, you'll be starting something like the Brooks Brothers Riot.
00:03:37 Speaker_05
And FYI, if you don't know what the Brooks Brothers Riot is, it refers to a violent demonstration led by Republican staffers, hence the Brooks Brothers moniker, on November 22nd of 2000.
00:03:47 Speaker_05
That was during the recount of the votes cast in the 2000 presidential election. The goal of the Brooks Brothers Riot, which, incidentally, Roger Stone continues to take credit for, was to shut down the recount and, in fact, It actually worked.
00:04:02 Speaker_05
The officials came in after those acts of violence and those demonstrations to shut down the recount early.
00:04:09 Speaker_05
In any event, when this conspirator was warned that he might be instigating something akin to the Brooks Brothers riot of 2000 in real time at the TCF Center, this conspirator seemed remarkably unmoved, responding only, quote, make them riot, end quote.
00:04:28 Speaker_05
That's like a Marvel villain. I know.
00:04:31 Speaker_08
There's a lot of cartoonish villainy on the pages of this filing. Here's another example.
00:04:35 Speaker_08
So another nugget from the brief is that after an aide told Trump that Pence had been forced to leave the Capitol because of threats and concerns that his life was in danger, Trump allegedly responded, quote, so what? I mean, real villain shit there.
00:04:50 Speaker_08
And this also serves as a reminder of the hugely important context of the discussion at last week's VP debate about why exactly Mike Pence was not on the stage and is in fact not running on the ticket with Donald Trump.
00:05:04 Speaker_06
The brief boss was fundamentally agnostic about whether he was murdered, right? Yeah.
00:05:08 Speaker_08
So what? It turns out it's hard to come back from that. And in fact, they did not. Although, would Pence have run with him again if asked? Probably. Undoubtedly. Undoubtedly. I think you're probably right.
00:05:22 Speaker_08
The brief also details Trump's alleged decision to, quote, reinsert into his speech at the Ellipse on January 6th, remarks targeting Pence for his refusal to challenge certification, which again seems to suggest at a minimum that the president, the then president Trump, was agnostic about whether protesters were going to try to harm his vice president and indeed the real possibility that he made a decision to affirmatively instigate that.
00:05:47 Speaker_05
We also learned from the brief that when advisors told Trump that he wouldn't be able to substantiate his claims of voter fraud in a court of law, Trump simply replied, quote, the details don't matter, end quote. It's more about the vibes.
00:06:03 Speaker_05
I have concepts of evidence, but no real evidence. Concepts of evidence. We have vibes. Vibes. Vibes are off. Along similar lines, a co-conspirator said, quote, we don't have the evidence, but we have a lot of theories, end quote.
00:06:21 Speaker_05
Honestly, I think that's basically how the Supreme Court has been writing a lot of its decisions. We don't have the evidence, but we have a lot of theories. All of them are original.
00:06:30 Speaker_06
We have our talking points.
00:06:33 Speaker_05
Anyway, the SEDCO conspirator also seemed quite surprised when Republican legislators actually wanted evidence of the non-existent voter fraud, remarking, quote, man, I thought we were all Republicans, unquote.
00:06:49 Speaker_05
Like, that actually is my favorite line.
00:06:51 Speaker_06
I know.
00:06:52 Speaker_08
It's like, what's a little evidence among Republicans? Yeah. And there's a version of that in the Arizona narrative and the Michigan narrative. It's like, he's saying this to everyone. Party over evidence. Thankfully, it doesn't fly with any of them.
00:07:12 Speaker_08
evidence over party.
00:07:14 Speaker_06
So there's also a ton of details about Pence trying to flatter and puff up Trump so that Trump would accept the results of the election.
00:07:24 Speaker_05
This is Mike Pence basically trying to Kris Jenner, the former guy into accepting the results of the election. Like, you're doing great, sweetie. You lost this time, but there's always 2024. Don't worry, it's going to be fine.
00:07:41 Speaker_05
And the former guy is having none of this, like ugly tears, Kim Kardashian crying.
00:07:47 Speaker_08
Sadly, there are no ugly tears in this file. There are no ugly tears.
00:07:50 Speaker_05
I wish there were Kim Kardashian sad tears.
00:07:53 Speaker_06
And of course, while they seem vaguely aware of Stringer Bell's sage advice not to take notes on a motherfucking criminal conspiracy, they were incapable of actually following that advice.
00:08:05 Speaker_06
So one conspirator texted another, quote, careful with your texts on text groups. no reason to text things about electors to anyone but this other person and me, end quote.
00:08:15 Speaker_06
All the while like furiously texting about the fake electors and fraudulently electors. Like on the cusp of a revelation, just so blew. Slim Charles would never, Slim Charles would never, never.
00:08:28 Speaker_06
One of my personal favorites, because it concerns my home state, is that while Trump was talking with a Republican state legislator from Michigan about, you know, having lost the election, the state legislator told him, quote, Trump had underperformed with educated females, end quote, which is why he lost the state.
00:08:46 Speaker_06
I want, like, educated females against Trump, you know, as some sort of- The new blue wall, literally, is educated females.
00:08:54 Speaker_05
Oh, love it. Underperforming is kind of an understatement, I think, at least with this group of educated females.
00:09:02 Speaker_06
Sir, they found you repulsive. Like, they were literally, yeah.
00:09:06 Speaker_08
Sir. Yes.
00:09:09 Speaker_08
So look, I mean, the thing is, all of this appears in the brief, but it should have already been presented at a trial where a jury of Trump's peers would have been able to determine whether Trump unlawfully conspired to interfere with the 2020 presidential election in violation of multiple federal criminal laws.
00:09:27 Speaker_08
Instead, thanks to the Supreme Court and its abominable immunity decision from July 1st, all we get for now is this lengthy legal document.
00:09:36 Speaker_06
Yeah, a note about the timing and then generation of this document. Some people are calling this an October surprise, but it's not a surprise. This happened and it happened now because of the Supreme Court.
00:09:47 Speaker_06
It's because of the court's outlandish immunity decision and because of the court's slow walking this case unjustifiably that this brief gets unsealed now, a month before the election, and while early voting is already underway in some places.
00:10:01 Speaker_06
But John Roberts had so deluded himself
00:10:04 Speaker_06
aided by Brett Kavanaugh and Neil Gorsuch that his immunity ruling was going to soar above politics, he couldn't grasp the possibility that maybe what the American people deserved is a trial on these extremely serious charges about whether a candidate for president attempted to abuse the powers of the presidency to stay in power despite losing the election.
00:10:23 Speaker_06
And instead, what he forced to happen is a federal employee writing 165 page document about whether Donald Trump threatening people over Twitter constituted an official act. Like, that's what this great immunity opinion got us.
00:10:39 Speaker_06
And, you know, we all saw the defining moment in the vice president debate where JD Vance, again, refused to admit Trump had lost the election.
00:10:47 Speaker_02
Tim, I'm focused on the future. Did Kamala Harris censor Americans from speaking their mind in the wake of the 2020 COVID situation? That is a damning non-answer. It's a damning non-answer for you to not talk about censorship.
00:11:01 Speaker_02
Obviously, Donald Trump and I think that there were problems in 2020. We've talked about it. I'm happy to talk about it further.
00:11:07 Speaker_06
He is indicating if push comes to shove, he will do what Mike Pence wouldn't, you know, abuse the powers of his office to undemocratic ends.
00:11:16 Speaker_05
So if you take the time to read all 165 plus pages of this brief, you can go through the evidence that's presented because it really brings home just how galling it is that the court all but ensured that there would be no trial in these election interference charges before Americans had to go to the ballot box to decide whether or not Donald Trump should be reinstalled in the office he allegedly abused and misused in an effort to try and subvert democracy.
00:11:43 Speaker_05
But I think that's kind of par for the course with this court. A majority of these justices basically don't think that women should be allowed to make decisions about their own bodies.
00:11:53 Speaker_05
And they also apparently don't think that DC jurors should be allowed to make decisions about whether Donald Trump is an insurrectionist and a criminal. And that's basically the TLDR.
00:12:05 Speaker_05
So again, the fallout from the Supreme Court's disastrous lawless immunity vibe laden decision continues to hang over our heads and our democracy as we proceed into this new October term.
00:12:19 Speaker_05
So yes, that's right folks, we're going to do this all over again, have a whole new term full of new fuck shit and it's just gonna be great.
00:12:28 Speaker_08
I mean, I would love to say nowhere to go but up but. I can't.
00:12:30 Speaker_05
No, Kate. That's your optimism again.
00:12:34 Speaker_08
I'm stopping myself this time. Thank you. But to pivot to what we know is on the docket for the October sitting, it's a pretty light sitting. Neither the October nor November calendar is chock full of blockbusters.
00:12:46 Speaker_08
But we're going to highlight in depth today two cases the court will hear during this first week of the October sitting. And then we will briefly note the other cases the court will hear this week.
