"Ghost Guns" are Guns (Duh)

Summary

Strict Scrutiny Podcast Summary
Episode: "Ghost Guns" are Guns (Duh)
Release Date: October 14, 2024
Hosts: Leah Litman, Kate Shaw, Melissa Murray
Producer: Crooked Media

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Introduction

In this episode of Strict Scrutiny, hosts Leah Litman, Kate Shaw, and Melissa Murray delve into the intricate world of Supreme Court jurisprudence, focusing primarily on the contentious issue of "ghost guns" and their regulation. Throughout the discussion, the hosts explore recent Supreme Court decisions, ongoing legal battles, and the broader implications these rulings have on American legal culture and daily life.

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Breaking News

1. Moyle Case and Abortion Rights

The hosts begin by revisiting the Moyle case, which centers on whether the Emergency Medical Treatment and Active Labor Act (EMTALA) prevents states from banning medically necessary abortions. Initially, the Supreme Court declined to decide the case, leading some media outlets to prematurely announce it as a victory for abortion rights. However, Strict Scrutiny clarifies that the Court's refusal to grant certiorari left the lower court's ruling in place, which favored Idaho's extreme abortion ban.

Notable Quote:
Leah Litman [03:33]: "Net neutrality dunno her."

The hosts discuss the recent development where a similar case from Texas was brought before the Supreme Court. In an unsigned order, the Court allowed Texas to enforce its stringent abortion law, mirroring Idaho's stance and further complicating the landscape of abortion rights in states with severe restrictions.

Notable Quote:
Kate Shaw [05:31]: "Shame on them."

2. Alabama's Wrongful Death Statute and Fertilized Embryos

Another significant development discussed is the Supreme Court's denial of certiorari in a case challenging Alabama’s classification of fertilized embryos as "extrauterine children" under the state's wrongful death statute. This decision underscores the Court's reluctance to intervene in state-specific personhood laws, despite widespread concerns about fetal rights.

Notable Quote:
Melissa Murray [08:24]: "It's just dripping with disdain."

3. Jonathan Mitchell's Anti-Abortion Case

The podcast also covers an update on Jonathan Mitchell's case, where an ex-husband sued individuals he alleged assisted in procuring a medication abortion for his wife. The case was dismissed after the court refused to compel the production of evidence, raising alarming questions about the potential resurgence of outdated laws like the Comstock Act being used to target abortion providers.

Notable Quote:
Melissa Murray [10:47]: "That case was also really fetal Personhood curious as well."

4. FBI Investigation into Brett Kavanaugh's Allegations

A critical examination is made of a new report released by Senator Sheldon Whitehouse, which alleges that the FBI's supplemental investigation into Brett Kavanaugh's sexual assault accusations was fundamentally flawed. The report claims that the FBI, under the Trump administration, failed to thoroughly investigate key witnesses, leading to insufficient evidence to corroborate Dr. Christine Blasey Ford's claims.

Notable Quote:
Melissa Murray [12:30]: "And yep, despite all of those deficiencies, multiple senators cited the investigations failure to produce corroborating evidence of sexual assault as a reason that they could comfortably vote for Brett Kavanaugh."

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Supreme Court Case Recaps

1. Williams vs. Washington: Federal Civil Rights Claims in State Courts [17:50]

Williams vs. Washington addresses whether plaintiffs must exhaust state administrative remedies before filing federal civil rights claims under Section 1983 in state courts. The Supreme Court reaffirmed previous rulings that such exhaustion is not required, reinforcing the accessibility of federal civil rights protections regardless of state-level administrative processes.

Notable Quote:
Melissa Murray [18:16]: "There also didn't seem to be a whole lot of palpable warmth between the justices on the bench during this first oral argument of the term."

2. Glossop v. Oklahoma: Death Penalty and Prosecutorial Misconduct [34:50]

In Glossop v. Oklahoma, the Court examined whether prosecutors' elicitation of perjured testimony and failure to disclose exculpatory evidence warrant a new trial for a defendant facing the death penalty. The hosts express concern over the Court's handling of prosecutorial accountability, fearing that a majority may overlook constitutional violations in pursuit of maintaining the death penalty's integrity.

Notable Quote:
Leah Litman [36:48]: "The Supreme Court is literally deliberating over whether when prosecutors elicit perjured testimony, refuse to disclose exculpatory material, then admit their error, can state courts nonetheless force the state to execute a potentially innocent person?"

3. Garland vs. Van der Stock: Regulation of Ghost Guns [23:41]

The central focus of the episode is Garland vs. Van der Stock, a Supreme Court case scrutinizing the Bureau of Alcohol, Tobacco, Firearms and Explosives' (ATF) authority to regulate ghost guns—firearms assembled from kits without serial numbers. The hosts debate whether ghost guns fall under the statutory definition of firearms and the implications for gun control legislation.

Key Discussion Points:

• Solicitor General Prelogger's Argument: Comparing ghost gun kits to IKEA furniture flat packs, suggesting that disassembled items are not inherently classified as functional products until assembled.

  Notable Quote:
  Justice Kagan [27:51]: "So what level of expertise is taken into account?... Some of us who are not and don't have a lot of mechanical ability have spent hours and hours and hours trying to assemble things that we've purchased."

• Justice Alito's Counterargument: Emphasizing the intended use of components in ghost gun kits as instruments of combat, thereby categorizing them as firearms under existing law.

  Notable Quote:
  Justice Alito [28:24]: "The key difference here is that these weapon parts kits are designed and intended to be used as instruments of combat, and they have no other conceivable use."

The hosts express optimism that the Court may uphold ATF regulations on ghost guns, diverging from previous rulings like Garland vs. Cargill, which struck down ATF regulations on bump stocks.

Notable Quote:
Leah Litman [31:13]: "This statute literally defines firearms to include items that can readily be converted into firearms. And that is exactly what a ghost gun kit does."

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Supreme Court Dynamics and Amicus Briefs

The episode delves into the influence of amicus briefs on Supreme Court decisions, particularly highlighting concerns over their role in shaping case outcomes without stringent checks on their factual accuracy.

