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November 06, 2023
Strict Scrutiny
Doing Government on Twitter

In This Episode

Melissa, Leah, and Kate recap cases the Supreme Court heard last week about whether government officials can block people on social media platforms. Do the justices actually understand how social media, or even the Internet, works? Unclear! Plus, a recap of the case over whether the phrase “Trump Too Small” can be trademarked. They also preview the upcoming second amendment case, United States v. Rahimi, which challenges a federal law prohibiting people subject to domestic violence restraining orders from possessing guns.

 

 

TRANSCRIPT

 

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Leah Litman [AD]

 

Show Intro Mr. Chief Justice, may it please the court. It’s an old joke, but when an argued 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. All I ask of our brethren is that they take their feet off our necks.

 

Leah Litman Welcome back to Strict Scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it. We’re your hosts. I’m Leah Litman.

 

Melissa Murray I’m Melissa Murray.

 

Kate Shaw And I’m Kate Shaw. This week we have something of a more traditional episode for you than we did last week. So we’ll begin by recapping the big First Amendment cases the court heard last week, as well as a case about civil forfeiture, which we actually didn’t preview in our last episode. We will then briefly look ahead to next week when the court will be hearing the hugely important Second Amendment case, United States versus Rahimi. But we are going to reserve a lot of time to talk about that case in our next episode after the court hears oral argument. And as for today’s episode, as always, we will end with some court culture.

 

Melissa Murray So onto the recaps. Last week, the court heard the social media blocking cases O’Connor Ratcliffe versus Garnier and Lindke versus Freed. And just as a reminder to those of you who didn’t have an opportunity to listen to last week’s episode, these cases are about the First Amendment and specifically whether the First Amendment applies, or rather, when and how the First Amendment applies. When a government official blocks someone on social media platforms like Twitter or Facebook. And again, for those of you all the way in the back. The First Amendment, as we discussed last week, applies only to state action. So don’t go to the supermarket talking about your First Amendment rights unless that supermarket is run by the state, they don’t care. State action is action by the government, and the First Amendment only applies to restrict state actors. And so these social media platforms, I hate to break it to you are not actually the government. And so there are circumstances where government officials have accounts on these platforms and they may actually use them for all sorts of purposes, including communicating with the public and their constituents about what might actually be official or governmental matters. And so the question in these two cases is when do those accounts on those social media platforms make the transition from being private to being state action, or even more particularly, when do certain posts cross over and become state action?

 

Leah Litman So let’s share some overall. That’s before we get into the nitty gritty of these arguments. You know, first, not on the substance. These arguments were insanely out of control long. I was listening for.

 

Melissa Murray Pack a lunch long. These were ridiculous.

 

Leah Litman They went on forever. The second argument in the second case, which is about the same issue, didn’t start until 1147. That meant the first argument was over 90 minutes when arguments are just supposed to be an hour. And at various points during the second argument, it was clear everyone had run out of steam. You know, the justices and the advocates were kind of like well as discussed in the first argument, like, dudes get this under control, lock this down.

 

Melissa Murray Dude, get this under control.

 

Kate Shaw John Roberts, what are you doing?

 

Melissa Murray Chief Justice Roberts, get this under control.

 

Leah Litman Yeah, Yeah. No, he has lost control of things in more ways than one.

 

Kate Shaw All the ways.

 

Leah Litman All the ways.

 

Melissa Murray All the way is.

 

Leah Litman Now shifting to the actual merits of the cases. The justices seemed somewhat cautious or maybe a little bit nervous about making broad pronouncements, but how all of social media might work. And when you have government officials with accounts on social media platforms. So there’s some hope that we might get like a very, really narrow ruling in this case or cases, as we suggested last episode. And that would probably be a good thing, although it’s a little unclear.

 

Melissa Murray There did seem to be real hesitation among the justices about what general tests to adopt in order to determine whether there has been state action. And so they wanted to know whether the legal test should be framed in terms of whether the government has a particular duty to do something or the authority to do something, or should there be a different legal test, like whether there should be a test that’s based on the appearance and function of these social media accounts. Or maybe there’s a different test, whether the legal test should be whether or not the action or activity on social media is framed in terms of the official doing his or her job. And then courts might consult formal law practices and other guidance to determine that there’s been state action. But that seemed to be the big question, like is there an actual test by which we can determine in this context whether state action has occurred? There’s also a lot of uncertainty, given the uncertainty of the test that might apply in this context about what factors or evidence might be relevant to whichever of these legal tests the court might adopt to determine whether an account tips over into being state action. So, for example, there might be a situation where a public servant has a disclaimer on his account that says, This is my own personal account. So in that situation, can it ever be state action? Would it matter when the account was started like it was, it started before the person became a government actor or was it after? Does it matter what proportion of official versus personal content the account contains? And that actually got really kind of hilarious because they cast the whole question of how what is the. Portion of dog posts to school closure posts. And I thought that was pretty funny. But again, the whole thing is turning on the tests, and whatever tests they choose will then determine what kinds of evidence would be marshaled to determine whether or not the account has tipped over into state action.

 

Leah Litman Yeah. So another part of the question that the court was asking was whether court should focus on stuff the government does as a matter of custom or practice that might not be necessarily written down in the law. Like, say, the government generally communicates with the public, you know, or is generally starting social media pages, even though that’s not written down in law. You know, we should say like this category of things, customs and practices seems like it definitely has to matter because the civil rights statute, 1983, which is the law that allows you to sue state and local officials, you know, when they’re violating the Constitution, says there is state action not just through laws, but also customs and usages. And this came up in the oral argument. You know, plus, in some 1960s cases, the Supreme Court has said that a government official can still be a state actor even when they are violating state law. So there doesn’t necessarily have to be a state law authorizing an official to do something in order for there to be state action.

 

Kate Shaw So in addition to parsing the actual accounts at issue in these cases, the justices were very fixated on coming up with hypotheticals to try to test out how the different theories being floated might apply on the ground. Some of these hypotheticals are one from Justice Sotomayor. And though it pains me to say this one from Justice Kavanaugh, we’re actually pretty helpful, although don’t worry, we will also identify places in the argument where Kavanaugh gets no credit. But there were other hypotheticals, like ones from Justice Alito, which were, generally speaking, less helpful. So let’s start with a couple that seem to move the ball forward. We’ll begin with Justice Kavanaugh, who asked about a situation where a city manager posts on Facebook about new recycling bins that people have to use. Would that be state action? Right. And in response, the lawyer for one of the officials seemed to say that’s not state action, at least if this new information about the requirement to use these recycling bins is announced elsewhere. But, of course, what if it’s only announced on the officials Facebook page? Right. That might be different. The lawyer said the same thing. That is, it is not state action about posts announcing things like school closures, though there too. As the argument proceeded, it seemed pretty clear that maybe everybody agreed that if the only place something important and official was announced was that government officials, private Facebook account or other social media account, probably that would have to be state action. And I’m not sure by the end of the, you know, 9 hours or whatever it was, anybody was really suggesting otherwise. But, you know, it’s often the case that things appear on private as well as governmental sites. And there I think there was a lot of disagreement.

