SCOTUS Again Takes on the 2nd Amendment—What Could Go Wrong?

Summary

---

Strict Scrutiny Podcast Summary

Episode: S7 Ep20: SCOTUS Again Takes on the 2nd Amendment—What Could Go Wrong?
Date: February 23, 2026
Hosts: Kate Shaw, Melissa Murray, Leah Litman
Guest Hosts/Interviewees: Steve Vladic, Elliot Williams

---

Episode Overview

This episode of Strict Scrutiny combines three rich segments:

1. Legal News Recap — Co-hosts Kate Shaw and Melissa Murray, joined by constitutional law expert Steve Vladic, break down the Supreme Court’s landmark decision on Trump-era tariffs, ongoing problems of noncompliance in lower federal courts, and new advisory opinions on judicial conduct.
2. SCOTUS February Sitting Preview — The team previews the comparatively lighter February Supreme Court oral arguments, with special focus on a significant upcoming Second Amendment case, and flags an under-the-radar asylum case coming up in March.
3. Author Interview — Melissa Murray interviews Elliot Williams about his new book Five Bullets, chronicling the 1980s Bernie Goetz subway shooting, its cultural and legal legacy, and connections to contemporary attitudes on violence, race, and gun rights.

The tone throughout is incisive, accessible, and peppered with the pod’s trademark irreverence and legal nerd humor.

---

Segment 1: Legal News from the Week

(00:00–34:44)

The Supreme Court’s Trump Tariffs Ruling

Key Case: Challenge to Trump’s global tariffs

• Headline: The Court struck down Trump’s worldwide tariffs (6–3)—a significant rebuke to the administration.

• Key Takeaways (Steve Vladic, 04:42):

  1. Optical Loss for Trump: Even if the justices’ motives weren't "altruistic," this prominent loss sets a meaningful tone.
     “It’s a pretty resounding loss for Trump on the case that the Justice Department chose as the first merits case.” — Steve Vladic [04:54]
  2. Major Questions Doctrine Split: Justice Barrett’s concurring opinion signals skepticism toward the distinctiveness of the major questions doctrine, potentially impacting future cases and executive authority.
     “Barrett’s softness...could be a very big deal.” — Steve Vladic [06:18]
  3. Kavanaugh’s Pattern: Kavanaugh’s dissent (joining Thomas and Alito) reinforces his steadfastness with Trump, highlighting evolving Court coalitions.
     “It’s the latest in a large and increasing body of evidence that he’s just not likely to stand up to President Trump.” — Vladic [07:22]
  4. Dissenters’ Inconsistency: Thomas, Alito, and Kavanaugh dissent despite their readiness to apply the major questions doctrine against Democratic administrations.
     “Here is yet another example...of the justices in the dissent doing absolutely nothing to disabuse people of the view that they’re voting their partisan policy preferences.” — Vladic [09:43]

• Remedies Question (10:30):
  The Court ducked the question of how to remedy the improper tariffs, leaving uncertainty for parties seeking refunds—a familiar “pass the buck” approach reminiscent of cases like Northern Pipeline.

  • “I don’t think [the Court] had any idea what to do.” — Vladic [10:59]
  • “In a world in which we had a functioning separation of powers...the question...would be answered by Congress.” — Vladic [11:43]

• Cultural Critique:
  “For those of us who do care about law, it’s wildly disheartening...the pure hackery on display.” — Melissa Murray [10:06]
  The Court’s reluctance to address remedies underscores both institutional dysfunction and political gaming.

Lower Federal Courts Push Back

(17:48–24:45)

• Federal Defiance & Compliance: Widespread DOJ failures to comply with court orders (e.g., 50 violations in 547 cases in New Jersey), with rhetoric of “accidental” violations. Judges—especially in Minnesota (e.g., Judge Provenzino)—are moving from warning to sanctions.

  • “At least some of this is logistics and incompetence, not malice.” — Vladic [19:48]
  • “But the policy causing all of this was maliciously intended.” — Murray [20:07]

• Sanctions on DOJ Lawyers: $500/day fines imposed personally on government lawyers—though the real problem is systemic and sits higher up in the chain.

  • “If there’s no one else to fine, you fine the lawyer. But it’s not the lawyer’s immediate fault.” — Vladic [21:35]
  • Murray and Vladic urge courts to bring higher-level DOJ/DHS officials into court.

Judicial Conference and Judges Speaking Out

(24:45–29:36)

• Advisory Opinion: The Judicial Conference signals support for federal judges publicly defending the judiciary and rule of law when under unprecedented attacks.
  • “The committee wanted to signal that it is OK for federal judges to raise alarm bells publicly as long as it’s not about specific cases.” — Vladic [26:35]

SCOTUS Stock Rule & Ethics

(29:36–32:08)

• Roberts’ ‘Reforms’: Instead of justices divesting stock holdings, parties must now include ticker symbols to ensure proper recusal—a classic half-measure.
  • “One might suggest the easier way out of this is to just not have the justices own individual stocks.” — Vladic [30:32]
  • “They are fully capable of implementing rule changes when they see fit.” — Murray [31:08]

A Note of Cautious Optimism

(32:08–34:40)

• Murray and Vladic close this segment by noting flashes of institutional resistance and the continuing importance of legal opposition, as highlighted by UCLA’s successful fight against a punitive fine and restrictions imposed by the Trump administration.
  • “When you fight, you win. And when you don’t fight, you never win.” — Murray [33:25]

---

Segment 2: SCOTUS February Sitting Preview

(38:40–57:42)

February’s Lighter Docket—But Key Issues

(38:40–40:45)

• After a blockbuster January (trans rights, the Second Amendment, property rights, Fed independence), February brings less headline-grabbing but still meaningful cases. March’s “calm before the storm” will bring major election law and immigration cases.

Spotlight: Second Amendment Case — U.S. v. Hamani

(40:45–49:49)

• Case Summary:
  The Supreme Court will decide whether federal law prohibiting gun possession by “unlawful users” of controlled substances (e.g., marijuana, cocaine) violates the Second Amendment, especially after the landmark Bruen and Rahimi decisions.

• Context & Messiness:
  The facts are muddied by claims that the respondent may have terrorist associations, and the government is seizing on “dangerousness” as a justification for the gun ban.

  • “This case is ostensibly governed by the court’s deranged decision in NYSRPA v. Bruen...” — Litman [43:31]

• History & “Analogous” Laws:
  The parties argue over whether Founding-era laws about “habitual drunkards” can justify today’s restrictions. The hosts deride the whole exercise:

  • “I just can’t believe this is what we have to do under the guise of constitutional law.” — Murray [44:34]

• Which Test Applies?
  The outcome may turn on whether the Court applies a “historical twin” approach (requiring nearly identical precedents) or allows contemporary understandings of danger to shape the result.

  • As Justice Jackson pointedly asked at Rahimi’s argument:
    • “If we’re still applying modern sensibilities, I don’t really understand the historical framing.” — Jackson (quoted by Murray) [46:35]

• Political Irony:
  The Biden/Trump administrations have both, at times, supported restrictions, suggesting that the real test is “for my friends, everything; for my enemies, the law.”

  • “A campaign of ‘we get to decide who gets guns,’ after decades of suggesting that it’s the liberals who want to take some people’s guns.” — Murray [49:49]

Brief Roundup: Other February Cases

(50:03–55:47)

• Havana Docks v. Royal Caribbean Cruises: Private litigation for property confiscated by Cuba.
• ExxonMobil v. Corporación CIMEX: Sovereign immunity and Cuban asset claims.
• Enbridge Energy v. Nestlé: Removal procedure in federal courts.
• Pung v. Isabella County, MI: When surplus from a forced property sale counts as an unconstitutional taking.
• Hunter v. U.S.: Are appellate waivers valid for claims of unconstitutional sentencing, even where judges say, “You have a right to appeal”?
• Montgomery v. Kariba Transport: Does federal law preempt state tort claims against freight brokers selecting dangerous motor carriers?

March Sneak Peek: Gnome v. Al Otro Lado (Asylum)

(55:47–57:42)

• Hugely consequential: Will those stopped at the Mexican border be deemed to have “arrived” in the U.S. for asylum law purposes?
• Danger if gov wins: “Would mean the administration wouldn’t even have to consider an individual’s asylum claim.” — Murray [57:21]

---

Segment 3: Elliot Williams Interview — “Five Bullets”

(62:04–86:45)

The Bernie Goetz Shooting and Its Echoes

(62:04–70:00)

• Event Recap:
  In 1984, Bernie Goetz, a white New Yorker previously mugged, shot four unarmed Black teens on a subway, claiming self-defense. The case polarized the city and the nation, triggering cross-racial support out of fear of urban crime but also deep racial anxieties.

  • “He was an avenger, almost a Batman of sorts.” — Williams [64:36]

• Complex Support:
  Many Black New Yorkers expressed empathy: “A number of Black people even saying, ‘I would have done the same thing.’” — Williams [65:32]

  • But, Williams notes, “The fact that he was white made it much easier to make him a hero. ... What if the races were reversed?” [66:30]

• Modern Parallels:
  Williams and Murray both highlight chilling continuities between 1980s crime politics, the racialized fear rhetoric of the time, and the present—touching on Donald Trump, Rupert Murdoch, and the straight line from “tough on crime” to “anti-woke” politics.

  • “Bernie was anti-woke before being anti-woke was cool.” — Williams [69:49]

• Key Moments & Quotes:

  • On Curtis Sliwa & the Guardian Angels:
    “He regards the fact that the Guardian Angels exist as indicative of the failures of the NYPD and policing generally.” — Williams [71:00]
  • On interviewing Goetz:
    “The most remarkable thing was the utter lack of self-reflection... He said, ‘Those guys needed shooting.’” — Williams [72:58]
    • Goetz’s racism became even starker over time.

The NRA and the Case’s Legacy

(75:09–78:55)

• NRA Shift:
  The Goetz case catalyzed the NRA’s pivot from a sportsman’s club to hardline Second Amendment advocacy. They directly funded Goetz’s defense.

  • “It was the perfect test case: urban, blue state, denied a gun permit, ‘self-defense.’” — Williams [76:11]

• SCOTUS and the New York “Danger” Narrative:
  Supreme Court justices—especially Alito—invoke 1980s NYC imagery to justify loosening gun restrictions. But NYC is dramatically safer now, making the nostalgia for the Goetz era striking and often misleading.

  • “It’s a Rorschach test: if the city’s rough, we need more guns; if it’s safe, we need even more guns.” — Williams [78:55]

Jury Dynamics & Social Reflection

(83:08–86:12)

• The Jury as Mirror:
  Williams and Murray discuss how the trial jury, mostly white and itself crime-scarred, “trusted their guts,” identifying with Goetz—demonstrating the persistent challenge of achieving racially unbiased justice.
  • “Trusting their guts means also putting themselves in the place of a defendant that they felt they had some kinship or connection to.” — Williams [83:08]

---

Favorite Things

(86:45–89:12)

• Murray: Listening to Ron Chernow’s Grant biography and binge-watching The Last Dance.
• Litman: Reading Adriana Herrera's A Caribbean Heiress in Paris series; loving Charli XCX's Wuthering Heights album.
• Manifestation: Litman hopes her new law review article, "The Passive Vices," will be snapped up by student editors.

