SCOTUS's Indefensible Delay in Trump's Immunity Case | Crooked Media
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June 20, 2024
Strict Scrutiny
SCOTUS's Indefensible Delay in Trump's Immunity Case

In This Episode

The gang is back together! Ahead of the Strict Scrutiny live show on Saturday in DC, Kate, Melissa and Leah comb through four decisions from the Court. Are these the cases everyone’s waiting for? Not quite, but they do involve repatriation taxes, malicious prosecution, federal rules of evidence, and retaliatory arrests.

TRANSCRIPT

 

 

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Show Intro Mister 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.

 

Melissa Murray 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 Melissa Murray.

 

Leah Litman I’m Leah Litman.

 

Kate Shaw And I’m Kate Shaw, and yes, the band is back together. It’s so nice to see your face, Leah. I know that you guys, even Melissa, did an emergency episode, but the three of us have not been back together and now we are. This is a bonus episode in which we’re going to cover the four opinions that we got today. That’s Thursday, as well as one of the opinions that we did not get. And we’re going to talk about how we are still without that opinion. And so we’re going to cover those opinions to bring you up to speed on the court’s doings, but also to clear space for the bigger news in our upcoming live show. And in case you missed it, we are gearing up for a live show at the Howard Theater this Saturday night in Washington, DC. The show is sold out, but I am told there is a secondary market for tickets if you’re interested.

 

Melissa Murray I don’t know about you, but I’m feeling 22. I think this is how Taylor feels.

 

Kate Shaw I don’t know that it’s like a Taylor Swift style secondary market.

 

Leah Litman I speaking of a Taylor Swift secondary market.

 

Melissa Murray There are degrees of secondary market.

 

Kate Shaw This is a good segue. Get there Leah. Make your plug.

 

Leah Litman Yeah. Speaking of a Taylor Swift secondary market, because of my accident, I am no longer able to go to Europe to see the Taylor Swift show to which I had purchased tickets. So I have these four tickets to the show in Zurich, Switzerland, and I’m desperately in search of four tickets to some US show, ideally Indianapolis, if you happen to have them or would like to trade. Everyone knows where to find me.

 

Melissa Murray I mean, I think Zurich for Indianapolis is a fair trade.

 

Leah Litman I agree. They’re really great seats. They’re really great seats. They’re lower bowl.

 

Kate Shaw Please listeners. Stricties, as it were. Make this happen for Leah.

 

Melissa Murray Okay. Back to business. This is not an actual emergency episode, but it does give us an occasion to talk about an actual factual emergency at the court. And that is the justices leisurely approach to the Trump immunity case. Like, I know it is summer. I know people are moving slower, but wow. This is a languid pace.

 

Kate Shaw It is. And, you know, remember back to the oral argument when when Neil Gorsuch told everyone he wanted to write an opinion for the ages? I do. Yeah, those were those.

 

Leah Litman He’s not getting this opinion, Neil. It’s not happening. But.

 

Kate Shaw No.

 

Melissa Murray But he’s still like it’s going to be a banger. We need all the time. We need the time.

 

Kate Shaw We should mention that Leah published yesterday in the New York Times, a banger of an op ed, just trying to remind everyone that the Supreme Court is outrageously derelict in the delay in this immunity case. Leah.

 

Melissa Murray Wait, wait. Does America need to know if one of its presidential candidates might be taking the oath of office in shackles? Is that necessary?

 

Kate Shaw I mean, if one of its presidential candidates can ever face immunity for misdeeds when one of the presidential candidates is running for office on an explicit platform of revenge against rivals and enemies, like, are these things America should know before going to the ballot box? Leah, what do you think? And also, will you please, for folks who haven’t read the op ed, remind us of the numbers in terms of this.

 

Leah Litman Yeah. So I mean, obviously my vote is that America should know this. That seems like a good thing.

 

Melissa Murray Spoiler you vote for wait wait wait, you vote for America to know if it is within the scope of presidential duties to get Seal Team six to assassinate a plot.

