Is It Infringement If It's Funny? | Crooked Media
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March 27, 2023
Strict Scrutiny
Is It Infringement If It's Funny?

In This Episode

Strict Scrutiny takes Hawaii! Senator Mazie Hirono joins Kate, Leah, and Melissa for a live show at the University of Hawaii Richardson School of Law. We catch up on the latest in anti-abortion legislation, recap the Supreme Court’s arguments from last week (including the Jack Daniels’/poop jokes case), and discuss a first-of-its-kind opinion out of the Hawaii Supreme Court.

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TRANSCRIPT

 

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Show Intro Mr. 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.

 

Leah Litman Hello and welcome back to Strict Scrutiny, your award winning podcast about the Supreme Court and the legal culture that surrounds it. This time coming to you live from Hawaii.

 

Leah Litman Aloha, bitches.

 

Melissa Murray We’re your hosts. I am the Tropical Melissa Murray.

 

Kate Shaw I’m Kate Shaw.

 

Leah Litman And I’m Leah Litman.

 

Kate Shaw We are so excited to be recording today at the University of Hawaii Richardson School of Law, and we are incredibly grateful to the law school Dean Camille Nelson, to professors Richard Chen and Susan Serrano, and to everyone else who made this visit happen. The occasion for our visit is that we are basically the entourage for Melissa, who is spending a week in residence here at the law school as the Dan and Maggie Inouye, distinguished chair in Democratic ideals, which is quite a title and a title of which Melissa is quite deserving.

 

Leah Litman And of course, we were more than willing to piggyback on Melissa’s awesomeness and come out and join her for a recording of the show, as she’s deservedly recognized with the in a way, chair for her incredible work in constitutional law and other fields. One big plus of co-hosting a podcast with some of the most professionally accomplished and smartest people in the law.

 

Melissa Murray Let me just say, it has been my privilege and pleasure to be here this week as the Inouye chair. Thank you so much for the warm welcome that you’ve given me and my family here to the islands. We’ve had an amazing time. I love being a part of your community. And again, mahalo, Mahalo. Mahalo. Thank you. I’ve been to Wet and Wild three times and wow, you know how to do it here. So thank you. Thank you. As we promised last week, we have a very special guest joining us for a segment where we will canvass some updates in the landscape for reproductive rights as well as some other matters. And then we’ll turn to recapping what happened last week at the Supreme Court.

 

Kate Shaw Before we get to the substance of today’s episode, a quick reminder that next week we will also be on the road, this time in Wisconsin, which is the location of the most important election of 2023. That’s an election for a seat on the Wisconsin Supreme Court, where Judge Janet is running against Dan Kelly. So around this time next week, we will be at the law school in the lovely Madison, Wisconsin, which is sometimes known as the Honolulu of Lake Mendota.

 

Leah Litman Sometimes. Like this one time.

 

Melissa Murray This one time.

 

Leah Litman Exactly.

 

Melissa Murray But now on to today’s show. So for our first segment, we want to extend a very warm and special Strict Scrutiny welcome and aloha really, to Hawaii’s senior senator, Senator Mazie Hirono. So welcome to the show, Senator Hirono.

 

Senator Mazie Hirono I’m going to join you in is so appropriate since we’re going to be talking about Roe v Wade, because Hawaii was the first state in the country to decriminalize abortion. And we did that before Roe.

 

Melissa Murray Yes, you did. And I will also say, Senator Hirono, in your work as a member of the Senate Judiciary Committee, you have been an absolutely incredible and formidable advocate and important voice on a wide range of topics, but especially reproductive rights. And I can say this from personal experience. When I testified against Brett Kavanaugh, you looked me right in the eye and asked me, Is Brett Kavanaugh a vote to overturn Roe versus Wade? And I said, yes. And we were right that we joined this Cassandra Club as Senator Hirono joined the Cassandra Club.

 

Leah Litman And among the other issues that Senator Hirono has been on the forefront of, I just wanted to extend a personal thanks to Senator Hirono for asking nominees about workplace misconduct and sexual harassment. After the allegations about Ninth Circuit judges Kozinski and Reinhart sexual harassment once those allegations became public. And that’s a super important and often neglected topic. So thank you, Senator, for your attention to that issue as well.

