1 00:00:00,400 --> 00:00:04,600 Speaker 1: From bloom Bird Radio. Should a death row inmate be 2 00:00:04,720 --> 00:00:07,480 Speaker 1: able to have his pastor pray out loud and lay 3 00:00:07,560 --> 00:00:10,840 Speaker 1: hands on him during his execution. It's a question the 4 00:00:10,880 --> 00:00:14,360 Speaker 1: Supreme Court Jelstice is struggled with this week, and it 5 00:00:14,440 --> 00:00:18,239 Speaker 1: led some jealstic is typically solicitous of religious rights to 6 00:00:18,360 --> 00:00:22,800 Speaker 1: express concerns about the possibilities of gamesmanship and a flurry 7 00:00:22,800 --> 00:00:26,799 Speaker 1: of last minute filings by death row inmates. Here are jealostice, 8 00:00:26,800 --> 00:00:34,279 Speaker 1: says Clarence Thomas and Samuel Alito. Can one's repeated filing 9 00:00:34,520 --> 00:00:38,239 Speaker 1: of complaints, particularly at the last minute, not only be 10 00:00:38,400 --> 00:00:42,560 Speaker 1: seen as evidence of gaming of the system, but also 11 00:00:42,600 --> 00:00:48,080 Speaker 1: of um the sincerity of religious beliefs. What's going to 12 00:00:48,159 --> 00:00:51,839 Speaker 1: happen when the next prisoner says that I have a 13 00:00:51,920 --> 00:00:55,560 Speaker 1: religious belief that he should touch my knee, he should 14 00:00:55,600 --> 00:00:59,320 Speaker 1: hold my hand, he should put his hand over my heart. 15 00:00:59,840 --> 00:01:03,560 Speaker 1: But other justices, such as Sonya Soto Mayor, seemed to 16 00:01:03,560 --> 00:01:08,039 Speaker 1: see the inmates request as reasonable his desire to have 17 00:01:08,240 --> 00:01:12,240 Speaker 1: the pastor in the execution chamber when he's dying, because 18 00:01:12,280 --> 00:01:16,160 Speaker 1: the whole purpose of the religious belief is that you 19 00:01:16,200 --> 00:01:18,880 Speaker 1: should have a pastor to help guide you to the 20 00:01:18,920 --> 00:01:21,960 Speaker 1: other place. Joining me is Richard Garnett, a professor at 21 00:01:21,959 --> 00:01:25,160 Speaker 1: Notre Dame Law School and director of the Program on Church, 22 00:01:25,280 --> 00:01:28,840 Speaker 1: State and Society. Rick, this isn't about the First Amendment. 23 00:01:28,920 --> 00:01:33,120 Speaker 1: Tell us about the law issue here. So this law, 24 00:01:33,280 --> 00:01:37,160 Speaker 1: this Religious Land Use and Institutionalized Person's Act, was enacted 25 00:01:37,160 --> 00:01:39,520 Speaker 1: by Congress a couple of decades ago. It had the 26 00:01:39,520 --> 00:01:43,679 Speaker 1: purpose of providing additional protections to prisoners in the United States, 27 00:01:43,720 --> 00:01:46,319 Speaker 1: protections that are more expansive than the ones that the 28 00:01:46,319 --> 00:01:49,040 Speaker 1: Constitution provides. In this particular case, this is kind of 29 00:01:49,040 --> 00:01:51,440 Speaker 1: the culmination of a number of disputes that have come 30 00:01:51,480 --> 00:01:53,880 Speaker 1: to the Supreme Court in recent years where states have 31 00:01:53,960 --> 00:01:57,080 Speaker 1: struggled with their execution procedures and specifically have kind of 32 00:01:57,120 --> 00:02:00,280 Speaker 1: bounced around about how they're going to handle the sense 33 00:02:00,400 --> 00:02:03,920 Speaker 1: of spiritual advisors and clergy in the execution chamber. Why 34 00:02:03,960 --> 00:02:08,200 Speaker 1: have there been so many cases with questions about ministers 35 00:02:08,240 --> 00:02:12,560 Speaker 1: being in the execution chamber. There's certainly a long tradition 36 00:02:12,760 --> 00:02:16,400 Speaker 1: of ministers and clergy being present during executions now in 37 00:02:16,480 --> 00:02:20,040 Speaker 1: the United States, in recent decades, as the execution process 38 00:02:20,360 --> 00:02:23,480 Speaker 1: has become more sort of closed off, and as obviously 39 00:02:23,480 --> 00:02:26,200 Speaker 1: we moved away from public executions towards private ones, and 40 00:02:26,240 --> 00:02:30,800 Speaker 1: they're very strictly choreographed and controlled. It's not surprising that 41 00:02:30,880 --> 00:02:34,120 Speaker 1: this issue comes up, particularly once you have this federal 42 00:02:34,200 --> 00:02:37,800 Speaker 1: law in place that does explicitly protect the religious freedom 43 00:02:37,880 --> 00:02:40,160 Speaker 1: rights of prisoners. Here, what we're dealing with, if you 44 00:02:40,160 --> 00:02:42,960 Speaker 1: want to look sort of just in the last few years. 45 00:02:43,360 --> 00:02:45,079 Speaker 1: What makes this case a little tricky to follow is 46 00:02:45,120 --> 00:02:48,760 Speaker 1: the fact that the states have kind of changed practices. So, um, 47 00:02:48,800 --> 00:02:52,600 Speaker 1: you know you have uh, one state sort of um 48 00:02:53,000 --> 00:02:57,200 Speaker 1: denying access to a h a clergy person, uh to 49 00:02:57,280 --> 00:03:01,560 Speaker 1: condemns selection altogether. Then the court says you can't do that. 50 00:03:02,040 --> 00:03:04,520 Speaker 1: Then um, uh that as you can't do it in 51 00:03:04,520 --> 00:03:07,760 Speaker 1: a denominationally discriminatory way. If you're gonna let Christian people 52 00:03:07,800 --> 00:03:09,760 Speaker 1: have their ministers, then you can't deny it to people 53 00:03:09,800 --> 00:03:12,399 Speaker 1: who are non Christian. So then the state says, well, 54 00:03:13,240 --> 00:03:14,960 Speaker 1: if you're telling us we have to let in just 55 00:03:15,520 --> 00:03:17,840 Speaker 1: any requested clergy member, we're going to change our policy 56 00:03:17,840 --> 00:03:21,080 Speaker 1: and have no clergy coming in at all. Um. And 57 00:03:21,120 --> 00:03:23,040 Speaker 1: then states change that practice and say, well, no, we'll 58 00:03:23,080 --> 00:03:25,600 Speaker 1: let clergy be present, but they can't touch or they 59 00:03:25,600 --> 00:03:29,560 Speaker 1: can't audibly pray um, So, there is kind of a 60 00:03:29,600 --> 00:03:31,760 Speaker 1: tangled history up and down, and I think the hope 61 00:03:31,800 --> 00:03:35,040 Speaker 1: for some of us who's been following this case is 62 00:03:35,080 --> 00:03:38,200 Speaker 1: that the Court will clarify things a bit. So tell 63 00:03:38,240 --> 00:03:43,800 Speaker 1: us about the concerns expressed by the justices during your arguments. Well, 64 00:03:43,920 --> 00:03:46,160 Speaker 1: one thing that was clearly on the justices minds, and 65 00:03:46,200 --> 00:03:48,920 Speaker 1: including on the minds of justices who have a record 66 00:03:49,040 --> 00:03:52,280 Speaker 1: of being solicitous of religious liberty, was you know, where 67 00:03:52,320 --> 00:03:54,400 Speaker 1: is this going to lead? How do we draw lines 68 00:03:54,480 --> 00:03:57,320 Speaker 1: between the kinds of clergy access that are permissible and 69 00:03:57,360 --> 00:04:00,080 Speaker 1: the ones that might be disruptive or unsettling or and 70 00:04:00,200 --> 00:04:03,640 Speaker 1: dangerous to the procedure. Obviously this is a very sensitive context, 71 00:04:03,680 --> 00:04:05,640 Speaker 1: and the Justice has recognized this. The government has a 72 00:04:05,640 --> 00:04:09,640 Speaker 1: strong interest in wanting to minimize the risk of disruptions 73 00:04:09,720 --> 00:04:12,280 Speaker 1: during an execution, especially because, as you know, there's been 74 00:04:12,320 --> 00:04:16,360 Speaker 1: some high profile executions where the process has been botched 75 00:04:16,400 --> 00:04:18,880 Speaker 1: and the inmates have suffered, and so obviously states want 76 00:04:18,880 --> 00:04:21,520 Speaker 1: to minimize to the extent they can, the risk of 77 00:04:21,560 --> 00:04:24,599 Speaker 1: that happening. But as some of the justices, like Justice 78 00:04:24,600 --> 00:04:28,160 Speaker 1: so Domior in Justice Kagan mentioned in oral argument, Congress 79 00:04:28,160 --> 00:04:31,359 Speaker 1: has made it clear that they want states to be 80 00:04:31,440 --> 00:04:34,839 Speaker 1: solicitous of religious freedom, even when it's inconvenient, and even 81 00:04:34,839 --> 00:04:37,520 Speaker 1: when it might be a bit challenging. States are expected 82 00:04:37,560 --> 00:04:40,400 Speaker 1: to do what they can to accommodate religious freedom. So 83 00:04:40,560 --> 00:04:42,720 Speaker 1: if you listen to the oral arguments, a lot of 84 00:04:42,720 --> 00:04:45,360 Speaker 1: the for lack of a better word, more conservative justices 85 00:04:45,440 --> 00:04:49,479 Speaker 1: were pressing the lawyer for Mr Ramirez, saying, Okay, where 86 00:04:49,520 --> 00:04:51,599 Speaker 1: would the line be. It's one thing you wanted to 87 00:04:51,640 --> 00:04:54,440 Speaker 1: have a pastor touching the inmate on his foot, but 88 00:04:54,520 --> 00:04:55,960 Speaker 1: what if you wanted to touch the inmate on his 89 00:04:56,040 --> 00:04:57,840 Speaker 1: head or on his heart. And you say you want 90 00:04:57,880 --> 00:05:00,760 Speaker 1: to have audible prayer. That's great, but what if the 91 00:05:00,800 --> 00:05:04,240 Speaker 1: minister starts yelling really loudly and interfering with the communication 92 00:05:04,320 --> 00:05:06,560 Speaker 1: and so on. So they were struggling with the line 93 00:05:06,640 --> 00:05:09,120 Speaker 1: drawing problem. The other thing that you heard the justices 94 00:05:09,240 --> 00:05:13,000 Speaker 1: concerned about was that condemned inmates would use last minute 95 00:05:13,000 --> 00:05:16,359 Speaker 1: religious liberty claims as a way to kind of secure 96 00:05:16,440 --> 00:05:18,640 Speaker 1: delays in their execution. That is, that there would be 97 00:05:18,720 --> 00:05:21,000 Speaker 1: bad faith claims or it's just as Thomas put it, 98 00:05:21,040 --> 00:05:22,960 Speaker 1: there the efforts to gain the system where you know, 99 00:05:23,000 --> 00:05:25,320 Speaker 1: at the last minute and inmate would say, wait a minute, 100 00:05:25,320 --> 00:05:27,200 Speaker 1: I have decided I need to have my pastor present 101 00:05:27,480 --> 00:05:30,000 Speaker 1: and thereby sort of require the state to have to 102 00:05:30,080 --> 00:05:32,200 Speaker 1: change its procedures or put things off. And it's a 103 00:05:32,240 --> 00:05:35,760 Speaker 1: long standing concern and death pedalty litigation that inmates might 104 00:05:36,200 --> 00:05:38,960 Speaker 1: file last minute complaints and possibly delay the process. But 105 00:05:39,000 --> 00:05:40,520 Speaker 1: of course the court has been dealing with those for 106 00:05:40,560 --> 00:05:43,159 Speaker 1: a long time. After the oral arguments, did you get 107 00:05:43,160 --> 00:05:45,440 Speaker 1: a feel for how they might rule for me? It 108 00:05:45,480 --> 00:05:47,400 Speaker 1: was difficult to come away from the oral argument with 109 00:05:47,440 --> 00:05:49,680 Speaker 1: any clear view of what would happen. But I guess 110 00:05:49,720 --> 00:05:52,760 Speaker 1: I did think that, notwithstanding the line drawing problems that 111 00:05:53,000 --> 00:05:56,479 Speaker 1: various justices were concerned about, that the arguments did sort 112 00:05:56,480 --> 00:05:59,560 Speaker 1: of circle back to the key point that Congress has 113 00:05:59,600 --> 00:06:04,080 Speaker 1: told courts that they are supposed to insist that state 114 00:06:04,120 --> 00:06:07,360 Speaker 1: government accommodate prisoners religious freedom to the extent they can. 115 00:06:07,680 --> 00:06:11,280 Speaker 1: And so if we have a record into Ramirez case 116 00:06:11,480 --> 00:06:14,719 Speaker 1: that shows that it's possible to accommodate requests like these 117 00:06:14,880 --> 00:06:18,279 Speaker 1: in ways that don't disrupt prison practices, I suspect that's 118 00:06:18,279 --> 00:06:21,880 Speaker 1: what the justices will say. The Act requires justice. Amy 119 00:06:21,920 --> 00:06:26,440 Speaker 1: Coney Barrett expressed concerns that if prisons didn't allow this, 120 00:06:27,000 --> 00:06:29,560 Speaker 1: then perhaps the next step in the future would be 121 00:06:30,000 --> 00:06:33,840 Speaker 1: prisons barring worship services. She was and like a lot 122 00:06:33,880 --> 00:06:35,839 Speaker 1: of the justices. Again, this is something we see not 123 00:06:35,960 --> 00:06:37,960 Speaker 1: just in the Supreme Court but in law generally, is 124 00:06:38,000 --> 00:06:40,760 Speaker 1: that judges, when they are formulating rules and when they're 125 00:06:40,760 --> 00:06:43,600 Speaker 1: applying rules, they're often thinking about the next case. Where 126 00:06:43,640 --> 00:06:45,960 Speaker 1: does this go. So a court might think, if we 127 00:06:46,000 --> 00:06:49,919 Speaker 1: allow Texas to say no ministers may touch an inmate 128 00:06:50,080 --> 00:06:53,560 Speaker 1: in the execution chamber because that's too sensitive, then maybe 129 00:06:53,640 --> 00:06:55,479 Speaker 1: a couple of years