 

Leah Litman That is where my vote would be. I know, I know, it’s shocking. But. Some of the kind of figures or timing that I noted in the piece, just to underscore the delay in the Trump case relative to others, which I think is one of the more striking things, is it’s been 113 days now since the court granted cert and decided to hear the case. It’s now been 56 days since the argument on April 25th, and over six months since Jack Smith first asked the court to take the case back in December. And you compare that to, you know, it took two months from the court’s grant to a decision in the Colorado disqualification case that said Trump could appear on the ballot. And one month from the argument to the decision in that case, or compare it to.

 

Kate Shaw Yeah but Leah, that was a pro Trump ruling. So of course, it was different. Of course, that. That’s apples to oranges.

 

Melissa Murray The fact that it’s Kate saying this means literally a world turned upside down, it is Martha Ann Alito here.

 

Leah Litman How many Martha Titas have you had Kate?

 

Melissa Murray You’re so cynical. Yeah.

 

Kate Shaw None. It’s early, but this case is making me lose all faith. It really is.

 

Melissa Murray It’s been a lot of time. I mean, Beyonce could write a whole new album, in an entirely new genre, in the time it’s taken them to to get to this.

 

Kate Shaw Good point. I hope she has.

 

Melissa Murray Polka. Beyonce. Papa, Papa.

 

Leah Litman Maybe the court is releasing a polka album.

 

Kate Shaw Oh my god. But you talk also right about the Nixon case, which is of course another really important comparator. And that case, it’s like what, 54 days from. Argument aside from grant.

 

Leah Litman Nor from grants to decision, and then.

 

Kate Shaw 16 days from argument to decision. So literally it takes them two weeks.

 

Leah Litman And there’s so many other comparators where the court has acted more quickly. Again, not necessarily in cases that benefited Trump, but always to kind of benefit Republican interests. So ten years ago and Perry versus Perez, you know, when Texas sought permission to use a set of maps that had not gone through the preclearance process under the Voting Rights Act that was required at the time the court issued the decision less than two weeks after argument in the recent vaccination case, NFIB versus OSHA. There to the court issued a decision less than two weeks after argument to invalidate that policy so they can do it.

 

Melissa Murray Just to give you a timeline, special counsel Jack Smith actually asked the court to take this case all the way back in December, before the D.C. circuit had even weighed in here, and the court refused to do so. And that’s even though the court has frequently granted cert before judgment that is weighing in even before a circuit court of appeals has issued a final disposition. And they have done that at the end of the Trump administration in order to clear room for the Trump administration to execute federal prisoners. Before Joe Biden assumed office, since Joe Biden had announced that he was going to pause the federal death penalty. So that was one case where they granted cert before judgment. That was an important deadline for the court. But apparently there’s no similar sense of urgency or exigency when we’re talking about whether a jury will get to decide whether a former president who is now running for reelection is actually guilty of conspiring to obstruct official proceedings and interfere with the civil rights of millions in the course of challenging the results of a validly conducted election. I mean, it’s absolutely shocking. Welcome to how serious that means. That derelict.

 

Kate Shaw So. Right. No opinion today. We will see if we have an opinion tomorrow the court is going to have, you know, a probably a bunch of release days next week because they want to really ruin our June issue.

 

Melissa Murray Like, you know, Melissa, Kate and Leah have plans. Let’s fuck this up.

 

Kate Shaw Let’s have a standard calendar invite that is the entire week as opposed to like, you know, increments of time. Maybe that’s what we do. But yeah, I mean, the bottom line here is we are going to have to wait at least a little longer and maybe a lot longer for the court to tell us once again, whether we, the American people, have any chance of knowing what a jury of his peers makes of the January 6th charges against Donald Trump. But while we wait.

 

Melissa Murray Well, I mean, again, I think the bottom line for this is that this is not going to be decided in a court of law. They’ve effectively immunized Donald Trump by waiting this long, which means that the jury of his peers is actually going to come at the ballot box when we get to weigh in.

 

Kate Shaw But without this critical information.

 

Leah Litman Yeah, that’s because the vibes were off in the January 6th prosecution. So, you know, they just they just had to put a pause on that.

 

Kate Shaw Vibe pause.

 

Melissa Murray A  vibe pause.