Notable Quotes:
Leah Litman [43:20]: "It's such a terrific point, especially when you layer on, like, there are so few checks for amicus briefs."

Chief Justice [45:12]: "If you can file an amicus brief at the Supreme Court... get a, you know, good amicus brief, file it in the Supreme Court, and that is the most expeditious and efficacious way to actually change the law and to change policy."

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Upcoming Cases and Closing Remarks

The hosts briefly touch upon upcoming Supreme Court cases, including a RICO (Racketeer Influenced and Corrupt Organizations Act) case, an immigration case, veterans' benefits, and an important environmental case involving the EPA and the City and County of San Francisco. They emphasize the ongoing influence of election-related litigation and its potential to shape post-election legal challenges.

Additionally, a correction is made regarding previous misinformation about raids on the Texas Civil Rights Project, clarifying that the organization was not subjected to such investigations.

Notable Quote:
Leah Litman [51:20]: "The Texas Civil Rights Project has not been raided and is not under investigation."

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Conclusion

Strict Scrutiny wraps up with acknowledgments of production staff and encouragement for listeners to subscribe and review the podcast. The hosts reiterate the significance of staying informed about Supreme Court actions and their far-reaching impacts on American society.

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Notable Throughout the Episode:

• Election Reminders: The hosts urge listeners to ensure they are registered to vote and to encourage their community to participate, emphasizing the critical influence of upcoming elections on Supreme Court decisions.

  Notable Quote:
  Leah Litman [01:25]: "We are less than one month out from the November election... make sure you are registered to vote."

• Humorous Interjections: The hosts maintain an irreverent tone, often interjecting humor and personal anecdotes to keep the analysis engaging.

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Final Thoughts

This episode of Strict Scrutiny provides a thorough examination of pressing Supreme Court cases, particularly focusing on the regulation of ghost guns. The hosts balance detailed legal analysis with accessible commentary, making complex judicial decisions understandable and relevant to everyday life. By highlighting the interplay between federal laws, state regulations, and Supreme Court interpretations, the episode underscores the profound impact of judicial rulings on civil rights, reproductive rights, and gun control in the United States.

Transcript

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[Chief Justice]

Mr. Chief justice, it's pleased the court.

[Leah Litman]

It's an old joke, but when I argue, a man argues against two beautiful.

[Chief Justice]

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

[Leah Litman]

She spoke not elegantly, but with unmistakable clarity. She said, I ask no favor for my sexual All I ask of our brethren is that they take their feet off our necks.

[Melissa Murray]

Hello and welcome back to Strict Scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it. We're your hosts. I'm Melissa Murray.

[Leah Litman]

I'm Leah Litman.

[Chief Justice]

And I'm Kate Shaw. And newsflash, we are less than one month out from the November election, which, you know, if you haven't been living under a rock. But if you are listening to this podcast, we need you to do a couple of things. First, we need you to make sure you are registered to vote. And second, we need you to check in with your friends, your book club, your swim team, your yoga instructor, all.

[Leah Litman]

Your people, your physical therapist, your pt.

[Chief Justice]

Your actual therapist, everyone, all of them. And make sure that if they are eligible to vote, they are registered to vote. Deadlines are coming up fast in a lot of places. They have already passed in a few states. In Pennsylvania, where I teach these days, the deadline to register to vote is October 21st. So in a lot of places, you still have time to have big impact. And please, please make sure you do not miss that opportunity. We're begging you.

[Melissa Murray]

We're also halfway through the court's October sitting, so if that doesn't bestir you to go check your registration, I don't know what will.

[Leah Litman]

Wait until you hear what these guys think about executing potential innocent people.

[Kate Shaw]

Right?

[Melissa Murray]

Like, and you want to vote.

[Leah Litman]

You really do.

[Melissa Murray]

You really do. So here's how this episode's going to run. We are going to break down some breaking news, and then we're going to recap the big arguments that the court heard last week, and then we'll briefly look ahead to what's on deck for this week. So first, breaking news.

[Leah Litman]

So remember Moyle last term's EMTALA case? The case about whether the Emergency Medical Treatment and Active labor act forbids states from prohibiting hospitals from providing medically necessary abortions. Where the court punted and said that it had granted certiorari improvidently and therefore didn't decide the case. Remember when some folks in the media said this was a big win for abortion rights? Remember when we called it bullshit and told you not to believe it? Well, the plot has thickened. So the question in Moyle again was whether a federal law which requires hospitals that receive federal funds to provide emergency care to pregnant patients in crisis, applied even in states with extreme abortion bans. Idaho said the federal law doesn't apply. Supremacy of federal law dunno her.

[Melissa Murray]

And the Supreme Court initially sided with Idaho, staying a district court opinion and letting Idaho enforce its extreme ban regardless of federal law and regardless of the threat to a pregnant patient's health, leading women in that state to routinely being airlifted out of Idaho to get the necessary abortion care. The court ultimately decided that it had intervened too early in the case. We could have told them that, and they then sent it back. But we warned you that this might be no more than the court finally getting that abortion was a salient electoral issue. And this happens to be an election year. And so perhaps this decision to send back as improvidently granted was really just a punt designed to minimize the impact of abortion and this decision in the electoral cycle and in our politics, the.

[Leah Litman]

Passive vices of the Supreme Court, I.

[Melissa Murray]

Mean, neutral virtues as they were anyway. Well, listeners, a nearly identical case was back at the court last week, though this time it was Texas rather than Idaho, trying to enforce its extreme abortion law, notwithstanding the impact of federal law. And in an unsigned order, one of the many that the court issued last week, the court again allowed a state to defy federal law and enforce its draconian abortion ban. So let's just break this down. The court is willing to intervene to block a lower court opinion when the lower court acts to respect federal law and protect pregnant patients in Idaho. But the court stays hands off and leaves the status quo intact when the lower court allows a state abortion ban to Trump said federal law, I think I get it now.

[Leah Litman]

What is it like? Fool me once, fool me twice, et cetera, et cetera.

