An Unsealed Brief, Ghost Guns, & Antitrust Law as Social Justice

Summary

Strict Scrutiny Podcast Summary Episode: An Unsealed Brief, Ghost Guns, & Antitrust Law as Social Justice
Release Date: October 7, 2024
Host: Melissa Murray, Leah Littman, and Kate Shaw
Produced by: Crooked Media

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1. Breaking News: Unsealed Brief in Trump Election Interference Case ([01:42] - [12:57])

Overview:
The episode opens with a discussion on Judge Tanya Chutkan's decision to unseal Special Counsel Jack Smith's brief regarding whether former President Donald Trump is immune from prosecution in the election interference case. This brief outlines evidence suggesting Trump's attempts to subvert the 2020 presidential election.

Key Points:

• Brief Details:

  • Length & Content: The brief spans 165 pages, detailing Trump's alleged schemes to overturn the election.
  • Notable Evidence:
    • Trump's communication with Vice President Mike Pence, describing him as "too honest" and "just doing the law" ([02:40]).
    • A conspirator's endorsement of inducing a riot to halt vote counting, referencing the "Brooks Brothers riot" of 2000 ([04:30]).
    • Trump's reaction to Pence leaving the Capitol, dismissing concerns about Pence’s safety as "so what?" ([05:00]).
    • Trump's strategy to reinsert remarks targeting Pence in his January 6 speech, potentially instigating violence ([05:48]).

• Court's Immunity Decision:

  • The Supreme Court's decision to grant immunity has delayed the trial, leading to the unsealing of the brief just a month before the election ([10:05]).
  • Impact: This postponement has significant ramifications for American democracy, as it prevents a jury trial from determining Trump's actions regarding the election ([11:16]).

• Host Reactions:

  • Melissa Murray: Criticizes the Supreme Court's immunity ruling, emphasizing the absence of a trial and its effect on democracy ([06:32]).
  • Leah Littman: Highlights the ongoing fallout from the court's decision, describing it as a "lawless immunity vibe" that undermines democratic processes ([07:02]).

Notable Quotes:

• Kate Shaw ([05:00]):
  "There's a lot of cartoonish villainy, like on the pages of this filing."

• Melissa Murray ([07:00]):
  "We have our talking points."

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2. Supreme Court Cases on the Docket ([13:06] - [28:53])

Overview:
The hosts delve into upcoming Supreme Court cases, focusing on two primary cases: Garland vs. Cargill (ghost guns regulation) and Glossop vs. Oklahoma (death penalty and potential wrongful conviction).

a. Garland vs. Cargill: Ghost Guns Regulation ([13:06] - [23:35])

Key Points:

• Case Background:

  • Regulation Challenge: The case challenges the 2022 ATF regulation aiming to close the loophole permitting the private assembly of ghost guns from component parts without serial numbers or background checks.
  • Ghost Guns Statistics:
    • Rise from 1,600 ghost guns submitted for tracing in 2017 to over 19,000 in 2021.
    • Less than 1% of unserialized firearms submitted could be traced to individual purchasers ([16:38]).

• Legal Arguments:

  • Federal Government’s Stance:
    • Argues that the regulation is necessary to prevent individuals prohibited from purchasing firearms from easily assembling them ([21:19]).
    • Compares purchasing ghost gun kits to buying furniture from IKEA, emphasizing the functional definition of "firearm" ([21:19]).
  • Challengers’ Argument:
    • Assert that "frame or receiver" should only include complete or functional parts, not component kits ([20:18]).
    • Emphasize circumvention of existing gun control by assembling from parts.

• Judicial History:

  • Initial Ruling: Texas district court issued a nationwide injunction against the ATF rule ([17:43]).
  • Supreme Court Intervention: Supreme Court stayed the injunction, allowing the regulation to remain in effect ([18:39]).
  • Current Status: The regulation is currently upheld, significantly reducing ghost gun availability.

Notable Quotes:

• Leah Littman ([21:19]):
  "When you go to Ikea, you're still buying furniture even though it's not assembled."

• Kate Shaw ([23:35]):
  "The NRA brief literally says, 'throughout American history, private gun making was not regulated.'"

b. Glossop vs. Oklahoma: Death Penalty and Potential Wrongful Conviction ([28:53] - [35:35])

Key Points:

• Case Overview:

  • Convicted Individual: Richard Glossop, convicted of the murder of Barry Van Tree based solely on the testimony of Justin Sneed, the actual perpetrator.
  • New Evidence:
    • Sneed's mental health issues and methamphetamine addiction, which could have impacted his testimony ([29:43]).
    • Lack of forensic evidence linking Glossop to the murder ([30:43]).

• Legal Proceedings:

  • Oklahoma Court of Criminal Appeals: Despite independent commissions recommending overturning Glossop's conviction due to suppressed evidence, the court refused to vacate the sentence ([32:25]).
  • Supreme Court’s Role:
    • Previously involved in related lethal injection protocol challenges ([31:12]).
    • Hosts hope for a favorable ruling that might overturn the conviction.

• Host Insights:

  • Melissa Murray: Criticizes the Oklahoma Court’s dismissal of key evidence and procedural limits preventing the reconsideration of the case ([32:25]).
  • Kate Shaw: Highlights the systemic flaws in the death penalty’s application, emphasizing the lack of evidence ([34:39]).
  • Leah Littman: Expresses hope for a just resolution, criticizing the court's stance on immunity decisions ([35:14]).

Notable Quotes:

• Kate Shaw ([30:43]):
  "There was concededly zero forensic evidence linking Glossop to the murder."

• Leah Littman ([35:14]):
  "John Roberts had so deluded himself, aided by Brett Kavanaugh and Neil Gorsuch, that his immunity ruling was going to soar above politics."

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3. Court Culture Segment: State Court Developments ([36:15] - [44:19])

a. Arizona Supreme Court Changes ([36:15] - [38:37])

Key Points:

• Justice Retirement:
  • Justice Robert Brutinel announced his retirement, allowing Governor Katie Hobbs to appoint his successor ([36:52]).
• Retention Elections:
  • Justices Clint Bollock and Catherine Hackett King face retention elections. Both were pivotal in reinstating Arizona's 1864 abortion ban ([36:52]).
  • Political Connections:
    • Bollock’s ties to conservative legal movements and associations with Justice Clarence Thomas and Ginni Thomas ([38:37]).

Notable Quotes:

• Melissa Murray ([36:52]):
  "Clint Bollock is the former vice president of the Goldwater Institute... connected to Ginni Thomas."

b. Texas Jurismandering ([38:37] - [39:47])

Key Points:

• New Appeals Court: Governor Greg Abbott established a new state appeals court solely for civil rights claims, potentially predetermining rulings against litigants ([38:37]).
• Impact:
  • Organizations like Texas Civil Rights Project face challenges as cases might be heard by judges predisposed against them ([39:45]).

Notable Quotes:

• Leah Littman ([39:47]):
  "It's jurismandering, Texas style."

c. Positive Developments: Georgia's Abortion Ruling ([39:47] - [44:19])

Key Points:

• Ruling:
  • Judge Robert McBurney declared Georgia's six-week abortion ban unconstitutional, citing violations of the state's right to privacy protections ([39:47]).
• Legal Reasoning:
  • The ban infringes on women's fundamental rights to make healthcare decisions, lacking a compelling state interest ([40:41]).
  • Emphasizes that Georgia’s constitutional right to privacy is broader than the federal interpretation, protecting reproductive choices ([41:46]).

Notable Quotes:

• Judge McBurney in Ruling ([40:41]):
  "Liberty to privacy means that they alone should choose whether they serve as human incubators for the five months leading up to viability."

• Leah Littman ([43:40]):
  "This is kind of an Easter egg."

d. Federal Court Standing: D.C. District Court Decision ([44:19] - [45:06])

Key Points:

• Case Overview:
  • Judge Trevor McFadden ruled that the Biden administration violated the National Environmental Policy Act (NEPA) by not analyzing environmental impacts of immigration policies ([44:19]).
• Issues:
  • Standing: Plaintiffs must demonstrate that their injuries were directly caused by the administration’s actions, which is questionable in this case ([45:06]).

Notable Quotes:

• Judge McFadden’s Opinion ([44:19]):
  "Migrants trespassed onto one of the plaintiff's land, and that was at least part of the environmental impact."

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4. Antitrust Law as Social Justice: Interview with DOJ Officials ([47:02] - [85:28])

Guests:

• Jonathan Cantor: Assistant Attorney General for Antitrust at the DOJ.
• Doha Meki: Principal Deputy Assistant Attorney General for the Antitrust Division.

Key Topics:

a. DOJ’s Victory Against Google ([52:50] - [55:38])

Discussion Points:

• Case Background:
  • DOJ vs. Google: The DOJ secured a landmark victory, declaring Google a monopolist in online searches for misusing its monopoly power to maintain dominance ([52:50]).
• DOJ’s Position:
  • Emphasizes that monopolistic practices harm competition and consumer choice, contrary to Google's claims of offering a superior product ([53:28]).
• Google’s Defense:
  • Plans to appeal, arguing that its market dominance results from consumer preference for its effective and user-friendly services ([54:31]).

Notable Quotes:

• Jonathan Cantor ([53:27]):
  "The court was very clear that the company had monopoly power and misused it."

b. Antitrust Enforcement Philosophy ([55:38] - [70:25])

Key Points:

• Neo-Branderian Approach vs. Chicago School:

  • DOJ’s Stance:
    • Rejects the Chicago School’s focus on consumer efficiency, advocating for a more robust enforcement that protects against corporate monopolies ([55:38]).
  • Historical Context:
    • Antitrust Origins: Rooted in preventing monopolies from undermining democracy and economic freedom ([57:50]).
    • Shift in Focus: The DOJ is realigning antitrust enforcement to address modern corporate power dynamics and promote social justice ([64:37]).

• Public Engagement:

  • Increased interest among young progressives and conservatives alike, recognizing the importance of regulating corporate power to ensure economic freedom and social justice ([65:25]).

Notable Quotes:

• Jonathan Cantor ([58:56]):
  "Antitrust law is about standing up to bullies and ensuring people have freedom to choose."

