Pod Insights Strict Scrutiny The Conservative Push to Sue the Media Into Oblivion About this episode After covering the latest goings-on in Trumpland, Melissa and Kate turn to this week’s SCOTUS arguments and opinions, touching on the Court’s decision to weaken the EPA’s clean water regulations and Mexico’s bid to hold American gun manufacturers liable for cartel violence. In the second part of the episode, Kate and Melissa talk with David Enrich of the New York Times about his new book, Murder the Truth: Fear, the First Amendment, and a Secret Campaign to Protect the Powerful https://bookshop.org/p/books/murder-the-truth-threats-intimidation-and-a-secret-campaign-to-protect-the-powerful-david-enrich/21543213.
Hosts’ favorite things this week:
Melissa: Never Caught: The Washingtons' Relentless Pursuit of Their Runaway Slave, Ona Judge https://bookshop.org/p/books/never-caught-the-washingtons-relentless-pursuit-of-their-runaway-slave-ona-judge-erica-armstrong-dunbar/6679265 by Erica Armstrong Dunbar; Due Care in a Conservative Court https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4934035 by Hila Keren (forthcoming in the Wisconsin Law Review); With Love, Meghan (Netflix)
Kate: Towards A New Equal Protection Paradigm by Issa Kohler Hausmann, co-authored with Kevin Yang and Charlotte Lawrence; Severance (Apple TV+)
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Transcript 13,302 words · 8 speakers
Speaker names marked ? are inferred from speaking time and the show’s known hosts — they are not voice-verified.
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1:40 Speaker 01 Mr. Chief Justice, may I please report? It's an old joke, but when a arrogant man argues against two beautiful ladies like this, they're going to have the last word.
1:53 Speaker 02 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."
2:23 Melissa Murray? Hello and welcome back to Strict Scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it. We're your hosts. I'm Melissa Murray.
2:30 Kate Shaw? And I'm Kate Shaw, and we have a big show for you today. We will start with some breaking news and then get you up to speed on the goings on at One First Street, including both arguments and opinions. And then in the second half of today's episode, we have an interview with David Enrich, an investigative reporter at The New York Times and the author of the excellent and deeply alarming new book Murder, The Truth: Fear, The First Amendment, and a Secret Campaign to Protect the Powerful. First up, breaking news.
2:54 Melissa Murray? All right, let's start with the joint session of Congress, also known as the shoulder pat heard round the world.
3:02 Kate Shaw? Pat, pat, pat, pat. Such a noisy pat. Okay, right. What Melissa is alluding to, in case you missed it, is the most important thing that Donald Trump said during his nearly 100-minute speech, and boy, did I feel every minute of it, the longest in 60 years. The thing he said that was the most important actually wasn't anything he said from the dais.
3:24 Melissa Murray? We should clarify, he did say a lot of things, including lies about the disbursement of Social Security payments to dead people. It is literally like they took all of the old voting fraud shibboleths and said, now make it Social Security. And they just went with it. There are also some really notable court-related asides, like this one.
3:44 Speaker 05 We've ended the tyranny of so-called diversity, equity, and inclusion policies all across the entire federal government and indeed the private sector and our military. And our country will be woke no longer. We believe that whether you are a doctor, an accountant, a lawyer, or an air traffic controller, you should be hired and promoted based on skill and competence, not race or gender. Very important.
4:37 Speaker 05 You should be hired based on merit. And the Supreme Court, in a brave and very powerful decision, has allowed us to do so. Thank you. Thank you very much.
4:53 Melissa Murray? I just want to mention to DJT and everyone else listening that Students for Fair Admissions versus Harvard was a very limited decision. It was limited to the context of the use of race in higher education admissions. It didn't say anything about ending DEI in the federal government or the private sector. And indeed, the majority opinion actually reserved the question of whether race might be considered in the admissions calculus for military service academies. And, incidentally, the Supreme Court recently declined to review a case that would squarely challenge the use of race in service academy admissions. Just want to say, this administration really wants you to think that SFFA was doing all the things, doing far more than it actually did. And we are just here to remind you that that is absolutely, undeniably incorrect.
5:38 Kate Shaw? It is incorrect. And in addition to overstating wildly what Students for Fair Admissions versus Harvard said, the president also made a pretty telling admission about the identity that we were speculating about last week of the real Doge administrator. So take a listen.
5:53 Speaker 05 I have created the brand-new Department of Government Efficiency. Doge. Perhaps you've heard of it. Perhaps.
6:10 Speaker 05 Which is headed by Elon Musk, who is in the gallery tonight.
6:17 Melissa Murray? Solved. Solved.
6:20 Kate Shaw? What were we calling it? The Hardy Boys in the Missing? Case of the Missing?
6:22 Melissa Murray? Yeah, the Doge bros.
6:24 Kate Shaw? The Doge bros. Right, right, right. Anyway, so, mystery solved. Apparently, this was such a self-own that some of the lawyers suing Doge and Musk ran to court the same night to file an update, essentially alerting the court to the president's comments about, actually, the identity of the Doge administrator, which had been a subject of some dispute before the judge. And one more thing I wanted to mention that early on in the speech, Texas Congressman Al Green interrupted the speech. He shook his cane at Trump. He shouted that Trump had, quote, "no mandate to cut Medicaid." And I just, I feel like the Democratic Party in general has been somewhat, found it sort of cringe that he did that, didn't love that it was a break from decorum.
7:03 Melissa Murray? No. No, I actually, this reminded me of a book by one of our former employees and maybe a current employee of yours, Kate. His name is Chris Hayes, and he's written a recent book called The Siren's Call, and it's all about our attention economy. And I think Al Green, who is an OG Trump impeacher, he's been filing articles of impeachment against Donald Trump in 2017.
7:27 Kate Shaw? Can't stop, won't stop trying to impeach Trump.
7:28 Melissa Murray? True, true, can't stop, won't stop energy. He's being ridiculed, but he hasn't lost the plot. He is about that attention economy and what he did got attention and maybe should have gotten more attention from his colleagues. But he's doing the things and trying to move this forward.
7:45 Kate Shaw? As compared to the ping pong paddle protest that many Democrats
7:48 Melissa Murray? Auction, yeah.
7:49 Kate Shaw? solemnly wielded, right? They're like auction bidding paddles. He made noise, and he made noise about a specific thing he wanted to direct attention to, Medicaid. And I think that was actually a great use of his political capital and revealed a real understanding of the attention economy. So I too think that former rodeo and husband of the pod, Chris Hayes, sort of was calling for the Democrats.
8:09 Melissa Murray? Not all of our husbands. He's just one person's husband.
8:11 Kate Shaw? No, no, I'm sorry. Just one, one third, one third of us.
8:13 Melissa Murray? Get that right.
8:14 Kate Shaw? Anyway, I just want to say that we are squarely in the yes, Congressman Green, that was excellent. Do more like it and just forget the haters because you've got a better sense of what this moment calls for than many of them.
8:25 Melissa Murray? So those were some of the highlights from the joint session. But to our minds, the really notable moment actually came after the president's very long speech. As President Trump was making his way down from the dais and through the crowd, he stopped to greet the justices who were in attendance. And those justices were Coach Kavanaugh, Justice Barrett, Justice Kagan, and retired Justice Kennedy, and of course, our favorite institutionalist Chief Justice John Roberts. And the president stopped, spoke to all of them, and then lingered a little to say the following to the Chief Justice.
9:01 Speaker 05 Thank you again. Thank you again. Won't forget.
9:06 Kate Shaw? He's definitely saying, "Thank you, thank you." And that part, you know, not particularly sus. He said, "Thank you" to basically everybody he was greeting as he left, finishing.