 

Leah Litman Vibe check. Vibe pause for freedom.

 

Kate Shaw All right. We’ll see how long it is.

 

Melissa Murray Okay.

 

Kate Shaw All right. Well, while we’re in the midst of this vibe pause for freedom.

 

Melissa Murray Let’s talk about what they did decide. What did they, like, move at a glacial pace. You know how that thrills me? But not a glacial pace for some of these bangers. So let’s go through them.

 

Kate Shaw They did get a few out.

 

Leah Litman So we’re going to go quickly through these. The first one is more versus the United States, which is a case about the constitutionality of a tax that was passed in 2017 as part of Trump’s Big Tax Cuts and Jobs Act. But the case was really framed as a test case for the future of some potential wealth tax.

 

Melissa Murray Wealth taxes hurt your emotional support billionaire, right?

 

Kate Shaw They hurt them where it hurts.

 

Melissa Murray Gets em right in the pocketbook.

 

Leah Litman Right in the pjs.

 

Melissa Murray No room on you for the flight if you have to pay this wealth tax.

 

Kate Shaw That’s right.

 

Melissa Murray So anyway, another fun fact about this case, the case actually foreshadowed some of the gossip that has recently been circulating around the Supreme Court, because one of the lawyers involved in the litigation in this case actually moonlights as a journalist. And in his side hustle as a journalist. This particular lawyer, David Rifkin, was the journalist to whom friend of the pod, Samuel Alito, gave his super defensive, not at all problematic interview with the Wall Street Journal back in July of 2023. So catch that if you can, readers. It’s all archived.

 

Kate Shaw It’s still a good read, even even a year later. And also foreshadowed, I think, some of what we learned in the intervening year really kind of did. Yeah, in some ways, so did Sam Alito was like head shaking at the state of the Union address in which Barack Obama complained about Citizens United criticizing the court. Not true, not okay. Nobody can touch me. Nobody can criticize me. It’s sort of like everything that’s happened since.

 

Leah Litman That is the opener for one of the chapters in my book.

 

Kate Shaw It is? Yeah. That’s wonderful. It’s honestly like it’s I think, you know, there’s these moments like what is like the pivot point for the Supreme Court is I think there is a thesis that maybe you’re offering, and I’m really excited to. Read that like that’s at least an important pivot point. The like, you cannot criticize me. You cannot touch me.

 

Melissa Murray All right, back to this. Okay.

 

Kate Shaw Back. Back to more.

 

Melissa Murray The fact that I’m exhibiting restraint here.

 

Kate Shaw I know. I know, this is how. This is how off the rails we are already. And we have, like, 20 ish opinions yet to come.

 

Melissa Murray I’ve turned you Kate.

 

Kate Shaw Okay. Now I’m back on track. So the Moore case is about the validity of a mandatory repatriation tax, which, as Leah said was part of the 2017 law, created basically a one time tax that essentially attributed some of the income of American controlled foreign corporations to the corporations.

 

Leah Litman American shareholders and some billionaires took that missed personally. You come for the PJs, you come for me. So much so that the conservative legal movement orchestrated this entire lawsuit to prevent Congress from imposing this and any future wealth tax.

 

Melissa Murray So the facts and theory of the case are as follows. The plaintiffs here, the Moores purchased shares of a foreign company, and the MIT meant that their tax liability increased by around $15,000. So the Moores filed a lawsuit arguing that the mandatory repatriation tax was not an income tax and therefore violated the Constitution’s apportionment clause, which requires taxes to be imposed so that each state’s share is proportional to its population.

 

Leah Litman And we should say that the facts might not be quite as simple as frame. That is, it’s not just a tax on some poor individual with barely any connection to the foreign corporation. One of the plaintiffs was reportedly on the board of directors for said corporation, made multiple trips overseas, and lent the company several hundred thousand dollars. So it’s not like they had very little connection to the corporation whose income they were being taxed for.

 

Melissa Murray They were invested.

 

Kate Shaw Yes, yes. So these plaintiffs argued that the tax, their personal property, that is, their shares in the foreign company, rather than income from the corporation and a tax on personal property, they argue, would be a direct tax, not an income tax, and thus would need to be apportioned among the states.