• Doha Meki ([63:22]):
  "Antitrust laws preserve competition and protect the economy against mergers that might substantially lessen competition."

c. Antitrust as a Tool for Social Justice ([70:25] - [85:28])

Key Points:

• Intersection with Social Justice:

  • Labor Antitrust: Doha Meki discusses integrating labor law with antitrust to protect workers' rights and prevent corporate overreach ([82:45]).
  • NCAA vs. Alston:
    • Significance: The Supreme Court ruling against the NCAA set a precedent that price-fixing labor (college athletes) is illegal, highlighting antitrust's role in protecting workers ([84:00]).
    • Impact: Reinforces the importance of fair labor practices and economic opportunities.

• Future of Antitrust:

  • Young Lawyers: Increased interest from new generations of lawyers who view antitrust enforcement as pivotal to maintaining economic and social freedoms ([72:45]).
  • Government Accountability: Emphasizes DOJ’s commitment to combating monopolistic practices to ensure vibrant and competitive markets ([79:12]).

Notable Quotes:

• Doha Meki ([83:00]):
  "Antitrust has something to say about all of these forms of consumer choice."

• Jonathan Cantor ([63:22]):
  "Antitrust is a statutory, general statute that's often refined by interpretation from courts, including up to the Supreme Court."

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5. Closing Remarks and Announcements ([85:23] - [87:33])

Summary:
The episode concludes with acknowledgments to guests and information about upcoming segments. Hosts also provide reminders about voter registration deadlines and promote related podcast episodes focused on voting rights and election security.

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Conclusion

This episode of Strict Scrutiny offers a comprehensive analysis of critical legal issues surrounding the Supreme Court, including the unsealed brief in Trump’s election interference case, challenges in regulating ghost guns, and the evolving landscape of antitrust law as a tool for social justice. The in-depth discussions highlight the interplay between legal decisions, judicial philosophies, and their broader impacts on American democracy and societal norms.

For those interested in the nuances of Supreme Court cases, legal culture, and the intersection of law with social justice, this episode provides valuable insights and expert perspectives.

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Notable Transcriptions Referenced:

• [02:40] Kate Shaw:
  "Here's another nugget from the brief..."

• [21:19] Leah Littman:
  "I like the federal government's argument in its brief..."

• [53:27] Jonathan Cantor:
  "The court was very clear that the company had monopoly power..."

• [70:25] Leah Littman:
  "So much, Doha and Jonathan for joining us..."

---

Note: All timestamps correspond to the transcript provided and are approximate.

Transcript

[Kate Shaw]

Anthropic's Claude is AI backed by uncompromising integrity. CLAUDE is run by responsible leadership who have an ethical approach to the development of AI while providing strong data security and putting humanity first. Whether you're brainstorming alone or building with a team, CLAUDE can help you do your best work securely. Discover how Claude can transform your work and [e-mail] Claude or find Claude on Apple and Android app stores. Mr. Chief justice may please the court. It's an old joke, but when an.

[Leah Littman]

Argument man argues against two beautiful ladies.

[Kate Shaw]

Like this, they're going to have the last word.

[Leah Littman]

She spoke not elegantly, but with unmistakable clarity.

[Melissa Murray]

She said, I ask no favor for my sex.

[Leah Littman]

All I ask of our brethren is.

[Melissa Murray]

That they take their feet off our necks. Hello and welcome back to Strict Scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it. We're your host today. I'm Melissa Murray.

[Leah Littman]

I'm Leah Littman.

[Kate Shaw]

And I'm Kate Shaw. And today we're going to dive deeper into the cases the court will hear in the first sitting of this term. We will then have a court culture segment that will quickly cover some state court matters as well as one federal court case. And finally, we're going to bring you a conversation about recent and exciting developments in antitrust law with some very special guests.

[Leah Littman]

But before we get to that, we have a bit of breaking news to cover. Judge Tanya Chutkan unsealed special counsel Jack Smith brief outlining whether Donald Trump is immune from prosecution in the election interference case. Essentially, this is the brief where Smith lays out evidence about how Trump attempted to subvert the election. Evidence that Smith thinks he should be able to admit at trial because it's not barred by the Supreme Court's horrendous immunity decision. Yes, we are going to be dealing with the after effects of that clown show for a while.

[Kate Shaw]

The brief is 165 pages, but do not be deterred by that length. It is an incredible and riveting read, both in general and in the individual state level narratives that it unfolds. It opens with this line quote, the defendant asserts that he is immune from prosecution for his criminal scheme to overturn the 2020 presidential election because he claims it entailed official conduct. Not so. Although the defendant was the incumbent president during the charge conspiracies, his scheme was fundamentally a private one.

[Leah Littman]

You can almost hear the Chief justice whining, you guys said you weren't going to fact check us, but here sounds.

[Melissa Murray]

Better in the original German. Let's Hygiene.

[Leah Littman]

Okay, well, why don't we hear it from the mouth of one J.D.

[Melissa Murray]

Thank you, Governor. And just to clarify for our viewers, Springfield, Ohio does have a large number of Haitian migrants who have legal status temporary protected.

[Kate Shaw]

Thank you, Senator.

[Leah Littman]

We have so much to get to, Margaret.

[Melissa Murray]

I think it's important because we're going to turn out of the economy. Thank you, Margaret. The rules were that you guys weren't going to fact check. And listeners, while we thought we had basically heard it all regarding the Oval Office shenanigans that took place on January 6, 2021, this brief may actually spill some new tea. So let's briefly run through some of the new evidence that Jack Smith presents SAB before sharing our reaction. So one new tidbit is that Donald Trump told his vice president, Mike Pence that Pence was, quote, unquote, too honest. Just doing the law. Okay, Another bit of new tea is about a conspirator who gleefully endorsed inducing a riot in order to stop the counting of the votes at the TCF center in Detroit, Michigan. So according to the brief, a colleague told this conspirator, quote, look, if you instigate this, you'll be starting something like the Brooks Brothers riot. And FYI, if you don't know what the Brooks Brothers riot is, it refers to a violent demonstration led by Republican staffers, hence the Brook brothers moniker, on November 22nd of 2000. That was during the recount of the votes cast in the 2000s presidential election. The goal of the Brooks Brothers riot, which, incidentally Roger Stone continues to take credit for, was to shut down the recount. And in fact, it actually worked. The officials came in after those acts of violence and those demonstrations to shut down the recount early in any event, when this conspirator was warned that he might be instigating something akin to the Brooks Brothers riot of 2000 in real time at the TCF center, this conspirator seemed remarkably unmoved, responding only, quote, make them riot, end quote. That's like a Marvel villain kind of statement.

[Kate Shaw]

There's a lot of cartoonish villainy, like on the pages of this filing. Here's another example. So another nugget from the brief is that after an aide told Trump that Pence had been forced to leave the Capitol because of threats and concerns that his life was in danger, Trump allegedly responded, quote, so what? I mean, real villain shit there. And this also serves as a reminder of the hugely important context of the discussion at last week's VP debate about why exactly Mike Pence was not on the stage and is, in fact not running on the ticket with Donald Trump.

[Leah Littman]

The brief boss was fundamentally agnostic about whether he was murdered. Right.

[Kate Shaw]

Turns out it's hard to come back from that. And in fact, they did not. Although would Pence have, you know, run with him again if asked? Probably so.

[Leah Littman]

Undoubtedly.

[Kate Shaw]

Undoubtedly. I. You think you're probably right. The brief also details Trump's alleged decision to, quote, reinsert into his speech at the Ellipse on January 6, remarks targeting Pence for his refusal to challenge certification, which again seems to suggest, at a minimum, that the president, the then President Trump, was agnostic about whether protesters were going to try to harm his vice president and indeed, the real possibility that he made a decision to affirmatively instigate that.

[Melissa Murray]

We also learned from the brief that when advisers told Trump that he wouldn't be able to substantiate his claims of voter fraud in a court of law, Trump simply replied, quote, the details don't matter, end quote.

[Leah Littman]

It's more about the vibes.

[Melissa Murray]

Concepts of evidence.

[Leah Littman]

Right, but concepts of evidence. We have vibes.

[Melissa Murray]

Vibes.

[Leah Littman]

Vibes are off.

[Melissa Murray]

Along similar lines, a co conspirator said, quote, we don't have the evidence, but we have a lot of theories, end quote. And honestly, I think that's basically how the Supreme Court has been writing a lot of its decisions. We don't have the evidence, but we have a lot of theories. All of them are original.

[Leah Littman]

We have our talking points.

[Melissa Murray]

Yes. Anyway, the sideco conspirator also seemed quite surprised when Republican legislators actually wanted evidence of the non existent voter fraud remarking, quote, man, I thought we were all Republicans. Quote, that actually is my favorite line.

[Leah Littman]

I know, is like, what's a little evidence among Republicans. Yeah.

[Kate Shaw]

And there's a version of that in the Arizona narrative, Michigan narrative. It's like he's saying this to everyone and kind of party over evidence. Actually not. Thankfully, it doesn't fly with any of them.

[Melissa Murray]

Evidence over party.

[Leah Littman]

So there's also a ton of details about Pence trying to flatter and puff up Trump so that Trump would accept the results of the election.

[Melissa Murray]

This is Mike Pence basically trying to, Kris Jenner, the former guy, into accepting the results of the election. Like, you're doing great, sweetie. You lost this time. But there's always 2024. Don't worry, it's going to be fine.

[Leah Littman]

Yes.

[Melissa Murray]

And the former guy's having none of this, like, ugly tears. Kim Kardashian crying.

[Kate Shaw]

Yeah, sadly, there are no ugly tears in this file.

[Melissa Murray]

There are no Ugly. We wish there were Kim Kardashian.

[Leah Littman]

And of course, while they seem vaguely aware of Stringer Bell's sage advice not to take notes on a motherfucking criminal conspiracy, they were incapable of actually following that advice. So one conspirator texted another, quote, careful with your text on text groups. No reason to text things about electors to anyone but this other person and me, end quote. All the while, like, furiously texting about the fake Electros.

[Kate Shaw]

And they're so close to getting exactly.

[Leah Littman]

Like, on the cusp of a revelation.

[Kate Shaw]

Just.

[Melissa Murray]

Slim Charles would never. Slim Charles would never.