 

Kate Shaw And another topic, as we’ve already alluded to that Senator Hirono has been actively involved in is reproductive rights and justice. So that, of course, is the topic that we’re going to turn to now. So, Senator Hirono, as you just alluded to, our listeners obviously know very well that last June the Supreme Court overruled Roe versus Wade, opened the door to state efforts to restrict and even prohibit abortion. You obviously sit in the United States Senate. So from your vantage point, can we just start by asking you in general terms, what can be done to address ongoing efforts to restrict and prohibit abortion, including efforts playing out in the courts? And can you talk about some of the initiatives that you have been spearheading from the United States Senate?

 

Senator Mazie Hirono Well, the first thing was that we attempted to pass the Women’s Health Protection Act to codify will be weighed down to put some other protections in place that did not get the votes that we needed. We’ve been introduced, including me. We’ve introduced a number of bills that protect privacy and information relating to reproductive rights and reproductive services. None of these bills are going to get anywhere if we don’t get rid of the filibuster, which is why we need more Democrats in the US Senate. So there are a number of bills that go to the issues that we care about and then where we some of us really push for, for example, the VA and and the military to provide options for for veterans to get reproductive services. And that is all being challenged.

 

Leah Litman So I just wanted to take a beat on the Women’s Health Protection Act and maybe explain a second, you know, why it’s known as the Women’s Health Protection Act. You know, that’s the bill that Senator Hirono noted would codify Roe versus Wade. And the wonderful writer Moira Dunnigan wrote recently for The Guardian that according to new CDC data, the rate of maternal mortality rose by 40% In 2021. Women died at a rate of 33 deaths for every 100,000 live births, and that rate is more than twice as high for black women. And we’re also seeing reports about hospitals having to close and, you know, and providing gynecological services that recently happened in Idaho. So the Women’s Health Protection Act like there’s a reason why it’s known as the Women’s Health Protection Act, given the astonishing rates of maternal mortality and morbidity in the United States.

 

Senator Mazie Hirono And the thing is that the suffering of the women, for example, that there was an article I read recently of a woman in Texas who needed basically to have an abortion, but she’s effectively on death’s door. She will not be able to get those services in Texas. So the suffering of women. You did a podcast on the suffering of women. That is what we need to continue to focus on, to tell the stories of all the women. And of course, we know that there’s a Texas judge who is being asked to to get rid of the use of Mary Crystal, which is an abortion, medication, abortion. And if this judge, very conservative ideological judge, deems miferpristone not to be available, then that is in effect, a medication abortion will be denied in all states, not just Texas. And more women will die.

 

Melissa Murray So in addition to the actual physical toll that the aftermath of Dobbs has had on women in the United States, there is also a legal aftermath that we are now seeing emerge. So Kate alluded in an earlier episode to a case that’s ongoing right now in Texas. A Texas man is suing three women under the state’s wrongful death law. He’s suing them on the grounds that they helped his ex-wife and her pregnancy by helping her to get a medication abortion. He discovered this by going through her phone, apparently, and discovering texts between her and her friends. And the suit is really just groundbreaking in a lot of ways. And, you know, Leah, I know you wanted to talk a little bit about the damages that he’s seeking, almost $1,000,000 in damages.

 

Leah Litman Yes. And Senator Hirono, you alluded to the suit that is seeking revocation of mifepristone. But this lawsuit is also an attack on and challenge to the availability of medication abortion, since it is seeking to identify who the makers of the medication abortion that his ex-wife used are in the hopes that, you know, they can sue the makers as well and potentially impose like ruinous liability on them, too.

 

Melissa Murray And it’s not to be very clear, this isn’t a one off lawsuit. This lawsuit is brought by this Texas man who happens to be represented by wait for it some genius, Jonathan Mitchell, who also happens to be the architect of Texas SB8, which is the Texas bounty hunter abortion law that went into effect in September of 2021 when the Supreme Court allowed it to go into effect there. But interestingly, this lawsuit was not brought under Texas SB8. Why or why not? Any possibilities, ladies?

 

Kate Shaw I mean, maximize damages, maximize impact, it seems like, you know, so so this is the architect of SB8 and that was SB8, I think was an interim step toward the place we are now. Right. Overturning Roe and allowing states to move swiftly to restrict and even prohibit abortion. But of course, now, you know, the goals are moving. I think that’s right. I think SB8 is sort of already overtaken in Jonathan Mitchell’s mind, SB8. And so we’re on to the next frontier.