and other state decides, you know what, 130 00:06:55,680 --> 00:06:59,320 Speaker 1: allowing ministers to be physically present for church services is 131 00:06:59,360 --> 00:07:00,760 Speaker 1: too dangerous. We're just going to have to do it 132 00:07:00,800 --> 00:07:03,159 Speaker 1: all by zoom. Now that's a concern about things going 133 00:07:03,400 --> 00:07:05,440 Speaker 1: in one direction, and then of course the concern going 134 00:07:05,480 --> 00:07:07,080 Speaker 1: in the other direction is like, okay, well, if we 135 00:07:07,160 --> 00:07:10,520 Speaker 1: say that this act guarantees a religious inmates right to 136 00:07:10,560 --> 00:07:13,800 Speaker 1: have physical touch and oral prayer in the execution chamber, 137 00:07:14,040 --> 00:07:17,400 Speaker 1: then the next inmate is going to say that there 138 00:07:17,400 --> 00:07:19,400 Speaker 1: has to be physical touch. Like I said on the head, 139 00:07:19,680 --> 00:07:22,600 Speaker 1: there's always this concern about how to find lines, how 140 00:07:22,600 --> 00:07:25,560 Speaker 1: to anticipate the next case that's not unusual. Did it 141 00:07:25,600 --> 00:07:28,400 Speaker 1: strike you as unusual that some of the justices who 142 00:07:28,400 --> 00:07:32,280 Speaker 1: are normally solicitous of religious rights seem to have real 143 00:07:32,360 --> 00:07:35,920 Speaker 1: concerns in the death penalty context. Yeah, I wouldn't put 144 00:07:35,920 --> 00:07:38,080 Speaker 1: it quite so starkly. It was just clear that those 145 00:07:38,120 --> 00:07:41,880 Speaker 1: justices were anxious about some of the possible implications and 146 00:07:41,920 --> 00:07:44,200 Speaker 1: the line drawing problems. One of the things that's worth 147 00:07:44,200 --> 00:07:46,640 Speaker 1: emphasizing is that in the Supreme Court, when it comes 148 00:07:46,640 --> 00:07:50,679 Speaker 1: to religious freedom under this particular federal statute, the justices 149 00:07:50,720 --> 00:07:53,480 Speaker 1: have not been divided on ideological lines. The last one, 150 00:07:53,520 --> 00:07:57,080 Speaker 1: called Hope versus Hobbs, involved a prisoner in Arkansas who 151 00:07:57,080 --> 00:08:00,320 Speaker 1: wanted an exemption from a no beard's rule because of 152 00:08:00,320 --> 00:08:02,440 Speaker 1: his religious faith, and he won nine to zero, and 153 00:08:02,480 --> 00:08:05,320 Speaker 1: as an earlier case called Cutter, again not divided on 154 00:08:05,320 --> 00:08:08,400 Speaker 1: on ideological grounds. So even though the justices obviously disagree 155 00:08:08,400 --> 00:08:11,760 Speaker 1: about many criminal justice issues and about capital punishment, there's 156 00:08:11,800 --> 00:08:15,400 Speaker 1: been something like a consensus that federal law requires states 157 00:08:15,440 --> 00:08:19,640 Speaker 1: to accommodate religious objectors and religious believer special needs even 158 00:08:19,640 --> 00:08:22,040 Speaker 1: in prison. I think this case, just because the death 159 00:08:22,040 --> 00:08:25,800 Speaker 1: penalty context is so sensitive, and because the justices have 160 00:08:25,840 --> 00:08:28,400 Speaker 1: a lot of experience with these last minute appeals that 161 00:08:28,480 --> 00:08:30,640 Speaker 1: some of them were nervous about the implications of this 162 00:08:30,680 --> 00:08:33,600 Speaker 1: particular claim. But I'm hoping in any event, that those 163 00:08:33,600 --> 00:08:36,680 Speaker 1: concerns were answered and that you know, they'll continue with 164 00:08:36,720 --> 00:08:40,080 Speaker 1: the practice of against sort of a consensus view that 165 00:08:40,320 --> 00:08:43,640 Speaker 1: prisoners religious freedom rights should be protected to the extent possible. 166 00:08:44,280 --> 00:08:47,679 Speaker 1: So I have to say I'm surprised in this instance 167 00:08:47,720 --> 00:08:53,679 Speaker 1: the Supreme Court halted his execution and fast tracked the 168 00:08:53,840 --> 00:08:57,959 Speaker 1: arguments as long as the minister could be in the room. 169 00:08:58,120 --> 00:09:03,520 Speaker 1: Is it so critical that the minister touch the innate? Well, 170 00:09:03,520 --> 00:09:05,960 Speaker 1: all so interesting? I mean, this isn't this is It's 171 00:09:05,960 --> 00:09:09,200 Speaker 1: an important point about religious freedom cases generally, is that 172 00:09:09,760 --> 00:09:13,120 Speaker 1: UM courts have a have a challenge and that the 173 00:09:13,200 --> 00:09:16,760 Speaker 1: religious freedom protections that exist in our laws exist for everyone, 174 00:09:17,520 --> 00:09:23,319 Speaker 1: including for people whose religious practices are less familiar to us. So, um, 175 00:09:23,440 --> 00:09:28,360 Speaker 1: you know, Ramirez and his pastor assert and I don't 176 00:09:28,360 --> 00:09:30,160 Speaker 1: think we have any reason to think that their inn 177 00:09:30,240 --> 00:09:33,800 Speaker 1: sincere that it is part of their religious belief, that 178 00:09:33,880 --> 00:09:37,600 Speaker 1: the that the laying on of hands is an important 179 00:09:37,640 --> 00:09:42,000 Speaker 1: part of UM of prayer for another person. That's not 180 00:09:42,040 --> 00:09:43,920 Speaker 1: to say that prayer can't happen without it. But it's 181 00:09:43,960 --> 00:09:47,280 Speaker 1: an important Uh, it's an important component of how they 182 00:09:47,360 --> 00:09:50,240 Speaker 1: think about praying for other people. So you you lay 183 00:09:50,400 --> 00:09:52,800 Speaker 1: you lay hands on their bodies. And that's the practice 184 00:09:52,840 --> 00:09:55,360 Speaker 1: I was familiar with from when I was a kid, 185 00:09:55,360 --> 00:09:58,800 Speaker 1: going to Assembly of God's schools and so on. Um, 186 00:09:59,080 --> 00:10:01,280 Speaker 1: So I don't think that's so unusual. But you know, 187 00:10:01,320 --> 00:10:04,960 Speaker 1: you could imagine um, somebody who said, well, you know 188 00:10:05,000 --> 00:10:07,200 Speaker 1: what has to happen for me and my execution chamber 189 00:10:07,280 --> 00:10:13,240 Speaker 1: is that um, um, my minister, my spiritual advisor has 190 00:10:13,280 --> 00:10:18,000 Speaker 1: to be allowed to um chant and light candles and 191 00:10:18,120 --> 00:10:22,640 Speaker 1: burn incense and perhaps play some music. And that's that 192 00:10:22,720 --> 00:10:25,360 Speaker 1: might be more disruptive. So, and the problem, it's not 193 00:10:25,400 --> 00:10:27,920 