9:15 Melissa Murray? Thank you for listening to that 100-minute speech. I know you had other things to do.
9:19 Kate Shaw? Exactly.
9:20 Melissa Murray? Yeah.
9:20 Kate Shaw? But the shoulder pat that Melissa alluded to at the beginning of the show, and then the "won't forget," which was definitely directed at Chief Justice Roberts, truly wow, right? Like, it, to me at least, felt like confirmation that it is not just us saying that essentially everything terrible happening right now is attributable to John Roberts. I think Donald Trump basically agrees.
9:41 Melissa Murray? So, do we have a theory for what exactly he was thanking the Chief Justice for? Was it simply staying awake for the entire 100 minutes?
9:52 Kate Shaw? Nope, definitely not.
9:53 Melissa Murray? Was it maybe for last July's epic immunity decision that is now functioning as a basic pass and a foundation on which to build a completely new and robust unitary executive theory? Or was it a thank you for the one-year anniversary of the Colorado disqualification decision?
10:12 Kate Shaw? Yeah, I initially, my mind went to immunity because I do think that that opinion feels like the single most important enabler right now. But then, yes, then I was reminded that it was also, fortuitously, the one-year anniversary of the Supreme Court, and in this case unanimously, right, deciding that actually he got to run again.
10:28 Melissa Murray? It probably popped up on his Facebook memories, and he was like, "Oh, yeah. That was just a year ago."
10:31 Kate Shaw? Well, that's why he was kind of thanking, you know, maybe on that reading, the thank you was actually to all in attendance because they too agreed that Colorado did not have the power to disqualify him and thus he could run again.
10:41 Melissa Murray? So maybe he should have stopped and thanked Amy for her tone policing, her school-marm energy with the other lady justices.
10:47 Kate Shaw? Can I ask quickly? Amy's face in slo mo was the subject of real debate. She looked at Trump, and it was kind of a Rorschach test, like whether people thought she was looking with affection and admiration, or kind of disquiet or disgust. And I couldn't, I found it very hard to read. Did you have a view?
11:04 Melissa Murray? So this is the part of the podcast where I have to confess that I did not actually watch the joint session in real time. I instead watched Yellowjackets because I thought it was more Soothing to watch teenage girls engage in random acts of cannibalism than to watch this. So much of what I saw was read in transcript and then I looked at some clips online. I didn't actually get to see Amy's face.
11:29 Kate Shaw? You should see this. You gotta watch this clip in slow mo. I will send it to you. And I'm curious because it's very hard to tell. Again, we'll update listeners if you come out with a very strong view of in fact, whether she's revealing, you know, she's on Team Trump or very not. And obviously, there were some other developments this week that maybe suggested maybe not. I wouldn't say very not, but maybe not.
11:46 Melissa Murray? So that's where I was going because it seemed that the president may have thanked Chief Justice Roberts a little too soon because that thank heard around the world was on Tuesday night. But then, early on Wednesday morning, the day after the joint address, the court did the funniest thing ever, which is to say that less than 12 hours after DJT proclaimed to everyone the administration's freezing of foreign aid as one of its singular major achievements in the month in which it had been in office, the court, by the thinnest of margins, said, yeah, no, dude, we're not doing that. Let's break it down.
12:23 Kate Shaw? On Wednesday, in a cryptic, one paragraph order in a case captioned Department of State versus AIDS Vaccine Advocacy Coalition, the court rejected the administration's request that the court vacate D.C. District Judge Amir Ali's order directing the government to disperse various frozen foreign assistance funds. Now, this was an order on the shadow docket. It was brief. It was unsigned. It was likely written by Chief Justice Roberts because he, about a week earlier, had granted an administrative stay in the case and he usually writes these things anyway. But bottom line, the administration lost narrowly, but very significantly.
12:57 Melissa Murray? All right. So what does this all mean? First, as Kate said, this order is really cryptic, very spare in its language. Judge Ali had issued a temporary restraining order and then a subsequent order enforcing the TRO and requiring the federal government to pay a bunch of already appropriated foreign aid funds. And it was this enforcement order that the government was trying to get the court to stay, like basically get the court to agree that they didn't have to pay this already appropriated money. There are injunction proceedings that are still ongoing in the district court, and the Supreme Court basically told the district court to just clarify the scope and substance of the government's obligations to comply with the disbursement of the funds
13:39 Melissa Murray? and to basically be accommodating of the government as the district court set deadlines related to the disbursement. Here's the bottom line in all of this, and of course, the details are to be determined. But it's really, really important that this happened because it should mean that some of the funds which were unlawfully frozen and were not paid to these organizations will actually start flowing to them as Congress intended when it appropriated the funds for foreign aid.
14:09 Kate Shaw? Yeah. And right, given the stakes, some of this is literally like life or death aid. It cannot start flowing soon enough. But the other big takeaway here is that it's pretty chilling that this vote was five to four. The five in the majority were the Democratic appointees, plus the chief and the enigmatic Barrett. The dissent by Alito, joined by Thomas Gorsuch and Kavanaugh, was predictably a doozy.
14:31 Melissa Murray? The dissent was eight pages. The order, I should note, was just a single paragraph. So yes, this is how Justice Alito's dissent begins. Quote, "Does a single district court judge who likely lacks jurisdiction have the unchecked power to compel the government of the United States to pay out and probably lose forever $2 billion taxpayer dollars? The answer to that question should be an emphatic no, but a majority of this court apparently thinks otherwise." I am stunned, end quote.
15:03 Kate Shaw? Yeah.
15:03 Melissa Murray? Stunned.
15:04 Kate Shaw? Such a drama queen, my god.
15:05 Melissa Murray? I mean, dramatic, right? I mean, I wasn't even really adding much. I was just reading the words. He went on to say that the district judge here, Judge Amir Ali, quote, "grew frustrated" and that he demanded the money be paid within 36 hours. The opinion then went on to accuse Judge Ali of hubris and self-aggrandizement, and to which I say, "Good sir, look in the mirror about hubris and self-aggrandizement." Okay. Then Justice Alito continued, quote, The government must apparently pay the $2 billion posthaste, not because the law requires it, but simply because a district judge so ordered.
15:46 Melissa Murray? As the nation's highest court, we have a duty to ensure that the power entrusted to federal judges by the Constitution is not abused. Today, the court fails to carry out that responsibility, end quote. What a little hierarchical monster. Oh my, like, district court judges lick my boobs.
16:06 Kate Shaw? I know. So it's a lot of overheated rhetoric. There is a little bit that sounds more in the register of law about sovereign immunity and some general equitable principles, but it mostly feels like a partisan screed against USAID and against a judge appointed by a Democratic president.
16:18 Melissa Murray? And trial court judges, who are not the nation's highest court.
16:21 Kate Shaw? Correct. Friend of the pod, Commander Steve Vladek, in his one First Street newsletter, I thought really usefully contrasted Alito's rhetoric here with his dissent from a case late in the Biden administration, Texas versus United States, in which all Biden was trying to do was exercise immigration enforcement discretion in a way that Justice Alito did not find his liking. And Justice Alito, in that dissent, wrote, quote, "Nothing in our precedents even remotely supports this grossly inflated conception of executive power, which seriously infringes the legislative powers that the Constitution grants to Congress." And just my how his perspective has changed in just such a short time. No idea what explains the divergence.
16:59 Melissa Murray? I mean, I wish Leah were here, because I think she'd say something about the difference between Republican presidents and Democratic presidents, but that can't be what's going on.
17:07 Kate Shaw? No, no, we'll have to wait till she gets back.
