Speaker 1: Hello, and welcome to this week's episode of The trib Cast.
Speaker 1: I'm Eleanor Klibanoff, joined as always by my co host
Speaker 1: Matthew Watkins.
Speaker 2: Hello, welcome back, Thank you.
Speaker 1: It's been several weeks since we've been able to do
Speaker 1: this together. I think last time we did together in
Speaker 1: the Arlington.
Speaker 2: That's right. Yeah, and not much has happened since.
Speaker 3: Hardly anything.
Speaker 1: Yeah, I've been traveling and it's mostly for work though,
Speaker 1: But it's crazy to step away from your phone for
Speaker 1: like three hours to do an interview or something and
Speaker 1: you come back and you're.
Speaker 4: Like, oh god, I I'm sure you listened to the
Speaker 4: podcast you were on and so but I'll allow me
Speaker 4: to extend my apologies in person for Jasper and I
Speaker 4: making fun of you for predicting special Session this year.
Speaker 1: Yes, yeah, that's I was wanted to come back and
Speaker 1: do like a I wanted to be part of it
Speaker 1: and uh way in. But maybe we'll have him back
Speaker 1: on and we can uh you know, make him suffer
Speaker 1: for absolutely through the special Session.
Speaker 3: Well, we are going to jump in.
Speaker 1: I as I told Matthew before it got started, We're
Speaker 1: going to talk with our guests for a little bit
Speaker 1: and then I do have a fun trivia fact that
Speaker 1: I think I can maybe stump Matthew with at the end.
Speaker 1: So stick around after our conversation if you want to
Speaker 1: hear that. But you know, a lot, as you said,
Speaker 1: a lot to talk about, So we'll go ahead and
Speaker 1: jump right in. We are joined by a very special
Speaker 1: guest all the way from Washington, d C. Georgetown law
Speaker 1: professor Steve Laddock.
Speaker 3: Thanks for joining.
Speaker 5: Us, Thanks, Elinor nothing great to be with you.
Speaker 1: And many of you probably know him as former UT
Speaker 1: law professor Steve Laddock.
Speaker 2: Yeah, he's a reformed longhorn.
Speaker 1: Yes, yeah, yeah, to get to d C, to escape it.
Speaker 5: I mean, I'll just say that that the Georgetown athletics
Speaker 5: don't quite have the same vibe and energy and excitement
Speaker 5: as the Texas athletics.
Speaker 4: I could believe that they've at times had a good
Speaker 4: basketball team.
Speaker 5: You know, it's been a minute. I mean, you know,
Speaker 5: I knew we were in trouble when they asked me
Speaker 5: if I still had any eligibility left.
Speaker 1: Yeah. I went to the other DC university, not American,
Speaker 1: the other DC university, George Washington, which doesn't even have
Speaker 1: a football team. So, as they say, got to Texas
Speaker 1: as fast as I could.
Speaker 4: You know, sometimes I wish my school didn't have football team.
Speaker 1: We've asked another texts Pat DC resident this question, Steve,
Speaker 1: what do you miss most about Texas? Man?
Speaker 5: I think probably some combination of breakfast, tacos and the
Speaker 5: winter weather compared to what we get in the Northeast.
Speaker 4: That's fair enough wrong answer. If you had said HB,
Speaker 4: they might have Ain't you a goodie basket?
Speaker 3: Patrick's text at AGB and they said.
Speaker 5: I mean, my family complains about not having AGB all
Speaker 5: the time. My girl, we've been on a quest to
Speaker 5: find a local ice cream store that has cookies over Texas.
Speaker 3: Some variation thereof someone tells me you're not finding that.
Speaker 5: Listening and you want to send some cookies over to Washington.
Speaker 5: Let me know.
Speaker 1: Yeah, we'll have your kids on next and we'll get
Speaker 1: them to do this for us.
Speaker 5: They're much ertatum.
Speaker 1: Yeah, well, you know, we invite you on to talk
Speaker 1: about the exciting end to a exciting Supreme Court term.
Speaker 3: As usual.
Speaker 1: They got us out of here before the fourth of
Speaker 1: July and got themselves onto their summer vacations. May you
Speaker 1: tell us a little bit just to start, Like what
Speaker 1: your big takeaways are from this Supreme Court term?
Speaker 3: That sort of the headlines for you, sure.
Speaker 5: I mean I think in one sense, I mean, yes,
Speaker 5: the court is off for at summer recess eleanor. But
Speaker 5: one of the big headlines to me actually is that
Speaker 5: the term is really not over because you know, at
Speaker 5: least formally it goes to October. Usually no one cares,
Speaker 5: but the Court has been so inundated with emergency applications,
Speaker 5: with cases that have reached the court, you know, out
Speaker 5: of the normal flow of boring technical appellate processes, including
Speaker 5: nineteen already from the Trump administration, and those have been
Speaker 5: some pretty big cases, whether it's you know, birthright citizenship
Speaker 5: or you know, alien enemies removals or mass firings of
Speaker 5: federal employees, and so, you know, to me, the real
Speaker 5: sort of top line takeaway is that this term has
Speaker 5: already been dominated not by the sort of traditional big
Speaker 5: ticket cases that we're used to talking about, but by
Speaker 5: all these late breaking emergency applications in the mind run
Speaker 5: of which the majority of the Court has cided at
Speaker 5: least temporarily with President Trump.