 

Leah Litman And their theory of the case could have blown up a fair amount of the tax code, which often attributes income to one entity, particularly legal entities like corporations, to another. So good news, America, the modern fiscal state lives to see another day. Because in a 7 to 2 opinion written by Justice Kavanaugh, the court held that the mandatory repatriation tax was a permissible exercise of Congress’s taxing power. Indeed, the majority reiterated that Congress has, quote, broad power to lay and collect taxes. End quote. Sorry, billionaires, or maybe not so sorry, since the opinion repeatedly went out of its way to say they weren’t actually deciding whether there was a realization requirement or what the limits are for when income can be attributed.

 

Kate Shaw Right? Because in addition to this direct tax argument, the plaintiffs were arguing that this taxation was on unrealized income, or that the income of the corporation could not be attributed to them. And so, really, broadly construed, this argument could have imperiled all kinds of taxation schemes, both some that already exist and that and others that have just been proposed. But could, you know, someday become law. But even though that big audacious challenge failed, it’s a relatively narrow failure. I suppose in a, in a couple of ways. So one, there’s a footnote, footnote two, that really explicitly seems to kind of throw a bone to the like PJ crowd. .

 

Melissa Murray The anxious billionaires.

 

Kate Shaw Exactly. So there the footnote says, quote, our analysis today does not address the distinct issues that would be raised by and then, among other things, taxes on holdings, wealth or net worth. So here’s your at least a question for another day says a majority. So the case does not blow up some future wealth tax, which I think, you know, a lot of the energy behind the case was hoping that it would do. It also doesn’t provide clear assurance that such a tax would definitely be squarely constitutional.

 

Melissa Murray But I think this is a good day at the Bohemian Grove. They’re all breathing their collective sigh of relief, like drinks all around at the Bohemian.

 

Kate Shaw Grove, right? Isn’t that not every day at the bar?

 

Melissa Murray Because they’re behind. They’re a couple hours behind. They were having morning drinks, not just afternoon cocktails.

 

Kate Shaw robably, I’m sure was well received. They would have liked, I think, to have the door decisively slammed. And it just generally the court is not deciding any larger issue about women.

 

Melissa Murray Seeking access to medication. Abortion will take this shitty status quo for now.

 

Kate Shaw Well, it’s not so shitty for the billionaires.

 

Melissa Murray Well, it’s not what they want.

 

Kate Shaw Okay, that’s right. But it is essentially like.

 

Leah Litman A huge judicially ordered tax cut of like half of the tax code, which was the ask.

 

Kate Shaw Yeah, yeah. So maybe that is a hard day. Who knows. A mixed bag for the billionaires.

 

Melissa Murray A mixed bag for billionaires just means that there are a couple of ones and nickels mixed in with your hundos. So it’s fine. Okay. Another important thing to note about the majority opinion is that it confirms that the meaning of the constitutional provisions regarding taxes should be resolved with regard to the year 1913, which is the year that the 16th amendment authorizing income taxes was ratified. So that’s the original. It’s time one for taxation.

 

Kate Shaw So now we know. Thank you. Justice Jackson filed a concurrence in which she emphasized how broad Congress’s power really plenary power, is in the realm of taxation. She also, I think, is anticipating kind of future litigation battles to come. And she is trying to stake out this ground in which she says Congress has enormously broad authority to tax. Tax policy is going to be controversial and unpopular. Let’s not become the place that tax policy gets hashed out, right. The courts are not the right venue. Will she be heated? Who knows? But that seems like what.

 

Melissa Murray She’s doing more than just simply acknowledging the breadth of the tax power. But given that so many other heads of congressional power are being shut down, I think this is like a displacement theory to open up other windows for Congress as these more traditional tickets go.

 

Kate Shaw That’s a good point. Yeah.

 

Melissa Murray Anyway, she’s not the only concurrence, though. It was the best concurrence I have to say, but um not the only one. Justice Barrett also filed a concurrence, joined by Justice Alito, which says everything about the Barrett concurrence. And it’s good to know these two are finally getting along right. But there’s Amity. Well, anyway.