---

Notable Quotes & Timestamps

• “It’s a pretty resounding loss for Trump...” — Steve Vladic [04:54]
• “Barrett’s softness on the major questions doctrine could be a very big deal.” — Steve Vladic [06:18]
• “The fact that Kavanaugh is in the dissent here... is a big deal for how much it reinforces how this is the Roberts and Barrett court.” — Steve Vladic [07:22]
• "For those of us who care about law, it’s just wildly disheartening. Not the bottom line votes, but just the pure hackery..." — Melissa Murray [10:06]
• “This should have been unanimous... If we’re not being consistent, what are we doing?” — Vladic [10:20]
• “At least some of this is logistics and incompetence, not malice.” — Steve Vladic [19:48]
• “One might suggest that the easier way out... is to just not have the justices own individual stocks.” — Steve Vladic [30:32]
• “When you fight, you win. When you don’t fight, you never win.” — Melissa Murray [33:25]
• “I just can’t believe this is what we have to do under the guise of constitutional law.” — Melissa Murray [44:34]
• “Bernie was anti-woke before being anti-woke was cool.” — Elliot Williams [69:49]
• “Trusting their guts means also putting themselves in the place of a defendant that they felt they had some kinship or connection to.” — Elliot Williams [83:08]

---

Useful Timestamps (MM:SS Format)

• 02:29: Pod begins, guest Steve Vladic introduced
• 04:42: Tariffs ruling analysis with Vladic’s four takeaways
• 10:30: Remedies question in tariff ruling
• 17:48: Lower courts push back on DOJ noncompliance
• 24:45: Judicial Conference and free speech for judges
• 29:36: SCOTUS “stock ticker” rule
• 33:25: Note on UCLA’s win as symbol of resistance
• 38:40: February SCOTUS sitting preview begins
• 40:45: Deep dive on Second Amendment “unlawful user” case
• 55:47: Preview of March’s asylum/immigration case
• 62:04: Elliot Williams interview on Five Bullets
• 75:09: NRA in the Goetz aftermath
• 83:08: Discussion of juries, race, and legal system

---

Conclusion

This episode delivers a thorough, nuanced snapshot of the current Supreme Court milieu, lower-court resistance, and the enduring complexities of law, politics, and gun culture in America. With sharp legal analysis (especially of the evolving Second Amendment doctrine), historical insight, and interviews tying past and present, the team teaches, critiques, and entertains in equal measure—a must-listen for legal minds and curious citizens alike.

Transcript

[Kate Shaw]

Strict scrutiny is brought to you by Americans United for Separation of Church and State. We are all legal nerds here and we know that precedent set in any area of the law ripples out across our lives in so many ways. Our right to religious freedom is just one of the most sacred areas of law, protecting almost every aspect of our daily lives. Rights that we all hold dear, like LGBTQ rights, freedom to choose the type of health care you need, and ensuring a well funded and inclusive public school system. Protecting the separation of church and state is in fact protecting the very foundation of our democracy. If you're looking for ways to more deeply understand the connection of and from religion to so many of the civil justice issues we see today, you should check out the Summit for Religious Freedom or Surf, an annual conference held in D.C. and virtually April 25th through 27th this year at Surf, advocates, organizers, faith leaders, atheists and everyone in between will come together to take on the growing threats of Christian nationalism and the effort to impose one narrow religious belief on all of us. This is a movement for big change and collaboration across the entire spectrum of religious belief and non belief that strengthens our democracy, protects our public schools, reproductive rights, LGBTQ rights, and so much more. So be part of the movement that's pushing back and standing up for freedom. You can register today@the srf.org that's T H E S R F.

[Steve Vladic]

If you're

[Grainger Announcer]

the purchasing manager at a manufacturing plant, you know having a trusted partner makes all the difference. That's why hands down, you count on Grainger for auto reordering. With on time restocks, your team will have the cut resistant gloves they need at the start of their shift and you can end your day knowing they've got safety well in hand. Call 1-800-GRAINGER Click grainger.com or just stop by Grainger for the ones who get it done.

[Kate Shaw]

If you're an H Vac technician and a call comes in, Grainger knows that you need a partner that helps you find the right product fast and hassle free. And you know that when the first problem of the day is a clanking blower motor, there's no need to break a sweat. With Grainger's easy to use website and product details, you're confident you'll soon have everything humming right along. Call 1-800-granger clickgrainger.com or just stop by Granger for the ones who get it done.

[Leah Litman]

Mr. Chief justice, please report. It's an old joke, but when an

[Melissa Murray]

argues against two beautiful ladies like this,

[Elliot Williams]

they're going to have the last word.

[Melissa Murray]

She spoke not elegantly, but with unmistakable clarity. She said, I ask no favor for my sex. All I ask of our brethren is 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. I'm Kate Shaw, your lone regular host for the first segment of today's show. But fear not, I am not totally alone, because I am delighted to be joined by friend of the pod, Steve Vladic, who is stepping in as guest host for this opening segment of today's show. Welcome back to the pod, Steve.

[Steve Vladic]

Thanks, Kate. Great to be with you.

[Melissa Murray]

Always such a pleasure to have you. So in this opening segment, we're going to focus on the legal news from the last week. We will then bring you a preview of the February sitting, which starts this week. And that one will include Leah and Melissa. And finally, stay tuned for a conversation that I recently had with author and commentator Elliot Williams about his excellent new book, Five Bullets. Okay, but first up, Steve, let's dive in in to news from the last week. Obviously, the top line from the last week was the long awaited ruling in the case challenging Trump's big, beautiful tariffs. And in that case, the court struck down those worldwide tariffs by a vote of 6 to 3. Although with some pretty sharp disagreements about just why the tariffs are illegal. We recorded an emergency episode that dropped on Friday, the day the opinion was released. So listeners, viewers, if you want a detailed rundown on our take on that opinion, fire up that episode if you haven't had a chance to listen to it. But Steve, since we have you and there is definitely more to say about the 170 pages of opinions that the court gave us trying to make the major questions doctrine law, Gorsuch settling scores, the clear message that the only thing more important to John Roberts than executive power is the stock market. What are some of your big takeaways?

[Steve Vladic]

Yeah, I mean, I wrote about this a bit on Friday in my newsletter. I guess I see, Kate, four takeaways. And you guys have probably already covered all of this in the emergency episode. But so big takeaway number one is, you know, this was the first merits case of the second Trump administration. And, you know, for as much mischief as the court has caused on emergency applications with Trump, and I probably have written more than I care to say about how much mischief it's been, it's a pretty resounding loss for Trump on the case that the Justice Department chose as the first merits case. That's not for nothing. I mean, just optically, the fact that the Court was willing to push back even Kate, if it was for less altruistic reasons, I think is a big takeaway. Big takeaway number two is I think there's this continuing split between Justice Barrett and the other Republican appointees on whether the Major questions doctrine really is a thing or not. And I at least read her concurring opinion, even though she's endorsing much of the Roberts plurality opinion on major questions, to be reinforcing her potentially idiosyncratic view that there's not much daylight between the Major questions doctrine and other existing substantive canons of statutory interpretation that could matter in future cases, especially future cases where maybe Brett Kavanaugh isn't going to. Brett Kavanaugh. So, you know, doesn't matter here, obviously probably won't matter in other Trump cases. But at least in a longer term sense, Barrett's softness on the major questions doctrine could be a very big deal.

[Melissa Murray]

And let's we pause on that one for one second. So this is this potentially enormously important doctrine that could be wielded in all kinds of directions, right. Like can actually potentially be wielded to important effect if it's going to rein in overreach by this president. It also is a doctrine that could be wielded to potentially really troubling effect if we are ever in a position of having a future Democratic president Like this could be an incredible sort of obstacle to implementation of any kind of meaningful agenda by a Democratic president, assuming that Congress is just not going to do much, which I think is a fair assumption for the foreseeable future Executive act action is going to be how a future Democratic president operates. And this doctrine could give the Court a veto over virtually everything ambitious a Democratic president does. So I was obsessed, of course, like, with what this means for the next case. And I do think it's important to, to focus on Barrett. But of course, you point out, like, you know, Barrett gets you to four if you think the Major questions doctrine is not a thing. So you definitely still need to count to five. So, okay, so that's two big takeaways. What are your third and fourth?

[Steve Vladic]

So, so speaking of five, then there is the fact that it's six to three, and it's not the six to three you if we told you it was six to three. You know, I walked out of the oral argument in November thinking that it was going to be 7 to 2. And of course, as ever, I was wrong about Justice Kavanaugh. You know, the fact that Kavanaugh is in the dissent here, I think, is the latest in a large and increasing body of evidence that he's just not likely to stand up to President Trump. You know, if we look at Kate, every single publicly visible vote in a Trump case since last January, the chief and Barrett and Gorsuch have all voted against Trump more than Justice Kavanaugh has. I mean, obviously Thomas and Alito are less, but, you know, I assume every Trump case starts with two votes in support of Trump. It may be that now most of these cases are started with three votes in support of Trump. And I think that's a big deal too for just how much it reinforces how this is really the Robertson Barrett court in the cases in which that's going to matter. There's lots more to say about that and why it's disappointing and why it's frustrating, but I think it's an increasingly undeniable reality.

[Melissa Murray]

I think that's right. I mean, I guess remains to be seen whether the Cook case bears that out because he seemed pretty skeptical of kind of complete presidential control over the Fed. And so he could well vote against Trump there. But I don't think that would be an but. If he doesn't, then that is like incredibly powerful evidence that he is as much of a lock for Trump as Thomas and Alito are. But I think you're right. Once upon a time, you know, six to 12 months ago, if you're going to say like a 6, 3 case in which Trump loses, it's. It would be Gorsuch, not Kavanaugh, who would be the third vote to join Thomas and Alito that you would predict. And I think that that is no longer. We all have to sort of update our priors about kind of Gorsuch and Kavanaugh. Okay, so what's the, what's the last takeaway?

[Steve Vladic]

The other dissenters, I mean, like all three of the dissenters, Thomas, Alito and Kavanaugh all were in the majority in Biden vs. Nebraska, where the court had absolutely no problem. Right. Using the major questions doctrine to strike down President Biden's student loan. Defining this program. What the heck is the explanation for how this is? Not that. I mean. Right. And so just the, you mean the

[Melissa Murray]

non purely partisan explanation and like, you know, we're looking to find anything plausible and go on and struggling.

[Steve Vladic]

And struggling. I mean, I mean, Kate, you and I have personally been attacked for being like the Pollyannish everything that the Supreme Court is principled people, even though we're not. No, but, but here is yet another example, I think, of the justices in the dissent doing absolutely nothing to disabuse people of the view that they're voting their partisan policy preferences as opposed to being analytically consistent across different administrations.

[Melissa Murray]

Yeah, yeah. And for those of us who do care about law, it's just like wildly disheartening. Not the kind of bottom line votes, but just the pure hackery that is on display.

[Steve Vladic]

I mean, it's just, it's.

