Category: 3-LawSometimeCommentary

We take a long last look at two more end-of-term cases, where the Court made news with what it did NOT decide: Moyle v. United States (the abortion/EMTALA case), and Moody v. Net Choice (state regulation of social media). But first, a bit of debate about some prominent figures in constitutional history.

OA1058

We begin with Neil Gorsuch’s recent appearance on Fox News. How normal is it for a sitting Supreme Court justice to go on Fox News, and did Gorsuch really just threaten the Biden administration over its relatively minor court reform proposals? 

In our main story, we break down two major antitrust suits from the past week: Elon Musk’s ridiculous claim that corporations which refuse to advertise on a social media platform which has failed to regulate neo-Nazi and animal abuse content are violating Section 1 of the Sherman Antitrust Act of 1890, and District Court judge Ahmet Mehta’s extremely reasonable findings that Google’s anticompetitive practices are in violation of Section 2. Also, Matt has some nice things to say about Richard Nixon.

• White House announcement on Biden court reform proposals (7/29/24)

• About GARM (WFANet.org)

• "GARM's Harm" report from the House Judiciary Committee (7/10/2024)

• Complaint in X v. GARM et al (8/6/2024)

• “Is Google Getting Worse? A Longitudinal Investigation of SEO Spam in Search Engines” J. Bevendorff and M. Wiegmann, et al., Leipzeig University (2024)

• Judge Amit Mehta’s full ruling in US v. Google (8/5/24)

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The 2021 Biden Commission on the Court has now led - with a big “assistance” from the Court itself - to President Biden’s own plan for Court reform. It is sketchy in many ways, but is entirely consistent with Professor Amar’s long-held views on 18 year active terms for Supreme Court justices, though the President’s proposal lacks the detail of that plan. This is unsurprising in a way since Prof. Amar testified before that Commission.  There are other related plans in proposed statutes that lie in committees of the House and Senate.  We consider the features of all, the flaws we have diagnosed, and we also have some commentary on some other aspects of the President’s proposals, including a possible constitutional amendment.  Lots to consider this week!  CLE credit is available for judges and lawyers from podcast.njsba.com.

The answer for T3BE34 is coming your way, and we launch our next Bar Prep question with Heather! 

Right now, the best place to play (if you aren't a patron...) is at reddit.com/r/openargs!

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Unpredictably, our recent torrent of episodes continues. We take a deep dive into Moore v. United States, which addressed the scope of Congress's constitutional power to tax. 

Jon Lovett joins Melissa and Leah to climb inside the mind of one of Project 2025’s biggest boosters: J.D. Vance. It’s nasty in there! Then, Leah and Melissa discuss the proposed SCOTUS reforms. Finally, Leah chats with Olivia Warren and Deeva Shah about misconduct in the federal judiciary–specifically, the investigation into certified creep Judge Joshua Kindred.

Get tickets for STRICT SCRUTINY LIVE – The Bad Decisions Tour 2025! 

• 6/12 – NYC
• 10/4 – Chicago

Learn more: http://crooked.com/events

Order your copy of Leah's book, Lawless: How the Supreme Court Runs on Conservative Grievance, Fringe Theories, and Bad Vibes

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OA1057

We’re giving ourselves a break this week from Trump, the Supreme Court, and all things 2024 to indulge in one of Matt’s all-time favorite subjects: CIA mind control experiments! In this extra-carefully-researched episode, Matt breaks down the history of the federal government’s MKULTRA  program to fund research in brainwashing, mind control, and LSD on unsuspecting U.S. and (for some reason) Canadian citizens, as well as the inherent legal issues in trying to sue the CIA for something you can’t remember and for which most evidence has been destroyed. Why was the CIA funding a sadistic mad scientist in Montreal, and is there any hope of justice for the families of his victims today? 