Speaker 1: Is there if anyone wants to, like, read a book
Speaker 1: about this process of things happening off off the main docket,
Speaker 1: would where would you point them?
Speaker 5: I mean, so, I will say the part of why
Speaker 5: I wrote this book called the Shadow Docket a couple
Speaker 5: of years ago is because I had thought already that
Speaker 5: this was becoming an increasingly important part of the Supreme
Speaker 5: Court's work. You know, I think this term proved that
Speaker 5: in spades, and it's important in a couple of respects.
Speaker 5: It's important because we're not used to thinking about the
Speaker 5: Supreme Court as a twenty four seven, three hundred and
Speaker 5: sixty five operation. It's important because when the Court rules
Speaker 5: on these emergency applications, it's rare for the Court to
Speaker 5: actually explain what it's doing, let alone to do so
Speaker 5: in any detail. And so you get these cryptic orders
Speaker 5: that folks look at online and say, well, wait a second,
Speaker 5: where's the opinion? There Usually isn't one. But also I
Speaker 5: think eleanor it's rare to see them in this volume.
Speaker 5: I mean, you know, not that long ago, we were
Speaker 5: seeing maybe a couple of these high profile emergency applications
Speaker 5: a year, and many of those were in capital cases,
Speaker 5: so you know, individual death cases that were very important
Speaker 5: of course to the death row. Prisoner, to the state,
Speaker 5: to the victims, but maybe not nationally important from a
Speaker 5: policy perspective. You know, now we're seeing one of these
Speaker 5: a week, and I think that's problematic wholly apart from
Speaker 5: the results that the Supreme Courts reached it in those orders,
Speaker 5: because you have the Supreme Court issuing massively important decisions
Speaker 5: and doing very very little to explain why, and putting
Speaker 5: policies into effect without explaining whether or not they're even legal.
Speaker 5: And so you know, that really is a fundamental shift
Speaker 5: in what the Supreme Court's doing in ways that at
Speaker 5: least to this point, have favored the Trump administration without
Speaker 5: actually upholding almost any of its policies.
Speaker 1: Right, Yeah, interesting, it does feel like I mean, when
Speaker 1: you look at even the cases that sort of came
Speaker 1: out at the end of term, like the high profile cases,
Speaker 1: like some of them moved through the normal, like years
Speaker 1: long process to get to the Supreme Court, but some
Speaker 1: of them are things that you know, have really only
Speaker 1: popped up since since January, That's.
Speaker 5: Right, And so you know, I think it really is
Speaker 5: the tale of two terms. And I apologize to Charles
Speaker 5: Dickens for for for that reference, but it's a tale
Speaker 5: of two terms in the sense that you do have
Speaker 5: like this you know regular docket, which has some big
Speaker 5: cases on it, I mean scurmetti about you know, upholding
Speaker 5: Tennessee's ban on gender affirming medical care for transgender adolescents.
Speaker 5: You have you know, the mo Mood case about whether
Speaker 5: parents can opt their children out of having to read
Speaker 5: books in public schools that have LGBTQ plus thematic elements
Speaker 5: in them. I mean, those are massively important decisions. You
Speaker 5: have a bunch of cases where the court reversed the
Speaker 5: Fifth Circuit, the Federal Appeals Court for you know, Texas, Louisiana,
Speaker 5: Mississippi on issues that could have been huge if the
Speaker 5: court had affirms so for example, you know the non
Speaker 5: delegation doctrine vis a vis something called the Universal Service Fund,
Speaker 5: which a lot of folks don't know about, but it's
Speaker 5: actually a massive pool of money. That's how a lot
Speaker 5: of folks in America, including in Texas, have access to
Speaker 5: the Internet. And so those were big cases by any metric.
Speaker 5: But given the sort of contrast between those cases and
Speaker 5: what really feel like fundamental rule of law cases about
Speaker 5: you know, whether migrants have a right to do process
Speaker 5: before their designated alien enemies and removed from the country.
Speaker 5: About whether you know, the president can unilaterally change what
Speaker 5: it means to be entitled to birthright citizenship. I guess
Speaker 5: you know, Eleanor That's why it feels unusual as we
Speaker 5: sit here when the court has finished up what we
Speaker 5: might call the sort of regular part of its work,
Speaker 5: but the Trump rule of law stuff is ever ongoing.
Speaker 4: Can we talk about this birthright citizenship case because I
Speaker 4: think this, Do we have to?
Speaker 3: Yeah? It's hardly I mean, I don't. I don't get
Speaker 3: the sense it's gonna be a huge deal.
Speaker 4: Right, yeah, yeah, yeah, yeah, you know, first and foremost,
Speaker 4: can you just explain to us what the court decided
Speaker 4: in what it didn't decide in this in this real.
