Category: 3-LawSometimeCommentary

OA1035

A second Alito flag has hit the news, we have election results out of Fulton County, and the jury is nearly out in Donald Trump’s New York criminal trial. Matt also answers patron questions about how things could go wrong with the jury between now and the verdict, as well as why juries everywhere are so rarely sequestered anymore.

After a brief detour past a very important class-action suit against Hershey’s for the insufficient jauntiness of its Halloween candy, we turn to our main story: International Criminal Court prosecutor Karim Khan’s application for arrest warrants to be issued against leaders of both Hamas and Israel. How does The Hague have jurisdiction to prosecute the prime minister of a country which has flatly refused to recognize its authority--or, for that matter, Palestinians  who carried out the attacks of October 7, 2023 in the territory of that same country? Matt explains the background and recent history of humanity’s first standing international criminal tribunal as we consider what this moment means for Israel, Palestine, and the world.  

• Complaint in Cynthia Kelly v. Hershey (Reese’s lawsuit)

• ICC expert panel findings re: investigation into “The Situation in Palestine” (5/23/2024)

• ICC prosecutor Karim Khan’s application for arrest warrants for leaders of Hamas and Israel (5/20/24)

• Christiane Amanpour interview with ICC prosecutor Kamir Khan (5/20/24)

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In this Opinionpalooza emergency bonus episode, Dahlia Lithwick and Mark Joseph Stern discuss Thursday’s decision in Alexander v. South Carolina NAACP, highlighting the implications for racial gerrymandering and voting rights. They delve into Justice Alito's majority opinion, Justice Kagan's dissent, and Justice Thomas's concurrence. This decision would seem to effectively close the door permanently on racial gerrymander claims in federal courts. Dahlia and Mark discuss how this decision makes justice - and democracy - inaccessible for plaintiffs already shut out of the political system through racist maps with political excuses. In recent years, the Supreme Court has gutted the Voting Rights Act and now seems intent on hollowing out equal protection and diluting the reconstruction amendments; the constitutional provisions central to building a thriving diverse democracy.

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In the third and final part of our How Originalism Ate the Law series, Dahlia Lithwick and Mark Joseph Stern are joined by Justice Todd Eddins of the Hawaii Supreme Court and Madiba Dennie, author of The Originalism Trap. Being trapped by originalism is a choice, one that judges, lawyers, and the American people do not have to accede to. Our expert panel offers ideas and action points for pushing back against a mode of constitutional interpretation that has had deadly consequences. And they answer questions from our listeners. 

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More than three years after the January 6, 2021 disastrous events, we remarkably are just now first learning of a complex series of events with profound ethical implications for Justice Alito.  Like his fellow justice, Clarence Thomas, Justice Alito’s wife’s actions, possibly political in nature, have placed the Justice in a position where his own actions are being widely questioned.  We take it one step at a time and offer our analysis, even if we don’t entirely agree with each other on this one.

OA 1034

With the recent news that a sitting Supreme Court justice was publicly displaying support for Trump’s attempted coup in the days between January 6, 2021 and Joe Biden’s inauguration, it’s time to ask: Is Samuel Alito actually worse than our very low opinion of him? Also who could have possibly known that a hard-right Reagan/Buckley conservative who has been publicly advocating for ending abortion rights since 1985 would turn out to be the ultra-right Trump/Scalia conservative who ended abortion rights in 2022? We take these questions on after a quick look at the latest low point in Rudy Guiliani’s long, steep, and often hilarious fall from grace. (N.B.: there’s so much more to talk about here than we could possibly fit into an hour, we didn’t even get to his awful decisions on the death penalty, among many other things.)

Finally, we learn the answer to last week’s T3BE question and consider the multifarious liabilities of stocking a private lake full of piranhas.