 

Leah Litman And other states have wrongful death laws, right? And so other.

 

Melissa Murray What is the import of suing under a wrongful death statute as opposed to a Texas bounty hunter statute?

 

Leah Litman Moving us toward fetal personhood.

 

Melissa Murray Because only a person can be the subject of a wrongful death suit. So this is a back doorway into fetal personhood. He’s also invited the D.A., apparently in Galveston County, Texas, to consider filing criminal charges against these women as accomplices under the state’s homicide statute. Again, under Texas law, homicide statutes are there to prosecute people.

 

Leah Litman And when Justice Alito writes his opinion, saying, you know, personhood is the law of the land under the Constitution, he will say it’s deeply rooted in our history and traditions. See what Jonathan Mitchell did last year.

 

Melissa Murray So 2022. Yes. Correct. Correct.

 

Senator Mazie Hirono So the fear and chaos that that has been attended to, that the Supreme Court’s overturning Roe is not going to end. And in fact, more and more of these kinds of lawsuits. And it’s just the total chaos, not to mention states like South Carolina, where there are there’s a bill to impose a death penalty on a woman who gets an abortion, or Idaho, where a person who helps a minor across state lines to get an abortion. Can be charged with sex trafficking. So there are just so many of these kinds of laws and cases. And you know, that the Republicans desire to show that they are fixated on trying to control and have power over women’s bodies. It’s an obsession with them.

 

Kate Shaw And it does feel like this is sort of this kind of multi-front effort. And we could go deep on any of the sort of topics you just raised under. But maybe, you know, you, in one of your earlier answers, referenced this Texas mifepristone suit, which maybe we should just take a couple of minutes to sort of talk a little bit more about because we actually haven’t on the podcast had a chance to discuss a hearing that happened in Amarillo, Texas, almost two weeks ago at this point. And basically, again, this is the suit that is asking a single sitting judge in Amarillo, Texas, to revoke the FDA’s approval of mifepristone, one of the two drugs used in medication abortion, an approval that was made 23 years ago, and a lawsuit that is just riddled with procedural flaws that mean that there’s no principled legal basis on which any federal judge should be able to rule. And and yet I think there’s a very real chance that that is what will happen. But the claims in the suit are that the FDA aired in a number of respects when it approved mifepristone over 20 years ago. Also that somehow the approval today violates a statute called the Comstock Act, which we’ve mentioned before, initially passed in 1873, this is a federal law, which of course means it applies everywhere that prohibits, among other things, distributing through the mails, articles and substances that could be used for producing abortion. And of course, before the court overruled Roe, there was no way to enforce the Comstock Act in a way that would prohibit the distribution of abortion pills. But now there are groups that are calling for the statute to be interpreted to prohibit the distribution of medication, abortion, and, you know, calling for that statute to be enforced in a way that would ban the shipping of these drugs nationwide. So that’s sort of a separate set of calls about the Comstock Act. But the act is also at this at the heart of this lawsuit that is now pending in Texas and out of which we might get a decision any time, including potentially in the next hour while you’re recording this podcast, although it’s probably late enough on the East Coast that we’re safe at this time. But but it’s coming any moment, I think.

 

Melissa Murray Safe for the weekend.

 

Kate Shaw Right?

 

Melissa Murray So that’s good. We should also take a beat, Senator Hirono, just sort of talk about this hearing that happened in Amarillo. Leah has described on this podcast before. She’s described US District Judge Matthew Kaczmarek as the most powerful man in America, and that is because he is the only judge in this one courthouse in Amarillo. So when people need to file something, when conservatives want to file something, they want to be assured of a particular outcome, they take their suit to Amarillo, where they’ll find Judge Merrick and possibly the relief that they are seeking. And so Judge Merrick has been the judge in the Biden return to Mexico suit. He’s also been the judge in the Biden case concerning trans protections for students. And now he is the judge in this particular case, which is brought by a coalition of anti-abortion organizations and physicians which have come under the umbrella of a new organization that they are calling the Center for Hippocratic Medicine. I almost said hypocritical medicine, and that might be a Freudian slip. And so, in fact, the Center for Hippocratic Medicine was incorporated in Amarillo, Texas. Weird, so weird.

 

Kate Shaw It was incorporate in Amarillo in August of 2022. So just, you know, curiously, coincidentally, I am sure two months after the court overturns Roe in Dobbs, this new organization is incorporated in this one little part of rural Texas. And lo and behold, this is where the lawsuit is now pending.