Speaker 5: Yeah, I mean, so the first thing to say is
Speaker 5: it didn't decide anything about whether the president's executive order
Speaker 5: purporting to limit birthright citizenship is legal or not. And
Speaker 5: so you know, there was nothing on that. The whole
Speaker 5: fight in that case is about something called a universal
Speaker 5: or a nationwide injunction. And to do the sort of
Speaker 5: thirty second Oh my gosh, I'm really happy I didn't
Speaker 5: go to law school version. The typical injunction says, hey, defendant,
Speaker 5: you can't do this thing to that person, and it's
Speaker 5: specific about who the defendant is prescribed from acting against.
Speaker 5: What makes a nationwide injunction different is that it's not
Speaker 5: that specific. It just says, hey, defendant, you have to
Speaker 5: stop doing the same period. And so it's not that
Speaker 5: it's nationwide, it's that it's not planef specific. But no
Speaker 5: one really wants to use that term. What the Supreme
Speaker 5: Court said in the birthright Citizenship cases is that in general,
Speaker 5: federal court should not be issuing those kinds of injunctions,
Speaker 5: that in most cases federal court should be issuing injunctions
Speaker 5: only that benefit the planiffs. And so if that was it,
Speaker 5: if that was the end of the story, that would
Speaker 5: be a massive kneecapping of the power lower federal courts
Speaker 5: to basically stop nationwide federal policies. Right, you'd have to
Speaker 5: have hundreds of thousands of lawsuits. Every single undocumented immigrant
Speaker 5: who's going to have a child would have to sue
Speaker 5: themselves to challenge the Birthright Citizenship Executive Order. What is
Speaker 5: messy about last Friday's ruling in the birthright Citizenship case
Speaker 5: is that the Court hasn't closed the door to other
Speaker 5: ways that plaintiffs, both in these cases and in other cases,
Speaker 5: could still try to get some kind of broader nationwide relief.
Speaker 5: They could try something called a nationwide class action, where
Speaker 5: a handful of plaintiffs represents everyone in the country who
Speaker 5: is like them, and then in order that benefits them,
Speaker 5: ends up benefiting everybody. Or even Justice Barratt's majority opinion,
Speaker 5: in which she said we're getting rid of universal injunctions,
Speaker 5: had a caveat unless she says, you have to provide
Speaker 5: nationwide relief to give the plaintiff everything that they're asking for.
Speaker 5: And so, you know what's really frustrating guys to me
Speaker 5: about this case is it's a huge deal analytically because
Speaker 5: of how it curtails the power of lower federal courts.
Speaker 5: How big a deal it is practically really depends on
Speaker 5: what happens next as opposed to anything that the Court
Speaker 5: actually did or said on Friday.
Speaker 4: This These nationwide injunctions have been a headache for administrations
Speaker 4: of both parties. You have written and talked about in
Speaker 4: the past about you know, our Texas District Judge Matthew
Speaker 4: has Merrick, who has been known to issue a lot
Speaker 4: of those or was known and.
Speaker 1: Judge read O'Connor and Judge Wesley Hendrix and judge like Texas.
Speaker 1: I don't know that Texas actually came up with this idea,
Speaker 1: but Texas certainly has used this nationwide injunction trick.
Speaker 2: A lot, exactly exactly, and so.
Speaker 4: And you know, the idea of the frustration was, you know, one,
Speaker 4: you know, to use a term of the right activist
Speaker 4: judge could essentially, you know, play decider for the fate
Speaker 4: of a law for the entire country. And that has
Speaker 4: been frustrating to some people. I mean, I guess what
Speaker 4: you're sort of saying here is that it's too soon
Speaker 4: to know how much that practice has been curtailed. It
Speaker 4: kind of depends on how this order is interpreted and
Speaker 4: taken from here.
Speaker 5: That's right. I mean, so, you know, nothing stops the
Speaker 5: same judges who were the focal point for so much
Speaker 5: of this judge shopping from certifying a nationwide class action,
Speaker 5: which is technically a different procedural device, but which would
Speaker 5: produce the same outcome, which is to say, a federal
Speaker 5: policy is blocked on a nationwide basis, or even from
Speaker 5: using the caveat in justice Barrett's opinion and saying, oh, well,
Speaker 5: here's one of those rare cases where I have to
Speaker 5: provide universal relief. Matthew. What's frustrating to me is that
Speaker 5: I think folks have conflated criticisms of nationwide injunctions with
Speaker 5: the kind of abusive forum shopping and judge shopping that
Speaker 5: you know you just mentioned that, you know, you could
Speaker 5: fix that problem without getting rid of the power of
Speaker 5: district courts inappropriate cases to actually stop lawlessness by the
Speaker 5: executive branch. And I think part of why, folks, part
Speaker 5: of why you've seen such a I think bipolar reaction
Speaker 5: to Friday's ruling is because for folks who look at
Speaker 5: the current president and see lawlessness everywhere, it looks like
Speaker 5: a Supreme Court that is basically, you know, pulling the
Speaker 5: rugout from under the ability of lower federal courts to
Speaker 5: slow that down. And for folks who look at the
Speaker 5: current president and see, you know, very see what they've
Speaker 5: you know, quote what we voted for unquote, and things
Speaker 5: that don't bother them, you know, this looks like it's
Speaker 5: almost hypocrisy on the part of folks who criticize these
Speaker 5: kinds of injunctions. During the Biden administration. So, you know,
Speaker 5: I think the problem is that the answer is somewhere
Speaker 5: in the middle, that you know, district courts had been
Speaker 5: doing this too often, but that that was exacerbated by
Speaker 5: things having nothing to do with nationwide injunctions and everything
Speaker 5: to do with the fact that you can bring a
Speaker 5: lawsuit in Amarillo that had no relationship to Amarillo and
Speaker 5: be guaranteed to draw someone like Judge Chasmeric and so
Speaker 5: I guess, you know, part of what's tricky about this
Speaker 5: case is that there are you know, decent, substantive arguments
Speaker 5: against nationwide injunctions as a pure, boring, formalistic legal matter.