[Elliot Williams]

It.

[Steve Vladic]

This should have been unanimous. Not because I think, you know, the major questions doctrine is a good thing, but because if we're being consistent, this is not a hard case. And if we're not being consistent, what are we doing?

[Melissa Murray]

Okay, so let me ask one final question, which is do you have thoughts on the fact that the court just totally punts on the question of remedy? So there have been many. I'm not sure what the figure is now, but big numbers of unlawful tariffs paid under this presidential action, these executive orders. And the court seems entirely unconcerned with how to remedy that. So what do you make of that decision and what happens next?

[Steve Vladic]

So you say unconcerned, I say completely befuddled, which is that I don't think that it's. I don't think that the court's not concerned. I think they had no idea what to do. And, you know, the remedy question wasn't addressed in the lower courts. It was briefed, but not really explored in detail. I think I got one question from Justice Barrett at the oral argument. And so I think two things are true. One, I think they just didn't feel prepared to address that question. And it already took them the better part of three and a half months to get this ruling out. But two, Kate, historically it's not that unusual for the court to hand down a major ruling like this and assume that other actors would clean up the mess. My favorite example, I just taught this in federal courts on Friday. My favorite example is Northern Pipeline in 1981, where the court strikes down the entire bankruptcy court system, stays its decision for 18 months, and says, hey, Congress, fix it. And so the problem here, I think, is not that the court didn't address remedies, because historically I think that would have been very odd for the court to go that far is that we live in a moment in which it's not clear who will. And so I think for now, it punts it back to the Court of International Trade, where there will obviously be really messy litigation about this. But, you know, in a world in which we had a Functioning separation of powers. The question of how to operationalize the effects of this kind of Supreme Court ruling historically was a question that wouldn't be answered by the Court, it would be answered by Congress. And I think it's the, it's that gap that is back on display in this case.

[Melissa Murray]

I think it's that gap. And it's also I think that in a functioning, not just scheme of separated powers, but as functioning executive branch and Department of Justice, you could have the courts essentially shift the onus to the Department of Justice to come up with sort of good faith proposals for remedial schemes or to kind of work in good faith on implementing the Court's decision. And there's no reason to assume good faith on the part of this administration or Justice Department. And that I think is another potential long term effect of this opinion, which is that of course this is an enormous loss in name and symbolically and legally for the Trump administration. But in terms of sort of brass tax, what it means, like it's in their hands what to do. And we have seen them defy lower courts again and again and we haven't yet seen it at the Supreme Court level. But if it's the lower courts doing the implementation, like I, I'm not sure, maybe you're back in sort of defiance land before or at least, or at

[Steve Vladic]

least if we're not back in the Supreme Court in six months on the remedy question. Right.

[Elliot Williams]

Just.

[Steve Vladic]

And this is the very last thing I'll say about the dissent. So Justice Kavanaugh's dissent, which is joined in full by Thomas Nolito, spends a couple pages on how the built in sunk costs would be reason enough to come out the other way. And I think that is so giving up the ghost that there's no principle animated right that is such a sort of pure real politic like we should rule the other way because this is going to be a mess. That is not how we do law.

[Melissa Murray]

It reminded me actually of Trump vs Anderson, the Section 3 of the 14th Amendment case, in which the court like pretty clearly is just saying it would just be too messy to implement the disqualification provision of the Section 3 of the 14th Amendment. And so we're just not going to do it.

[Steve Vladic]

It's right. This court saying it's too hard. Ye. It doesn't really, I think, persuade anybody.

[Melissa Murray]

Yeah.

[Kate Shaw]

Strix routine E is brought to you by ZBiotics this year. I'm focusing on a small shift that makes a huge difference. Effortless presence. It sounds counterintuitive, but for me that means planning ahead so I can truly live in the moment, especially when I'm enjoying a beverage with friends. My simple trick for staying balanced is taking Zebiotics Pre Alcohol Beef before I start my night out. 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 and here's how it works. When you drink, alcohol gets converted into a toxic byproduct in your gut. It's the buildup of the byproduct, not dehydration, that's to blame for your rough days after drinking. Pre Alcohol combats this by producing an enzyme that breaks the byproduct down. So just remember to make Pre Alcohol your first drink of the night. Drink responsibly and you will feel your best the next day. I gave Pre Alcohol a try when I was going out with some of my girlfriends for a Galentine's day and guess what? I drank my first margarita. And guess how on top of my game I was the next morning? I crushed it. Absolutely. Slate so are you ready to slay your morning after the night before? Just go to zbiotics.com forward/strrict right now you will get 15 off your first order when you use use the code strict at checkout. Plus Zebiotics is backed by a 100% money back guarantee so there's absolutely no risk. Subscriptions are available for maximum consistency. So just remember to head to zbiotics.com strict and use the code STRICT at checkout for 15% off. Strict scrutiny is brought to you by Babel, one of five Americans have learn a new language on their bucket list and if that's you, you can make 2026 the year you finally check that off your bucket list with Babbel, the language app that makes grammar fun and is actually worth your time. Learning a language with Babbel is all about taking small steps, making big wins and making progress you can actually track and feel. Babbel lets you practice real life conversations step by step without stress. Their bite sized lessons fit easily into your daily routine and are also easy to remember. Just 10 minutes a day is enough to start seeing real results. I love using Babel when we are taking a trip because I want to go to our destination and feel like I'm actually making connections with the people who live there. So last summer when we went to Rome I tried my hand at Italiano and using Babel I was able to learn some key phrases to help my family and I get around town and make connections with the real Romans, the ones that I wanted to learn from and learn about. And it was absolutely fantastic. And it's key to making your travels feel truly authentic and really worthwhile. Babel has over 25 million subscriptions sold worldwide and with 14 languages to choose from, every course comes with a 20 day money back guarantee. Babbel adapts to your style and keeps you motivated with personalized learning plans, real time feedback and progress tracking. What's not to love? Guess what? There's more to love. Here's a special limited time deal for our listeners. Right now. You can get up to 55% off your Babbel subscription at babel.com strict get up to 55% off at babel.com strict that's spelled B A B B E L.com forward slash strict rules and restrictions may apply.

[Melissa Murray]

So let's leave it there. And kind of this implementation question and potential defiance question I think sort of is a good segue to developments in the lower courts in the last week. So we have seen additional evidence of non compliance and defiance and actually some maybe meaningful consequen coming from the lower court. So let's start with New Jersey, where last week a district court, after finding that DOJ had violated one of its orders, actually directed the department itself to produce a list of every instance in which the administration had failed to comply with a court order in that district since December 5th. In response, the Department of Justice produced a list of over 50 violations across 547 cases. The department, you know, was actually pretty contrite, at least in its rhetoric. It described these violations as accidental. It said, quote, adherence to court orders is a bedrock feature of our justice system. I'm not sure everyone in Trump's Justice Department feels that way, but that at least was the filing produced in this case. So, you know, a couple things. One, that is a pretty stunning number. I think it makes clear that Judge Schiltz in Minnesota, who recently noted the government had violated nearly 100 orders in just, I think January in just that district was not an outlier, that this is a much more widespread phenomenon. So I guess, first sort of, Steve, any reactions to that sequence of events in New Jersey?

[Steve Vladic]

I guess, I mean, it's hard to be surprised at this point. I mean, I think it's, it's, you know, Kate, you and I both, I think talk to a lot of folks behind the scenes judges, you know, lawyers who are practicing these cases. And to a person, I mean, whether it's the district courts that are in the news, Kate, or the ones that are not in the news, they are all deluged with these cases. You know, you have like small district courts that maybe would get two or three of these immigration habeas cases a year that have now gotten 100 in the last six weeks. And so I think, you know, I understand why folks don't trust anything this administration says. It is not entitled to any benefit of the doubt at this point. But I also think that at least some of this is a logistics problem

[Melissa Murray]

of their own making.

[Steve Vladic]

Of their own making. And as I think Judge Provenzino pointed out in the Minneapolis case, I know we're going to talk about in a second, one that is not an excuse for the behavior, but I do think that some of this is logistics and incompetence, not malice, where the policy causing all of this was maliciously intended.

[Melissa Murray]

Absolutely.

[Steve Vladic]

But where the real problem on the ground is just that there aren't enough people, there aren't enough lawyers, there aren't enough people at ICE who are responding to the lawyers. And the answer has to be sanctions, which I think is where at least we saw in Minneapolis.

[Melissa Murray]

Yeah. So let's talk about that and kind of your observation, I think crystallized something that had been troubling me which is like where those sanctions should be directed. Right. Like. So let's now talk about Judge Provenzino in Minnesota. So last week she found a government lawyer in contempt of court for failing to return the identification documents of a detained immigrant she had ordered released with all of his property and he did not receive the property that she had directed he be given. And so she actually ordered an actual fine of $500 per day until the property was returned. So I, I do want to know what you make of this development. So judges, as you know, you have documented and we've talked about, they have been bending over backwards to issue warnings to give the government time to correct, to sort of try to use kind of shame and public condemnation. But now we're talking about actually monetary sanctions. So like, is this an important ratcheting up of the kind of seriousness with which judges are going to take this kind of non compliance, whatever the cause, you were just kind of alluding to sort of, is it a good development? Are we going to see more of it? And, and are the right people sort of on the hook right now?

[Steve Vladic]

Yes, yes and no. So I think it is a good and long overdue development. I think we are going to see more of it and I think it's the wrong people. So in this Case, it's the random JAG lawyer who was assigned as a special assistant U.S. attorney, because again, back to our last exchange, they don't have enough lawyers. Who's being fined personally, $500 a day for Kate, what by all accounts are sort of a lack of hustle and a lack of cooperation over which he has zero control. And part of the problem here is that not that long ago, I mean, Kate, you've been in the government. I haven't. Right. But like when a DOJ lawyer would call an agency and say, you must do this by this date, the agency would jump. And if there was any question, the Attorney General would call the secretary or the head of the agency and say, yo, you must jump. And this is what happens when you have a culture in the Department of Justice in which that's not something that's going to wield their institutional authority to achieve. And so, you know, I think it's. If there's no one else to find, you find the lawyer. But it's not, I think at the end of the day, the lawyer's immediate fault.

[Melissa Murray]

Yeah. And the culture at DOJ is a big part of the problem, but in some ways, an even bigger part of the problem is the culture and the DHS components that are just completely uninterested. And, you know, you've always had kind of different institutional cultures and the FBI versus the CIA versus DHS versus doj. And so that fact is not new, but a lot of the details are very new. And I do think that these are. You sort of see contempt for courts in the rule of law from DOJ and dhs, to be sure, but I don't think in equal amounts. And it does seem as though at least some line lawyers and, you know, some, maybe mid level leadership at DOJ would like to comply more fully at least than they have been with what courts are directing them to do. And they are getting no cooperation from the Department of Homeland Security. But I do think that getting high level officials in court the way Judge Schiltz initially threatened to do, I think is something that courts should revisit and actually make happen.