 

Leah Litman They were like, you know, who would have the expertise to oversee state’s regulation of women’s reproductive capacity? Matt

 

Kate Shaw That’s right.

 

Melissa Murray For sure. For sure. One thing to note about this hearing, which took place in Amarillo was 4 hours long. So there was that. But it began with a prayer. Very normal, very, very normal protocol for a federal hearing about whether to make abortion access harder even in states where it is currently legal. So that was how it began. How did it go, Kate?

 

Kate Shaw You know, we weren’t there. Of course it was. It was kind of by design, very difficult for a lot of press to get access because the hearing itself wasn’t announced until just the eve of the hearing. But there.

 

Melissa Murray It was like it was on the shadow docket.

 

Kate Shaw Right. The district court shadow docket is the new shadow docket.

 

Melissa Murray New shadow docket, the emergency shadow docket for district courts.

 

Kate Shaw Right. Or just for Amarillo, maybe. In any event, from what we heard from the hearing, it actually does seem like there is a very good chance that the question is kind of when and how, not if this judge is going to accept one or more of these plaintiffs theories, which, you know, they honestly are not worth spending a lot of time, I don’t think sort of walking through. They sound sort of like a conservative Mad Libs of like this decision 23 years ago somehow violates a federal statute that has to do with mail it. None of it really coheres. And yet it seems like there’s a very real chance that, again, the judge accepts one or more of these arguments.

 

Senator Mazie Hirono Judge Kacsmaryk the go to go to judge. It’s very clear. And I’ve been told that to you are all professors, you’re all professors, I’ve been told that it is really hard to teach common law with a straight face. We have a Supreme Court that is prepared to toss out decades of precedent because of their any logical perspective.

 

Leah Litman It would be easier to teach common law if I could have some mai tais at the Holekulani before teaching some of the classes. But anyways.

 

Melissa Murray I mean, it’s been so hard to teach common law that we left. We came here.

 

Leah Litman And fled the mainland.

 

Melissa Murray And we did. We did. Another thing to flag from the hearings is an exchange between Judge Casimir and one of the lawyers for the plaintiffs, the Center for Hippocratic Medicine. One of the plaintiffs lawyers was Erin Holley, who you may know is married to famed marathoner Josh Hawley. And thank you. Correct. Correct. So Counselor Hawley said something to the effect of Dobbs changed everything, and the availability of the four stone has now made it difficult for anti-abortion states to enforce their bans on abortion, to which the government’s lawyer defending the FDA correctly responded that it is hard to see how this bears on the FDA’s 23 year old approval of mifepristone as safe and effective. So what to say about this argument?

 

Leah Litman People have been saying that those people who are in blue states like Hawaii are safe for now. But of course, the decision in this miferpristone case could really change the landscape, even in places like Hawaii where abortion is legal. So what can people in blue states do to support reproductive justice in this moment?

 

Senator Mazie Hirono Well, first of all, we have to fight this case tooth and nail. And if this judge, because it would have to be a Trump appointed judge who I did not vote for to decide this case, that should have been done away with on a summary judgment motion. But here we are. It is going to be appealed by the government that is defending the FDA 20 plus year decision. And heaven knows what’s going to happen if it goes all the way to the Supreme Court because they are very busy overturning precedent. But maybe even for the Supreme Court, that is a bridge too far. But, you know, we just have to fight this case as far as we can. And then at the same time, there are issues relating to court reform. So while the what the Supreme Court is doing, which is what I would call an out of control, extreme right wing ideological majority in the court, the decisions they’re making really opens the door for discussions about for reform, such as increasing the number of justices on the court or more. Basically, how about having them have a code of ethics?

 

Leah Litman Oh, my God, stop.

 

Senator Mazie Hirono How about a code of ethics for the for these folks? Because they know that all the other district and circuit court judges have a code of ethics and with some provisions relating to conflict of interest. Jenny Thomas, Clarence Thomas I mean, does it’s crazy that they don’t have that. So of course, there’s a bill that would impose a code of ethics on the Supreme Court.

 

Melissa Murray This is a court that’s basically, again, to borrow from the Bravo universe, “Like who can check me, Boo?”

 

Leah Litman Right.

 

Melissa Murray I like I.