 

Melissa Murray So basically, every city manager in America is now going to issue a press release in addition to a Facebook post for every official action undertaken. Is the upshot of all of this. Justice Sotomayor also had a very, very helpful hypothetical, and it was one that took place outside of the context of social media. So, again, sort of trying to see how these tests might play out in other contexts. So her hypothetical framed up this scenario What if a government official sets up a hotline for people to call when there is an emergency and people would call, they would report their emergencies and the state would respond by providing emergency services. Wouldn’t all of that be state action? Justice Sotomayor queried. Well, according to the lawyer, only response of emergency services would constitute state action. So only what the state did in response to the calls would be state action. Setting up the hotline to receive those calls would not be considered state action, which seems a little weird.

 

Leah Litman Yeah, and as Kate was suggesting, like, the ball really seemed to move against the officials and in favor of the individuals who were blocked. When Justice Kagan got the federal government to agree with the lawyer for the officials claims that none of this is state action. You know, that felt kind of like a turning point to me. Like that was just a little too close to the sun. And a majority of the court was not going to accept a theory that that would lead to that result.

 

Kate Shaw Alito also offered some less helpful hypotheticals. He came up with this, you know, real gem, which is, okay, what if an official calls him friends over at his backyard? Probably land.

 

Melissa Murray To Hagrid’s Hut to Hagrid’s Hut.

 

Kate Shaw Landscaping company. Oh nice Melissa. Read up on your older ProPublica investigations if you can’t even remember what Hagrid’s hut refers to anymore beyond the Harry Potter books.

 

Leah Litman A life-sized replica of Hagrid’s hut specifically.

 

Kate Shaw And you know, when we were all young and naive and thought that there was really just one sort of like luxury jaunt.

 

Melissa Murray Just the one just the one.

 

Kate Shaw There are so many scandals now I can’t even count.

 

Melissa Murray With the life sized replica of Hagrid’s house.

 

Kate Shaw Tiny, refresher. That’s correct. Alright.

 

Melissa Murray Everyone’s backyard obviously.

 

Kate Shaw Exactly. All right.

 

Leah Litman And also there’s like a counter where they make you like ice cream and things.

 

Kate Shaw And malts and stuff.

 

Leah Litman Shop, right? Yeah.

 

Melissa Murray Yeah. Love that.

 

Kate Shaw Okay, so now we’ve set the scene.

 

Melissa Murray Maybe dark money isn’t all bad.

 

Leah Litman It’s delicious.

 

Kate Shaw All right, So imagine you’re a government official with a with a palatial estate in the Adirondacks, and you call your friends over to your backyard. And. Does everything that transpires there unnecessarily turn in to state action? And so would Alito and other justices were sort of repeatedly invoking was this idea that government officials are always on the job and they kind of use this backyard premise to raise questions like, well, you know, if a government official has friends over or if a government official is approached the grocery store and the official basically says, like, I’m shopping and I can’t have a substantive conversation with you right now. Are you saying that’s a First Amendment problem? And I don’t think anyone was, but that was what the suggestion was. There’s just this slippery slope. And if we do allow that these social media accounts are sometimes state action, then all of a sudden public officials are going to be overrun with constitutional claims every time they tell somebody to let them pass in the grocery store.

 

Melissa Murray Well what what would be next, Kate? Like investigating whether or not justices have friends. I mean like this just could go anywhere.

 

Leah Litman Are you saying it’s unconstitutional for me to have friends, right? Like they are obsessed.

 

Melissa Murray It’s definitely unconstitutional to have people over at your house, your very large house in the Adirondacks.

 

Kate Shaw Well, that’s what the left wants, wants to make all of that unconstitutional, clearly.

 

Melissa Murray Friendship is unconstitutional.

 

Kate Shaw Yes. This is a point that sort of came through in a bunch of Alito’s questions.

 

Leah Litman Yeah. And Pam Carlin, who you know, is characteristically fabulous, in addition to, I think pretty funny, had no problem with dealing with these hypothetical. She was like, if your ice cream is going to melt you sad little boy, you can tell them you’re going to eat your ice cream and not talk to them. And like the First Amendment will stop you from doing that at another point, she was kind of like poking some holes and like making fun of the idea that government officials are always on the job by saying, you know, look, nobody thinks they can claim a right to come to your house when you’re reading briefs, like, get over it, dude. Be serious.

 

Kate Shaw I love that moment.

 

Leah Litman I know.

 

Kate Shaw Sam Alito late at night poring over his briefs. Yeah.

 

Melissa Murray Well, that was not the only humorous moment at oral argument. So let’s play some of the most hilarious moments in this long oral argument. I’m glad there were moments of hilarity because it kind of broke up the unbelievably lengthy frame of this. So let’s hear this one from Justice Barrett.

 

Clip I think it’s very difficult when you have an official who can in some sense define his own authority. So I think for a governor or, you know, President Trump, it’s a harder call than someone like a police officer who’s a subordinate. Or I could you know, my locker could just start posting things and say, this is the official business of the Barrett chambers. Right. And that wouldn’t be okay. But if you know that, that wouldn’t be okay.

 

Melissa Murray I have questions.

 

Kate Shaw What do you guys think is going on in the Barrett chambers? I was curious.

 

Melissa Murray I don’t know. I do not know?

 

Leah Litman I mean, we have sometimes wondered whether one of her law clerks, like, might need a safe word when we speculated that maybe someone in that chamber is listening to Strict Scrutiny. And, you know, So who knows?

 

Kate Shaw Maybe.

 

Melissa Murray We’ll know when that clerk is dropped off in a Drop Box somewhere.

 

Kate Shaw That’s right.

 

Melissa Murray To be adopted by the left.

 

Kate Shaw Okay, So another tip we have previously offered but is going unheeded. So we need to repeat again is that advocates please do not respond to Justice Kagan with your own hypothetical. It’s not going to work. You may think it never worked for anybody else, but it will work for you. You’re wrong. That’s not how any of this works. So let’s play that clip here.

 

Clip Let me give you an example. Closer to the school board case, there are often well, what do we do?

 

Clip My example, because how are you going to know where the road closures are? I mean, now you’re B I thought that we were starting off from a point of if if the only place that somebody can know where the road closures are is and your private site, Mr. Marshall Plan said that was state action. I was going to go on from there, but you seem to be contesting that.

 

Clip I guess our view is that if there’s a specific duty to make that information available.

 

Clip A specific duty. Mr. Joshi duties don’t work like that. You’re in charge of road closures. That’s your duty to be in charge of road closures.

 

Clip And if you are not obligated to to talk about road closures and tell the public about road closures, if you do it on your private site, then I think they’re you’re you are probably acting in your personal capacity. Now, I agree there may be duties to inform. And in those cases, if the only place you do it is on your personal site, that may well be state action. Whereas if you do it on both sites, it wouldn’t be.

 

Melissa Murray No, why don’t we do my example?

 

Leah Litman Yeah.