00:12:55 Speaker_08
And let's start with Garland versus Vanderstock, which is a case we mentioned last week about ghost guns.
00:13:00 Speaker_05
Well folks, if you like Cargill, you'll love Garland vs. Winterstock. Our listeners, probably not. No. I mean, I was trying.
00:13:10 Speaker_05
This is a challenge to the 2022 ATF regulation of ghost guns, that is, guns that can be privately assembled from component parts and that are unserialized.
00:13:21 Speaker_05
The relevant statutory scheme here is the 1968 Gun Control Act, which regulates firearms, which the statute defines to include, quote, any weapon which will or is designed to or may readily be converted to expel a projectile by the action of an explosive, end quote, as well as, quote, the frame or receiver
00:13:39 Speaker_05
of any such weapon. That part's important.
00:13:41 Speaker_05
When ghost guns first cropped up, ghost gun parts and kits were basically being able to be purchased online without any vetting, without background checks, without any of the restrictions that are typically required for firearms under the Act.
00:13:54 Speaker_05
And that meant that individuals who are otherwise prohibited from purchasing firearms because they were minors or because they were subject to domestic violence restraining orders
00:14:03 Speaker_05
could instead just go to the internet, purchase a ghost gun kit and ghost gun parts, and quickly and easily assemble them into firearms, evading the statutory scheme.
00:14:14 Speaker_06
And in 2022, ATF sought to close this loophole by issuing a regulation clarifying that certain products that can readily be converted into an operational firearm or a functional frame or receiver fall within the scope of the Gun Control Act.
00:14:27 Speaker_06
And under the new regulation, ghost guns are subject to the same restrictions as traditional already assembled firearms.
00:14:34 Speaker_06
Basically, that means instead of being able to purchase a ghost gun kit without a background check or other vetting, individuals have to go through the same regulatory procedures that are in place for already assembled firearms.
00:14:44 Speaker_06
As the federal government notes in its brief, Polymer 80, one of the parties to this case, sold a buy-build-shoot kit that allowed a purchaser to assemble a fully functional Glock variant semi-automatic pistol in as little as 21 minutes.
00:15:00 Speaker_06
It's basically like Legos for serial killers. Right.
00:15:05 Speaker_06
And companies basically marketed them that way, you know, marketed, quote, partially complete or unassembled frames or receivers that can, quote, readily be completed or assembled to a functional state, you know, by removing a few temporary plastic rails, which, again, could take minutes.
00:15:21 Speaker_08
So all this to say the ATF was trying to address a major regulatory issue. Ghost guns were on the rise. They were difficult to trace because they weren't subject to the same checks as traditional firearms.
00:15:31 Speaker_08
In 2017, law enforcement agencies submitted roughly 1,600 ghost guns to ATF. So this is guns they've, you know, recovered at a crime scene, given them over to ATF for tracing. By 2021, that number was more than 19,000.
00:15:42 Speaker_08
So an increase of more than 1,000% in just four years. And again, ATF can't really trace these guns because of the lack of serial numbers and transfer records for ghost guns.
00:15:54 Speaker_08
So of the 45,240 un-serialized firearms submitted for tracing between 2016 and 2021, ATF was able to complete only 445 traces to individual purchasers, which is less than 1%.
00:16:08 Speaker_05
And because of the regulatory pressure from the 2022 ATF rule, as well as litigation challenging the ghost gun purveyors, Polymer 80 actually shut down. Like there's no market for this once the regulations kick in and they're forced to shut down.
00:16:23 Speaker_05
Though, of course, it's worth noting that depending on what happens in this case, It could very easily get up and running again. And maybe they have an emotional support billionaire who could just help them out in this instance.
00:16:37 Speaker_05
In any event, the ghost guns at issue in this case have been involved in numerous gun deaths and shooting. Again, this is part of what spurred the need for regulation.
00:16:47 Speaker_05
Everytown for Gun Support's Safety Fund has issued a report that details many of these cases, and The Washington Post recently reported on cases that specifically involve teenagers.
00:16:57 Speaker_05
Again, the point here is that teenagers cannot buy guns because they're minors under the ordinary regulatory scheme, but they can get ghost gun kits and parts online, and they can separately assemble them into firearms, avoiding the whole regulatory apparatus.
00:17:13 Speaker_08
So this case that the court will hear this week has some pretty notable procedural history that we wanted to walk through. The initial challenge was filed in a Texas district court, because of course it was.
00:17:22 Speaker_08
And the district court issued a nationwide injunction invalidating the ATF rule in its entirety. Again, of course it was. Because of course it did.
00:17:29 Speaker_08
The judge in that case was Judge Reed O'Connor, the guy who, I can't remember if this is originally your, Leah, or your Melissa's coinage, but Reed O'Connor, just this tells you everything you need to know about him, basically walked so Matthew Kaczmarek could run.
00:17:42 Speaker_08
He's that guy. He's a Bush 2 appointee. He's the one who declared the Indian Child Welfare Act unconstitutional. He tried to declare the entire Affordable Care Act unenforceable.
00:17:51 Speaker_08
He's the judge that attempted to enjoin the Pentagon from enforcing a COVID-19 vaccination requirement for Navy SEALs.
00:17:58 Speaker_08
He was just an enormous thorn in the side of the Obama administration and Kaczmarek has essentially assumed that function, but O'Connor's not out of the game yet in 2024. He's still at it.
00:18:10 Speaker_06
Nobody puts baby in a corner. So that's the guy who enjoyed ATF's efforts to regulate ghost guns. The Fifth Circuit stayed the injunction as to the portions of the rule that the challengers hadn't challenged.
00:18:24 Speaker_06
Yes, Judge O'Connor had enjoined portions of the rule that hadn't been challenged because of course he did. And then the Supreme Court stayed the decision entirely, which allowed the regulation to go into effect while the case was pending.
00:18:36 Speaker_06
Then the Fifth Circuit came back and was like, let's try this one again, and tried to reinstate the injunction as to the challengers in the case. The Supreme Court once again stayed that. So again, this regulation is in effect.
00:18:48 Speaker_06
We should say the stays were 5-4 votes at the Supreme Court with the three horsemen, Thomas Alito and Gorsuch, and the court's gun control wingnut, Brett Kavanaugh.
00:18:58 Speaker_06
saying they would have left in place the district court's nationwide injunction invalidating the ghost gun regulation. And the fact that this regulation has been in effect, as we noted last week, allows us to see that it's actually quite significant.
00:19:10 Speaker_06
It has shut down some ghost gun manufacturers, dramatically reduced the number of ghost guns used in violent crime. So it's working.
00:19:18 Speaker_08
So the question in this case is whether the statute, that is the 1968 gun control law Melissa mentioned a few minutes ago, authorizes the ATF to regulate ghost guns in this way. So this is not a Second Amendment case per se.
00:19:29 Speaker_08
It's more like Garland versus Cargill, the bump stock case from last term. And that means it's about whether the statute, as written, allows ATF to regulate certain types of firearms.
00:19:39 Speaker_08
But I think it's fair to say that these guys ardor for the Second Amendment may have some impact on how they read the statutory language in this case, just as it did in Cargill.
00:19:48 Speaker_05
What Kate means is that we're likely in for another round of gun porn or alternatively the textualist case for unregulated deathly firearms. So that will be fun.
00:20:01 Speaker_05
Part of the issue in this case depends on whether the language frame or receiver that's referenced in the statutory definition of the term firearm has to be a complete or functional frame or receiver in order to qualify under the law.
00:20:15 Speaker_05
The rule interprets frame or receiver to include partially complete, disassembled, or non-functional frames and receivers that may be readily completed, assembled, restored, or otherwise converted to function. as frames or receivers.
00:20:28 Speaker_05
That's how they sweep in the ghost guns here. But the manufacturers argue that frame or receiver, as specified in the statute, defines only complete or functional frames or receivers, not the component parts that are used to assemble ghost guns.
00:20:46 Speaker_05
So parts as parts, basically, is what they're saying.
00:20:49 Speaker_06
I like the federal government's argument in its brief that, you know, when you go to IKEA, you're still buying furniture, even though it's not assembled. You know, we don't call that something else like schmurniture when it's not assembled.
00:21:01 Speaker_06
But another facet of the case turns on the fact that Congress defined firearm to include any weapon that, quote, may readily be converted to expel a projectile by the action of an explosive.
00:21:11 Speaker_06
And the rule says a weapons part kit that may readily be completed, assembled, restored, or otherwise converted to expel a projectile by the action of explosives is a firearm.
00:21:20 Speaker_06
And the challenger's primary argument seems to be that other provisions in gun control laws specifically regulate parts or combinations of parts.
00:21:27 Speaker_06
But at least me personally, I don't think that means the natural meaning of, quote, may readily be converted to expel a projectile should just be ignored or read out of the statute.