 

Kate Shaw I kind of doubt it.

 

Melissa Murray Well, I mean. He’s with her on this at least.

 

Kate Shaw That’s true.

 

Melissa Murray Okay, so in this concurrence, Justice Barrett emphasized the narrowness of the court’s holding and noted that the question of whether Congress can attribute the income of closely held corporations to their shareholders is, in fact, a difficult question, and unfortunately, one that was barely addressed in the course of this litigation. And in her view, the court was too quick in this majority opinion to bless the attribution of corporate income to shareholders. So that’s an invitation, I think, to take this up in another venue in a different case.

 

Kate Shaw Yeah, it’s like a pretty decent concurrence. And there’s also a separate dissent from Justice Thomas, joined by Justice Gorsuch.

 

Melissa Murray Because he would go further.

 

Kate Shaw Right. And the crux really is like, you know, that sort of question of shareholder realization. And so I, you know, even though this looks like, oh, this is a seven to repudiation of this audacious theory, there’s actually sympathy for some sympathy in the devil’s sympathy for the devil, some sympathy for the devil. Definitely.

 

Leah Litman Again, not necessarily a horrible day at the Bohemian Grove. I think some of those justices preserve those PJ invites. I did want to know one thing about the court’s disposition of this case, which is it basically did what it could do in the immunity case, namely, decide they don’t actually have to decide the exact scope of the federal power being claimed. So the challengers in this case had argued taxes were only income taxes. If there was some income realization that the tax taxed. And the court basically said, we don’t have to decide that, because here there was realization to the corporation and Congress reasonably attributed that to the shareholders, and they could do something similar in the immunity case and say they don’t have to decide the limits of presidential immunity because the January 6th case just doesn’t fall under it. As Tatiana says, choices.

 

Kate Shaw And they could make good ones, but. If you don’t expect them to.

 

Leah Litman More likely. Moving on. Bad decisions. Yeah.

 

Kate Shaw Bad choices. Bad decisions. All of it.

 

Melissa Murray [AD]

 

Kate Shaw Next case we’re gonna cover is she of arena versus City of Napoleon, which is a case about whether and when you can sue for a malicious prosecution claim. Malicious prosecution is basically when the government charges you with a crime as punishment for, say, exercising your right to free speech. Right? It retaliates with the prosecution.

 

Melissa Murray The twist in this case is that the plaintiff here was actually charged with multiple crimes. And while there was probable cause to charge a plaintiff with at least some of those multiple crimes for at least one of those crimes, there was no probable cause. So hence the plaintiff’s claim of malicious prosecution.

 

Leah Litman And traditionally, to make out a malicious prosecution claim, you have to show the absence of probable cause. That is, that there wasn’t a reasonable belief you committed the offense you’ve been charged with. And the question here was basically whether overcharging defeats a malicious prosecution claim. That is, whether the existence of probable cause for some crimes with which you’ve been charged means you also can’t sue for malicious prosecution for the one crime for which there wasn’t probable cause to charge you.

 

Kate Shaw And in A63 opinion by Justice Kagan, Scotus held that the existence of probable cause for one of the charges doesn’t bar you from suing for another charge for which there wasn’t probable cause. So authorities can’t insulate an unlawful charge by throwing in some other charges that might be supported by probable cause. Kagan explains that this conclusion follows both from the meaning of the Fourth Amendment and also common law practice.

 

Melissa Murray We said this opinion was a 6 to 3 opinion, but notably, famed Libertarian Neil Gorsuch dissented along with Justices Thomas and Alito. So, hmm.

 

Leah Litman Yeah, not to continue humming beating the same drum. But I did want to note that in this case as well, the court declined to resolve the element of causation. That is how a plaintiff has to show that the malicious prosecution contributed to their detention on the one charge for which there wasn’t probable cause. The court said, quote, but that new dispute, that is the one over causation is not now fit for our resolution. And quote, basically, it passed on the issue because it wasn’t properly raised and wasn’t actually, kind of teed up. Now, the court might also resolve the immunity case quickly by noting that certain issues in that case are not presented or otherwise not fit for resolution, like, say, whether a president can be charged with a, quote, mistake as Justice Alito floated, or for activities that plausibly fall within the scope of the president’s official duty. Since, again, that’s not actually presented in the immunity case. Once again, choices.