 

Kate Shaw I mean, they do learn and this is not this should not have been surprising. And she was uninjured in having her hypothetical varied. Nope.

 

Melissa Murray It’s a trap. It’s a trap just adds her her question to not give her a different hypothetical. Just continue. I think one reason why we are anticipating a narrow ruling here is that this case leaves a lot of details to be worked out. And I’m not exactly sure. And I think you, too, would agree that these are the nine people who really get the Internet and social media and are in a position to sort out those details. So, for example, Justice Gorsuch had a particularly interesting vision of how Internet harassment works. So let’s hear from him.

 

Clip What if the individual harasses the public official on all of his personal, you know, cat pictures and children pictures, and he finally gets fed up and he just blocks them? Yeah. So I think the channel at some point, all the harassing in my hypothetical has to do with cats. No commentary treats cats. Sure. And maybe he hates your children, too. I don’t know.

 

Leah Litman It’s all those cat pictures. They’ll really get ya. Really make the Internet a hostile place.

 

Melissa Murray That’s what everyone’s worried about on the Internet. All the cat pictures, all that trolling, that feline trolling.

 

Leah Litman It did seem like the justices were unnecessarily hostile to and skeptical of people using social media accounts to post about their pets. This is further evidence to me that the justices might be sociopaths. So let’s play that clip here.

 

Clip Well, I mean, these on these pages, people people have both a job in the government and they have all sorts of other things, whether it’s cats or children or whatever it is. And the problem, it seems to me, is we kind of have to desegregate that, right. And say, well, you know, you have to have a governmental page and you have to have a private page and you can’t mention the government on your private page or else it’s going to become a government page. And as I understand it, you basically say if you got 5% government, then we the government can basically say the whole thing, even if the rest of it is all about your children and the dogs, that’s ours. And if we don’t like little dogs, we can say you can’t put pictures of little dogs on there. And it seems to me that that that effort to kind of disentangle the two things doesn’t really reflect the reality of how social media works.

 

Clip So, Your Honor, I have to push back in two respects.

 

Clip First, about the dogs or a little bit about the dogs.

 

Leah Litman So to me, it’s sometimes felt like they don’t understand or are just pretending not to understand that part of politics is like presenting a persona and personality and aspects of your personal life. You know, maybe if, like, you don’t have a personality or like you have a bad personality. Like, we could get this, but I mean, I don’t know. It’s just like a little strange to me. There was also this moment where the chief attempted to describe the Internet and like all of the social media in the following terms.

 

Clip I mean, usually we’re told in these, you know, social media, whatever cases, that it’s not a question of a physical asset. And in what sense is this really private property there? It’s just the gathering of the protons or whatever they are.

 

Melissa Murray This was his Hello fellow kids moment.

 

Leah Litman Hello, fellow kids. Want to get on the protons with me?

 

Melissa Murray Are we really surprised by this? I mean, we just have this new Daily Beast reporting that suggests that the new speaker of the House, Mike Johnson, doesn’t have a bank account. Is it that surprising that maybe the Supreme Court justices don’t know how the Internet and social media works? I mean, checks out.

 

Kate Shaw You would say that there are real differences between them on that score. And that was clear.

 

Melissa Murray Among the Justices. Not Between Mike Johnson.

 

Kate Shaw I don’t know. No, I meant between the nine on the Supreme Court. So Justice Sotomayor, for example, she was, you know, self-deprecating. But she clearly did seem to know, unlike the chief, what she was talking about. So either she spent some time, time alone time with her law clerks, who knows learning about these platforms or maybe she actually is extremely online. I truly don’t know if she did the research or if this was all authentically coming from her. But let’s play one clip here anyway.

 

Clip What do we do with what was then Twitter? I’m going to continue to call it Twitter because that’s what it is here. Okay. What do we do with Twitter where the blocking blocks. Especially now, block access? Previously, you could still look at the Twitter account. You just couldn’t post. What happens now when if you don’t have your own Twitter account, you can’t even look. And if you’re blocked. You’re not permitted to look.

 

Melissa Murray What was then Twitter?

 

Kate Shaw I know it was like I know it’s always Twitter to me, but like if you don’t have any relationship with the place, I’m not sure you care that much.

 

Melissa Murray Super savvy social media Sonia. I love this. She was dropping a lot of knowledge. Like she wanted it to be clear, Like, I am not like the rest of these. Like I have a finsta and I’m not afraid to use it.

 

Leah Litman You know who was at pains to make clear that he is not a Facebook person? Justice Thomas So let’s play that clip.

 

Clip What exactly is the property? The contract talks about terms of services. I guess with I’m not a Facebook person, but I assume they would not consider the service property.

 

Leah Litman Does this seem credible to you?

 

Melissa Murray I am not a Facebook person.

 

Kate Shaw And neither is anyone in my family. Not in my household. Nope, nope, nope, nope. No Thomases know anything about that platform. Yeah. I mean, is this a little conspicuous? Like we all have seen Ginni’s facebook posts? It was like calling attention to his relationship to Facebook specifically. Just felt like, I don’t know, trolling. Maybe he’s always trolling. I’m not sure.

 

Melissa Murray He should have been like I’m not a threads person or I’m not a Blue Sky person.

 

Leah Litman I’m not a I’m not in the metaverse.

 

Melissa Murray Ughhh,  I mean I do think he’s sub tweeting us constantly but.

 

Kate Shaw Maybe.

 

Melissa Murray Whatever. In any event, I think we’re all sort of cautiously optimistic that we’ll get a ruling here that suggests some of these accounts slip into being state action. And I think one of the reasons I think that is good that it’s going to be a limited ruling is because of something Kate alluded to in the last episode, and that is specifically that the whole act of blocking and censoring certain constituents or people online might be part of a very anti-democratic trend that is nascent at the moment. And this, alongside other anti-democratic activity, could be a lot at a time when our democracy may actually be particularly vulnerable and fragile. So I hope that this will be more limited and that this is one of the upshot of that.

 

Kate Shaw Yeah, I want to say something about that kind of democracy implications, but actually in terms of the kind of, you know, our hope that this will be a limited decision, I hope that they are careful not to tie the holding too tightly to the specific features of Twitter and Facebook as they existed during these events, because as came up in the oral arguments like this is just such a dynamic environment. And Sotomayor, remember, posed a question about, well, why didn’t the official just disable comments as opposed to blocking this person? And the answer was that actually the features it didn’t Facebook at the time, just like did not enable that. And so I just like I hope they have the wisdom to just like abstract a little bit. I guess that’s what I mean. Not to broaden, but to abstract somewhat. The principle.

 

Melissa Murray I hope they remember MySpace. Remember when everyone is talking about MySpace and who talks about MySpace now like you’ve got to build a rule that endures beyond MySpace. Yeah, that that should be the principle.