[Steve Vladic]

So this is, this is where I was going. So the problem here is that right to the JAG lawyers, I think are in an especially vulnerable position because resigning as special Assistant US Attorneys can only happen if they resign as JAG lawyers. Right. They, they would have to resign their commissions to get off of these cases. And, you know, listen, some of them may already have to have approached or crossed that red line, but that's A little different to me, Kate, from someone who was already working for dhs. Right. And walks into court like the. I don't remember her name, but the woman who had the breakdown.

[Leah Litman]

Yeah, Lee.

[Melissa Murray]

Yeah, her name, that's right.

[Elliot Williams]

Yeah.

[Steve Vladic]

Right. Like, I actually feel a little more sympathy for the JAG lawyers because they, this is not anything they have any control over because they're subject to orders.

[Melissa Murray]

Right.

[Steve Vladic]

And so I think, you know, my. The best thing I think we can say is that Judge Provenzino is on exactly the right track, but that I think that the focus has to be higher in the chain of command and that will necessarily provoke appeals. I mean, this, the administration has already fought tooth and nail about preventing, you know, forcing agency heads or senior lawyers to have to come to court. But I think that's a fight that's now worth having if you're the lower federal courts.

[Melissa Murray]

Yeah, agreed. And kind of on the topic of the lower federal courts more broadly and sort of specifically, what tools judges have to shore up their authority, defend themselves against threats, we got this really interesting advisory opinion opinion from the Judicial Conference this past week. And you wrote your latest one, first street bonus newsletter about it and you titled it Federal Judges Speaking Out. So first, can you just briefly tell us what is the Judicial conference? And then can you tell us a bit about that advisory opinion?

[Steve Vladic]

Sure. So the Judicial Conference is the policy making arm of the federal judiciary. It is formally a group of 26 judges. So it's the chief judges of each circuit court. It is one district judge from within each of the circuits. There's one, I think, bankruptcy court representative, and then I think, and then the chief justice himself. And, you know, this is the body that's supposed to sort of gather on a regular basis to identify problems of judicial administration, to make recommendations about how we should fix things. And it has a bunch of committees. And one of the committees is called the codes plural of conduct committee, which is tasked with providing advisory opinions on the scope and applicability of two different codes of conduct of the codes of conduct for federal judges, which is what applies to every federal judge other than the nine justices and the code of conduct for federal judicial employees. That's why it's plural. So the Codes of Conduct Committee's latest advisory opinion was about when and how federal judges can speak publicly and, or participate in civic engagement and when they can't. And what I thought was really striking is most of the four page opinion, Kate, is a rehash of prior opinions where it's like, okay, you're not saying anything new, but almost every place where the committee is saying something that they're not citing to a prior opinion, they're speaking in support of judges, speaking out to defend other judges who have been unfairly attacked and. Or persecuted, the rule of law or judicial independence. And, you know, I don't think that this is a committee that doesn't do anything by accident. This is the same committee, for example, that said that, for example, judges should stop going to federal society events. That then got overruled. Right. That opinion was withdrawn. It strikes me that this is a message that was subtle but also unmistakable to the folks who are used to reading these opinions, that the committee wanted to signal that it is okay for federal judges to raise alarm bells publicly as long as it's not about specific cases, as long as they're not, you know, suggesting a thumb on the scale on an issue or a case. And Kate, I think some of that's a reaction to some of the criticisms that we've seen from the right. As the New York Times, for example, has been reporting on an anonymous survey of federal judges, as Ms. Now has interviewed federal judges who have been very critical of the Supreme Court's behavior. Behavior. And to me, it's a very positive response because it's reminding everybody that the canons don't prohibit federal judges from speaking publicly and. Or through their opinions in defense of each other and in defense of the rule of law.

[Melissa Murray]

I agree. It felt significant. The fact that the chief justice is involved felt potentially significant. I mean, I think we have been enormously and I think, you know, fairly critical of the chief and the courts kind of failure to feel like they have the kind of protect and have the backs of the lower federal courts against this really unprecedented onslaught of attacks from the administration in particular. And that really contrasts with the first Trump administration in which, you know, Roberts occasionally bestirred himself to defend the lower federal courts against attacks by politicians and even the sitting president. And it felt like maybe this was a sign that the tide was turning in some way, that the court, that the chief understands that the Supreme Court court itself hasn't protected lower federal courts and, you know, that maybe more needed to be done in defense of lower courts. So that's a very rosy gloss on this. But. But I hope that there's something to it.

[Steve Vladic]

So I would just say, I mean, so the chief. Yes, I mean, the chief's role here is sort of in not disapproving. Right, right, that. Right. He's not on the committee. I would say there's actually an even more positive sign of the chief bestirring himself behind the scenes, which is how he handled the Boasberg misconduct conduct complaint. You know, this was. I don't want to sort of go too far in the weeds on this, but. Right. That the chief sort of sent that to Jeff Sutton when he had a choice of federal judges to send it to. I think knowing what Sutton would do with the complaint. Also, the administrative office sent two letters to the Senate Judiciary Committee that was basically trying to pour cold water on the substantive allegations against Chief Judge Boasberg. That could not have happened without the chief's at least implicit approval. So, you know, there is this disconnect between what the chief is doing in his own words and what he's doing behind the scenes. But at least behind the scenes, there are some signs of life.

[Melissa Murray]

Some signs of life. Okay. Now, in sort of less, I think, positive signs from the chief, we had a development last week on, you know, a topic kind of related to Supreme Court ethics. And when you say that, you might think, oh, like maybe they decided to do something. And of course, the answer is yes, but not something particularly constructive. So the backstory here is that. And this was all detailed in Chris Geidner's lawdark newsletter that had a very detailed post about this new rule adopted by the Court involving stocks held by the justices. So the background here is that some Supreme Court justices hold individual stocks. Seems like madness to me, but at least the chief and Alito still do that. And this can lead to recusals that happened at the last minute when Justice Alito had to recuse from a case involving oil companies and the Louisiana coast. So maybe in response to this sequence of events, or just maybe kind of by pure coincidence, Roberts decided to take action on the question of stock ownership by Justices. Steve, what did Roberts decide to do?

[Elliot Williams]

Yes.

[Steve Vladic]

So now parties must include the stock ticker labels for any company with an interest in a case, and not just the names of the companies, which I think is designed, Kate, to facilitate the Court's software, which they, you know, run all these briefs through to screen for conflicts, because heaven forbid people actually read these things themselves. So the great stock ticker improvement of 2026, one might suggest that the easier way out out of this is to just not have the justices own individual stocks.

[Melissa Murray]

Not that difficult. Not that difficult. But in. In some ways like this is, I think, kind of like the recent revelations of the chief's, you know, use of NDAs with staff and staff members and clerks, kind of an exercise in missing the point, but also kind of a reminder that they are fully capable of implementing rule changes when they see fit. And so that is a potential pressure point just, you know, to actually get them to do things like requ. Divestiture from individual stocks, which would be the easiest thing in the world for them to do.

[Steve Vladic]

Well, but again, at the risk of trying to be rose colored again here though, we have yet another example of the court responding to a problem. And it's remarkable that for all the folks who I think are. There's a difference between being cynical about the court being doomers and you don't have to actually look that far to find evidence of the court actually being responsive to certain kinds of problems. Kate, Even if the responses themselves are either either bewildering or, you know, do grave injustice to the concept of half measures, it's still, it's still something.

[Melissa Murray]

It's, it is just like their kind of non. Code of conduct, which was in substance just wildly disappointing and also important evidence that they listen and sometimes care about sufficient volume and intensity of public criticism. And so it's really, really important to keep the pressure on. All right, so that's about all the time we have for this news. Topper. This has actually unusually kind of high frequency of notes of optimism. But I guess it's you and me, Steve. And so maybe that's to be expected. But I did actually want to end on which is again, like we're very critical. Like I. That I'm going to. I feel the need to continue to remind of that because I certainly feel like we are but also that like there are these signs of life that I think we're both kind of drawn to identifying. But I did want to note, I think, a good and positive development out of UCLA last week, which is that the Trump administration has dropped its appeal of a preliminary injunction that was issued last fall regarding a settlement proposal that the Trump administration had issued to UCLA. This was like in addition to this $1.2 billion fine that the administration sought to impose on UCLA for a number of reasons related to gender affirming care and allegations of anti Semitism, a challenge brought by UCLA faculty and a big, big win and I think a kind of important piece of evidence and the kind of continuing story of the importance of resistance and not capitulating or surrendering in advance. Like sometimes when you fight, you win. And you know, when you don't fight, you never win. And so I think that is like an important takeaway from ucla. I don't know, Steve, if you have Any final thoughts before we break?

[Steve Vladic]

Just. I agree with all of that and just one can be clear eyed about how much really ugly bad stuff is happening and still want to highlight where the law is working and where, you know, resistance is working and where legal opposition is working. That's not by any stretch to say everything was fine. It's really not. But it is to say that there are reasons to believe that the law in deeply imperfect and flawed ways is still doing a heck of a lot more than, you know, it may appear at first blush, not nearly enough. But we're still so much better off with all of these interventions by the courts than we would be without them.

[Melissa Murray]

Yeah. And a lot of the solutions lie in kind of the worlds of organizing and politics and not in law. But that law does have an important role to play and that there are little moments in which it is working and that is critically important. So.

[Steve Vladic]

And now we see. To turn them into bigger moments.

[Melissa Murray]

Yeah, that's right. Okay. Well, Steve, always such a pleasure to have you. Thank you so much for joining me today.

[Steve Vladic]

Thanks for having me. Thanks, everybody.

[Melissa Murray]

Listeners, just a heads up on another podcast we are sure that you will enjoy. On the latest episode of Runaway country, our friend Alex Wagner is joined by the amazing historian Heather Cox Richardson to unpack how Donald Trump has reshaped Washington not just politically, but also physically. So they dig into what changes to DC's built environment reveal about power and legacy and how leaders try to leave their mark. The episode is out now. Listen to Runaway country wherever you get your podcasts or watch on YouTube. So we're now going to take a quick break and after the break, Leah and Melissa will join me to preview the cases the Supreme Court will hear in this upcoming sitting.

