WEBVTT - The Supreme Court's New Rulings 0:00:04.960 --> 0:00:08.960 Remember what podcast is this for? Uh, Moira, that's a 0:00:08.960 --> 0:00:11.720 perfect way to open this episode because it's it could 0:00:11.800 --> 0:00:16.200 happen here, the podcast about things falling apart um and 0:00:16.320 --> 0:00:20.560 putting them back together. Sometimes not often enough because I'm 0:00:20.600 --> 0:00:26.560 a hack and a fraud. Um. But um, this is 0:00:26.760 --> 0:00:30.720 Robert Evans and my guest today is Moira Meltzer Cohen. Moira, 0:00:31.080 --> 0:00:34.559 you are my lawyer and you are my editor. You 0:00:34.720 --> 0:00:38.800 edited after the Revolution book in stores now, so you're 0:00:38.880 --> 0:00:42.680 you're you're many many things to me, um, and today 0:00:43.080 --> 0:00:47.880 you're gonna help me understand the Supreme Court. Well that's 0:00:47.880 --> 0:00:52.880 a let me be a little more specific about why 0:00:52.920 --> 0:00:56.960 we're chatting today on for the internet sake. Um. The 0:00:57.040 --> 0:01:01.600 Supreme Court last week issued a ruling, and there may 0:01:01.640 --> 0:01:03.200 have been another ruling by the time you hear this, 0:01:03.240 --> 0:01:07.400 but this specific ruling was about a case that had 0:01:07.440 --> 0:01:10.680 to do with what's called a bivens action. Um. If 0:01:10.720 --> 0:01:14.600 you have seen people talking about this Supreme Court ruling online, 0:01:15.080 --> 0:01:19.120 it has probably been with them sharing an image of 0:01:19.160 --> 0:01:21.800 the United States that shows the hundred mile zone where 0:01:21.840 --> 0:01:27.000 border patrol is able to operate, um, and being like now, 0:01:27.120 --> 0:01:29.520 because of this ruling, border patrol can come into your 0:01:29.520 --> 0:01:33.160 house with impunity and do whatever they want to you. Um. 0:01:33.160 --> 0:01:37.000 There's been a lot of like stuff said about this ruling, 0:01:37.200 --> 0:01:41.520 and as is often the case when people are get 0:01:41.560 --> 0:01:45.959 really up in arms about the niche aspects of a 0:01:46.000 --> 0:01:49.880 court ruling, they're not entirely correct about what the ruling does. Um. 0:01:49.920 --> 0:01:52.760 The hundred mile zone is absolutely a real thing, and 0:01:52.960 --> 0:01:54.840 the Feds can do all sorts of funked up shipped 0:01:54.840 --> 0:01:58.520 to you in your house. But that is, UM, let's 0:01:58.520 --> 0:02:04.800 talk about this, yeah, UM sure, So I think the 0:02:04.840 --> 0:02:08.120 first place to start is people are always asking me 0:02:08.240 --> 0:02:12.240 when can the Feds kick in my door? My girlfriend 0:02:12.280 --> 0:02:18.000 always says when it's closed? But I say is whenever 0:02:18.080 --> 0:02:23.600 they want to, uh what might change from case to cases, 0:02:23.840 --> 0:02:29.119 they rationalize it in court later. Um. And so this 0:02:29.240 --> 0:02:38.720 is this is really a case that further reinforces the 0:02:38.760 --> 0:02:44.760 fact that for many, many years, UM, federal agents, in 0:02:44.840 --> 0:02:50.880 particular border control have been able, have had a lot 0:02:50.960 --> 0:02:59.840 of power to conduct searches if they rationalize those search 0:03:00.080 --> 0:03:05.280 is with respect to immigration or in this case the 0:03:05.360 --> 0:03:12.880 even more hype term national security. So um, this is 0:03:12.880 --> 0:03:18.200 not new. The federal statute outlining the powers and duties 0:03:18.240 --> 0:03:24.040 of border officers was past I think in ninety two, 0:03:24.840 --> 0:03:30.280 and I believe always said that border agents can conduct 0:03:30.320 --> 0:03:34.200 searches within quote a reasonable distance of the border. I 0:03:34.240 --> 0:03:37.280 think case law has determined that that reasonable distance is 0:03:37.320 --> 0:03:43.160 a hundred miles. We're not really looking at anything particularly 0:03:43.320 --> 0:03:50.080 new here. Um. So that one of the things about 0:03:50.120 --> 0:03:53.880 this hundred miles, as people keep saying, oh, the Fourth 0:03:53.920 --> 0:03:58.240 Amendment doesn't exist within a hundred miles of the border, Um, 0:03:58.280 --> 0:04:00.560 it does. This is not considered to be be a violation 0:04:00.600 --> 0:04:03.360 with the Fourth Amendment because a search within a reasonable 0:04:03.360 --> 0:04:08.560 distance of the border is considered a reasonable search. Right. 