[Melissa Murray]

Just keep fooling me with your 6 to 3 conservative supermajority, right? Yeah, have your way with us.

[Chief Justice]

Shame on them. In all events, and to be clear, the federal government here was actually just asking the court for what's called a gvr, a grant, vacate and remand. So they were asking for an order in which the court grants cert, but then vacates the decision below and rather than hearing arguments on the merits, remands the case for further proceedings below. So the federal, federal government was just asking the Supreme Court to tell the lower courts to take another look at this, this question in light of Moyle and in particular in light of the federal government's concession at oral argument that individual doctors can lodge conscience objections in circumstances where they do not want to be compelled to provide abortion care. And the court's refusal to even grant that modest ask. Right. A GVR in light of the dig in MO and the opinions that were written in mo, I think sends an incredibly ominous signal about what the court is likely to do when the question is back before the justices in a non election year or maybe, I don't know, later this year after the election.

[Melissa Murray]

So they've now had two literally on November 6th.

[Chief Justice]

Well, well, I think so in terms of the timing they, you know, they have had.

[Melissa Murray]

I'm just kidding.

[Chief Justice]

It's not November.

[Leah Litman]

No. But it'll be November 7th.

[Chief Justice]

Right. So they have had two chances to clarify that pregnant patients are entitled to care under emtala. They have declined to do that both times. So I think that is with a really important kind of top line. In the near term, the decision will compound the horror that is a medically complicated pregnancy in the state of Texas. So remember, the Texas Supreme Court in the Zyrowski case made clear that the medical exception in state law is essentially meaningless and now ers can't even abide by federal standards when pregnant patients show up in acute distress. It is appalling. But in terms of like when this may be back before SCOTUS. So no, it won't be November 6th or 7th, but it could be kind of fast. Probably not out of Texas, but out of Idaho. Because in The Idaho case, Mo actually the the on bank 9th Circuit is in the midst of getting briefs and has scheduled oral arguments for the week of December 9th. So the Texas case actually will probably involve a remand to the district court and I'm not sure when that one will be back, but it seems like Moyle could be back in front of the Supreme Court as early as, you know, the first couple of months of 2025, at least with a petition pending.

[Leah Litman]

I know what Sam Alito's New Year's resolution is. I've got a guess now suspend the protections of EMTALA nationwide.

[Chief Justice]

Yeah.

[Leah Litman]

Yeah.

[Chief Justice]

So I guess Idaho. I was just stopping to think whether he would have a preference as between the two, it doesn't really matter. He would like to make sure that no one in any state gets the best.

[Melissa Murray]

You say Idaho potato, I say Texas potato. Like it won't really matter. It won't really matter. In other news, the court also denied certiorari in an appeal of the Alabama Supreme Court's decision holding that fertilized embryos are extra uterine children for purposes of Alabama's wrongful death sentence.

[Chief Justice]

Melissa, I truly love the way you say extrauterine in children.

[Melissa Murray]

It's just, let me say it again.

[Chief Justice]

I want it as my ringtone.

[Leah Litman]

Yeah, it's just like dripping with disdain. It is. It's very apparent.

[Melissa Murray]

I mean, you can drip with SWAGU or drip with disdain. I prefer disdain in the case of extrauterine children. In any event, the Alabama Supreme Court, if you will recall, issued a decision in which it said that fertilized embryos are extrauterine children for purposes of Alabama's wrongful death statute. And when that came down, we were all, I think, rightfully shocked by the Alabama Supreme Court's very, very fetal personhood curious stance. But the issue here really presented a number of issues that are really questions of state law. So it wasn't that surprising that the Supreme Court denied this petition for review. But again, just another reminder that Fetal Personhood Watch is really on and it's coming. So stay tuned.

[Leah Litman]

On that beat, we have an update on one of the anti abortion cases brought by Jonathan Mitchell. This is the case filed by the ex husband after, you know, the wife obtained medication abortion. The ex husband sued the people he said helped his wife procure an abortion. And the plaintiff in the case, the ex husband, dismissed the case after the court refused to compel the production of evidence the plaintiff had sought, including where they got the abortion, medication and whatnot. And that's a good result to be clear. But the reasoning in the case is a little scary. So the court refused to compel production of the evidence in part because it suggested doing so might cause the parties to incriminate themselves by indicating they violated, wait for it, the Comstock act by distributing medication abortion through the mail. So that's scary, right? This is a court suggesting that there is a chance the Comstock act, the 1873 Victorian Anti Vice law, does in fact prohibit the distribution of medication abortion through the males and functions as, again, an abortion ban that is already on the books that a Republican administration could begin enforcing without Congress having to pass a new law or at least try to do so.

[Melissa Murray]

That case was also really fetal Personhood curious as well, because you'll recall that Texas already has the Heartbeat act, which is the bounty hunter law that allows private parties to sue other citizens for helping someone to get an abortion. So that law could have been used here, but instead, Jonathan Mitchell and the ex husband actually filed suit under Texas's wrongful death statute. And that was really important because a wrongful death statute only applies in circumstances where a person has been killed. So the idea here is that the provision of medication, abortion that these women helped the pregnant person get was the homicide of the fetus and the fetus as a person for whom the husband can now recover in wrongful death. So layers. There are layers to this stuff.

[Chief Justice]

Well, it's. It's scary in its inception. And the era that we are in is one in which even a good outcome or result in a particular case is fucking terrifying.

[Melissa Murray]

As the case here when you're like, you're happy about the Comstock, right? But also not happy, that's where we are.

[Chief Justice]

I know, I know. So, okay. In other news, last week, friend of the pod Senator Sheldon Whiteboard White House issued a report, evidently six years in the making, about the FBI's investigation, or really, as the report tells it, non investigation, of the sexual assault allegations made against Brett Kavanaugh. As listeners will, I'm sure, remember, Dr. Christine Blasey Ford accused Kavanaugh of attempting to sexually assault her when they were both high school students. After she testified, the Senate Judiciary Committee asked the FBI to conduct a supplemental background investigation into these allegations and some others, adjourning the hearing to ostensibly allow the FBI to investigate, except that the.

