Leah, Melissa, and Kate kick off with a look at Jack Smith’s unsealed brief on Trump’s election interference case before digging into some cases the court is hearing this week, including one centered around ghost guns–unserialized guns that can be put together from component parts. Then, Melissa and Leah speak with Doha Mekki and Jonathan Kanter of the DOJ’s Antitrust Division about how antitrust law can be a vehicle for progressive social change.

• Listen back to our 2023 interview with one of Richard Glossip’s lawyers

 

TRANSCRIPT

 

 

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Show Intro Mister Chief Justice, may it please the court. It’s an old joke but when an argued, man argues against two beautiful ladies like this. They’re going to have the last word. 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.

 

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 today. I’m Melissa Murray.

 

Leah Litman I’m Leah Litman.

 

Kate Shaw And I’m Kate Shaw. And today, we’re going to dive deeper into the cases the court will hear in the first sitting of this term. We will then have a court culture segment that will quickly cover some state court matters, as well as one federal court case. And finally, we’re going to bring you a conversation about recent and exciting developments in any trust law with some very special guests.

 

Leah Litman But before we get to that, we have a bit of breaking news to cover. Judge Tanya Chutkan unsealed Special Counsel Jack Smith’s brief outlining whether Donald Trump is immune from prosecution in the election interference case. Essentially, this is the brief where Smith lays out evidence about how Trump attempted to subvert the election, evidence that Smith thinks he should be able to admit at trial because it’s not barred by the Supreme Court’s horrendous immunity decision. Yes, we are going to be dealing with the after effects of that clown show for a while.

 

Kate Shaw The brief is 165 pages, but do not be deterred by that length. It is an incredible and riveting read, both in general and in the individual state level narratives that it unfolds. It opens with this line. Quote, The defendant asserts that he is immune from prosecution for his criminal scheme to overturn the 2020 presidential election because he claims it entailed official conduct. Not so, although the defendant was the incumbent president during the charge conspiracies, his scheme was fundamentally a private one.

 

Leah Litman You can almost hear the chief justice whining. You guys said you weren’t going to fact check us.

 

Melissa Murray But here it sounds better in the original German. Let’s have.

 

Leah Litman Well, why don’t why don’t we hear it from the mouth of one J.D. Vance Slash in German.

 

Clip Thank you, Governor. And just to clarify for our viewers. Springfield, Ohio, does have a large number of Haitian migrants. Who have legal status. Temporary protected status. Margret But but. Thank you, Senator. We have so much to get to. I think it’s important. To turn now to the economy. Margaret, the rules were that you guys weren’t going to fact check.

 

Melissa Murray And listeners, while we thought we had basically heard it all regarding the Oval Office shenanigans that took place on January 6th, 2021. This brief may actually spill some new tea, So let’s briefly run through some of the new evidence that Jack Smith presents before sharing our reaction. So one new tidbit is that Donald Trump told his vice president, Mike Pence, that Pence was, quote unquote, too honest, just doing the law. Okay. Another bit of new tea is about a conspirator who gleefully endorsed, inducing a riot in order to stop the counting of the votes at the TCF Center in Detroit, Michigan. So according to the brief, a colleague told this conspirator, quote, Look, if you instigate this, you’ll be starting something like the Brooks Brothers riot and Fire. If you don’t know what the Brooks Brothers riot is, it refers to a violent demonstration led by Republican staffers, hence the Brooks Brothers moniker on November 22nd of 2000. That was during the recount of the votes cast in the 2000 presidential election. The goal of the Brooks Brothers riot, which incidentally, Roger Stone continues to take credit for, was to shut down the recount. And in fact, it actually worked. The officials came in after those acts of violence and those demonstrations to shut down the recount early. In any event, when this conspirator was warned that he might be instigating something akin to the Brooks Brothers riot of 2000 in real time at the TCF Center, this conspirator seemed remarkably unmoved, responding only, quote, make them riot. And, quote, That’s like a marvel villain.

 

Kate Shaw I know there’s a lot of cartoonish villainy like on the pages of this filing. Here is another example. So another nugget from the brief is that after an aide told Trump that Pence had been forced to leave the Capitol because of threats and concerns that his life was in danger, Trump allegedly responded, quote, So what? I mean real bill and shit there. And this also serves as a reminder of the hugely important context of the discussion at last week’s VP debate about why exactly Mike Pence was not on the stage and is in fact not running on the ticket with Donald Trump.

 

Leah Litman His boss was fundamentally agnostic about whether he was murdered, right?

 

Melissa Murray So what?

 

Kate Shaw Turns out it’s hard to come back from that. And in fact, they did not. Although would Pence of, you know, run with him again if asked? Probably.

 

Melissa Murray Undoubtedly.

 

Kate Shaw Undoubtedly. I think you’re probably right. The brief also details Trump’s alleged decision to, quote, re-insert into his speech at the Ellipse on January 6th, remarks targeting Pence for his refusal to challenge certification, which again seems to suggest at a minimum, that the president, the then President Trump, was agnostic about whether protesters were going to try to harm his vice president and. Indeed the real possibility that he made a decision to affirmatively instigate that.

 

Melissa Murray We also learned from the brief that when advisers told Trump that he wouldn’t be able to substantiate his claims of voter fraud in a court of law, Trump simply replied, quote, The details don’t matter. End quote.

 

Leah Litman It’s more about the vibes.

 

Melissa Murray Concepts of evidence.

 

Leah Litman Concepts of evidence. We have vibes.

 

Melissa Murray Vibes.

 

Leah Litman Vibes are off.

 

Melissa Murray Along similar lines, a coconspirator said, quote, We don’t have the evidence, but we have a lot of theories end quote, And honestly, I think that’s basically how the Supreme Court has been writing a lot of its decisions. We don’t have the evidence, but we have a lot of theories. All of them are original.

 

Leah Litman We have our talking points.

 

Melissa Murray Yes. Anyway, the said coconspirator also seemed quite surprised when Republican legislators actually wanted evidence of the nonexistent voter fraud, remarking, quote, Man, I thought we were all Republicans. End quote, That actually is my favorite line.

 

Leah Litman I know. It’s like what’s a little evidence among Republicans? Yeah.

 

Kate Shaw And there’s a version of that in the Arizona narrative. Michigan narrative. It’s like he’s saying this to everyone and kind of.

 

Melissa Murray Party over evidence.

 

Kate Shaw Actually not, mind you. Thankfully, it doesn’t fly with any of them.

 

Melissa Murray Evidence over party.

 

Leah Litman So there’s also a ton of details about Pence trying to flatter and puff up Trump so that Trump would accept the results of the election.

 

Melissa Murray This is Mike Pence basically trying to Kris Jenner, the former guy into accepting the results of the election. Like you’re doing great, sweetie. You lost this time, but there’s always 20, 24. Don’t worry, it’s going to be fine. And the former guy is having none of those, like, ugly tears. Kim Kardashian crying.

 

Kate Shaw Yeah. Sadly, there are no ugly tears in this file.

 

Melissa Murray There are no we wish there were Kim Kardashian tears.

 

Leah Litman And of course, while they seem vaguely aware of Stringer Bell’s sage advice not to take notes on a motherfucking criminal conspiracy, they were incapable of actually following that advice. So one conspirator texted another, quote, Careful with your texts on text groups. No reason to text things about electors to anyone but this other person and me and quote. All the while like furiously texting about the they collect and they’re also getting it’s actually like on the cusp of a revelation. Just.

 

Melissa Murray Slim Charles would never slim Charles would never. No

 

Leah Litman What am I personal favorites because it concerns my home state is that while Trump was talking with a Republican state legislator from Michigan about, you know, having lost the election, the state legislator told him, quote, Trump had underperformed with educated females. End quote, which is why he lost the state. I want like, educated females against Trump. You know, that’s the start.

 

Kate Shaw The new blue wall, literally is educated females.

 

Melissa Murray Educated females.

 

Kate Shaw Love it.

 

Melissa Murray Underperforming is kind of an understatement.

