Ghost Guns are Guns (Duh) AI transcript and summary - episode of podcast Strict Scrutiny

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Episode: "Ghost Guns" are Guns (Duh)

Author: Crooked Media
Duration: 00:47:15

Episode Shownotes

After covering some breaking news, Kate, Melissa and Leah recap last week's oral arguments at the Supreme Court, including cases about civil rights, ghost guns, and the death penalty. Come for the palpable tension between Justices Alito and Kagan, stay for SG Prelogar gently explaining to Justice Alito how a

gun isn’t like an omelet. Follow us on Instagram, Twitter, Threads, and Bluesky

Summary

In this episode of Strict Scrutiny, the hosts analyze significant Supreme Court developments, including the impact of federal laws on abortion rights and the implications of the Comstock Act regarding medication abortion. They explore the ongoing debate surrounding the regulation of ghost guns, highlighting Solicitor General Prelogger's arguments against skepticism from Justice Alito. The episode also addresses prosecutorial misconduct in capital cases, emphasizing the potential injustice of executing innocent individuals. Additionally, the justices' dynamics are scrutinized, revealing tensions and ideological divides within the court on contentious issues.

Go to PodExtra AI's episode page ("Ghost Guns" are Guns (Duh)) to play and view complete AI-processed content: summary, mindmap, topics, takeaways, transcript, keywords and highlights.

Full Transcript

00:00:02 Speaker_01
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.

00:00:44 Speaker_12
Hello, and welcome back to Strict Scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it. We're your hosts. I'm Alyssa Murray. I'm Leah Littman.

00:00:54 Speaker_11
And I'm Kate Shaw. And newsflash, we are less than one month out from the November election, which you know if you haven't been living under a rock. But if you are listening to this podcast, we need you to do a couple of things.

00:01:05 Speaker_11
First, we need you to make sure you are registered to vote. And second, we need you to check in with your friends, your book club, your swim team, your yoga instructor, All your people.

00:01:15 Speaker_09
Your physical therapist.

00:01:16 Speaker_11
Your PT. Your actual therapist. Everyone. All of them. And make sure that if they are eligible to vote, they are registered to vote. Deadlines are coming up fast in a lot of places. They have already passed in a few states.

00:01:28 Speaker_11
In Pennsylvania, where I teach these days, the deadline to register to vote is October 21st. So in a lot of places, you still have time to have big impact. And please, please make sure you do not miss that opportunity. We're begging you.

00:01:43 Speaker_12
We're also halfway through the court's October sitting. So if that doesn't bestir you to go check your registration, I don't know what will.

00:01:52 Speaker_09
Wait until you hear what these guys think about executing potentially innocent people, right?

00:01:57 Speaker_12
You want to vote. You really do. You really do. So here's how this episode is going to run. We are going to break down some breaking news, and then we're going to recap the big arguments that the court heard last week.

00:02:09 Speaker_12
And then we'll briefly look ahead to what's on deck for this week.

00:02:14 Speaker_09
So first, breaking news.

00:02:16 Speaker_09
So remember Moyle last term's EMTALA case, the case about whether the Emergency Medical Treatment and Active Labor Act forbid states from prohibiting hospitals from providing medically necessary abortions, where the court punted and said that it had granted certiorari improvidently and therefore didn't decide the case.

00:02:35 Speaker_09
Remember when some folks in the media said this was a big win for abortion rights? Remember when we called it bullshit and told you not to believe it? Well, the plot has thickened.

00:02:45 Speaker_09
So the question in Moyle, again, was whether a federal law, which requires hospitals that receive federal funds to provide emergency care to pregnant patients in crisis, applied even in states with extreme abortion bans.

00:02:56 Speaker_09
Idaho said the federal law doesn't apply. Supremacy of federal law? Dunnoer.

00:03:02 Speaker_12
And the Supreme Court initially sided with Idaho, staying a district court opinion and letting Idaho enforce its extreme ban, regardless of federal law and regardless of the threat to a pregnant patient's health, leading women in that state to routinely being airlifted out of Idaho to get the necessary abortion care.

00:03:22 Speaker_12
The court ultimately decided that it had intervened too early in the case. We could have told them that and they then sent it back.

00:03:31 Speaker_12
But we warned you that this might be no more than the court finally getting that abortion was a salient electoral issue. And this happens to be an election year. And so perhaps this

00:03:45 Speaker_12
decision to send back as improvidently granted was really just a punt designed to minimize the impact of abortion and this decision in the electoral cycle and in our politics, the passive vices of the Supreme Court, I mean, neutral virtues as they were anyway.

00:04:05 Speaker_12
Well, listeners, a nearly identical case was back at the court last week, though this time it was Texas rather than Idaho trying to enforce its extreme abortion law, notwithstanding the impact of federal law.

00:04:19 Speaker_12
And in an unsigned order, one of the many that the court issued last week, the court again allowed a state to defy federal law and enforce its draconian abortion ban. Let's just break this down.

00:04:34 Speaker_12
The court is willing to intervene to block a lower court opinion when the lower court acts to respect federal law and protect pregnant patients in Idaho.

00:04:44 Speaker_12
But the court stays hands off and leaves the status quo intact when the lower court allows a state abortion ban to trump said federal law. I think I get it now.

00:04:55 Speaker_09
What is it like fool me once, fool me twice, etc, etc.

00:04:59 Speaker_12
Just keep fooling me with your six to three conservative supermajority.

00:05:03 Speaker_11
Have your way with us. Shame on them in all events. And to be clear, the federal government here was actually just asking the court for what's called a GVR, a grant vacate and remand.