[Leah Littman]

One of my personal favorites, because it concerns my home state, is that while Trump was talking with a Republican state legislator from Michigan about, you know, having lost the election, the state legislator told him, quote, trump has had underperformed with educated females, end quote, which is why he lost the state. I want, like, educated females against Trump.

[Kate Shaw]

You know, as some sort of the new blue wall.

[Leah Littman]

Literally, educated females.

[Kate Shaw]

Oh, love it.

[Melissa Murray]

Underperforming is kind of an understatement. At least with this group of, sir.

[Leah Littman]

They found you repulsive. Like they were. Literally. Yeah, sir.

[Kate Shaw]

Yes. So, look, I mean, the thing is, all of this appears in the brief, but it should have already been presented at a trial where a jury of Trump's peers would have been able to determine whether Trump unlawfully conspired to interfere with the 2020 presidential election in violation of multiple federal criminal laws. Instead, thanks to the Supreme Court and its abominable immunity decision from July 1, all we get for now is this lengthy legal document.

[Leah Littman]

Yeah, a note about the timing and then generation of this document. You know, some people are calling this an October surprise, but it's not a surprise. Like, this happened and it happened now because of the Supreme Court. It's because of the court's outlandish immunity decision and because of the court's slow walking this case, unjustifiably, that this brief gets unsealed now a month before the election and while early voting is already underway in some places. But John Roberts had so deluded himself, aided by Brett Kavanaugh and Neil Gorsuch, that his immunity ruling was going to soar above politics. He couldn't grasp the possibility that maybe what the American people deserved is a trial on these extremely serious charges about whether a candidate for president attempted to abuse the powers of the presidency to stay in power despite losing the election. And instead, what he forced to happen is a Federal employee writing 165 page document about whether Donald Trump threatening people over Twitter constituted an official like that's. What this great immunity opinion got us. And you know, we all saw the defining moment in the vice president debate where JD Vance again refused to admit Trump had lost the election.

[Melissa Murray]

Tim, I'm focused on the future. Did Kamala Harris censor Americans from speaking their mind in the wake of the 2020 Covid situation? That is a damning. That is a damning non answer.

[Leah Littman]

Has she?

[Melissa Murray]

It's a damning non answer for you to not talk about censorship. Obviously, Donald Trump and I think that there were problems in 2020.

[Leah Littman]

We've talked about it.

[Melissa Murray]

I'm happy to talk about further.

[Leah Littman]

He is indicating if push comes to shove, he will do what Mike Pence wouldn't, you know, abuse the powers of his office to undemocratic ends.

[Melissa Murray]

So if you take the time to read all 165 plus pages of this brief, you can go through the evidence that's presented because it really brings home just how galling it is that the court all but ensured that there would be no trial in these election interference charges before Americans had to go to the ballot box to decide whether or not Donald Trump should be reinstalled in the office he allegedly abused and misused in an effort to try and subvert democracy. But I think that's kind of par for the course with this court. A majority of these justices basically don't think that women should be allowed to make decisions about their own bodies. And they also apparently don't think that D.C. jurors should be allowed to make decisions about whether Donald Trump is an insurrectionist and a criminal. And that's basically the tldr. So again, the fallout from the Supreme Court's disastrous, lawless immunity vibe laden decision continues to hang over our heads and our democracy as we proceed into this new October term. So, yes, that's right, folks, we're going to do this all over again. Have a whole new term full of new fuck shit. And it's going to be great.

[Kate Shaw]

I mean, I would love to say nowhere to go but up, but I can't.

[Melissa Murray]

No, Kate, that's your optimism again.

[Kate Shaw]

I'm stopping myself this time.

[Melissa Murray]

Thank you.

[Kate Shaw]

But to pivot to what we know is on the docket for the October sitting, it's a pretty light sitting. Neither of the October nor November calendar is chock full of blockbusters. But we're going to highlight in depth today two cases the court will hear during this first week of the October sitting. And then we will briefly note the other cases the court will hear this week. And let's start with Garland vs. Van der Stock, which is a case we mentioned last week about ghost guns.

[Melissa Murray]

Well, folks, if you like Cargill, you'll love Garland versus our listeners.

[Kate Shaw]

Probably not, no.

[Melissa Murray]

I mean, I was trying. This is a challenge to the 2022 ATF regulation of ghost guns, that is, guns that can be privately assembled from component parts and that are unserialized. The relevant statutory scheme Here is the 1968 Gun Control act, which regulates firearms, which the statute defines to include, quote, any weapon which will or is designed to, or may readily be converted to expel a projectile by the action of an explosive, end quote, as well as, quote, the frame or receiver of any such weapon. That part's important. When ghost guns first cropped up, ghost gun parts and kits were basically being able to be purchased online without any vetting, without background checks, without any of the restrictions that are typically required for firearms under the act. And that meant that individuals who were otherwise prohibited from purchasing firearms because they were minors or because they were subject to domestic violence restraining orders could instead just go to the Internet, purchase a ghost gun kit and ghost gun parts and quickly and easily assemble them into firearms, evading the statutory scheme.

[Leah Littman]

And in 2022, ATF sought to close this loophole by issuing a regulation clarifying that certain products that can readily be converted into an operational firearm or a functional frame or receiver fall within the scope of the Gun Control Act. And under the new reg, ghost guns are subject to the same restrictions as traditional already assembled firearms. Basically, that means instead of being able to purchase a ghost gun kit without a background check or other vetting, individuals have to go through the same regulatory procedures that are in place for already assembled firearms. As a federal government notes in its brief polymer 80, one of the parties to this case sold a buy build chute kit that allowed a purchaser to assemble a fully functional Glock variant semi automatic pistol in as little as 21 minutes.

[Melissa Murray]

And companies, it's basically like Legos for serial killers, right?

[Leah Littman]

And companies basically marketed them that way. You know, marketed, quote, partially complete or unassembled frames or receivers that can, quote, readily be completed or assembled to a functional state, you know, by removing a few temporary plastic rails, which again, could take minutes.

[Kate Shaw]

Yeah. So all this to say the ATF was trying to address a major regulatory issue. Ghost guns were on the rise. They were difficult to trace because they weren't subject to the same checks as traditional firearms. In 2017, law enforcement agencies submitted roughly 1600 ghost guns to ATF. So this is guns they've, you know, recovered at a crime Scene given them over to ATF for tracing. By 2021, that number was more than 19,000. So an increase of more than a thousand percent in just four years. And again, ATF can't really trace these guns because of the lack of serial numbers and transfer records for ghost guns. So of the 45,240 unserialized firearms submitted for tracing between 2016 and 2021, ATF was able to complete only 400, 145 traces to individual purchasers, which is less than 1%.

[Melissa Murray]

And because of the regulatory pressure from the 2022 ATF rule, as well as litigation challenging the ghost gun purveyors, polymer 80 actually shut down. Like, there's no market for this once the regulations kick in and they're forced to shut down. Though, of course, it's worth noting that depending on what happens in this case, it could very easily get up and running again. And maybe they have an emotional support billionaire who could just help them in this instance. In any event, the ghost guns at issue in this case have been involved in numerous gun deaths and shooting. And again, this is part of what spurred the need for regulation. Every Town for Gun Support Safety Fund has issued a report that details many of these cases. And the Washington Post recently reported on cases that specifically involve teenagers. Again, the point here is that teenagers cannot buy guns because they're minors under the ordinary regulatory scheme. But they can get ghost gun kits and parts online, and they can separately assemble them into firearms, avoiding the whole regulatory apparatus.

[Kate Shaw]

So this case that the court will hear this week has some pretty notable procedural history that we wanted to walk through. The initial challenge was filed in a Texas district court, because of course it was. And the district court issued a nationwide injunction invalidating the ATF rule in its entirety. Again, because, of course, it did. The judge in that case was Judge Reed O'Connor, the guy who. I can't remember if this is originally your Leah or your Melissa's coinage, but Reid O'Connor just this tells you everything you need to know about him. Basically walked so Matthew Kaczmarek could run. He's that guy. He's a Bush 2 appointee. He's the one who declared the Indian Child Welfare act unconstitutional. He tried to declare the entire Affordable Care act unenforceable. He's the judge that attempted to join the Pentagon from enforcing a COVID 19 vaccination requirement for Navy SEALs. He was just an enormous thorn in the side of the Obama administration. And Kazmier has essentially assumed. Assumed that function. But O'Connor's not out of the game yet in, you know, still at it, definitely.

[Leah Littman]

Nobody puts Baby in a corner. So that's the guy who enjoyed ATF's efforts to regulate ghost guns. The Fifth Circuit stayed the injunction as to the portions of the rule that the challengers hadn't challenged. Yes, Judge O'Connor had enjoined portions of the rule that hadn't been challenged because of course he did. And then the Supreme Court stayed the decision entirely, which, you know, allowed the regulation to go into effect while the case was pending. Then the fifth Circuit came back and was like, let's try this one again, and tried to reinstate the injunction. As to the challengers in the case, the Supreme Court once again stayed that. So again, this regulation is in effect. We should say. The stays were 5, 4 votes at the Supreme Court with a three horsemen, Thomas Alito and Gorsuch, and the court's gun control wingnut, Brett Kavanaugh, saying they would have left in place the district court's nationwide injunction invalid the ghost gun regulation. And the fact that this regulation has been in effect, as we noted last week, allows us to see that it's actually quite significant. It has shut down some ghost gun manufacturers, dramatically reduced the number of ghost guns used in violent crime. So it's working.

[Kate Shaw]

So the question in this case is whether the statute that is the 1968 gun control law Melissa mentioned a few minutes ago, authorizes the ATF to regulate ghost guns in this way. So this is not a Second Amendment case per se. It's more like Garland vs. Cargill, the Bumstock case from last term. And that means it's about whether the statute as written, allows ATF to regulate certain types of firearms. But I think it's fair to say that these guys order for the Second Amendment may have some impact on how they read the statutory language in this case, just as it did in Cargill.