[Melissa Murray]

Report suggests that the investigation was kind of a sham. According to the report, the Trump White House prevented the FBI from investigating witnesses and following up on those leads. It says that the FBI set up a tip line, but then all of those thousands of tips went directly to the White House, and the FBI never investigated any of them. And yep, despite all of those deficiencies, multiple senators cited the investigations failure to produce corroborating evidence of sexual assault as a reason that they could comfortably vote for Brett Kavanaugh. And that, listeners, is how we got the fifth vote to overturn Roe versus Wade. So good work, fellas. Absolutely legendary.

[Leah Litman]

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[Chief Justice]

And in general terms, the kind of theory at the heart of this case is one that could pose a genuine threat to civil rights enforcement. Right? Section 1983 is an incredibly important vehicle for the protection of rights, and ruling for Alabama, which was the state here, could give states permission and perverse incentives to erect all kinds of procedures that litigants would have to pursue before filing a claim in court. Luckily, though, there really didn't seem to be a majority on the court inclined to rule for the state here.

[Melissa Murray]

There also didn't seem to be a whole lot of palpable warmth between the justices on the bench during this first oral argument of the term. So if you were wondering whether absence from Samuel Alito has made anyone's heart grow fonder for the gentleman, I think the answer is a resounding ABSA fucking not ceg this Sam Alito effort to make nice with Justice Kagan and her. Shall I say it? Chilly response. Roll the tape.

[Kate Shaw]

Can I ask about the dimensions of your argument? In two different ways. I'll give you just a couple of hypotheticals.

[Chief Justice]

Here is a right of appeal.

[Justice Kagan]

I don't want to derail Justice Kagan, I think had a number of hypotheticals, but. So I don't want to interrupt that. But then eventually I do want to ask you about Mr. Yanikowski's narrow argument. Did you?

[Kate Shaw]

It doesn't matter which way we do it.

[Chief Justice]

Okay.

[Melissa Murray]

Translation? Shoot your shot, ace. I'm going to pay you in dust.

[Leah Litman]

Elena Kagan pouring one out for all the women who do not aspire to be humble as against Sam Alito. That was a reference to, if you haven't listened to it, Vice President Harris's interview with Alex Cooper on Alex Cooper's podcast, Call Her Daddy. It's a fantastic interview. Definitely. Go listen to it. But in the podcast, Alex asked Vice President Harris about remarks that, you know, Vice President Harris didn't have any children, keeping her humble.

[Melissa Murray]

And Sarah Huckabee Sanders, I think you're referring to the governor of Arkansas said that.

[Leah Litman]

Yeah, the one who wants to send children to the mines. Yeah. She was asked about her remarks and Vice President Harris had some things to say about it. So that's that. Anyways, so on the first day of the term, the court heard another civil rights case, Lackey vs. Stinney. This case presents multiple circuit splits on an important issue, which is whether a plaintiff who obtains only a preliminary injunction is a prevailing party entitled to attorney's fees. A Federal Law § 1988 and other federal civil rights statutes provide that parties who prevail in federal civil rights actions may be entitled to attorney's fees. The question here is whether to be a prevailing party for purposes of the civil rights statutes, you have to obtain a final favorable ruling from a court, such as a judgment on the merits or a court ordered consent decree, as opposed to here, what the plaintiff's got a preliminary injunction which indicates that you are likely to prevail on the merits. There's one more wrinkle here, which is the plaintiffs challenged a Virginia fines and fees scheme and were granted a preliminary injunction. But while the case was pending, after the litigants prevailed in their request for a preliminary injunction, the Virginia state legislature, at the urging of state officials, repealed the fines and fees scheme that the plaintiffs had challenged. So that further complicates the question of whether the plaintiffs are prevailing parties. Entitled to attorneys fees.

[Melissa Murray]

In our last episode, we also briefly flagged Royal Canaan, a case about federal jurisdiction. And we're not going to go into a whole lot of detail about it, but it did seem from the oral argument that it was very likely that the respondent in the case was going to prevail. Which is to say that the court seems very likely to say that when a plaintiff amends their complaint to take out a federal claim, the case isn't removable. So there was this really interesting exchange with the respondents lawyer that we did want to highlight just for kicks. So let's roll the tape, counsel.

[Leah Litman]

We have had cases where we came out the other way than every court of appeals. It can't come out right. Yes, you have, Mr. Chief Justice.

[Justice Kagan]

Like what I think there are. That's a great question.

[Leah Litman]

And none spring.

[Justice Kagan]

To mind, but I am positive that I could find some.

[Leah Litman]

Well, I mean it's pretty bold to take the position without knowing one fair mayor. Was that the case in Chadha, INS versus Chada? Yes.

[Justice Kagan]

I don't know.

[Leah Litman]

I apologize.

[Justice Alito]

Somebody will check.

[Kate Shaw]

I just, Gosh, I'm not sure which way that cuts.

[Leah Litman]

I love the idea of just confidently asserting a proposition to the Supreme Court when you don't actually have any examples to substantiate it.

[Melissa Murray]

Oh, but somebody will check.

[Leah Litman]

Oh, somebody will check. I mean, of course there are examples, right? Like this describes like Rahaf and whatnot. But it's just like, you know, find sight here is basically the attitude that the litigant took in front of the Supreme Court. And I guess I just wanted to step back. You know, we're kind of a month into law school. You know, there are first years who are just kind of getting their bearings. And I know it oftentimes seems like the people who are speaking quickly, confidently, right, with like punchy turns of phrases and whatnot, they're the ones getting all of this. No, not necessarily. Right. Like that is one skill. There are many, many, many other skills that go into reading excellent lawyer reading, researching, taking notes, making shit up. The list goes on. So just wanted to kind of step back and make that note for the law students in the audience.