00:05:13 Speaker_11
So they were asking for an order in which the court grants cert but then vacates the decision below and rather than hearing arguments on the merits, remands the case for further proceedings below.

00:05:24 Speaker_11
So the federal government was just asking the Supreme Court to tell the lower courts to take another look at this question in light of Moyle and in particular in light of the federal government's concession at oral argument that individual doctors can lodge conscience objections in circumstances where they do not want to be compelled to provide abortion care.

00:05:43 Speaker_11
And the court's refusal to even grant that modest ask, right, a GVR in light of the dig in Moyle and the opinions that were written in Moyle, I think sends an incredibly ominous signal about what the court is likely to do when the question is back before the justices in a non-election year, or maybe, I don't know, later this year after the election.

00:06:03 Speaker_11
So they've now had two... Literally on November 6th. Well, I think, yeah. So in terms of the timing, they have had... I'm just kidding. It's not November 7th. No, but it could be.

00:06:12 Speaker_09
It'll be November 7th.

00:06:13 Speaker_11
Right. So they have had two chances to clarify that pregnant patients are entitled to care under EMTALA. They have declined to do that both times. So I think that is the really important kind of top line.

00:06:25 Speaker_11
In the near term, the decision will compound the horror that is a medically complicated pregnancy in the state of Texas. So remember the Texas Supreme Court.

00:06:34 Speaker_11
in the Zorosky case made clear that the medical exception in state law is essentially meaningless. And now ERs can't even abide by federal standards when pregnant patients show up in acute distress. It is appalling.

00:06:45 Speaker_11
But in terms of like when this may be back before SCOTUS, so no, it won't be November 6th or 7th, but it could be kind of fast, probably not out of Texas, but out of Idaho, because in the Idaho case, Moyle,

00:06:57 Speaker_11
Actually, the on-bank Ninth Circuit is in the midst of getting briefs and has scheduled oral arguments for the week of December 9th.

00:07:04 Speaker_11
So the Texas case actually will probably involve a remand to the district court, and I'm not sure when that one will be back.

00:07:09 Speaker_11
But it seems like Moyle could be back in front of the Supreme Court as early as, you know, the first couple of months of 2025, at least with a petition pending.

00:07:16 Speaker_09
I know what Sam Alito's New Year's resolution is. I've got a guess now. Suspend the protections of EMTALA nationwide.

00:07:24 Speaker_11
Yeah, yeah. So I guess Idaho. I was just stopping to think whether he would have a preference as between the two. It doesn't really matter. He would like to make sure that no one in any state gets the benefits of EMTALA.

00:07:33 Speaker_12
You say Idaho potato. I say Texas potato. It won't really matter. It won't really matter.

00:07:39 Speaker_12
In other news, the court also denied Saoirse Rauri in an appeal of the Alabama Supreme Court's decision holding that fertilized embryos are extra uterine children for purposes of Alabama's wrongful death statute.

00:07:52 Speaker_10
Melissa, I truly love the way you say extra uterine children.

00:07:56 Speaker_09
Let me say it again.

00:07:58 Speaker_10
I want it as my ringtone.

00:08:00 Speaker_09
Yeah, it's just like dripping with disdain. It's very apparent.

00:08:07 Speaker_12
I mean, you can drip with swagoo or drip with disdain. I prefer disdain in the case of extra uterine children in any event.

00:08:17 Speaker_12
The Alabama Supreme Court, if you will recall, issued a decision in which it said that fertilized embryos are extra uterine children for purposes of Alabama's wrongful death statute.

00:08:28 Speaker_12
And when that came down, we were all, I think, rightfully shocked by the Alabama Supreme Court's very, very fetal personhood curious stance. But the issue here really presented a number of issues that are really questions of state law.

00:08:44 Speaker_12
So it wasn't that surprising that the Supreme Court denied this petition for review. But again, just another reminder that fetal personhood watch is really on and it's coming. So stay tuned.

00:08:58 Speaker_09
On that beat, we have an update on one of the anti-abortion cases brought by Jonathan Mitchell.

00:09:05 Speaker_09
This is the case filed by the ex-husband after the wife obtained medication abortion, the ex-husband sued the people he said helped his wife procure an abortion, and the plaintiff in the case, the ex-husband, dismissed the case

00:09:19 Speaker_09
after the court refused to compel the production of evidence the plaintiff had sought, including where they got the abortion medication and whatnot. And that's a good result, to be clear. But the reasoning in the case is a little scary.

00:09:32 Speaker_09
So the court refused to compel production of the evidence, in part because it suggested doing so might cause the parties to incriminate themselves by indicating they violated, wait for it,

00:09:45 Speaker_09
the Comstock Act by distributing medication abortion through the mail. So that's scary, right?

00:09:52 Speaker_09
This is a court suggesting that there is a chance the Comstock Act, the 1873 Victorian anti-vice law, does in fact prohibit the distribution of medication abortion through the mails and functions as, again, an abortion ban that is already on the books that a Republican administration could begin enforcing without Congress having to pass a new law, or at least try to do so.

00:10:16 Speaker_12
That case was also really fetal personhood curious as well because you'll recall that Texas already has the heartbeat act Which is the bounty hunter a law that allows private parties to sue other citizens for helping someone to get an abortion So that law could have been used here But instead Jonathan Mitchell and the ex-husband actually filed suit under Texas's wrongful death statute and that was really important because a wrongful death statute only applies in circumstances where

00:10:43 Speaker_12
a person has been killed. So the idea here is that the provision of medication abortion that these women helped the pregnant person get was the homicide of the fetus and the fetus is a person for whom the husband can now recover in wrongful death. So

00:11:02 Speaker_12
Layers.