 

Kate Shaw Yeah. But so back to the high democracy point. I mean, one thing I wanted to say was actually about the position of the solicitor general in this argument. So that’s the lawyer representing the federal government. And as we mentioned last week, the SGA office was in the case on the side of the local officials. You know, so the federal government wasn’t actually a party, but they participated basically advocating for a rule that would very rarely, though, you know, not never result in accounts like these are being deemed state action. So they said, you know, if if an official is like doing notice and comment rulemaking, like asking for public comment on a proposed rule, just using Facebook, that would have to be state action. So it wasn’t, you know, an extreme position, but there was like just a couple of places where the tenor of the federal government’s argument really troubled me in that what the thrust seemed to be was like, we shouldn’t bring the First Amendment into this, like shouldn’t institutionalize any of this, because if we have a government official who is blocking people on social media, politics should be the kind of remedy, let’s leave politics to sort of take care of it. And it just felt to me kind of willfully obtuse about the fact that if the conduct in question is distorting the democratic process, politics in the democratic process are just not that likely to take care of the problem. And so sometimes constitutional values are the way we stop distortions. I mean, this court has been obviously, you know, public enemy number one to a functioning democratic process. But so that felt especially problematic to be making that argument before this court. Just let our distorted politics take care of this problem when the problem might be trying to further distort politics. Anyway. There’s one exchange that I wanted to play that I thought sort of illustrated this theme from the federal government.

 

Clip So can I just go back to Justice Alito’s hypothetical, which I thought was really good and asked this question Suppose the public meeting doesn’t occur. So we have the mayor of the town and there’s this controversial policy and there is no public meeting to start because the mayor fears that there’s going to be quite a bit of acrimony with people who want to come out differently than the mayor does. And so instead of the public meeting, the mayor says privately, I’m going to have an. Eating on my farm or maybe even announces the meeting. But we’re only letting in people who are likely to agree with my view. Same result. No state action in that situation. I think probably no state action in that situation. I think it’s something that government officials actually do all the time. They might not want to meet with even their own constituents who disagree with them. They might speak only two Democratic Party meetings and only take feedback from Democratic Party donors. And you know, the solution for that, as I said it for elected officials, might be the voters and for appointed officials and employees. The state as employer can regulate that kind of behavior.

 

Kate Shaw To stay on this point for another minute. Justice Kagan, I thought, also emphasized this democracy issue, these democracy angles to these cases in a couple of clips we wanted to highlight. So one really kind of questioned how useful some of the hypos that we were just talking about were given the unique role of social media in our democracy today. So let’s play that first clip here.

 

Clip Take this as another version of the chief justice’s question about the apparent, let’s call it archaic nature of your your test. And I guess what strikes me about it is that, you know, it’s hard to predict the future, but change has happened very quickly in the last however many years and is going to continue to happen. And part of that change is that more and more of our government operates on social media, more and more of our democracy operates on social media, public discourse. This is the forum for officials to talk to citizens, for citizens to talk to officials, for citizens to talk to each other. And it is becoming increasingly so. And I worry that the rules that you’re suggesting, and even the analogies that you’re proposing, as though we can satisfy, are we can solve this case by thinking about grocery stores, is really not taking into account the big picture of how much is going to be happening in this forum and how much citizens will be foreclosed from participating in our democracy if the kind of rule you’re advocating goes into effect. So I guess I would like you to comment on that. You know, it’s a big picture challenge about the nature of the world we live in and we’re going to live in and the need for rules that are going to meet a world that we don’t really have any idea what it will look like.

 

Leah Litman That was directed at you, Sam. So the other clip just mentioned how certain cases really do seem to involve core aspects of having informed citizens with reference to one high profile social media user in particular. You know, I think we got a sense. Spoiler. Of how Justice Kagan might have voted if the challenge to Trump’s practice of blocking critics on Twitter had ever made it to the court. This makes me think that, like my Volt tracks might be like Justice Kagan’s like hidden unloading on the federal government for trying to act that like the real Donald Trump account wasn’t actually state action as it was announcing like national policies. But anyways, here are those clips.

 

Clip So why? That means President Trump’s Twitter account was also personal, but he seemed to be doing, you know, a lot of government on his Twitter account. I mean, sometimes he was announcing policies even when he wasn’t. I mean, I don’t think a citizen would be able to really understand the Trump presidency, if you will, without any access to all the things that the president said on that account. It was an important part of how he wielded his authority. And to cut a court, a citizen off from that is to cut a citizen off from part of the way that government works.

 

Kate Shaw I love the idea that she has opinions written in cases the court never took that are her vaults tracks that like at some point she might just drop on it like she has her majority fantasy majority opinion finding that Donald Trump violated the First Amendment.

 

Melissa Murray 2022. Elena’s version.

 

Kate Shaw Exactly or no?

 

Leah Litman  I wanna see like Root Show, Elena’s version right? Like, Sail A Law well, Elena’s version like, done with this bullshit, right? Like, no.

 

Kate Shaw Okay. So we obviously know where Kagan was on Trump. She’s actually drafted a whole vol track opinion on the blocking question. And I did actually find her a little hard to read on the facts of these cases in general, all of the justices in particular, as the arguments proceeded, you know, their hypotheticals or interventions did seem to move the ball toward the idea that some of what.

 

Melissa Murray I mean, they had 3 hours to do it. I would hope there’s some movement.

 

Kate Shaw Some progress. Right?

 

Melissa Murray Yes.

 

Kate Shaw Yeah. And Pam Carlin did a phenomenal job and really did seem to be pretty successful in pushing the justices to adopt at least much of her theory of the case, which really did turn on whether government officials are doing their jobs. Social media, you know, even sort of whatever final formulation the test takes, that’s kind of the heart of it.

 

Leah Litman In addition to being very good at the substance of oral arguments or maybe related to that, like Pam is very funny and I wanted to play some clips highlighting that. So here is one.

 

Clip Here, I think putting the disclaimer there, but then saying things like, We want you to respond to our surveys on whether we should change the election system. We want you to respond to our survey. We are working hard. She’s not using I. And if you compare this to her campaign website, which is a website, not a Facebook page, there she uses AI. Here she uses we. And honestly, as Mark Twain said, the only people who should use we in the singular are royalty and people with tapeworms. And, you know, I don’t think she’s either of those.

 

Leah Litman And here is the other.

 

Clip And is it not a well-established custom for any elected public official to inform constituents about what he or she is doing? So if that’s how you understand duty, then why are you not saying that anything that a an elected public official let’s leave it at that tells constituents about what that person is doing because it constitutes state action?

 

Clip I think the starting point is, yes, they could rebut that. For example, talking, you know, at Thanksgiving dinner, somebody says pass the gravy. And you say, and I also passed a bill last month. Yes. That would be that would be private.

 

Melissa Murray At one point, Justice Kavanaugh seemed to have a moment where he seemed to be telling a little bit on the conservative legal movement and how the whole Operation Higher Court project was working. So let’s hear from him.

 

Clip But it goes back to who you want to include and who you want to exclude, I guess. And I think elected officials and appointed officials who rely on groups of people who are supporters, friends, people they’ve known, people who are fair minded, not people are just going to come and scream at them, you know, to get advice, thoughts including negative and critical thoughts. But they want to exclude, you know, the person who’s the jerk who’s going to interrupt the whole thing.