00:21:37 Speaker_05
Well, you're a feminist, Leah, so you don't count, so shut up.
00:21:42 Speaker_08
An educated female in the state of Michigan.
00:21:44 Speaker_05
Like I said, it sounds better in the original. Educated females aren't allowed to interpret statues. That's true.
00:21:51 Speaker_08
I mean, look, the language that you just read, Leah, to my mind is so clearly in the government's favor. Like, obviously these qualify, but if the text alone is not enough, the government notes, again, as it did in Cargill, without success,
00:22:05 Speaker_08
but I think it's important it was right there and I think it's really important here.
00:22:08 Speaker_08
Congress specifically included a bunch of anti-evasion or anti-circumvention provisions like these in the law, which indicated that Congress thought it was restricting efforts to work around the technical definitions
00:22:21 Speaker_08
by assembling firearms that do the same thing as the restricted firearms, like may readily be converted, obviously suggests that Congress wanted to capture things that would later emerge that would let people get guns they wanted regulated like the guns already in existence in 1968.
00:22:37 Speaker_08
So the government's reply brief explains, quote, respondents do not deny that their interpretation would allow more minors, felons, domestic abusers, and other prohibited persons to circumvent the act's core requirements by easily buying and quickly assembling firearms
00:22:50 Speaker_08
without serial numbers, records, or background checks. Indeed, respondents have, in fact, promoted their products by emphasizing that they are sold with no background checks.
00:22:59 Speaker_05
10 bucks, Sam Alito is going to write either a majority opinion or a concurrence. It's like, this is really on Congress. 10 bucks.
00:23:06 Speaker_06
Well, which disadvantaged group is Sam Alito going to insist that ghost guns help? Because remember last year in Cargill, he insisted that bump stocks were really designed to allow people with
00:23:17 Speaker_06
physical limitations to have the necessary experience of knowing what it feels like to fire a machine gun.
00:23:25 Speaker_08
Arthritis, I think, came up in the oral argument. That's who's really being targeted by these individuals who want to restrict bump stocks.
00:23:34 Speaker_06
He's going to say this regulation is unconstitutional under the 19th Amendment. We're like, educated women want this.
00:23:41 Speaker_05
Exactly. Anyway, as Kate said, this is not a Second Amendment case on its face. It's a statutory case, a regulatory case, if you will.
00:23:49 Speaker_05
But that didn't stop some of the amici, I'm looking at you, NRA, from gesturing toward the Second Amendment and explaining why the regulation should be invalidated.
00:24:01 Speaker_05
The NRA brief literally says, quote unquote, throughout American history, private gun making was not regulated, end quote. Stay tuned for that.
00:24:11 Speaker_05
It's going to be the big case, I think, this week and a big opportunity for this court to continue with its antipathy for regulation and its love of guns. Moving on to something else the court likes, the death penalty. Leah?
00:24:35 Speaker_06
Now we get to discuss Glossop versus Oklahoma.
00:24:38 Speaker_06
So we've talked about this case before, and we actually had one of Mr. Glossop's lawyers, John Mills from the public interest law firm Phillips Black, on the show previously to discuss Mr. Glossop's case at an earlier stage before the Supreme Court had granted review.
00:24:52 Speaker_06
It would be difficult, if not impossible, to cover all of the insanity and mishuganess that has gone into this case, but we're going to give you a snapshot of it.
00:25:02 Speaker_06
Briefly, Richard Glossop was convicted of the murder of Barry Van Treese based on the testimony of Justin Sneed, the person everyone agrees physically murdered Van Treese.
00:25:12 Speaker_06
After being questioned and coached, Sneed agreed to plead guilty and testify that Richard Glossop had planned the murder. And that agreement allowed Sneed to avoid the death penalty.
00:25:23 Speaker_08
So you did hear that right. The person who actually committed the murder was not sentenced to death. And there's no allegation that Glossop personally did any of this.
00:25:30 Speaker_08
And as we'll talk about, the evidence of Glossop's involvement at all is deeply, deeply sketchy.
00:25:34 Speaker_08
So almost 20 years after Mr. Glossop's conviction, the state disclosed files showing that the state knew but failed to disclose that Snead, who was addicted to methamphetamines and had an untreated bipolar disorder, had been prescribed lithium by a psychiatrist.
00:25:50 Speaker_08
And the combination of drugs and conditions would have cast doubt on Snead's perception and memory if it had been disclosed.
00:25:57 Speaker_08
It could also have bolstered the defense theory of the case, which is that Snead committed the murder impulsively without any involvement from Glossop, and that combination of drugs and conditions can contribute to impulsive, uncontrollable behavior.
00:26:09 Speaker_08
The state also allowed Snead to testify, falsely, that he had never seen a psychiatrist when in fact he had, and there was concededly zero forensic evidence linking Glossop to the murder. It's just Snead's testimony.
00:26:22 Speaker_05
At Glossop's second trial, the state said that he and Snead conspired to murder Van Treese for money, which they then split. And the prosecution to support that pointed to the fact that Glossop had over $1,000 on him when he was arrested.
00:26:36 Speaker_05
But there's evidence of a statement from a witness who told the police that the money actually came from Glossop selling his possessions.
00:26:44 Speaker_05
There's also evidence that the state coach Snead to account for the discrepancies in his case, including whether or not Snead used a knife.
00:26:53 Speaker_08
To editorialize for one minute, Glossop's case has been up and down a few times. The Supreme Court will talk in a minute about the lethal injection protocol challenge. But it was up as well in 2008, actually, when I was a law clerk there.
00:27:05 Speaker_08
And I have to say, I remember that the court, when I was there, called for the record in Glossop's case, which meant all the files from the Oklahoma courts came to the Supreme Court. And I remember reading it. It's odd that I remember.
00:27:17 Speaker_08
I remembered it so well that I just checked the docket to be sure I was right. And yeah, the court called for the record while I was a clerk there. Anyway, I remember just how serious the questions about the evidence against Glossop were back then.
00:27:29 Speaker_08
And the court didn't take the case then. But all this to say, there have been questions that have stalked this case from the beginning about Glossop's potential actual innocence.
00:27:38 Speaker_06
Right, because as you're alluding to, even before any of the evidence we were just recounting came to light, the Oklahoma legislature appointed an independent investigation commission that concluded Mr. Glossop's conviction should be set aside.
00:27:50 Speaker_06
Another independent investigation that the Oklahoma Attorney General commissioned agreed. It reached those conclusions on the ground that the state had destroyed critical physical evidence and suppressed other evidence.
00:28:00 Speaker_06
The police had not searched Sneed's room at the motel or questioned most of the motel guests and whatnot.
00:28:05 Speaker_05
The Oklahoma AG agrees that the conviction must be overturned, not surprisingly, given everything that has been said.
00:28:12 Speaker_05
But yet, despite that concession, the Oklahoma Court of Criminal Appeals refused to vacate the conviction and sentence and said there had been no Brady violation, nor had there been an Apu violation.
00:28:24 Speaker_05
And a Brady violation refers to the prosecution's failure to turn over exculpatory evidence, evidence that would suggest the defendant's innocence. And a NAPU violation refers to the prosecution presenting knowingly false testimony.
00:28:37 Speaker_05
So basically, the Oklahoma Court of Criminal Appeals was basically like, eh, what's the big deal? Sure, the evidence suggests he's a little innocent, and some of the evidence was a little false.
00:28:47 Speaker_05
But in the big scheme of things, it's just the death penalty.
00:28:52 Speaker_06
What's that we hear the Oklahoma Court of Criminal Appeals saying?
00:28:55 Speaker_01
The rules were that you guys weren't going to fact check.
00:29:00 Speaker_05
So that's like the one thing that's the one good thing that's going to come out of that whole debacle is we're going to use that for forever.
00:29:07 Speaker_06
Okay agreed. So the Oklahoma Court of Criminal Appeals also suggested that procedural limits on post-conviction relief in Oklahoma state courts meant they couldn't or wouldn't consider Mr. Glossop's claims. The court said Mr. Glossop
00:29:22 Speaker_06
couldn't present the claim now because the issue could have been presented previously, even though the state had concealed the evidence.
00:29:28 Speaker_06
But it doesn't appear that these are what we call adequate and independent grounds for refusing to vacate the conviction because they're bound up with the state court's assessment of the federal constitutional claims, and the state had waived the procedural limits in any case.
00:29:43 Speaker_08
Just a few other things to note about the case.
00:29:45 Speaker_08
One is that, as I alluded to a couple minutes ago, Mr. Glossop was part of an Eighth Amendment challenge to method of execution protocols in the case Glossop v. Gross, which is a case in which the court turned away his challenge to Oklahoma's lethal injection protocol and set an insanely high standard for individual sentenced to death.
00:30:02 Speaker_08
to satisfy if they are challenging the method the state is going to use to execute them.