[Kate Shaw]

Listeners, I want to tell you all about a new podcast, the Briefing with Michael Waldman. Michael is a former White House speechwriter, lawyer, and constitutional scholar. He leads the Brennan center for justice, which works to repair and strengthen American democracy across a range of issues, from gerrymandering to abuse of presidential power, from the Supreme Court and its reform to corruption and so much more. We've all worked with Michael and his team of experts, and we can tell you that no one understands these challenges better than they do. What makes the Brennan center unique is that it's more than a think tank. It's focused on turning ideas into policy. And that's what we like about the Briefing podcast. You're going to hear new ideas, but you're also going to learn about the strategies, the political fights and the deal making that will shape the next phase of American democracy. If you care about American democracy, and I know you do, then this podcast is for you. You can listen and subscribe to the Briefing with Michael Waldman wherever you get your podcast. Podcasts Strict Scrutiny is brought to you by One Skin. We've all talked about why One Skin really stands out as a skincare company. It's not just hype or fancy packaging. It's real science. This is serious science that fits easily into my existing routine and it will fit easily into yours. Every time I use One Skin, I'm giving my skin a clear signal to repair damaged cells, support collagen and strengthen my skin barrier. And here's what I love about One Skin Skin. Right now the skincare game is going to get a new entrant because as we discussed on a previous episode of Strict Scrutiny, one Samuel A. Alito may be retiring from the court. There's rampant speculation. You know what that means? That means a true skincare giant is getting back in the game. And so that means it's time for you to up your game. And that's where One Skin comes in. I love One Skin's daily moisturizer. It's so fantastic. It feels light on your skin, it emulsifies in your hand, hands dab it on and you feel moisturized and just on your game all day long. No dryness, especially in this insane winter weather that is chapping your skin. One Skin can restore your moisture barrier and make you look glowy just like Sam, except with all the terrible opinions. What I've noticed about it is that in this winter weather where you're going from interior heat to outside cold, cold, it can do a number on your skin. But with One Skin, your skin stays completely consistent. Moisturize. Looking great, looking glowy all the time. What's not to love? And it's not just my experience. One Skin's products are backed by extensive lab and clinical data, including four peer review clinical studies that validate their efficacy and safety on all skin types. One Skin was born from over a decade of longevity research. One Skin's OS1 peptide is proven to target the visible skin signs of aging, helping you unlock your healthiest skin now and as you age and for a limited time you can try One Skin with 15% off using code STRICT at OneSkin co. STRICT, that's 15% off OneSkin co with code STRICT after you purchase, One Skin will ask you where you heard about them. Please support Strict Scrutiny and let them know that the gorgeous ladies of Strict Scrutiny Sent you. Thank you.

[Melissa Murray]

After a really big January sitting that involved cases on the future of trans rights, the second Amendment, and whether it will cannibalize property law and whether the court will allow the president to fire a governor of the Federal Reserve. Spoiler likely. No, because the stock market, that's law. The court actually has a lighter February sitting in store for us.

[Kate Shaw]

Don't worry though. I'm sure they'll still do some nasties on the shadow docket. This is not an example of the court, quote, quiet quitting. They probably will even get around to releasing some opinions in argued cases. So gird your loins. The February argument session, though, does look pretty light, as Kate suggested. And that means that you don't get to take the day off and sleep on SCOTUS though, because the March sitting is another doozy with many, many important election law cases about whether states will be allowed to count ballots that that are received after election day. There are cases about asylum and whether the federal government can just insist that people stopped on the Mexican side of the border, at the border cannot raise asylum claims. And of course, there is the challenge to birthright citizenship. So this, listeners, is just the calm before the storm.

[Leah Litman]

It does, however, mean we get to spend a little bit more time previewing some of the February cases and we're going to use some of that extra time to introduce you to one of the March cases, Nome v. Al Otro Lado, the asylum case that is hugely significant and at least in my view, seems to be kind of sliding under the radar. So of the February cases, we're going to spend most of our time on United States versus a second amendment challenge to a federal statute that prohibits the possession of firearms by someone who is an unlawful user of or addicted to any controlled status substance. The theory that the court below and the one the government relied on in this case is that the petitioner owned a handgun for self defense but also consumed marijuana a few days a week and therefore he was in violation of this law. And if you're thinking that sounds weird, bad, unconstitutional, you know, like I'm sympathetic to that.

[Kate Shaw]

Well, there's a slight problem. The facts are a little more complicated. The agents also found some and admittedly small amount of cocaine. So exactly one gram. I don't even know if you can snort that off a toilet seat. I'll have to check with someone who knows. Anyway, the federal government says Hamani, who is a dual citizen of the United States and Pakistan, they say that his quote, actions have drawn the attention of the FBI and the government alleges that in 2019, a search of Hamani's phone at the border crossing revealed communication suggesting that he was poised to commit fraud at the direction of suspected affiliates of the Iranian Revolutionary Guard Corps, a designated foreign terrorist organization. They also note that in quote, 2020 responded and his parents traveled to Iran to participate in a celebration of the life of Kassam Soleimani, an Iranian general and terrorist who had been killed by an American drone strike the month before. The defendant's mother was displayed on video telling an Iranian news agency that she hosted hope that, quote, her two sons, including respondent, would become martyrs like Soleimani. They also argue that Hamani maintains weekly contact with his brother, who attends an Iranian university that the United States government has designated as having terrorist ties. And allegedly that he told law enforcement officials that if he knew about an imminent terrorist attack by a Shia brother that would kill innocent people, he would not report it to the authorities.

[Melissa Murray]

Now, this things are pretty messy in this case. So the these are allegations that are in the government's brief, but the petitioner, slash defendant doesn't really dispute them and instead suggests that the government has made all these allegations, maybe true ones, but hasn't actually taken action based on them. But it is not totally clear what the permissible action would be.

[Leah Litman]

Yeah, so this, methinks, like United States versus Rahimi might be a case where the defendant is the kind of person this Supreme Court thinks, Ken, and should be barred from having a firearm. Rahimi, of course, was the case that involved a federal statute that prohibited persons subject to certain kinds of domestic violence. Restraining orders where they were found to pose a threat to another person prohibited their possession of a firearm. So the district court and the Fifth Circuit in this case, Himani's, held that this statute was invalid as applied to Mr. Haman. And because we are in the worst of timelines, this case is ostensibly governed by the court's deranged decision in nyserpa, New York State Rifle and Pistol association versus Bruun, which held that in order to sustain a firearm regulation that infringed on the Second Amendment right, the government would have to show that a gun control measure fell within the nation's tradition of firearm regulation.

[Melissa Murray]

All right, so let's dive into the history. The petitioner's brief argues that because the issue of firearms and intoxicants was something known to the Fren Framers, they were familiar with both. The government has to show a history of similar regulations that were addressed at this issue. The government concedes that the historical precedent for disarming intoxicated individuals cannot justify this prosecution because the laws prohibited carrying or using but not keeping firearms. So instead the government points to a law that it says prohibited possession by, quote, habitual drunkards. That seems to push the issue into whether the government is construing present day firearms bans to apply to addicts or people who abuse drugs, or instead that merely use. The petitioner says that the habitual or common drunkards law or laws didn't restrict possession by people who regularly drank alcohol. The government also says that if it can show the government imprisoned people for habitual drunkenness, then it would follow that the government could impose the lesser restriction of prohibiting their firearm possession. I just have to stop and say I just can't believe this is what we have to do.

[Leah Litman]

Right.

[Melissa Murray]

Under the guise of constitutional law and short rant.

[Kate Shaw]

All right, well, I'm here to tell you it is. Whether and which of these analogies will actually prevail at this court is really just a game of red pill, blue pill, as this court decides whether it's going to apply the Bruen version of the Bruen test, which requires an historical twin, as it were, or the Rahimi version of the Bruen test, which doesn't require the showing of an historical twin. Rahimi, you'll remember, upheld a firearm restriction on persons subject to domestic violence restraining orders where they were found to pose a threat to another person. And much of the tenor of the oral argument in Rahimi was along the lines of, duh, you have to be able to prohibit firearm possession by people subject to domestic violence restraining orders. It says violence in the title of the restraining order. And this led to Justice Jackson making this very pointed but clarifying observation about what was actually doing the work in determining whether the court would say, oh, we only need a pretty general similarity, like law laws that disarm bad people, or whether the court would require the government to provide a more precise and similar analog. Because if it is the former, a general analog, then it's really about modern sensibilities driving the analysis, not about history and tradition. And it also seems to be modern sensibilities that drive the choice of which test, the Bruin Bruin test or the Bruin Rahimi test, you actually apply. So let's hear from her here.

[Leah Litman]

Here.

[Kate Shaw]

What if we had a hypothetical in

[Melissa Murray]

which we actually determined, based on the historical record, that domestic violence was not considered dangerousness back in the day? I mean, I just don't know what we do with that scenario.

[Leah Litman]

So I think in that scenario you

[Kate Shaw]

would recognize that is it is consistent with the Second Amendment's original and enduring meeting that you can disarm dangerous people

[Leah Litman]

and the conception of what regulations that permits today is not controlled by founding

[Kate Shaw]

era applications of the principle.

[Melissa Murray]

And what's the point of going to the founding era? I mean, I thought it was doing some work, but if we're still applying modern sensibilities, I don't really understand the historical framing.

[Leah Litman]

So as I was reading into this case, I saw that one of the amicus briefs on behalf of Second Amendment scholars arguing in support of this gun control regulation was filed by Greg Costa as counsel of record. And if that name sounds familiar, Costa is a former 5th Circuit judge who basically said boys bye to his colleagues during the Biden administration. Like Costa out, I can't handle this BS anymore. And I just found that interesting. So we have been kind of talking about some of the oddities of the Second Amendment and how it might work as applied to this particular case. And I think in part because of what seems like an intuition that maybe this Supreme Court isn't going to be that sympathetic to this individual's Second Amendment rights. The petitioner in this case has as their first argument in the brief that the statute here is unconstitutionally vague because the term, quote, unlawful user is ambiguous and susceptible to too many different interpretations. So also wanted to observe that as we were talking about the government's defenses and pointing to these habitual drunkards law, the federal government, to the Trump administration, the one that warned us that Kamala was going to take away guns, this administration, this federal government is arguing that this law comports with the Second Amendment. And it's not just this, but also some recent ish examples that have made me wonder if we are seeing a Second Amendment realignment. So here is a clip of Donald Trump, who apparently speaks for the entire executive branch.

[Melissa Murray]

You know, he can't have guns.

[Elliot Williams]

You can't walk in with guns.

[Leah Litman]

What about the Second Amendment?

[Elliot Williams]

You can't walk into guns. You can't do that.

[Leah Litman]

And here is some box wine expressing a similar view.

[Melissa Murray]

You bring a gun into the district, you mark my words, you're going to jail. I don't care if you have a license in another district, and I don't care if you're a law abiding gun owner somewhere else. You bring a gun into this district, count on going to jail and hope you get the gun back.

[Leah Litman]

Now, obviously it might not be a realignment so much as a reversion to Their general rule, which is their people have rights and people who disagree with them or don't look like them do not. But just wanted to flag that.

[Melissa Murray]

Yeah. It's somehow figuring out for these justices to sort of of try to synthesize the insane history and tradition test of Bruen with the like, for my friends, everything and my enemies, the law kind of overarching constitutional theory of this Trump administration, I think is, like, going to be a little bit challenging. But it does feel as though that is what we are seeing. And whether the court is like, no, we're going to try to do something that seems more law like or just cosign

[Leah Litman]

the.

[Melissa Murray]

For my friends, everything. The kind of a campaign of we get to decide who gets guns after decades of suggesting that it's the liberals who want to take some people's guns, you know, I think is going to be a challenging undertaking intellectually.

[Kate Shaw]

Other cases that the court will hear in February include Havana Docks versus Royal Caribbean Cruises. And this is about the meaning of the Libertad Act, a federal law that governs relations between the United States and Cuba. Cuba. The law creates a private right of action, which is an authorization to bring a lawsuit for US Nationals who have a claim that their property was confiscated by the Communist regime in Cuba, and it allows them to sue the persons who traffic in that property. The question in this case is whether the cause of action applies where the defendant trafficked in property confiscated by the Cuban government when the plaintiff has a claim to that property, or whether instead the cause of action applies with the defendant trafficked in the property that the plaintiff would have continued to own at the time for the trafficking had there been no expropriation. We should note that Chris Landau of Kirkland Ellis filed petitions before becoming Deputy Secretary of State in the second Trump administration within the department that is, quote, unquote, running Venezuela and threatening Cuba. So also kind of awkward moment.