 

Melissa Murray Hmm. Hmm. Not supposed to tell. One of the first rules of Fight Club is that you don’t talk about Fight Club. Don’t tell. So what are our predictions here? I’ve already told you mine.

 

Leah Litman Yeah. So I predict that the court is going to say right. Pretty a narrow opinion and say that the legal test to determine whether these accounts are state action is not just about whether government officers are performing a duty or exercising some authority granted to them in state law. In some narrow sense, that is like broader than, you know, the government officials are arguing for. And I think at least in the case that Pam was arguing, I think they will say that that account is state action. I don’t know necessarily if they’re going to determine whether the specific accounts are state action, but I think that they will reject the super narrow test that the government is seeking.

 

Kate Shaw Yeah, but it’s such an interesting idea that the cases themselves, if the court actually applies whatever test it announces to the cases. Yeah, like they could come out differently. I mean in part because as Melissa you alluded to a couple minutes ago, they’re the ratio of like pet and kid picks to official communiques was different as between the two cases. And I don’t know it’s possible that’ll actually mean the test produces different results in the two.

 

Leah Litman They they’re creating incentives to be cat ladies.

 

Kate Shaw Are we mad about that?

 

Leah Litman Noooo.

 

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Kate Shaw We have other interesting cases to unpack. Okay. So the next one we’re going to talk about is Vidal versus Elster. This is the case that challenges a provision of the trademark law that prohibits the issuance of trademarks that contain the name of an individual without the consent of that individual.

 

Melissa Murray Or that individual’s wife.

 

Leah Litman In the case of a president.

 

Kate Shaw Only when it’s a president and the statute actually says wife, it is bonkers. I was not aware of this provision of law. I don’t I have to find some way to teach it in statutory interpretation. And I don’t know, maybe elsewhere, too. In any event, the respondent in this case was prohibited from getting a trademark on the phrase Trump to small, which was an allusion to Donald Trump and his teeny little itty bitty hands, and specifically to a memorable exchange that he had with Marco Rubio during the 2016 presidential primary. Possibly the only memorable thing that happened involving Marco Rubio during the primary.

 

Melissa Murray Who is Marco Rubio?

 

Kate Shaw There was a water bottle. There was that water bottle. But I can’t that what he did.

 

Melissa Murray There was no you did that in the State of the Union response where he was like, so parched he had to keep stopping repeatedly.

 

Kate Shaw Offscreen. Okay, so that’s another memorable Rubio moment, possibly the only other one, but not, in fact, during that primary. In any event, whether or not Mr. Elster succeeds in getting the law in question struck down, that’s what he’s trying to do. He definitely did succeed in having the phrase Trump to small uttered 13 times at one first read, and that is not nothing. So he does have something to show for himself.

 

Melissa Murray Icon. Legend.

 

Kate Shaw Whatever else happens with his lawsuit. So just a brief kind of recap of the underlying issues here. As we mentioned last week, the Supreme Court in the last few years has actually had a lot to say about the interaction between the First Amendment and trademarks in a case called Matal versus Tam, the court struck down a law prohibiting trademarks for disparaging marks because the court said that was basically unconstitutional viewpoint discrimination. And the court reached the same conclusion in a case called Yanko versus Brunetti, which was about a law that prohibited trademarks for scandalous or immoral marks. So that’s, you know, two wins for the First Amendment against these restrictions on trademark issuance. The real question is, does this case follow from those or is the court going to find some way to distinguish it?

 

Melissa Murray So in Vidal, the government argued that the law denying the respondent a trademark for Trump too small was not a law that engaged in viewpoint discrimination. Predictably, the respondent argued that it was viewpoint discrimination because people, including and maybe especially government officials, would be more likely to refuse consent to marks where those marks criticized them. And Justice Jackson had a lot to say about that during the argument. The government also argued that the law was constitutional and should be upheld because it was simply a condition on a benefit, not a coercive regulation that penalize people. But some justices were skeptical of that view. So let’s hear this clip.

 

Clip I said what I think about the government benefits theory in the Tao versus Tam. So there’s no secret about that. And if your argument were quite if I could not vote to sustain this without saying this is the attachment of a condition to a government benefit, or that it’s analogous to the attachment of a condition to a government benefit, I mean, you don’t need my vote to win your case. I’m trying to see if you have any argument that maybe you’ve just decided, well, Alito’s a lost cause here.

 

Kate Shaw As we noted last time, some justices, I hadn’t actually remember the number, but it’s only four. I think, as Leah, you reminded us, rejected that theory in the Tam case. So that was Alito in the chief and Thomas and Breyer, who was then on the court. But that means only four. So the theory itself actually hasn’t been decisively rejected. And it got a lot of play during this oral argument. Justice Sotomayor had a similar clip later in the argument. Let’s play that one here.

 

Clip Well, I think in the example you just gave, Justice Sotomayor, if I’m remembering correctly, that’s the Trinity Lutheran case and in which I dissented. So be careful. I think. Well, fair enough.

 

Leah Litman The justices also wanted to know if any theory, you know, at issue in the case or the outcome of this case about trademarks might apply to laws governing copyright as well. So that was also of concern to the justices. And then, you know, Justice Barrett had another kind of interesting hypothetical, as she did in the social media blocking case that we wanted to highlight.

 

Clip So tell me how you think the analysis would play out. Let’s imagine that there is a similar restriction for copyright and somebody wants to write a book called Trump Too Small that details Trump’s pettiness over the years and just argues that he’s not a fit public official. Are you saying it would be like a rational basis standard for analyzing whether that copyright restriction was permissible?

 

Leah Litman I thought this was interesting because it seems like I’m just going to float a theory here. It seems like Barrett kind of has the urge to want to try to distinguish herself from at least some of her Republican colleagues and has kind of got out there, you know as well, to say that the court isn’t political. Remember, she did this when she appeared at the Mitch McConnell Center to say.

 

Kate Shaw As one does.

 

Leah Litman Right, right, right, duh.

 

Kate Shaw Yeah.

 

Leah Litman But it’s like she wants to do this, but she has yet to actually really meaningfully distinguish herself from her conservative colleagues, like on the substance and actually, like, depart from them. Like they’re all a little different. And I think she’s smarter than like Neil and Brett and more deft than Sam at like PR but like still birds of a feather. But she like, kind of wants to distance herself from them and be like, no, I’m not actually like them.

 

Melissa Murray Or she just wants to distance herself from Donald Trump because I thought this was I mean, for a woman who stood so close to him in the Rose Garden Superspreader event, like, I mean, she basically said he’s petty and he’s not fit for public office. And she said this in open court.

 

Leah Litman I mean, that that’s also true. I guess I was also thinking about like her concurrence in the student debt relief case about saying, well, I actually think the major questions doctrine is like perfectly consistent with textualism, and that’s why I’m doing it right. And just like a few other things like that.

 

Melissa Murray I think this might be. Do you remember during Justice Gorsuch, his confirmation hearings, the whole flap came out about Trump’s disparagement of Judge Curiel, and Justice Gorsuch said.

 

Leah Litman Demoralizing.