00:30:06 Speaker_08
And the fact that yet another major death penalty case involves yet another possibly innocent defendant is yet another indication of serious, serious flaws in our country's administration of the death penalty.
00:30:18 Speaker_06
I think this gloss up case has the makings of a this just cannot be, you know, disagreement among the justices, you know, the division between what I previously referred to as the pro Kafka and the anti Kafka justices, you know, those who just look at something and say, these consequences are unacceptable.
00:30:35 Speaker_06
And those who say no, watch me prove my legal bona fides by basically embracing a totally perverse, unacceptable consequence.
00:30:43 Speaker_06
So maybe 6-3, maybe 5-4, with the chief and Justice Kavanaugh joining with the Democratic appointees, possibly bear it as well, is kind of what I see, or at least that.
00:30:53 Speaker_08
I hope you're right.
00:30:54 Speaker_08
And I also do think that the fact that you have the Oklahoma prosecutors on the same side as Glossop represented by a distinguished conservative Supreme Court lawyer, Paul Clement, so the court had to appoint someone to take the other side of the case, suggests there's, I agree, a good chance that that happens.
00:31:11 Speaker_08
And it would just be an absolute travesty if it did not.
00:31:14 Speaker_06
Yeah. So quickly run through some of the other cases the court will hear this week. Royal Canaan USA versus Wollschleger is about federal jurisdiction, basically when you can remove cases from state court to federal court.
00:31:27 Speaker_06
Then there's Williams versus Washington, an important civil rights case about when you can file a federal civil rights action in federal court when the state has provided you nominally some other administrative remedy to go through first.
00:31:39 Speaker_06
And then finally, there's Lackey versus Stinney, which is about when plaintiffs in civil rights cases are entitled to attorney's fees because they are the prevailing party when they obtain a preliminary injunction, but then the legislature repeals the statute or scheme that they were challenging.
00:31:55 Speaker_08
So we will try to return to at least some of those cases once they are argued. And now it's time for some court culture. And we're going to start with state courts, beginning with some developments from the Arizona Supreme Court.
00:32:06 Speaker_08
So first, Arizona Supreme Court Justice Robert Brutonel announced his retirement, effective later in October, which means that Democratic Governor Katie Hobbs will be in a position to appoint his successor.
00:32:17 Speaker_08
And notably, two other Arizona Supreme Court justices, Clint Bollock and Catherine Hackett King, are up for retention election.
00:32:25 Speaker_08
If they lose their retention elections, then Governor Hobbs would also get to make the two appointments that would fill their seats.
00:32:31 Speaker_05
Speaking of those retention elections, if those names, Bollock and King, sound familiar to you listeners, well, they should, because both Justices Bollock and King were among the justices who, in a 4-2 decision issued in April, voted to reinstate Arizona's 1864 abortion ban.
00:32:51 Speaker_05
That's right, 1864, before Arizona was a state and before women could vote.
00:32:57 Speaker_05
Side note, only six justices participated in that decision because one justice on the seven-member court, Justice Montgomery, was forced to recuse himself when a 2017 Facebook post in which he likened abortion to genocide surfaced unexpectedly.
00:33:12 Speaker_05
Another side note, if the name Clint Bollock sounds really familiar, You're not crazy, but you have been drinking too many Ginny tonics. Clint Bollick is the former vice president of the Goldwater Institute.
00:33:24 Speaker_05
He's also a co-founder of the Institute for Justice, which incidentally was started with Koch brothers money. He's also a close friend. of, going back to their days in the Reagan EEOC, Justice Clarence Thomas.
00:33:36 Speaker_05
In fact, Thomas is the godfather to one of Bollock's children.
00:33:41 Speaker_05
Another side note, Bollock's wife, Shawna Bollock, is a member of the Arizona State Legislature and was one of the state legislators with whom Ginny Thomas was ardently messaging about overturning the 2020 presidential election. Amazing.
00:33:56 Speaker_05
Again, both Bollock and King are up for retention elections in November. Two people who reinstated a 19th century law that women played no role in enacting because democracy.
00:34:07 Speaker_05
Yes, Arizona voters, you have the opportunity to do the absolute funniest thing ever here. Just going to leave it at that.
00:34:16 Speaker_06
Another state court development, which is jurismandering, has expanded to Texas. We discussed the phenomenon of jurismandering in an episode last spring. Basically, it's like gerrymandering for the courts.
00:34:27 Speaker_06
Republicans in a good number of states have modified the rules governing courts in ways that force litigants or certain kinds of litigants
00:34:34 Speaker_06
to have to file their claims before courts that are staffed with judges who are predisposed to rule against them. And it looks like Texas decided to get in on that game.
00:34:41 Speaker_06
So Texas Governor Greg Abbott created a new state appeals court that hears all civil rights claims. So this was seemingly designed to circumvent the state having to litigate in state courts that might rule against them.
00:34:53 Speaker_06
The court is going to be fully appointed by Governor Abbott. Seems like kind of a problem under the Texas Constitution, but it went into effect September 1st.
00:35:02 Speaker_06
And, you know, this could be really troublesome for organizations like the Texas Civil Rights Project or LULAC, who, you know, are being raided and investigated for election fraud merely by trying to help people vote.
00:35:14 Speaker_06
And right now their recourse is that civil rights court or a federal court that will end up in the Fifth Circuit, which is a problem.
00:35:23 Speaker_05
I believe the term is fuckery.
00:35:26 Speaker_06
Yeah, that also works.
00:35:29 Speaker_05
Now for some positive state court news. Let's hear it for the Peach State, Georgia. A Georgia state court judge, Robert McBurney, found that Georgia's six-week abortion ban violated the state's constitution, and he consequently enjoined it.
00:35:45 Speaker_05
The decision, which is known as SisterSong Women of Color Reproductive Justice Collective versus Georgia, reasoned that the Georgia constitution protects an individual's ability to choose to have an abortion prior to viability
00:35:57 Speaker_05
via a right to privacy, or as Judge McBurney puts it, a, quote unquote, liberty to privacy. And here's some key language.
00:36:04 Speaker_05
Quote, because the Life Act, that's the Georgia six-week ban, infringes upon a woman's fundamental rights to make her own health care choices and to decide what happens to her body, with her body, and in her body, the act must serve a compelling state interest and be narrowly tailored to achieve that end.
00:36:21 Speaker_08
The opinion is a powerful read. It also said, quote, for these women, the liberty of privacy means that they alone should choose whether they serve as human incubators for the five months leading up to viability.
00:36:31 Speaker_08
It is not for a legislator, a judge, or a commander from The Handmaid's Tale to tell these women what to do with their bodies during this period when the fetus cannot survive outside the womb any more so than society could or should force them to serve as a human tissue bank or give up a kidney for the benefit of another.
00:36:47 Speaker_08
The Georgia Supreme Court has previously said the right to privacy in the Georgia Constitution is broader than that contained in the federal constitution.
00:36:53 Speaker_08
I would say, as I was just reading this excerpt, did it make you wonder whether Melania Trump got an advance copy of this decision and use it to... Have you seen this crazy little excerpt from her novel or her memoir that is circulating?
00:37:07 Speaker_06
I cannot even engage with that. It is just so woefully insulting. It's truly insane.
00:37:13 Speaker_08
I am just noting that some of the language, which
00:37:17 Speaker_05
I don't care, do you? Yeah, exactly.
00:37:20 Speaker_08
Fine. All right, let's move on. I'm noting a few rhetorical notes of rhetorical overlap.
00:37:25 Speaker_06
Yes. So in other parts of the opinion, like the footnotes, which is always where some good stuff is highlighted, the court decided to fact check claims about originalism, textualism, and democracy. So, quote,
00:37:38 Speaker_06
Georgia, however, is not just the peach state. It is also the land of constitutional fecundity. We have had not one or two, but 10 different constitutions.
00:37:47 Speaker_06
So textualism requires a journey further back in time if the present constitutional language was imported from a previous version. And that is the case here. That right to liberty dates back to the state's fifth constitution, ratified in 1861.
00:37:59 Speaker_06
The obvious problem with this interpretive approach, meaning textualism, originalism, is that the plaintiffs whose rights are at issue in this litigation had no or very limited rights when the constitutional provision was adopted.
00:38:11 Speaker_06
Liberty for white women in Georgia in 1861 did not encompass the right to vote. And of course, liberty did not exist at all for black women in Georgia in 1861.
00:38:20 Speaker_06
Thus, any rooting around for original public meaning from that era would yield a myopic white male perspective on an issue of greatest salience to women, including women of color," end quote.
00:38:30 Speaker_06
That kind of seems to be the whole point behind originalism, I'm just going to say.
00:38:34 Speaker_05
Again, you can hear Sam Alito screaming.
00:38:37 Speaker_01
The rules were that you guys weren't going to fact check.
00:38:39 Speaker_05
Leah, that's right. That seems basically the whole point of originalism. Too bad Judge McBurney decided to fact check.