0:04:08.600 --> 0:04:13.400 The Fourth Amendment protects you from usable searching, and this 0:04:13.480 --> 0:04:19.080 is statutorily considered a reasonable search. Right. So I feel 0:04:19.120 --> 0:04:21.640 like a lot of the media around this particular case 0:04:21.800 --> 0:04:24.479 is kind of an exercise and extreme point missing. It's 0:04:24.480 --> 0:04:28.919 both an overreaction to some things that are outrageous but 0:04:28.960 --> 0:04:35.719 are in no way new. Yeah. Um, everyone's sharing these maps, 0:04:35.800 --> 0:04:38.680 like you said, um, And again it's one of those 0:04:38.720 --> 0:04:40.800 things where it's like we're not saying there's not a 0:04:40.800 --> 0:04:43.520 lot of that this is not a problem that there 0:04:43.560 --> 0:04:46.400 are problems with the there's that the hundred mile zone 0:04:46.440 --> 0:04:48.800 isn't a problem the border patrol. There's not a lot 0:04:48.839 --> 0:04:50.919 of messed up stuff that they do. It's it's the 0:04:51.000 --> 0:04:53.800 idea that like this ruling came out and suddenly there's 0:04:53.839 --> 0:04:56.120 no more Fourth Amendment, right like, which is how some 0:04:56.160 --> 0:04:59.160 people have interpreted it. Because the Internet is a machine 0:04:59.200 --> 0:05:04.200 that devours context, that's right, social media, I should say, yeah, sure. 0:05:04.800 --> 0:05:08.680 So So this case is is called Egbert v. Bull, 0:05:08.839 --> 0:05:11.360 which I just think it's a marvelous case name. And 0:05:11.360 --> 0:05:15.360 these are all incredible. The original Bivens case is Bivens 0:05:15.440 --> 0:05:18.440 versus six unknown named agents, which I also elect a 0:05:18.480 --> 0:05:25.080 lot six unknown narcotics agents. Yeah, I mean there's a 0:05:25.080 --> 0:05:30.400 lot of sort of wonderful case names. Um my favorite, 0:05:30.400 --> 0:05:37.520 of course is alien B Predator. Um. Yeah, you see 0:05:37.560 --> 0:05:39.800 what I did there, I did, I did. I just 0:05:39.839 --> 0:05:44.279 showed Garrison aliens last weekend, so I was, oh, for 0:05:44.360 --> 0:05:50.359 the first time, Yes, marvelous. Uh So, I don't know. 0:05:50.440 --> 0:05:52.760 I think what's happening here is that even among people 0:05:52.760 --> 0:05:55.240 who kind of have a sense of history or an analysis, 0:05:55.240 --> 0:05:58.960 there's maybe this lingering belief that the legal system is 0:05:59.000 --> 0:06:01.839 supposed to protect us, or that maybe at some time 0:06:01.880 --> 0:06:04.760 it did protect us, and it just like persists like 0:06:05.080 --> 0:06:11.000 a vestigial tale of of like hope, Yeah, but I 0:06:11.080 --> 0:06:12.960 kind of love this case. I could read this case 0:06:13.040 --> 0:06:16.560 and um, at least as Clarence Thomas describes him. The 0:06:16.560 --> 0:06:20.880 plaintiff in this case whose bool is basically the viewpoint 0:06:20.960 --> 0:06:25.880 character from a Steely Dan song like he like appears 0:06:25.880 --> 0:06:28.279 to have sort of spring fully for him from the 0:06:28.279 --> 0:06:31.320 head of Donald Fagan, and he drove off with his 0:06:31.600 --> 0:06:38.680 vanity plate that says smuggler. Honestly, I'm sure you're gonna 0:06:38.680 --> 0:06:40.839 tell me it was something problematic, but sounds like a 0:06:40.839 --> 0:06:45.960 cool dude to me. He spent years playing both sides 0:06:46.000 --> 0:06:48.560 of this game. He would get paid by people to 0:06:48.640 --> 0:06:51.400 smuggle them across the Canadian border, and he'd make them, 0:06:51.400 --> 0:06:53.840 he'd like extort money from them. He'd make them buy 0:06:53.880 --> 0:06:55.880 a room at his hotel, even if they weren't going 0:06:55.920 --> 0:06:58.960 to stay at his hotel, and then he'd charge them 0:06:59.000 --> 0:07:01.839 money for every hour that he spent driving to pick 0:07:01.880 --> 0:07:06.120 them up and take them across to Canada. And then 0:07:06.160 --> 0:07:08.120 he would turn around and get paid by the Feds 0:07:08.400 --> 0:07:10.880 to snitch on the people who had just paid him 0:07:11.120 --> 0:07:15.080 to smuggle them across the border. Chez Yeah all right, 0:07:15.080 --> 0:07:18.120 Now I don't think this guy is cool. Yeah, So 0:07:18.320 --> 0:07:21.400 he basically ends up getting in an altercation with a 0:07:21.440 --> 0:07:27.080 federal agent and he's back to being cool, okay. And 0:07:27.120 --> 0:07:31.520 then when he makes an administrative complaint to the agency, 0:07:31.640 --> 0:07:34.840 the agent six the i R S on him. This is, 0:07:34.920 --> 0:07:40.880 I mean, all right, not good behavior, right right. But now, 0:07:40.960 --> 0:07:44.000 after years of doing dirty work for the Feds, Buol 0:07:44.160 --> 0:07:48.040 is outraged because he never thought tigers would eat his face. 0:07:49.960 --> 0:07:55.880 So he suites the agent under Bivens, which is a 0:07:56.000 --> 0:08:00.640 case that sort of a little bit maybe some times 0:08:01.880 --> 0:08:09.920 gives individuals a very narrowly tenuous, circumscribed opportunity to sue 0:08:09.960 --> 0:08:14.280 federal agents for certain civil rights violations. And um, it's 0:08:14.320 --> 0:08:17.000 not a very strong right and it has been getting 0:08:17.120 --> 0:08:23.240 ever more eviscerated since um. And really, what Bivens does 0:08:23.400 --> 0:08:28.440 is it gives you, uh, you know, in the very 0:08:28.520 --> 0:08:31.960 unlikely event that you win a Bivins claim, it gives 0:08:31.960 --> 0:08:34.840 you money damages. It doesn't give you better a law. 0:08:34.960 --> 0:08:38.040 It doesn't give you better police practices, it doesn't make 0:08:38.080 --> 0:08:44.120 you safer. It's not nothing, but it's not like it's 0:08:44.120 --> 0:08:47.960 it's money. Excusally, what the law can give you right. So, 0:08:48.120 --> 0:08:51.400 unless you're harboring the delusion that there is a sort 0:08:51.440 --> 0:08:57.800 of direct connection between being allowed to try, usually unsuccessfully, 0:08:57.840 --> 0:09:03.400 to recover money from the real government and the self 0:09:03.400 --> 0:09:07.960 control or good behavior of federal agents, Bivins is not 0:09:08.040 --> 0:09:12.840 actually a particularly useful mechanism for pursuing anything that resembles 0:09:12.920 --> 0:09:18.960 like a well developed vision of justice. Right, It's not nothing. 0:09:19.200 --> 0:09:22.319 I don't I don't want to dismiss the utility of Bivins, 0:09:22.360 --> 0:09:27.320 but it's you know, it's not like it's not a 0:09:27.480 --> 0:09:35.160 strong right, it's not a reliable right, you know, to sue. Um, 0:09:35.240 --> 0:09:41.520 it's not very effective. One of my beloved colleagues, uh 0:09:41.840 --> 0:09:44.840 described it. He said, Bibbins is such a bad doctrine 0:09:44.840 --> 0:09:48.640 that it's taking other doctrines down with it. Right. It's 0:09:48.720 --> 0:09:55.040 just it's, um, it's just such a weak case at 0:09:55.080 --> 0:09:59.560 this point that it trying to trying to use it 0:09:59.559 --> 0:10:03.240 and trying invoke it can actually end up just being counterproductive, 0:10:03.520 --> 0:10:08.240 as it is in this case. Right. Yeah, we have 0:10:08.280 --> 0:10:13.920 a very unsympathetic plaintiff and we have a really weak doctrine. 0:10:14.800 --> 0:10:17.319 So he sues under Bivens. It goes up and down 0:10:17.360 --> 0:10:19.920 the cords, It winds up in the Supreme Court, which 0:10:19.960 --> 0:10:23.880 issues a sort of a bunch of sort of fragmented opinions, 0:10:23.920 --> 0:10:29.240 but ultimately all the justices mostly agree this is not 0:10:29.360 --> 0:10:35.280 a super controversial um question, at least within the context 0:10:35.760 --> 0:10:40.120 of the court itself. Yeah. So the first thing is 0:10:40.160 --> 0:10:43.880 they all say, you don't there's no right to sue 0:10:44.440 --> 0:10:49.840 for money damages under the theory of First Amendment retaliation, meaning, 0:10:50.440 --> 0:10:55.480 um wool had sued the agent for