Speaker 1: a problem. It's just the fact that for courts that 194 00:10:27,960 --> 00:10:30,320 Speaker 1: are trying to administer these religious freedom laws, they can't 195 00:10:30,320 --> 00:10:33,560 Speaker 1: really pick and choose among the religious beliefs that they 196 00:10:33,559 --> 00:10:37,160 Speaker 1: happen to share. Instead, they have to ask, is the 197 00:10:37,960 --> 00:10:41,160 Speaker 1: is the claimants sincere? If they're not sincere, they don't 198 00:10:41,160 --> 00:10:44,240 Speaker 1: get the benefit of these laws. And is the claimants 199 00:10:44,280 --> 00:10:48,480 Speaker 1: belief actually being burdened. If there's no real burden, then 200 00:10:48,520 --> 00:10:51,200 Speaker 1: they don't get the benefit of these laws, and if 201 00:10:51,240 --> 00:10:54,640 Speaker 1: they are being burdened, and if their belief is sincere, 202 00:10:55,520 --> 00:10:59,400 Speaker 1: then the burden is on the government to justify why 203 00:10:59,440 --> 00:11:03,240 Speaker 1: it's doing what it's doing. And um, you know, the 204 00:11:03,240 --> 00:11:05,720 Speaker 1: government has to have have to point to a what 205 00:11:05,800 --> 00:11:09,520 Speaker 1: the law calls a compelling interest to justify any kind 206 00:11:09,520 --> 00:11:12,680 Speaker 1: of burdens on sincere religious practice, and they have to 207 00:11:12,720 --> 00:11:16,000 Speaker 1: convince the court that there aren't other avenues that are 208 00:11:16,040 --> 00:11:19,280 Speaker 1: available that would make it possible for them to to 209 00:11:19,360 --> 00:11:21,880 Speaker 1: accomplish their interests. So that was what a lot of 210 00:11:21,880 --> 00:11:23,880 Speaker 1: the oral argument was about. You know, some of the 211 00:11:23,960 --> 00:11:28,480 Speaker 1: justices were pressing the lawyer for the state, Okay, what 212 00:11:28,559 --> 00:11:33,920 Speaker 1: exactly is it that Texas says is the important interest 213 00:11:34,360 --> 00:11:39,120 Speaker 1: that requires them to not permit touching by a minister 214 00:11:39,720 --> 00:11:42,680 Speaker 1: or oral prayer? And why is it that Texas thinks 215 00:11:42,720 --> 00:11:48,079 Speaker 1: there are no less burdensome procedures that could adequately ensure 216 00:11:48,520 --> 00:11:54,079 Speaker 1: that the execution process goes off smoothly. Um, And and 217 00:11:54,400 --> 00:11:56,640 Speaker 1: again there's no there's there's no way around it. This 218 00:11:56,720 --> 00:11:59,079 Speaker 1: is the inquiry that Congress has told courts to do. 219 00:11:59,120 --> 00:12:01,240 Speaker 1: That there in the sense they are they're told they're 220 00:12:01,240 --> 00:12:03,520 Speaker 1: supposed to second guess the government They're not supposed to 221 00:12:03,600 --> 00:12:06,120 Speaker 1: just defer to the government when it says, look, we 222 00:12:06,160 --> 00:12:09,120 Speaker 1: want to do this because it's convenient, or we don't 223 00:12:09,120 --> 00:12:10,839 Speaker 1: want to do that because it's in convenient. That's not 224 00:12:10,880 --> 00:12:15,160 Speaker 1: good enough if there's a bird unsincere religious exercise. At 225 00:12:15,200 --> 00:12:20,040 Speaker 1: the same time, it's clear that um prison administrators and 226 00:12:20,040 --> 00:12:24,439 Speaker 1: so on are allowed to enact regulations to keep things safe, 227 00:12:24,640 --> 00:12:28,320 Speaker 1: and so the Court is aware of that. But nonetheless 228 00:12:28,320 --> 00:12:32,200 Speaker 1: it has to carry out its statutory duty and and 229 00:12:32,320 --> 00:12:36,200 Speaker 1: vindicate to the extent reasonably possible the religious freedom interests, 230 00:12:36,280 --> 00:12:40,080 Speaker 1: even of somebody who's been condemned to be executed. Thanks Rick. 231 00:12:40,480 --> 00:12:45,200 Speaker 1: That's Professor Richard Garnett of Notre Dame Law School. For 232 00:12:45,280 --> 00:12:47,680 Speaker 1: the second time in a little over a month, the 233 00:12:47,760 --> 00:12:52,120 Speaker 1: Supreme Court considered a case involving state secrets. This time, 234 00:12:52,160 --> 00:12:55,400 Speaker 1: the FBI was being sued for spying on the Muslim 235 00:12:55,440 --> 00:12:58,880 Speaker 1: community at a mosque in Irvine, California, starting in two 236 00:12:58,920 --> 00:13:03,280 Speaker 1: thousand six. The government invoked the state secrets privilege, claiming 237 00:13:03,280 --> 00:13:05,560 Speaker 1: that in order to defend itself, it would have to 238 00:13:05,600 --> 00:13:09,440 Speaker 1: reveal state secrets. Justice Neil gors It suggested that the 239 00:13:09,520 --> 00:13:12,800 Speaker 1: government couldn't have it both ways, and so the government's 240 00:13:12,840 --> 00:13:15,800 Speaker 1: really a choice. Doesn't want to disclose the evidence and 241 00:13:15,800 --> 00:13:18,079 Speaker 1: defend itself or does it want to let a judgment 242 00:13:18,080 --> 00:13:21,600 Speaker 1: at torqu Churchment go ahead against it and and keep 243 00:13:21,880 --> 00:13:25,040 Speaker 1: keep national security safe. Joining me is the attorney for 244 00:13:25,080 --> 00:13:28,360 Speaker 1: the plaintiffs who argued at the Supreme Court. A. Helen 245 00:13:28,480 --> 00:13:31,120 Speaker 1: are A Lana Thumb, co director of the Center for 246 00:13:31,200 --> 00:13:34,360 Speaker 1: Immigration Law and Policy at u c l A Law School. 247 00:13:34,600 --> 00:13:38,120 Speaker 1: Start by telling us about your clients. Clients are three 248 00:13:38,400 --> 00:13:43,160 Speaker 1: men Muslim Americans who lived in southern California, Orange County 249 00:13:43,480 --> 00:13:47,559 Speaker 1: in two thousand and six seven. Shakespeazaga with them the 250 00:13:47,679 --> 00:13:51,800 Speaker 1: mom at the Orange County Foundation in Mission Viejo, which 251 00:13:51,840 --> 00:13:55,040 Speaker 1: is not to San Diego. He's now in mem Tennessee. 252 00:13:55,600 --> 00:14:00,079 Speaker 1: The other two, Rahim and Ali were congregants at the 253 00:14:00,160 --> 00:14:03,640 Speaker 1: Center of Irvine, just a large mosque and Irvine, California. 