 

Leah Litman Agree with the law. They are above the law. It’s kind of a Schrodinger’s situation.

 

Melissa Murray But but we’re here. We would support judicial ethics reform. We’d be there with, you know, bring us to Washington. Again, we don’t want to teach common law right now under these circumstances. Well, we’re on tour. We’re on tour for that for the long haul.

 

Kate Shaw Senator Hirono, both on reproductive rights and justice and on court reform and ethics and sexual misconduct in the workplace, really across the spectrum. Thank you so much for your leadership on all of these issues. And thank you so much for taking the time to be with us on the podcast today. We are very grateful.

 

Melissa Murray Mahalo.

 

Senator Mazie Hirono We haven’t even talked about the Bruins decision.

 

Leah Litman Next time, Senator. Next time.

 

Kate Shaw We’ll take that as an advance. Yes. To invitation to come on the podcast to talk Bruins next time So we would love to have you back to do that.

 

Senator Mazie Hirono All right. Aloha. Stay safe.

 

Kate Shaw Thank you so much.

 

Melissa Murray Aloha.

 

Leah Litman We stan a fellow Cassandra.

 

Melissa Murray We do.

 

Leah Litman With reciepts.

 

Melissa Murray We pull them out like a CVS receipts.

 

Kate Shaw That guy.?Oh, I didn’t vote for him.

 

Leah Litman That was amazing

 

Melissa Murray I don’t even know him.

 

Speaker 2 <AD>

 

Melissa Murray Thanks to Senator Hirono for taking the time to chat with us. Now we are moving on to recap some of the cases that the court heard last week, and hopefully you will have been familiar with some of these cases because we previewed some of them in our last episode. But we also wanted to talk through what actually happened at the oral argument. So the first up is Arizona versus Navajo Nation, which is an important water rights case involving the federal government’s obligations to the Navajo Nation and tribes more generally. So Lawrence Hurley at NBC News had an illuminating deep dive story, really fantastic and important and also deeply troubling about the difficulties that the Navajo Nation has had and continues to have in accessing water, something that the nation’s lawyer very effectively surfaced in this oral argument. Hurley’s reporting in the story provides some really important context for this case. It begins with one woman’s four mile journey to the local well to obtain water. She has no running water in her home on the reservation, 170,000 people are without running water. So again, think about that for context. Not only does the reservation lack water, it actually lacks the infrastructure to be able to distribute water from more remote sources. So this makes life and agriculture and other kinds of sustainability really difficult on the reservation.

 

Kate Shaw So that really frames the kind of stakes in this case. And at the oral argument, I thought that Justice Sotomayor really both brought out these stakes, but also reminded everyone of the history out of which this case arises. And so let’s start by playing that short clip here.

 

Justice Sonia Sotomayor I mean that in that land they couldn’t farm, there was drought conditions. And for at least three seasons, they were not able to grow any food. Correct. And then the U.S. wanted to put them someplace else, and they insisted on returning to a part of their native homeland.

 

Kate Shaw Justice Sotomayor was sort of the first to really inject the history into this oral argument. And the context of this exchange was that Justice Sotomayor was basically reminding everyone of the background to. So there’s an 1868 treaty whose meaning is really at the heart of this case. And the background to that treaty is, of course, in 1863, the United States forcibly relocated the Navajo Nation to an area called Bosque Redondo. They were there for three years and unable to grow food. Although the federal government’s lawyer, in a response to the question we just played, sort of insisted, well, the reason was because there was alkaline in both soil and water in this new location, not because of, you know, our failure to provide water, which sort of felt like it was missing the point. But after the Navajo negotiated the return to part of their ancestral homeland, they entered into the treaty that established this, the Navajo reservation, as the permanent home for the nation. So that is the background out of which this treaty grows.

 

Melissa Murray And as to the substantive questions in this case, we noted on the preview that the first substantive issue is generally whether the Navajo Nation actually has rights to the water under existing treaties or via the general relationship between the United States and the nation more generally. And there were a number of very revealing exchanges on this issue, including this exchange between the lawyers and someone who I call the most interesting man in federal Indian law today, one, Neil M. Gorsuch. So let’s play that clip.

 

Neil M. Gosrsuch Mr. Luke, With respect to that, there are provisions in the treaty with respect to agricultural agriculture, a promise that this will be a permanent home and that there will be opportunity for raising animals, right? Correct. Is it possible to have a permanent home farm and raise animals without water?