[Chief Justice]

All right, so moving on to one of the big cases that we wanted to talk about from last week and that is Garland versus Van der Stock, the case about whether the ATF has the authority to regulate ghost guns like any other firearms. We struck a fairly pessimistic note about this case last week when we predicted that the case might well go the way of Garland versus Cargill, which was a case that last term struck down an ATF regulation of bump stocks. And I am delighted to report that we may well have been wrong in our pessimism. When we're wrong, we say we're wrong.

[Justice Alito]

Wait.

[Melissa Murray]

Yeah.

[Leah Litman]

Yeah. So I'm not totally sure we predicted that, given that we noted that the court had stayed lower court decisions putting it on hold. And I'm also unwilling to just take from the argument that this is definitely what the court is going to do, although I think it is more likely than not that they uphold the regulation. Sorry, Melissa, did you want to.

[Melissa Murray]

Well, we'll get to this. Like. So I'm happy to be wrong on this, but I think it's still too early to say that we were totally wrong on this one. So let's see. And again, the devil is in the details.

[Chief Justice]

Really?

[Melissa Murray]

Clarence Thomas is in the details.

[Leah Litman]

So, yeah, it turns out. So Solicitor General Prelogger argued the case herself on behalf of the federal government. You know, somewhat interesting because her deputy, Brian Fletcher, had handled Cargill, although, of course, she had argued the big Second Amendment case, Rahimi. And while she is always excellent, she did seem to once again transcend to a higher plane of advocacy during this argument.

[Chief Justice]

How many more planes are there, do.

[Melissa Murray]

We think we have highlighted before all of the ways that Solicitor General Prelogger has perhaps turned Justice Alito into a communist because he seems to have no trouble getting publicly owned by her on a regular basis. And this argument was absolutely no exception. So let's roll the tape. Paragraph.

[Justice Kagan]

No, I want to stick with the definition of weapon for just a second.

[Justice Alito]

Oh, sure.

[Justice Kagan]

I'm going to show you. Here's a. Here's a blank pad, and here's a pen. All right. Is this a grocery list?

[Justice Alito]

I don't think that that's a grocery list, but the reason for that is because there are a lot of things you could use those products for to create something other than a grocery list.

[Justice Kagan]

I show you. I put out on a counter some eggs, some chopped up ham, some chopped up pepper and onions. Is that a Western omelet?

[Justice Alito]

No, because again, those items have well known other uses to become something other than an omelet. The key difference here is that these weapon parts kits are designed and intended to be used as instruments of combat, and they have no other conceivable use.

[Melissa Murray]

Shorter. Prelogger. My dude, do you even know what an omelet is like?

[Leah Litman]

Is this place consuming raw eggs and vegetables every morning? And that's why he's so Pinky.

[Melissa Murray]

When he gets on the bed doing.

[Chief Justice]

P90, I just loved. Right? So he's clearly in the first example. He's holding up his pad. He's holding up a pen, and he thinks he's like, gotcha. By asking, is this a grocery list?

[Leah Litman]

This is gonna be the time. This is gonna be the time I.

[Chief Justice]

Brought props, and I'm gonna best her with my props. And she has to concede, it's not a grocery list.

[Melissa Murray]

This is not a gross.

[Chief Justice]

It's a pad of paper, and you can do other things. And then with the. It would be amazing if he did. I was not in court, but I do not believe he actually pulled out eggs to show her. To ask if. In fact, I would have respected him.

[Melissa Murray]

So much more if he had.

[Leah Litman]

If he's just cracking raw eggs up.

[Chief Justice]

At the idea to be like, the problem is I didn't bring enough exhibits, and I will next time. But you could just hear him deflate when she answers. Like, she just got him, and it was glorious.

[Melissa Murray]

He's like, okay, it's not an omelet. All right.

[Leah Litman]

Right. Okay, fine. So in the government's brief, General Prelogger had analogized a ghost gun to an IKEA furniture flat pack. That is. Just because it's not assembled doesn't mean it's not furniture. And it appears that Sam Alito took that analogy personally, as he is often want to do. So roll that tape here.

[Justice Kagan]

So what level of expertise is taken into account? What collection of tools is taken into account? Can you provide any sort of a time limit? How long must it take? Some of us who are not and don't have a lot of mechanical ability have spent hours and hours and hours trying to assemble things that we've purchased.

[Justice Alito]

And with you on that one, Justice Alito, as someone who struggles with IKEA furniture, let me do my best to try to be responsive to that question.

[Melissa Murray]

I mean, I like how she was just sort of like, okay, sir, we're gonna find some common ground here. I can't put together IKEA furniture either. Like, it's one of the weird places where I'm not great at everything.

[Leah Litman]

Right.

[Melissa Murray]

How about you?

[Chief Justice]

Sure, Elizabeth?

[Leah Litman]

Sure.

[Chief Justice]

You struggle. You're just trying to make Sam feel better, right?

[Melissa Murray]

Exactly. But she's, like, also, like a task rabbit in putting those things together for people in her spare time.

[Chief Justice]

Well, we know she put stuff together because separately, in the argument, she talked about actually having assembled one of these ghost guns herself. So she clearly decided to literally take this question into her own hands because she knew she was going to get pressed with a lot of questions about the specific mechanics of assembling one of these. And clearly she decided that she wanted to be able to speak from experience about the answers to those questions. So take a listen to this clip.

[Justice Alito]

I actually had the experience of putting one of these kits together, and it's just like what the record shows. There are usually only a couple of steps. The first thing that most of the kits require is drilling the holes. Usually it's six holes, and you do it with the jig. So you have the product there in the tool, and it removes all of the trial and error or guesswork. You know exactly where to drill in seconds. The second step is to remove the extra plastic blocking tabs. That, again, doesn't require much work at all because you clip them off with a pair of pliers or a box cutter. You can file it down with a jig as a template using a metal nail file or using a Dremel rotary tool that a lot of people, especially dog owners, own, because it's helpful for trimming your dog's nails. At that point, you have a fully functional frame or receiver, and you can quickly assemble it into a gun in no time at all. That's how the products were marketed. That's how they were sold.