 

Leah Litman Right?

 

Melissa Murray At least with this group of educated females.

 

Sir they found you repulsive, like they were literally.

 

Kate Shaw Yeah. Yeah.

 

Leah Litman Sir.

 

Kate Shaw Yes. So, look, I mean, the thing is, all of this appears in the brief, but it should have already been presented at a trial where a jury of Trump’s peers would have been able to determine whether Trump unlawfully conspired to interfere with the 2020 presidential election in violation of multiple federal criminal laws. Instead, thanks to the Supreme Court and its abominable immunity decision from July 1st, all we get for now is this lengthy legal document.

 

Leah Litman Yeah, a note about the timing and then generation of this document. You know, some people are calling this an October surprise, but it’s not a surprise like this happened and it happened now because of the Supreme Court. It’s because of the court’s outlandish immunity decision and because of the court’s slow walking this case unjustifiably, that this brief gets unsealed now a month before the election. And while early voting is already underway in some places. But John Roberts had so diluted himself, aided by Brett Kavanaugh and Neil Gorsuch, that his immunity ruling was going to soar above politics, he couldn’t grasp the possibility that maybe what the American people deserved is a trial on these extremely serious charges about whether a candidate for president attempted to abuse the powers of the presidency to stay in power despite losing the election. And instead, what he forced to happen is a federal employee writing 165 page document about whether Donald Trump threatening people over Twitter constituted an official act like that’s what this great immunity opinion got us. And, you know, we all saw the defining moment in. The vice president debate where J.D. Vance again refused to admit Trump had lost the election.

 

Clip Tim, I’m focused on the future. Did Kamala Harris censor Americans from speaking their mind in the wake of the 2020 Covid situation? That is the damning. That is a damning non-answer. It’s a damning non-answer for you to not talk about censorship. Obviously, Donald Trump and I think that there were problems in 2020. We’ve talked about it. I’m happy to talk about it further.

 

Leah Litman He is indicating if push comes to shove, he will do what Mike Pence wouldn’t, you know, abuse the powers of his office to undemocratic ends.

 

Melissa Murray So if you take the time to read all 165 plus pages of this brief, you can go through the evidence that’s presented because it really brings home just how galling it is that the court all but ensured that there would be no trial in these election interference charges before Americans had to go to the ballot box to decide whether or not Donald Trump should be reinstalled in the office he allegedly abused and misused in an effort to try and subvert democracy. But I think that’s kind of par for the course with this court. A majority of these justices basically don’t think that women should be allowed to make decisions about their own bodies. And they also apparently don’t think that D.C. jurors should be allowed to make decisions about whether Donald Trump is an insurrectionist and a criminal. And that’s basically the Tldr. So again, the fallout from the Supreme Court’s disastrous lawless immunity vibe laden decision continues to hang over our heads and our democracy as we proceed into this new October term. So, yes, that’s right, folks. We’re going to do this all over again. Have a whole new term full of new fuck shit, and it’s going to be great.

 

Kate Shaw I mean, I would love to say nowhere to go but up. But I can’t.

 

Melissa Murray No Kate.

 

Leah Litman Yeah.

 

Melissa Murray That’s your optimism again.

 

Kate Shaw Yeah, I’m stopping myself this time.

 

Melissa Murray Thank you.

 

Kate Shaw But. But to pivot to what we know is on the docket for the October sitting, it’s a pretty light sitting. Neither the October nor November calendar is chock full of blockbusters, but we’re going to highlight in depth today two cases the court will hear during this first week of the October sitting. And then we will briefly note the other cases the court will hear this week. And let’s start with Garland versus Van der stock, which is a case we mentioned last week about ghost guns.

 

Melissa Murray Well, folks, if you like cargo. You’ll love Garland versus Van der stock.

 

Leah Litman Our listeners? Probably not.

 

Melissa Murray No. I mean, I was trying. This is a challenge to the 2022 ATF regulation of ghost guns. That is, guns that can be privately assembled from component parts and that are unsterilized. The relevant statutory scheme here is the 1968 Gun Control Act, which regulates firearms, which the statute defines to include, quote, any weapon which will or is designed to or may readily be converted to expel a projectile by the action of an explosive unquote, as well as, quote, the frame or receiver of any such weapon. That part’s important. When ghost guns first cropped up, ghost gun parts and kits were basically being able to be purchased online without any vetting, without background checks, without any of the restrictions that are typically required for firearms under the act. And that meant that individuals who are otherwise prohibited from purchasing firearms because they were minors or because they were subject to domestic violence restraining orders could instead just go to the Internet, purchase a ghost gun kit and ghost gun parts and quickly and easily assemble them into firearms, evading the statutory scheme.

 

Leah Litman And in 2022, ATF sought to close this loophole by issuing a regulation clarifying that certain products that can readily be converted into an operational firearm or a functional frame or receiver fall within the scope of the Gun Control Act. And under the new regulation, ghost guns are subject to the same restrictions as traditional already assembled firearms. Basically, that means instead of being able to purchase a ghost gun kit without a background check or other vetting, individuals have to go through the same regulatory procedures that are in place for already assembled firearms. As the federal government notes in its brief polymer, 81 of the parties to this case sold a buy build shoot kit that allowed a purchaser to assemble a fully functional Glock variant semi-automatic pistol in as little as 21 minutes and company.

 

Melissa Murray It’s basically like Legos for serial killers.

 

Leah Litman Right. And companies basically marketed them that way. You know, marketed, quote, partially complete or on assembled frames or receivers that can, quote, readily be completed or assembled to a functional state, you know, by removing a few temporary plastic rails, which again, could take minutes.

 

Kate Shaw Yeah. So all this to say the ATF was trying to address a major regulatory issue. Ghost guns were on the rise. They were difficult to trace because they weren’t subject to the same checks as traditional firearms. In 2017, law enforcement agencies submitted roughly 1600 ghost guns to ATF. So this is guns. They’ve, you know, recovered at a crime scene, given them over to ATF for tracing by 2020. One. That number was more than 19,000. So an increase of more than 1,000% in just four years. And again, ATF can’t really trace these guns because of the lack of serial numbers and transfer records for ghost guns. So of the 45,240 uncivilized firearms submitted for tracing between 2016 and 2021, ATF was able to complete only 445 traces to individual purchasers, which is less than 1%.

 

Melissa Murray And because of the regulatory pressure from the 2022 ATF rule, as well as litigation challenging the ghost gun purveyors, Polymer 80 actually shut down. Like there’s no market for this. Once the regulations kick in and they’re forced to shut down. Though, of course, it’s worth noting that depending on what happens in this case, it could very easily get up and running again. And maybe they have an emotional support billionaire who could just help them out in this instance. In any event, the ghost guns at issue in this case have been involved in numerous gun deaths and shooting. Again, this is part of what spurred the need for regulation. Everytown for Gun Support Safety Fund has issued a report that details many of these cases, and The Washington Post recently reported on cases that specifically involve teenagers. Again, the point here is that teenagers cannot buy guns because they’re minors under the ordinary regulatory scheme, but they can get ghost gun kits and parts online and they can separately assemble them into firearms. Avoiding the whole regulatory apparatus.

 

Kate Shaw So this case that the court will hear this week has some pretty notable procedural history that we wanted to walk through. The initial challenge was filed in a Texas district court because, of course, it was. And the district court issued a nationwide injunction invalidating the ATF rule in its entirety, again, because the judge in that case was Judge Reed O’Connor, the guy who I can’t remember if this is originally your Leah or your Melissa’s coinage, but read O’Connor just this tells you everything you need to know about him basically walked so Matthew has Merrick could run. He’s that guy he’s about to appoint. He’s the one who declared the Indian Child Welfare Act unconstitutional. He tried to declare the entire Affordable Care Act unenforceable. He’s the judge that attempted to enjoin the Pentagon from enforcing a Covid 19 vaccination requirement for Navy SEALs. He was just an enormous thorn in the side of the Obama administration, and Kaz Merrick has essentially assumed that function. But O’Connor is not out of the game yet in you know, he’s.