 

Melissa Murray I feel weird about this because I’m like, You’re right, Neil. They never say that.

 

Kate Shaw It’s confused. It’s a confusing feeling. I know.

 

Leah Litman Sometimes Neil Gorsuch is dripping condescension and like the utter horror he expresses about a party’s position finds an appropriate target like a stopped clock, you know? Right. Anyways, it worked out in this case as he directed his ire at the federal government position that the nation had no rights to water under the relevant treaties or the relationship between the nation and the United States. So, you know, here’s another clip of Neal being Neil. But doing it right this time.

 

Neil M. Gosrsuch If you just answer my question, could I bring a good breach of state contract claim for someone who promised me a permanent home, the right to conduct agriculture and raise animals? If it turns out it’s the Sahara Desert. I don’t think you would be able to bring a breach of contract claim. I, I think. You don’t think that’s a breach of good faith and fair dealing. You don’t think these two would state a claim? I don’t think so. And I and I’m happy to apply if we disagree with that. Then what?

 

Melissa Murray You find yourself rooting for him. And it’s weird. Also weird on the other side of the question whether the nation has rights to the water was the chief justice who is not the most interesting man in federal.

 

Kate Shaw Very different energy from.

 

Melissa Murray Very different energy.

 

Kate Shaw Justice Gorsuch in this argument.

 

Melissa Murray Let’s hear the chief justice’s energy.

 

Neil M. Gosrsuch The treaty specifically mentions a variety of things that would be necessary for agriculture. You know, the 15,000 sheep, however many cattle, the seeds, if the water were. Why wasn’t the water mentioned as your argument now is it’s necessarily implicit, but the other things were spelled out. Wouldn’t you have spelled out the water at the time?

 

Melissa Murray Deep sigh. Deep sigh. Why wasn’t the water mentioned? I mean, this is a remark that makes it very clear he is entirely unsympathetic to the nation’s position here. He also seems, I think, a little austerity and churlish, like how are you planning to raise the sheep, the cattle and the other livestock mentioned in this treaty? Without access to water, I mean, like duh.

 

Leah Litman Just on vibes.

 

Melissa Murray Vibes.

 

Leah Litman Not water.

 

Melissa Murray No water, just vibes. I mean, could this actually be so obvious? It need not be explicitly detailed in the treaty. Almost like unenumerated rights. Never, never, Never. No, no.

 

Kate Shaw But so that’s where Roberts was. I think that was also likely where Alito and Thomas and Kavanaugh were. It wasn’t actually crystal clear where they were on this first question, whether there is a right to supply or there is a right to access water at all. But they definitely seemed pretty unsympathetic to the nation’s argument. On the second question, which we will talk about in just a moment.

 

Leah Litman There was one moment in the argument that provoked the question for me, which was this Where is Sam Alito getting his information from? So let’s play that clip.

 

Neil M. Gosrsuch If I had been shown a seat of the pants calculation, that per capita water on the Navajo Nation is greatly in excess of per capita water for residents of Arizona, do you think that would be incorrect?

 

Leah Litman Like, where did this seat of the pants calculation come from? Who showed it to him? Like, to the best of my knowledge, Tucker Carlson did not cover this case, which makes me wonder, like, is it a Quanon message board?

 

Melissa Murray Definitely On subreddit, it’s a subreddit.

 

Leah Litman Okay. Yeah. Or maybe like his special dinner guests, the Wrights mentioned something. Who knows? Anyways.

 

Kate Shaw Yeah, that question was was part of this line of kind of concern that Alito seemed to be channeling throughout the argument, which is, But who else could we care about? Right. Could we care about everyone else’s access to water somehow? Would ruling for you disadvantage in a way that I can actually get worked up about individuals in nearby states like Arizona, but not actually part of the reservation? So that really was what this question, I think kind of grew out of.

 

Leah Litman Another issue in the case we talked about on the preview is the related question of assuming that the nation does have rights to water. What is the available remedy if those rights are not being fulfilled? That is, how could the nation possibly secure their rights to water? So because this topic, you know, the gap between remedies and rights is kind of a pattern at the Supreme Court of making rights unenforceable and is a concern and academic interest of mine. I wanted to highlight this pointed exchange in which Justice Kagan brought out the oddity and the problems with the federal government’s position. That is, you know, even assuming the nation has rights to water, they can’t actually enforce those rights.