254 00:14:03,880 --> 00:14:07,560 Speaker 1: And they're all interesting, wonderful people. Shack Tazaga is also 255 00:14:07,920 --> 00:14:11,680 Speaker 1: a license a therapist and originally in a recent immigrants 256 00:14:11,760 --> 00:14:14,040 Speaker 1: but here now for more than thirty years. Pabi Molick 257 00:14:14,160 --> 00:14:17,120 Speaker 1: is born and raised Orange County who's very sort of 258 00:14:17,160 --> 00:14:21,720 Speaker 1: southern California kind of guys. A surfer, young Republican back then. Now, 259 00:14:22,360 --> 00:14:25,880 Speaker 1: I guess the middle age Republicans. You also have a 260 00:14:25,920 --> 00:14:30,120 Speaker 1: roteam of Egyptian immigrants, and I t person he's designed. Actually, 261 00:14:30,120 --> 00:14:32,960 Speaker 1: I don't understand. It's something involving video games. He worked 262 00:14:32,960 --> 00:14:36,080 Speaker 1: for Nintendo. Now tell us what happened at the mosque. 263 00:14:36,720 --> 00:14:41,480 Speaker 1: The FBI sent an informant into actually something like eight 264 00:14:41,560 --> 00:14:46,440 Speaker 1: or ten mosques in the southern California area for the purpose, 265 00:14:46,720 --> 00:14:49,560 Speaker 1: according to that informant who has since come out, for 266 00:14:49,640 --> 00:14:54,800 Speaker 1: the purpose of gathering information on Muslims, and his instructions 267 00:14:54,800 --> 00:14:58,760 Speaker 1: were to gather information simply on Muslims, and then to focus, 268 00:14:58,840 --> 00:15:02,920 Speaker 1: if at all, on religious leaders, on people who appeared 269 00:15:02,920 --> 00:15:06,040 Speaker 1: more devout, like going to early morning prayer or changing 270 00:15:06,040 --> 00:15:08,800 Speaker 1: their dress, people who you know, looked like they were 271 00:15:09,000 --> 00:15:11,760 Speaker 1: it's not religious leaders, like social leaders, people who had 272 00:15:11,760 --> 00:15:14,640 Speaker 1: influenced with youth, things like that. And he focused on 273 00:15:14,680 --> 00:15:16,400 Speaker 1: the three of them, and he explains this in his 274 00:15:16,480 --> 00:15:19,320 Speaker 1: declarations in the case because of their kind of connection 275 00:15:19,400 --> 00:15:23,000 Speaker 1: to these different sort of profiles. So Shakepasag obviously being 276 00:15:23,040 --> 00:15:25,520 Speaker 1: the mom of the mosque, Alimlis, a young man at 277 00:15:25,520 --> 00:15:28,080 Speaker 1: this point, was just starting to embrace his faith, more 278 00:15:28,720 --> 00:15:31,040 Speaker 1: so he started to dress a little bit more conservatively. 279 00:15:31,120 --> 00:15:34,880 Speaker 1: He had studied Arabic abroad and studied Islam. Abdi Rahim 280 00:15:34,960 --> 00:15:37,000 Speaker 1: actually I think sort of hadn't done anything, but the 281 00:15:37,200 --> 00:15:39,760 Speaker 1: mom had asked him, said, Hey, here's a new person 282 00:15:39,800 --> 00:15:42,120 Speaker 1: who's a convert. Do you want to kind of show 283 00:15:42,200 --> 00:15:45,000 Speaker 1: him the ropes a little bit and teach him about Islam. 284 00:15:45,080 --> 00:15:46,960 Speaker 1: And he was just living with a in a house 285 00:15:47,040 --> 00:15:50,880 Speaker 1: with some other young Muslim guys who just played a 286 00:15:50,920 --> 00:15:54,960 Speaker 1: lot of video games basically, and the informants started targeting 287 00:15:54,960 --> 00:15:57,080 Speaker 1: all three of them for these reasons, you know. So 288 00:15:57,600 --> 00:15:59,880 Speaker 1: he started spending a lot of time in abdio Rahim's apartment. 289 00:16:00,280 --> 00:16:04,800 Speaker 1: He befriended Ali Malik and tried to continuate himself into 290 00:16:04,840 --> 00:16:07,640 Speaker 1: his life, try and find out about his family, you know, 291 00:16:07,760 --> 00:16:10,240 Speaker 1: if he had marital problems and things like that. There's 292 00:16:10,240 --> 00:16:12,600 Speaker 1: what informants in the FBI system do. They try and 293 00:16:12,680 --> 00:16:15,800 Speaker 1: find these things so they can use them to leverage 294 00:16:15,840 --> 00:16:19,880 Speaker 1: people into giving information about their friends and neighbors. So 295 00:16:20,040 --> 00:16:23,080 Speaker 1: he had interactions with them. There was no violence of 296 00:16:23,160 --> 00:16:26,360 Speaker 1: any kind or anyone planning any terrorism or anything like that. 297 00:16:26,640 --> 00:16:29,560 Speaker 1: And then over time, because of that, the informant tried 298 00:16:29,600 --> 00:16:32,680 Speaker 1: to instigate that. So he tried to ask people first 299 00:16:32,720 --> 00:16:35,560 Speaker 1: about jihad and about violent jihad, their views about the 300 00:16:35,600 --> 00:16:39,240 Speaker 1: wars in Iraq and Afghanistan, and uniformly he was told 301 00:16:39,560 --> 00:16:42,960 Speaker 1: that's not proper Islam, we don't believe in that, and 302 00:16:43,080 --> 00:16:44,760 Speaker 1: kind of tried to be sent back on the path 303 00:16:45,080 --> 00:16:48,920 Speaker 1: of studying the religion and not not focusing on those things. 304 00:16:48,960 --> 00:16:53,040 Speaker 1: But he persisted and eventually he scared people, and so 305 00:16:53,120 --> 00:16:56,920 Speaker 1: then actually both Ali Malik and Yaser Abdora he he 306 00:16:57,040 --> 00:17:01,200 Speaker 1: specifically became scared of him, and they reported him both 307 00:17:01,240 --> 00:17:04,199 Speaker 1: to the prominent community leader who's the head of the 308 00:17:04,440 --> 00:17:07,399 Speaker 1: Cutlin American Islamic relations in l A who's on my lush, 309 00:17:07,600 --> 00:17:12,159 Speaker 1: and also the FBI and who saw also called the 310 00:17:12,280 --> 00:17:16,160 Speaker 1: FBI about this informant and then his kind of cover 311 00:17:16,320 --> 00:17:19,200 Speaker 1: was loan. They also because he was continued to talk 312 00:17:19,200 --> 00:17:21,520 Speaker 1: about these things, and they, I think we're very I 313 00:17:21,560 --> 00:17:23,600 Speaker 1: think a combination of perhaps scared of him and think 314 00:17:23,640 --> 00:17:26,560 Speaker 1: thoughts maybe he was an informant. Islamic Center Irvine actually 315 00:17:26,680 --> 00:17:29,639 Speaker 1: got a protective order barring him from coming into the mosque, 316 00:17:30,000 --> 00:17:32,440 Speaker 1: and then he became basically useless to the FBI and 317 00:17:32,520 --> 00:17:35,119 Speaker 1: then something happened that we don't totally understand. He had 318 00:17:35,160 --> 00:17:37,639 Speaker 1: some kind of falling out with them, and then he 319 00:17:37,720 --> 00:17:40,439 Speaker 1: went public and his status was revealed in a criminal 320 00:17:40,520 --> 00:17:44,560 Speaker 1: prosecution for immigration fraud. Was the only prosecution that