[Melissa Murray]

I love that she went full amosexual on them. She's like, yes, I put together a ghost gun. It took me 15 minutes.

[Leah Litman]

This was also just like a big, not all women aspire to be humble moment. I've just been assembling ghost gun kits in my spare time. Sam, what have you been doing?

[Melissa Murray]

Making.

[Chief Justice]

Also, did she maybe say she cuts her own. Her dog's toenails, herself and that.

[Melissa Murray]

Yes, she did say that she does.

[Chief Justice]

She said some people do.

[Leah Litman]

And she was not a faint of heart, let me tell you.

[Chief Justice]

I've never done it. I can't even really cut my children during the pandemic.

[Leah Litman]

It's not easy.

[Melissa Murray]

But she said she had one of those implements that you used to, like, literally cut or.

[Leah Litman]

She said someone.

[Chief Justice]

Yeah, she says it's like people might have them. Yeah, yeah, we don't know about that.

[Melissa Murray]

Unless you actually have one.

[Chief Justice]

That was my read, I think.

[Melissa Murray]

So.

[Leah Litman]

It's not easy.

[Chief Justice]

She does make it look easy, though. And for that reason, by the end of the argument, I did feel pretty confident that she had a solid majority on her side, which, again, maybe I read our preview differently. I felt because of Garland versus Cargill and because it's a different statute, the arguments are distinct. But the vibes are very similar. And because of that, I thought there was a really good chance that this was going to go the way of Cargill.

[Melissa Murray]

I really think this is in the vein of the Colin Allred, Ted Cruz Senate race in Texas, where it was solidly in the Republican camp. Now it's just leaning Republican because Allred has made some real inroads. But the real question is, what the fuck Texas? Like, why are you voting for the gentleman from Cancun all over again when you have right. This is all in the realm of that. Like, I don't understand how that race is not solidly like a runaway race for Colin Allred. I similarly don't understand why this isn't going to be a 9 to 0 unanimous opinion in which the federal government gets a resounding win.

[Leah Litman]

Yeah. And just to underscore, like, why it is so perplexing, this statute literally defines firearms to include items that can readily be converted into firearms. And that is exactly what a ghost gun kit does. And yet some justices are going to say that is not a firearm that ATF can regulate, which is what makes this so outlandish. Strict scrutiny is brought to you by ZBiotics pre alcohol. If there's a surefire way to wake up feeling fresh after a night of drinking, it's with pre alcohol. ZBiotics. Pre alcohol Probiotic drink is the world's first genetically engineered probiotic. It was invented by PhD scientists to tackle rough mornings after drinking. Here's how it works. When you drink, alcohol gets converted into a toxic byproduct in the gut. It's this byproduct, not dehydration, that's to blame for your rough next day. Brie. Alcohol produces an enzyme to break this byproduct down. Just remember to make Zbiotics your first drink of the night. Drink responsibly and you'll feel your best tomorrow. And with their GMO technology, ZBiotics is continuing to invent probiotics that will help with everyday challenges of modern living. I was on Pod Save America's live show from Ann Arbor last weekend and I wanted to have a good time. Fact. So did everybody. So we were all asking around, where are my Zbiotics so we could have our ZBiotics and also enjoy the show. You can see the red solo cups on stage page. I'm just glad Lovett didn't throw his in my face during. Okay, stop. Instead, he chose to keep enjoying it. That's what ZBiotics can do. Go to ZBiotics.comStrict to learn more and get 15% off your first order when you use Strict at checkout, ZBiotics is backed with 100% money back guarantee. Remember to head to ZBiotics.comStric and use the code Strict at checkout for 15% off Strict scrutiny is brought to you by Select Quote it feels like most of the news we're subjected to 24. 7 is bad or 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 insurance policy for your individual needs in as little as 15 minutes. And have you ever worried about getting coverage with a pre existing 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 strict district.

[Melissa Murray]

So another big case that the court heard last week was one that they should be relatively familiar with because it has been up and down to the Supreme Court a number of times, although on other issues. And this was, of course, Glossop v. Oklahoma. We previewed Glossop last week. It's a death penalty case that features the rare episode where the prosecutors actually admit to committing some errors here, which is to say that the Oklahoma Attorney General is admitting that the prosecutors in this case violated the Constitution and is asking that the defendant, Richard Glossop, be granted a new trial. So this was definitely an argument with real here come the general's energy. Two former solicitor generals were there representing Mr. Glossop. Seth Waxman was there representing Glossop directly, and Paul Clement was there representing the Oklahoma Attorney General, which again was asking the court to order a new trial. There was an appointed amicus who argued in defense of the Oklahoma court's position here.

[Chief Justice]

So here is Paul Clement distilling the issue in the case, and he's talking about Oklahoma Attorney General Drummond.

[Leah Litman]

And General Drummond reached the conclusion regretfully, but reached the conclusion. Our prosecutors elicited perjury here, and a man's going to go to his death. We can't allow that to happen.

[Chief Justice]

But despite the facial clarity and simplicity of the claim that Clement was making to the court, at least some members of the Court seem to say, not so fast, maybe we can allow that to happen. So if we were, or at least I was unduly pessimistic in Vanderstock, I think it's possible that we are unduly optimistic here. And while it's clear that the Democratic appointees are on the side of Glossop and the Oklahoma attorney general and justice, it's also clear that Alito and Thomas and I think Roberts are not. And I found it at least just pretty hard to read Kavanaugh and Barrett, and that's the whole case, because Gorsuch is recused.