 

Melissa Murray Meaningfully said in the middle of his confirmation. Yeah. Yeah. I mean, I think it was meant to signal independence for the judiciary, especially at a moment where people might think that these justices are kind of in the bad for a particular political party or person. And I thought that’s what this meant, not necessarily distancing herself from the conservative project.

 

Leah Litman Yeah.

 

Kate Shaw A little credit to Neil since we gave them to Brett earlier in the hour. I mean, he actually did it when he was still waiting for confirmation.

 

Leah Litman Exactly.

 

Kate Shaw And it wasn’t like some enormous act of bravery or anything. But reporting later suggested that Trump was really displeased with what was reported as Gorsuch is sort of condemnation of or at least distancing himself from Trump’s remarks. It’s kind of costless for Barrett to do that at this point. And so, you know, he thinks it’s a little too little too late. And the and yet hearing her voice articulate this view unfit. Petty you know, that was I definitely struck me during the oral argument as well, but I just wasn’t sure I understood the motivation.

 

Melissa Murray It’s it’s costless vis a vis Donald Trump. It’s not costless vis a vis a public that thinks six of these people are in the bag for Republican politicians.

 

Kate Shaw Right. It could yield benefits.

 

Leah Litman Yeah, exactly. In that way, I feel like it is similar to her efforts to, like, distance herself from like her Republican colleagues and like major questions doctrine because she’s like, oh, no, actually this thing that is totally bananas and inconsistent with our theory of statutory interpretation is perfectly consistent with it. So it’s like giving legitimacy to the court, even though they are pursuing the same substantive project. I don’t know.

 

Kate Shaw Does it matter that that concurrence in the student cases was the most unbelievably unconvincing piece of writing I’ve ever read? It was so unpersuasive.

 

Leah Litman I know. I know.

 

Kate Shaw She’s trying so hard and no one believes it.

 

Leah Litman Right? I mean, because she’s not that different. Yeah.

 

Kate Shaw That’s an interesting parallels to draw. So if Amy is going to Amy I guess as we just established Neil, obviously. Neil So let’s play a clip of him really kneeling out.

 

Clip Well I think if I’m not aware of history before the Lanham Act, that would show that sort of if what Your Honor is suggesting is.

 

Clip Look, let me help you. Sure. I in common law, there’s a long and robust history about restricting names. Now, sometimes they took on secondary meanings like Brooks Brothers. All right. But that was pretty rare. And trademarks always had some content based restrictions, if you want to use that kind of abstract heuristic. Geographic names, descriptions, functions are generally always exceptions to generally not trademark apple.

 

Melissa Murray Fantastico. So what are your predictions in this case?

 

Leah Litman I think they uphold the statute and say that Mark doesn’t have to issue.

 

Kate Shaw Going in I assumed this would result in the same basic outcome as Matal and Yanco, which was this restriction would also fall. But it actually does not seem like that’s going to happen coming out of the argument. So Penn Law’s Jennifer Rothman is a real trademark and. Right. A publicity person seems totally to agree in her write up of the argument. I’m not sure I totally understand why that should be the case. If the court isn’t prepared to revisit what it said in these earlier cases. It does seem to me that this is kind of like, you know, a lot like viewpoint discrimination. But I don’t know. But I did want to say we didn’t have a chance to really say much about John Taylor’s argument. And I thought he was great. And I really love the accessible way that he framed his opening. So can we just you indulge me if we can play a short clip of that here.

 

Clip The names clause leverages the registration system and its attendant rights and benefits to achieve a purpose wholly unrelated to the purposes of trademark law. Unlike the separate prohibitions on false association and marks likely to confuse or mislead, both of which are tightly connected to the purposes of trademark law and trademark registration, The government’s interest in discouraging marks because they hurt the feelings of public figures has nothing to do with the purposes of trademark registration.

 

Kate Shaw This is about protecting the feelings of famous people. And it does feel to me like the law should not give them any special protections. And as I heard him during the actual argument and then just now listening to the clip again, it brought to mind the idea that not just in the social media cases where the justices are thinking about things that their friends were public officials and stuff like that, it did occur to me the justices could have some skin. And that’s right. Like they’re obviously people whose names are likenesses. I can imagine someone wanting to get a trademark sending up maybe they in a self-interested way want to make sure that the First Amendment is not going to be read in a way that would allow just anybody to get a T-shirt trademarked that says anything about the nine of them. I don’t know.

 

Leah Litman Well, maybe you could still do some other ones. Like what if you got one that said I paid for my own damn land yacht? Or like, will accept an otherwise unoccupied seat on a private jet or something along those lines.

 

Kate Shaw Do you think you could put something like that on a candle as well as a T-shirt?

 

Leah Litman Maybe? We’ll find out.

 

Melissa Murray Oh I think you’re tipping our hand, Kate. Not yet. Not yet.

 

Melissa Murray Just a teaser.

 

Leah Litman Easter Egg.

 

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Melissa Murray The court also heard oral argument in Cully versus Marshall, which is a case we did not preview last week because we did that extended segment on the Trump cases. But not to worry, we’re still going to cover it in this episode. This case is very important because it’s about civil forfeiture laws. And civil forfeiture laws are laws that allow the state to take some property because it thinks you’ve used that property in the course of wrongdoing. So these are civil rather than criminal forfeitures, because the state doesn’t take your property subject to a criminal trial. Instead, the property forfeiture occurs via civil proceedings, which interestingly lack many of the procedural protections that the Constitution requires in criminal proceedings. So you’re getting a flavor for how this is shaping up.

 

Leah Litman They can take that land yacht a lot easier. So the specific question in the case is whether there is a constitutional claim. And if so, what does that constitutional claim look like about what happens to the property the state is trying to seize in the interim? That is what happens after the state makes some claim to the property. But before the state makes a final determination in civil proceedings about whether the property is actually forfeited to the state. So the government’s involved in the case. Alabama and the federal government, arguing as an amicus, agree that the due process clause entitles property owners to a timely final adjudication that complies with due process. And the petitioners, the property owners say they are entitled to something else. They say they’re also needs to be a hearing to determine what happens to that property before the final timely hearing, which might take a long time.

 

Melissa Murray This is all occurring against the backdrop of considerable reporting, which the justices alluded to during the argument about how many states have actually abuse their civil forfeiture laws. So some states might take possession and indeed do take possession of property and do so for a good long time. And that causes harm to the individual property owner, even in circumstances where those individuals are ultimately determined to be rightfully entitled to their property in the end. And here’s Justice Kagan reiterating a point that Justice Sotomayor has made repeatedly. And that point is that since the court’s early decisions upholding civil forfeiture schemes, there has surfaced a lot more information and facts that make clear the pitfalls of such schemes and their abusive potential. So here she is.

 

Clip And I think Justice Sotomayor raises a very important point, which is that we know a lot more now than we did when 8850 and the other case were decided about how civil forfeiture is being used in some states, about the kinds of abuses that it’s subject to, about the kind of incentives operating on law enforcement officers that the tend toward those abuses. So so if we look around the world and we think there are real problems here and those problems would be solved if you got a really quick probable cause determination, why shouldn’t we do that?