 

Kate Shaw It is important if the court does go big, if it does right for the ages, like of course it wants, it will have made the choice to do that. It could very easily say, we don’t have to decide. There’s never, ever immunity under any circumstances. We can simply say no plausible claim to immunity exists here. We save for another day.

 

Melissa Murray We hope never to have a president like this again.

 

Kate Shaw They don’t even have to say that. Just we just save for another day. These hard questions. And the.

 

Melissa Murray The problem is, you can’t say that if in fact, you are hoping for a president like that.

 

Kate Shaw Which. Yeah.

 

Melissa Murray So I don’t know.

 

Kate Shaw I don’t know how many of them are, but some of them and some of them yeah again.

 

Melissa Murray I know two.

 

Kate Shaw Exactly the question is how many more than two.

 

Melissa Murray Yeah. All right. In addition to those bangers, the court also issued Diaz versus United States. And this is an important case about the federal Rules of Evidence. Federal Rule of Evidence 704B provides that in a criminal case, an expert witness must not state an opinion about whether the defendant did or did not have a mental state or condition that constitutes an element of the crime charged or of a defense. Those matters are for the Trier effect alone. The question presented in Diaz, though, is whether in a prosecution for drug trafficking, where an element of the offense is whether the defendant knew she was carrying illegal drugs. Does rule 704 be permit the government’s expert witness to testify that most people crossing the border with drugs know that they are carrying those drugs, in part because drug trafficking organizations typically do not entrust large quantities of drugs to unknowing couriers. So in that expert testimony, can the expert testify that, yeah, every drug courier knows this.

 

Kate Shaw Even typically. Right? Yeah. So. And Justice Thomas wrote for another six three court finding that this sort of expert testimony is permissible. So again, testifying about particular classes of individuals, what is typically known doesn’t violate the prohibition on experts testifying about a particular defendant’s state of mind. Jackson interestingly concurred, noting that the court’s holding was something that not just the prosecution but also the defense could benefit from. Right. So if this kind of expert testimony about, you know, group characteristics or, you know, sort of typical state of mind was permissible, it’s not just prosecutors seeking to make out a case about a drug courier and, you know, typical knowledge, but also defense attorneys trying to present evidence that might be helpful to criminal defendants about things like mental health conditions or the effects of domestic violence. So she was she seemed eager to suggest that the court was not like announcing a rule that was, in some fundamental sense, pro prosecution, but actually could be used by all parties.

 

Melissa Murray So I think this is her. Yancey moment. I think those free tickets to the Renaissance tour really are influencing.

 

Kate Shaw Improperly?

 

Melissa Murray No, no, no. Fine. Influencing. Opening up new vistas for her and her jurisprudence. Because I think she is genuinely thinking about how to take this Thomas Pro-government Lemon and turn it into public defender lemonade. And I think this might be how she’s doing it. So good on her for finding the silver lining in this.

 

Kate Shaw Yeah, she does seem to.

 

Leah Litman What’s also just an interesting, smart concurrence. You know, as Ellie said in the live show, you know, you’re that bitch when you cause all this conversation.

 

Melissa Murray I think I said it actually, he wrote it, I said it.

 

Melissa Murray I’m sorry. Okay. Well, as Ellie and Melissa came up with. Tell us you didn’t watch the live show without telling us, you didn’t watch the live show, you bitch.

 

I listened to it.

 

Oh my God, no, you did it!

 

Leah Litman I did too.

 

Kate Shaw You know, remember, there was a debate about whether Ellie could say B, I wish I could say that there was a whole thing about this, right?

 

Melissa Murray That I said it.

 

Kate Shaw But he started. You said you say it. You know, you that. I think you might have said it but didn’t say, bitch. I didn’t watch a live show.

 

Melissa Murray We’ll roll the tape anyway. Leah.

 

Leah Litman So Justice Gorsuch dissented, joined by Justices Sotomayor and Kagan, suggesting that the opinion gives the government a powerful new tool the ability to put an expert who can hold forth on what most people like the defendant, think when they commit a legally prescribed act.