00:11:03 Speaker_11
There are layers to this stuff. Well, it's scary in its inception, and the era that we are in is one in which even a good outcome or result in a particular case is fucking terrifying as the case here.

00:11:16 Speaker_12
You're like, you're happy about the Comstock gap, but also not happy about the Comstock gap.

00:11:20 Speaker_11
I know. I know.

00:11:22 Speaker_11
So okay, in other news, last week, friend of the pod, Senator Sheldon Whiteboard Whitehouse issued a report, evidently six years in the making, about the FBI's investigation, or really as the report tells it, non-investigation, of the sexual assault allegations made against Brett Kavanaugh.

00:11:39 Speaker_11
As listeners will, I'm sure, remember, Dr. Christine Blasey Ford accused Kavanaugh of attempting to sexually assault her when they were both high school students.

00:11:46 Speaker_11
After she testified, the Senate Judiciary Committee asked the FBI to conduct a supplemental background investigation into these allegations and some others, adjourning the hearing to ostensibly allow the FBI to investigate.

00:11:58 Speaker_12
Except that the report suggests that the investigation was kind of a sham. According to the report, the Trump White House prevented the FBI from investigating witnesses and following up on those leads.

00:12:11 Speaker_12
It says that the FBI set up a tip line, but then all of those thousands of tips went directly to the White House and the FBI never investigated any of them.

00:12:22 Speaker_12
Yep, despite all of those deficiencies, multiple senators cited the investigation's failure to produce corroborating evidence of sexual assault as a reason that they could comfortably vote for Brett Kavanaugh.

00:12:36 Speaker_12
And that, listeners, is how we got the fifth vote to overturn Roe versus Wade. So good work, fellas. Absolutely legendary.

00:12:56 Speaker_09
So with that breaking news, let's go on to recaps. We are halfway through the October sitting, as we said at the top, so we're going to recap the biggest cases the court heard last week.

00:13:07 Speaker_09
The very first case the court heard this term was Williams v. Washington, a case about when you can file a Section 1983 federal civil rights claim in state court. Section 1983 is the general federal civil rights statute.

00:13:21 Speaker_09
The parties frame the case as whether the exhaustion of state administrative remedies is required before a plaintiff brings a federal civil rights claim in state court.

00:13:32 Speaker_09
So what that means is whether a plaintiff has to first try to prevail or resolve a matter through state administrative agencies before filing suit in state court.

00:13:40 Speaker_09
A prior Supreme Court decision, Patsey v. Board of Regents, had held that exhaustion of state administrative remedies was not required to bring a federal civil rights action, and the court has since made clear that this rule equally applies when you're trying to vindicate your federal rights in state court.

00:13:57 Speaker_09
Now, in this case, the state court below said that Patsy didn't apply because the state had created an exclusive state administrative scheme in state law, and the state rule was jurisdictional. This is nonsense.

00:14:09 Speaker_09
States can't nullify or alter the federal rules established by federal law here by the General Civil Rights Statute, Section 1983. It doesn't matter whether the state has cast them as jurisdictional or exclusive, right?

00:14:23 Speaker_09
If it walks like a duck, quacks like a duck, it's a duck.

00:14:25 Speaker_11
And in general terms, the kind of theory at the heart of this case is one that could pose a genuine threat to civil rights enforcement, right? Section 1983 is an incredibly important vehicle for the protection of rights.

00:14:35 Speaker_11
And ruling for Alabama, which was the state here, could give states permission and perverse incentives to erect all kinds of procedures that litigants would have to pursue before filing a claim in court.

00:14:47 Speaker_11
Luckily, though, there really didn't seem to be a majority on the court inclined to rule for the state here.

00:14:52 Speaker_12
There also didn't seem to be a whole lot of palpable warmth between the justices on the bench during this first oral argument of the term.

00:15:02 Speaker_12
So if you were wondering whether absence from Samuel Alito has made anyone's heart grow fonder for the gentleman, I think the answer is a resounding abso-fucking-not.

00:15:15 Speaker_12
See, e.g., this Sam Alito effort to make nice with Justice Kagan and her, shall I say it,

00:15:22 Speaker_02
Can I ask about the dimensions of your argument in two different ways? I'll give you just a couple of hypotheticals.

00:15:34 Speaker_03
I don't want to derail. Justice Kagan, I think, had a number of hypotheticals. So I don't want to interrupt that. But then, eventually, I do want to ask you about Mr. Unikowsky's narrow argument.

00:15:51 Speaker_02
It doesn't matter which way we do it.

00:15:53 Speaker_12
Translation, shoot your shot, Ace. I'm going to pay you in dust.

00:15:58 Speaker_09
Elena Kagan, pouring one out for all the women who do not aspire to be humble, as against Sam Alito. That was a reference to, if you haven't listened to it, Vice President Harris's interview with Alex Cooper on Alex Cooper's podcast, Call Her Daddy.

00:16:14 Speaker_09
It's a fantastic interview. Definitely go listen to it. But in the podcast, Alex asked Vice President Harris about remarks that Vice President Harris didn't have any children keeping her humble.

00:16:26 Speaker_12
Sarah Huckabee Sanders, I think you're referring to, the governor of Arkansas said that.

00:16:31 Speaker_09
Yeah, the one who wants to send children to the mines. Yeah, she was asked about her remarks, and Vice President Harris had some things to say about it. So that's that.

00:16:42 Speaker_09
Anyways, so on the first day of the term, the court heard another civil rights case, Lackey v. Stinney. This case presents multiple circuit splits on an important issue, which is whether a plaintiff who obtains only a preliminary injunction

00:16:55 Speaker_09
is a prevailing party entitled to attorney's fees. A federal law section 1988 and other federal civil rights statutes provide that parties who prevail in federal civil rights actions may be entitled to attorney's fees.