Speaker 5: What is exasperating is that the Supreme Court took this
Speaker 5: moment at this you know, in this concept and frankly
Speaker 5: in these cases, to you know, hand on that mandate
Speaker 5: to draw that line in.
Speaker 3: The sand, right.
Speaker 1: I mean, it is interesting, I mean, and I think
Speaker 1: this is something like Justice Corsich has been very outspoken about,
Speaker 1: like the nationwide injunction is a relatively new thing, Like
Speaker 1: we basically didn't have them for a long time, or
Speaker 1: judges weren't weren't issuing them, and then suddenly this has
Speaker 1: become a thing that really has taken off, and like,
Speaker 1: what do you see as you know the reality if like,
Speaker 1: let's say this sort of does end up playing out
Speaker 1: and is curtailed. What looks different a year from now,
Speaker 1: two years from now by the time you know this
Speaker 1: sort of is inacted.
Speaker 5: I mean, so I think the problem is, right, take
Speaker 5: a president who probably gets a new executive order that
Speaker 5: we all agree is unlawful. Right, how are we going
Speaker 5: to establish its unlawfulness in a way that prevents it
Speaker 5: from harming people? And so the virtue, I mean, there
Speaker 5: are cost a nationwide junctions, but the simple virtue of
Speaker 5: the nationwide injunction was it was an express train to
Speaker 5: blocking unlawful federal policies in the world you're describing eleanor
Speaker 5: we're doing everything retail, not wholesale. And that means you're
Speaker 5: gonna need a lot more lawsuits. It means those folks
Speaker 5: who don't have the resources to bring lawsuits might actually
Speaker 5: be harmed even by a policy that we all think
Speaker 5: is unlawful. It puts more pressure on federal courts to
Speaker 5: actually entertain more and more of these cases as opposed
Speaker 5: to a small handful of them. And so you know,
Speaker 5: the guys, the right answer is probably somewhere in the middle,
Speaker 5: where you know, certain kinds of claims really should be
Speaker 5: able to produce nationwide relief and certain ones shouldn't be.
Speaker 5: The problem is that I think those kinds of policy
Speaker 5: calibrations are ones that the Supreme Court is especially ill
Speaker 5: suited to do on its own. And if we had
Speaker 5: a functioning legislature, you know, that could actually resolve these
Speaker 5: kinds of policy debates, we might be able to find
Speaker 5: an answer that Democrats and Republicans could both agree to
Speaker 5: versus the sort of unilateral disarmament that we're seeing right now.
Speaker 5: I'll say, just really quickly, I mean, I'm cautiously optimistic
Speaker 5: that instead, what's going to happen is we're going to
Speaker 5: see a resurgence of class actions, and we're going to
Speaker 5: see a resurgence of you know, a handful of especially
Speaker 5: sympathetic plaintiffs bringing a lawsuit in which they claim to
Speaker 5: represent everyone who's harmed by a nationwide policy, and district
Speaker 5: courts letting those cases go forward. But you know, if
Speaker 5: that's what happens, guys, it's the same problem because which
Speaker 5: district courts are the class actions filed in right, You're
Speaker 5: going to have one district judge in one part of
Speaker 5: the country who is yet again right, at least as
Speaker 5: a temporary matter, being tasked with providing a nationwide relief
Speaker 5: on a federal policy. You don't make that problem go
Speaker 5: away just by making the nationwide injunctions go away.
Speaker 4: Are the stakes for this different in Texas than they
Speaker 4: are in other places? In part because of what we
Speaker 4: just described some of the judges that we have here,
Speaker 4: but also because we have an attorney general right who
Speaker 4: sides with the Trump administration right. Like you can see,
Speaker 4: you know, a lot of these nationwide injunctions are in
Speaker 4: cases where our attorney general would be less likely to
Speaker 4: be bringing a case against the federal government than say,
Speaker 4: in California.