[Melissa Murray]

Yeah.

[Elliot Williams]

Look, if I lived in Havana and

[Melissa Murray]

I was in the government, I'd be concerned at least a little bit.

[Leah Litman]

I just thought this was interesting. Like, I've been in this business even before you guys, and maybe. Right. That kind of helped bring him to the attention of the Trump administration.

[Kate Shaw]

Interesting.

[Leah Litman]

So, yeah, I mean, who knows?

[Kate Shaw]

Everyone has an origin story. Why not this one?

[Leah Litman]

Yes. So another case the court is going to hear is ExxonMobil v. Corporation SIMEX about whether the Helms Burton act abrogates foreign sovereign immunity in cases of Cuban instrumentalities, or whether plaintiffs instead said must show that their case falls within an exception to foreign Sovereign immunity under the general federal statute governing foreign sovereign immunity, the Foreign Sovereign Immunities Act.

[Kate Shaw]

I love when it's a theme week at the.

[Leah Litman]

Yes. Yes.

[Melissa Murray]

Okay, next up, Enbridge Energy versus Nestle is a case about whether district courts can still hear cases that are removed to federal court that is taken from state court to federal court by the defendant, where the case was eligible to be filed in federal court in the first instance if the defendant didn't remove them within the 30 days required under the removal standard statute.

[Kate Shaw]

The court will also hear Pung versus Isabel County, Michigan. That was easy to pronounce, not like the Louisiana county that you all decided to get our mentions about. But anyway.

[Melissa Murray]

No, it's actually Isabel.

[Kate Shaw]

Isabel, Isabelle. Anyway, this is a lot of ground here, people.

[Melissa Murray]

It's hard to get. It's hard.

[Kate Shaw]

It's hard.

[Melissa Murray]

Sometimes we mispronounce. Cut us.

[Kate Shaw]

Give us some grace. Honestly. All right. This case is about the legal limits on the government's ability to take and sell someone's home in order to satisfy a debt the homeowner owes to their the government. One issue in the case is whether if the sale results in a surplus and the government keeps the surplus, if that is a taking. Whether the case presents that issue, however, kind of depends on the second issue in the case, which is how to determine the value of the property taken. Specifically, the plaintiff here alleges that the government sold her house for a fraction of its real value, whereas if they had sold it at fair market value, they would have obtained way more than the tax debt the plaintiff allegedly owed to the government. The plaintiff also says that the tax debt was erroneous and she never actually owed the debt.

[Leah Litman]

Another case, Hunter vs. United States, is about the scope of what are called appellate waivers. So often when a defendant pleads guilty and receives probably a more lenient sentence than they might have received had they gone to trial, the plea agreement foregoes certain options the defendant might otherwise have had. One common term in a plea agreement is an appellate waiver. A provision that generally waves relinquishes a defendant's right to appeal their sentence. Now, courts have said that those waivers do not prohibit a defendant from raising a Sixth Amendment claim that alleges they received ineffective assistance of counsel, in part because if the defendant was represented by ineffective counsel, then the plea agreement itself would be legally dubious. Courts have also allowed defendants to raise the claim that they were sentenced to more time in prison than law permits, even if, again, there's an appellate waiver in the plea agreement. The question in this case is whether a general appellate waiver also prohibits a defendant from raising a claim that he was unconstitutionally sentenced to have to take mandatory medication for mental health issues. There's also what seems to be a threshold question that is a little bit more generally applicable about whether the appellate waiver should even apply in cases like this one, where the court that sentenced the defendant and approved the plea deal tells the defendant at the end of their sentencing without objection from the government that they, the defendant, have, quote, a right to appeal.

[Melissa Murray]

Finally, we have Montgomery vs. Kariba Transport LLC about whether federal law preempts a state common law claim against a freight broker for negligently selecting a motor carrier or driver that injures the plaintiff. Okay, so as we said, you know, not the big headline grabbers, but some interesting technical legal questions. And that does it for the February calendar. But we did want to give you a heads up about the important asylum case the court is hearing next month that we fear has crept under the radar. And that is Gnome versus Alro Lado. The question in this case is whether an individual who is stopped on the Mexican side of the US Border arrives in the United States within the meaning of the Immigration and Nationality Act. That in turn affects whether an individual can apply for and claim a SIP asylum. Because the INA allows an individual who, quote, arrives in the U. S to apply for asylum and provides that they must be inspected by an immigration officer, people who are physically present in the United States can also apply for asylum.

[Kate Shaw]

This particular case arises out of a long history of efforts to restrict asylum. So under the so called metering rule and asylum transit rule, the federal government would only consider asylum cases for non Mexicans who traveled through Mexico if they had applied for asylum there, were there then at the border, officers would only allow people who were U.S. citizens and had valid travel documents or asylum seekers who had complied with the asylum transit rule to actually enter the United States. The courts below concluded that the phrase arriving in the United States meant someone who approaches a port of entry. The Ninth Circuit also said that those practices violated another law, 8 USC Section 1225, that requires government officials to port process their request.

[Leah Litman]

So the Supreme Court's decision to take this case is hugely concerning. There is no circuit split. It is the only federal appellate decision on the issue. And the metering policy that led to the initial challenge has been rescinded, as was the asylum transit rule. But the Trump administration still wanted the Supreme Court to take this case and the court did, likely because the Trump administration wants to adopt a categorical ban on applying for asylum by people who are stopped on the Mexico side of the US Mexico border. The Solicitor General's cert petition, that is the document asking the Supreme Court to take this case, wrote fairly ominously, quote, the decision thus deprives the executive branch of a critical tool and it argued this administration should retain the option of reviving that practice.

[Melissa Murray]

If the Supreme Court rules for the federal government, that would create a huge incentive for an administration like Trump's that wants to basically end a cycle asylum to stop people on the other side of the border, which again, if SCOTUS rules for the federal government would mean the administration wouldn't even have to consider an individual's asylum claim. We will definitely have more to say about this case when it is argued in March.

[Kate Shaw]

Guess what stricties? We are again just weeks away from seeing you, our amazing strict fans in person on the West Coast. If you have not gotten your ticket for the LA show at the Palace Theater on March20, March 7, I'm sorry, but what are you waiting for? Like get on it. We want to see you and you want to see us. We are going to have the most, most fun, super fun games. It's going to be amazing. You're going to be so glad you came. Am I right Leah?

[Leah Litman]

Oh yeah, you are for sure right. I am so excited for this west coast trip. I feel like I have been anticipating it for years and certainly months. I've basically already mapped out all of the sugar I will be eating in preparation for the shift so I am actually out of control by the time we even hit the stage.

[Kate Shaw]

I'm telling you this is going to be insane and we're gonna have awesome giveaways. It's gonna be so much fun. Seriously, what are you waiting for?

[Leah Litman]

I sent Kate, Melissa and Melody and Michael versions of the shirts that I will be bringing and I will just say their teenagers stole their shirts, which is basically the biggest compliment and sign that these shirts are super awesome.

[Melissa Murray]

Wore to school the next day. Like yeah, I never had a chance with that with one of those shirts. Yeah, they're great.

[Kate Shaw]

So get your [e-mail] forward/events and then ponder why it took you so long. Just really think about it and then question your choices. That's all. Be better, be best.

[Melissa Murray]

Let's take one more break and then I'll be back with Elliot Williams to talk about his new book five Bullets.

[Kate Shaw]

Strict Scrutiny is brought to you by Fatty fifteen. How much time, money and energy have you spent on health, wellness and beauty products to look and feel younger and healthy, healthier. I know a ton. But guess what? What if you could narrow this down to one product that actually works and makes you look amazing, Makes you feel amazing all of the time. That's why I'm excited to share with you guys. C15 from fatty15, the first emerging essential fatty acid to be discovered in more than 90 years. It is an incredible scientific breakthrough to support our long term health and wellness and you guessed it, healthy aging. Based on over 100 studies, we know that C15 strengthens our cells and is a foundational healthy aging nutrient which helps to slow down aging at the cellular level. In fact, when our cells don't have enough C15, they can become fragile and age faster. And when our cells age, our bodies age too. No bueno. Thankfully, fatty 15 repairs age related damage to cells, protects them from breakdown and activates pathways in the body that help regulate our sleep, cognitive health and metabolism. Fatty 15 is a science backed, award winning, patented 100% pure C15 supplement. It is vegan friendly, free of flavors, allergens or preservatives. I love fatty 15 because it's just so easy. One capsule once a day, pop it in, you're good to go. And you know that you're changing your cellular composition from the inside, making sure that you are doing everything you can can to promote healthy aging and repair all of your cellular damage again at the cellular level. Best of all, fatty 15 comes in a gorgeous reusable glass bamboo jar and the refills are shipped right to your door. So there's no guesswork, there's no running to the supermarket, running to the pharmacy. It just shows up, you pop it in and you're good to go. Fatty 15 is on a mission to optimize your C15 levels to help support your launch long term health and wellness, especially as you age. You can get an additional 15% off their 90 days subscription starter kit by going to fatty15.comstrict and using code strict at checkout.

[Grainger Announcer]

This is the story of the one as the purchasing manager at a manufacturing plant, she knows the only thing more important than having the right safety gear is having it there when you need it. That's why she partners with Grainger for auto reordering, so her team members can count on her to have cut resistant gloves on hand and each shift can run safely and efficiently. Call 1-800-GRAINGER clickgrainger.com or just stop by Grainger for the ones who get it done.

[Melissa Murray]

For our final segment today, I'm delighted to be joined by Elliot Williams to talk about his new book, Five Bullets, the Story of Bernie Getz, New York's Explosive 1980s, and the Subway vigilante trial that divided the nation. Elliot is a CNN legal analyst and regular guest host on NPR and Sirius xm. He is also a former Deputy Assistant Attorney General at the Department of Justice, among other things. Elliot, welcome to Strict Scrutiny.

[Elliot Williams]

So great to be here.

[Melissa Murray]

So happy to have you. So let's dive right in. Elliot, you are from Brooklyn, where I now live, but you no longer do, and you grew up in Jersey. So the events in this book loomed very large during your New York area childhood. I'm from Chicago, even though I now live in New York, so it wasn't as kind of close to home for me. But I definitely remember hearing about Getz and his trial. But I learned, of course, a ton from this book. So for our listeners who did not grow up in New York, or maybe our younger listeners who just, like, don't really know much about the story, what happened on that New York City subway car on December 22, 1984?