17:08 Melissa Murray? We're gonna have to dig the mystery of Justice Alito's shifting views of executive power. All right. What do you make of the timing of this order? Do you think they held it until after the joint session?
17:22 Kate Shaw? Probably. 9:00 AM is a weird time to issue an order, which is when it came out Wednesday morning. It was probably ready. Vladek also notes this in his newsletter the night before. And yeah, I think, I don't know, they really wanted that shoulder pat, I guess.
17:32 Melissa Murray? Do you think that encounter had anything to do with it? I don't think so.
17:35 Kate Shaw? No, I think it was.
17:36 Melissa Murray? I think it was already written.
17:37 Kate Shaw? I think that's right.
17:38 Melissa Murray? They probably put it on schedule send, like, you know, 9 a.m.
17:41 Kate Shaw? 9 a.m., yeah, totally. Schedule your email.
17:43 Melissa Murray? Let him have this night. Let him have these 100 minutes and tomorrow, let him know. Anyway, now, as we said, Justice Alito's rhetoric in this case was unusually nasty toward the district judge, Amir Ali, even for Justice Alito, who we know is a notoriously thin, but dewy-skinned individual. But what's especially disturbing here is that this all comes in light of reporting from Reuters that makes clear that U.S. Marshals are warning about alarmingly high rates of threat levels against federal judges. This uptick may not be a coincidence, especially in light of the efforts of walking, talking, appointments violation Elon Musk, who has been trashing several federal judges.
18:25 Melissa Murray? But I will say that the Reuters article is actually really chilling because it revealed that some of the judges who have ruled against the Trump administration are under extra security because of the elevated threat level. It also revealed that a number of judges in the D.C. area have received pizzas delivered anonymously to their homes, which is a sort of, "we know where you live" kind of move. And the piece then included some of the vile content that is circulating, apparently unchecked, on Twitter about these judges in response to Musk's dozens of tweets attacking the federal judges. And some of these comments are very explicit in their threats of physical harm to these public servants.
19:04 Kate Shaw? We're not going to repeat them, but I really didn't because I'm almost never on Twitter these days. I just had no idea quite how explicit some of the threats have gotten, and the Reuters article was just really, really scary. But that is kind of the threat environment that we are in. We also wanted to flag a development that a few different listeners have brought to our attention. There is an election ongoing for the position of president of the D.C. Bar Association, and that is not an election we would typically cover on the pod. But in this instance, one of the two candidates is Bradley Bondi, who is the brother of Attorney General Pamela Jo Bondi. He, Bradley, has been a D.C. law firm partner for 25-plus years, seems to be a quite accomplished lawyer, but does not appear At least from his law firm bio to have any prior involvement with the DC bar
19:46 Kate Shaw? other than just membership, which I gather is unusual for somebody seeking to lead the bar. Anyway, the DC bar seems to have some involvement in lawyer discipline and listeners probably know that bar disciplinary measures were actually one of the kind of meaningful outside checks on the last Trump administration, although it was really an after the fact check. But the possibility of kind of modification of the DC bar would be very concerning. So we are mentioning this because we understand these are often low turnout elections, but this seems like one that if you're a DC lawyer listening, you may not want to sit out.
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22:25 Kate Shaw? So let's turn to the lone merits opinion that the court handed down since we last recorded.
22:29 Melissa Murray? I'm just going to say that the theme of the week at the court is show your work, even if your work happens to be really, really shitty. This is all to say that we got a single opinion and it was City and County of San Francisco versus EPA. And this was a case about EPA regulation under the Clean Water Act. The court issue here was whether the EPA has the authority under the Clean Water Act to limit permittees discharge of pollutants, including raw sewage into navigable waters. And a majority of the court said that the EPA had no authority to do this. And interestingly, the lineup was a little weird. The bottom line is this, though. Substantively, it's a five to four opinion with Justice Alito and the other sewage swilling
23:11 Melissa Murray? men's in the majority and all of the women justices who apparently would prefer their water without a side of raw sewage siding with the EPA and Mother Earth in dissent. Notably, the dissenters did join one part of the opinion, part two, which Justice Gorsuch did not join.
23:27 Kate Shaw? All right. So as we noted when we previewed the case back in October, the case is really about who the majority hates more. Wine sipping, Pelosi-loving, liberal San Francisco, or the unelected bureaucrats of the EPA? And it's close, but turns out it's the EPA. So the majority concluded that the EPA's permitting provisions at issue here, which regulated San Francisco's discharges into the water supply, in part by prohibiting discharges that contributed to a violation of water quality standards, exceeded the scope of the EPA's authority under the Clean Water Act.
23:56 Melissa Murray? So as a reminder, here's what the case is about. The respondent in this case, who we're just going to call San Francisco, operates a combined overflow system that emits pollutants into the Pacific Ocean, which is among the navigable waters of the United States for purposes of the Clean Water Act. The EPA issued a permit to San Francisco for these discharges, and the permit conditions prohibited discharges that, quote, "cause or contribute to a violation of any applicable water quality standard and barred the creation of pollution, contamination, or nuisance," end quote.
24:26 Kate Shaw? So San Francisco argued that these particular permit conditions were not authorized by the Clean Water Act in that they made San Francisco responsible for the quality of the water into which they were depositing stuff, like actually shit, but into which other entities were also depositing various items. And the majority agreed. So the statute references, quote, "any more stringent limitation that is, quote, 'necessary to meet certain water quality standards that are imposed under state law or any other federal law or regulation,' and any more stringent limitation required to implement any applicable water quality standard." So that's like a lot of language that seems like it gives pretty broad authority to the EPA, at least to my mind. But Justice Alito found, based largely on pretty tortured readings of dictionary definitions
25:10 Kate Shaw? of various words in the phrases that I just read, plucked out of context, Alito found that the provisions, like the ones in the permit, which focus on the quality of the water being emitted into, are impermissible because limitations that the statute allows the EPA to impose are imposed from without rather than within. So telling a polluter to figure out how to avoid polluting water isn't a limitation. And also, he said, because the terms "implement" and "meet" require the EPA to set specific pollution requirements as to the discharging substance, again, not the water into which the discharge is made, the EPA did not have the authority to impose the conditions that it imposed here.
25:52 Kate Shaw? If this sounds like kind of weird and tortured and hard to follow, it very was.
25:59 Melissa Murray? And at the end of the opinion, Justice Alito can't help but be a little bit defensive. He says this, quote, "If the EPA does its work, our holdings should have no adverse effect on water quality," end quote. Oh, really, sir? How about when Elon Musk is done with the EPA? Will it still be doing good work then? Again, all of this strikes the same, the lady, the justice, the protest too much note all at the end of the opinion. I just, again, what more to say? Raw sewage, Elon Musk, water, Pacific Ocean, all bad.
26:35 Kate Shaw? Bad timeline. This is a bad timeline.
26:36 Melissa Murray? Yeah, bad timeline. Bad timeline. All right. There is a dissent in this case. Justice Barrett basically says to Justice Alito, "Hey, dummy." Quote, "Conditions that forbid the city to violate water quality standards are plainly limitations on the city's license to discharge." It is a dissent, but as we mentioned, she does join part two of the majority opinion, which rejects a different argument that San Francisco had made. And she thinks the majority is basically right to do that. But again, she's just sort of like, can you read? Do you know what limitations means? As a matter of ordinary English. And she goes on to elaborate, quote, "It is commonplace for limitations to state that a particular end result must be achieved and that it is up to the recipient to figure out what it should do.
27:19 Melissa Murray? For example, a company could impose spending limitations by requiring each branch to spend no more than its allotted budget, while still leaving branch managers flexibility to determine how to allocate those funds." Checks out to me.