Speaker 5: Yeah, I mean, I think the short answer is yes,
Speaker 5: it was already true, of course that you know, Texas
Speaker 5: assumed the Biden the sorry, the Trump administration a lot
Speaker 5: less than to the Biden administration. You know, so far,
Speaker 5: the only lawsuits we see between Texas and the Trump
Speaker 5: administration are the collusive ones where the federal government sues
Speaker 5: Texas and Texas immediately settles. But I I guess, Matthew,
Speaker 5: my reaction is that The real question is, by the
Speaker 5: time there's another democratic president, has some procedural device emerged
Speaker 5: that is playing the same role as the nationwide injunction,
Speaker 5: be it a nationwide class action or something else. If so,
Speaker 5: then I don't doubt that you know, whoever the Texas
Speaker 5: Attorney general is then will be just as aggressive in
Speaker 5: trying to utilize those devices. If not, then yeah, I mean,
Speaker 5: you know, then maybe we actually do see a return
Speaker 5: to the pre twenty twelve, twenty thirteen you know world
Speaker 5: where every time a president of either party does something significant,
Speaker 5: it's not immediately challenged in court by an attorney general
Speaker 5: from a state of the other party.
Speaker 4: I know, eleanor you probably want to move on, But
Speaker 4: just one last question on this subject.
Speaker 1: Kidding me, judge shopping nationwide injunctions?
Speaker 3: I love this stuff.
Speaker 4: What about the issue the issue of birthright citizenship? I
Speaker 4: mean that I know the court and you know, put
Speaker 4: a thirty day pause on this, you know, going back
Speaker 4: what happens next in this case, in what you would
Speaker 4: be watching in terms of the future of that, particularly
Speaker 4: in Texas again, because of the situation we have here
Speaker 4: with our journey general.
Speaker 5: So I mean, the short answer is I think it's
Speaker 5: incredibly likely. I mean, like, you know, north of eighty
Speaker 5: to eighty five percent that before that thirty day period
Speaker 5: runs out, there's yet another ruling by a district judge
Speaker 5: somewhere that has nationwide effect. And there are two ways
Speaker 5: that could happen. You could have certification of a nationwide
Speaker 5: class of planiffs, or you could have a case where
Speaker 5: the Court says, even under Justice Barrett's reasoning, this is
Speaker 5: the rare example of a case where nationwide relief is
Speaker 5: necessary to give the PLANEFF everything they need. Probably not, Matthew,
Speaker 5: a case where you have an individual PLANEFF, but like
Speaker 5: New Jersey, for example, has really good arguments about why
Speaker 5: a New Jersey specific injunction would actually cause real harm
Speaker 5: if states like Texas were not bound by it, right,
Speaker 5: if you could still have people born in Texas and
Speaker 5: not be citizens under the executive order. So, Matthew, my
Speaker 5: best guess is that the policy still never goes into effect.
Speaker 5: But you know that's going to depend not just on
Speaker 5: a district court somewhere following one of these two pathways
Speaker 5: that the Supreme Court decision has left available to go
Speaker 5: back to where we started, Guys, it's going to depend
Speaker 5: upon the Supreme Court then letting the district court do that. Right,
Speaker 5: it's going to depend upon the Supreme Court denying the
Speaker 5: inevitable emergency application that the Trump administration will file when
Speaker 5: a district court issues that relief. And so you know,
Speaker 5: we're going to be talking by the end of the
Speaker 5: summer about the second round of birthright citizenship cases. And
Speaker 5: this goes back to why I think this is a
Speaker 5: very unusual term in that the summer could end up
Speaker 5: being just as busy right as the spring and the fall,
Speaker 5: because it's not just birth right slazenship. They're going to
Speaker 5: be any number of disputes where that's going to be
Speaker 5: the fight over the next eight weeks.
Speaker 1: Wow. Yeah, I mean certainly not like playing out maybe
Speaker 1: as the original dividers of our powers imagined all of.
Speaker 3: This would go.
Speaker 1: I do want to talk about some of the like,
Speaker 1: like you said, the more substantive cases that came up.
Speaker 1: You mentioned Scrimmetti, my Mood and we here obviously had
Speaker 1: a free speech alliance.
Speaker 3: Vee Paxton.
Speaker 1: What stands out to you about sort of the Court's
Speaker 1: rulings on these on these cases that are all around
Speaker 1: sort of similar ideas and similar topics.
Speaker 5: I mean, I think there's one theme that actually cuts
Speaker 5: across all of those cases, and the theme is reducing
Speaker 5: the degree of scrutiny that we're applying to the underlying
Speaker 5: state laws. So you know, in I mean, I guess
Speaker 5: my mood's probably the sort of the tricky one here.
Speaker 5: But if you take the free speech Coalition case, and
Speaker 5: if you take Scrimeti, in both of those cases, eleanor
Speaker 5: a lot of the fight between the majority and the descent,
Speaker 5: and in both of those cases it's six to three, right,
Speaker 5: A lot of the fight between the majority of the
Speaker 5: descent is what standard of review applies. What that means,
Speaker 5: right in English, is how skeptical should we be of
Speaker 5: why the government is due and what they're doing. How
Speaker 5: heavy a burden does the government have to meet to
Speaker 5: justify what it's doing. And you know, in Scurmeti, by
Speaker 5: saying that, you know, singling out people of transgender status
Speaker 5: doesn't require heightened treatment. In this context, the Court was
Speaker 5: able to uphold Tennessee's regulation, even though it certainly appears
Speaker 5: to be motivated at least in part right by animis
Speaker 5: against transgender individuals in a way in which if we
Speaker 5: applied heightened scrutiny that would kill it, and the free
Speaker 5: speech coalition in case is another great example of this right.