00:38:47 Speaker_05
He also found the statute violated Georgia's Equal Protection Clause because it contained an exception for circumstances where pregnancy endangered a woman's life and physical health, but not in circumstances where a woman's mental health was compromised.
00:39:01 Speaker_06
Other notable passage, quote, this leads into the, quote, weird issue of lack of process required to obtain these health records. I just like the use of the word weird.
00:39:11 Speaker_06
This felt like Taylor Swift signing off her endorsement childless cat lady, like kind of a fuck you call that. It's an Easter egg. It's kind of an Easter egg. Exactly.
00:39:21 Speaker_06
If you're interested in staying abreast of these state court developments and more, I'd encourage you to subscribe to the Brennan Center's state court report, which will have all of these decisions and many more.
00:39:32 Speaker_08
And a quick note on a federal court decision we wanted to flag. This is a district court decision that is surprisingly not from a district court in Texas. It is from the district of Columbia. Yes.
00:39:45 Speaker_08
It is an opinion by Judge Trevor McFadden, one of Trump's nominees, who found that the Biden administration violated the National Environmental Policy Act when it canceled construction of the border wall and ended the Remain in Mexico policy.
00:39:58 Speaker_05
NEPA requires an agency contemplating a major federal action to analyze the environmental effects of that proposed action. But weirdly, the Biden administration did not analyze the environmental effects of immigration policies. So strange.
00:40:15 Speaker_05
And Judge McFadden took that personally. In a real galaxy brain move, he found that this oversight injured Arizona ranchers because the immigration policies
00:40:26 Speaker_05
harmed the environment, apparently by allowing immigrants to exist on American property, I guess. The judge noted that migrants trespassed onto one of the plaintiff's land, and that was at least part of the environmental impact.
00:40:45 Speaker_06
But even if that did impact the environment, it is wild that the judge would attribute this to the Biden administration's policies.
00:40:52 Speaker_06
Because in order to have standing, the plaintiffs have to show not just that they were injured, but that their injury was caused by the government action they were challenging.
00:41:00 Speaker_06
And the idea that stopping the construction of the border wall caused migrants to trespass onto the plaintiff's land is utterly bizarre. Same with ending the Remain in Mexico policy.
00:41:10 Speaker_06
But that is literally the testimony of the plaintiffs and what the court relied on.
00:41:14 Speaker_06
So here is a passage from the court's opinion, quote, Smith, that is like one of the plaintiffs who testified, noticed striking differences in the volume of illegal immigration between the Trump and Biden administrations.
00:41:25 Speaker_06
When President Trump was in office, Smith saw the least traffic he had ever witnessed on the border in his life. He described those years as the most peaceful time he had experienced.
00:41:34 Speaker_06
Then things changed, moving on into the Biden administration, end quote.
00:41:38 Speaker_06
And he had testimony from two former officials, including Rodney Scott, former chief of CBP, who supported the border wall and refused to support the directives to stop using words like illegal alien.
00:41:49 Speaker_06
The other was Mark Morgan, who's now at the Heritage Foundation. After serving as acting commissioner of CBP, he was Trump's pick to be acting director of Immigrations and Customs Enforcement.
00:41:59 Speaker_06
So we are still living with the downstream effects of Donald Trump's personnel decisions. This is part of what happens when you staff the government with Weirdos. One other note. The Supreme Court granted a bunch of cases, 15 for this term.
00:42:14 Speaker_06
We're not going to cover them in depth now, but we will once they're scheduled for arguments. Among the big cases is a case brought by Mexico against gun manufacturers for the chaos and devastation and destruction caused by American guns in Mexico.
00:42:26 Speaker_06
There's a case about access to DNA testing in capital cases. There are some civil rights and non-discrimination cases, a Fourth Amendment case, and more.
00:42:34 Speaker_08
All right, we'll leave it there. Up next, an interview about the goings on and future of antitrust. But first, we wanted to flag a couple of things.
00:42:41 Speaker_05
Voter registration deadlines are this week in Arkansas, Arizona, Florida, Georgia, Indiana, and more. So now is the time to make sure that you, your friends and family are all registered.
00:42:52 Speaker_05
And you can go and do that at votesaveamerica.com forward slash vote. If you want to get the word out, Vote Save America has great infographics on their Instagram page that you can share.
00:43:01 Speaker_05
And for those who are willing to do more, Vote Save America has critical volunteer asks. If you're in states like Michigan, Pennsylvania, Georgia, North Carolina, and Arizona, they need you to sign up to be a poll watcher.
00:43:12 Speaker_05
Republicans are ramping up attacks on election security. In states like Georgia, Trump-backed officials want to hand count all of the ballots, despite warnings that it breaks state law. So you can go and help out.
00:43:23 Speaker_05
Sign up with Vote Save America right now at fairfight.com forward slash LFGV. This message is paid for by Vote Save America and has not been authorized by any candidate or candidates committee.
00:43:36 Speaker_08
Next thing we wanted to flag for you was today's episode of Assembly Required with Stacey Abrams, where she sits down with national voting rights correspondent and our friend, author Ari Berman.
00:43:46 Speaker_08
They tackle one of the most urgent issues of our time, voting rights. Join them as they dive into what has changed since the last presidential election, uncover the latest threats to voter access, and give you the tools you need to push back.
00:43:58 Speaker_08
New episodes of Assembly Required are available every Thursday wherever you get your podcasts.
00:44:16 Speaker_06
There has been a lot of talk about antitrust enforcement, in part because of the Biden administration's efforts under the auspices of the Federal Trade Commission and the Department of Justice's Antitrust Division to curb anti-competitive behavior that negatively impacts consumers and the markets.
00:44:31 Speaker_06
There's been very intensive coverage of Lena Khan's tenure as commissioner of the FTC.
00:44:36 Speaker_06
And in August, the DOJ's Antitrust Division earned a significant win in a suit against Google, the largest DOJ antitrust enforcement action since the Microsoft lawsuit in the late 1990s and early aughts.
00:44:49 Speaker_05
But the interest in antitrust goes deeper than these recent efforts to enforce antitrust laws and curb anti-competitive behavior.
00:44:57 Speaker_05
Broader questions about how to approach market competition and ensure competitive markets have divided the conservative legal movement and have given progressives fresh insights into harnessing competition laws to serve social justice ends.
00:45:11 Speaker_05
To take stock of all of these developments and to help us understand what it all means, we are joined today by some hot shots from the DOJ. Joining us is Jonathan Cantor, who is the Assistant Attorney General for Antitrust at DOJ, and Doha Mekki.
00:45:27 Speaker_05
Doha is the Principal Deputy Assistant Attorney General for the Antitrust Division. So welcome to Strict Scrutiny, Jonathan and Doha.
00:45:35 Speaker_09
Thank you.
00:45:35 Speaker_05
Thank you so much for having us.
00:45:36 Speaker_09
Yeah, we're delighted to be with you.
00:45:38 Speaker_06
So you all have been very busy, and yet you graciously made time to appear on the podcast.
00:45:44 Speaker_06
As we were talking about just a second ago in August, after a lengthy bench trial before Judge Amit Mehta of the District of the District of Columbia, DOJ's Antitrust Division secured a major victory against Google.
00:45:55 Speaker_06
And this was the first major antitrust lawsuit against a tech company to make it to trial in decades. And Judge Mehta ruled that, quote, Google is a monopolist and it has acted as one to maintain its monopoly, end quote, in online searches.
00:46:09 Speaker_06
Can you give us some background on the theory of the case and your plans going forward to defend DOJ's victory?
00:46:15 Speaker_09
Sure, I'll start. So thank you. It's great to be here. This is a really important case in a really important area of law.
00:46:23 Speaker_09
When the Department of Justice filed the case against Google, it was the first significant monopolization case that the Department of Justice had filed in 20 years, which is remarkable because Section 2 of the Sherman Act, monopolization is really the cornerstone of antitrust enforcement.
00:46:40 Speaker_09
And when we won the case, it was the second major victory in 50 years, only two. But now, it exists against the backdrop of numerous other cases that we filed.
00:46:50 Speaker_09
And so the case, and it's still live litigation in terms of the remedies, so I'm going to be very careful about what I say and our ability to talk about the case and stick to what's in the court's opinion. But the court was very clear that the company
00:47:03 Speaker_09
i have monopoly power in the company misused its monopoly power and make legally maintained by engaging in among other things contracts and other kinds of restrictions that impacted the ability of its partners to work with other rival search engines.
00:47:19 Speaker_05
Google has been very clear, Jonathan, that it plans to appeal this ruling, and it maintains that its dominance in the online search engine market is because it offers a superior product, one that consumers prefer because it is effective and user-friendly.
00:47:35 Speaker_05
Google's position reflects what some call the Chicago school approach to antitrust, and
00:47:39 Speaker_05
This is the idea that practices that law might consider anti-competitive might actually be good for consumers and competition, and this approach to antitrust was very closely associated with Robert Bork, the Yale law professor, the D.C.