 

Leah Litman Still at it. Definitely nobody on the corner. So that’s the guy who enjoyed ATF’s efforts to regulate ghost guns. The Fifth Circuit stayed the injunction as to the portions of the rule that the challengers hadn’t challenged. Yes, Judge O’Connor had enjoined portions of the rule that hadn’t been challenged because, of course he did. And then the Supreme Court stayed the decision entirely, which, you know, allowed the regulation to go into effect while the case was pending. Then the fifth Circuit came back and was like, let’s try this one again and try to reinstate the injunction as to the challengers in the case. The Supreme Court once again stayed that. So again, this regulation is in effect. We should say the stays were five four votes at the Supreme Court with the Three Horsemen, Thomas, Alito and Gorsuch and the court’s gun control wingnut Brett Kavanaugh, saying they would have left in place the district court’s nationwide injunction invalidating the ghost gun regulation and the fact that this regulation has been in effect, as we noted last week, allows us to see that it’s actually quite significant. It has shut down some ghost gun manufacturers, dramatically reduce the number of ghost guns used in violent crimes. So it’s working.

 

Kate Shaw So the question in this case is whether the statute that is the 1968 gun control law Melissa mentioned a few minutes ago authorizes the ATF to regulate ghost guns in this way. So this is not a Second Amendment case per se. It’s more like Garland versus Cargill, the bump stock case from last term. And that means it’s about whether the statute, as written allows ATF to regulate certain types of firearms. But I think it’s fair to say that these guys ardor for the Second Amendment may have some impact on how they read the statutory language in this case, just as it did in Cargill.

 

Melissa Murray What Kate means is that we’re likely in for another round of gun porn or alternatively, the textualist case for unregulated deathly firearms. So that will be fun. Part of the issue in this case depends on whether the language frame or receiver that’s reference in the statutory definition of the term firearm has to be a complete or functional frame or receiver in order to qualify under the law. The rule interprets frame or receiver to include partially complete, disassembled or nonfunctional frames and receivers that may be readily completed, assembled or stored or otherwise converted to function as frames or receivers. That’s how they sweep in the ghost guns here. But the manufacturers argue that frame or receiver as specified in the statute, defines only complete or functional frames or receivers not the. It parts that are used to assemble ghost guns. So parts parts basically is what they’re saying.

 

Leah Litman I like the federal government’s argument in its brief that, you know, when you go to Ikea, you’re still buying furniture, even though it’s not assembled. You know, we don’t call that something else like sure nature when it’s not assembled. But another facet of the case turns on the fact that Congress defined firearm to include any weapon that, quote, may readily be converted to expel a projectile by the action of an explosive. And the rule, says a weapons part kit that may readily be completed, assembled, restored or otherwise converted to expel a projectile by the action of explosives is a firearm. And the challenger’s primary argument seems to be that other provisions in gun control laws specifically regulate parts or combinations of parts. But at least me personally, I don’t think that means the natural meaning of, quote, may readily be converted. To expel a projectile should just be ignored or read out of the statute.

 

Melissa Murray Well, you’re famously I say you don’t sound so shut up.

 

Kate Shaw Uneducated female in the state of Michigan.

 

Melissa Murray Like I said, it sounds better in the original.

 

Leah Litman Educated females aren’t allowed to interpret statutes.

 

Kate Shaw That’s true. I mean. The language that you just read to my mind is so clearly in the government’s favor. Like, obviously these qualify, but if the text alone is not enough, the government notes again, as it did in Cargill, without success. But I think it’s important it was right there. And I think it’s really important here. Congress specifically included a bunch of anti evasion or anti circumvention provisions like these in the law, which indicated that Congress thought it was restricting efforts to work around the technical definitions by assembling firearms that do the same thing as the restricted firearms like may readily be converted. Obviously suggest that Congress wanted to capture things that would later emerge, that would let people get guns they wanted regulated, like the guns already in existence in 1968. So the government’s reply brief explains, quote, Respondents do not deny that their interpretation would allow more minors, felons, domestic abusers and other prohibited persons to circumvent the Act’s core requirements by easily buying and quickly assembling firearms without serial numbers, records or background checks. Indeed, respondents have in fact promoted their products by emphasizing that they are sold with no background checks.

 

Melissa Murray Ten bucks. Sam Alito is going to write either a majority opinion or a concurrence. Concurrences like this is really on Congress. Ten bucks.

 

Leah Litman Well. Which which disadvantaged group is Sam Alito going to insist that ghost guns help? Because remember, last year in Cargill, he insisted that bump stocks were really designed to allow people with physical limitations to have the necessary experience of knowing what it feels like to fire an automatic.

 

Kate Shaw Fire a machine gun. Yeah right. Mean yeah. Arthritis I think came up in the right yes in oral argument like that’s who’s really being targeted by these individuals who want to restrict bump stocks right.

 

Leah Litman He’s going to say this regulation is unconstitutional under the 19th amendment like we’re. Like.

 

Melissa Murray Educated women want this.

 

Leah Litman Exactly.

 

Melissa Murray Anyway, as Kate said, this is not a Second Amendment case on its face. It’s a statutory case, a regulatory case, if you will. But that didn’t stop some of the AMICI. I’m looking at you NRA from gesturing toward the Second Amendment in explaining why the regulation should be invalidated. The NRA brief literally says, quote unquote, Throughout American history, private gun making was not regulated and, quote, stay tuned for that. It’s going to be the big case, I think, this week and a big opportunity for this court to continue with its antipathy for regulation and its love of guns.

 

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Melissa Murray Moving on to something else. The court likes the death penalty, Leah.

 

Leah Litman Now we get to discuss Glossip versus Oklahoma. So we’ve talked about this case before, and we actually had one of Mr. Glossip lawyers, John Mills from the public interest law firm Phillips Black on the show previously to discuss Mr. Glossip case. At an earlier stage before the Supreme Court had granted review. It would be difficult, if not impossible, to cover all of the insanity and Michigan case that has gone into this case. But we’re going to give you a snapshot of it briefly. Richard Glossip was convicted of the murder of Barry Van Treece based on the testimony of Justin Snead, the person everyone agrees physically murdered Fentress after being questioned and coached. Sneed agreed to plead guilty and testify that Richard Glossip had planned the murder, and that agreement allowed Sneed to avoid the death penalty.

 

Kate Shaw Right. So you did hear that, right? The person who actually committed the murder was not sentenced to death. And there’s no allegation that Glossip personally did any of this. And as we’ll talk about the evidence of Blossom’s involvement, it all is deeply, deeply sketchy. So almost 20 years after Mr. Latham’s conviction, the state disclosed files showing that the state knew but failed to disclose that Sneed, who was addicted to methamphetamines and had an untreated bipolar disorder, had been prescribed lithium by a psychiatrist. And the combination of drugs and conditions would have cast doubt on needs, perception and memory if it had been disclosed. It could also have bolstered the defense theory of the case, which is that Sneed committed the murder impulsively without any involvement from Glossip, and that combination of drugs and conditions can contribute to impulsive, uncontrollable behavior. The state also allowed Sneed to testify falsely that he had never seen a psychiatrist, when in fact, he had. And there was concededly zero forensic evidence linking Glossop to the murder. It’s just Sneed testimony.

 

Melissa Murray At Glossop second trial, the state said that he and Sneed conspired to murder of entries for money, which they then split and the prosecution to support. That pointed to the fact that Glossop had over $1,000 on him when he was arrested. But there’s evidence of a statement from a witness who told the police that the money actually came from Glossop selling his possessions. There’s also evidence that the state coach Sneed to account for the discrepancies in his case, including whether or not Sneed used a knife.