basically for punishing 0:10:55.559 --> 0:10:58.800 him for making a complaint. He's saying, I exercise my 0:10:58.880 --> 0:11:01.960 First Amenment right to make a complaint to the agency 0:11:02.000 --> 0:11:06.160 you work for, and then you punished me by sicking 0:11:06.160 --> 0:11:10.480 the I R S on me. Right, I see why 0:11:10.520 --> 0:11:18.280 that's questionable in the actual like legal documentation. Yeah, so, um, 0:11:18.320 --> 0:11:21.360 you know, the justice to say no, that that's not 0:11:21.440 --> 0:11:23.840 a right that exists. And then they have some different 0:11:24.160 --> 0:11:27.800 thoughts on whether or not you can sue for excessive force. Um. 0:11:27.800 --> 0:11:32.480 But ultimately, the big decision that is made here isn't 0:11:32.520 --> 0:11:38.120 about the border. It's not about the relative impunity of 0:11:38.280 --> 0:11:45.560 border patrol, which has long operated with relative impunity, just 0:11:46.000 --> 0:11:50.960 like the rest of the federal government. Yes, I remember 0:11:51.000 --> 0:11:54.600 that impunity when they were firing tear gas at us. Yeah, 0:11:55.600 --> 0:12:03.520 you know, Uh, they decide you can't sue them. Um, 0:12:03.640 --> 0:12:07.360 which if you, if you ever could have sued them, 0:12:07.400 --> 0:12:10.680 I guess in a successful or effective way, And if 0:12:10.840 --> 0:12:16.200 suing them had ever had a meaningful impact on their behavior, 0:12:17.000 --> 0:12:21.280 I guess its opinion would be a real loss. But 0:12:21.640 --> 0:12:24.280 all this opinion really does, as far as I can tell, 0:12:24.280 --> 0:12:27.720 and I've spoken with my colleagues and we all agreed 0:12:27.840 --> 0:12:32.000 that the sort of uproar or this particular case is 0:12:32.040 --> 0:12:37.000 a little baffling because all it really does is further 0:12:37.480 --> 0:12:42.280 remove what was already a really inaccessible and pretty weak remedy. 0:12:44.200 --> 0:12:49.440 And yeah, well you know, and then everyone lost their 0:12:49.440 --> 0:12:51.719 minds and started sharing the a c L s a 0:12:51.840 --> 0:12:55.040 c L used map of the what a hundred miles 0:12:55.040 --> 0:12:57.640 of border looks like and getting really mad on Twitter. 0:12:58.320 --> 0:13:00.679 Yeah and again the hundred mile borders own. I think 0:13:00.679 --> 0:13:02.560 it's fair to say that like, that's a problem. I 0:13:02.559 --> 0:13:05.280 don't like that's that's a bad way for things to work. 0:13:05.320 --> 0:13:07.800 The border patrol, as we talked about in our two 0:13:07.840 --> 0:13:10.120 part are on the border patrol, has a lot of 0:13:10.200 --> 0:13:13.400 massive issues with it. But um, I feel like kind 0:13:13.400 --> 0:13:17.280 of what's happening here is some of this is like 0:13:17.320 --> 0:13:19.960 a little bit of collective PTSD because of the shock 0:13:20.040 --> 0:13:23.920 of the imminent kind of demise of Row. And so 0:13:24.000 --> 0:13:27.240 I think maybe there's this kind of expectation that every 0:13:27.360 --> 0:13:31.080 ruling issued by the Supreme Court because Funckett is going 0:13:31.120 --> 0:13:35.120 to be UM this kind of like earth shattering like 0:13:35.440 --> 0:13:37.880 end of a fundamental right. And in this case it's 0:13:37.880 --> 0:13:40.320 really just like, no, this is more or less like 0:13:40.400 --> 0:13:54.400 this is not a massive ce change. Yeah. I like 0:13:54.520 --> 0:13:56.600 to say about this kind of thing. It's appalling, but 0:13:56.679 --> 0:14:00.560 it's not surprising. I do want to note, just for 0:14:00.679 --> 0:14:04.760 your listeners, this case does not in any way touch 0:14:04.840 --> 0:14:11.160 our right to sue state level police UM, because there 0:14:11.240 --> 0:14:15.560 is federal legislation called sec that gives us permission to 0:14:15.679 --> 0:14:19.800 sue the police and UM. For some strange reason, the 0:14:19.800 --> 0:14:23.680 federal government has not passed similar legislation allowing us to 0:14:23.760 --> 0:14:29.040 sue them. That's really surprising. I wonder why. I so 0:14:29.360 --> 0:14:31.520 in any case, one of the things the Court