00:17:09 Speaker_09
The question here is whether to be a prevailing party for purposes of the civil rights statutes, you have to obtain a final favorable ruling from a court, such as a judgment on the merits or a court ordered consent decree,

00:17:21 Speaker_09
as opposed to here, what the plaintiffs got, a preliminary injunction, which indicates that you are likely to prevail on the merits.

00:17:29 Speaker_09
There's one more wrinkle here, which is the plaintiffs challenged a Virginia fines and fees scheme and were granted a preliminary injunction.

00:17:36 Speaker_09
But while the case was pending, after the litigants prevailed in their request for a preliminary injunction, the Virginia state legislature, at the urging of state officials, repealed the fines and fees scheme that the plaintiffs had challenged.

00:17:49 Speaker_09
that further complicates the question of whether the plaintiffs are prevailing parties entitled to attorney's fees.

00:17:55 Speaker_12
In our last episode, we also briefly flagged Royal Canaan, a case about federal jurisdiction.

00:18:01 Speaker_12
And we're not going to go into a whole lot of detail about it, but it did seem from the oral argument that it was very likely that the respondent in the case was going to prevail, which is to say that the court seems very likely to say that when a plaintiff amends their complaint to take out a federal claim,

00:18:18 Speaker_12
the case isn't removable. So there was this really interesting exchange with the respondent's lawyer that we did want to highlight, just for kicks. So let's roll the tape.

00:18:29 Speaker_13
Counsel, we have had cases where we came out the other way than every court of appeals had come out, right?

00:18:37 Speaker_06
Yes, you have, Mr. Chief Justice.

00:18:39 Speaker_13
Like what?

00:18:40 Speaker_06
I think there are. That's a great question. And none spring to mind, but I am positive that I could find some. Central bank.

00:18:50 Speaker_13
Well, I mean, it's pretty bold to take the position without knowing one. Fair. Was that the case in Chadha?

00:19:00 Speaker_06
INS versus Chadha?

00:19:01 Speaker_13
Yes.

00:19:03 Speaker_06
I don't know. I apologize.

00:19:04 Speaker_02
Somebody will check. Gosh, I'm not sure which way that cuts.

00:19:09 Speaker_09
I love the idea of just confidently asserting a proposition to the Supreme Court when you don't actually have any examples to substantiate it.

00:19:18 Speaker_12
Oh, but somebody will check.

00:19:20 Speaker_09
Oh, somebody will check. I mean, of course, there are examples, right? Like this describes like Rahaf and whatnot. But it's just like, you know, find site here is basically the attitude that the litigant took in front of the Supreme Court.

00:19:33 Speaker_09
And I guess I just wanted to step back, you know, we're kind of a month into law school, you know, there are first years who are just kind of getting their bearings. And I know it oftentimes seems like

00:19:46 Speaker_09
The people who are speaking quickly, confidently, with punchy turns of phrases and whatnot, they're the ones getting all of this? No, not necessarily. That is one skill. There are many, many, many other skills that go into being an excellent lawyer.

00:20:04 Speaker_09
reading, researching, not making shit up, the list goes on. So just wanted to kind of step back and make that note for the law students in the audience.

00:20:17 Speaker_11
All right, so moving on to one of the big cases that we wanted to talk about from last week, and that is Garland versus Vanderstock, the case about whether the ATF has the authority to regulate ghost guns like any other firearms.

00:20:28 Speaker_11
We struck a fairly pessimistic note about this case last week when we predicted that the case might well go the way of Garland v. Cargill, which was a case that last term struck down an ATF regulation of bump stocks.

00:20:41 Speaker_11
And I am delighted to report that we may well have been wrong in our pessimism. When we're wrong, we say we're wrong. Yeah.

00:20:49 Speaker_09
Yeah. So I'm not totally sure we predicted that given that we noted that the court had stayed lower court decisions putting it on hold. And I'm also unwilling to just take on the argument that this is definitely what the court is going to do.

00:21:01 Speaker_09
Although I think it is more likely than not that they uphold the regulation. Sorry, Melissa, did you want to?

00:21:06 Speaker_12
Well, we'll get to this. So I'm happy to be wrong on this, but I think it's still too early to say that we were totally wrong on this one. So let's see. And again, the devil is in the details. Really, Clarence Thomas is in the details.

00:21:19 Speaker_12
So you kind of have to wait.

00:21:21 Speaker_09
As a Samuelino, it turns out. So Solicitor General Prelogger, argued the case herself on behalf of the federal government.

00:21:27 Speaker_09
You know, somewhat interesting because her deputy, Brian Fletcher, had handled Cargill, although of course she had argued the big Second Amendment case, Rahimi.

00:21:35 Speaker_09
And while she is always excellent, she did seem to once again transcend to a higher plane of advocacy during this argument.

00:21:44 Speaker_11
How many more planes are there, do we think?

00:21:46 Speaker_12
We have highlighted before all of the ways that Solicitor General Prelogger has perhaps turned Justice Alito into a communist, because he seems to have no trouble getting publicly owned by her on a regular basis.

00:22:01 Speaker_12
And this argument was absolutely no exception. So let's roll the tape.

00:22:07 Speaker_03
No, I want to stick with the definition of weapon for just a second. Oh, sure. I'm going to show you. Here's a blank pad. And here's a pen. All right? Is this a grocery list?

00:22:18 Speaker_08
I don't think that that's a grocery list, but the reason for that is because there are a lot of things you could use those products for to create something other than a grocery list.