 

Melissa Murray And finally, the last opinion of the day was Gonzalez versus Trevino, which I think we can just cheerfully label yet another fifth circuit slapped down.

 

Kate Shaw I’m sure a lot of stats, but we’re getting up there in terms of how many we’ve had this comment and it’s going to be more.

 

Melissa Murray We can talk about that. I mean, like I feel like you should take something from it if you are continually getting slapped down by the court. And the takeaway should not be that the court is moderate or consensus driven or normal, but that you are really fucking out there.

 

Kate Shaw Yeah.

 

Melissa Murray Fifth circuit. Okay.

 

Leah Litman Well, that the farm team for the next Republican presidents Supreme Court nominee is really fucking there.

 

Melissa Murray That part. Yeah. That part. This particular case involved a retaliatory arrest claim. That is where a plaintiff claims that they were arrested as punishment for exercising their constitutional rights. Here. The plaintiff, who was a city council member, says that she was retaliated against because of her work organizing a petition seeking the removal of the city manager. Specifically, she was arrested for removing a government record. The petition itself, and she can see it’s there was probable cause for that arrest. She inadvertently discovered a copy of the petition in her binder, but she.

 

Kate Shaw Says she can sue for retaliatory arrest, even though there was probable cause for that arrest because no one else had ever been charged with this offense, that is, removing or tampering with a government record in circumstances at all like this. There are some of those prosecutions, but they all involve charges for things like using or making fake government IDs or fake tracks, or cheating on government exams. Not like putting a petition in your binder when you’re a government official yourself. It’s pretty crazy.

 

Leah Litman Well, and it’s also just like a different kind of document.

 

Melissa Murray Yes, it’s not as crazy as being charged with falsifying business records for paying off an adult film star. When no one else gets charged with that.

 

Kate Shaw No, no. Clearly not.

 

Melissa Murray But actually, everyone does get charged that. Anyway

 

Kate Shaw Sarcasm was not landing. Yes.

 

Melissa Murray Anyway. Hi, Stevie.

 

Kate Shaw Stevie agrees.

 

Leah Litman Yeah, yeah. My dog Stevie has some opinions.

 

Melissa Murray Lock him up lock him up.

 

Leah Litman She heard that dog whistle.

 

Melissa Murray Not the immunity case tho, she’s just like the court.

 

Leah Litman Yeah. So here in Gonzalez, the court said that even though there was probable cause for that arrest, which ordinarily defeats a retaliatory arrest claim, the plaintiff here can still proceed on her claim because she produced, quote, objective evidence that she was arrested when otherwise similarly situated individuals not engaged in the same sort of protected speech had not been and quote, this was a per curiam opinion, i.e. there was no noted author. Justice Alito wrote a concurrence purporting to provide additional guidance no one needs to the lower courts on both this case and future retaliatory arrest cases. Justice Kavanaugh also wrote a separate concurrence, and Justice Jackson, joined by Justice Sotomayor, concurred. Only Justice Thomas dissented, and Fifth Circuit stay winning.

 

Kate Shaw It’s really weird to have a per curiam with a lot of separate concurrences.

 

Melissa Murray It defeats the purpose.

 

Kate Shaw Yeah. Don’t really know why they did it that way because it was like a short five page procurium. And maybe then at some point everyone was like, I got something I want to say, and then everybody just piled on. But they didn’t. They just kept procuring. I don’t I don’t know, it’s not I’m not that interested. I won’t spend much time talking about it, but it is weird.

 

Melissa Murray Well, maybe it’s a little like ordering catering for a party and then being like. But it’s potluck. Bring your own food. Its weird.

 

Kate Shaw Yeah, yeah. You don’t usually have an opinion that looks like this, but I think it’s possible they are just like, get it out, get it out. We got too much else to do.

 

Melissa Murray Well, so maybe, I do think that the glacial pace of all of these opinions and the fact that we’re getting these sort of anodyne ones now, I think they’re fighting. Don’t you think they’re fighting about some of these? Big ones for sure.