[Melissa Murray]

What Kate means is that we're likely in for another round of gun porn. Or alternatively, the textualist case for unregulated deathly firearms. So that will be fun. Part of the issue in this case depends on whether the language frame or receiver that's referenced in the statutory definition of the term firearm has to be a complete or functional frame or receiver in order to qualify under the law. The rule interprets frame or receiver to include partially complete, disassembled, or non functional frames and receivers that may be readily completed, assembled, restored, or otherwise converted to function as frames or receivers. That's how they sweep in the ghost guns here. But the Manufacturers argue that frame or receiver as specified in the statute defines only complete or functional frames or receivers, not the component parts that are used to assemble ghost guns. So parts as parts basically is what they're saying.

[Leah Littman]

I like the federal government's argument in its brief that, you know, when you go to Ikea, you're still buying furniture even though it's not assembled. You know, we don't call that something else like shmurniture when it's not assembled. But another facet of the case turns on the fact that Congress defined firearm to include any weapon that, quote, may readily be converted to expel a projectile by the action of an explosive. And the rule says a weapons part kit that may readily be completed, assembled, restored or otherwise converted to expel a projectile by the action of explosives is a firearm. And the challenger's primary argument seems to be that other provisions in gun control law specifically regulate parts or combinations of parts. But at least me personally, I don't think that means the natural meaning of quote may readily be converted to expel a projectile should just be ignored or read out of the statute.

[Melissa Murray]

Well, you're feminist, Leah, so you don't count, so shut up.

[Kate Shaw]

Uneducated female in the state of Michigan.

[Melissa Murray]

Like I said, it sounds better in the original statutes.

[Kate Shaw]

That's true. I mean, look, the language that you just read, Leah, to my mind is so clearly in the government's favor. Like obviously these qualify, but if the text, text alone is not enough, the government notes again, as it did in Cargill, without success. But I think it's important. It was right there and I think it's really important here. Congress specifically included a bunch of anti evasion or anti circumvention provisions like these in the law, which indicated that Congress thought it was restricting efforts to work around the technical definitions by assembling firearms that do the same thing as the restricted firearms like may readily be converted. Obviously suggests that Congress wanted to capture things that would later emerge that would let people get guns they wanted regulated, like the guns already in existence in 1968. So the government's reply brief explains, quote, respondents do not deny that their interpretation would allow more minors, felons, domestic abusers and other prohibited persons to circumvent the act's core requirements by easily buying and quickly assembling firearms without serial numbers, records or background checks. Indeed, respondents have in fact promoted their products by emphasizing that they are sold with no background checks.

[Melissa Murray]

10 bucks. Sam Alito is going to write either a majority opinion or a concurrence is like this is really on Congress. 10 bucks.

[Leah Littman]

Well, which. Which disadvantaged group is Sam Alito going to insist that ghost guns help? Because remember last year in Cargill, he insisted that bump stocks were really designed to allow people with physical limitations to have the necessary experience of knowing what it feels like to fire a machine gun.

[Kate Shaw]

Yeah. Arthritis, I think, came up in the Right.

[Leah Littman]

Yes.

[Kate Shaw]

In the oral argument. Like, that's who's really being targeted by these individuals who want to restrict bump stocks. Right.

[Leah Littman]

He's going to say this regulation is unconstitutional under the 19th amendment.

[Melissa Murray]

Like we're like educated women want this.

[Leah Littman]

Exactly.

[Melissa Murray]

Anyway, as Kate said, this is not a second amendment case on its face. It's a statutory case, a regulatory case, if you will. But. But that didn't stop some of the amici. I'm looking at you, nra, from gesturing toward the second amendment and explaining why the regulation should be invalidated. The NRA brief literally says, quote, unquote, throughout American history, private gun making was not regulated. End quote. Stay tuned for that. It's going to be the big case, I think, this week and a big opportunity for this court to continue with its antipathy for regulation and its love of guns. Strict scrutiny is brought to you by skims. Skims is totally changing the bra game. And believe me, the bra game needed to change because you know what? I hate underwire bras, which is why I decided to give skims a try. Their bras are not underwire bras, but nevertheless, they are totally supportive and totally comfortable. My favorite is the Fits Everybody T shirt bra because honestly, it is literally the best bra I have ever owned. It's great for everyone. Even if you got a smaller chest, you're going to love wearing this because it gives you such a great lift. This bra is comfy. It's just as soft and cozy as your favorite tee. This is why they call it a T shirt bra. Looks great with everything. And again, it's not an underwire bra, so it's not digging into your flesh all day long as you're working. I absolutely love the Fits Everybody T shirt bra. I tried it and I loved it so much, I went back and bought it in a bunch of other colors. And that's the best part about skims. There are so many other colors. There's standard black. There's the flesh colored ones. There are pinks. There are different seasonal colors. Like literally, you can get every kind of itch scratch, but what won't scratch you is underwire because there are no underwires in this awesome bra. So head on over to skims.com where you can get the Fits Everybody T shirt bra that is available in 62 sizes 30A through 46H. And if you haven't already, make sure you let the folks at Skims know that Strict Scrutiny and Melissa sent you. After you place your order, select Podcast in the survey and select Strict Scrutiny in the dropdown menu that follows. Let them know you heard it here because once you go Skims, you're never going back. Strict Scrutiny is brought to you by bookshop.org you know I love reading every night. Just to wind down, I've got to pick up a book and this election season with all the stuff that is happening, I have decided that I need to step up my fiction game and my first stop is bookshop.org bookshop.org has everything. If you want a political thriller or you want a deep dive on environmental policy, you can find [e-mail] I however do not want an environmental policy deep dive. What I want is escapist historical fiction and bookshop.org has me covered. One of the things I love about bookshop.org is that it has great lists. So just a couple of weeks ago Bookshop.org released its most anticipated books of fall 2024 and it has some amazing pigs on it that I can't wait to dig into. There's Intermezzo by Sally Rooney. Share The Memoir Part 1 Sign me up. There's also We Solve Murders by Richard Osman. So many awesome reads that are going to be great for the cozy fall reading season. [e-mail] is like voting for local businesses. You can support your neighborhood bookstore or you can uplift an lgbtq, black, aapi, Latinx or woman owned bookstore nationwide. You can make your choices count [e-mail] you can align your dollars with your values. So support independent bookstores and help shape our literary landscape and our democracy. Bookshop.org believes local bookstores are essential community hubs fostering culture, curiosity and a love of reading. And they're committed to helping local bookstores survive and thrive. That's why in just over four years, bookshop.org has raised over 30 million for local bookstores. So head on over to bookshop.org crooked where you can use code strict24 to get 10% off your next great read. That's code [e-mail] crooked moving on to something else, the court likes the death penalty.

[Leah Littman]

Leah now we get to discuss Glossop versus Oklahoma. So we've talked about this case before and we actually had one of Mr. Glossop's lawyers, John Mills from the public interest law firm Phillips Black, on the show previously to discuss Mr. Glossop's case at an earlier stage before the Supreme Court had granted review. It would be difficult, if not impossible, to cover all of the insanity and meshuggahness that has gone into this case. But we're going to give you a snapshot of it briefly. Richard Glossop was convicted of the murder of Barry Van Tree based on the testimony of Justin Sneed, the person everyone agrees physically murdered Vantries. After being questioned and coached, Sneed agreed to plead guilty and testify that Richard Glossop had planned the murder. And that agreement allowed Sneed to avoid the death penalty.

[Kate Shaw]

Right. So you did hear that right. The person who actually committed the murder was not sentenced to death. And there's no allegation that Glossop personally did any of this. And as we'll talk about, the evidence of Glossop's involvement at all is deeply, deeply sketchy. So, almost 20 years after Mr. Glossop's conviction, the state disclosed files showing that the state. State knew, but failed to disclose that Sneed, who was addicted to methamphetamines and had an untreated bipolar disorder, had been prescribed lithium by a psychiatrist. And the combination of drugs and conditions would have cast doubt on Sneed's perception and memory if it had been disclosed. It could also have bolstered the defense theory of the case, which is that Sneed committed the murder impulsively, without any involvement from Glossop. And that combination of drugs and conditions can contribute to impulsive, uncontrollable behavior. The state also allowed Sneed to testify falsely that he had never seen a psychiatrist, when in fact he had. And there was concededly zero forensic evidence linking Glossop to the murder. It's just Sneed's testimony.

[Melissa Murray]

At Glossop's second trial, the State said that he and Sneed conspired to murder Vantries for money, which they then split. And the prosecution to support that pointed to the fact that Glossop had over a thousand dollars on him when he was arrested. Arrested. But there's evidence of a statement from a witness who told the police that the money actually came from Glossop selling his possessions. There's also evidence that the State coach Snead to account for the discrepancies in his case, including whether or not Snead.

[Kate Shaw]

Used a knife to editorialize for one minute. Glossip's case has been up and down a few times to the Supreme Court. We'll talk in a minute about the lethal injection protocol challenge. But it was up as well in 2008, actually, when I was a law clerk there. And I have to say I remember that the court, when I was there, called for the record in Glossop's case, which meant, like all the files from the Oklahoma courts came to the Supreme Court. And I remember reading it. It's odd that I remember I remembered it so well that I just checked the docket to be sure I was right. And yeah, we, the court called for the record while I was a clerk there. Anyway, I remember just how serious the questions about the evidence against Glossop were back then, and the court didn't take the case then. But all this to say there have been questions that have stalked this case from the beginning about Glossary, Glossop's potential actual innocence.

[Leah Littman]

Right, because as you're alluding to, even before any of the evidence we were just recounting came to light, the Oklahoma legislature appointed an independent investigation Commission that concluded Mr. Glossop's conviction should be set aside. Another independent investigation that the Oklahoma Attorney General commissioned. Agreed. You know, it reached those conclusions on the ground that the state had destroyed critical physical evidence and suppressed other evidence. The police had not searched Snead's room at the motel or questioned most of the motel guests and whatnot.

[Melissa Murray]

That the Oklahoma AG agrees that the conviction must be overturned, not surprisingly, given everything that has been said. But yet, despite that concession, the Oklahoma Court of Criminal Appeals refused to vacate the conviction and sentence and said there had been no Brady violation, nor had there been a nepu violation. And a Brady violation refers to the prosecution's failure to turn over exculpatory evidence, evidence that would suggest the defense innocence. And an APU violation refers to the prosecution presenting knowingly false testimony. So basically, the Oklahoma Court of Criminal Appeals was basically like, eh, what's the big deal? Sure, the evidence suggests he's a little innocent and some of the evidence was a little false, but in the big scheme of things, it's just the death penalty.