00:22:26 Speaker_03
And so it's not like they're If I show you, I put out on a counter some eggs, some chopped up ham, some chopped up pepper, and onions. Is that a Western omelet?

00:22:40 Speaker_08
No, because again, those items have well-known other uses to become something other than an omelet.

00:22:46 Speaker_08
The key difference here is that these weapon parts kits are designed and intended to be used as instruments of combat, and they have no other conceivable use.

00:22:54 Speaker_12
Shorter pre-logger. My dude, do you even know what an omelet is?

00:22:58 Speaker_09
Is this guy consuming raw eggs and vegetables every morning? And that's why he's so cranky when he gets on the bench. He's eating raw eggs, doing P90X.

00:23:09 Speaker_11
I just loved, so he's clearly, in the first example, he's holding up his pad, he's holding up a pen, and he thinks he's like, gotcha, by asking, is this a grocery list?

00:23:17 Speaker_09
This is gonna be the time. This is gonna be the time.

00:23:20 Speaker_11
Is this a grocery list? I brought props. And I'm going to best her with my props. And she has to concede it's not a grocery list. It's not a grocery – it's a pad of paper. And you can do other things.

00:23:32 Speaker_11
And then with the egg example, it would be amazing if he did. I was not in court. But I do not believe he actually pulled out eggs to show her to ask if in fact – I would have respected him so much more if he had.

00:23:43 Speaker_09
If he's just cracking raw eggs up at the Supreme Court. Dating Ham. Dating Ham.

00:23:48 Speaker_11
The problem is I didn't bring enough exhibits and I will next time. But you could just hear him deflate when she answers. Like she just got him and it was glorious. It's like, okay, it's not an omelet. All right.

00:24:05 Speaker_09
Right. Okay, fine. Um, so in the government's brief, General Prelogger had analogized a ghost gun to an IKEA furniture flat pack that is just because it's not assembled doesn't mean it's not furniture.

00:24:18 Speaker_09
And it appears that Sam Alito took that analogy personally, as he is often want to do so roll that tape here.

00:24:26 Speaker_03
So what level of expertise is taken into account? What collection of tools is taken into account? Can you provide any sort of a time limit? How long must it take?

00:24:38 Speaker_03
Some of us who are not and don't have a lot of mechanical ability have spent hours and hours and hours trying to assemble things that we've purchased.

00:24:51 Speaker_08
And with you on that one, Justice Alito, as someone who struggles with IKEA furniture, let me do my best to try to be responsive to that question.

00:24:59 Speaker_12
I like how she was just sort of like, OK, sir, we're going to find some common ground here. I can't put together IKEA furniture either. It's one of the rare places where I'm not great at everything. How about you?

00:25:13 Speaker_11
Sure, Elizabeth. Sure, you struggle. You're just trying to make Sam feel better. Right. Exactly. She's also like a task rabbit and putting those things together for people in her spare time.

00:25:23 Speaker_11
We know she put stuff together because separately in the argument she talked about actually having assembled one of these ghost guns herself.

00:25:28 Speaker_11
So she clearly decided to literally take this question into her own hands because she knew she was going to get pressed with a lot of questions about the specific mechanics of assembling one of these.

00:25:39 Speaker_11
And clearly she decided that she wanted to be able to speak from experience about the answers to those questions. So take a listen to this clip.

00:25:46 Speaker_08
I actually had the experience of putting one of these kits together. And it's just like what the record shows. There are usually only a couple of steps. The first thing that most of the kits require is drilling the holes.

00:25:56 Speaker_08
Usually it's six holes and you do it with the jig. So you have the product there in the tool and it removes all of the trial and error or guesswork. You know exactly where to drill in seconds.

00:26:05 Speaker_08
The second step is to remove the extra plastic blocking tabs. That, again, doesn't require much work at all because you clip them off with a pair of pliers or a box cutter.

00:26:13 Speaker_08
You can file it down with a jig as a template using a metal nail file or using a Dremel rotary tool that a lot of people, especially dog owners, own because it's helpful for trimming your dog's nails.

00:26:25 Speaker_08
At that point, you have a fully functional framer receiver and you can quickly assemble it into a gun in no time at all. That's how the products were marketed. That's how they were sold.

00:26:34 Speaker_12
I love that she went full amosexual on them. It's like, yes, I put together a ghost gun. It took me 15 minutes.

00:26:41 Speaker_09
This was also just like a big, you know, not-all-women-aspire-to-be-humble moment. Like, I've just been assembling ghost gun kits in my spare time. Sam, what have you been doing?

00:26:52 Speaker_11
Also, did she maybe say she cuts her dog's toenails herself?

00:26:58 Speaker_09
Yes, she did say that.

00:26:59 Speaker_11
She said some people do.

00:27:01 Speaker_09
And that is not for the faint of heart. Let me know.

00:27:03 Speaker_11
I've never done it. I can't even really cut my children's fingernails.

00:27:06 Speaker_12
It's not easy. But she said she had one of those implements that you use to like literally cut and file down your dog's nails.

00:27:12 Speaker_11
Or she said someone, yeah. She says it's like people might have them. Yeah, yeah. So we think she does that. But you don't know about that unless you actually have one. That was my read. I think so.

00:27:21 Speaker_09
Still, it's not easy.

00:27:23 Speaker_11
she does make it look easy though. And for that reason, by the end of the argument, I did feel pretty confident that she had a solid majority on her side, which again, maybe I read our preview differently.

00:27:34 Speaker_11
I felt because of Garland versus Cargill and because it's a different statute, the arguments are distinct, but the vibes are very similar. And because of that, I thought there was a really good chance that this was going to go the way of Cargill.