 

Kate Shaw To editorialize for one minute. Glossip’s case has been up and down a few times. The Supreme Court will talk in a minute about the lethal injection protocol challenge, but it was up as well in 2008, actually, when I was a law clerk there. And I have to say, I remember that the court, when I was there, called for the record in Glossop case, which meant like all the files from the Oklahoma courts came to the Supreme Court. And I remember reading it. It’s odd that I, I remembered it so well that I just checked the docket to be sure I was right. And yet the court called for the record while I was a clerk there. Anyway, I remember just how serious the questions about the evidence against Glossop were back then, and the court didn’t take the case then. But all this to say there have been questions that have stalked this case from the beginning about Glossop potential actual innocence.

 

Leah Litman Right? Because as you’re alluding to, even before any of the evidence we were just recounting came to light, the Oklahoma legislature appointed an independent investigation commission that concluded Mr. Glossop conviction should be set aside. Another independent investigation that the Oklahoma attorney general commissioned agreed. You know, it reached those conclusions on the ground that the state had destroyed critical physical evidence and suppressed other evidence. The police had not searched Snider’s room at the motel or questioned most of the motel gas and whatnot.

 

Melissa Murray The Oklahoma AG agrees that the conviction must be overturned, not surprisingly, given everything that has been said. But yet, despite that concession, the Oklahoma Court of Criminal Appeals refused to vacate the conviction and sentence and said there had been no Brady violation, nor had there been an Apu violation. And a Brady violation refers to the prosecution’s failure to turn over exculpatory evidence, evidence that would suggest the defendant’s innocence and an Apu violation refers to the prosecution presenting knowingly false testimony. So basically, the Oklahoma Court of Criminal Appeals was basically like, yeah, what’s the big deal? Sure, the evidence suggests he’s a little innocent and some of the evidence was a little false. But in the big scheme of things, it’s just the death penalty.

 

Leah Litman What’s that? We hear the Oklahoma Court of Criminal Appeals saying.

 

Clip The rules were that you guys weren’t going to fact check.

 

Melissa Murray So that’s like the one thing that’s the one good thing that’s going to come out of that whole debacle is going to be is that for forever? Okay.

 

Leah Litman Agreed. So the Oklahoma Court of Criminal Appeals also suggested that procedural limits on post-conviction relief in Oklahoma state courts meant they couldn’t or wouldn’t consider Mr. Glossip claims. The court said Mr. Glossip couldn’t present the claim now because the issue could have been presented previously, even though the state had concealed the evidence. But it doesn’t appear that these are what we call adequate independent grounds for refusing to vacate the conviction because they’re bound up with the state courts assessment of the federal constitutional claims. And the state had waive the procedural limits in any case.

 

Kate Shaw Just a few other things to note about the case. One is that, as I alluded to a couple of minutes ago, Mr. Glossip was part of an Eighth Amendment challenge to method of execution protocols in the case, Glossip versus Gross, which is a case in which the court turned away his challenged Oklahoma’s lethal injection protocol and set an insanely high standard for individuals sentenced to death to satisfy. If they are challenging the method the state is going to use to execute them. And the fact that yet another major death penalty case involves yet another possibly innocent defendant is yet another indication of serious, serious flaws in our country’s administration of the death penalty.

 

Leah Litman I think this Glossip case has the makings of a this just cannot be, you know, disagreement among the justices. You know, the division between what I previously referred to as the Pro Kafka and the anti Kafka justices. You know, those who just look at something and say these consequences are unacceptable. And those who say, no, watch me prove my legal bona fides by basically embracing a totally perverse, unacceptable consequence, You know, so maybe six three, maybe five four with the chief and Justice Kavanaugh joining with the Democratic appointees, possibly Barrett, as well as kind of. Yeah, I see. Or at least that.

 

Kate Shaw I hope you’re right. And I also do think that the fact that you have the Oklahoma prosecutors on the same side as Glossip, represented by a distinguished conservative Supreme Court lawyer, Paul Clement. So the court had to appoint someone to take the other side of the case. Suggest there’s I agree, a good chance that that happens. And it would just be an absolute travesty if it did not.

 

Leah Litman Yeah. So quickly run through some of the other cases the court will hear this week. Royal Keenan, USA versus Walsh Lager is about federal jurisdiction. Basically, when you can remove cases from state court to federal court. Then there’s Williams versus Washington, an important civil rights case about when you can file a federal civil rights action in federal court, when the state has provided you nominally some other administrative remedy to go through first. And then finally, there’s Locky versus Stinney, which is about when plaintiffs in civil rights cases are entitled to attorneys fees because they are the prevailing party when they obtain a preliminary injunction. But then the legislature repeals the statute or scheme that they were challenging.

 

Kate Shaw So we will try to return to at least some of those cases once they are argued. And now it’s time for some court culture. And we’re going to start with state courts, beginning with some developments from the Arizona Supreme Court. So first, Arizona Supreme Court Justice Robert Brudenell announced his retirement effective later in October, which means that Democratic Governor Katie Hobbs will be in a position to appoint his successor. And notably, two other Arizona Supreme Court justices, Clint Bolick and Katherine Hackett King, are up for retention election. If they lose their retention elections, then Governor Hobbs would also get to make the two appointments that would fill their seats.

 

Melissa Murray Speaking of those retention elections, if those names Bolick and King sound familiar to you listeners? Well, they should, because both Justices Bolick and King were among the justices who, in a 4 to 2 decision issued in April, voted to reinstate Arizona’s 1864 abortion ban. That’s right, 1864, before Arizona was a state and before women could vote. Side note, only six justices participated in that decision because one justice on the seven member court, Justice Montgomery, was forced to recuse himself when a 2017 Facebook post in which he likened abortion to genocide surfaced unexpectedly. Another side note If the name Clint Bolick sounds really familiar, you’re not crazy, but you have been drinking too many Ginnie tonics. Clint Bolick is the former vice president of the Goldwater Institute. He’s also a co-founder of the Institute for Justice, which incidentally, was started with Koch Brothers Money. He’s also a close friend of going back to their days in the Reagan EEOC Justice Clarence Thomas. In fact, Thomas is the godfather to one of Bullock’s children. Another side note Pollock’s wife, Shawna Bolick, is a member of the Arizona state legislature and was one of the state legislators with whom Ginni Thomas was ardently messaging about overturning the 2020 presidential election. Amazing. Again, both Bolick and King are up for retention elections in November. Two people who reinstated a 19th century law that women played no role in enacting because democracy. Yes. Arizona voters. You have the opportunity to do the absolute funniest thing ever. You’re just going to leave it at that.

 

Leah Litman Another state court development, which is jurist meandering, has expanded to Texas. We discussed the phenomenon of jurist meandering in an episode last spring. Basically, it’s like gerrymandering for the courts. Republicans in a good. Number of states have modified the rules governing courts in ways that force litigants or certain kinds of litigants to have to file their claims before courts that are staffed with judges who are predisposed to rule against them. And it looks like Texas decided to get in on that game. So Texas Governor Greg Abbott created a new state appeals court that hears all civil rights claims. So this was seemingly designed to circumvent the state having to litigate in state courts that might rule against them. The court is going to be fully appointed by Governor Abbott. Seems like kind of a problem under the Texas Constitution, but it went into effect September 1st. And, you know, this could be really troublesome for organizations like the Texas Civil Rights Project or Lula, who, you know, are being raided and investigated for election fraud merely by trying to help people vote. And right now, they’re recourse. Is that civil rights court or a federal court that will end up in the Fifth Circuit, which is a problem.

 

Melissa Murray I believe the term is fuckery.

 

Leah Litman Yeah. That also works.

 

Melissa Murray Now for some positive state court news. Let’s hear it for the Peach State, Georgia. A Georgia state. Yes. A Georgia state court judge, Robert McBurney found that Georgia’s six week abortion ban violated the state’s constitution and he consequently enjoined it. The decision, which is known as Sister Song Women of Color, Reproductive Justice Collective versus Georgia, reasoned that the Georgia Constitution protects an individual’s ability to choose to have an abortion prior to viability via a right to privacy. Or, as Judge McBurney puts it, a, quote unquote, liberty to privacy. And here’s some key language, quote, Because the Life Act, that’s the Georgia six week ban infringes upon a woman’s fundamental rights to make her own health care choices and to decide what happens to her body. With her body and in her body. The act must serve a compelling state interest and be narrowly tailored to achieve that end.