 

Leah Litman That, and they have so few cases that they actually took up. I feel like they all feel compelled to want to say something because they have so few opportunities to actually write opinions.

 

Kate Shaw Yeah, that’s a good theory too.

 

Leah Litman Idle hands.

 

Melissa Murray So they just want to do stuff, but they also hate doing it with these people.

 

Kate Shaw Yeah. Like, we have things they can do if they want us to do stuff? There are better uses of their time.

 

Melissa Murray What do we make of this potential red flag? Obviously, an upside down red flag. Justice Alito was not on the bench today, Thursday, when these opinions were announced. Where was he?

 

Leah Litman He was up a flagpole.

 

Melissa Murray Was he experiencing some Virgo near post?

 

Kate Shaw I mean, like anticipatory celebrations, mourning for whatever they’re going to do tomorrow? Just getting started early on a long weekend, I don’t know.

 

Leah Litman Oh, yeah. He’s down. Not. It was like protein shakes for tomorrow. Next week.

 

Kate Shaw Yeah.

 

Melissa Murray We’re. Yikes.

 

Kate Shaw Calisthenics.

 

Melissa Murray He’s going to read it all from the bench.

 

Leah Litman Yeah.

 

Kate Shaw Yeah I mean I could cut in a few different ways, but I have no reason to think that anything good is going to happen. So I think he just, like, he doesn’t want to let his Glee show. He doesn’t want to take.

 

Leah Litman Kate what happened to you?

 

Melissa Murray I know.

 

Kate Shaw I feel like we’re in a dark place.

 

Melissa Murray You got into a bike accident, she’s gone off the rails. I’m like the only one just keeping it 100.

 

Leah Litman So, speaking of all the bad decisions that are to come, there are 18 more opinions to go. There won’t be an emergency episode tomorrow, no matter what happens, because we have a live show on Saturday, so anything big will be covered in the live show, and we will have that live show in your ear holes first thing Monday morning. And in addition to breaking down the Friday opinions, there will be some very special guests and much, much more very special guests. I know I’m very excited.

 

Kate Shaw Is that why Sam was taking that took the day off Thursday?

 

Melissa Murray Maybe he’s the special guest. He’s getting his glow up so he can see us in person. We’re coming for you, Sam. We’re going to be in your hood. Oh my God. Wouldn’t it be the best. If, like, Martha Ann came down so she could hate listen in person instead of just in her home, in her homes.

 

Leah Litman So, I wanted to added one additional. Thank you. Before we wrap this up and closer that I forgot to add last time when I was first back on the show, and that is, I wanted to thank Shannon, the occupational therapist who taught me how to do basic living functions with one arm while I was still in the hospital so I could be at home. It turns out she is a podcast listener. And came into the Roman was like, oh, are you actually Leah Litman and I was like, yes, I am that Leah Litman with a broken arm. So thank you, Shannon.

 

Melissa Murray Thank you Shannon.

 

Kate Shaw We so appreciate you. Shannon, even though.

 

Melissa Murray Thank you for turning our girl into a one armed bandit we love it.

 

Kate Shaw I feel like Leah with one arm is still like.

 

Melissa Murray Yeah. Better yeah.

 

Kate Shaw Writing circles around almost everyone on the planet.

 

Melissa Murray I love it.

 

Kate Shaw But I’m glad that that’s awesome that you got I know you got good care. So, thanks Shannon.

 

Melissa Murray Thank you. Shannon.

 

Kate Shaw All right, we’ll leave it there. Strict Scrutiny is a Crooked Media production hosted and executive produced by Leah Litman, Melissa Murray and me, Kate Shaw. Produced and edited by Melody Rowell. Michael Goldsmith is our associate producer. Our interns this summer are Hannah Saraf and Tasso Donahue, audio support from Kyle Seglin and Charlotte Landes, music by Eddie Cooper. Production support from Madeline Herringer and Ari Schwartz. Matt DeGroot is our head of production and thanks to our digital team, Phoebe Bradford and Joe Matoskey. Subscribe to Strict Scrutiny on YouTube. To catch full episodes, find us at youtube.com/Strict ScrutinyPodcast 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.