27:31 Kate Shaw? I know. Barrett was making an alarming amount of sense this week. And I think this case, plus Ohio versus EPA, where you had the same coalition, like suggests that we do have a highly gendered earth coalition forming on the court. And, you know, they just got to get amends and then they can protect all of us.
27:45 Melissa Murray? All right. Onto argument recaps. And I just want to preface this with a caveat. We are going to tick through some of the oral arguments that the court heard this week. We're really only going to focus on one major argument. The rest we'll just cover very briefly because we are absolutely dying to get to our interview with David Enrich, who's going to be joining us to talk about his new book, Murder, The Truth, which is about the ongoing conservative campaign to dismantle New York Times versus Sullivan. So that is up soon. But first, argument recaps.
28:15 Kate Shaw? The only case we're really going to cover in depth is Smith & Wesson Brands, Inc. versus Estados Unidos Mexicanos, which is a lawsuit brought by Mexico against US gun manufacturers alleging that these manufacturers have caused, through both negligent and intentional conduct, unlawful sales of firearms to Mexican cartels. So turns out, I learned from reading the brief in this case, there is literally one gun shop in Mexico, and you definitely cannot get semi-automatic rifles and other such weapons there. And yet, cartels have tons of such weapons. And this complaint alleges that they are getting those weapons from US gun manufacturers, and they are thus liable for some of the harm done by these cartels.
28:52 Melissa Murray? The manufacturers moved to dismiss the complaint under the Protection of Lawful Commerce in Arms Act. That's known as PLOCA. This is a statute that provides sweeping, but not absolute, immunity to gun manufacturers. Basically, the statute says that gun manufacturers are not liable if people commit crimes with their products. But there is a very significant exception. PLOCA allows suits against defendants who, quote, "knowingly violated a state or federal statute applicable to the sale or marketing of the product," end quote, including by aiding and abetting such violations where that violation was a proximate cause of the harm for which relief is sought. The district court below dismissed the complaint, and the question before the court is the meaning of this exception to PLOCA.
29:36 Melissa Murray? Mexico argues that the exception applies because these gun dealers aided and abetted violations of federal law by knowingly distributing guns to intermediaries who then provided them to drug cartels. The argument was, predictably, a pretty rough going for Mexico. Former Trump SG Noel Francisco represented the firearms manufacturers, and his argument was both that Mexico hadn't made out its case of aiding and abetting liability, and also that it couldn't satisfy the proximate cause requirements. He also leaned really hard into slippery slope reasoning, basically suggesting that if Mexico gets to go forward here, because all that's at stake is whether Mexico's complaint should have been dismissed, or whether Mexico should have the chance to make out its case
30:19 Melissa Murray? in court, it would be open season on US companies. So, for example, Budweiser. Might be potentially liable for every act of drunk driving.
30:28 Kate Shaw? And you know whose attention that example got? Coach Kavanagh. He was very concerned that, quote, "Your theory of aiding and abetting liability would have destructive effects on the American economy in the sense that, as you've read in the briefs, lots of sellers and manufacturers of ordinary products know they're going to be misused by some subset of people." So, you know, this is classic, like, first they came for the gun manufacturers, reasoning.
30:49 Melissa Murray? Well, no one thinks about the price of eggs. That is what he's saying. Like, Noel Francisco is the only person thinking about the price of eggs. A looming precedent here is Twitter versus Tomna, which was a case the court heard just a few terms ago. There, the court said that social media companies can't be liable for aiding and abetting terrorism just because ISIS and other groups use those platforms for things like recruitment. As the court said in Tomna, and this reasoning came up a lot in the oral argument here, quote, "If aiding and abetting liability were taken too far, then ordinary merchants could become liable for any misuse of their goods and services, no matter how attenuated the relationship with the wrongdoer," end quote.
31:30 Kate Shaw? A number of the justices seemed really skeptical of Mexico and concerned about the implications of letting the case go forward. The conservatives were, like, of course they were, but, you know, Justice Jackson actually seemed to me pretty likely to side with the gun manufacturers, and I wasn't totally sure about the other two Democratic appointees.
31:44 Melissa Murray? All right, let's highlight a couple of exchanges from the oral argument. I thought one very interesting exchange was the one where Justice Gorsuch inadvertently revealed his contempt for all SCOTUS opinions written by lesser justices than himself. So, take a listen.
32:00 Speaker 06 I think it goes back to the court's 1876 decision in the St. Paul Railway case, where you made clear that if there is a sufficient and independent Wasn't me.
32:11 Speaker 06 Your Honor, I think of the court as a collective body that operates across time. And it made clear Gorsuch doesn't blink.
32:21 Kate Shaw? I love that. I love all of that. I love Sotomayor being like, yeah, dude, that guy thinks everyone's an idiot, except himself.
32:29 Melissa Murray? I just thought he was outing himself as a closet Shaggy fan. Do you know what I mean by that?
32:34 Kate Shaw? That is, look, I am of basically the same generation. It is a deep cut. I'm here for it. Kids, there is an excellent not, not safe for work tune that Gorsuch may in fact have been conjuring up, if you don't know it. Pull it up.
32:47 Melissa Murray? All right. Alito, at one point, wanted to speak to the manager about the fact that Mexico gets to sue here. And if Texas wanted to sue Mexico, it might not be able to do so. And that is grossly, grossly unfair. So here's the colloquy between Justice Alito and the lawyer representing Mexico, basically probing why Mexico is the plaintiff here when everybody knows that the violence is just all Mexico's fault.
33:13 Speaker 07 I just thought I would ask you a question that may be on the minds of ordinary Americans who hear this argument or learn about the case. Mexico says that US gun manufacturers are contributing to illegal conduct in Mexico. There are Americans who think that Mexican government officials are contributing to a lot of illegal conduct here. So suppose that one of the 50 states sued the government of Mexico for aiding and abetting illegal conduct within the state's borders that causes the state to incur law enforcement costs,
33:57 Speaker 07 public welfare costs, other costs. Would your client be willing to litigate that case in the courts of the United States? However, Mexico can sue US manufacturers here for harm caused in Mexico. But one of the states here can't sue the government of Mexico for harm caused in the United States. I don't think it's entirely.
34:23 Leah Litman? Accurate to call it a one way street. And if the street is one way, it's because Pfizer and other decisions from this court have said that when a sovereign comes into this court as a plaintiff, it is treated exactly like any other plaintiff, no more and no less.
34:37 Kate Shaw? God, the minds of ordinary Americans, like that is what he thinks we are all residing in the same silo he is, and it is scary. Anyway, I thought that Kate Stetson, who is representing Mexico, answered this very well, as she did throughout the argument. But I guess what's sort of implicit, not in what she would say, but in Alito's mind is, well, even if all that's true, we don't actually believe in any sovereigns but the United States anymore anyway, especially not Mexico, so all that needs to be revisited. And then I actually wanted to play one more clip that involved my eyes rolling back so far in my head, saw gray matter, and that was Noel Francisco suggesting that, well, let's just play the clip.
35:13 Speaker 06 My friend also talked about three pistols sold by Colt with Spanish named firearms. The notion that selling a Spanish named firearm is what gives rise to joint purpose with cartels under the aiding and abetting statute is as wrong as it is offensive. There are, after all, millions of perfectly law abiding Spanish speaking Americans in this country that find those firearms very attractive, and making those firearms available cannot possibly cross the line into aiding and abetting liability. But even if it could, the notion that selling three Spanish named pistols is the proximate cause of cartel violence in Mexico is frankly absurd, and I don't think it comes even close to establishing Twombly's plausibility standard.