BOOKS

1. Poisoner in Chief: Sidney Gottlieb and the CIA Search for Mind Control , Stephen Kinzer (2019)

2. The Search for the Manchurian Candidate: the CIA and Mind Control, John Marks (1979)(link goes to full text on CIA website)

3. The Devil's Chessboard: Allen Dulles, the CIA, and the Rise of America's Secret Government: David Talbot (2016)

4. CHAOS: The Truth Behind the Manson Murders, Tom O’Neill (2020)

LEGAL PROCEEDINGS

5. Orlikow v. United States, 682 F. Supp. 77 (D.D.C. 1988)

6. CIA v. Sims :: 471 U.S. 159 (1985)

7. “PROJECT MKULTRA, the CIA’s Program of Research in Behavioral Modification,” (transcript of joint Senate hearing)(8/3/1977)

8. Judgment dismissing former Deputy U.S. Marshall Wayne Ritchie’s claims against the CIA in Ritchie v. U.S. (N.D. CA 2005)

ARTICLES

9. ANATOMY OF A PUBLIC INTEREST CASE AGAINST THE CIA, Joseph Rauh and Jim Turner, Hamline Journal of Law and Public Policy (Fall 1990)

10. MK-ULTRA: Quebec high court says U.S. has immunity in Canada | Montreal Gazette (10/3/23) 

11. CIA Denies Conspiracy Theory That It Used MKUltra on Trump Shooter, Gizmodo.com (7/28/24)

12. “After Learning of Whitey Bulger LSD Tests, Juror Has Regrets,” PBS  (2/18/2020)

13. “Before He Was the Unabomber, Ted Kaczynski was a CIA Mind Control Test Subject,” Washington Post (6/11/2023)

PODCASTS & DOCUMENTARIES

1. Brainwashed, Canadian Broadcasting Corporation (2024)

2. Madness, WBUR (2020)

3. The Sleep Room: CIA-funded experiments on patients in Montreal hospital (1998) - The Fifth Estate (CBC)

4. Wormwood, Errol Morris, Netflix (2017)

In the first in a new series, The Law According to Trump,  Amicus begins an extensive exploration of Donald Trump's tumultuous relationship with the courts and legal system, focusing on Trump's use of lawyers and lawsuits to enhance his brand, wealth, and power. In the past few months, attention has rightly been on several blockbuster federal cases involving former President Trump, all the way up to and including his immunity case at the Supreme Court, but Trump’s history with the law goes back much further and is much broader than the election subversion cases. 

While Dahlia Lithwick takes a well-deserved break, Amicus is very lucky to have award-winning investigative journalist Andrea Bernstein in the host chair. Andrea has covered five trials against Trump or his company for NPR, is the author of American Oligarchs: the Kushners, the Trumps, and the Marriage of Money and Power, and she has also hosted three podcasts that touch on Trump and the law, including, most recently “We Don’t Talk About Leonard.”

This episode delves into Trump's history of litigation with a close eye on how he has used nuisance lawsuits. Slate’s jurisprudence editor Jeremy Stahl joins Andrea to outline the many people and organizations the former President has sued since leaving office. Then, former US Attorney Jim Zirin, author of Plaintiff in Chief: A Portrait of Donald Trump in 3500 Lawsuits, fills us in on the history of Trump’s love of litigation.

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OA1056

As the Trump campaign celebrates the “demise” of the Heritage Foundation’s Project 2025, we check in on reports of its death to see just how exaggerated they might be. Does it even matter that the ultra-conservative push to remake the personnel and policies of the federal government run by people who talk like Bond villains is (allegedly) no longer in the policy game? And how did things get to the point that these people were too extreme for Stephen Miller?

We then discuss the Supreme Court’s recent decision to dismiss Moyle v US without a decision on the merits of Idaho's attempts to criminalize nearly all abortions. Why did the conservative justices rush to jump into this case only to find that they never should have done that? What can we learn from this week's unprecedented inside leaks about how this decision?

Finally, a quick check on the state of Donald Trump's gag order and Nikki Haley's weird attempt to get her name out of her treacherous former SuperPAC's collective mouth.

• 42 USC 1395dd (relevant EMTALA provision)

• Idaho “Defense of Life Act”

• St Luke’s Medical System’s amicus brief in Moyle (detailing specific harms to pregnant people of allowing Idaho’s so-called “Defense of Life Act” to go into effect)

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We continue our breakneck pace and dig into two substantive criminal law opinions: Fischer v. United States and Snyder v. United States.