[Leah Litman]

And just to underscore what is happening here, like the Supreme Court is literally deliberating over whether when prosecutors elicit perjured testimony, refuse to disclose exculpatory material, then admit their heir, can state courts nonetheless force the state to execute a potentially innocent person? Like, this is the big legal question that they're devoting their time to. And the fact that the chief, I mean, I, I was less sure exactly where the chief was leaning. I think sometimes he just asked difficult questions of both sides in a lot of these cases where it's a this just cannot be sit. He does ultimately find his way to the right side, but not at all confident, which, again, is that should be the story here. Like, we don't know how the court is actually going to rule on this issue, which is wild. And a lot of the argument turned on whether the Oklahoma court decision rested on what's called an independent and adequate state ground, that is a state rule that was not related to the underlying federal constitutional claims. And so there was some fairly technical parsing of the Oklahoma Court of Criminal Appeals opinion being reviewed, whether the decision rested on state or federal grounds, and also whether there had been a waiver, that is, whether the state had waived its objection to any state law procedural requirements that might be an impediment to reaching the federal constitutional claims. But again, I just don't think this is that hard, because their reason, the court reason for why they weren't going to consider the federal constitutional claims to the extent they didn't is that that the defendant, the defense, could have discovered them earlier, but that's bound up with whether the prosecutors failed to disclose exculpatory material and also with whether they elicited perjured testimony. And aside from that, in any case, like where a state is conceding error, you know, as the justices, the Democratic appointees noted, the courts have been totally fine with just accepting that concession of error. And now all of a sudden, they aren't so sometimes.

[Chief Justice]

You, I think, are genuinely in a difficult position where these technical legal doctrines and principles of justice are in actual tension. But that not seem to be the case here, and which will make it just so wildly lawless and unjust if some solid portion of the court, God forbid, up to a majority of it, decides, like, you know, oops, maybe there was a little perjury, a little false testimony, but there's nothing to be done here. So a couple of other things to note about the argument. I at least found it pretty unsettling how much attention was paid to an amicus brief that had been filed in the case by the family of the victim. The family was represented by a former federal judge, Paul Cassell.

[Melissa Murray]

And.

[Chief Justice]

And despite the fact that this amicus brief contained information that was conceitedly not in the record of the case, it came up again and again in the oral argument, including the theories that it offered to explain one important piece of evidence in the case. Again, this brief itself, you know, was filed in the Supreme Court, not in the lower courts, and it floated theories to explain evidence that were also very much not in the record. So let's just play a couple of places where this brief was referenced.

[Justice Kagan]

And the Vantries family's amicus brief provides a pretty compelling counter reading of that. And you want us to say, well, just pretend it doesn't exist and read those notes the way we think they should be read.

[Justice Thomas]

As the Vantrice family's amicus brief explains, it indicates that the investigation the Attorney General conducted here and the other independent investigations were not particularly thorough.

[Leah Litman]

Okay. I want to ask you about the standard of review for looking at Smotherman's notes, because one of the difficulties, I think, with the notes is that putting aside whether the Vantries brief is in the record, it's not. It's still. It still reveals that there are multiple plausible interpretations of the notes.

[Kate Shaw]

Now, on the Vantries issue, that's non record evidence. So it's not before us.

[Leah Litman]

It's not only not before you, it wasn't the basis on. It wasn't before the Oklahoma Court of Criminal Appeals. So this is what happens when you have theories, not evidence. You know, as we talked about last week in the unsealed immunity brief, a lot of theories.

[Melissa Murray]

Justice Thomas does this a lot as well. There was another death penalty case a couple of years ago where he. I can't recall if it was a death penalty case or a Fourth amendment case was something involving a pretty heinous crime. And he just like again went over and over into this brief that really detailed the family's perspective again. So victim, income, pack statements, pain, all of that. This stuff is, this is their bread and butter and they love it.

[Leah Litman]

You know who Justice Thomas also thought was unfairly victimized and pained by this entire case?

[Melissa Murray]

Who?

[Leah Litman]

The poor prosecutors who the defense was suggesting elicited perjured testimony and failed to disclose exculpatory evidence. Like, there were several moments in the argument where he seemed just indignant at the prospect that anyone would deign to suggest prosecutors violated the Constitution without giving them an explanation or an offer to explain themselves, even though they had such an offer and chance to explain themselves in this case. It was just wild. I mean, it was like taking Sam Alito's conservative victimization complex and persecution complex and then just applying it to states, trying to execute people like it was. It was just wild.

[Melissa Murray]

Well, you. Actually, Leah, I'm glad you mentioned Justice Alito, because I am old enough to remember when, in the context of a state prosecution or a request for information in a state investigation of Donald Trump, Sam Alito had a lot to say about the nefarious influences of state level prosecutors.

[Leah Litman]

Or you remember when Justice Thomas, for example, basically suggested anyone who thought the Trump administration's addition of the citizenship question to the census was engaged in some cockamamie conspiracy theory. And how could you possibly think that? So it's not like these guys are above maligning state and federal officials when it suits them. But God forbid anyone suggests, right, prosecutors might have have elicited perjured testimony in order to send a potentially innocent man to death, that that's just going too far.

[Melissa Murray]

Follow us for more tips on calling out Supreme Court hypocrisy.

[Chief Justice]

But it's, it's both, obviously, the contrast the hypocrisy with, you know, their suppositions about prosecutors and their motives in the Trump cases. But it was also so bizarre here because there was this suggestion that the prosecutors hadn't even been interviewed or questioned. And in fact, they definitely had. So the factual predicate advocate for the indignation was completely wrong. But when does that ever stop them?

[Leah Litman]

It's like we're just going to ignore the evidence in the record and choose to focus on the evidence outside the record. Right. Choices, as Tatiana would say.

[Chief Justice]

So in part because of this amicus brief filed on behalf of the Vantage family, it did seem to me that there was at least a chance the court would send the case back down for an evidentiary hearing, which is something that came up a couple of times And I think that would just creep. Create truly terrible precedent around amicus briefs and their ability to totally change or derail the trajectory of a case. Right. If you can file an amicus brief at the Supreme Court, including facts and speculation, and then have the justices decide that whatever has transpired below, a new evidentiary hearing is required. I just think you pair that with, like, the way that the diagrams and gifts from the Firearms Policy Coalition amicus brief in the Cargill case seem to really shape Justice Thomas's opinion. You know, remember, those appeared, you know, five of them, maybe, in the actual published opinion, those brief, those diagrams, and a, you know, link to a gif from the amicus brief. It just feels like the Court will have fully created a set of incentives that if interested parties want to change policy in this country, not just alter the trajectory of a particular case, but maybe, like, change policy writ large, there is no reason to bother with Congress, the executive branch, elections, none of it. Get a, you know, good amicus brief, file it in the Supreme Court, and that is the most expeditious and efficacious way to actually change the law and to change policy. And, like, that's madness.