[Leah Littman]

What's that? We hear the Oklahoma Court of Criminal Appeals saying the rules were that you.

[Melissa Murray]

Guys were going to fact check. So that's like the one thing that's the one good thing that's going to come out of that whole debacle is we're going to use that for forever.

[Leah Littman]

Okay, agreed. So the Oklahoma Court of Criminal Appeals also suggested that procedural limits on post conviction relief in Oklahoma state courts meant they couldn't or wouldn't consider Mr. Glossop's claims. The court said Mr. Glossop couldn't present the claim now because the issue could have been presented previously, even though the state had concealed the evidence. But it doesn't have appear that these are what we call adequate, independent grounds for refusing to vacate the conviction because they're bound up with the state court's assessment of the federal constitutional claims. And the state had weighed the procedural limits in any case.

[Kate Shaw]

Just a few other things to note about the case. One is that, as I alluded to a couple minutes ago, Mr. Glossop was part of an Eighth Amendment challenge to method of execution protocols in the case Glossop v. Gross, which is a case in which the court turned away his challenge to Oklahoma's lethal injection protocol and set an insanely high standard for individuals sentenced to death to satisfy if they are challenging the method the state is going to use to execute them. And the fact that yet another major death penalty case involves yet another possibly innocent defendant is yet another indication of serious, serious flaws in our country's administration of the death penalty.

[Leah Littman]

I think this Glossop case has the makings of a. This just cannot be, you know, disagreement among the justices, you know, the division between what I previously referred to as the pro Kafka and the anti Kafka justices. You know, those who just look at something and say these consequences are unacceptable, and those who say no, watch me prove my legal bona fides by basically embracing a totally perverse, unacceptable consequence. You know, so maybe 6, 3, maybe 5, 4, with the chief and Justice Kavanaugh joining with the Democratic appointees, possibly Barrett as well, is kind of what I see, or at least that I hope you're right.

[Kate Shaw]

And I also do think that the fact that you have the Oklahoma prosecutors on the same side as Glossop, represented by a distinguished conservative Supreme Court lawyer, Paul Clement. So the court had to appoint someone to take the other side of the case. Suggest there's, I agree, a good chance that that happens, and it would just be an absolute travesty if it did not.

[Leah Littman]

Yeah. So quickly run through some of the other cases the court will hear this week. Royal Canaan USA vs. WSC is about federal jurisdiction, basically, when you can remove cases from state court to federal court. Then there's Williams versus Washington, an important civil rights case about when you can file a federal civil rights action in federal court, when the state has provided you nominally some other administrative remedy to go through first. And then finally there's Lackey versus versus Stinney, which is about when plaintiffs in civil Rights cases are entitled to attorneys fees because they are the prevailing party when they obtain a preliminary injunction. But then the legislature repeals the statute or scheme that they were challenging.

[Kate Shaw]

So we will try to return to at least some of those cases once they are argued. And now it's time for some court culture and we're going to start with state courts, beginning with some developments from the Arizona Supreme Court. So first, Arizona Supreme Court Justice Robert Brutinel announced his retirement effective later in October, which means that Democratic Governor Katie Hobbs will be in a position to appoint his successor. And notably, two other Arizona Supreme Court justices, Clint Bollock and Catherine Hackett King, are up for retention election. If they lose their retention elections, then Governor Hobbs would also get to make the two appointments that would fill their seats.

[Melissa Murray]

Speaking of those retention elections, if those names Bollock and King sound familiar to you listeners, well, they should because both Justices Bollock and King were among the justices who in a 4, 2 decision issued in April voted to reinstate Arizona's 1864 abortion ban. That's right, 1864. Before Arizona was a state and before women could vote. Side note, only six justices participated in that decision because one justice on the seven member court, Justice Montgomery, was forced to recuse himself when a 2017 f Facebook post in which likened abortion to genocide surfaced unexpectedly. Another side note, if the name Clint Bollock sounds really familiar, you're not crazy, but you have been drinking too many Ginny tonics. Clint Bollock is the former vice president of the Goldwater Institute. He's also a co founder of the Institute for Justice, which incidentally was started with Koch brothers money. He's also a close friend of going back to their days in the Reagan eeoc, Justice Clarence Thomas. In fact, Thomas is the godfather to one of Bollock's children. Another side note, Bock's wife, Shawna Bollock, is a member of the Arizona state legislature and was one of the state legislators with whom Ginni Thomas was ardently messaging about overturning the 2020 presidential election. Amazing. Again, both Bollock and King are up for retention elections in November. Two people who reinstated a 19th century law that women played no role in enacting because democracy, yes, Arizona voters, you have the opportunity to do the absolute funniest thing ever here. Just gonna leave it at that.

[Leah Littman]

Another state court development, which is jurismandering, has expanded to Texas. We discussed the phenomenon of jurismandering in an episode last spring. Basically, it's like gerrymandering for the court. Republicans in a good number of states have modified the rules governing courts in ways that force litigants or certain kinds of litigants to have to file their claims before courts that are staffed with judges who are predisposed to rule against them. And it looks like Texas decided to get in on that game. So Texas governor Greg Abbott created a new state appeals court that hears all civil rights claims. So this was seemingly designed to circumvent the state having to litigate in state courts that might rule against them. The court is going to be fully appointed by Governor A.B. habit seems like kind of a problem under the Texas Constitution, but it went into effect September 1st. And you know, this could be really troublesome for organizations like the Texas Civil Rights Project or lulac, who, you know, are being raided and investigated for election fraud merely by trying to help people vote. And right now, their recourse is that civil rights court or a federal court that will end up in the fifth Circuit, which is a problem.

[Melissa Murray]

I believe the term is fuckery.

[Leah Littman]

Yeah, that also works.

[Melissa Murray]

Now for some positive state court news. Let's hear it for the Peach State. Georgia. A Georgia. Yes, A Georgia state court judge Robert McBurney found that Georgia's six week abortion ban violated the state's constitution and he consequently enjoined it. The decision, which is known as Sister Song, Women of Color, Reproductive job, Justice, Collective vs. Georgia, reasoned that the Georgia constitution protects an individual's ability to choose to have an abortion prior to viability via a right to privacy, or as Judge McBurney puts it, a quote, unquote, liberty to privacy. And here's some key language, quote, because the life act, that's the Georgia six week ban, infringes upon a woman's fundamental rights to make her own health care choices and to decide what happens to her body, with her body and in her body. The act must serve a compelling state interest and be narrowly tailored to achieve that end.

[Kate Shaw]

The opinion is a powerful read. It also said, quote, for these women, the liberty of privacy means that they alone should choose whether they serve as human incubators for the five months leading up to viability. It is not for a legislator, a judge, or a commander from the Handmaid's tale to tell these women what to do with their bodies during this period when the fetus cannot survive outside the womb any more so than society could or should should force them to serve as a human tissue bank or give up a kidney for the benefit of another. The Georgia Supreme Court has previously said the right to privacy in the Georgia Constitution is broader than that contained in the federal Constitution. I have to say, as I was just reading this excerpt, did you. Did it make you wonder whether Melania Trump got an advance copy of this decision and use it to. Did. Have you seen this crazy little excerpt from her novel or her memoir that is circulating?

[Leah Littman]

I can not even engage with that. It is just so woefully insulting.

[Kate Shaw]

It's truly insane. I am just noting that some of the language, which.

[Melissa Murray]

I don't care. Do you?

[Leah Littman]

Yeah, exactly.

[D]

Fine.

[Kate Shaw]

All right, let's move on. I'm noting a few rhetorical notes of flourishes. Rhetorical overlap, yes.

[Leah Littman]

So in other parts of the opinion, like the footnotes, which is always where some good stuff is highlighted, the court decided to fact check claims about originalism, textualism, and democracy. So, quote. Georgia, however, is not just the Peach State, it is also the land of constitutional fecundity. We have had not one or two, but 10 different constitutions. So textualism requires a journey further back in time. If the present constitutional language was imported from a previous version. And that is the case here, that right to liberty dates back to the state's fifth constitution, ratified in 1861. The obvious problem with this interpretive approach, you know, meaning textualism or originalism, is that the plaintiffs whose rights are at issue in this litigation had no or very limited rights when the constitutional provision was adopted. Liberty for white women in Georgia in 1861 did not encompass the right to vote. And of course, liberty did not exist at all for black women in Georgia in 1861. Thus, any rooting around for original public meaning from that era would yield a myopic white male perspective on an issue of greatest salience to women, including women of color, end quote.

[Melissa Murray]

That kind of seems to be the whole point behind originalism. I'm just going to say again, you.

[Leah Littman]

Can hear Sam Ali, the rules were.

[Melissa Murray]

That you guys weren't gonna fact check. Leah. That's right. That seems basically the whole point of originalism. And Too bad Judge McMurray decided to fact check. He also found the statute violated Georgia's equal protection clause because it contained an exception for circumstances where pregnancy endangered a woman's life and physical health, but not in circumstances where a woman's mental health was compromised.

[Leah Littman]

Other notable passage, quote, this leads into the, quote, weird issue of lack of process requ? To obtain these health records. I just like the use of the word weird. This felt like Taylor Swift signing off her endorsement. Childless cat lady, like, kind of a.

[Melissa Murray]

Fuck you, it's an Easter egg. It's kind of an Easter egg.

[Leah Littman]

Exactly. If you're interested in staying abreast of these state court developments and more, I'd encourage you to subscribe to the Brennan Center's state court report, which will have all of these decisions and many more.

[Kate Shaw]

And a quick note on a federal court decision we wanted to flag. This is a district court decision that. That is surprisingly not from a district court in Texas.

[Melissa Murray]

It is from the district, still crappy.

[Kate Shaw]

Of the District of Columbia. Yes, it is an opinion by Judge Trevor McFadden, one of Trump's nominees, who found that the Biden administration violated the National Environmental Policy act when it canceled construction of the border wall and ended the remain in Mexico policy.