35:57 Kate Shaw? I mean, this is real woke Warriors fodder for you, Melissa, and I'm sorry that Leah's book is already fully done, because it would be great for her to include as well.
36:07 Melissa Murray? Bottom line, notwithstanding a really good argument for Mexico presented by Kate Stetson, this case is likely going to be an L for Mexico, which I think at most will get two votes, maybe even zero votes.
36:25 Melissa Murray? Hard to say. The court also heard arguments in three other cases. Let's quickly tick through them. There was C.C. Davis, Mauritius Limited versus Antrix Corporation, which considers whether plaintiffs must prove minimum contacts before federal courts may assert personal jurisdiction over foreign states sued under the Foreign Sovereign Immunities Act. The court also heard Blom Bank Sal versus Hoenigmann, which concerns whether federal Rule of Civil Procedure 60B6's stringent standard applies to post-judgment requests to vacate for the purpose of filing an amendment complaint. And then there was the final case. Kate?
37:03 Kate Shaw? So Nuclear Regulatory Commission versus Texas considered two key issues. First, whether the Hobbs Act, which authorizes a party aggrieved by an agency's final order to petition for review in a court of appeals, allows non-parties to obtain review of claims, asserting that an agency order exceeds the agency's statutory authority. And then two, whether the Atomic Energy Act of 1954 and another statute permit the NRC, that's the nuclear regulatory body, to license private entities to temporarily store spent nuclear fuel away from the reactor sites instead on sort of private locations. The argument got pretty bogged down in the details of the kind of first question presented and then all these sort of antecedent issues about non-party intervention in the agency and just participation in NRC proceedings.
37:47 Kate Shaw? That largely overshadowed the deep and, I thought, really scary substantive questions about the storage and security measures around nuclear waste. So basically, the Fifth Circuit had said the NRC lacked the authority to license private facilities to store nuclear waste. And if that stands, it's not clear where the waste from nuclear reactors is supposed to go or who even is going to be working at the NRC to make these decisions if they can't just do what they've always been doing, which is let the stuff get stored in private locations. So the Yucca Mountain facility, which is supposed to be the key storage for nuclear waste, is still stalled largely over local opposition. So I just, this case is very complicated. I am just praying the court disposes of it on that first question because the way these guys were like spitballing about security measures around the storage of nuclear waste was really giving me heart palpitations.
38:32 Kate Shaw? Let's just like play two of them.
38:33 Speaker 07 Is there more security around facilities that are owned by the
38:38 Speaker 05 Federal government than around these private facilities? I'm struggling with that. I understand your argument before Congress acted at NWPA. But afterwards, it specifically said that declined to authorize any storage facility located away from the site of any civilian nuclear reactor and not owned by the federal government. That was its judgment about the security that be required for this material.
39:05 Kate Shaw? So they might just decide to blow up what the agency has been doing for decades for funsies. So anyway, that is a sleeper terrifying case of the term, but hope that we never get to see what they make of it.
39:16 Melissa Murray? All right. So that's what's going on at One First Street. Up next, we're going to take a step back from the court's day to day hustle and talk with investigative journalist and author David Enrich about a long percolating conservative effort, Clarence Thomas is a fan, to overrule New York Times versus Sullivan, the 1964 Supreme Court decision that is considered the bedrock of a free press. That interview is right after the break.
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41:33 Melissa Murray? So, listeners, as Jane Austen would say, it is a truth universally acknowledged that if Clarence Thomas likes it, it is obviously a bag of dicks. That line of thinking has generally been sound on a range of different issues, from overruling Roe and Casey to gutting affirmative action. And, as our next guest will recount, it also applies to the conservative legal movement's longstanding antipathy for New York Times versus Sullivan, the 1964 Supreme Court decision that established that the First Amendment protects the right to publish statements, even if those statements are critical of public officials. And we'll get to the details, but that's the basic gist of it. New York Times versus Sullivan
42:16 Melissa Murray? is considered the bedrock, the foundation of a modern free press that is able to hold government officials to account, which might be why conservatives, including Justice Thomas, have targeted it.
42:29 Kate Shaw? So, the campaign to dismantle Sullivan is the subject of a terrific new book by New York Times journalist David Enrich. The book is called Murder the Truth: Fear the First Amendment and a Secret Campaign to Protect the Powerful. It is a must-read at any time, but especially right now when the press as a pillar of democracy is under such active threat. So, David, welcome to the podcast. Thanks so much for joining us.
42:51 Speaker 05 Thanks for having me.
42:52 Melissa Murray? Okay, David, let's dive right into it. I would love to start with the actual malice standard that is set forth in the 1964 decision, New York Times versus Sullivan. Can you start by explaining how Sullivan's actual malice standard works and describing how it became an indispensable safeguard for American journalists and everyday citizens who would like to hold their leaders to account by calling them on the things that they do?
43:17 Speaker 05 The actual malice standard, the gist of it is that if you are talking or writing about a public figure or a public official and you get a fact wrong innocently, you cannot be held liable for that false statement, even if it damages the person's reputation. For a public figure or public official to prevail in a defamation case, they needed to prove not only that they were defamed and that you said something wrong, but also that you did so either knowingly, so in other words, lying, or that you acted with reckless disregard for the accuracy of what you were saying. And so, prior to Sullivan, if you did an investigation into, say, a southern official who was violating people's civil rights, and you accidentally got a fact or two wrong,
44:00 Speaker 05 you could be taken to court and face ruinous financial damages. After Sullivan, if you were investigating a racist southerner who is violating people's civil rights and you accidentally got a fact wrong, as long as you did it in good faith and were trying to get things right and screwed up innocently, you could not be held liable. So, the decision in 1964 that created the actual malice standard basically ushered in this golden age of investigative journalism in America. And that was because no longer did journalists have to worry that making innocent mistakes would open them up to endless lawsuits. And so, it really, it's a bedrock of modern journalism and a bedrock of just free speech in general, because it's not just journalists who have this right, it's anyone who wants
44:44 Speaker 05 to post something on social media or, you know, circulate a petition online, things like that.
44:49 Kate Shaw? So, I think it's exactly right. It has formed essentially the backdrop against which a lot of modern discourse, both journalistic and just popular, occurs and has been for over half a century. And in the book, you draw a really powerful contrast between the kind of- Post-Sullivan landscape involving journalistic free speech and expression being protected and the much more litigious libel landscape in Great Britain. Right? So the book's title comes from a statement that a British lawmaker, who was, on your telling, appalled by his country's censorious laws, which essentially allowed the powerful to attack the press and, quote, murder the truth. So that's where the title comes from. So can you just say a couple of words about the contrast between the free speech landscape in the United States and Britain?
45:29 Speaker 05 Well, they're really just polar opposites in a lot of ways. I mean, Britain obviously has a well-functioning democracy and they have a very aggressive press corps, but the press can be held liable for all sorts of statements that in America would never happen. So you have Russian oligarchs, for example, rushing to London to file lawsuits, not just against British journalists, but against anyone who has written about a Russian oligarch in a negative way and it's published anywhere in the world. The UK has become this hub for litigation to silence not just journalists, but public interest groups, researchers, academics, authors. And the result is very clear in the UK, which is that there are public scandals that do not come to light because of this litigation.
46:13 Speaker 05 And it's not just the litigation, it's the threat of litigation. And a lot of people recognize, lawyers recognize, that, you know, if you publish something, you are taking a great risk in the UK. And I used to work in London for the Wall Street Journal, and so I would see this firsthand with many of my competitors who worked for British outlets, that their hands were tied. And it is, it's the very opposite of what the First Amendment in the US is designed to protect. They want a situation in the US where people are not afraid to criticize and scrutinize powerful people.
