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

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."

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."

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."

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."

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.

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.

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.