00:47:53 Speaker_05
Circuit Judge, and the failed Supreme Court nominee.
00:47:56 Speaker_05
Bork documented his theories of antitrust in a book called The Antitrust Paradox, in which he criticized the Supreme Court's antitrust jurisprudence and laid a foundation for antitrust theory going forward that really focused on whether, quote unquote, anti-competitive behavior was actually consumer friendly and benefited consumers.
00:48:16 Speaker_05
The Biden administration's approach to antitrust differs radically from this Chicago school approach. It reflects elements of what some have called the neo-Brandeisian approach. Or hipster antitrust. I like that better, hipster antitrust.
00:48:30 Speaker_05
Can you explain this approach for us and how it shapes the administration's priorities in antitrust?
00:48:37 Speaker_09
Sure, I'll start and then turn it over to Doha. But first and foremost, the approach that we take to antitrust is one that's really based on sound application of the antitrust laws and binding precedents.
00:48:49 Speaker_09
And so we go back to the words of the statute, which talk about preserving competition, protecting the economy against mergers that might substantially lessen competition.
00:48:58 Speaker_09
And then we go back all the way to the Sherman and Clayton Acts, which were enacted in 1890, 1914, respectively, and then updated since. and enforce the law as it's written and as it's been interpreted by courts.
00:49:09 Speaker_09
I think what happened in the Bork area was there was an attempt, without going to Congress, to essentially rewrite the antitrust laws and essentially infuse certain values about efficiency being the sole objective of antitrust law enforcement.
00:49:26 Speaker_09
And that's never been the case. It wasn't the case when Congress wrote the law, and it hasn't been the case when Supreme Court has interpreted the law. And so we just went back to first principles.
00:49:35 Speaker_06
So you brought some textual healing, like the antitrust version of textual healing, to antitrust law.
00:49:41 Speaker_04
Love it. I think that's one way to put it, but I think it's worth just lingering on this point that Jonathan made, because it's really important.
00:49:49 Speaker_04
I mean, there are certainly critics of a healthy antitrust enforcement regime, and it's really no secret or mystery why the critics tend to be closely associated with the interests of monopolists and plutocrats. But there is a rich history
00:50:07 Speaker_04
that supports a robust antitrust enforcement regime. And to the extent that there was anything radical, it's actually what Robert Bork and people who thought the way he did, you know, interpreted the law beginning in the 1980s.
00:50:22 Speaker_04
So when we look to the foundations of the Sherman Act, what we see is a very deep concern that the kind of private coercive power of corporations that
00:50:36 Speaker_04
the framers of the statute were concerned about was, quote, inconsistent with our form of government, right? And that's a quote from the floor debate.
00:50:44 Speaker_04
And it's also important to note that this is a statute, the Sherman Act, that was passed in 1890, and I think all but one senator voted to pass it. Right.
00:50:55 Speaker_04
I mean, this was a, I think, deeply rooted, to borrow some interesting terms, a deeply rooted sense that monopolies are antithetical to our form of government.
00:51:04 Speaker_04
And again, I would just sort of borrow from the floor debate that Senator Sherman declared that if you will not endure a king as a political power, we should not endure a king over the production, transportation, and sale of any of the necessities of life.
00:51:17 Speaker_04
And if we would not submit to an emperor, we should not submit to an autocrat of trade.
00:51:22 Speaker_04
And so there are these ways in which the kind of open, vibrant markets and economic opportunity, like as a value that are enshrined in the Sherman Act, kind of rhyme with our most closely held social, political, and economic ideals.
00:51:38 Speaker_05
It's almost as though there's a history and tradition of not letting corporate interests stick it to the little guy.
00:51:44 Speaker_09
Yeah, it's exactly right. I mean, antitrust law is about standing up to bullies.
00:51:49 Speaker_09
And it's making sure that people have freedom, freedom to choose which products and services they want to use, freedom to choose where they want to work, freedom to choose where they want to live.
00:51:58 Speaker_09
And if you have a great idea, regardless of where you come from and who you are, if you work really hard, you can realize economic prosperity. And that should be available to all. And the idea of monopolies controlling
00:52:14 Speaker_09
what we see, where we work, how much we can make, and how much we have to pay for things, including, as Doha said, the necessities of life, including housing, groceries, things that allow us to air travel, are really important to our way of life and our freedom.
00:52:34 Speaker_09
And so these are the ideals that animated the creation of the antitrust laws, and these are the ideals that we keep in mind when we enforce the antitrust laws.
00:52:42 Speaker_06
So I want to ask a question about freedom in a second, but just to kind of underscore something that both Jonathan and Doha have been talking about, which is the skepticism of consolidated and coercive economic power.
00:52:56 Speaker_06
I think we did a series of episodes on Project 2025 in which we went through some of the proposals to, for example, give private companies, billionaires, tech bros, finance bros, the power to control nuclear energy.
00:53:13 Speaker_06
Right, exactly, about like the vast amount of wealth that is behind some of these corporate interests.
00:53:18 Speaker_06
You can see why people like FDR or the creators of the Sherman's Act and Clayton Act were concerned about such huge, immense, vast capital power competing with government power, or being able to influence government power to the extent where
00:53:35 Speaker_06
You know, it's difficult to disentangle the two. And that's part of what, you know, antitrust law is designed to remedy. But now my freedom question. So, Jonathan, you spoke very eloquently about how enforcing antitrust law enables freedom.
00:53:49 Speaker_06
I would like one of you to maybe explain how hipster antitrust or the neo-Brandeisian approach to antitrust could help me get Taylor Swift tickets. That is, I want to be free to be in my Taylor era.
00:54:02 Speaker_04
So it is no mystery that we have brought enforcement actions and a lot of industries where people have firsthand experience about how they're experiencing the market, about the availability of goods and services. And one of
00:54:19 Speaker_04
All of our cases are important to us. We think they're important. They're right on the facts and the law, and we love litigating them. But there are certain cases that seem to be more resonant than others.
00:54:29 Speaker_04
And I think we were really touched to see the public engage with our Section 2 monopolization breakup case against Ticketmaster because it was really a company and experience of the market that needed no introduction.
00:54:48 Speaker_04
And so this is really, and I should say that's live litigation, so we won't get into the merits of that case because it's playing out in a federal court in New York right now.
00:54:59 Speaker_04
But again, there's this ability of the public to see, okay, this is how the government is addressing corporate power. And it helps connect us to the people that we're entrusted to protect. And I should say,
00:55:15 Speaker_04
We love our sister agency down the street of the Federal Trade Commission. They do really important work. There is a wonderful history and tradition associated with that institution.
00:55:24 Speaker_04
But there is also a really deep history and tradition in the Justice Department, right? Like we are a part of the executive branch and all of us take an oath to support and defend the Constitution, to take care that the laws be faithfully executed.
00:55:39 Speaker_04
And so we're always thinking about the ways in which We wield power with the consent of the governed, right?
00:55:45 Speaker_04
And so when people understand what we're doing, when people understand that the government has something to say about coercive power making their lives worse, making their experience of markets worse, I think it helps connect us to the people that we're entrusted to protect, and that's very cool.
00:56:01 Speaker_09
And there was an interesting, you know, in the 80s when antitrust enforcement took a downturn, there was an interesting side effect, which is the evolution of the law, right?
00:56:10 Speaker_09
And so antitrust is statutory, but it's a general statute that's often, you know, refined by interpretation from courts, including all the way up to the Supreme Court.
00:56:21 Speaker_09
I think back to law school and the case books were filled with USV somebody all the way up until the 80s. And then antitrust law casebooks stopped, including as many cases of U.S. v. somebody because the U.S. stopped being people as frequently.
00:56:39 Speaker_09
And it's been over 40 years since we've been to the Supreme Court as the antitrust division in the Department of Justice on an antitrust case. And during that period, antitrust law has taken a turn.
00:56:51 Speaker_09
And that turn has largely been driven by private cases, and as the Department of Justice we have an obligation responsibility to make sure that we are vindicating the rights of the public.
00:57:02 Speaker_09
And so private cases are important private attorneys general is a feature of the antitrust laws.
00:57:07 Speaker_09
But private cases are designed to vindicate the rights of private plaintiffs when it's only the United States Department of Justice and the Federal Trade Commission who can step into the shoes on a federal level of the general public.
00:57:21 Speaker_09
And so it's important that we do that when we see violations of the law.
00:57:25 Speaker_06
I like the idea of DOJ veeing in like a va-va-voom kind of way.
00:57:29 Speaker_06
But Jonathan, as you were just saying, antitrust law was really shaped for a pretty extensive period by, as Melissa described, the Bork School of Antitrust, which really limited federal antitrust enforcement in the name of insisting that this was really in consumers' interests.