 

Kate Shaw At oral argument. There was definitely some strange bedfellows energy. Both Justice Sotomayor and Justice Gorsuch were really pointedly highlighting abuses in the civil forfeiture systems. Justices Jackson and Kagan seem to be on that side as well.

 

Leah Litman And Justice Gorsuch, in expressing sympathy for the due process claim, had this kind of hilarious slip up. I wanted to highlight. And after we’ll play it will explain like why it’s potentially a slip up and funny. So here’s the clip.

 

Clip Let’s should let’s let’s put it this way. I mean, due process has very various components, you’d agree. And one component is how quickly your claim can be heard. Another component would be what procedures your claim is going to be decided pursuant to, right? Yes, Your Honor. So there’s a substantive aspect to it. Wrong word. Idea, though, that the procedure has to have some robustness to it. Okay.

 

Leah Litman It’s like he was like, Oh, my God, what did I just say? I can’t admit that the due process clause has a substantive component. Like my Federalist Society card will be taken away. Leonard Leo will appear and, like, strike me down. Okay. Now, the explanation so substantive due process is the name for the doctrine on which dun dun dun dun daaaa.. Roe versus Wade and Griswold versus Connecticut and other cases are based. It just represents the idea that, like, no matter what kind of process like notice, hearing and trials the state might give you. There are just some things the state can’t do absent constitutional amendment. And conservatives have like me and the living shit out of substantive due process to suggest it’s some kind of like ridiculous idea. Like due process can’t possibly have a substantive component since the Constitution implies states can take away liberty with due process. But the concept is actually coherent as Justice Gorsuch is like intuition and initial version of his question suggested.

 

Melissa Murray I wish we had video of oral arguments because I’m 100% sure that after he said this, Justice Thomas like, gave him like an ice glare from a cross bench and he and Neil Gorsuch would have immediately known that his invitation to the Bohemian Grove might be lost in the mail this year. He’s definitely not going now. All right. Beyond that Freudian maybe slip. We also wanted to highlight some other clips, just to give you a sense of how the oral argument played out. So here’s an exchange between Justice Gorsuch and the petitioners. Lawyer Skadden Arps’s Shay Dvoretzky. And this was about whether it was the Supreme Court’s fault that the case might not have presented the different issues in the cleanest and most accessible way possible. Here’s the clip.

 

Clip So for one thing, I think this is the case and the court granted cert on this question. Oh, I know. We’re glad it’s all our fault. I am not blaming you. I appreciate it. Both can be true.

 

Melissa Murray But apparently it was not all fun and games for Mr.Dvoretzky at various points, some of the justices seem kind of frustrated with him and his framing of the issues in play. So here’s an exchange between Dvoretzky and Justice Sotomayor.

 

Clip I think that’s right. And I think the court shouldn’t do that here, regardless of the fact. I also think on the facts and I don’t want to wear out my welcome, but I also think you are aware and you’re welcome, because I like Justice Jackson. That’s not the question before us whether the process here was enough or not. That that’s right.

 

Kate Shaw That was ice cold. I was like, Oh, My blood ran cold in my veins. when I listen to that exchange.

 

Melissa Murray You are wearing out your welcome.

 

Kate Shaw You are.

 

Melissa Murray Go home.

 

Leah Litman Sonia Sotomayor, can cut a bitch. So predictions. You know. It seemed to me like Justice Gorsuch and the Democratic appointees want to do something to reign in civil forfeiture abuses. It’s unclear whether they have a fifth vote to do so. And the technical question on which the court granted cert, you know what legal test applies when a plaintiff argues the state’s failure to provide an interim hearing before a final adjudication might not even allow the courts to resolve all that much anyways.

 

Kate Shaw But there’s interest if the question arises in another case in the near future, if they don’t really resolve it.

 

Leah Litman At least from four of them. Yeah.

 

Kate Shaw Yeah. But enough to take up another case, right. Only takes four. So let’s pivot to previewing the enormous case that we mentioned at the beginning of the hour. That’s the case set for argument on Tuesday, November 8th, United States versus Rahimi.

 

Melissa Murray This is a Second Amendment case challenging 18 U.S.C. Section 920 2g8, which is a federal law prohibiting those individuals subject to domestic violence, restraining orders from possessing guns. And we should note that the law was adopted in 1994. And you might recall that in 1992, in the wake of the Thomas Hill hearings, 1992 was the quote unquote, year of the woman in which record numbers of women were elected to Congress. Now, as this critical mass of women entered politics, many of them began demanding that the government address domestic violence and in particular address the role that guns could play in intimate partner. And Section 922 eight was one of the results of their efforts.

 

Kate Shaw So in 2022, so a year and change ago, the Supreme Court decided at NySRPA versus Bruen and in that case adopted a new legal test to determine whether firearm regulations are consistent with the Second Amendment. The Bruen test basically directed courts to consider whether laws fell within the nation’s tradition of firearm regulation, and very much not to focus on things like empirical evidence about the risks of violence by domestic abusers. Say how statistically, many women who are victims of violent crime are victims of domestic abuse, are killed by domestic abusers, often with firearms. There’s one amicus brief that discusses studies showing that when there is a domestic violence incident, the presence of a gun increases by something like 500 times the potential lethality. So the stakes are incredibly high when it comes to this combination of domestic violence and firearms. That’s what this law was designed to respond to. But what Bruen this decision seems to say is none of that matters when asking about the constitutionality of a gun law. The only thing that matters is whether that law falls within the nation’s history of firearms regulation.

 

Leah Litman The question in this case is how that method, the Bruen method, is going to work, and specifically like what counts as an analogy for a firearm regulation to demonstrate that a law falls within the nation’s tradition of firearm regulation. How similar does a firearm regulation have to be to the firearm regulation being challenged? Does it have to be a historic twin or simply echo the gist of some historic gun regulations? So here Rahimi is arguing that the challenged law, which was enacted in 1994, has no exact historical twist. And Solicitor General Elizabeth Prelogar is arguing the case, which, you know, is a sign of the significance of this case to the government, that, you know, she chose to argue this case rather than, say, the social media blocking cases.

 

Melissa Murray I’m not sure if this is going to come out in oral argument, but I did want to highlight it for our listeners. There are two law professors, Reva Siegel of Yale Law School and Joseph Blocher of Duke Law School. And they’ve written a lot about the court’s emerging approach to the Second Amendment. One of the things that they note is that this history and tradition approach, which has emerged since Bruen is not neutral or objective, as many conservatives argue, but rather can actually be manipulated to produce certain outcomes. And so they note that the method allows courts to require that contemporary gun laws closely resembles laws of the distant past, even where the courts might actually define the scope of the Second Amendment more expansively to protect weapons like a AR 15, for example, that the framers would never have contemplated. So they identify a kind of mismatch between how they approach this history and tradition method. So you have this really sort of granular question about the firearm regulation, but you have this broad and expansive understanding of the right itself.