46:44 Kate Shaw? And can I just, just to underscore something you said at the beginning? So at the end, you said, you're British colleagues working for the British press. But as a lot of the stories in your book reveal, it's not just British journalists, right, who are potentially threatened by this very permissive system in Great Britain. You have American journalists and writers who end up actually sued by the powerful in British courts and have to respond to that, sometimes with very few resources at their disposal.
47:06 Speaker 05 No, and in fact, I don't, as soon as those words came out of my mouth, I was asking myself why I said it, because I have been sued in the UK. And when I was in the UK, I was subject to court injunctions that powerful people got to silence our reporting. So this is very much something that especially in the modern digital age, where something that's published online is accessible all over the world, that this is really the laws in a country like the UK, which in many ways is a liberal democracy, can be very censorious for the entire world.
47:38 Melissa Murray? On that note, David, some of us might remember when Donald Trump was ranting about opening up our libel laws so that he could sue the media into oblivion because he was mad about negative press coverage. You argue in the book that this wasn't just Trump being Trump. I mean, it was Trump being Trump. But there is actually something to this whole idea of an elite legal strategy to dismantle the American free speech landscape and make it more like what they have in Britain. So I would love to know a little bit more about how this idea jumped the pond to the US. How did it go from being a MAGA fever dream to actually being an on the wall legal movement?
48:20 Speaker 05 Well, I think there are two things that really got it started in the US. One was, as you mentioned, Trump in early 2016 started talking without a whole lot of logic behind what he was saying about the need to open up the libel laws in the US. Now, that's not something a president or even Congress can do. That's a question of the Supreme Court's interpretation of the First Amendment. But having a major party presidential candidate, and then the president himself, talking about something, it really, it shifts opinion. And it leads people who are kind of lower down the food chain to embrace that logic and embrace that rhetoric. And I think that was one big factor. The other, though, was that around the same time that Trump started campaigning on this topic, there were a couple of court cases that that really showcased the ability of weaponized lawsuits to have
49:05 Speaker 05 a huge effect on a media outlet. The most obvious one was the one against Gawker, which destroyed Gawker. And that was not a defamation case. It was an invasion of privacy case. But it was still, it was kind of part of the same trend, which was that a billionaire had a vendetta against a news outlet. A variety of reasons and sought to throw his money behind a kind of multi-pronged legal attack, which resulted in one particular lawsuit that killed Gawker. And I think that the success of that lawsuit and the the existence of Trump's rhetoric and Trump's success on the campaign trail with that rhetoric. It really, it's in a really powerful message to people all over the country, whether they're billionaires
49:44 Speaker 05 or, you know, MAGA foot soldiers, that there were very powerful ways to intimidate and punish the press and anyone else who had the temerity to say things in public that kind of threatened those people's power or profits.
49:59 Kate Shaw? And we should say the billionaire in question here was Peter Thiel, who people may not have heard of at the time, but obviously is much more of a household name today.
50:06 Speaker 05 Yeah, and that's, and this was really, Thiel was the one who kind of financed and I think discovered and set the, created a blueprint for these types of attacks. And as one that, and one of the things I learned while reporting this book was that Trump, who was, you know, on the campaign trail publicly talking about this type of issue in general, shortly after the Gawker case, he showed up at the Washington Post for an editorial meeting. And one of the editors asked him about his, to kind of elaborate on his statements about opening up the libel laws. And instead, Trump went on this riff about how amazing the Gawker verdict was. And, you know, Trump is someone who at that point had filed like many libel lawsuits himself, had almost always lost. And you could see kind of the wheels turning in his head, like he was marveling at this amazing verdict and it seemed almost a little bit jealous.
50:51 Speaker 05 And I think that was a really important moment in the recognition that a lot of people started to have about the potential power of litigation and legal threats.
50:59 Kate Shaw? Yeah. There's a lot more to say about the concerted effort to dismantle Sullivan, but I, it's actually a story that you tell that is much more complex than just that, right? A story of an attack. It is, it's not just about the importance of protecting the press in a democracy and Sullivan's role in that, but there are also episodes that suggest that sometimes lawsuits, defamation lawsuits, or other kind of common law claims can, can actually protect or advance democratic values, which just makes it a really kind of complex story. So in that vein, will you talk about the Dominion lawsuit?
51:26 Speaker 05 Yeah, so to me, the Dominion lawsuit is important because, well, for a lot of reasons. But and one of the critiques of Sullivan is that it makes it impossible for public figures or public institutions to be compensated or be made whole when they are defamed. And the Dominion case obviously involved Fox News and other right wing networks coming up with lies and broadcasting lies and conspiracy theories claiming that the 2020 election was fraudulently stolen from Donald Trump. These were falsehoods. The people making these statements knew what they were saying was false. So it's kind of a classic example of the type of thing that should give rise to a successful defamation claim. And sure enough, it did.
52:08 Speaker 05 And in the Dominion case against Fox News, some of the same lawyers who have been championing this idea of overturning Sullivan were successful in arguing that Dominion had been defamed and deserved hundreds of millions of dollars in damages. And they prevailed. So to me, it's a real testament to the adequate nature of existing libel laws to police defamatory speech and deliberate lies that are kind of polluting our news ecosystem right now.
52:36 Melissa Murray? That's a great intervention, David, like this idea that Sullivan is enough. And indeed, for a very long time, conservatives celebrated Sullivan in much the same way they have celebrated the First Amendment and used it to expand corporate speech and protect religious bigotry and deregulate campaign finance. They've been all on board for all of this, including Sullivan, until they weren't. And so can you explain how conservatives, including Justice Thomas, who once embraced New York Times versus Sullivan, have really switched gears seemingly overnight to decide that Sullivan is in fact an existential threat to democracy? What gives what changed here?
53:15 Speaker 05 Well, I think there are a lot of different forces at play. I mean, I think the forces that are propelling Trump on this front are a little bit different, maybe, than what has motivated Justices Thomas and Gorsuch with Trump and his MAGA allies. And I think it's really quite simple at this point, which is that they are promoting an agenda that is based often on lies. And distortions and conspiracy theories and having a strong vigorous robust media that refutes those lies and distortions poses a real threat to their agenda. And so they want to weaken and delegitimize the media at every turn and making it easier to win defamation cases against the media is one way, one of many ways that they can do that. And with Thomas and Gorsuch, I think
53:58 Speaker 05 it might be a little bit different. I mean, Thomas, in his 1991 confirmation hearings, was very clear that he supported Sullivan and that even though it meant that public officials like him found themselves in this uncomfortable spotlight, that was kind of the price of the First Amendment, and it was a price worth paying. And those are just days before Anita Hill went public with her allegations against him. And Thomas then spent quite a while in facing very uncomfortable unpleasant media scrutiny. And I think that that episode, which really drove him to the brink of a mental health breakdown, was, I think it led him to kind of view the media as this rabid dog instead of kind of looking in the mirror and saying, what did I do that that
54:39 Speaker 05 triggered this? He blamed the media as attack dogs trying to tear him down. And this
54:44 Melissa Murray? You wanted him to have an anti-hero moment. It's me. Hi, I'm the problem.
54:48 Speaker 05 I didn't want him to have that. I mean, it's just to me, like, you know, it's healthy for people to sometimes look in the mirror and acknowledge that maybe they didn't handle everything perfectly. But instead, he blamed the messenger, which is obviously hardly the first public official to do so. But he is the first public official to go through this and then be in a position on the Supreme Court where he has the megaphone to try and destroy Sullivan. And so in 2019, so that's almost 30 years after his confirmation hearings, he found a case that wasn't even a very appropriate case for to make this argument, but he chose to make a statement that called for overturning Sullivan on basically on the grounds that it was not based on the original meaning of
55:30 Speaker 05 the First Amendment. And that really, that was like a starter's pistol on this race to overturn the decision. And it picked, it started picking up a bunch more support from federal judges, from Neil Gorsuch two years later, and then from a whole slew of federal, lower court, federal and state judges all over the country.