 

Kate Shaw The opinion is a powerful read. It also said, quote, For these women, the liberty of privacy means that they alone should choose whether they serve as human incubators for the five months leading up to viability. It is not for a legislator, a judge or a commander from The Handmaid’s Tale to tell these women what to do with their bodies during this period when the fetus cannot survive outside the womb any more so than society could or should force them to serve as a human tissue bank or give up a kidney for the benefit of another. The Georgia Supreme Court has previously said the right to privacy in the Georgia Constitution is broader than that contained in the federal Constitution. I should say, as I was just reading this excerpt, did you. Did it make you wonder whether Melania Trump got an advance copy of this decision and use it, too? Did you see this crazy little excerpt from her novel or her memoir? That is circulating.

 

Leah Litman I cannot even engage with that. It is just so woefully insulting.

 

Kate Shaw It’s truly insane. I am just noting that some of the language, which.

 

Melissa Murray I don’t care. Do you?

 

Leah Litman Yeah, exactly.

 

Kate Shaw Fine. All right. Let’s move on. I’m noting a few rhetorical notes.

 

Melissa Murray Flourishes

 

Leah Litman So in other parts of the opinion, like the footnotes, which is always where some good stuff is highlighted, the court decided to fact check claims about originalism, textualism and democracy. So, quote, Georgia, however, is not just the Peach State. It is also the land of constitutional fecundity. We have had not 1 or 2, but ten different constitutions. So textualism requires a journey further back in time. If the present constitutional language was imported from a previous version. And that is the case here, that Right to Liberty dates back to the state’s fifth constitution ratified in 1861. The obvious problem with this interpretive approach, you know, meaning textualism or originalism, is that the plaintiffs whose rights are at issue in this litigation had no or very limited rights when the constitutional provision was adopted. Liberty for white women in Georgia in 1861 did not encompass the right to vote. And of course, liberty did not exist at all for black women in Georgia in 1861. Thus, any rooting around for original public meaning from that era would yield a myopic white male perspective on an issue of greatest salience to women, including women of color, end quote.

 

Melissa Murray That kind of seems to be the whole point behind originalism. I’m just going to say. Put it all out there.

 

Leah Litman I can hear Sam Alito screaming.

 

Clip The rules were that you guys weren’t going to fact check.

 

Melissa Murray Leah, that’s right. It seems basically the whole point of originalism. And too bad Judge McBurney decided to fact check. He also found the statute violated Georgia’s equal protection clause because it contained an exception for circumstances where a pregnancy endangered a woman’s life and physical health, but not in circumstances where a woman’s mental health was compromised.

 

Leah Litman Other notable passage, quote, This leads into the, quote, weird issue of lack of process required to obtain these health records. I just like the use of the word weird. This felt like Taylor Swift signing off her endorsement. Childless cat lady. Like kind of a fuck you.

 

Melissa Murray It’s an Easter egg. It’s kind of an Easter egg.

 

Leah Litman Exactly. If you’re interested in staying abreast of these state court developments and more, I’d encourage you to subscribe to the Brennan Center’s state court report. Court, which will have all of these decisions and many more.

 

Kate Shaw And a quick note on a federal court decision we wanted to flag. This is a district court decision that is surprisingly not from a district court in Texas. It is.

 

Melissa Murray Still crappy.

 

Kate Shaw Of the District of Columbia. Yes, it is an opinion by Judge Trevor McFadden, one of Trump’s nominees, who found that the Biden administration violated the National Environmental Policy Act when it canceled construction of the border wall and ended the Remain in Mexico policy.

 

Melissa Murray Nepa requires an agency contemplating a major federal action to analyze the environmental effects of that proposed action. But weirdly, the Biden administration did not analyze the environmental effects of immigration policies. So strange. And Judge McFadden took that personally. And in a real galaxy brain move, he found that this oversight injured Arizona rancher was because the immigration policies harmed the environment, apparently by allowing immigrants to exist on American property. I guess. The judge noted that migrants trespassed onto one of the plaintiffs land, and that was at least part of the environmental impact.

 

Leah Litman But even if that did impact the environment, it is wild that the judge would attribute this to the Biden administration’s policies because in order to have standing, the plaintiffs have to show not just that they were injured, but that their injury was caused by the government action they were challenging. And the idea that stopping the construction of the border wall caused migrants to trespass onto the plaintiff’s land is utterly bizarre. Same with ending the Remain in Mexico policy. But that is literally the testimony of the plaintiffs and what the court relied on. So here is a passage from the court’s opinion. Quote Smith That is like one of the plaintiffs who testified. Noticed striking differences in the volume of illegal immigration between the Trump and Biden administrations. When President Trump was in office, Smith saw the least traffic he had ever witnessed on the border in his life. He described those years as the most peaceful time he had experienced. Then things change, moving on into the Biden administration, end quote. And he had testimony from two former officials, including Rodney Scott, former chief of CBP, who supported the border wall and refused to support the directives to stop using words like illegal alien. The other was Mark Morgan, who’s now at the Heritage Foundation. After serving as acting commissioner of CBP. He was Trump’s pick to be acting director of Immigrations and Customs Enforcement. You know, so we are still living with the downstream effects of Donald Trump’s personnel decisions. This is part of what happens when you staff the government with weirdos. One other note The Supreme Court granted a bunch of cases, 15 for this term. We’re not going to cover them in-depth now, but we will once they’re scheduled for arguments. Among the big cases is a case brought by Mexico against gun manufacturers for the chaos and devastation and destruction caused by American guns in Mexico is a case about access to DNA testing and capital cases. There are some civil rights and nondiscrimination cases, a Fourth Amendment case and more.

 

Kate Shaw All right. We’ll leave it there. Up next, an interview about the goings on and future of antitrust. But first, we wanted to flag a couple of things.

 

Melissa Murray [AD]

 

Leah Litman There has been a lot of talk about antitrust enforcement, in part because of the Biden administration’s efforts under the auspices of the Federal Trade Commission and the Department of Justice’s Antitrust Division to curb anti-competitive behavior that negatively impacts consumers and the markets. There’s been very intensive coverage of Lina Khan’s tenure as commissioner of the FTC, and in August, the DOJ’s antitrust division earned a significant win in a suit against Google, the largest DOJ antitrust enforcement action since the Microsoft lawsuit in the late 1990s and early aughts.

 

Melissa Murray But the interest in antitrust goes deeper than these recent efforts to enforce antitrust laws and curb anti-competitive behavior. Broader questions about how to approach market competition and ensure competitive markets have divided the conservative legal movement and have given progressives fresh insights into harnessing competition laws to serve social justice. Ends. To take stock of all of these developments and to help us understand what it all means. We are joined today by some hotshots from the DOJ. Joining us is Jonathan Kanter, who is the assistant attorney general for antitrust at DOJ and Doha Mekki , Doha is the principal deputy assistant attorney general for the Antitrust division. So welcome to Strict Scrutiny, Jonathan and Doha.

 

Jonathan Kanter Thank you.

 

Doha Mekki Thank you so much for having us.

 

Jonathan Kanter Yeah, we’re delighted to be with you.

 

Leah Litman So you all have been very busy, and yet you graciously made time to appear on the podcast, as we were talking about just a second ago in August, after a lengthy bench trial before a judge, Amit Mehta of the District of the District of Columbia, DOJ’s antitrust Division secured a major victory against Google. And this was the first major antitrust lawsuit against a tech company to make it to trial in decades. And Judge Mehta ruled that, quote, Google is a monopolist and it has acted as one to maintain its monopoly and, quote, in online searches. Can you give us some background on the theory of the case and your plans going forward to defend DOJ’s victory?