[Elliot Williams]

Right. And also for viewers who don't recall the lyrics to Billy Joel's We Didn't Start the Fire with foreign debts, homeless vets, aids, crack, Bernie Getz. It was an event that was regarded as among the pantheon of some of the biggest moments of the 20th century. And a lot of people may not remember it, but Bernard Goetz was a quirky loner who lived in the West Village of Manhattan and had been mugged once before and always carried an unlicensed firearm with him everywhere he went. There were four young unarmed black teenagers on the subway on the same car he got on. They were rowdy, they were acting up, but certainly did not mug or assault anyone. But a number of the passengers thought, hey, these guys are bothersome, perhaps a nuisance in some way. One of them approached Getz and either demanded $5 or asked Getz for $5, sir, can I have $5? Gets, fearing that he would be mugged, immediately pulled out his firearm and shot all four of them in somewhat rapid succession, with the last one possibly even having stood over and said, you don't look so bad, here's another, and shooting him in the chest. He ran away, ultimately turned himself in after nine days, but became a cause celeb almost in a polarizing case. People really rallied behind. Many people rallied behind this individual at a time when New York was just very unsafe and rough. And people saw him, many as an avenger, as almost as Batman of sorts

[Melissa Murray]

and you sort of paint that picture of 1980s New York as a dangerous place. And many people really felt that. And so they attached themselves, right? They sort of saw something of themselves in Bernie Getz in a way that was really troubling to read about, but is very real people. And it was kind of a cross racial coalition of supporters, which is one of the very interesting, complex dynamics. Right? This is not just a story. It is not. Not a story, but it is not just a story about an angry sort of white man who's kind of a recluse and who is scared of these four black teenagers and. And decides to act on that fear in a way that only white New Yorkers identified with. He had a lot of supporters across the spectrum, right?

[Elliot Williams]

He really did. And just to put a finer point on how rough New York was at the time, this wasn't the New York or isn't the New York of the Labradoodles in Kombucha and Lululemons on every corner that we think of when we think of New York today. I mean, the homicide rate in New York was hovering just below two thirds a year, which by way of comparison, you're talking about three or four hundred homicides a year in New York. The graffiti, the litter, the mismanagement, the seeking bailouts from the city, it was just a rougher place. And yes, an odd multiracial coalition did seem to get behind Getz, who, I quote a number of black people in the book even saying, I would have done the same thing he'd done. Now again, it became very, very abstract. A lot of people weren't on the train. And also, it's really easy to look in, to see this potential hero from a situation that you were not in. Right. And that sort of lifted him up. Now, I will say this. Certainly there was a multiracial coalition of sorts around Bernard Goetz. However, the fact that he was white certainly made it much easier to make him a hero. And a point I make throughout the book Five Bullets is, what if the races of these individuals were reversed? And I almost challenge the reader to really search within yourself and think your knee jerk reaction. Were you to hear that a black man had shot four white teenagers, what would you think? And I think people are quick to say, oh, I regard everything exactly the same. And I just don't believe that's the case, at least in, certainly in 1984 and even today.

[Melissa Murray]

Absolutely. Then, now. And you both pose the question and have a number of people really articulate that explicitly in the book. Yes, okay, so 1980s New York is sort of the subject of the book. And I kept thinking about just how wildly current so many of the dynamics in the book are. It really does feel like the 1980s are present in all kinds of ways right now. So partly, I think I read this book kind of quick on the heels of having read Jonathan Mahler's Gods of New York, which is also kind of covering a similar period in New York history, but everything from, like, the rise of Donald Trump, who is not like a central character at all in the book, but does show up to the kind of politics of fear and anxiety, to Rupert Murdoch, who is then, you know, stewarding the New York Post rather than Fox News. But it just feels like we are living right now either like in a version of the book or, you know, the kind of logical outgrowth of much of what is in the book. And, you know, you actually make that point explicitly sort of connecting gets to Trump in some ways near the end of the book in a passage that kind of just wanted to ask you to read because despite sort of what I. What I was just saying about it is a striking aspect of the book, that it is a more complex picture in terms of who supported and who condemned Getz than I think maybe I realized at the time. There is also a straight line between the particular style of racist and reactionary politics that gets, in many ways embodies to Donald Trump today. So do you mind reading reading that passage for me?

[Elliot Williams]

Of course, yeah. And it's absolutely. It's not just race. I mean, it's fear based, reactionary politics. So here's from toward the end of the book, if Getz's reasons for mistrusting those in power sound familiar, they should. The notion that has been a thread undergirding American politics for at least a generation, reaching its high point with Donald Trump's second election to the White House in 2020. One of the most devastating campaign ads in recent memory featured a parade of grainy images of transgender inmates over the voice of Vice President Kamala Harris speaking about trans issues. The tagline Kamala is for they them, President Trump is for you cleanly captured Getz's animating principle decades after he became vocal about it half a century later. Transgender inmates, or Ms. 13 members pouring across the border in Carolina can we swapped for black crime and represent largely the same thing, a menace driving public fear that politically correct elites refused to even name. Bernie was anti woke before being anti woke was cool.

[Melissa Murray]

I just, when I read the book and then just now when you were reading that passage, I just liked the William Faulkner quote. Like, the past is never dead. It's not even past. It was just like, so front of mind.

[Elliot Williams]

Well, I would just say one more thing. It's the issues we live with today. Vigilantes, race, fear in cities, how afraid we should be of cities, which all of Minneapolis, Washington, D.C. and Chicago know are all about what Washington thinks of cities. Literally, the people are the same as well. Rudy Giuliani, Rupert Murdoch, Al Sharpton, the National Rifle association, which are key players in the book, literally used the events in 1984 to. To bolster the careers they have today.

[Melissa Murray]

Giuliani was like a really serious lawyer back then, and it was just like, kind of wild to be reminded of the fact that that was the case. Wait, one more person you didn't just mention, but I do want to ask you about for a second is Curtis Sliwa, who, you know, people locally are. He's probably front of mind for folks who remember that he just ran in the last New York City mayoral race. And they kind of know him as this sort of older gentleman with the beret and a lot of cats. But that's maybe all people know about him. Can you say a few words about Curtis Lewa, for the uninitiated?

[Elliot Williams]

Yes. So fascinating figure, for lack of a better way to put it. So he founded in the early 1980s or late 70s this organization called the Guardian Angels. And it's a, for lack of a better term, vigilante group. They are a public safety patrol largely made of black and brown teenagers around New York, but 50 cities worldwide now that seeks to, at least according to them, fill in where the police failed. And I interviewed him a bunch through the book, and he regards the fact that the Guardian Angels even exist as indicative of the failures of the NYPD and policing generally, that if they did their jobs, we wouldn't have to step in. If the mayor cared about public safety, we would not have to step in. And he gave me many colorful at best and almost racist quotes at worst throughout the book, talking about because he was part of the trial team, he was, in effect, the security, and was explicit about the fact that the defense team really wanted to stoke the racial fears of the jury, and they played into that. But needless to say, he has been a plague on the New York scene, certainly for decades. He and Bernard get still run into each other quite a bit, believe it or not, at pro marijuana legalization rallies. They're big cannabis guys, both of them, and they see each other it's just New York was wild in the 80s.

[Melissa Murray]

So you talked to Sleeva, but you also talked to Getz a lot. And I. Yeah, there's casually at one point, you ask him about this really, really racist statement that he made that was not admitted in the criminal trial, but was admitted in the civil trial, if I remember correctly. And you ask him to expl. And he basically says, I was high as a kite, so I don't even know what I was. I mean, anyway, yeah, I guess has been a big marijuana guy for a long time, but, yeah. So talk for a minute about your decision to interview Getz. You talked to him a lot over the course of the book.

[Elliot Williams]

Yeah, I did. And I really wanted to make it a complete work, not an essay, not a polemic, not a. All the terms. Right. And I felt that completeness would have required talking to him, not validating him, not platforming him, as some people might think, say. But I want to hear what Bernard Goetz has to say. Now, to be clear, I made perhaps dozens of attempts to contact the surviving two young men, and they declined to be interviewed for the book. And I understand that it was a traumatic experience 40 years ago. They've tried to move on with their lives. One of them to some extent has. But I did talk to Getz, and the most remarkable thing in the conversations with him was the utterance, lack of self reflection that came through. And I would have even accepted had he said, I was scared on the subway that time, that day, New York City was a scary place. I was vulnerable. I'd been mugged once before and I wasn't going to let it happen again. So I did this comma. And it was a tragedy, and it was Dickensian in its tragic outcome. No, he, in effect, almost made it sound like you eugenics. And he said to me, those guys needed shooting. Those were his words. That's not why I shot them. But they absolutely needed shooting. And to him, it's almost as. And he was just unrepentant, almost proud of the action. To him, it's almost that there are people who are unworthy of residing with the rest of us under our social compact or whatever else, and they just have to go. And he. There was no hesitation, there's no flinching. And that's the thing that, again, you can be comfortable with your actions in the past, but at least have some reflection about them. And if anything, it's metastasized in him and he's gotten even more aggressive about it.

[Leah Litman]

Right.

[Melissa Murray]

He seemed less complex with the passage of time than sort of in the early days you're kind of recounting.

[Elliot Williams]

Yeah. And I'm glad it's in the book. I don't think Bernard Goetz comes across in that long chapter, the chapter where I detail the conversation. I don't think it comes off positively. And I certainly did not intend to make him the protagonist or hero of the book. But you really see what's going on

[Melissa Murray]

in this man's mind and in his own words. Okay, a couple of questions sort of pivoting to maybe kind of like law and policy. One, you mentioned the nra and I'm curious, like, can you just talk a little bit about what the case meant for the rise of the modern iteration of the nra, which is of course very different from the NRA in its inception and in this case plays a role in that transformation.

[Elliot Williams]

Yeah. And everyone who's written a book will say, I think that there are things that you thought when you set out to write and then things you just learned. And I feel like I'm one of the world's foremost experts on Bernard Goetz in this shooting now, but I did not know this when I started reporting. And ultimately the NRA prior to 1977 was literally a sporting organization. Cub sports scouts and clay shooting with grandpa was really their focus. They did not have an appetite for wading into the full throated second amendment advocacy that we know founded by right,

[Melissa Murray]

like union soldiers working on improving marksmanship. Like it's really about the training and marksmanship and marksmanship.

[Elliot Williams]

So in 1977, there was a literal revolt in the organization. And it's not me being cute, they called it the revolt at Cincinnati. It was a takeover or a couple at the board meeting at the convention that year where the second amendment sort of oriented members of the NRA took the organization over, got rid of the whole board and decided to move into full throated second amendment advocacy. Well, a few years after that, the Bernard Goetz case happened. And it was as perfect a test case for any that they wanted. It was a wide, white, urban dwelling individual in a blue city in a blue state who had applied for a firearm and been denied and had, at least according to them, engaged in an act of self defense. It was adjusted for every possible variable that made him perfect for them. Now, the more they learned about the case, the more they sort of backed off it. But this was a case that they latched onto. They gave him $40,000 over the life of his legal. Legal defense for his legal defense. And really saw it as a watershed Second Amendment moment.