says 0:14:31.560 --> 0:14:34.480 in the Bool opinion is that if the Feds wanted 0:14:34.520 --> 0:14:37.120 to be constrained by the citizen re Congress would have 0:14:37.280 --> 0:14:42.480 given us the right to constrain them. So so I 0:14:42.520 --> 0:14:46.800 think this particular case that people have been going out 0:14:46.840 --> 0:14:55.320 about is a great sort of example of the way that, um, 0:14:55.400 --> 0:15:02.200 the sort of the zeitgeist moves inexplicably to make much 0:15:02.240 --> 0:15:07.800 of things that are maybe not all that much and 0:15:07.840 --> 0:15:11.800 while also kind of failing to notice things that are 0:15:11.880 --> 0:15:15.000 really significant. And so I'd like to sort of highlight 0:15:15.120 --> 0:15:17.960 some of those things. Um. I think there actually are 0:15:18.160 --> 0:15:24.400 real reasons to breathe and prepare and gather our courage, um, 0:15:24.400 --> 0:15:28.000 based on what the Supreme Court has done this term. Uh, 0:15:28.040 --> 0:15:29.880 And I love to talk to you about some of 0:15:29.880 --> 0:15:32.600 those things. So I do think there are real reasons 0:15:32.600 --> 0:15:37.200 like that degree and prepare and some months always without 0:15:37.240 --> 0:15:40.840 getting too in the weed, UM, I guess I want 0:15:40.840 --> 0:15:45.440 to talk both about the shadows DoPT it? Which shadow 0:15:45.520 --> 0:15:48.560 doopt it is A is a kind of a more 0:15:48.640 --> 0:15:53.640 recently point term UM. What it means. What it's referring 0:15:53.680 --> 0:15:58.440 to are the hats that are often heard, well, they're 0:15:58.440 --> 0:16:01.320 not heard. They're did by the Supreme Court on the 0:16:01.360 --> 0:16:05.720 basis of the record below, often without oral argument, and 0:16:05.760 --> 0:16:11.560 they're often issued as holding decisions without written opinions, so 0:16:11.680 --> 0:16:15.680 they're often not justified or rationalized or you know, the 0:16:15.760 --> 0:16:20.000 reasoning for the decisions that are made is often not 0:16:20.120 --> 0:16:26.560 made transparent to the public. Okay. Yeah. Times these are 0:16:27.080 --> 0:16:33.640 cases that are sort of highly procedural or there not 0:16:33.840 --> 0:16:38.000 super complicated questions, or there's questions of law where there's 0:16:38.000 --> 0:16:41.080 maybe a circuit what um, and they just need to 0:16:41.120 --> 0:16:46.760 resolve you know what might otherwise be repugnant views of 0:16:46.880 --> 0:16:51.480 the law. Yea. And the Shudo docet has resently include 0:16:51.520 --> 0:16:57.160 a jet penaltycation. Yeah, be decided something of such grades 0:16:57.280 --> 0:17:02.360 imports with decision that are not explained by an opinion 0:17:02.840 --> 0:17:08.320 where the justice is not makes clear the reasoning. Um. 0:17:08.960 --> 0:17:16.760 This is I mean, in my opinion, mh problematic um. 0:17:16.800 --> 0:17:20.200 And it's you know, to the amount of power that 0:17:20.440 --> 0:17:24.399 can be exercised by the superin court. To me, I 0:17:24.440 --> 0:17:29.680 think requires a really intense degree of transparency. If you're 0:17:29.880 --> 0:17:34.199 I think that like the amount of transparency that is 0:17:34.880 --> 0:17:38.560 it's incumbent upon you to have is sort of inversely 0:17:38.560 --> 0:17:42.040 proportionate to the amount of power you exercise. Yeah, that 0:17:42.080 --> 0:17:45.399 makes sense, um. And so the Supreme Court has just 0:17:45.680 --> 0:17:49.439 i mean literally life with death power here and so 0:17:49.560 --> 0:17:52.119 for them to be making decisions on the shadow dott 0:17:52.240 --> 0:17:57.639 about death penalty cases and death penalty juristic. Um is 0:17:58.440 --> 0:18:03.879 just wild. Um, It's troubling, it's frightening. You know, I 0:18:03.920 --> 0:18:07.480 think I can't remember if I talked to you before 0:18:07.560 --> 0:18:14.280 about how about the injuries? Yeah, maybe the show about it, 0:18:14.320 --> 0:18:16.320 but I certainly talked to you about it. We might 0:18:16.359 --> 0:18:18.040 need to do it. It's probably a good idea at 0:18:18.040 --> 0:18:22.560 some