 

Jonathan Kanter Sure. I’ll start. So thank you. It’s great to be here. This is a really important case in a really important area of law. When the Department of Justice filed the case against Google, it was the first significant monopolization case that the Department of Justice had filed in in 20 years, which is remarkable because Section two of the Sherman Act, monopolization is really the cornerstone of antitrust enforcement. And we won the case. It was the second major victory in 50 years, only two. But now it exists against the backdrop of numerous other cases that we filed. And so the case and it’s still live litigation in terms of the remedy. So I’m going to be very careful about what I say and our ability to talk about the case and stick to what’s in in the court’s opinion. But the court was very clear that the company had monopoly power and the company misused its monopoly power and legally maintained it by engaging in, among other things, contracts and other kinds of restrictions that impacted the ability of its partners to work with other rival search engines.

 

Melissa Murray Google has been very clear, Jonathan, that it plans to appeal this ruling, and it maintains that its dominance in the online search engine market is because it offers a superior product, one that consumers prefer because it is effective and user friendly. Google’s position reflects what some call the Chicago school approach to antitrust, and this is the idea that practices that law might consider anti-competitive, might actually be good for consumers and competition. And this approach to antitrust was very closely associated with Robert Bork, the Yale law professor, the D.C. Circuit judge, and the failed Supreme Court nominee. Bork documented his theories of antitrust in a book called The Antitrust Paradox, in which he criticized the Supreme Court’s antitrust jurisprudence and laid a foundation for antitrust theory going forward that really focused on whether, quote unquote, anti-competitive behavior was actually consumer friendly and benefited consumers. The Biden administration’s approach to antitrust differs radically from this Chicago school approach. It reflects elements of what some have called the Neo Brandeis in approach so.

 

Leah Litman Or Hipster antitrust.

 

Melissa Murray Hints. I like that better. Hipster antitrust. Can you explain this approach for us and how it shapes the administration’s priorities in antitrust?

 

Jonathan Kanter Sure. I’ll start and then turn it over to Doha. But first and foremost, the approach that we take to antitrust is one that’s really based on, you know, sound application of the antitrust laws and binding precedents. And so we go back to the words of the statute, which talk about preserving competition, protecting the economy against mergers that might substantially lessen competition. And then we go back all the way to the Sherman and Clayton acts, which were enacted in 1819, 1914, respectively, and then updated sense in a force of law as it’s written and as it’s interpreted by courts, I think what happened in the Bork. Was there was an attempt without going to Congress to essentially rewrite the antitrust laws and essentially infuse certain values about efficiency being the sole objective of antitrust law enforcement. And that’s never been the case wasn’t the case when Congress wrote the law. And it hasn’t been the case when Supreme Court has interpreted the law. And so we just went back to first principles.

 

Leah Litman So you brought some textual healing, right? Like the antitrust version of textual healing to antitrust law.

 

Jonathan Kanter Love it.

 

Doha Mekki I think that’s one way to put it. But I think it’s worth just lingering on this point that Jonathan made, because it’s really important. I mean, there are certainly critics of a healthy antitrust enforcement regime. And it’s really no secret or mystery why the critics tend to be closely associated with the interests of monopolists and plutocrats. But there is a rich history that supports a robust antitrust enforcement regime. And to the extent that there is anything radical, it’s actually what Robert Bork and people who thought the way he did, you know, interpreted the law beginning in the 1980s. So when we look to the foundations of the Sherman Act, what we see is a very deep concern that the kind of private coercive power of corporations that the framers of the statute were concerned about was, quote, inconsistent with our form of government. And that’s a quote from the floor debate. And it’s also important to note that this is a statute. The Sherman Act was passed in 1890, and I think all but one senator voted to pass it. Right. I mean, this was a, I think, deeply rooted, to borrow some interesting terms, a deeply rooted sense that monopolies are antithetical to our form of government. And again, I would just sort of borrow from the floor debate that Senator Sherman declared, that if you’ll not endure a king as a political power, we should not under a king over the production, transportation and sale of any of the necessities of life. And we would not submit to an emperor. We should not submit to an autocratic trade. And so there are these ways in which the kind of open, vibrant markets and economic opportunity as a value that are enshrined in the Sherman Act kind of rhyme with our most closely held social, political and economic ideals.

 

Melissa Murray It’s almost as though there’s a history and tradition of not letting corporate interests stick it to the little guy.

 

Jonathan Kanter Yeah, it’s exactly right. I mean, antitrust law is about standing up to bullies, and it’s making sure that people have freedom, freedom to choose which products and services they want to use, freedom to choose where they want to work. Freedom to choose where they want to live. And if you have a great idea, regardless of where you come from and who you are, if you work really hard, you can realize economic prosperity. And that should be available to all. And the idea of monopolies controlling what we see, where we work, how much we can make and how much we have to pay for things, including, as Doha said, the necessities of life, including housing, groceries, you know, things that that allow us to air travel are really important to our way of life and our freedom. And so these are the ideals that animated the creation of the antitrust laws. And these are the ideals that we keep in mind when we enforce the antitrust laws.

 

Leah Litman So I want to ask a question about freedom in a second. But just to kind of underscore something that both Jonathan and Doha have been talking about, which is the skepticism of consolidated and coercive economic power, you know, I think we did a series of episodes on Project 2025 in which we went through some of the proposals to, for example, give private companies, billionaires, you know, tech bro’s finance bro’s the power to control nuclear energy. Right. And if you think what could go wrong. Right. Exactly. About like the vast amount of wealth that is behind some of these corporate interests, you can see why people like FDR or the creators of the Sherman Act and Clayton Act were concerned about such a huge, immense, vast capital power competing with government power or being able to influence government power to the extent where, you know, it’s difficult to disentangle the two. And that’s part of what, you know, antitrust law is designed to remedy. But now my freedom question. So, Jonathan, you spoke very eloquently about how enforcing antitrust law enables freedom. I would like one of you to maybe explain how hipster antitrust or the neo brandish Asian approach to antitrust could help me get Taylor Swift tickets. That is, I want to be free to be in my Taylor era.

 

Doha Mekki So it is no mystery that we have brought enforcement actions in a lot of industries where people. Have firsthand experience about how they’re experiencing the market and about the availability of goods and services. And one of our you know, all of our cases are important to us. We think they’re important. They’re right on the facts in the law. And we love litigating them. But there are certain cases that seem to be more resonant than others. And I think we were really touched to see the public engage with our Section two monopolization breakup case against Ticketmaster, because it was really a company and experience of the market that needed no introduction. And so this is really and I should say that’s live litigation. So we won’t get into the merits of that case because it’s playing out in a federal court in New York right now. But again, there is this ability of the public to see, okay, this is how the government is addressing corporate power. And it you know, it helps connect us to the people that we’re entrusted to protect. They should say we love our sister agency down the street of the Federal Trade Commission. They do really important work. There is a wonderful history and tradition associated with that institution. But there is also a really deep history and tradition. And the Justice Department, right? Like we are a part of the executive branch and all of us take an oath to support and defend the Constitution, to take care that the laws be faithfully executed. And so we’re always thinking about the ways in which we wield power with the consent of the governed. Right. And so when people understand what we’re doing, when people understand that the government has something to say about coercive power, making their lives worse, making their experience of markets worse, I think it helps connect us to the people that we’re entrusted to protect, and that’s very cool.

 

Jonathan Kanter And there was an interesting, you know, in the 80s when the antitrust enforcement took a downturn, there was an interesting side effect, which is the evolution of the law, right? And so antitrust is statutory, but it’s a general statute that’s often, you know, refined by interpretation and from courts, including all the way up to the Supreme Court, I think back to law school and the case books were filled with us vs somebody all the way up until the 80s. And then antitrust law case books stopped, including as many cases of U.S. v somebody because the US stopped being people as frequently and and it’s been over 40 years since we’ve been to the Supreme Court as the antitrust division in the Department of Justice on an antitrust case. And during that period, antitrust law has taken a turn, and that turn has largely been driven by private cases. And as the Department of Justice, we have an obligation, responsibility to make sure that we are vindicating the rights of the public. And so private cases are important. Private attorneys general is a feature of the antitrust laws, but private cases are designed to vindicate the rights of private plaintiffs when it’s only the United States Department of Justice in the Federal Trade Commission who could step into the shoes on a federal level of the general public. And so it’s important that we do that when we see violations of the law.