Speaker 5: The type of restriction in the Texas law, the age
Speaker 5: verification requirements for visiting websites with you know, sensitive adult content,
Speaker 5: in almost any other era, would have triggered what's called
Speaker 5: strict scrutiny, meaning Texas would have had to prove that
Speaker 5: there was no less restrictive way of keeping minors away
Speaker 5: from you know, websites with porn. Because the majority says no,
Speaker 5: this only gets what we call intermediate scrutiny. Texts actually
Speaker 5: has allowed a lot more wiggle room, And so you know,
Speaker 5: I see what I see in both of those cases
Speaker 5: is the Supreme Court basically softening the tests in a
Speaker 5: way that gives the justices more wiggle room and more
Speaker 5: discretion to sort of pick and choose which of these
Speaker 5: laws they like and which ones they don't. Whereas if
Speaker 5: you had the most rigid form of scrutiny eleanor there'd
Speaker 5: be no wiggle room. Right, it would be almost an
Speaker 5: objective inquiry into whether there was any narrower way for
Speaker 5: the state to do what it did.
Speaker 1: Interesting, Yeah, yeah, we maybe talked about this here before,
Speaker 1: but I wrote with my colleague Kayla our story about
Speaker 1: the pre Speech Coalition, the lawsuit involving you know what
Speaker 1: is often referred to sort of the porn Hub case,
Speaker 1: and I really want to make sure that I had
Speaker 1: my byline on it. Kayla like wrote a day of
Speaker 1: because stories we do that have the word porn hub
Speaker 1: in the headline do better than any other story on
Speaker 1: our website.
Speaker 3: It is just like page view bonanza.
Speaker 5: It's not great, but I I mean, that's you know,
Speaker 5: but at the risk of turning that into a substitute
Speaker 5: point though, I mean, I think it's also lawyers, no,
Speaker 5: but Eldor. But this is the problem, right, which is
Speaker 5: it is really hard in this space to regulate websites
Speaker 5: in a way that's not massively overbroad. And you know,
Speaker 5: historically over breadth is a huge concern for First Amendment purposes.
Speaker 5: We don't want states, even if they have the most
Speaker 5: like absolutely compelling interests, we don't want them chilling speeches
Speaker 5: otherwise constantly protected. We don't want you know, adults who
Speaker 5: wish to remain anonymous, who don't want to share this
Speaker 5: information with the state, you know, to have to sort
Speaker 5: of see their speech rights chilled unless there's no other
Speaker 5: way to do this, and so eleanor you know, it's
Speaker 5: it's the sort of it's the visibility of these kinds
Speaker 5: of websites that make this actually, I think, less of
Speaker 5: a difficult First Amendment case than it should have been.
Speaker 5: And part of why the majority opinion relate accident on
Speaker 5: the standard of scrutiny is to be so problematic. Right,
Speaker 5: It's like, no one thinks kids should have access to
Speaker 5: porn websites. The issue is how much should adults be
Speaker 5: the collateral damage when states are trying to implement that policy.
Speaker 4: If I remember from reading your article correctly, the minority
Speaker 4: in this case seem to suggest that had this issue
Speaker 4: been held up to strict scrutiny, Texas may still have prevailed.
Speaker 4: I mean, it does seem like, you know, the there
Speaker 4: are not a lot of other great ways to prevent
Speaker 4: kids from looking at porn. And I'm just curious, like
Speaker 4: what you think about you know, had they reviewed the
Speaker 4: case in the way that you feel they should have,
Speaker 4: do you think they would have come to a different outcome.
Speaker 5: I mean, so the whole case would have been litigated differently,
Speaker 5: It would have been discussed differently, right, because Matthew, then
Speaker 5: the question would have been can Texas, you know, can
Speaker 5: sort of Texas or can the challengers I identify any
Speaker 5: other way that would have been less restrictive to reach
Speaker 5: the same goal. And if the answer was no, then yeah,
Speaker 5: it would have survived struck scrutiny and it would have
Speaker 5: been upheld. And so that's my concern. My concern is
Speaker 5: not that the Supreme Court upheld Texas's age verification law.
Speaker 5: The concern is how much violence are you doing to
Speaker 5: the doctrine in ways that are going to affect plenty
Speaker 5: of other cases. And the reason why this matters, I mean, guys,
Speaker 5: the Supreme Court's deciding you know, fifty five of these
Speaker 5: cases a year, but the lower federal courts are deciding
Speaker 5: one hundreds and thousands of them. And so, you know,
Speaker 5: I get nervous when, even in the context of a
Speaker 5: compelling fact pattern, the Supreme Court waters down the standard
Speaker 5: of scrutiny because it means that in other contexts where
Speaker 5: maybe we're not all on the same side of this
Speaker 5: as the state, right, it gives the state room to
Speaker 5: do things that I think are potentially quite nefarious.