point to do a show about it. But yeah, Um, 0:18:22.600 --> 0:18:27.320 one of the things that makes banjuries so anomalous is 0:18:27.400 --> 0:18:32.720 that they aren't public, right, and that to me, like 0:18:32.920 --> 0:18:36.600 this is a mathema. Well not to me, it is 0:18:37.280 --> 0:18:41.159 in terms of the sort of um received wisdom about 0:18:41.320 --> 0:18:45.920 the American legal system. To have secret proceedings is a 0:18:46.080 --> 0:18:50.919 mathema who you underlying principles of due process which you know, 0:18:50.960 --> 0:18:57.160 which involves uh, well noticed and adherent. But really there's 0:18:57.280 --> 0:19:02.439 um a commitment to uplistic right in the American maget 0:19:02.440 --> 0:19:08.280 system that is undermined and trampled upon by federal ransus. 0:19:09.040 --> 0:19:12.280 And that there is a similar thing happening here with 0:19:12.359 --> 0:19:15.640 the shadow docket. We know at least what the cases are, 0:19:15.720 --> 0:19:17.919 we know what the opinions are, what the holdings end 0:19:18.000 --> 0:19:20.840 up being. Um. But to have these kinds of cases 0:19:20.880 --> 0:19:23.720 being decided without oral argument. To have these cases being 0:19:23.760 --> 0:19:30.320 decided um without written opinion is troubling. So that's a 0:19:30.480 --> 0:19:34.840 move toward an exercise of power that I need characterI 0:19:35.000 --> 0:19:39.440 is a politation and that I find days concerning UM. 0:19:39.480 --> 0:19:41.240 One of the things that we're seeing, and I think 0:19:41.240 --> 0:19:45.800 it's sort of not unrelated to that, is that they're 0:19:46.040 --> 0:19:49.159 they seem to be dispensing what the docten is very decisive, 0:19:49.280 --> 0:19:54.480 which is precedent, right that the idea that previously decided 0:19:54.560 --> 0:19:59.320 cases are binding, and you know, if you overturn one, 0:19:59.359 --> 0:20:01.959 you really have should be very clear that that's what 0:20:02.000 --> 0:20:04.760 you're doing, and you have to explain why. And we 0:20:04.840 --> 0:20:09.200 see that with the leak road graphs where they they 0:20:09.240 --> 0:20:14.280 have you know, if indeed they issue it sure because 0:20:14.520 --> 0:20:16.760 and this is like an originalism thing, right, Like you 0:20:17.000 --> 0:20:19.520 can throw out precedent if you're saying all that matters 0:20:19.600 --> 0:20:23.439 is this interpretation you're saying that's based on the original 0:20:23.520 --> 0:20:27.600 intent of like some dead dudes. Is that more or 0:20:27.720 --> 0:20:31.639 less an accurate way to say it? Or you can 0:20:31.680 --> 0:20:38.720 overturn president um, you know, over turned president we would 0:20:38.720 --> 0:20:45.800 have that's I think the just outcome or whatever is UM. Yeah, 0:20:46.520 --> 0:20:49.880 but I think there's many reasons that you can overturn 0:20:49.960 --> 0:20:55.119 precedent UM, but they seem to be doing it for subsilentio. Right. 0:20:55.160 --> 0:20:59.239 They're not. They're not always. The leak road rap did 0:20:59.760 --> 0:21:01.919 where a pretty clear and kind of parents about it. 0:21:02.600 --> 0:21:04.560 But I think there are some other things that are 0:21:04.560 --> 0:21:08.080 going on. UM. There was a sixth Amendment case where 0:21:08.880 --> 0:21:16.479 UM they just just start up, didn't mention all of 0:21:16.560 --> 0:21:23.840 the countervailing presidents. Yeah, you know they there's some stuff happening. 0:21:23.840 --> 0:21:27.040 There is UM a case in Texas there was a 0:21:27.119 --> 0:21:32.280 fishermendent case work the courts, the Supreme Court sent it 0:21:32.440 --> 0:21:36.080 back down to UM, either the distance or the Court 0:21:36.119 --> 0:21:40.440 of Appeals, I don't I don't remember UM or even 0:21:40.560 --> 0:21:45.160 the district or the circuit UH, and said, look at 0:21:45.320 --> 0:21:48.760 the side is on death row did absolutely with the 0:21:48.800 --> 0:21:53.800 ineffective assistance of council. Where is the a prejudice? And 0:21:54.880 --> 0:22:01.560 the Texas Court just ignored them. Yeah, and that's one 0:22:01.600 --> 0:22:04.760 of those ones that people freaked out about. That was like, yeah, 0:22:04.800 --> 0:22:08.600 I think folks should be very unsettled by this, right. 