00:27:48 Speaker_12
I really think this is in the vein of the Colin Allred, Ted Cruz Senate race in Texas, where it was solidly in the Republican camp. Now it's just leaning Republican, because Allred has made some real inroads.

00:28:01 Speaker_12
But the real question is, what the fuck, Texas? Like, why are you voiding for the gentleman from Cancun all over again when you have the option? Right? This is all in the realm of that.

00:28:12 Speaker_12
I don't understand how that race is not solidly a runaway race for Colin Allred. I similarly don't understand why this isn't going to be a 9-0 unanimous opinion in which the federal government gets a resounding win.

00:28:27 Speaker_09
Yeah, and just to underscore why it is so perplexing, this statute literally defines firearms to include items that can readily be converted into firearms. And that is exactly what a ghost gun kit does.

00:28:42 Speaker_09
And yet some justices are going to say, that is not a firearm that ATF can regulate, which is what makes this so outlandish.

00:28:59 Speaker_12
So another big case that the court heard last week was one that they should be relatively familiar with because it has been up and down to the Supreme Court a number of times, although on other issues.

00:29:09 Speaker_12
And this was, of course, Glossop versus Oklahoma. We previewed Glossop last week.

00:29:14 Speaker_12
It's a death penalty case that features the rare episode where the prosecutors actually admit to committing some errors here, which is to say that the Oklahoma attorney general is admitting

00:29:26 Speaker_12
that the prosecutors in this case violated the Constitution and is asking that the defendant, Richard Glossop, be granted a new trial. So this was definitely an argument with real here-come-the-generals energy.

00:29:39 Speaker_12
Two former Solicitor Generals were there representing Mr. Glossop. Seth Waxman was there representing Glossop directly, and Paul Clement was there representing the Oklahoma Attorney General. which again was asking the court to order a new trial.

00:29:55 Speaker_12
There was an appointed amicus who argued in defense of the Oklahoma court's position here.

00:30:01 Speaker_11
So here is Paul Clement distilling the issue in the case, and he's talking about Oklahoma Attorney General Drummond.

00:30:07 Speaker_07
And General Drummond reached the conclusion, regretfully, but reached the conclusion, our prosecutors elicited perjury here and a man's going to go to his death. We can't allow that to happen.

00:30:18 Speaker_11
But despite the facial clarity and simplicity of the claim that Clement was making to the court, at least some members of the court seemed to say, not so fast. Maybe we can allow that to happen.

00:30:29 Speaker_11
So if we were, or at least I was unduly pessimistic in Vanderstock, I think it's possible that we are unduly optimistic here. And while it's clear that the Democratic appointees are on the side of Glossop and the Oklahoma Attorney General and justice,

00:30:45 Speaker_11
It's also clear that Alito and Thomas and I think Roberts are not and I found it at least just pretty hard to read Kavanaugh and Barrett and that's the whole case because Gorsuch is recused.

00:30:57 Speaker_09
And just to underscore what is happening here, like the Supreme Court is literally deliberating over whether when prosecutors elicit perjured testimony, refuse to disclose exculpatory material, then admit their error,

00:31:15 Speaker_09
Can state courts nonetheless force the state to execute a potentially innocent person?

00:31:20 Speaker_09
Like this is the big legal question that they're devoting their time to and the fact that the chief I mean, I I was less sure exactly where the chief was leaning I think sometimes he just asked difficult questions of both sides in a lot of these cases where it's a this just cannot be situation and

00:31:38 Speaker_09
he does ultimately find his way to the right side, but not at all confident, which again, is that should be the story here. Like we don't know how the court is actually going to rule on this issue, which is wild.

00:31:52 Speaker_09
And a lot of the argument turned on whether the Oklahoma court decision rested on what's called an independent and adequate state ground, that is a state rule that was not related to the underlying federal constitutional claims.

00:32:06 Speaker_09
And so there was some fairly technical parsing of the Oklahoma Court of Criminal Appeals opinion being reviewed, whether the decision rested on state or federal grounds, and also whether there had been a waiver, that is whether the state had waived its objection to any state law procedural requirements.

00:32:22 Speaker_09
that might be an impediment to reaching the federal constitutional claims.

00:32:27 Speaker_09
But again, I just don't think this is that hard because their reason, the court reason for why they weren't going to consider the federal constitutional claims to the extent they didn't is that

00:32:37 Speaker_09
the defendant, the defense could have discovered them earlier. But that's bound up with whether the prosecutors failed to disclose exculpatory material, and also with whether they elicited perjured testimony.

00:32:49 Speaker_09
And aside from that, in any case, like where a state is conceding error, you know, as the justices, the Democratic appointees noted, the courts have been totally fine with just accepting that concession of air. And now all of a sudden, they aren't.

00:33:01 Speaker_11
So sometimes you, I think, are genuinely in a difficult position where these technical legal doctrines and principles of justice are in actual tension, but that does not seem to be the case here, which will make it just so wildly lawless and unjust if some solid portion of the court, God forbid up to a majority of it, decides like, you know, oops, maybe there was a little perjury, a little false testimony, but there's nothing to be done here.

00:33:25 Speaker_11
So a couple of other things to note about the argument. I at least found it pretty unsettling how much attention was paid to an amicus brief that had been filed in the case by the family of the victim.

00:33:36 Speaker_11
The family was represented by former federal judge Paul Cassell. And despite the fact that this amicus brief

00:33:43 Speaker_11
contained information that was concededly not in the record of the case, it came up again and again in the oral argument, including the theories that it offered to explain one important piece of evidence in the case.