 

Leah Litman I like the idea of DOJ being in like a wave of some kind of way. But, Jonathan, you know, as you were just saying, antitrust law, you know, was really shaped for a pretty extensive period by, you know, as Melissa described, the Bork School of Antitrust, you know, which really limited federal antitrust enforcement, you know, in the name of insisting that this was really in consumers interests. You know. Conservatives, while historically they have been in keeping with the Chicago school, the Bork School favored less antitrust enforcement. But in recent years, there has been something of a schism that has emerged, you know, among conservatives, with at least a group of conservatives calling for greater enforcement of antitrust laws in at least particular contexts. So what’s driving this schism and the interest in antitrust enforcement?

 

Doha Mekki So this is actually a super interesting phenomenon to observe. And if you’ll indulge me for a moment, I’m going to try to explain the roots of what I think is like a realignment on antitrust principles and concern over corporate power. I think that many of us I consider myself an aging millennial. And so I feel like I’ve had a front row seat to this problem. Many of us saw the financial crisis, the two tiered recovery, the fact that there was stagnating wage growth, that there was more inequality, that a small number of companies had outsized sort of wealth and success and power, that new business formation had really slowed. And then there’s like that the massive demand side market failure that’s associated with the pandemic. And I think that for many people, watching the economy work less well for them caused them to ask questions and am someone much smarter than me. Remarked that people look to antitrust when they’re uncertain about the future. And so I think there were just more questions about the power of corporations relative to individuals. And interestingly, I think it’s the conservative legal movement they think was first to question corporate power. And again, with sitting public officials, it’s our obligation to talk to everybody without regard to politics, without fear or favor, and to really engage with citizens. And, you know of all stripes about their concerns. And, you know, we have had occasion to engage, to study this concern. And I think it’s, you know, the conservative legal movement is coming to antitrust in large part because of concerns about de-platforming, because of concerns about censorship. Personally, I take no position on how real or imagined that may be, but it it certainly.

 

Melissa Murray That’s okay. We have a position on that, Doha. Don’t worry. We have a position. Sorry.

 

Doha Mekki It drives a certain kind of legal and political engagement. And one thing we know is that the conservative legal movement is organized. They have an apparatus through different kinds of organizations to really lay intellectual foundations. But to give them some credit, I do think that there is support for this idea that the founders were skeptical of corporations, right? Corporations were a grant of the king, a common law. And this idea that corporations would participate in our form of governance was something that was deeply questioned. And I think many of our most revered leaders were deeply hostile to the idea. And that’s kind of interesting.

 

Leah Litman I want to give a shout out to Joey Fishkin and Willie Forbes book, The anti Oligarchy Constitution that really, you know, goes into greater detail about what you were just saying.

 

Doha Mekki Exactly. We’re big fans of that book.

 

Melissa Murray Well, I think Joey and Willie in their book make clear that there is no history and tradition of having an emotional support billionaire at the court or being primed for corporate deregulation at the court. But yet here we are.

 

Jonathan Kanter Well, this your point about regulation is really important because a lot of conservatives are concerned about regulation by the government. But when you’re regulated by a corporation that is far more invasive, there’s no due process. You could be taxed in the form of higher prices and fees, junk fees sometimes, and there’s no accountability. And so one of the reasons why our society works so well when our economy is competitive is because it gives people the freedom to vote with their feet, gets the people freedom to say, I don’t like what this company stands for. I don’t like their products, I don’t like their services, I don’t like them telling me what to see, think or here. And so I want to go elsewhere. And those kinds of freedoms are really about our democracy. It’s about our way of life. And, you know, we were I was talking at Georgetown this morning at a symposium and dug up some FDR speeches. And if you indulge me, I mean, he talked about true individual freedom cannot exist without economic security and independence. He talked about how people should have like almost like a new bill of rights and the right to a useful and well-paying job, the right to earn and provide adequate food and clothing and recreation for one’s family, the right of farmers to sell products and have a reasonable return on investment to earn a decent living. The right of businesses, large and small, to trade in an atmosphere of freedom from unfair competition and domination by monopolies at home and abroad, and the right of every family to a decent home. These issues resonated then in 1944, but they resonate now. And that’s one of the reasons why we’re seeing this resurgence in the discussion of antitrust and corporate power.

 

Melissa Murray It’s a really interesting point and sort of linking it to social justice ends. I mean, like the schism within the conservative legal movement is really interesting. Like this idea that having a set of corporate overlords, whether it’s big tech or something else, is sort of anathema to conservative principles. Not all conservatives subscribe to that. But it is interesting that there are some who are looking to you and looking to antitrust, even despite the turn away from Chicago school style antitrust enforcement in order to be able to do that. So that by itself is actually quite interesting. But what you just said, Jonathan, sort of speaks to the effort among young progressives to look at antitrust as perhaps an unexpected vehicle for advancing social justice. As I say, unexpected. I don’t think it’s unexpected to you, but I think most people growing up and going to law school from the 2000s forward would not necessarily think. Antitrust enforcement as a social justice vehicle, at least not in the way that it was taught and purveyed for much of that period.

 

Jonathan Kanter Yeah. Not when when I went to law school, which I’ll date myself. I graduated in 1998, but have had through this position that the the privilege of visiting with law students across the country and I’ve been to over and in just in the last couple of years over 20 law schools and business schools across the country. And people are filling up rooms to talk about students are filling up rooms to talk about antitrust. And it’s not because they’re interested in high paying jobs at big law firms. They’re filling up rooms. Talk about antitrust because they believe it’s important to their way of life. They understand that it matters. They understand that if they want the American dream of being able to work hard and realize prosperity, they need that economic freedom and opportunity. And so it’s really exciting. And so one of the things that we’re seeing is this in this growth of interest, people coming to work at the Department of Justice, we have some of the most talented, exceptional young lawyers and economists who are coming here because they want to be here. They care deeply about our mission, and they believe that what they’re doing is important not just to output, not just to prices, but to our way of life.

 

Melissa Murray It’s such a good point. I was at a recent meeting of an if well how chapter, and one of the students in the group mentioned antitrust and specifically in the context of religious hospital consolidations. And the question was essentially, you know, is antitrust a useful vehicle for addressing the fact that so many hospitals, especially in rural areas, are consolidating and they’re consolidating under the umbrella of companies like Dignity or Catholic Health Services, which means that all of the hospitals in that area are under that umbrella, and that limits the degree of reproductive care like tubal ligation, abortion services, contraception, all of that. Whether that can be offered because they those services are in conflict with the tenets of Catholicism. And I thought it was a really interesting question. And this idea that antitrust might have a relationship to reproductive freedom, I think was one of the students had not previously contemplated.

 

Leah Litman Can I just add one additional potential example? You know, if you think about, for example, Hobby Lobby versus Burwell, where you have a corporation, right, asserting the freedom not to provide their employees with certain forms of reproductive health insurance. Right. You can imagine a situation where you have a monopolistic employer, right, someone with a ton of corporate power and then people not having the freedom or ability to actually find another employer who would offer them health insurance to cover certain forms of health care.

 

Doha Mekki I think that’s exactly right. And to be unequivocal about it, antitrust has something to say about all of these forms of consumer choice and antitrust. Even even Robert Bork, I think, would concede that if if he were living, he would concede that there are markets for all of these forms of goods and services. And the really beautiful thing about antitrust is that we as public officials don’t have to choose which goods and services are available. If you have robust markets, if you have open, vibrant markets for health care, for information and other sort of necessities of life, you can make those choices for yourself and pick what kind of health care works for you and for your family.