[Melissa Murray]

NEPA requires an agency contemplating a major federal action to analyze the environmental effects effects of that proposed action. But weirdly, the Biden administration did not analyze the environmental effects of immigration policies. So strange. And Judge McFadden took that personally. In a real galaxy brain move, he found that this oversight injured Arizona ranchers because the immigration policies harmed the environment, apparently by allowing immigrants to exist, exist on American property, I guess. The judge noted that migrants trespassed onto one of the plaintiff's land, and that was at least part of the environmental impact.

[Leah Littman]

But even if that did impact the environment, it is wild that the judge would attribute this to the Biden administration's policies. Because in order to have standing, the plaintiffs have to show not just that they were injured, but that their injury was caused by the government action they were challenging. And the idea that stopping the construction of the border wall cause migrants to trespass onto the plaintiff's land is utterly bizarre. Same with ending the remain in Mexico policy. But that is literally the testimony of the plaintiffs and what the court relied on. So here is a passage from the court's opinion. Quote, Smith, that is like. One of the plaintiffs who testified noticed striking differences in the volume of illegal immigration between the Trump and Biden administrations. When President Trump was in office, Smith saw the lease track he had ever witnessed on the border in his life. He described those years as the most peaceful time he had experienced. Then things changed, moving on into the Biden administration, end quote. And he had testimony from two former officials, including Rodney Scott, former chief of cbp, who supported the border wall and refused to support the directives to stop using words like illegal alien. The other was Mark Morgan, who's now at the Heritage foundation after serving as acting Commissioner of cbp. He was Trump's pick to be acting Director of Immigrations and Customs Enforcement. You know, so we are still living with the downstream effects of Donald Trump's personnel decisions. This is part of what happens when you staff the government with weirdos. One other note, the Supreme Court granted a bunch of cases, 15 for this term. We're not going to cover them in depth now, but we will once they're scheduled for arguments. Among the big cases is a case brought by Mexico against gun manufacturers for the chaos and devastation and destruction caused by American guns in Mexico. There's a case about access to DNA testing in capital cases. There are some civil rights and non discrimination cases, a Fourth Amendment case and more.

[Kate Shaw]

All right, we'll leave it there. Up next, an interview about the goings on and future of antitrust. But first, we wanted to flag a couple of things.

[Melissa Murray]

Voter registration deadlines are this week in Arkansas, Arizona, Florida, Georgia, Indiana and more. So now is the time to make sure that you, your friends and family are all registered. And you can go and do [e-mail] Vote if you want to get the word out, Votesafe America has great infographics on their Instagram page that you can share. And for those who are willing to do more, VoteSave America has critical volunteer ask if you're in states like Michigan, Pennsylvania, Georgia, North Carolina and Arizona, they need you to sign up to be a poll watcher. Republicans are ramping up attacks on election security in states like Georgia. Trump backed officials want to hand count all of the ballots despite warnings that it breaks state law. So you can go and help out. Sign up with Votes Save America right now@fair fight.com forward/LFGV. This message is paid for by Votes Save America and has not been authorized by any candidate or candidates committee.

[Kate Shaw]

Next thing we wanted to flag for you was today's episode of Assembly Required with Stacy Abrams, where she sits down with national voting rights correspondent and our friend author Ari Berman. They tackle one of the most urgent issues of our time, voting rights. Join them as they dive into what has changed since the last presidential election, uncover the latest threats to voter access and give you the tools you need to push back. New episodes of Assembly Required are available every Thursday. Wherever you get your podcasts.

[Melissa Murray]

Strict scrutiny is brought to you by Cozy Earth. It's really important to find comfort and tranquility in your hectic life. Your 5 to 9 should consist of relaxation, rejuvenation, unwinding and embracing a sense of calm. With Cozy Earth, you can transform your space into an elevated haven where serenity and renewal intertwine effortlessly. Cozy Earth sheets are great for temperature regulation. They're breathable and you'll sleep several degrees cooler. They're made of a durable weave fabric that doesn't pill and it's guaranteed for 10 years. But the ultimate ingredient for a luxurious sleep as we know is softness and Cozy Earth uses only the best fabrics and textiles that enhances a soft, luxurious night's sleep. Cozy Earth prides itself on the responsible production of all of its products, and its Cozy Earth bedding and bath products all have a 10 year warranty. That's how much Cozy Earth believes in their products.

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[Melissa Murray]

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[Leah Littman]

Strict Scrutiny is brought to you by Select Quote. It feels like most of the news we're subjected to 24. Seven is bad or down downright depressing about the future. And let's be clear, that's probably not going away anytime soon. With so much feeling out of our control, the future can feel overwhelming. Regaining control with a life insurance policy is one way to do that. From Select Quote Whether you need $500,000 or $50 million in coverage, the licensed insurance agents at Select Quote work for you to tailor a life insurance policy for your individual needs in as little as 15 minutes. And have you ever worried about getting coverage with a preexisting health condition? Select Quote partners with carriers that provide policies for a variety of health conditions. Select Quote they shop, you save get the right life insurance for you for [e-mail] strict go to SelectQuote.com strict today to get started. That's SelectQuote.com str there has been a lot of talk about antitrust enforcement, in part because of the Biden Administration's efforts under the auspices of the Federal Trade Commission and the Department of Justice's Antitrust Division to curb anti competitive behavior that negatively impacts consumers and the markets. There's been very intensive coverage of Lina Khan's tenure as commissioner of the FT. And in August, the DOJ's antitrust division earned a significant win in a suit against Google, the largest DOJ antitrust enforcement action since the Microsoft lawsuit in the late 1990s and early aughts.

[Melissa Murray]

But the interest in antitrust goes deeper than these recent efforts to enforce antitrust laws and curb anti competitive behavior. Broader questions about how to approach market competition and ensure competitive market markets have divided the conservative legal movement and have given progressives fresh insights into harnessing competition laws to serve social justice ends. To take stock of all of these developments and to help us understand what it all means, we are joined today by some hot shots from the doj. Joining us is Jonathan Cantor, who is the Assistant Attorney General for Antitrust at doj, and Doha Meki Doha is the principal Deputy Assistant Attorney General for the Antitrust division. So welcome, welcome to Strict Scrutiny. Jonathan Andoha, thank you.

[E]

Thank you so much for having us.

[D]

Yeah, we're delighted to be with you.

[Leah Littman]

So you all have been very busy and yet you graciously made time to appear on the podcast as we were talking about just a second ago. In August, after a lengthy bench trial before a Judge Amit Mehta of the District of the District of Columbia, DOJ's Antitrust Division secured a major victory against Google. And this was the first major antitrust lawsuit against a tech to make it to trial in decades. And Judge Mehta ruled that, quote, google is a monopolist and it has acted as one to maintain its monopoly in online searches. Can you give us some background on the theory of the case and your plans going forward to defend DOJ's victory?

[Kate Shaw]

Sure.

[D]

I'll start. So thank you. It's great to be here. This is a really important case in a really important area of law. When the Department of Justice filed the case against Google, it was the first significant monopolization case that the Department of Justice had filed in 20 years, which is remarkable because Section 2 of the Sherman act monopolization is really the cornerstone of antitrust enforcement. And we won the case. It was the second major victory in 50 years, only two, but now it exists against the backdrop of numerous other cases that we filed. And so the case, and it's still live litigation in terms of the remedies. So I'm going to be very careful about what I say and our ability to talk about the case and stick to what's in the court's opinion. But the court was very clear that the company had monopoly power. And the company misused its monopoly power and legally maintained it by engaging in, among other things, contracts and other kinds of restrictions that impacted the ability of its partners to work with other rival search engines.

[Melissa Murray]

Google has been very clear, Jonathan, that it plans to appeal this ruling. And it maintains that its dominance in the online search engine market is because it offers a superior product, one that consumers prefer because it is effective and user friendly. Google's position reflects what some call the Chicago School approach to antitrust. And this is the idea that practices that law might consider anti competitive might actually be good for consumers and competition. And this approach to antitrust was very closely associated with Robert Bork, the Yale law professor, the D.C. circuit judge, and the failed Supreme Court nominee. Bork documented his theories of antitrust in a book called the Antitrust Paradox, in which he criticized the Supreme Court's antitrust jurisprudence and laid a foundation for antitrust theory going forward that really focused on whether, quote, unquote, anti competitive behavior was actually consumer friendly and benefited consumers. The Biden administration's approach to antitrust differs radically from this Chicago School approach. It reflects elements of what some have called the neo Brandesian approach, so.

[Leah Littman]

Or hipster antitrust.

[Melissa Murray]

I like that better. Hipster antitrust. Can you explain this approach for us and how it shapes the administration's priorities in antitrust?

[D]

Sure, I'll start and then turn it over to Doha. But first and foremost, the approach that we take to antitrust is one that's really based on sound application of the antitrust laws and binding precedents. And so we go back to the words of the statute, which talk about preserving competition, protecting the economy against mergers that might substantially lessen competition. And then we go back all the way to the Sherman and Clayton Acts, which were enacted in 1890, 19, 14, respectively, and then updated since, and enforced the law as it's written and as it's been interpreted by courts. I think what happened in the Bork area was there was an attack attempt, without going to Congress, to essentially rewrite the antitrust laws and essentially infuse certain values about efficiency being the sole objective of antitrust law enforcement. And that's never been the case. It wasn't the case when Congress wrote the law, and it hasn't been the case when Supreme Court has interpreted the law. And so we just went back to first principles.

[Leah Littman]

So you brought some textual healing, right? Like the antitrust version of textual healing to antitrust law.

[D]

Love it.

[E]

I think that's one way to put it, but I think it's worth just lingering on this point that Jonathan made, because it's really important. I mean, there are certainly critics of a healthy antitrust enforcement regime, and it's really no secret or mystery why the critics tend to be closely associated with the interests of monopolists and plutocrats. But there is a rich history that supports a robust antitrust enforcement regime. And to the extent that there was anything radical, it's actually what Robert Bork and people who thought the way he did interpreted the law beginning in the 1980s. So when we look to the foundations of the Sherman act, what we see is a very deep concern that the kind of private, coercive power of corporations that the framers of the statute were concerned about was, quote, inconsistent with our form of government. And that's a quote from the floor debate. And it's also important to note that this is a statute, the Sherman act, that was passed in 1890, and I think all but one senator voted to pass it. Right. I mean, this was a, I think, deeply rooted, to borrow some interesting terms, a deeply rooted sense that monopolies are antithetical to our form of government. And again, I would just sort of borrow from the floor debate that Senator Sherman declared that if we'll not endure a king as a political power, we should not endure a king over the production, transportation, and sale of any of the necessities of life. And if we would not submit to an emperor, we should not submit to an autocrat of trade. And so there are these ways in which the kind of open, vibrant markets and economic opportunity, like as a value that are in enshrined in the Sherman act kind of rhyme with our most closely held social, political, and economic ideals.