Speaker 1: Well, and that's like what these websites argue, right, is
Speaker 1: that like adult websites, pornography websites are like the canary
Speaker 1: and the coal mine for whiling away at free speech,
Speaker 1: and so you know, like they're kind of easy to
Speaker 1: go after. But it may be and I mean Texas's
Speaker 1: law sort of talks generally about like adult content. You know,
Speaker 1: there has been like talk certainly from I've heard this
Speaker 1: from like LGBTQ advocates who say, like what prevents the
Speaker 1: state from saying, you know, well, kids can't transition, you know,
Speaker 1: why that's adult content to even show them information about
Speaker 1: gender transition or things like that, so.
Speaker 5: Or even or even things about like sam Set's weddings, right,
Speaker 5: I mean, like you know, is that is that is
Speaker 5: that adult content because it's about topics that are too
Speaker 5: sensitive for minors. I mean, you know, I think we're
Speaker 5: not there yet, Eleanor. But like, the problem is is
Speaker 5: that once the Supreme Court mixed this kind of significant
Speaker 5: doctrinal step, it provides the foundation for the next step
Speaker 5: and the step after that. And so my concern about
Speaker 5: most of the big cases on the normal side of
Speaker 5: the Supreme Court's dock at this term is that ten
Speaker 5: fifteen years from now, we're going to look back on
Speaker 5: them as the sort of early steps of bigger and
Speaker 5: more troubling shifts in all of the doctrines.
Speaker 3: Well, that is sort of my question.
Speaker 1: I mean, to sort of wrap it up, is like,
Speaker 1: you know, this is year one of the Trump administration, right,
Speaker 1: I mean, if we can believe it, we've got three more.
Speaker 3: You know, what does what do you think?
Speaker 1: You know? It looks like by the end of the
Speaker 1: Trump admistrative we sort of stay on this path.
Speaker 5: I don't know, and I think, you know, anyone who
Speaker 5: says they know, I think is selling something. What's really
Speaker 5: striking about the Trump cases of the last I don't
Speaker 5: know five six months, is in only one of them
Speaker 5: did the Court say anything positive on the merits in
Speaker 5: favor of what President Trump wanted to do. Only when
Speaker 5: President Trump fired members of the National Labor Relations Board
Speaker 5: and the Merit System's Protection Board. Only on that emergency
Speaker 5: application do we see any sign from the Supreme Court
Speaker 5: that they're likely to agree with Trump on the merits.
Speaker 5: Almost every other case right, either is on procedural grounds
Speaker 5: or the Court said nothing. So Eleanorn, I'm really interested
Speaker 5: in what we might call the second generation Trump cases.
Speaker 5: When these cases start getting to the Supreme Court on
Speaker 5: the merits, when the question is are all of these
Speaker 5: policies legal as opposed to you know, are you the
Speaker 5: right plaintiff? Did you sue in the right court? Are
Speaker 5: you entitled to an emergency stay? What do we see
Speaker 5: from the Supreme Court? And you know, I think we
Speaker 5: saw a lot from the Court over the last couple
Speaker 5: of months that leads me to worry that there aren't
Speaker 5: five votes to push back fairly aggressively against what, to
Speaker 5: my view is unprecedented lawlessness from President Trump. But what's
Speaker 5: really striking about the you know, sort of the bill,
Speaker 5: the Butcher's Bill for the entire turn, is that the
Speaker 5: Supreme Court hasn't really committed itself on that question. It's
Speaker 5: just sent a whole lot of signals, many of which
Speaker 5: are to me concerning but not necessarily conclusive.
Speaker 1: Interesting, so much more to watch, and not the end
Speaker 1: of the term in any meaningful way.
Speaker 5: But you know, well we'll just have to do this again.
Speaker 3: Yes, serves as a marker of some kind. Yes.
Speaker 4: I just love how in all branches of government, all
Speaker 4: the times that used to be quiet are.
Speaker 2: No longer quiet.
Speaker 4: It really does wonders for vacations.
Speaker 1: Shadow dockets. Yeah, it's great. Well, thank you so much
Speaker 1: for joining us, Professor. Like I said, we're going to
Speaker 1: kick you off now and now I'm gonna give Matthew
Speaker 1: my trivia question.
Speaker 3: But thank you so much.
Speaker 5: Well.
Speaker 1: So to be clear, I don't necessarily think this will
Speaker 1: stump you, because I think you will.
Speaker 3: I think maybe you've even been there.
Speaker 1: But I'm curious how quickly you can get this, which
Speaker 1: is that over the weekend, I made a pilgrimage to
Speaker 1: an important Texas location. I was up near Wichita Falls,
Speaker 1: very north Texas.
Speaker 2: Booked up.
Speaker 3: Dang it, I really was going to do a whole No,
Speaker 3: that's fine. I may.
Speaker 1: I went to Larry McMurtry's hometown in Archer City and
Speaker 1: his what is it is no longer booked up due
Speaker 1: to not some sort of legal thing. It is the
Speaker 1: Larry McMahon Literary Center. It was at one time four
Speaker 1: hundred thousand books that he collected in four bookstores across
Speaker 1: Archer City population like a, yeah, it was twelve hundred. Yeah,
Speaker 1: they chip and Joyana Gaines bought it for a while,
Speaker 1: sold it back to or gave it I don't know
Speaker 1: to what is now the Larry McMurtry Literary Center.