 

Justice Elena Kagan There are no rights to water. But you’re not reading the treaty that way. You’re saying, look, when the treaty gives land, the treaty also says, you know, implicit in that is that you have a right to the water that will enable you to live on that land. So then there seems to me to be a gap, because then you’re saying, well, notwithstanding that the treaty gives water, that the treaty promises water, that’s what treaties do. It’s a contract that promises something. You’re saying those rights are unenforceable. And I guess I don’t understand if the treaty promises water, where do you get the idea that that is unenforceable?

 

Unknown No. The treaty does vast water rights in the tribe, and those rights are enforceable, including by the tribe. But the promise that we have allegedly breached here isn’t about violating those rights. It’s about violating affirmative duties to supply the water to the tribe. It’s just like my minerals.

 

Justice Elena Kagan I guess I’m not getting it. If if, if, if there’s a contract and the contract gives a right to one party, then just by the nature of how rights work, it gives a duty to the other party. So there’s a contract here and it gives a right to the Navajos. You say so yourself. That means it puts a duty on the other party to the contract, which is the U.S. government.

 

Leah Litman I think Justice Kagan’s line of I don’t understand your argument is basically like the moment in Billy Madison with the following exchange. At no point in your rambling, incoherent response were you even close to anything that could be considered a rational thought. Everyone in this room is now dumber for having listened to it. I award you no points and may God have mercy on your soul that that’s what she is saying when she says, I don’t understand your argument or I just don’t get it.

 

Kate Shaw I think this is like Leah as Elena Kagan anger translator is a recurring segment that we need to bring back now routinely. But yeah, that’s basically what she’s saying. And Justice Jackson, you know, essentially brought this issue up as well, just this gap between rights and then remedies or enforcement, as well as sort of underscoring, along with Justice Gorsuch, with whom I think she is very much kind of aligned on. These issues and in this case about the importance of embedded understandings of the United States as duties and the rights of tribes. And so she was sort of all over those themes throughout the argument.

 

Leah Litman And in this case, as in the court’s previous decision in Casper, who where Ted versus Oklahoma, it seems like Justice Barrett is going to be the swing vote. So the question is, is she going to Castro-Huerta us or not? Castro-Huerta, of course, is the case that Justice Kavanaugh wrote that destabilized new centuries of federal Indian law. But states actually do have the authority to prosecute crimes that occur on native lands where the victim is Native American. And the part that Justice Barrett seemed to be hung up on in this case was not whether the tribe had rights to water or whether the rights were enforceable, but instead whether the remedy in this case might be in conflict in some ways with what the Supreme Court had said in a previous water case, Arizona versus California.

 

Melissa Murray So I listened to this oral argument in real time here while I was in Hawaii, and it really sort of hit different in a place where water rights play such a huge part of the legal landscape. And this really came home to me when I was hanging out with the students and faculty of the University of Hawaii, Richardson School of Law’s Kahului Center. And just for those who may not know about it, the Kahului Owl Center provides direct legal services, especially to rural neighbor island communities such as Kauai’s, North Shore and Maui’s West Side. And in doing so, it focuses on Native Hawaiian law and legal issues of importance to the native community, including riparian rights. And Kahului clinics have been doing path breaking work at the intersection of native Hawaiian rights and environmental law, including work to preserve riparian rights for Native communities. And as I learned from Professors Capella Sproat and Susan Serrano, who are the directors of the Cultural Center in Hawaii, Fresh Water has been a tool to control and colonize indigenous communities. And as the Navajo Nation argued at the Supreme Court this week, the return of those water rights to its original stewards is absolutely central to this project of self-determination and restorative justice for native communities. So this case is about the Navajo Nation, but obviously its import will extend far beyond the Navajo Nation to include other native and Indigenous communities. And if you’d like more information about the work of the Kahuliao Center, please go to www.Manila.Hawaii.edu/Kahuliao. THat’s K-A-H-U-L-I-A-O. And thank you so much to the directors and faculty and students of the KahuliaoCenter for welcoming me so warmly this week.

 

Speaker 2 <AD>

 

Kate Shaw Next up, we’re going to recap a case the court heard argued last week called Jack Daniel’s versus vip products. And we’ve already mentioned the need for drinking during this episode, but I feel like we really maybe should prepare to have a drink for this portion, especially of the show.