came 321 00:17:44,600 --> 00:17:46,720 Speaker 1: out of any of this, and that prosecution was itself 322 00:17:46,840 --> 00:17:49,560 Speaker 1: dismissed on the government's motions. There's not a single conviction 323 00:17:49,640 --> 00:17:51,240 Speaker 1: that came out of any of this, and then he 324 00:17:51,320 --> 00:17:54,480 Speaker 1: went public with all the information. So you sued based 325 00:17:54,600 --> 00:17:58,720 Speaker 1: on religious discrimination. What happened to your lawsuit? We sued 326 00:17:58,840 --> 00:18:03,119 Speaker 1: under both religious emination and privacy violations. The government then 327 00:18:03,160 --> 00:18:05,680 Speaker 1: came in and said, we promised we're not a spying 328 00:18:05,720 --> 00:18:09,080 Speaker 1: on people solely because of their religion, but anything else 329 00:18:09,280 --> 00:18:11,959 Speaker 1: that we would say in order to explain why actually 330 00:18:12,000 --> 00:18:14,760 Speaker 1: what we're doing is lawful would require the disclosure of 331 00:18:14,800 --> 00:18:18,320 Speaker 1: secret information. And because we can't defend ourselves with the 332 00:18:18,359 --> 00:18:22,000 Speaker 1: secret information, your religion claims have to be dismissed under 333 00:18:22,040 --> 00:18:25,600 Speaker 1: the state secrets doctrine. So the district court dismissed the case. 334 00:18:25,680 --> 00:18:29,119 Speaker 1: The Ninth Circuit revived it. What was your argument before 335 00:18:29,160 --> 00:18:31,960 Speaker 1: the Supreme Court? We met two arguments before the Supreme Court. 336 00:18:32,000 --> 00:18:34,400 Speaker 1: I think both are strong. One argument is the state 337 00:18:34,520 --> 00:18:38,439 Speaker 1: secrets doctrine does not authorize dismissal where the plainiffs can 338 00:18:38,560 --> 00:18:41,520 Speaker 1: prove their case without secret information. There's a hundred fifty 339 00:18:41,600 --> 00:18:45,119 Speaker 1: years of law on this preceding the Supreme Court's adoption 340 00:18:45,160 --> 00:18:47,280 Speaker 1: of state secrets privilege in this case called Reynolds and 341 00:18:47,280 --> 00:18:50,400 Speaker 1: I think fifty three. We exhaustively looked at every single case, 342 00:18:50,720 --> 00:18:54,040 Speaker 1: every secondary authority sided in the opinion. There was also 343 00:18:54,040 --> 00:18:57,159 Speaker 1: anomously from this historian. Professor Laura Donahue is an expert 344 00:18:57,200 --> 00:18:59,560 Speaker 1: on the history in this area as well, and you 345 00:18:59,640 --> 00:19:02,760 Speaker 1: can look for literally every case and there's not a 346 00:19:02,840 --> 00:19:05,720 Speaker 1: single one that dismisses on their theory. Dismissals on their 347 00:19:05,760 --> 00:19:08,720 Speaker 1: theory really don't start in earnest until after two one, 348 00:19:08,920 --> 00:19:12,119 Speaker 1: when there's arguably perhaps one or two cases the nineteen 349 00:19:12,160 --> 00:19:16,160 Speaker 1: eighties and nineties even all told, it's maybe five lower 350 00:19:16,200 --> 00:19:20,560 Speaker 1: court decision and that's it. The overwhelming authority disabors their view. 351 00:19:20,840 --> 00:19:23,399 Speaker 1: The other argument that we made was that because this 352 00:19:23,640 --> 00:19:27,800 Speaker 1: is a case about the electronic surveillance of Americans on 353 00:19:27,960 --> 00:19:31,040 Speaker 1: US soil, it's governed by a law called the Foreign 354 00:19:31,040 --> 00:19:34,960 Speaker 1: Intelligence Surveillance fact and that law makes very detailed rules 355 00:19:35,359 --> 00:19:39,000 Speaker 1: or how to handle information that the government says is 356 00:19:39,080 --> 00:19:43,120 Speaker 1: too secret to disclose to the public or to litigant. 357 00:19:43,280 --> 00:19:46,639 Speaker 1: And it does not permit dismissal without an adjudication of 358 00:19:46,680 --> 00:19:49,760 Speaker 1: whether the surveillance was lawful. Instead, it requires the government 359 00:19:49,840 --> 00:19:52,000 Speaker 1: to give the information to the district court, the court 360 00:19:52,080 --> 00:19:54,280 Speaker 1: to look at it in secret, but the court decides 361 00:19:54,760 --> 00:19:57,119 Speaker 1: did the government break the law? So those are the 362 00:19:57,160 --> 00:19:59,560 Speaker 1: two arguments we made. Under either approach, you can't do 363 00:19:59,680 --> 00:20:02,040 Speaker 1: what the district court did. A lot of the news 364 00:20:02,160 --> 00:20:05,720 Speaker 1: reports say the justices struggled during the oral arguments. What 365 00:20:05,840 --> 00:20:08,920 Speaker 1: was their main concern? I think on the first point, 366 00:20:09,000 --> 00:20:11,520 Speaker 1: the state secrets point, At least for me, it seemed 367 00:20:11,560 --> 00:20:14,280 Speaker 1: that much of the discussion was about whether the court 368 00:20:14,320 --> 00:20:16,440 Speaker 1: should reach it at all or instead asked the lower 369 00:20:16,520 --> 00:20:18,680 Speaker 1: court to decide it. There were some lower court cases 370 00:20:18,720 --> 00:20:21,639 Speaker 1: after two thousand one that had adopted this broader approach 371 00:20:21,720 --> 00:20:24,320 Speaker 1: to the district court adopted. But in two thousand eleven 372 00:20:24,359 --> 00:20:27,119 Speaker 1: there was a Supreme Court case General Dynamics, which seemed 373 00:20:27,119 --> 00:20:30,000 Speaker 1: to strongly call into question the validity of that approach. 374 00:20:30,160 --> 00:20:32,199 Speaker 1: But you had these earlier circuit court cases that had 375 00:20:32,280 --> 00:20:34,560 Speaker 1: adopted it. So there was seemed to be at least 376 00:20:34,600 --> 00:20:38,240 Speaker 1: some concern about whether shouldn't the court below in this 377 00:20:38,320 --> 00:20:42,359 Speaker 1: case of nine Circuits first examined whether, given our decision 378 00:20:42,400 --> 00:20:45,560 Speaker 1: in general dynamics, this law should be reconsidered. And then 379 00:20:45,880 --> 00:20:47,880 Speaker 1: the government had said, well, that's not really properly here, 380 00:20:48,000 --> 00:20:49,879 Speaker 1: and that was some of the discussions about that. There 381 00:20:49,960 --> 00:20:52,320 Speaker 1: was a little discussion about whether we're right or the 382 00:20:52,359 --> 00:20:55,439 Speaker 1: government's right on the actual state secrets question itself. Justice 383 00:20:55,440 --> 00:20:59,240 Speaker 1: score such had some I thought very intense questioning of 384 00:20:59,320 --> 00:21:01,960 Speaker 1: the government on subject, but most of the discussions seemed 385 00:21:01,960 --> 00:21:04,240 Speaker 1: to be about whether it should be reached now at 386 00:21:04,240 --> 00:21:06,640 Speaker 1: all or that should be first passed on by the corporlo. 