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57:21 Kate Shaw? I want to ask about one episode, which maybe spoke especially to me because we are law professors, but just in this period where Thomas is sort of gathering support for this campaign, there is sort of an unlikely figure who plays a very large role, and that's Professor David Logan. And I found that episode totally riveting, like it's a well-intentioned law professor, makes a pretty serious error, and inadvertently provides tons of ammunition for this effort. So can you just briefly walk us through it?
57:47 Speaker 05 Yeah, so David Logan was a professor at Roger Williams School of Law in Rhode Island. He had, over decades, as an academic, and he was a very well-regarded academic. His students loved him. He had written a bunch- A bunch of academic papers that while they hadn't really made him famous, they had, you know, I think been successful. And so, starting around the around 2020, Logan delved into what was going to be the final act of his academic career, which was a research paper looking at how often defamation lawsuits against the media are successful. And he used some kind of quasi publicly available data to crunch these numbers. And unfortunately for him, just completely misinterpreted the data.
58:28 Speaker 05 And adding to the error, he then made a bunch of kind of logical assumptions about how he thought the media worked without ever having actually spoken to anyone in the media or anyone who is even really media adjacent. And the result of this was a law review article that was published in 2020 in the Ohio State Law Journal that somehow made its way to the desk of Justice Gorsuch. And my hunch is that that's because Professor Logan had a relationship with Justice Kagan. He had known her for years and he sent her the paper and then it magically appeared on Gorsuch's desk. I don't know for sure that that is the cause and effect, but in any case Gorsuch in a 2021
59:08 Speaker 05 case relied almost entirely on this law review article by Logan, adopting not only his arguments, but also some of his rhetoric and leaned very heavily on the data that Logan had produced that turned out to be wrong or wrongly interpreted.
59:24 Kate Shaw? Which ported to show it was like almost impossible ever to get like a judgment against a media company. This Sullivan wildly overprotected the media as against vulnerable injured parties. That was the basic gist, right of Logan's claim turns out to have been completely wrong based on the data he was looking at.
59:39 Speaker 05 Yeah, the data he was looking at was essentially meaningless. And it turned out and there was a sample size, I think of six cases ultimately, as opposed to 30 cases. And it was a much more kind of muddied picture in any case. And that was one of the most powerful lines in Gorsuch's opinion was this was a data point that showed that basically 90% of the time, even when a plaintiff manages to win in a media case, the penalties get overturned on appeal. And it just wasn't true. And that was eventually brought to the attention of the Supreme Court, which quietly corrected Gorsuch's opinion after the fact. But his original opinion still to this day remains online with the wrong numbers in it. And they have received great attention in the conservative legal movement, which continues to cycle through these numbers as they make the
1:00:24 Speaker 05 argument that the libel standards need to be relaxed to make it easier to sue media companies.
1:00:29 Melissa Murray? Can I ask a forward-looking, perhaps dystopic question? How close are we to the conservative legal movement actually gutting New York Times versus Sullivan? So that's one question. And if it does happen that the court overrules Sullivan, what does the legal landscape look like? Do we just become Britain? Do I have to start talking like this all the time? Like, what happens?
1:00:53 Speaker 05 Well, first of all, I think you should definitely start talking like that, regardless of what happens.
1:00:57 Kate Shaw? Seconded, yep.
1:00:58 Speaker 05 But I don't know. I have a really terrible track record when it comes to making predictions. But that being said, like, I think my prediction is probably that Sullivan itself does not get overturned in the immediate future. I think a much more likely outcome is that the court accepts a case for review that doesn't challenge Sullivan itself, but it challenges some of the subsequent cases that made Sullivan apply to a broad range of public figures. And I could see the court kind of chipping away at that area and making it easier for some of the public figures essentially to bring these cases. But I think even though that would not be as bad as it could be, and Sullivan itself would still remain intact, that has the potential to make it a lot harder for anyone to criticize
1:01:43 Speaker 05 or investigate or write about people, billionaires, or university presidents, or athletes, or anyone else who wields a lot of influence in the public sphere but is not actually working for the government. So even though it would not be an outright overturning of Sullivan, I think it has a real potential to make it much harder for people to scrutinize what rich and powerful people all over the country are doing.
1:02:07 Kate Shaw? And even if the court doesn't overturn Sullivan, or even if it doesn't explicitly do what you are describing, it does feel, to me at least, as though the pall that has already been cast over a lot of this litigation by these Thomas and Gorsuch writings and the general push, right, the anti-Sullivan push, has, I think, influenced the way lower courts are responding to defamation cases, even where technically speaking, they're totally controlled by Sullivan. A lot of the stuff should get thrown out, obviously, motions to dismiss, and it looks like that's not happening.
1:02:35 Speaker 05 Yeah, that's, I was just going to make that point, and that's 100% right. And judges have now feel empowered and in some cases like almost obligated to let cases stick around longer than they otherwise would, surviving motions to dismiss, sometimes surviving summary judgment. And that means not only that news outlets and journalists, including many independent and smaller news outlets that do not have the financial resources that say the New York Times has, but they have to fight longer in court. The it's much more expensive and it's often subjects them to discovery and depositions that allow their opponents in court to kind of go on fishing expeditions to find information that's not going to help their legal case, but can be really helpful in trying to discredit
1:03:16 Speaker 05 them or sow more doubts about their integrity, which is again, a whole that's a part of the project. This is that's one of the real ambitions here.
1:03:25 Melissa Murray? Well, we should also note that this isn't just a hypothetical question, whether Sullivan may or may not be overruled. Right now, there's currently a petition pending before the court that was brought by casino owner Steve Wynn, asking or inviting the court rather, to reconsider New York Times versus Sullivan. And it's in the context of a defamation suit against the AP and a judgment from the Nevada Supreme Court on that question. So this is currently pending right now.
1:03:53 Speaker 05 Yeah. And if regardless of what happens with Wynn's case, I mean, there are a whole bunch of other cases working their way through lower federal courts where the plaintiffs or the plaintiffs lawyers have made have been really clear either in court filings or talking to me in interviews, that their goal here is to find a good vehicle to get to the Supreme Court to overturn or at least narrow Sullivan. So there's this is going to continue. And there are a lot of kind of candidate cases that are cycling through the federal judiciary.
1:04:22 Kate Shaw? Okay, so for listeners who are understandably alarmed by what they have just heard and hopefully will be more alarmed when they read this excellent book, but maybe they're not in a position to either, you know, drop a SCOTUS amicus brief or are not involved personally in this litigation, you know, do you have thoughts about kind of ways for the public to get educated and kind of respond to this attack, which you do depict as like a pretty existential one?
1:04:46 Speaker 05 You know, I think the biggest thing for me is that there is a war going on right now to delegitimize the news media. And I think that there is a role that people, especially on the left, can play in kind of countering that narrative. And, look, I think that also starts with the media being a little more reflective and acknowledging when we get things wrong. And, you know, we're humans. We make mistakes. I think those mistakes tend to be good faith mistakes. But people, really across the political spectrum, are very happy to pounce on the media and do their own part to kind of delegitimize and discredit us. And I think it would be helpful for everyone to kind of take a deep breath and recognize that journalists, while we are very imperfect, and our media institutions are very imperfect, are operating in good faith, even if you don't like what we report.