 

Leah Litman So just in thinking about the kind of political through lines, through a potential fissure or, you know, re alignment in antitrust law, you know, as both you and Jonathan are describing, the kind of underpinnings of antitrust law, I do hear a lot of resonance with progressive principles. You know, being skeptical of too much consolidated power, being skeptical of domination, wanting to ensure that important decisions are made through institutions that are representative, care about the public interest, are made with due process. And so I hear all of that. And yet maybe this is because I too am an aging millennial Doha, but I am used to the conservative legal movement always pressing this idea of freedom from government regulation and that anything that is structured by the economy is just insulated from government power. While progressives respond that like, okay, you say we should just leave it to the free market, but markets aren’t free. Like the way markets look are structured by the laws that we have or sometimes the absence of laws. And while, you know, I have seen, you know, some of the calls from Republican Party officials as well as the conservative legal movement against big tech and woke capital, you know, when those institutions are perceived as being hostile to the Republican Party, interest, I guess, you know, is that kind of debate within the Republican Party leading to a movement toward broader government intervention writ large outside the context of antitrust or. Or, you know, anything else that you are seeing or observing as far as potentially revisiting, you know, some of the principles that I guess I had associated with the Republican Party.

 

Jonathan Kanter You know, we focus on antitrust, But but to your point that, you know, there are a lot of the issues that you just raised are symptoms of a problem, a problem of people not feeling like they have control over their lives and that there is an unaccountable entity who is making decisions for them. And if you’re I think back to a conversation I had with a friend of mine who is very conservative in his philosophy but is pro antitrust enforcement, this might be, you know, ten plus years ago. It is when I first realized that there was some overlap. And what he told me was that he’s opposed to concentration of power. And whether that’s government power or corporate power, the decentralization of power and the D concentration of power and freedom go hand in hand. And it was enlightening to me because it made me appreciate that there, you know, we might all come at this from different points of view, but there are certain underlying principles that you can string throughout. The other thing I will point out is that, you know, there’s in the 1980s, antitrust became almost like the foot in the door for a broader movement about law and economics and a broader movement to infuse certain ideas about efficiency and deference to companies and corporations. There’s a great book by Binyamin Appelbaum called The Economists Hour. He talks about how a lot of the economists used to be in basement of government agencies, and then they all got that big corner offices and and there were some, you know, where we we you know, the antitrust division relies on some of the most talented and brilliant economists. And economics has made a lot of strides. And we think there’s a lot of value and benefit to working closely with economists. But but I think this this sort of brand of economic philosophy that was sort of let in through antitrust became infused throughout government. And I think as we think about, okay, what is the right way to think about our economy, what is the right way to think about the relationship between economy and freedom and justice? You know, we need to sort of think about, you know, and it’s not surprising to me that antitrust is becoming a focal point and a vehicle for that conversation.

 

Doha Mekki I mean, this idea that government has nothing to say about markets is such a joke, right? Government policy helps structure markets. And even if that were up to like, reasonable debate, I mean, markets exist to serve people. People don’t exist to serve markets, right? Just like as a threshold issue. Second, I mean, you mentioned your series on Project 2025. What is Project 2025, if not a program to use the levers of government power to structure the lives of Americans? And so, you know, that is why Jonathan’s point about being, you know, averse to concentrations of power in many different forms is a really important one. I think it’s actually a good uniting principle. And, you know, to go back to the point about the antitrust being an important tool for people of all stripes, including young progressives, I mean, there are routes for supporting antitrust that you can see in the civil rights movement, right? You see MLK and Bayard Rustin saying in the 1950s and 60s that the limit they they viewed their gains in terms of political rights as being limited if they were not backstopped by economic rights. Right. MLK was assassinated getting ready to stand in solidarity with sanitation workers in Memphis. Right. That was about economic coordination rights. And so you see those principles and views in the civil rights era. And it is really interesting to observe that, you know, the conservative legal movement that grew to distrust government intervention was really upset about judges. Right? They were upset. Robert Bork wrote at length in the antitrust paradox, as you pointed out, about what they saw as a form of judicial activism. And it is interesting to see how that dovetailed with another conservative legal movement critique of the time that the Warren and Burger Courts had engaged in activism to expand social and political rights.

 

Jonathan Kanter Ironically, a lot of what we’re promoting is reducing activism, judicial activism in the context of antitrust. We’re saying go back to the statute, go back to this. The original intent of the antitrust laws, go back to the binding Supreme Court precedent. And I think a lot of the Chicago school movement was about taking. New principles and trying to, in almost through activism, rewrite the antitrust laws without going to Congress.

 

Melissa Murray That’s actually a really good place to start because there has been no court that says more about judicial restraint, but doesn’t really practice it than this particular Supreme Court where Supreme Court podcast and although we don’t talk a lot about antitrust and we have had some antitrust cases pop up over the last couple of terms. And so before we let you go, we thought we’d get your take on the court’s most recent antitrust case, NCAA versus Alston. There was a majority opinion from Justice Gorsuch and a banger of a concurrence with Coach Kavanaugh that actually led to Reggie Bush getting his Heisman Trophy back. So might be the first time Brett Kavanaugh has that a salutary social effect. Amazing.

 

Jonathan Kanter Yeah. I should jump in on this. And I’m in. The reason I jumped in is because Doha is is the world’s leading expert on the intersection between labor and antitrust. And was the the person in this country most responsible for reviving the intersection between labor and antitrust and has built out our labor antitrust enforcement program and is the most expert person in the entire world on this issue. And so I wanted to make sure everyone understood that the words you hear from her are going to be extraordinarily meaningful.

 

Melissa Murray Doha, I was going to say I was I thought maybe Jonathan was going to say you were the foremost expert on the intersection of Reggie Bush and Brett Kavanaugh. But that seems not to be the case. So why don’t you tell us about your work infusing labor or integrating labor law and antitrust?

 

Doha Mekki So let me say, Jonathan, I think is overly generous and very kind. It is true that labor and antitrust is very near and dear to my heart, and I spent many years thinking about the ways that the antitrust laws should be brought to bear on labor markets to make sure that working people had the same kinds of opportunities that we want consumers to have when they go to the grocery store or try to buy a house and see the Alston as really meaningful. I think it’s an early inflection point in the sort of set of events that get people, especially young people, excited about antitrust. The NCAA for many, many years essentially operated a cartel whereby they set the price of college athletes labor at zero. And there is incredible literature and research about college athletes going hungry because it turns out when they are when you’re a division one, college basketball or football player, maybe you need 4000 calories a day. And the NCAA wasn’t supporting meal plans to get them the food that they needed in order to be college athletes. And of course, at the same time, the NCAA was $1 billion organization. I think many people have observed also that the victims of this cartel tended to be black and brown athletes, and so this had not been questioned sense an older Supreme Court opinion called Board of Regents. And for 30 years, the tyranny of those really persisted. But a private action made it all the way up to the Supreme Court. And finally, you had nine votes saying price fixing labor is price fixing. That has been illegal in this country for over 100 years. And it’s a really lovely moment where you get uniformity in the court about how wrong this was, right. When this principle had not been questioned for 30 to 40 years. And I think you guys have spoken in ways that are compelling about court actions that we find disappointing as citizens. But this was really a bright spot and a moment to rejoice.

 

Leah Litman Thank you so much, Doha and Jonathan, for joining us and for bringing more antitrust law into legal culture and more viewing on behalf of the federal government as well.

 

Jonathan Kanter Thank you for having us. We will VOA.

 

Doha Mekki Thank you so much. This was great.

 

Leah Litman Strict Scrutiny is a Crooked Media production hosted and executive produced by me, Leah Litman, Melissa Murray and Kate Shaw, produced and edited by Melody Rowell. Michael Goldsmith is our associate producer. Audio support from Kyle Seglin and Charlotte Landes. Music by Eddie Cooper. Production Support from Madeline Herringer and Ari Schwartz. Matt DeGroot is our head of production. And thanks to our digital team Phoebe Bradford and Joe Matuski. Subscribe to Strict Scrutiny on YouTube to catch 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.

 

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