387 00:21:07,000 --> 00:21:09,760 Speaker 1: On the second point on SPISA, there was more discussion 388 00:21:09,880 --> 00:21:12,720 Speaker 1: of the merits of the argument itself, the textual arguments, 389 00:21:12,760 --> 00:21:15,520 Speaker 1: the structural arguments. So the justices didn't want to reach 390 00:21:15,640 --> 00:21:18,960 Speaker 1: the question on PISA, or maybe didn't want to reach 391 00:21:19,000 --> 00:21:21,480 Speaker 1: any question, just send it back to the ninth Circuits. 392 00:21:21,640 --> 00:21:25,159 Speaker 1: You know, I always uh, and there's not my first arguments, 393 00:21:25,200 --> 00:21:27,359 Speaker 1: and so you know, you hear the things that happened, 394 00:21:27,400 --> 00:21:29,680 Speaker 1: and then you read the opinion later and it doesn't 395 00:21:29,720 --> 00:21:31,280 Speaker 1: come out the way, it's kind of flag to do. 396 00:21:31,800 --> 00:21:33,960 Speaker 1: There are certainly some justices that were talking about that, 397 00:21:34,040 --> 00:21:36,719 Speaker 1: and they discussed that with me very directly. But who 398 00:21:36,800 --> 00:21:39,080 Speaker 1: knows that that's what they'll do. If they'll go back 399 00:21:39,119 --> 00:21:41,160 Speaker 1: in conference and decide to do some completely different things, 400 00:21:41,160 --> 00:21:43,439 Speaker 1: It's it's very hard differentict. But yeah, there were certainly 401 00:21:43,480 --> 00:21:46,359 Speaker 1: several justices that talked about the idea of maybe just 402 00:21:46,400 --> 00:21:50,520 Speaker 1: sending the case back, either without deciding anything about PISA 403 00:21:50,680 --> 00:21:53,520 Speaker 1: or the State Secrets privilege, or perhaps deciding something about 404 00:21:53,520 --> 00:21:57,399 Speaker 1: BIST but not because privilege. Justice Briar said to you, so, 405 00:21:57,560 --> 00:22:00,040 Speaker 1: do you really care whether the government's right or on 406 00:22:00,320 --> 00:22:03,480 Speaker 1: the displacement of the States Secrets doctrine by eighteen o 407 00:22:03,600 --> 00:22:06,440 Speaker 1: six or whatever. Well, he was saying, you know, if 408 00:22:06,480 --> 00:22:08,920 Speaker 1: you don't believe in dismissal, then do you care? And 409 00:22:09,080 --> 00:22:11,200 Speaker 1: I think that question is exactly it gets to a 410 00:22:11,320 --> 00:22:14,400 Speaker 1: basically point about our arguments. Definitely happy in your massa 411 00:22:14,440 --> 00:22:16,040 Speaker 1: because I felt like it meant to the understand we 412 00:22:16,119 --> 00:22:18,639 Speaker 1: were saying, if the dismissal is not available under the 413 00:22:18,640 --> 00:22:22,080 Speaker 1: state speakers privilege, and it doesn't matter whether five applies 414 00:22:22,200 --> 00:22:24,160 Speaker 1: or not, because either way, the District Court was wrong, 415 00:22:24,240 --> 00:22:26,640 Speaker 1: and we should be allowed to proceed, whether under five 416 00:22:26,680 --> 00:22:29,040 Speaker 1: so or under the general rules of civil litigation. I 417 00:22:29,160 --> 00:22:32,080 Speaker 1: took that questions. I mean, of course, the answer seat 418 00:22:32,119 --> 00:22:34,520 Speaker 1: in question is is their dismissal available in the state 419 00:22:34,560 --> 00:22:36,639 Speaker 1: secrets privilege at all? Because if the answer is no, 420 00:22:37,160 --> 00:22:40,520 Speaker 1: and who cares whether or not? What fives a definite context? 421 00:22:40,520 --> 00:22:43,280 Speaker 1: Because the decision below, the district court decision was wrong, 422 00:22:43,760 --> 00:22:47,920 Speaker 1: and so I was hoping optimistically that what follows from 423 00:22:47,920 --> 00:22:50,159 Speaker 1: that question is send it back. Tell the court they 424 00:22:50,200 --> 00:22:52,040 Speaker 1: did it in the wrong order. They should first decide 425 00:22:52,080 --> 00:22:55,000 Speaker 1: the dismissal question, and then we can either leave the 426 00:22:55,080 --> 00:22:58,200 Speaker 1: fives the decision intact, or we can just vacate it 427 00:22:58,440 --> 00:23:01,000 Speaker 1: as having been unnecessary to the decision. Tell us about 428 00:23:01,040 --> 00:23:04,560 Speaker 1: the Seventh Amendment problem that justice is a leado and 429 00:23:04,720 --> 00:23:08,600 Speaker 1: Barrett seemed interested in. We had sued both the government 430 00:23:08,920 --> 00:23:11,440 Speaker 1: in its official capacity, and we had also sued the 431 00:23:11,480 --> 00:23:15,720 Speaker 1: individual defendants for damages, and individual defendants in civil litigation 432 00:23:15,840 --> 00:23:18,600 Speaker 1: generally have a jury trial rights and also do process right. 433 00:23:18,800 --> 00:23:21,720 Speaker 1: And so given that, what by contemplates is that the court, 434 00:23:21,840 --> 00:23:24,960 Speaker 1: besides the question about whether surveillance is lawful in secrets, 435 00:23:25,200 --> 00:23:26,480 Speaker 1: you know, I got a lot of questions in both 436 00:23:26,520 --> 00:23:31,200 Speaker 1: Justice Alito and Justice Barrett about whether it's constitutional to 437 00:23:31,840 --> 00:23:35,280 Speaker 1: adjudicate the rights of the individual defendants in a proceeding 438 00:23:35,600 --> 00:23:38,000 Speaker 1: that is secret. And what I was saying was, we 439 00:23:38,119 --> 00:23:41,240 Speaker 1: may never get to that question because as an all civilitiation, 440 00:23:41,720 --> 00:23:43,639 Speaker 1: the parties may win or lose on some re judgment, 441 00:23:43,880 --> 00:23:45,919 Speaker 1: and some re judgment is consistent with the Seventh Amendment 442 00:23:46,119 --> 00:23:48,159 Speaker 1: and the do process paused. And so if we went 443 00:23:48,200 --> 00:23:49,560 Speaker 1: on some re judgment, or if they went on some 444 00:23:49,680 --> 00:23:51,520 Speaker 1: re judgments, then we're never going to even get there. 445 00:23:51,680 --> 00:23:54,280 Speaker 1: So why are we talking about this now? The exchange 446 00:23:54,400 --> 00:23:59,119 Speaker 1: you had with Justice Barrett seemed very contentious. Did you 447 00:23:59,240 --> 00:24:02,240 Speaker 1: feel like you were being really put on the spot there? 