[Melissa Murray]

And that actually is a perfect segue to the next question I wanted to ask, which is, you know, we are a Supreme Court podcast. Our listeners likely do know that in 2022, in the Bruin case out of New York, the Supreme Court struck down the state laws that required some special reason to get a permit to carry a gun. The very kind of version of the state law that right, you know, gets unsuccessful, successfully tried to use to get a permit to carry. You know, his failure to get a permit did not prevent him from acquiring and then carrying his gun, but he would have gotten it on his first try today. And, you know, we talked about this a good amount when the case was argued. It was. We didn't talk about get specifically, but we did talk about at the argument. New York city in the 1980s and the subway kind of loomed large. Like, Alito was asking questions that sort of evoked the city from that era. And it just conjuring up that image of New York City, like, seemed for at least Alito to kind of be. To motivate the need to declare, you know, a state of affairs that entitled everybody to carry a gun. Because places like New York are so dangerous, like, even though they, of course, dress up the reasoning as kind of historical. But, like, that is not the New York City of Today or of 2022, when Bruen was decided, or even a couple of years after.

[Elliot Williams]

Oh, yes.

[Melissa Murray]

So I guess what do we make of the fact that it looms as large as it does over kind of law and culture, and I think has somehow motivated, in some ways the Supreme Court to declare this far more lax regime of firearms regulation in a way that, like, could be really dangerous if we end up again in a New York City that looks anything like the 1980s.

[Elliot Williams]

Absolutely. And it's. It's really important that you said just a few years after, when we talk about Bernard Goetz's civil trial, which was 1996, the city. The homicide rates were down. The city was just turned around. It was in stronger fiscal footing. Things were just different. Race meant something different in the city at the time, even over the course of that decade. I'm not saying that it was a multiracial haven and a perfect utopia, but it was. But it was just a different place than it was in 1984. What's fascinating about the way people regard that firearm question is it's very much a Rorschach test, which is, if the city is rougher, therefore, we need more firearms. Well, the argument was that the city remains as congested and crowded and the risk of stray gunfire is just a different and more acute issue in a more dense place like New York City than elsewhere. And they tried to make that argument. People have been trying to make it for decades, and it just did not take hold. I mean, I think there was a Supreme Court majority that was certainly receptive to the idea that a more safe place necessarily requires more guns to be more safe. And that's just the argument that won, but it really is remarkable. And one of the voices that I speak to a few times in the book is one of the leaders of the NRA at the time, their policy wonk, who he was lovely to speak with, but just comes at it from a perspective that more firearm number one, as a constitutional matter, it's a no brainer to him, but also as a policy matter, more firearms in a place like New York are a good thing. Now, I would note Bernard Goetz was charged with reckless endangerment because of the fact that he opened fire in a crowded subway that had at least one.

[Melissa Murray]

There was a baby. Right?

[Elliot Williams]

So this whole idea, the argument that, well, New York is different because it's congested and crowded and the risk of someone being harmed by a firearm literally played out in this case of, number one, a charge he was not even convicted with. He wasn't ultimately convicted of the reckless endangerment charge, despite admitting to having blindly fired shots the first time. He says he didn't even aim the first time he shot. But also there was a huge risk to other people and somehow that argument just did not win.

[Melissa Murray]

Okay, so maybe this will be the last question. And there's a couple of different parts to it. So you mentioned the later civil trial, a decade or so later. You spend a lot of time back to the kind of the criminal trial now. So you spend a lot of time on the trial and on the jury. And the jury mostly acquits, right? They convict on one relatively minor count, but acquit on everything else. And then they do subsequently award millions in a civil case brought by one of the victims, although like uncollected millions. But I guess back to the criminal case. My, again, impression from the Midwest, but just my general impression, I feel like from, from, from the, the way I had understood the significance or understood the, the kind of trial was that this verdict was a travesty and an outrage. Like these young men's lives were not valued, that hate and fear won in this acquittal and that that was the sort of Bottom line, takeaway. And I'm not saying that you don't. That you're, like, writing hard against that, but I do think, as is true throughout the book, you take something of a more nuanced view. So let me. Let me offer this new. Tell me if I'm reading you properly. Properly, that, like, jury is. Are us right, for better or worse, that grand juries and like a jury in a criminal trial. I've thought about this a lot because grand jury is, like, this week, refusing to indict Democratic members of Congress or, you know, guys who throw sandwiches in D.C. and it's, you know, right or wrong, the jury was reflective of the views of New York at the time. And that doesn't erase the kind of normative bottom line that I just offered, but it just says something different. So for better or worse, they are us, and that is who New York and maybe the country was at the moment of this criminal trial. So I guess, is that a fair reading of the kind of takeaway? And what do you think about the institution of the jury? I guess, having spent all this time both, you know, looking at the. The Getz jury, but also as somebody who follows, you know, kind of the law very closely right now, like, what is the role of the jury? I mean, a big question, but I think it's a really important one.

[Elliot Williams]

Yeah, well, let me answer that second. First, what is the role of the jury? I have long believed, and this is a very cynical view, that no matter how much we as a legal system attempt to believe the fiction that juries are truly applying law to fact and pouring over the jury instructions and given clear directions as to the definition of reasonableness, and reasonable doubt and recklessness in all of these different legal standards really are just trusting their guts. At the end of the day. These are complicated concepts. Explain. Like, we don't have the time here, but, you know, Kate, explain the concept of reasonable doubt to me, another seasoned attorney. Well, you could in an hour, maybe we could unpack it. But it's a deeply complex concept that no jury instruction really explains. Well, juries just sort of feel like, I really think he did it or I really think he didn't do it. And I just don't have a good feeling about this. But at the end of the day, they're trusting their guts. And the problem, and this comes up in the Getz case, where race and inequality, whatever else, are factors looming over the trial. Trusting their guts means also putting themselves in the place of a defendant that they felt they had some kinship or connection to. And I do make that point now, like you said, I treat it with some nuance, which is that, look, they did the best they could, but they were just sort of winging it. I think, despite what the jurors I've spoken to from the trial seem they believe that they followed every aspect of the law to a T. But I just think, number one, the racial dynamics of the case were so clear. And number two, the act of applying fact to law is just an immensely complicated one and far more complicated than we as lawyers wish to think. And so to answer your question, what is the role of the jury? It's a wonderful thing. And yes, it's great that people. People get acquitted sometimes because that's the way the system should work. But at the end of the day, I don't think. I think it's a bit of a fiction to think that juries really are applying fact to law in the way that the lofty goals of our system seem to hope and think that they actually are. That was the lofty and the bigger. Well, I mean, the specific point about this jury is the same thing, but only just related to that broader point. I just think that this jury. Jury one, just look at their defensiveness, and I quote a couple in the book, their defensiveness about the question of race. And I even posed the question to the juror I interviewed, and I just said, look, you know, in the back of your mind, you can't tell me it wasn't kicking around. And he just almost got defensive. Oh, of course not. No, no, no. I would. I would cheat the same case, any case, the same way. I don't care if you're red, white, black, blue, or brown, whatever. You know, that kind of nonsense to me. And I just think they were of that city of that time, in a rough city. Six of them had been victims of crime. Three of them had been victims of subway crime. And to some extent, I think they were just going with their guts.

[Melissa Murray]

All right, well, there's more to say about this great book, but you'll have to read it for yourself, listeners. I'm gonna hold this up, viewers.

[Elliot Williams]

I'll hold mine up, too.

[Melissa Murray]

I'll hold yours up, too. The book is five the story of Bernie New York's explosive 80s and the subway Vigilante Trial that Divided the Nation by Elliot Williams. Getitbookshop.org, there's an audiobook that Elliot reads, and it really, really is a fascinating and, you know, profound meditation on a lot of stuff that we are still very much grappling with. So, Eliot, thank you so much for taking the time to talk to us.

[Elliot Williams]

Thanks so much for having me. This was wonderful.

[Melissa Murray]

Thanks again to Eliot Williams for taking the time to join us today. And before we go, let's briefly identify some favorite things from the last week. I'm just gonna mention two One is I am f Finally reading. I'm actually listening to Ron Chernow's Grant biography, which is fantastic. It's really long, which was kind of what dissuaded me from reading in the first instance. And it's, you know, 40 some hours on audiobook. But I've had a lot of travel this week and so I've been listening and it's fantastic. And I am finally watching with my middle kid the, what is it, eight or ten part Michael Jordan documentary Last Dance.

[Leah Litman]

I'm obsessed with that.

[Melissa Murray]

So of course, like, I know the memes, I know the tears. I know I took that personally. But I and I grew up in Chicago and so like I watched the bulls in the 80s and 90s and it is still like one of the best pieces of documentary filmmaking. There's so much amazing contemporaneous footage. The interviews today are incredible. Like, it's just so good. And so I am four episodes in and cannot wait to watch the rest of them.

[Leah Litman]

So here are mine. I was traveling on vacation last week, which is how I knew the court would release the tariffs opinion. So I was doing some recreational reading. I finally read Adriana Herrera's A Caribbean Heiress in Paris series. Absolutely loved it. Also, I am obsessed with Charlie's Wuthering Heights album. I'm not a Wuthering Heights girly. Probably not going to see the movie. Love the album. I'm dying for you. My favorite track.

[Melissa Murray]

I I have to say I haven't seen the movie yet. I do plan to see it, but I, I really liked I started listening to the album, but I needed it as background to write and it's actually like too engaging. Like you can't just put it on, you have to actually fully listen to it. So I it's not writing music, which I for some reason had a feeling that I thought it would be. But yes, it's very good.

[Leah Litman]

Yeah. Two other things. So Kenny from Crooked stepped in to do our video production of our emergency episode. So I wanted to add that to Favorite things. And then finally this is a manifestation. One of my favorite things this week is going to be reading an acceptance from a law review on my article, the Passive Vices, which I have sent out this cycle. And yeah, it's a fantastic law review article.

[Melissa Murray]

Students, if you have spaces, pick this article up. It's so good.

[Leah Litman]

I feel like it's a good title and it's going to get some good.

[Melissa Murray]

It's a great title and it's a great piece indeed. That is going to be one year. That is going to be one of your favorite things.

[Leah Litman]

Yes.

[Melissa Murray]

And and law review editors, it will be one of your favorite things when you read it.

[Leah Litman]

Working with me, right?

[Melissa Murray]

Exactly that.

[Leah Litman]

That too.

[Melissa Murray]

It will.

[Leah Litman]

Strict Scrutiny is a crooked media production hosted and executive produced by me, Leah Litman, Melissa Murray, and Kate Shaw. Our senior producer and editor is Melody Rowell. Michael Goldsmith is our producer. Jordan Thomas is our intern. Our music is by Eddie Cooper. We get production support from Katie Long and Adrienne Hill. Matt de Groat is our head of production, and thanks to our video team, Ben Hethcote and Johanna Case, our production staff is proudly unionized with the Writers Guild of America East. If you haven't already, be sure to subscribe to Strict Scrutiny in your favorite podcast app and on YouTube strictscrutinypodcast 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.

[Grainger Announcer]

This is the story of the One as the purchasing manager at a manufacturing plant, she knows the only thing more important than having the right safety gear is having it there when you need it. That's why she partners with Grainger for auto reordering, so her team members can count on her to have cut resistant gloves on hand and each shift can run safely and efficiently. Call 1-800-GRAINGER click granger.com or just stop by Granger for the ones who get it done.