 

Kate Shaw Yeah. So the guns don’t have to look like the guns of yore, but the regulations have to look like the regulations of yore. So it’s an enormous mismatch that, you know, redounds to the benefit of firearm owners who want unlimited access to guns and makes it very, very difficult for government to respond in new ways as weapons technology evolves. So, Siegel And Blocher note some strange bedfellows history among the amicus briefs in Rahimi. So there are a number of briefs supporting the government that do suggest that domestic violence was understood to be a problem at the founding. And some of these briefs show that at the founding, many states responded to the threat of domestic violence by doing things like issuing peace warrants and using sureties.

 

Leah Litman And then the strange bedfellows part emerges because Rahimi is brief and other briefs supporting Rahimi’s position that this law falls outside of the nation’s tradition of firearm regulation and emphasizes this history, noting that at the time of the Second Amendment ratification, states did respond to such violence. But and this is the big but they insist that because governments did not respond to domestic violence by passing laws that specifically disarm domestic abusers, there is no historic precedent for a law like the one being challenged and therefore it is unconstitutional. Can I just make a side note about like this history, you know, the court’s version of history and like how they are forcing individuals to argue about these laws? I really worry here. It has echoes of like the Republicans attacks on, say, CRT, education in schools or teaching like histories of like racial subordination or other kinds of discrimination, including against like the LGBT community. But because here essentially you are basically forcing people to make the claim that domestic violence was recognized and treated as a crime. And that’s certainly true in some instances. But like, is it. Exactly. Exactly. But like, is it universally recognized as a problem it was today. Right.

 

Kate Shaw Of course not, how could you claim that?

 

Leah Litman Like, are there uniform criminal laws like? Exactly. Exactly. And so I just worry that like but in order to, like, argue that these laws are constitutional, you have to basically. Say, look, the framers are enlightened people. Of course, they recognize domestic violence is a problem. When that really, like obscures like the real problem of like gender subordination and gender inequality that this country has had.

 

Kate Shaw And I don’t think that is at all to criticize.

 

Leah Litman No, not at all.

 

Kate Shaw Paradigm no court has set forth. And I don’t think you are it’s completely understandable advocacy to say these are our marching orders. And there are threads in the historical record that we can sort of weave together to make an argument that this regulation is supported by history. So, you know, I think that they are successfully doing what the court has instructed and yet the broader implications that we’re all, you know, that there’s now going to be an enormous swath of individuals complicit in this whitewashing of history is unbelievably disturbing.

 

Leah Litman I think I want to read a law review article about this.

 

Kate Shaw You should do that.

 

Melissa Murray There’s a lot of stuff going on here again and just sort of the use of history, maybe the misuse of history is something that we ought to be attentive to. One of the things I think is really interesting about the writing that Siegel and Blocher have done here is that they know that in the decision below, the Fifth Circuit kind of took a similarly asymmetric approach to the Second Amendment, which is to say that the Fifth Circuit acknowledged earlier forms of regulation against domestic violence, you know, and noted security laws or piece warrants, but nevertheless concluded that there were ample grounds for striking down 922G8. That’s federal law that disarms those subject to domestic violence restraining orders, because none of those historical responses were sufficiently like 922G8 in disarming domestic abusers. So, again, this is all to say and. Siegel and Blocher make the case very succinctly the manipulation of history is very live here and very easy to do. And it shows how originalist methods, again, are not the sort of neutral and objective methods, as their proponents claim. In fact, they can be manipulated, and in this case, they are being manipulated to produce a mismatch between the past and the present by describing the problem and various solutions for that problem at very different levels of generality.

 

Kate Shaw We have single has done great work on the same set of questions in Dobbs Right and just the emulation of history. And it’s sort of the complete pretense of objectivity that originalism offers. And I think she dismantles it incredibly effectively. Okay. In the little time we have remaining, let’s do a bit of court culture.

 

Leah Litman Indeed.

 

Kate Shaw The Senate Democrats seem to be interested in maybe doing something on Supreme Court ethics. I mean, I guess we’ll see if it actually materializes. But they have announced a plan for subpoenas. Chairman Durbin of the Judiciary Committee has said he is requesting subpoenas for Leonard Leo, Harlan Crow and Robin Arkley. Three individuals really at the heart of ProPublica’s reporting about the justices and their various luxury jaunts. So, you know, we have been suggesting for many episodes that Durbin and the rest of the Dems need to get on this. And just like, thanks for listening, guys. We are we’re really appreciative.

 

Leah Litman Yeah. And you know, this follows on the reporting about how Senator Ron Wyden ends inquiry revealed that Justice Thomas had not actually paid back the loan for his land yacht slash RV. And I wonder if they’re like, Oh, gosh, wow. Actually exercising investigative subpoena powers can do something. Maybe we should get on that. And yeah. Anyways, so another thing we wanted to note is Jezebel and other outlets have reported that Ohio Secretary of State La Rose has purged over 25,000 voters from voter rolls ahead of the upcoming vote in November about whether the state will add a provision to the state constitution to protect reproductive freedom. The deadline to register to vote for this election was earlier in October. You know, there isn’t same day registration in Ohio, which is pretty problematic. Kate and Melissa, it seems like you all have an article that might speak to this anti-democratic efforts to undermine efforts to use democracy to protect reproductive rights and justice.

 

Kate Shaw It does seem like Ohio and many other places like this promise that democracy will just resolve the questions around abortion like it is something that Republican elected officials are not that happy to actually allow to play out. So you have in addition of.

 

Melissa Murray It’s so weird.

 

Kate Shaw Rewording of the actual ballot question. So, you know, listeners might remember back in August, the Republican effort to make it way harder to amend the Constitution failed pretty spectacularly. But we do have a big question whether, you know, given some of these anti-democratic forces that are being brought to bear on the actual vote on the ballot question, what the result is going to be. So you’re in Ohio. Make sure you registered to vote. Hopefully you weren’t purged. Get out there. This is so important.

 

Leah Litman We also wanted to offer a belated birthday wishes to Liz Tobin Tyler from her daughter Claire, who says that Professor Tyler is one of the OGs of medical legal partnerships and was part of the first one at Boston Medical Center. She is now focused on reproductive justice and domestic violence, so therefore is paying particular attention to Rahimi, which we will be watching alongside of you. So happy belated birthday, Liz.

 

Melissa Murray [AD]

 

Kate Shaw Strict Scrutiny as a Crooked Media production hosted and executive produced by Leah Litman, Melissa Murray and  me, Kate Shaw. Produced and edited by Melody Rowell. Our associate producer is Ashley Mizuho. Audio support from Kyle Seglin and Charlotte Landes. Music by Eddie Cooper. Production support from Madeleine Heringer, Michael Martinez and Ari Schwartz. If you haven’t already, be sure to subscribe to Strict Scrutiny in your favorite podcast app so you never miss an episode. And if you want to help other people find the show, please rate and review us. It really helps.

 

Melissa Murray Yes, because a lot of mens who have real issues like to give us like one star because apparently we are women with voices. So if you prefer your podcast without that whole Little Mermaid vibe, please go rate us and give us a five star rating like you know we deserve. Thank you.

 

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