00:33:56 Speaker_11
Again, this brief itself, you know, was filed in the Supreme Court, not in the lower courts, and it floated theories to explain evidence that were also very much not in the record. So let's just play a couple of places where this brief was referenced.

00:34:10 Speaker_03
And the Ventreese family's amicus brief provides a pretty compelling counter reading of that. And you want us to say, well, just pretend it doesn't exist and read those notes the way we think they should be read.

00:34:28 Speaker_04
As the Ventreese family's amicus brief explains, it indicates that the investigation the attorney general conducted here and the other independent investigations were not particularly thorough.

00:34:38 Speaker_00
Okay, I want to ask you about the standard of review for looking at Smotherman's notes, because one of the difficulties, I think, with the notes is that, putting aside whether the Ventrese brief is in the record, it's not.

00:34:50 Speaker_00
It still reveals that there are multiple plausible interpretations of the notes.

00:34:56 Speaker_14
Now, on the Ventrese issue, that's non-record evidence. So it's not before us.

00:35:03 Speaker_05
It's not only not before you, it wasn't the basis on, it wasn't before the Oklahoma Court of Criminal Appeals.

00:35:10 Speaker_09
This is what happens when you have theories not evidence, as we talked about last week in the unsealed immunity brief. A lot of theories.

00:35:20 Speaker_12
Just as Thomas does this a lot as well, there was another death penalty case a couple of years ago where he, I can't recall if it was a death penalty case or a Fourth Amendment case, but it was something involving a pretty heinous crime.

00:35:31 Speaker_12
And he just, again, went over and over into this brief that really detailed the family's perspective. Victim impact statements, pain, all of that. This stuff is, this is their bread and butter and they love it.

00:35:46 Speaker_09
You know who Justice Thomas also thought was unfairly victimized and pained by this entire case? Who? The poor prosecutors who the defense was suggesting had elicited perjured testimony and failed to disclose exculpatory evidence.

00:36:03 Speaker_09
Like there were several moments in the argument where he seemed just indignant

00:36:06 Speaker_09
at the prospect that anyone would deign to suggest prosecutors violated the Constitution without giving them an explanation or an offer to explain themselves, even though they had such an offer and chance to explain themselves in this case.

00:36:21 Speaker_09
It was just wild. I mean, it was like taking Sam Alito's conservative victimization complex and persecution complex and then just applying it to states trying to execute people. Like, it was just wild.

00:36:36 Speaker_12
Well, actually, Leah, I'm glad you mentioned Justice Alito, because I am old enough to remember when, in the context of a state prosecution or a request for information in a state investigation of Donald Trump, Sam Alito had a lot to say about the nefarious influences of state-level prosecutors.

00:36:53 Speaker_09
Or you remember when Justice Thomas, for example, basically suggested anyone who thought the Trump administration's addition of the citizenship question to the census was engaged in some cockamamie conspiracy theory.

00:37:06 Speaker_09
And how could you possibly think that? So it's not like these guys are above maligning state and federal officials when it suits them.

00:37:15 Speaker_09
But God forbid anyone suggests right prosecutors might have elicited perjured testimony in order to send a potentially innocent man to death that that's just going too far. Follow us for more tips on calling out Supreme Court hypocrisy.

00:37:29 Speaker_11
But it's both obviously the contrast, the hypocrisy, with their suppositions about prosecutors and their motives in the Trump cases.

00:37:36 Speaker_11
But it was also so bizarre here because there was this suggestion that the prosecutors hadn't even been interviewed or questioned. And in fact, they definitely had. So the factual predicate for the indignation was completely wrong.

00:37:47 Speaker_11
But when does that ever stop them?

00:37:49 Speaker_09
It's like, we're just going to ignore the evidence in the record and choose to focus on the evidence outside the record, right? Choices, as Tatiana would say.

00:37:59 Speaker_11
So in part because of this amicus brief filed on behalf of the Vantrese family, it did seem to me that there was at least a chance the court would send the case back down for an evidentiary hearing, which is something that came up a couple of times.

00:38:11 Speaker_11
And I think that would just create truly terrible precedent around amicus briefs and their ability to totally change or derail the trajectory of a case, right?

00:38:19 Speaker_11
If you can file an amicus brief at the Supreme Court, including facts and speculation, and then have the justices decide that whatever has transpired below, a new evidentiary hearing is required, I just think you pair that with the way that the diagrams and gifts from the Firearms Policy Coalition amicus brief in the Cargill case seem to really shape Justice Thomas's opinion.

00:38:43 Speaker_11
You know, remember those appeared, you know, five of them maybe in the actual published opinion, those diagrams and a link to a gif from the amicus brief.

00:38:52 Speaker_11
It just feels like the court will have fully created a set of incentives that if interested parties want to change policy in this country, not just alter the trajectory of a particular case, but maybe like change policy writ large, there is no reason to bother with Congress, the executive branch, elections, none of it.

00:39:10 Speaker_11
Get a good amicus brief, file it in the Supreme Court, and that is the most expeditious and efficacious way to actually change the law and to change policy. And that's madness.

00:39:22 Speaker_12
So it's actually, it's such a terrific point, especially when you layer on, like, there are so few checks for amicus briefs. Like, anyone can file an amicus brief.

00:39:31 Speaker_12
Nobody checks that what is being purported in the amicus brief is right, is factually accurate. I mean, Allie Larson at William & Mary has written tons of stuff on this. And again, all really terrific points.

00:39:45 Speaker_12
The incentives are already profound toward amicus briefs, and this would just expand those.

00:39:51 Speaker_09
I don't know why, but when you were saying no one really checks these, an image popped into my mind, kind of from the office episode where Michael learns that Oscar is gay.