0:22:08.800 --> 0:22:12.920 And then the court was like, m they didn't. The court, 0:22:13.000 --> 0:22:16.560 the Supreme Court just didn't. They just let them get 0:22:16.560 --> 0:22:19.960 away with it. Um. And so there's just sort of 0:22:20.760 --> 0:22:27.800 weird um cushion full happening not only between this court 0:22:28.680 --> 0:22:35.520 interpreting the last court opinions and deciding basically not to 0:22:35.800 --> 0:22:40.720 enforce them, but but there's an interesting power struggle where 0:22:41.280 --> 0:22:45.399 this opinion court seems to be strategically feeding power to 0:22:45.560 --> 0:22:52.200 certain uh, certain lower courts in a way that unusual. Yeah, 0:22:53.560 --> 0:22:58.480 you know, so you know they're not they're not being transparent, 0:22:59.160 --> 0:23:03.600 they are not following precedence, they are not um enforcing 0:23:03.720 --> 0:23:06.800 the hierarchy of the courts, which it does sound like 0:23:06.840 --> 0:23:10.600 an odd thing I can put need to complain about, um. 0:23:10.640 --> 0:23:13.440 But one of one of the things that we want 0:23:13.480 --> 0:23:16.320 to know is that, you know, one of the ways 0:23:16.359 --> 0:23:20.120 that we can anticipate what the law is or make 0:23:20.200 --> 0:23:24.240 reliable legal arguments is that the law has to be consistent, 0:23:25.680 --> 0:23:27.200 you know, the law and the lower course that's to 0:23:27.280 --> 0:23:29.720 be consistent with what the Supreme Court has said. And 0:23:29.800 --> 0:23:33.520 if we can no longer rely on that, um, it's 0:23:33.640 --> 0:23:39.720 um you know, chaotic, potentially really bad, but really better 0:23:39.760 --> 0:23:44.160 Our clients, apparently, particularly clients who are facing the death penalty, 0:23:44.240 --> 0:23:48.800 which is a particular concerns UM. This court does seem 0:23:48.840 --> 0:23:53.680 pretty intent. I'm knocking over the entire existent amendment UM. 0:23:53.760 --> 0:23:55.760 And then I think yesterday or the day before, they 0:23:55.760 --> 0:23:59.560 issued a really important immigration case on the class actions 0:23:59.680 --> 0:24:05.040 that were brought UM by around behalf of people who 0:24:05.040 --> 0:24:08.480 were detained in immigration detention for like months and months 0:24:08.480 --> 0:24:13.560 and months without hearing, without bond hearing. And essentially what 0:24:13.720 --> 0:24:18.159 the court held was UM that lower courts join'e have 0:24:18.200 --> 0:24:23.280 any authority to UM. Lower coach do so many authorities 0:24:23.280 --> 0:24:31.640 to UM demand that the federal government do or not 0:24:31.840 --> 0:24:35.119 do certain things because they're they're playing as as the 0:24:35.160 --> 0:24:41.399 Immigration Naturalization Act does not give them that authority UM. 0:24:41.400 --> 0:24:44.399 And so it's there. There's a lot. I think the 0:24:44.400 --> 0:24:46.679 big trend here is there's a lot of protecting the 0:24:46.720 --> 0:24:53.240 federal government from any kind of accountability UM accountability that's 0:24:53.240 --> 0:24:56.960 being imposed by lower federal court who are so concerned 0:24:56.960 --> 0:25:01.760 with states rights they have a way of showing it. 0:25:11.960 --> 0:25:13.640 I don't know what else to say about it, because 0:25:13.680 --> 0:25:17.280 it is one of those things where when we talk about, 0:25:17.440 --> 0:25:20.880 or when I talk about like frustration at people kind 0:25:20.880 --> 0:25:24.040 of sharing information about stuff the court is doing, or 0:25:24.080 --> 0:25:27.480 about changes to how our rights are being interpreted by 0:25:27.480 --> 0:25:31.800 courts that are incorrect. It's not because like there's not 0:25:31.960 --> 0:25:35.920 a problem. It's because it's really important to be aware 0:25:36.320 --> 0:25:39.399 of like the it's really important to like see the 0:25:39.720 --> 0:25:43.959 problem accurately, um, and to see it like it's this 0:25:44.240 --> 