00:57:48 Speaker_06
So, you know, conservatives, while historically they have been in keeping with the Chicago school, the Bork school favored less antitrust enforcement, but in recent years, there has been something of a schism that has emerged, you know, among conservatives with at least a group of conservatives calling for greater enforcement of antitrust laws in at least particular contexts.
00:58:08 Speaker_06
So what's driving this schism and the interest in antitrust enforcement?
00:58:13 Speaker_04
So this is actually a super interesting phenomenon to observe. And if you'll indulge me for a moment, I'm going to try to explain the roots of what I think is like a realignment on antitrust principles and concern over corporate power.
00:58:25 Speaker_04
I think that many of us, I consider myself an aging millennial, and so I feel like I've had a front row seat to this problem.
00:58:33 Speaker_04
Many of us saw the financial crisis, the two-tiered recovery, the fact that there was stagnating wage growth, that there was more inequality, that a small number of companies had outsized
00:58:47 Speaker_04
sort of wealth and success and power that new business formation had really slowed. And then there's like the massive demand-side market failure that's associated with the pandemic.
00:58:58 Speaker_04
And I think that for many people, watching the economy work less well for them caused them to ask questions. And someone much smarter than me remarked that people look to antitrust when they're uncertain about the future.
00:59:14 Speaker_04
And so I think there were just more questions about the power of corporations relative to individuals. And interestingly, I think it's the conservative legal movement that I think was first to question corporate power.
00:59:28 Speaker_04
And again, we as sitting public officials, it's our obligation to talk to everybody without regard to politics, without fear or favor, and to really engage with citizens, you know, of all stripes, about their concerns.
00:59:43 Speaker_04
And, you know, we have had occasion to engage, to study this concern. And I think it's, you know, the conservative legal movement is coming to antitrust in large part because of concerns about deplatforming, because of concerns about censorship.
01:00:00 Speaker_04
Personally, I take no position on how real or imagined that may be, but it certainly drives a certain kind of political engagement. That's okay.
01:00:08 Speaker_05
We have a position on that, Doha. Don't worry. We have a position. Sorry.
01:00:13 Speaker_04
I think it drives a certain kind of legal and political engagement and one thing we know is that the conservative legal movement is organized, they have an apparatus through different kinds of organizations to really lay intellectual foundations.
01:00:29 Speaker_04
But to give them some credit, I do think that there is support for this idea that the founders were skeptical of corporations, right? Corporations were a grant of the king, a common law.
01:00:43 Speaker_04
And this idea that corporations would participate in our form of governance was something that was deeply questioned and I think many of our most revered leaders were deeply hostile to the idea and that's kind of interesting.
01:00:57 Speaker_06
I want to give a shout out to Joey Fishkins and Willie Forbaugh's book, The Anti-Oligarchy Constitution, that really goes into greater detail about what Doha you were just saying.
01:01:06 Speaker_04
Exactly. We're big fans of that book.
01:01:09 Speaker_05
Well, I think Joey and Willie in their book make clear that there is no history and tradition of having an emotional support billionaire at the court or being primed for corporate deregulation at the court, but yet here we are.
01:01:25 Speaker_09
Well, your point about regulation is really important because a lot of conservatives are concerned about regulation by the government. But when you're regulated by a corporation, that is far more invasive. There's no due process.
01:01:39 Speaker_09
You could be taxed in the form of higher prices and fees, junk fees sometimes. And there's no accountability. And so one of the reasons why our society works so well when our economy is competitive
01:01:52 Speaker_09
is because it gives people the freedom to vote with their feet, gives the people freedom to say, I don't like what this company stands for. I don't like their products. I don't like their services.
01:02:01 Speaker_09
I don't like them telling me what to see, think, or hear. And so I want to go elsewhere. And those kinds of freedoms are really about our democracy. It's about our way of life.
01:02:12 Speaker_09
I was talking at Georgetown this morning at a symposium and dug up some FDR speeches. And if you indulge me, I mean, he talked about true individual freedom cannot exist without economic security and independence.
01:02:32 Speaker_09
He talked about how people should have almost like a new bill of rights and the right to a useful A well-paying job the right to earn and provide adequate food and clothing and recreation for one's family the right of.
01:02:45 Speaker_09
Farmers to sell products and have a reasonable turn on investments earn a decent living the right of businesses large and small traded atmosphere of freedom from unfair competition and domination by monopolies at home and abroad.
01:02:59 Speaker_09
And the right of every family to a decent home these issues resonated then in nineteen forty four but they resonate now. And that's one of the reasons why we're seeing this resurgence in the discussion of antitrust and corporate power.
01:03:13 Speaker_05
It's a really interesting point and sort of linking it to social justice ends.
01:03:17 Speaker_05
I mean, like the schism within the conservative legal movement is really interesting, like this idea that having a set of corporate overlords, whether it's big tech or something else, is sort of anathema to conservative principles.
01:03:29 Speaker_05
Not all conservatives subscribe to that, but it is interesting that there are some who are looking to you and looking to antitrust even despite the turn away from Chicago school style antitrust enforcement in order to be able to do that.
01:03:46 Speaker_05
So that by itself is actually quite interesting. But what you just said, Jonathan, sort of speaks to the effort among young progressives to look at antitrust as perhaps an unexpected vehicle for advancing social justice ends.
01:04:01 Speaker_05
I say unexpected, I don't think it's unexpected to you, but I think most people growing up and going to law school from the 2000s forward would not necessarily think of antitrust enforcement as a social justice vehicle, at least not in the way that it was taught and purveyed for much of that period.
01:04:20 Speaker_09
Yeah, not when I went to law school, which I'll date myself. I graduated in 1998. But I've had, through this position, the privilege of visiting with law students across the country.
01:04:33 Speaker_09
And I've been to over, just in the last couple of years, over 20 law schools and business schools across the country. And people are filling up rooms to talk about, students are filling up rooms to talk about antitrust.
01:04:47 Speaker_09
And it's not because they're interested in high-paying jobs at big law firms. They're filling up rooms to talk about antitrust because they believe it's important to their way of life. They understand that it matters.
01:04:57 Speaker_09
They understand that if they want the American dream of being able to work hard and realize prosperity, they need that economic freedom and opportunity. And so it's really exciting.
01:05:07 Speaker_09
And so one of the things that we're seeing is this growth of interest, people coming to work at the Department of Justice.
01:05:14 Speaker_09
We have some of the most talented exceptional young lawyers and economists who are coming here because they want to be here, they care deeply about our mission, and they believe that what they're doing is important, not just to output, not just to prices, but to our way of life.
01:05:33 Speaker_05
It's such a good point I was at a recent meeting of an if when how chapter and one of the students in the group mentioned antitrust and specifically in the context of religious hospital consolidations and the question was essentially, you know,
01:05:49 Speaker_05
Is antitrust a useful vehicle for addressing the fact that so many hospitals, especially in rural areas, are consolidating and they're consolidating under the umbrella of companies like Dignity or Catholic Health Services, which means that all of the hospitals in that area are under that umbrella and that limits the degree of reproductive care like tubal ligations, abortion services, contraception,
01:06:12 Speaker_05
all of that, whether that can be offered because those services are in conflict with the tenets of Catholicism. And I thought it was a really interesting question.
01:06:21 Speaker_05
And this idea that antitrust might have a relationship to reproductive freedom, I think, was one the students had not previously contemplated.
01:06:30 Speaker_06
Can I just add one additional potential example?
01:06:32 Speaker_06
If you think about, for example, Hobby Lobby versus Burwell, where you have a corporation asserting the freedom not to provide their employees with certain forms of reproductive health insurance, you can imagine a situation where you have a monopolistic employer, someone with a ton of corporate power, and then people not having the freedom or ability to actually find another employer who would offer them health insurance to cover certain forms of health care.
01:06:55 Speaker_04
I think that's exactly right, and to be unequivocal about it, antitrust has something to say about all of these forms of consumer choice. And antitrust, even Robert Bork, I think, would concede that if he were living, he would concede that
01:07:12 Speaker_04
There are markets for all of these forms of goods and services. And the really beautiful thing about antitrust is that we as public officials don't have to choose which goods and services are available.
01:07:24 Speaker_04
If you have robust markets, if you have open, vibrant markets for healthcare, for information, and other sort of necessities of life, you can make those choices for yourself and pick what kind of healthcare works for you and for your family.
01:07:38 Speaker_06
So just in thinking about the kind of political through lines through a potential fissure or realignment in antitrust law, as both you and Jonathan are describing the kind of underpinnings of antitrust law, I do hear a lot of resonance with progressive principles, being skeptical of too much consolidated power, being skeptical of domination, wanting to ensure that important decisions are made through institutions that are representative, care,
01:08:06 Speaker_06
about the public interest, are made with due process, and so I hear all of that. And yet, maybe this is because I too am an aging millennial Doha, but I am used to the conservative legal movement always pressing this idea of
01:08:22 Speaker_06
freedom from government regulation, and that anything that is structured by the economy is just insulated from government power.