[Melissa Murray]

It's almost as though there's a history and tradition of not letting corporate interests stick it to the little guy.

[D]

Yeah, it's exactly right. I mean, antitrust law is about standing up to bullies, and it's making sure that people have freedom. Freedom to choose which products and services they want to use, freedom to choose where they want to work, freedom to choose where they want to live. And if you have a great idea, regardless of where you come from and who you are, if you work really hard, you can realize economic prosperity, and that should be available to all. And the idea of monopolies controlling what we see, where we work, how much we can make, and how much we have to pay for things, including, as Doha said, the necessities of life, including housing, groceries, things that allow us to air travel, travel are really important to our way of life and our freedom. And so These are the ideals that animated the creation of the antitrust laws. And these are the ideals that we keep in mind when we enforce the antitrust laws.

[Leah Littman]

So I want to ask a question about freedom in a second, but just to kind of underscore something that both Jonathan and Doha have been talking about, which is the skepticism of consolidated and coercive economic power. Power. I think we did a series of episodes on Project 2025 in which we went through some of the proposals to, for example, give private companies, billionaires, tech Bros. Finance Bros. The power to control nuclear energy. Right. And if you think what could go wrong. Right, exactly. About like the vast amount of wealth that is behind some of these corporate interests. You can see why people like ft, FDR or the creators of the Sherman's act and Clayton act were concerned about such huge, immense, vast capital power competing with government power or being able to influence government power to the extent where, you know, it's difficult to disentangle the two. And that's part of what, you know, antitrust law is designed to remedy. But now my freedom question. So, Jonathan, you spoke very eloquently about how, how enforcing antitrust law enables freedom. I would like one of you to maybe explain how hipster antitrust or the neo Brandisian approach to antitrust could help me get Taylor Swift tickets. That is, I want to be free to be in my Taylor era.

[E]

So it is no mystery that we have brought enforcement actions in a lot of industries where people have firsthand experience about how they're experiencing the market, about the availability of goods and services. And one of our, you know, all of our cases are important to us. We think they're important. They're right on the facts and the law and we love litigating them. But there are certain cases that seem to be more resonant than others. And I think we were really touched to see the public engage with our section 2 monopolization breakup case at against Ticketmaster because it was really a company and experience of the market that needed no introduction. And so this is really, and I should say that's live litigation. So we won't get into the merits of that case because it's playing out in a federal court in New York right now. But again, there's this ability of the public to see, okay, this is how the government is addressing corporate power and it helps connect us to the people that we're entrusted to protect. And I should say we love our sister agency down the street of the Federal Trade Commission. They do really important work. There is A wonderful history and tradition associated with that institution. But there is also a really deep history and tradition in the Justice Department. Right. Like we are a part of the executive branch and all of us take an oath to support and defend the Constitution, to take care that the law is be faithfully executed. And so we're always thinking about the ways in which we wield power with the consent of the governed. Right. And so when people understand what we're doing, when people understand that the government has something to say about coercive power making their lives worse, making their experience of markets worse, I think it helps connect us to the people that we're entrusted to protect. And that's very cool.

[D]

Yeah. And there was an interesting, you know, in the 80s, when antitrust enforcement took a downturn, there was an interesting side effect, which is the evolution of the law.

[Leah Littman]

Right.

[D]

And so antitrust is statutory, but it's a general statute that's often refined by interpretation from courts, including all the way up to the Supreme Court. I think back to law school, and the case books were filled with USV somebody all the way up until the 80s. And then antitrust law casebooks stop, stopped, including as many cases of US v. Somebody, because the US stopped being people as frequently. And it's been over 40 years since we've been to the Supreme Court as the Antitrust Division and the Department of Justice on an antitrust case. And during that period, antitrust law has taken a turn, and that turn has largely been driven by private cases. And as the Department of Justice, we have an obligation, responsibility to make sure that we are vindicating rights of the public. And so private cases are important. Private attorneys general is a feature of the antitrust laws. But private cases are designed to vindicate the rights of private plaintiffs when it's only the United States Department of Justice and the Federal Trade Commission who can step into the shoes on a federal level of the general public. And so it's important that we do that when we see violations of the law.

[Leah Littman]

I like the idea of DOJ being in like a va va voom kind of way. But Jonathan, as you were just saying, antitrust law was really shaped for a pretty extensive period by, as Melissa described, the Bork school of antitrust, which really limited federal antitrust enforcement in the name of insisting that this was really in consumers interests. Conservatives, while historically they have been in keeping with the Chicago school, the Bork school favored less antitrust enforcement. But in recent years, years there has been something of a schism that has emerged, you know, among conservatives with at least a group of conservatives calling for greater enforcement of antitrust laws in at least particular contexts. So what's driving this schism and the interest in antitrust enforcement?

[E]

So this is actually a super interesting phenomenon to observe. And if you'll indulge me for a moment, I'm going to try to explain the roots of what I think is like a realignment on antitrust principles and concern over corporate power. I think that many of us, I consider myself an aging millennial, and so I feel like I've had a front row seat to this problem. Many of us saw the financial crisis, the two tiered recovery, the fact that there was stagnating wage growth, that there was more inequality, that a small number of companies had outsized sort of wealth and success and power, that new business formation had really slowed. And then there's like the massive demand side market failure that's associated with the pandemic. And I think that for many people, watching the economy work less well for them caused them to ask questions. And someone much smarter than me remarked that people look to antitrust when they're uncertain about the future. And so I think there were just more questions about the past power of corporations relative to individuals. And interestingly, I think it's the conservative legal movement that I think was first to question corporate power. And again, we as sitting public officials, it's our obligation to talk to everybody without regard to politics, without fear or favor, and to really engage with citizens of all stripes about their concerns. And we have had occasion to engage to study this concern. And I think it's. The conservative legal movement is coming to antitrust in large part because of concerns about deplatforming, because of concerns about censorship. Personally, I take no position on how real or imagined that may be, but it certainly drives.

[Melissa Murray]

That's okay. We have a position option at Doha. Don't worry. We have a position. Sorry.

[E]

I think it drives a certain kind of legal and political engagement. And one thing we know is that the conservative legal movement is organized. They have an apparatus through different kinds of organizations to really lay intellectual foundations. But to give them some credit, I do think that there is support for this idea that the founders were skeptical of corporations. Right? Corporations were a grant of the king, a common law. And this idea that corporations would participate in our form of governance was something that was deeply questioned. And I think many of our most revered leaders were deeply hostile to the idea. And that's kind of interesting.

[Leah Littman]

Want to give a shout out to Joey Fishkin's and Willie forbaugh's book, the Anti Oligarchy Constitution that really, you know, goes into greater detail about Wood to. You were just saying?

[E]

Exactly. We're big fans of that book.

[Melissa Murray]

Well, I think Joey and Willie in their book make clear that there is no history and tradition of having an emotional support billionaire at the court or being primed for corporate deregulation at the court. But yet here we are.

[D]

Well, your point about regulation is really important because a lot of conservatives are concerned about regulation by the government. Government. But when you're regulated by a corporation, that is far more invasive. There's no due process. You could be taxed in the form of higher prices and fees, junk fees sometimes, and there's no accountability. And so one of the reasons why our society works so well when our economy is competitive is because it gives people the freedom to vote with their feet. Gives the people freedom to say, I don't like what this company stands for. I don't like their products, I don't like their services. I don't like them telling me what to see, think or hear. And so I want to go elsewhere. And those kinds of freedoms are really about our democracy. It's about our way of life. And I was talking at Georgetown this morning at a symposium and dug up some FDR speeches and if you indulge me, I mean, he talked about true individual freedom cannot exist without economic security and independence. He talked about how people should have almost like a new Bill of Rights and the right to a useful and a well paying job, the right to earn and provide adequate food and clothing and recreation for one's family, the right of farmers to sell products and have a reasonable turn on investment to earn a decent living. The right of business is large and small to trade in an atmosphere of freedom from unfair competition and domination by monopolies at home and abroad, and the right of every family to a decent home. These issues resonated then in 1944, but they resonate now. And that's one of the reasons why we're seeing this resurgence in the discussion of antitrust and corporate power.

[Melissa Murray]

It's a really interesting point and sort of linking it to social justice ends. I mean, like this schism within the conservative legal movement is really interesting. Like this idea that having a set of corporate overlords, whether it's big tech or something else, is sort of anathema to conservative principles. Not all conservatives subscribe to that, but it is interesting that there are some who are looking to you and looking to antitrust. Even despite the turn away from Chicago school style antitrust enforcement in order to be able to do that. So that by itself is actually quite interesting. But what you just said, Jonathan, sort of speaks to the effort among young progressives to look at antitrust as perhaps an unexpected vehicle for advancing social justice.

[Kate Shaw]

Ends.

[Melissa Murray]

I say unexpected. I don't think it's unexpected to you, but I think most people growing up and going to law school from the 2000s forward would not necessarily think of antitrust enforcement as a social justice vehicle, at least not in the way that it was taught and purveyed for much of that period.

[D]

Yeah, not when I went to law school, which I'll date myself. I graduated in 1998, but I've had through this position the privilege of visiting with law students across the country. And I've been to over just in the last couple of years, over 20 law schools and business schools across the country. And people are filling up rooms to talk about students are filling up rooms to talk about antitrust. And it's not because they're interested in high paying jobs at big law firms. They're filling up rooms to talk about antitrust because they believe it's important to their way of life. They understand that it matters. They understand that if they want the American dream of being able to work hard and realize prosperity, they need that economic freedom and opportunity. And so it's really exciting. And so one of the things that we're seeing is this growth of interest people coming to work at the Department of Justice. We have some of the most talented, exceptional young lawyers and economists who are coming here because they want to be here. They care deeply about our mission and they believe that what they're doing is important not just to output, not just to prices, but to our way of life. Life.