0:25:46.560 it's this broad assault. Like like you said, the fact 0:25:46.600 --> 0:25:48.800 that the fact that you have this kind of high 0:25:48.840 --> 0:25:52.440 level attack on the Fifth Amendment is really frightening because 0:25:52.480 --> 0:25:58.600 that's one of like theoretically our primary protections. Yeah, there's 0:25:58.640 --> 0:26:02.479 also think it's going to be a mirandic case. Okay, 0:26:04.400 --> 0:26:08.359 oh boy, I'm not looking forward to that. A little 0:26:08.359 --> 0:26:13.879 bit anxious about that. Um. Yeah, I don't know. I 0:26:13.880 --> 0:26:20.520 mean I think that the general thing, so you know, 0:26:23.600 --> 0:26:25.520 I think the thing that I would like to highlight 0:26:25.560 --> 0:26:31.960 your paying attention to what writes just the Freme Court 0:26:32.119 --> 0:26:37.760 is trampling on. It's obviously pretty important, but it's pretty 0:26:37.800 --> 0:26:40.919 likely to be kind of more of the same, particularly 0:26:41.000 --> 0:26:45.200 for quality targeted groups of people. I like the law 0:26:45.440 --> 0:26:51.320 is in certain respects fictional, right, like the lies an 0:26:51.359 --> 0:26:59.679 abstract concept. Sure, absolutely, yes, it's material impact. It's not 0:27:00.320 --> 0:27:02.400 like I don't want to get all post modern here. 0:27:02.440 --> 0:27:05.199 It's not like a lot of fictional things have have 0:27:05.520 --> 0:27:14.880 real impacts, Um, exactly, Like, Uh, it has real impact obviously, 0:27:14.960 --> 0:27:19.119 But I think that the impact of the import ruling, 0:27:21.119 --> 0:27:26.919 you know, it's very serious, it's very important. Um, but 0:27:27.000 --> 0:27:31.000 it's also sort of immediately transformed the world. I think 0:27:31.040 --> 0:27:33.440 it just sort of changes what kinds of solutions we 0:27:33.560 --> 0:27:38.199 look to, right, And like, I'm not particularly inclined to 0:27:38.320 --> 0:27:45.280 look to the court to protect me or anyone, um, 0:27:45.359 --> 0:27:51.560 and not particularly I don't trust the law or courts 0:27:51.880 --> 0:27:56.080 enough to really want them to be the arbiters of 0:27:56.400 --> 0:28:03.400 things like free speege or Yeah, absolutely not. I mean, 0:28:03.600 --> 0:28:07.280 obviously I want very ecounful but um, you know, my 0:28:07.480 --> 0:28:12.440 hope is that we can take carib ease whether or 0:28:12.520 --> 0:28:17.160 not to make the course irrelevant, will realize doide type dream? 0:28:17.240 --> 0:28:24.399 But um, I guess this thing, you know, especially with 0:28:24.600 --> 0:28:27.680 roads and I was I was talking to Margaret, a 0:28:27.760 --> 0:28:32.480 mutual friend, about this. The thing that's going to change 0:28:32.920 --> 0:28:38.120 if we're always overturned. Uh, it's really going to be 0:28:38.360 --> 0:28:41.720 what delusions are available to us and how much courage 0:28:42.160 --> 0:28:44.560 will it take to pursue them and what are the 0:28:44.600 --> 0:28:50.920 potential consequencely, right, Yeah, what kind of resources it do 0:28:51.000 --> 0:29:01.280 we need? Um. I think in the space of these 0:29:01.320 --> 0:29:06.160 Supreme Court decisions, some of which are genuinely terrible, UM, 0:29:06.200 --> 0:29:10.320 and some of which are just reinforcing things that have 0:29:10.440 --> 0:29:15.200 longed been the two. Yeah, you know, our grief and 0:29:15.240 --> 0:29:21.040 our outraged and are bitter popes are not practiced, um, 0:29:21.120 --> 0:29:28.040 they are not necessarily useful, right and and even getting 0:29:28.120 --> 0:29:31.080 super in the leaves of you know, what does this 0:29:31.280 --> 0:29:34.760 opinion actually say. I mean, I think that's an interesting 0:29:35.280 --> 0:29:37.959 but it's and it's good to know and to at 0:29:38.000 --> 0:29:44.880 least have somebody around you know. Um. But instead of 0:29:45.760 --> 0:29:54.400 spending so much time focusing on the real knitpicky language 0:29:54.440 --> 0:29:58.880 was being used by the unelected god pay us of 0:29:58.960 --> 0:30:03.080 the United States. Yes, maybe we start thinking a little 0:30:03.080 --> 0:30:06.600