• Alito’s 1985 memo with strategies for overturning Roe v. Wade

• Alito’s 1985 job application to the Office of Legal Counsel

• Doe v. Groody, 361 F.3d 232 (3rd Cir. 2004)(Alito dissent in qualified immunity case involving strip search of a 10-year-old girl)

• A Tiger on the Court: Sam Alito ‘72 at Princeton, Princeton Alumni Weekly (March 8, 2006)

• Justice Samuel Alito: ProPublica Misleads its Readers, Wall Street Journal (6/20/23) (Alito op-ed)

• Samuel Alito, the Supreme Court’s Plain-Spoken Defender, Wall Street Journal (7/28/23) (editorial drawn from 4 hours of interviews with Alito)

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Leah and Melissa catch up on the Alitos' upside-down flag situation, an opinion preserving the funding structure of the CFPB, and a racial gerrymandering case out of Texas.

• Read Jodi Kantor's reporting on the Alitos' flag
• Revisit our episode recapping the oral arguments in the case challenging the CFPB

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Justice Samuel Alito’s wife didn’t attend the January 6th 2021 “Stop the Steal” rally (unlike fellow SCOTUS spouse Ginni Thomas), but in January 2021, in a leafy Alexandria, Virginia cul-de-sac, the New York Times reports that the Alito household was engaged in a MAGA-infused front yard spat with the neighbors, even as the Justice was deciding  cases regarding that very election at the highest court in the land. Justice Alito told the New York Times his wife was responsible for the upside down stars and stripes flying from their flagpole and that it was in retaliation for an an anti-Trump sign.   

It’s unseemly. Undoubtedly unethical. But this intra-suburban squabble, and the very clear implications it has for a public already aware of the Supreme Court’s dwindling legitimacy, is unlikely to evoke shame, amends, or recusal from Justice Alito. On this week’s Amicus, American legal exceptionalism sliced three ways: Dahlia Lithwick on the Justice and the Flag, Slate’s jurisprudence editor Jeremy Stahl on how Donald J. Trump’s  criminal hush money trial ends, and Congressman Jamie Raskin on concrete steps to supreme court reform, how to get back the rights the Supreme Court has taken away, and what a binding ethics code would look like. 

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OA1033

We begin with a quick check-in on Trump’s trial in New York, from the recent appellate ruling on his gag order Todd Blanche's bizarrely personal  start to his cross-examination of the most important witness in one of the most important criminal trials in US history. Matt then explains why it might be a felony to run for governor in Washington State if your name is Bob Ferguson. 

Then: Clarence Thomas just rejected an originalist 5th Circuit ruling to save the

Consumer Protection Finance Bureau on behalf of a 7-2 court--with Alito dissenting for totally different originalist reasons. What is going here?

We then stop in for a quick layover with the current state of the Boeing non-prosecution agreement before Thomas takes on a bar question about some extremely unpleasant fish.

• Unanimous order from the Appellate Division of the Supreme Court of New York upholding Trump NY gag order (5/14/24)

• RCW 29A.84.320 (WA criminal statute addressing “Duplicate, nonexistent, and untrue names”)

• SCOTUS ruling in Consumer Financial Protection Bureau v. Community Financial Services Assn. of America, Ltd. (05/16/2024)

• DOJ letter to court overseeing Boeing nonprosecution agreement (5/14/24)

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We follow up on feedback, puzzle over the Court's apparent continued lack of interest in Fourth Amendment cases, and then discuss two of the latest opinions—Culley v. Marshall (civil forfeiture) and Warner Chappell Music, Inc. v. Nealy (copyright).

And yes, we know Dan's audio sounds terrible due to a technical snafu, sorry!

Donald Trump’s New York trial - where a conviction would be federal pardon-proof - has proceeded apace. we are pleased to bring a report to you from the trial itself, introducing you to one of Professor Amar’s star students in the process. Are there constitutional issues stemming from the trial?  You bet, and we address some of them. Meanwhile, a number of listeners have asked similar questions recently, so we take that family of questions on, and sure enough, there’s a lot to discuss there as well.  CLE credit is available from pdcast.njsba.com after listening.