Speaker 3: It was amazing. Have you been.
Speaker 2: I have not. I really want to go. I have
Speaker 2: big regrets.
Speaker 4: My friend Josh, one of my oldest friends and a
Speaker 4: big reader as well and a big fan of Lonesome Dove,
Speaker 4: we talked about going when he had the sale, you know,
Speaker 4: because basically when he was getting up in age, he
Speaker 4: sold a whole bunch of the books because he didn't
Speaker 4: want to leave his kids with four hundred thousand.
Speaker 3: Books, which did not diminish it by much, honest.
Speaker 4: Yeah, but we never made it out. It's Archer City
Speaker 4: is a tough place to get to, but I am
Speaker 4: determined to get there at some point.
Speaker 3: Yes, it was.
Speaker 1: They are now down to just one bookstore, and they
Speaker 1: someone the woman who was working there, who's like a
Speaker 1: you know, part of the organization now, gave me a
Speaker 1: little tour.
Speaker 3: It was great. I bought several books.
Speaker 1: I do need an advance on my paycheck how to
Speaker 1: get me through the rest of the month for the
Speaker 1: amount of money I spent on books. But she told
Speaker 1: me that to get the books out of booked up
Speaker 1: two across the Street to booked up one. They got
Speaker 1: the whole Archer City football team to just move them
Speaker 1: across the highway, which is great.
Speaker 4: So Archer City is the basis for oh Man, now
Speaker 4: I'm forgetting the name of the fictional city, Talia, Texas.
Speaker 2: And Last Picture Show? Have you read or seen last Week?
Speaker 3: I have seen it, I have not read it.
Speaker 4: Okay, great movie, also a great book. The football team
Speaker 4: in the movie is notably terrible, so maybe the carrying
Speaker 4: of the books that was also you know, supposed to
Speaker 4: be like seventy years ago, so maybe they've improved it.
Speaker 1: Right. Yeah, I will say I bought a copy of
Speaker 1: Walter Benjamin at the Dairy Queen, which is his sort
Speaker 1: of reflections of growing up in this town. And then
Speaker 1: I went and ate at the Dairy Queen, which was,
Speaker 1: I'll be honest, the only place that was opening.
Speaker 3: But it was great. It was a real Texas pilgrimage.
Speaker 2: Have you read Lonesome Dove?
Speaker 5: Yes?
Speaker 1: So I read Lonesome Dove in high school. I would
Speaker 1: like to reread it, but I read in high school.
Speaker 1: I did not know that he wrote, oh gosha, Now,
Speaker 1: terms of endearment, Terms of endearment and broke Back Mountain.
Speaker 3: Yes, I learned a lot about it there.
Speaker 2: He wrote the movie.
Speaker 1: Yes, the movie Broke By, but not the book that
Speaker 1: it was based on, right, I think that's correct. Yeah, yeah,
Speaker 1: but they're like really reviving at all. Only parts of
Speaker 1: it are open because they he left so many books
Speaker 1: that they have, like books in the hall and books
Speaker 1: on the you know, everything's falling off. It was great,
Speaker 1: It's really I highly recommend going out there.
Speaker 2: I will, I'm I'm going to do it sometimes soon
Speaker 2: put on the list.
Speaker 3: Yeah.
Speaker 1: Also, I found a copy of you know, he just
Speaker 1: would buy books from book you know. You know, I
Speaker 1: don't think he hand picked each of them, which explains
Speaker 1: why I found a copy of Gossip Girl in the
Speaker 1: mass and I like to imagine that Larry mcmurtury picked
Speaker 1: out gossip Yeah.
Speaker 4: Of course, you know, he was a very very versatile writer,
Speaker 4: so you never know, you never know.
Speaker 2: Yeah.
Speaker 4: My two like literary destinations are the Bookstore in Archer
Speaker 4: City and the Willa Cather House in Nebraska, which I
Speaker 4: also would really like to go to. And recently at
Speaker 4: a conference in New Orleans, met someone from I believe
Speaker 4: it's Red Cloud, Nebraska and scared everyone away at our
Speaker 4: happy Hour reception, repeatedly asking questions about Willa Cathers.
Speaker 1: And they were like, I just live here, man, Yeah,
Speaker 1: I don't know. There's a dairy queen. Yeah, I presume.
Speaker 3: Yes.
Speaker 1: Well, that is our episode of the trip Caast this week.
Speaker 1: We appreciate you all joining us. Thank you to Steve
Speaker 1: Laddick for taking the time, and sounds like we will
Speaker 1: all be back here talking about the second term of
Speaker 1: the US Supreme Court coming up soon. You can get
Speaker 1: tripcast anywhere you get your podcast. Follow us on YouTube,
Speaker 1: review us, like us, subscribe, and our producers are Chris
Speaker 1: and Rob and we will be back next week.
Speaker 5: Yes,