448 00:24:02,640 --> 00:24:06,360 Speaker 1: Justice Barrett really quizzed you on that point. Here's part 449 00:24:06,440 --> 00:24:10,240 Speaker 1: of that exchange. But so, so can that happen if 450 00:24:10,280 --> 00:24:13,480 Speaker 1: there's a constitutional element to the privilege? So, um, I 451 00:24:13,520 --> 00:24:16,800 Speaker 1: mean if we're talking about article to um, oh no, 452 00:24:16,920 --> 00:24:18,920 Speaker 1: but you're asking about it, Well, I'm asking, like chips 453 00:24:18,960 --> 00:24:21,120 Speaker 1: fall where they may, and you're you're saying that that's 454 00:24:21,160 --> 00:24:23,320 Speaker 1: fine even if violates the do process rights of the 455 00:24:23,359 --> 00:24:26,600 Speaker 1: individual defendants. Well, I think so Again, there's another option. 456 00:24:26,640 --> 00:24:27,800 Speaker 1: I want to make sure I get to talk about 457 00:24:27,800 --> 00:24:29,920 Speaker 1: the other option. Did you feel like that got a 458 00:24:30,000 --> 00:24:33,320 Speaker 1: little contentious. I wouldn't call it contentious. I think she 459 00:24:33,440 --> 00:24:36,359 Speaker 1: had hard questions for me, and she'd obviously thought a 460 00:24:36,440 --> 00:24:38,960 Speaker 1: lot about the Seventh Amendment problem and do process problem. 461 00:24:39,160 --> 00:24:41,000 Speaker 1: And no, I didn't. I didn't feel like I was 462 00:24:41,240 --> 00:24:43,159 Speaker 1: being sort of attacked anyway. I mean, she gave me, 463 00:24:43,440 --> 00:24:45,080 Speaker 1: I said two things I want to say about this, 464 00:24:45,160 --> 00:24:46,879 Speaker 1: and I said the first one, and then she asked 465 00:24:46,920 --> 00:24:49,200 Speaker 1: me a question about the first one. Again. I said, okay, 466 00:24:49,240 --> 00:24:50,720 Speaker 1: I still want to say my second thing. And I 467 00:24:50,840 --> 00:24:52,639 Speaker 1: gave my answer, and she and she and she nodded 468 00:24:52,640 --> 00:24:54,200 Speaker 1: at me. She nodded at me in the courtroom video. 469 00:24:54,240 --> 00:24:56,120 Speaker 1: She nodded me. It's like, yeah, you'll get your chance. 470 00:24:56,560 --> 00:24:58,840 Speaker 1: I said the thing again. Then she asked me another question. 471 00:24:59,240 --> 00:25:01,720 Speaker 1: I didn't ask for the second one again, she still, 472 00:25:02,000 --> 00:25:03,640 Speaker 1: you know, answered that and then and then I think, okay, 473 00:25:03,680 --> 00:25:05,960 Speaker 1: let me talk about the other thing. And she completely 474 00:25:06,040 --> 00:25:07,800 Speaker 1: let me do that and listened and you know, let 475 00:25:07,840 --> 00:25:09,399 Speaker 1: me do it, at least in the room. It definitely 476 00:25:09,440 --> 00:25:11,520 Speaker 1: didn't feel like hostile or attacking or anything like that. 477 00:25:11,600 --> 00:25:13,680 Speaker 1: I mean, It definitely felt like she thought this is 478 00:25:13,720 --> 00:25:16,000 Speaker 1: a problem, and so she was giving me every chance 479 00:25:16,040 --> 00:25:17,720 Speaker 1: in the world to try and firsuadeer that it was not. 480 00:25:17,840 --> 00:25:21,000 Speaker 1: I'm not sure that I've succeeded. The argument was scheduled 481 00:25:21,359 --> 00:25:27,480 Speaker 1: for eighty minutes. It went two hours, So the justices 482 00:25:27,520 --> 00:25:32,000 Speaker 1: are firing questions at you. Is it mentally exhausting? I 483 00:25:32,240 --> 00:25:36,199 Speaker 1: was very pleased by the fact that they I mean, 484 00:25:36,240 --> 00:25:38,680 Speaker 1: obviously you don't know if they're all engaged the whole time, 485 00:25:38,720 --> 00:25:41,320 Speaker 1: because they're going kind of one any time, but clearly 486 00:25:42,040 --> 00:25:45,200 Speaker 1: they seemed certainly all engaged through the whole time. And 487 00:25:45,359 --> 00:25:47,719 Speaker 1: I have listened to arguments where the seals as though 488 00:25:47,800 --> 00:25:49,800 Speaker 1: the justices are kind of done with it, where they 489 00:25:49,960 --> 00:25:52,240 Speaker 1: all passed on the questions. Not all, but many of 490 00:25:52,280 --> 00:25:54,159 Speaker 1: them passed on the questions at the end. And the 491 00:25:54,240 --> 00:25:56,320 Speaker 1: fact that so many of them had questions for me 492 00:25:56,720 --> 00:25:58,880 Speaker 1: right through the end, it seemed that they were really 493 00:25:58,960 --> 00:26:01,920 Speaker 1: grappling with it. So I was very happy about that. 494 00:26:02,240 --> 00:26:04,720 Speaker 1: But to answer your question, yet, it was exhausting. It 495 00:26:04,840 --> 00:26:08,040 Speaker 1: was definitely shausting. When I walked out, I thought, and 496 00:26:08,119 --> 00:26:10,720 Speaker 1: I've done many circuit court arguments and two other Supreme 497 00:26:10,760 --> 00:26:12,840 Speaker 1: Court arguments, and I thought, I don't think I've ever 498 00:26:13,040 --> 00:26:15,240 Speaker 1: been in an argument that was that intense, which I like, 499 00:26:15,400 --> 00:26:18,840 Speaker 1: for one full hour. I was just you know, in 500 00:26:18,960 --> 00:26:20,960 Speaker 1: that kind of mental space. So you're trying to just 501 00:26:21,119 --> 00:26:23,840 Speaker 1: be totally aware and think and be as responsive as 502 00:26:23,880 --> 00:26:25,920 Speaker 1: you can and think about all the applications of your argument, 503 00:26:26,080 --> 00:26:28,200 Speaker 1: you're what you're saying, and it was, Yeah, it was 504 00:26:28,440 --> 00:26:31,760 Speaker 1: really tiring, really really tiring. Well, thanks for spending this 505 00:26:31,920 --> 00:26:35,840 Speaker 1: time with us. That's a healing Arolana Thumb, co director 506 00:26:35,840 --> 00:26:38,280 Speaker 1: of the Center for Immigration Law and Policy at u 507 00:26:38,359 --> 00:26:40,480 Speaker 1: c l A Law School. And that's it for the 508 00:26:40,640 --> 00:26:43,280 Speaker 1: edition of the Bloomberg Law Show. Remember you can always 509 00:26:43,320 --> 00:26:46,120 Speaker 1: at the latest legal news on our Bloomberg Law Podcast. 510 00:26:46,560 --> 00:26:49,280 Speaker 1: You can find them on Apple Podcasts, Spotify, and at 511 00:26:49,480 --> 00:26:54,360 Speaker 1: www dot Bloomberg dot com, slash podcast, slash Law. I'm 512 00:26:54,440 --> 00:26:56,639 Speaker 1: June Rosso and you're listening to Bloomberg