[Melissa Murray]

So it's actually. It's such a terrific point, especially when you layer on, like, there are so few checks for amicus briefs. Like, anyone can file an amicus brief. Nobody checks that. That what is being purported in the amicus brief is right. Is factually accurate. I mean, Ali Larson at William and Mary has written tons of stuff on this. And again, all really terrific points. The incentives are already profound toward amicus briefs, and this would just expand those.

[Leah Litman]

I don't know why, but when you were saying no one really checks these, an image popped into my mind kind of from the off this episode where Michael learns that Oscar is gay. And I don't know if you remember this, but Jim gifts him an item that he tells him is gaydar. And it's this item from Sharper Image that just, like, randomly beeps. And so Michael is just, like, kind of throwing it in the air and passing it across several people. And sometimes it beeps. I'm just with, like, some Sharper Image thing that he's just, like, running over amicus briefs. And Kyle said beef briefs. Oh, that's a good one. That's a good one. Anyway, sorry, that was a tangent. Okay, so back to the rest of the argument. Justice Kagan did try to cut to the heart of the issue in the case there.

[Kate Shaw]

A separate question, though, about just. He lied on the stand. And in A case where the entire case rested on the testimony of one person and his credibility. If you can show that he lied on the stand when he said, I never saw a psychiatrist and I didn't get a prescription from the psychiatrist, it was, you know, they gave me lithium for a common cold. And, and then the prosecutor says, well, that was a lie. I better correct that under naipu. And doesn't that seems pretty material to me? I mean, it's just your one witness has been been exposed as a liar.

[Justice Thomas]

A couple of responses, Justice Kagan. I think first, there are threshold elements under nupu, including whether this was false testimony. I don't think it was false testimony, but I want to take your question on its own terms. This false testimony that Snead saw a psychiatrist, that would have been harmful to petitioner under his theory of the case. Remember, the prosecution.

[Kate Shaw]

False is false.

[Leah Litman]

I love this. False is false. False is false. We're just going to stop there. Again, not all women aspire to be humble. We're just going to shoot that one down, boys.

[Chief Justice]

So she, she was great in this argument. I mean, I, you know, we were sort of talking about the Chili affect, right, that she displayed vis a vis her colleague Sam, who seemed to be trying to, like, make nice. And I'm sure we were all trying to get a sense from this first week back of what the dynamics among them are really like and as like, sharp and excellent as she was and always is. Like, the liberals sound tired to me. Like, they sound depleted. And, and I guess I'm not surprised. But the summer, whatever they did, did not fully expunge the madness that June and the beginning of July unleashed.

[Melissa Murray]

So maybe I can add some color to this. So when Justice Kagan recently came to NYU in September and, you know, we did this conversation, she did mention that they don't really have summers anymore the way that they used to, where they had these long expanses of time away from each other, that because of the uptick in shadow docket activity, they actually are in conversation, even if they're not physically at 1 1st street for much of the summer. So the fact of the matter may well be she's like fucking tired because she can't get away from it.

[Chief Justice]

She's had to look at her.

[Leah Litman]

Sam Alito is always in her inbox, right? She can't just like, auto delete that.

[Melissa Murray]

Sliding into her dm.

[Leah Litman]

That's no good.

[Melissa Murray]

She needs a break. I think all three of them need a break. Maybe Amy Coney Barrett needs a break, too. She seemed over them as well.

[Chief Justice]

Yeah, yeah. So did you guys also agree that this looked. Lee, I think you said maybe the, you know, anti. Anti Kafka majority would win going in but coming out less clear. Yeah, yeah. I don't actually know the procedures in Oklahoma for clemency. There had been an unsuccessful clemency effort previously. I mean, I suppose it is possible that the safety valve of clemency. Right. Which does exist in some form in every state would remain a possibility. But that is not a reason for the court to be excused from actually doing its job here.

[Melissa Murray]

Up this week at the court there are a number of cases. There's a RICO case. RICO is the racketeer influence and corrupt organization statute. If you watch the Sopranos, this is the federal legislation that Tony Soprano absolutely lived in fear of. There is also an immigration case, a case involving veterans benefits and now, wait for it, a really important environmental case which means there is an opportunity for the court to continue to do more, to completely jack up the environment. So this case is called City and County of San Francisco versus the epa. And again it's a quite technical case, but the TLDR is basically how did the Biden administration violate the law? Again, some more epa specifically how this.

[Chief Justice]

Time, not if, but how. That's right. We'll go deeper on that case after the argument and we are all just I think on tenterhooks waiting to see what kind election litigation related mischiegus Trump and his team which have already filed lawsuits in many, many states. Right. Clearly seeking to lay the groundwork for post election challenges once the votes shake out and we will see what if any of that litigation makes its way to scotus.

[Leah Litman]

So a few notes before we go. On our previous episode we talked about the creation of the civil rights court in Texas and the problems that created for groups doing important civil rights work including Texas Civil Rights Project and lulac. In the summary we meant to convey that one of those organizations, lulac, was being raided and investigated for election fraud. But it was heard to suggest that the Texas Civil Rights Project was also being raided and investigated for election fraud. We wanted to clarify that the Texas Civil Rights Project has not been raided and is not under investigation.

[Melissa Murray]

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[Chief Justice]

Strict Scrutiny is a crooked media production hosted and executive produced by Leah Littman, Melissa Marie and me, Kate Shaw Produced and edited by Melody Rowell Michael Goldsmith is our Associate Producer. Audio support from Kyle Seglin and Charlotte at Landis Music by Eddie Cooper Production support from Madeline Herringer and ari Schwartz. Matt DeGroat 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] strictscrutinypodcast and 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.

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[Chief Justice]

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[Leah Litman]

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