01:08:29 Speaker_06
While progressives respond that like, okay, you say we should just leave it to the free market, but markets aren't free, like the way markets look are structured by the laws that we have, or sometimes the absence of laws. And while
01:08:41 Speaker_06
you know, I have seen, you know, some of the calls from Republican Party officials, as well as the conservative legal movement against big tech and woke capital, you know, when those institutions are perceived as being hostile to the Republican Party interest.
01:08:56 Speaker_06
I guess, you know, is that kind of debate within the Republican Party, leading to a movement toward broader government intervention, writ large outside the context of antitrust, or
01:09:11 Speaker_06
you know, anything else that you are seeing or observing as far as potentially revisiting, you know, some of the principles that I guess I had associated with the Republican Party?
01:09:21 Speaker_09
You know, we focus on antitrust.
01:09:23 Speaker_09
But to your point that, you know, there are a lot of the issues that you just raised are symptoms of a problem, a problem of people not feeling like they have control over their lives, and that there's an unaccountable entity.
01:09:37 Speaker_09
who is making decisions for them. And I think back to a conversation I had with a friend of mine who is very conservative in his philosophy, but is pro-antitrust enforcement. This might be 10-plus years ago.
01:09:53 Speaker_09
It is when I first realized that there was some overlap. And what he told me was that He's a post a concentration of power and weather that's government power corporate power.
01:10:04 Speaker_09
I'm the decentralization of power and the concentration of power and freedom go hand in hand and it was an enlightening to me because it made me appreciate that.
01:10:14 Speaker_09
There you know we might all come at this from different points of view but there are certain underlying principles that you can. you know, string throughout.
01:10:21 Speaker_09
The other thing I will point out is that, you know, there's in the 1980s, antitrust became almost like the foot in the door for a broader movement about law and economics, and a broader movement to infuse certain ideas about efficiency and
01:10:40 Speaker_09
deference to companies and corporations. There's a great book by Binya Appelbaum called The Economist Hour. He talks about how a lot of the economists used to be in the basement of government agencies, and then they all got the big corner offices.
01:10:55 Speaker_09
And there were some, again, the antitrust division relies on some of the most talented and brilliant economists, and economics has made a lot of strides. And we think there's a lot of value and benefit
01:11:10 Speaker_09
Working closely with economists but but i think this is this sort of brand of economic philosophy.
01:11:18 Speaker_09
Add that was sort of let in through and i trust became infused throughout government and i think as we think about okay what is the right way to think about our economy what is the right way to think about the relationship between economy and freedom and.
01:11:31 Speaker_09
and justice, you know, we need to sort of think about, you know, and it's not surprising to me that antitrust is becoming a focal point and a vehicle for that conversation.
01:11:42 Speaker_04
I mean, this idea that government has nothing to say about markets is such a joke, right? Government policy helps structure markets. And even if that were up to like reasonable debate, I mean, markets exist to serve people.
01:11:59 Speaker_04
People don't exist to serve markets, right? Just like as a threshold issue. Second, I mean, you mentioned your series on Project 2025. What is Project 2025 if not a program to use the levers of government power to structure the lives of Americans?
01:12:15 Speaker_04
And so, you know, that is why Jonathan's point about being you know, averse to concentrations of power in many different forms is a really important one. And I think it's actually a good uniting principle.
01:12:30 Speaker_04
You know, to go back to the point about antitrust being an important tool for people of all stripes, including young progressives, I mean, there are roots for supporting antitrust that you can see in the civil rights movement.
01:12:46 Speaker_04
You see MLK and Bayard Rustin saying in the 1950s and 60s that they viewed their gains in terms of political rights as being limited if they were not backstopped by economic rights.
01:13:00 Speaker_04
MLK was assassinated getting ready to stand in solidarity with sanitation workers in Memphis. That was about economic coordination rights. And so you see those principles infused in the civil rights era.
01:13:16 Speaker_04
And it is really interesting to observe that, you know, the conservative legal movement that grew to distrust government intervention was really upset about judges, right? They were upset.
01:13:29 Speaker_04
Robert Bork wrote at length in the Antitrust Paradox, as you pointed out, about what they saw as a form of judicial activism.
01:13:37 Speaker_04
And it's interesting to see how that dovetailed with another conservative legal movement critique of the time that the Warren and Burger courts had engaged in activism to expand social and political rights.
01:13:51 Speaker_09
Ironically, a lot of what we're promoting is reducing activism, judicial activism, in the context of antitrust. We're saying, go back to the statute. Go back to the original intent of the antitrust laws. Go back to the binding Supreme Court precedent.
01:14:06 Speaker_09
And I think a lot of the Chicago school movement was about taking new principles and trying to, almost through activism, rewrite the antitrust laws without going to Congress.
01:14:16 Speaker_05
That's actually a really good place to start because there has been no court that says more about judicial restraint but doesn't really practice it than this particular Supreme Court.
01:14:27 Speaker_05
We're a Supreme Court podcast, and although we don't talk a lot about antitrust, we have had some antitrust cases pop up over the last couple of terms.
01:14:36 Speaker_05
And so before we let you go, we thought we'd get your take on the court's most recent antitrust case, NCAA versus Alston.
01:14:44 Speaker_05
There was majority opinion from Justice Gorsuch and a banger of a concurrence with Coach Kavanaugh that actually led to Reggie Bush getting his Heisman Trophy back. So might be the first time Brett Kavanaugh has had a salutary social effect. Amazing.
01:14:59 Speaker_05
Yeah.
01:15:00 Speaker_09
Doha should jump in on this and the reason I jumped in is because Doha is the world's leading expert on the intersection between labor and antitrust and was the person in this country most responsible for reviving the intersection between labor and antitrust and has built out our labor antitrust enforcement program and is the most
01:15:23 Speaker_09
expert person in the entire world on this issue. And so I wanted to make sure everyone understood that the words you hear from her are going to be extraordinarily meaningful.
01:15:33 Speaker_05
Doha, I was going to say I was I thought maybe Jonathan was going to say you were the foremost expert on the intersection of Reggie Bush and Brett Kavanaugh, but that seems not to be the case.
01:15:41 Speaker_05
So why don't you tell us about your work infusing labor or integrating labor law and antitrust?
01:15:48 Speaker_04
So let me say Jonathan, I think is overly generous and very kind.
01:15:53 Speaker_04
It is true that labor and antitrust is very near and dear to my heart and I spent many years thinking about the ways that the antitrust laws should be brought to bear in labor markets to make sure that working people had the same kinds of opportunities that we want consumers to have when they go to the grocery store or try to buy a house.
01:16:12 Speaker_04
NCAA v. Alston is really meaningful. I think it's an early inflection point in the sort of set of events that get people, especially young people, excited about antitrust.
01:16:24 Speaker_04
The NCAA for many, many years essentially operated a cartel whereby they set the price of college athletes' labor at zero. And there is incredible literature and research about
01:16:40 Speaker_04
college athletes going hungry because it turns out when they are, when you're a division one college basketball or football player, maybe you need 4,000 calories a day and the NCAA wasn't supporting meal plans to get them the food that they needed in order to be college athletes.
01:16:58 Speaker_04
And of course, at the same time, the NCAA was a billion dollar organization. I think many people have observed also that the victims of this cartel tended to be black and brown, athletes.
01:17:09 Speaker_04
And so this had not been questioned since an older Supreme Court opinion called Board of Regents. And for 30 years, the tyranny of this really persisted. But a private action made it all the way up to the Supreme Court.
01:17:25 Speaker_04
And finally, you had nine votes saying price fixing labor is price fixing. That has been illegal in this country.
01:17:33 Speaker_04
for over 100 years, and it's this really lovely moment where you get uniformity in the court about how wrong this is, right, when this principle had not been questioned for 30 to 40 years.
01:17:46 Speaker_04
And I think you guys have spoken in ways that are compelling about court actions that we find disappointing as citizens, but this was really a bright spot and a moment to rejoice.
01:17:57 Speaker_06
Thank you so much, Doha and Jonathan, for joining us and for bringing more antitrust law into legal culture and more veeing on behalf of the federal government as well.
01:18:10 Speaker_09
Thank you for having us. We will vee away.
01:18:13 Speaker_04
Thank you so much. This was great.
01:18:16 Speaker_06
Strict Scrutiny is a Crooked Media production hosted and executive produced by me, Leah Lippman, Melissa Marie, and Kate Shaw, produced and edited by Melody Rowell.
01:18:24 Speaker_06
Michael Goldsmith is our associate producer, audio support from Kyle Seglin and Charlotte Landis, music by Eddie Cooper, production support from Madeline Harringer and Ari Schwartz.
01:18:33 Speaker_06
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01:18:45 Speaker_06
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01:19:06 Speaker_05
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01:19:18 Speaker_05
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