1:05:30 Speaker 05 So I think that it's important to recognize that and to not kind of automatically jump on the media bashing bandwagon, because that is exactly what people who are spreading lies and disinformation want you to do.
1:05:43 Kate Shaw? Yeah.
1:05:44 Melissa Murray? I think that's a great place to leave it, David. Before we go, though, I do want to remind our listeners that David is also the author of another strict scrutiny favorite. The book is called Servants of the Damned: Giant Law Firms, Donald Trump, and the Corruption of Justice. And it is truly a great read, especially right now, as we are beginning to get a sense of what role big law is going to play in enabling or opposing the constitutional overhaul that the Trump administration is engaged in. David's new book, Murder the Truth, drops tomorrow, so rush to your favorite bookstore. Ours is bookshop.org, but you can go to your local independent bookstore or wherever you get your books to pick up a new copy of Murder the Truth, or David's other book, Servants of the Damned. Both are excellent, and both are worth your time.
1:06:29 Kate Shaw? David Enrich, thank you so much for joining us. It was great to have you.
1:06:31 Speaker 05 Thank you, guys, for having me. As I said at the outset, longtime listener, first time caller.
1:06:36 Melissa Murray? That was a terrific conversation with David, Kate. I'm really excited for what's going to happen with New York Times versus all of them.
1:06:44 Kate Shaw? Excited is one way to describe it, Melissa. I'm glad that powerful investigative journalists are doing this kind of work while they still can. How about that as a silver lining?
1:06:53 Melissa Murray? I think it's time to turn to our new favorite segment where we talk about two things that we read, watched in the last week that we want to share. So I actually have three things and I'll just tick through them very quickly. The first is I read Erica Armstrong Dunbar's fantastic book, Never Caught: The Washington's Relentless Pursuit of Their Runaway Slave, Ona Judge. It is an actual, real story told in such a beautifully narrative way. Highly recommend. I also read for a workshop, a piece that's forthcoming in the Wisconsin Law Review, but that is available on SSRN, and that is Gila Karen's Do Care in a Conservative Court. And it is all about how to think about the question of parental rights in the context
1:07:34 Melissa Murray? of Skermetti, and it's by Gila Karen, who is a professor at Southwestern Law School. And then, you know I did this the minute it dropped, Kate, I downloaded all of the episodes of With Love, Meghan, on Netflix, because you know how much I love the other MM. And I'll tell you, I was not disappointed. I learned all kinds of things.
1:07:55 Kate Shaw? Did you get some recipe ideas and have you made any of them?
1:07:57 Melissa Murray? I haven't, and you know I don't like cooking, but you know what I do like?
1:07:59 Kate Shaw? I thought maybe you'd make an exception here.
1:08:00 Melissa Murray? No, I might make some, but I learned how to make my own lavender towels to like cool myself off after a workout. I mean, like, it's like high-level Equinox kind of stuff. And I loved it.
1:08:11 Kate Shaw? In your own home?
1:08:12 Melissa Murray? In my own home. I love this. And I just don't understand why people are always hating on her. She's like perfectly lovely, perfectly nice. People are like, she's a narcissist. How can you tell from the lavender towels? She's like, I just don't get it. Like, let this woman live, watch her show, support her. She's fantastic. And I'm just like, she's elevating, and I'm here for it.
1:08:32 Kate Shaw? I will check it out. I liked her podcast. She's done with that, right? She's not doing any more seasons?
1:08:36 Melissa Murray? She's doing a new podcast with Lemonada Media. So she's gonna be back in our air holes, as it were.
1:08:42 Kate Shaw? All right, my two recommendations for this week. One, I also read a great paper for a workshop, Issa Kohler Hausman's brilliant new paper, which is co-authored with law students Kevin Yang and Charlotte Lawrence. It's called Towards a New Equal Protection Paradigm. It is not yet on SSRN, and I don't know exactly when it's going to be sent out to Law Reviews, but keep an eye out, students. It's brilliant. And I have not yet started the season of Yellow Jackets, but I am watching Severance, which is great.
1:09:05 Melissa Murray? I need to watch.
1:09:05 Kate Shaw? You've watched any of it?
1:09:06 Melissa Murray? No.
1:09:07 Kate Shaw? Oh, yeah, you do.
1:09:08 Melissa Murray? Okay, I like that Joel guy. Is this the name Joel or is it Adam?
1:09:12 Kate Shaw? Adam.
1:09:12 Melissa Murray? His name, Adam?
1:09:13 Kate Shaw? Yeah, I think it's.
1:09:14 Melissa Murray? Yeah, okay, all right, Adam.
1:09:15 Kate Shaw? He looks like a Joel.
1:09:16 Melissa Murray? He does look like a Joel, that's why I keep calling him that.
1:09:18 Kate Shaw? It's great.
1:09:19 Melissa Murray? All right, we do have a little housekeeping. Guess what, y'all? We are excited to announce Strict Scrutiny Live: The Bad Decisions Tour 2025. You can join us at a theater near you as we brace ourselves for the fresh hell that SCOTUS will unleash this year. We will dissect the opinions and analyze the cases that have the potential to completely reshape our daily lives. And last year's live shows were so much fun that we decided we got to do it again. And we can't wait to see many of you this summer and this fall. We have three fantastic shows planned. May 31 in Washington DC at Capitol Turnaround, June 12 in New York City at Sony Hall.
1:10:01 Kate Shaw? Finally, we will be in my hometown of Chicago on October 4th as the court gets started next term at the Athenaeum Center. So it was just me and Melissa last year because Leah was recovering from her bike accident, it's going to be all of us this year. We are so excited. The Strict Scrutiny listener pre-sale starts Wednesday, March 12, 10 a.m. and ends March 13th, so short window. Go to crooked.com/events to find the ticket links. The pre-sale code for our listeners is YOLO.
1:10:25 Melissa Murray? Y-O-L-O.
1:10:28 Kate Shaw? Our listeners don't need it to be spelled, they know.
1:10:30 Melissa Murray? I mean.
1:10:30 Kate Shaw? YOLO. That's the code for the pre-sale. The tickets will then go on sale to the general public on Friday, March 14th at 10 a.m. local time. So go to crooked.com/events for more information and really hope to see many of you soon.
1:10:44 Melissa Murray? Strict Scrutiny is a Crooked Media production hosted and executive produced by Leah Lippman, me, Melissa Murray, and Kate Shaw. Produced and edited by Melody Rauel, Michael Goldsmith is our associate producer. We get audio support from Kyle Seglan and Charlotte Landis. Our music is by Eddie Cooper. We get production support from Madeline Heringer, Katie Long, and Ari Schwartz. Matt DeGroot is our head of production. And we are thankful for our digital team, Ben Heathcote and Joe Matusky. Our production staff is proudly unionized with the Writers Guild of America East. You can subscribe to Strict Scrutiny on YouTube to catch.
1:11:14 Leah Litman? Full episodes, find us at youtube.com slash at Strict Scrutiny Podcast. If you haven't already, be sure to subscribe to Strict Scrutiny in your favorite podcast app so you never miss an episode. And if you want to help other people find the show, please rate and review us. It really helps.
1:11:42 Speaker 06 Monday night brings one more big matchup to settle into. And when every play matters, the last thing you want to do is step away to figure out dinner. That's where DiGiorno comes in. Get a DiGiorno pizza ready before kickoff, then enjoy restaurant quality taste fresh from your own oven while you stay locked into every play. Stock up on DiGiorno over the weekend so when Monday night rolls around, the only thing you sweat is the game. Shop now at the link in the episode description. It's not delivery, it's DiGiorno.
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