[Melissa Murray]

It's such a good point. I was at a recent meeting of an if when how chapter and one of the students in the group mentioned antitrust and specifically in the context of religious hospital consolidations. And the question was essentially, you know, is antitrust a useful vehicle for addressing the fact that so many hospitals, especially in rural areas, are consolidating, and they're consolidating under the umbrella of companies like Dignity or Catholic Health Services, which means that all of the hospitals in that area are under that umbrella. And that limits the degree of reproductive care, like tubal ligations, abortion services, contraception, all of that, whether that can be offered because they, those services are in conflict with the tenets of Catholicism. And I thought it was a really interesting question. And this idea that anti. Antitrust might have a relationship to reproductive freedom, I think was one the students had not previously contemplated.

[Leah Littman]

Can I just add one additional potential example? You know, if you think about, for example, Hobby Lobby versus Burwell, where you have a corporation, right, asserting the freedom not to provide their employees with certain forms of reproductive health insurance, right, you can imagine a situation where you have a monopolistic employer, right? Someone with a ton of corporate power, and then people not having the freedom or ability to actually find another employer who would offer them health insurance to cover certain forms of health care.

[E]

I think that's exactly right. And to be unequivocal about it, antitrust has something to say about all of these forms of consumer choice and antitrust. Even Robert Bork, I think, would concede that if he were living, he would concede that there are markets for all of these forms of goods and services. And the really beautiful thing about antitrust is that we as public officials don't have to choose which goods and services are available. If you have robust markets, if you have open, vibrant markets for health care, for information and other sort of necessities of life, you can make those choices for yourself and pick what kind of health care works for you and for your family.

[Leah Littman]

So just in thinking about the kind of political through lines, through a potential Fisher or, you know, realignment in antitrust law, you know, as both you and Jonathan are describing the kind of underpinnings of antitrust law, I do hear a lot of resonance with progressive principles. You know, being skeptical of too much consolidated power, being skeptical of domination, wanting to ensure that important decisions are made through institutions that are representative, care about the public interest, are made with due process. And so I hear all of that. And yet maybe this is because I too am an aging millennial doha, but I am used to the conservative legal movement always pressing this idea of freedom from government regulation and that anything that is structured by the economy is just insulated from government power. While progressives respond that like, okay, you say we should just leave it to the free market, but markets aren't free. The way markets look are structured by the laws that we have or sometimes the absence of laws. And while I have seen some of the calls from Republican Party officials as well as the conservative legal movement against big Tech and woke capital, when those institutions are perceived as being hostile to the Republican Party interest, I guess, is that debate within the Republican Party leading to a movement toward broader government intervention writ large outside the context of antitrust or, you know, anything else that you are seeing or observing as far as potentially revisiting, you know, some of the principles that I guess I had associated with the Republican Party.

[D]

You know, we focus on antitrust. But to your point that, you know, there a lot of the issues that you just raised are symptoms of a problem, a problem of people not feeling like they have control over their lives and that there's an unaccountable entity who is making decisions for them. And if you're. I think back to a conversation I had with a friend of mine who is very conservative in his philosophy but is pro antitrust enforcement. This might be 10 plus years ago. It is when I first realized that there was some. Some overlap. And what he told me was that he's opposed to concentration of power. And whether that's government power or corporate power, the decentralization of power and the deconcentration of power and freedom go hand in hand. And it was enlightening to me because it made me appreciate that we might all come at this from different points of view, but there are certain underlying principles that you can string throughout. The other thing I will point out is that in the 1980s, antitrust became almost like the foot in the door for a broader movement about law and economics and a broader movement to infuse certain ideas about efficiency and deference to companies and corporations. There's a great book by Binya Appelbaum called the Economist's. He talks about how a lot of the economists used to be in basement of government agencies and then they all got the big corner offices and there were some. Again, the antitrust division relies on some of the most talented and brilliant economists. And economics has made a lot of strides and we think there's a lot of value and benefit to working closely with economists. But I think this sort of brand of economic philosophy that was sort of led in through antitrust became infused throughout government. And I think as we think about, okay, what is the right way to think about our economy? What is the right way to think about the relationship between economy and freedom and justice? We need to sort of think about. It's not surprising to me that antitrust is becoming a focal point and a vehicle for that conversation.

[E]

I mean, this idea that government has nothing to say about markets is such a joke, right? Government policy helps structure markets. And even if that were up to like reasonable debate, I mean, markets exist to serve people. People don't exist to serve markets.

[D]

Right.

[E]

Just like as a threshold issue. Second, I mean, you mentioned your series on Project 2025. What is Project 2025 if not a program to use the levers of government power to structure the lives of Americans. And so, you know, that is why Jonathan's point about being, you know, averse to concentrations of power in many different forms is a really important one. And I think it's actually a good uniting principle, you know, to go back to the point about antitrust being an important tool for people of all stripes, including young progressives. I mean, there are roots for supporting antitrust that you can see in the civil rights movement. Right. You see MLK and Baird Rustin saying in the 1950s and 60s that the limit they. They viewed their gains in terms of political rights as being limited if they were not backstopped by economic rights. MLK was assassinated, getting ready to stand in solidarity with sanitation workers in Memphis. That was about economic coordination, rights. And so you see those principles infused in the civil rights era. And it is really interesting to observe that the conservative legal movement that grew to distrust government intervention was really upset about judges. Right? They were upset. Robert Bork wrote at length in the Antitrust Paradox, as you pointed out, about what they saw as a form of judicial activism. And it's interesting to see how that dovetailed with another conservative legal movement critique of the time that the Warren and Berger courts had engaged in activism to expand social and political rights.

[D]

Ironically, a lot of what we're promoting is reducing activism, judicial activism in the context of antitrust. We're saying, go back to the statute, go back to the original intent of the antitrust laws, go back to the binding Supreme Court precedent. And I think a lot of the Chicago school movement was about taking new principles and trying to, almost through activism, rewrite the antitrust laws without going to Congress.

[Melissa Murray]

That's actually a really good place to start because there has been no court that says more about judicial restraint, but doesn't really practice it than this particular Supreme Court. We're a Supreme Court podcast, and although we don't talk a lot about antitrust, we have had some antitrust cases pop up over the last couple of terms. And so before we let you go, we thought we'd get your take on the court's most recent antitrust case, NCAA vs. Alston. There was majority opinion from Justice Gorsuch and a banger of a concurrence with Coach Kavanaugh that actually led to Reggie Bush getting his Heisman Trophy back. So might be the first time Brett Kavanaugh has had a salutary social effect. Amazing.

[D]

Yeah, Doha should jump in this. And the reason I jumped in is because Doha is the world's leading expert on the intersection between labor and antitrust and was the person in this country most responsible for reviving the intersection between labor and antitrust and has built out our labor antitrust enforcement program and is the most expert person in the entire world on this issue. And so I wanted to make sure everyone understood that the words you hear from her are going to be extraordinarily meaningful.

[Melissa Murray]

Doha I was going to say, I thought maybe Jonathan was going to say you were the foremost expert on the intersection of Richard Bush and Brett Kavanaugh. That seems not to be the case. So why don't you tell us about your work infusing labor or integrating labor law and antitrust.

[E]

So let me say, Jonathan, I think is overly generous and very kind. It is true that labor and antitrust is very near and dear to my heart. And I spent many years thinking about the ways that the antitrust laws should be brought to bear in labor markets to make sure that working people had the same kinds of opportunities that we want consumers to have when they go to the grocery store or try to buy a house. NCAA v. Alston is really meaningful, and I think it's an early inflection point in the sort of set of events that get people, especially young people, excited about antitrust. The NCAA for many, many years essentially operated a cartel whereby they sent set the price of college athletes labor at zero. And there is incredible literature and research about college athletes going hungry because it turns out when they are, when you're a Division 1 college basketball or football player, maybe you need 4,000 calories a day. And the NCAA wasn't supporting meal plans to get them the food that they needed in order to be college athletes. And of course, at the same time, the NCAA was a billion dollar organization. I think many people have observed also that the victims of this cartel tended to be black and brown athletes. And so this had not been questioned since an older Supreme Court opinion called Board of regents. And for 30 years, the tyranny of this really persisted. But a private action made it all the way up to the Supreme Supreme Court. And finally you had nine votes saying price fixing labor is price fixing that has been illegal in this country for over 100 years. And it's this really lovely moment where you get uniformity in the court about how wrong this is, right? When this principle had not been questioned for 30 to 40 years. And I think you guys have spoken in ways that are compelling about court actions that we find disappointing as citizens. But this was really a bright spot and a moment to rejoice thank you.

[Leah Littman]

So much, Doha and Jonathan for joining us and for bringing more antitrust law into legal culture and more being on behalf of the federal government as well.

[D]

Thank you for having us. We will v away.

[E]

Thank you so much. This is great.

[Leah Littman]

Strict Scrutiny is a crooked media production hosted and executive produced by me, Leah Lit, Melissa Murray and Kate Shaw. Produced and edited by Melody Rowell. Michael Goldsmith is our associate producer. Audio support from Kyle Seglin and Charlotte Landis. Music by Eddie Cooper Production support for Madeline Herringer and ari Schwartz. Matt DeGroote is our head of production. And thanks to our digital team, Phoebe Bradford and Joe Matoski. Subscribe to strict scrutiny on YouTube. To catch full episodes, find [e-mail] trickscrutinypodcast if you haven't already, be sure to subscribe to Strict Scrutiny in your favorite podcast app so you never miss an episode. And if you want to help other people find the show, please rate and review us. It really helps.

[Melissa Murray]

Every weekday, NPR's best political reporters come to you on the NPR Politics Podcast to explain the big news coming out of Washington, the campaign trail, and be beyond. And they don't just tell you what happened, they tell you why it matters and how it might impact you. So join the NPR Politics Podcast every single afternoon to understand the world through political eyes. NPR Politics Podcast Wherever you listen to podcasts, true crime podcasts, there is no shortage to consume. And if you're like me, you've consumed them all. I'm Ashley Flowers, creator and host of the number one true crime podcast, Crime Junkie. Every Monday, we cover a case in a way that's not like you've heard.

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[D]

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