00:40:04 Speaker_09
And I don't know if you remember this, but like Jim gifts him an item that he tells him is gaydar. And it's this item from sharper image that just like randomly beeps. And so Michael is just like,

00:40:17 Speaker_09
kind of throwing it in the air and passing it, you know, across several people, and sometimes it beeps.

00:40:23 Speaker_09
I'm just imagining Sam Alito with like some sharper image thing that he's just like running over amicus briefs, and occasionally it beeps, and he's like, oh, that's a good one. That's a good one. Anyway, sorry, that was a tangent.

00:40:33 Speaker_09
Okay, so back to the rest of the argument. Justice Kagan did try to cut to the heart of the issue in the case.

00:40:40 Speaker_02
A separate question, though, about just, he lied on the stand.

00:40:45 Speaker_02
And in a case where the entire case rested on the testimony of one person and his credibility, if you can show that he lied on the stand when he said, I never saw a psychiatrist and I didn't get a prescription from the psychiatrist.

00:41:00 Speaker_02
It was, you know, they gave me lithium for a common cold. And then the prosecutor says, well, that was a lie. I better correct that under NAPU and doesn't. That seems pretty material to me. I mean, it's just your one witness has been exposed as a liar.

00:41:17 Speaker_04
A couple of responses, Justice Kagan. I think first there are threshold elements under NAPU, including whether this was false testimony. I don't think it was false testimony, but I want to take your question on its own terms.

00:41:27 Speaker_04
This false testimony that Snead saw a psychiatrist, that would have been harmful to petitioner under his theory of the case. Remember, the prosecution- False is false.

00:41:36 Speaker_09
I love this. False is false. False is false. We're just going to stop there. Again, not all women aspire to be humble. We're just going to shoot that one down, boys.

00:41:47 Speaker_11
So she was great in this argument. I mean, you know, we were sort of talking about the chilly affect, right, that she displayed vis-a-vis her colleague Sam, who seemed to be trying to like make nice.

00:41:59 Speaker_11
And I'm sure we were all trying to get a sense from this first week back of what the dynamics among them are really like. And as like sharp and excellent as she was and always is, like, The liberals sound tired to me, like they sound depleted.

00:42:15 Speaker_11
And I guess I'm not surprised, but the summer, whatever they did, did not fully expunge the madness that June and the beginning of July unleashed.

00:42:25 Speaker_12
So maybe I can add some color to this. So when Justice Kagan recently came to NYU in September, and you know, we did this conversation, she did mention that

00:42:36 Speaker_12
they don't really have summers anymore the way that they used to where they had these long expanses of time away from each other that because of the uptick and shadow docket activity, they actually are in conversation even if they're not physically at One First Street for much of the summer.

00:42:55 Speaker_12
So the fact of the matter may well be she's like fucking tired because she can't get away from them. She's had to look at his own list all summer.

00:43:01 Speaker_09
Well, San Lito's always in her inbox, right? She can't just like auto-delete that from July to September.

00:43:06 Speaker_12
That's no good. Yeah. She needs a break. I think all three of them need a break. Maybe Amy Coney Barrett needs a break, too. She seemed over them as well.

00:43:15 Speaker_11
Yeah. So did you guys also agree that this looked, Leah, I think you said maybe the pro-reality, anti-Kafka majority would win going in, but coming out less clear. Yeah. I don't actually know the procedures in Oklahoma for clemency.

00:43:31 Speaker_11
There had been an unsuccessful clemency effort previously.

00:43:33 Speaker_11
I mean, I suppose it is possible that the safety valve of clemency, right, which does exist in some form in every state, would remain a possibility, but that is not a reason for the court to be excused from actually doing its job here.

00:43:47 Speaker_12
This week at the court, there are a number of cases. There's a Rico case. Rico is the racketeer influence and corrupt organization statute. If you watch The Sopranos, this is the federal legislation that Tony Soprano absolutely lived in fear of.

00:44:01 Speaker_12
There is also an immigration case, a case involving veterans benefits and now wait for it. a really important environmental case, which means there is an opportunity for the court to continue to do more to completely jack up the environment.

00:44:17 Speaker_12
So this case is called City and County of San Francisco versus the EPA. And again, it's a quite technical case, but the TLDR is basically, how did the Biden administration violate the law? Again, similar.

00:44:31 Speaker_11
The EPA specifically, how this time, not if, but how. That's right.

00:44:36 Speaker_11
We'll go deeper on that case after the argument, and we are all just, I think, on tenderhooks waiting to see what kind of election litigation-related mishegas Trump and his team, which have already filed lawsuits in many, many states, right, clearly seeking to lay the groundwork for post-election challenges once the votes shake out.

00:44:55 Speaker_11
And we will see what, if any, that litigation makes its way to SCOTUS.

00:44:59 Speaker_09
So a few notes before we go. On our previous episode, we talked about the creation of the Civil Rights Court in Texas and the problems that created for groups doing important civil rights work, including Texas Civil Rights Project and LULOC.

00:45:11 Speaker_09
In the summary, we meant to convey that one of those organizations, LULOC, was being raided and investigated for election fraud. But it was heard to suggest that the Texas Civil Rights Project was also being raided and investigated for election fraud.

00:45:23 Speaker_09
We wanted to clarify that the Texas Civil Rights Project has not been raided and is not under investigation.

00:45:29 Speaker_12
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00:45:41 Speaker_12
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00:46:19 Speaker_12
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00:46:27 Speaker_11
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00:46:36 Speaker_11
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00:46:47 Speaker_11
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00:46:59 Speaker_11
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