 

Leah Litman Another reason why we should have done this show at the HaleKulani and had Mai Tais at the ready.

 

Kate Shaw We are definitely making a beeline there when this recording is done. But as a reminder of what is at issue in this case. So this is the trademark case about the bad spaniels, dog toys that are parodies of Jack Daniel’s. The Case asks whether the humorous parody of a mark can infringe that mark. It also asks what standard courts should use when determining whether the humorous parody of a trademark infringes that mark. And so just for folks who are maybe not familiar with Bad Spaniels, let me tell you a little bit about them. So these are dog toys. They look like Jack Daniel’s bottles, both, you know, in the product itself, on the toy itself and in the advertisements, there are lots of poop jokes. The toy itself says old number two on your Tennessee carpet parodies the Jack Daniel’s whiskey bottle. And Jack Daniel’s is not amused. So they have sued. The argument was, as we predicted, a pretty wild ride, but in part because we’re not IP experts, but also because we want to save time for a segment later in the episode actually about some really important development out of the Hawaii Supreme Court. We’re going to go a little bit short on Jack Daniel’s. Play you some clips.

 

Melissa Murray But it’s what they deserve.

 

Kate Shaw Consider pulling up and listening in all its glory. Tell it to this oral argument. It really doesn’t disappoint, but we’ll give you some highlights.

 

Leah Litman Yeah. So first we’ll just kind of describe where it seemed like some of the justices were in the case and the kinds of arguments that they were interested in. And then we can get to the oral argument that everyone was talking about. Right.

 

Melissa Murray So some of the justices here seemed very interested in the possible exception from protection for artistic expression or other forms of speech and thought that this might entail some kind of parody exception. But some justices, Elena Kagan, we’re not sure that bad spaniels dog toys fell under the parody exception as was being postulated. So let’s play that clip of a very skeptical Elena Kagan.

 

Justice Elena Kagan What is there to it? What is the parody here?

 

Bad Spaniels The parody? The parody is.

 

Justice Elena Kagan Because I maybe I just have no sense of humor. But what’s the parody?

 

Bad Spaniels The parody is multifold, but the testimony indicates and it’s not being disputed, that the parody is to make fun of marks that take themselves seriously.

 

Justice Elena Kagan Well, I mean, you say that, but, you know, you make fun of a lot of marks. Doggy Walker. Dos Perros. Smella Arpaws, K-9 Cola, Mount and Drool. Are all of these companies taking themselves too seriously?

 

Bad Spaniels Yeah. Yes, in fact.

 

Justice Elena Kagan So you’re just saying any time you go out after or you use the mark of a large company, it’s a parody just by definition, because they must be they must take themselves too seriously because they’re a big company.

 

Bad Spaniels I think as applied here, there’s no doubt that Jack Daniel’s takes himself very seriously.

 

Justice Elena Kagan I don’t know. I don’t think Stella Artois takes itself very seriously.

 

Bad Spaniels And they.

 

Justice Elena Kagan They have very funny commercials.

 

Bad Spaniels And I’ve seen their historical commercials and they would under parody, too. But Jack Daniel’s at the head of the line.

 

Justice Elena Kagan I mean, this is. Okay, I’ve made my point.

 

Leah Litman You know, new fodder for my nightmares is Elena Kagan telling me all of my jokes about Sam, Neil, and Brett aren’t funny. Like even her telling me some of those jokes aren’t funny would be pretty sad. I would still make the jokes, but it would be soul crushing.

 

Kate Shaw It’d be crushing. So in terms of sort of where the substance of where the justices were, some of them seem to be saying, well, okay, so speech can be a parody, but this is a toy that is sold as a toy. So it’s not a parody, whereas maybe a T-shirt with a saying with some words, a text, maybe images could be a parody. There was also this idea of floating a commercial versus noncommercial distinction. Noncommercial parodies might, you know, be subject to h8ened protections or not be able to trigger liability. Commercial ones like these might not. So these are some of the lines the justices seem to be sort of, you know, grappling towards. But it wasn’t that clear where they might land in terms of drawing those lines.

 

Leah Litman And one of the justices that was invoking some of these ideas was Justice Kagan and bringing this back to, you know, the subject of my nightmares or maybe like manifesting an additional nightmare. I’m going to tempt fate and the universe and suggest that I might actually know more about something than Elena Kagan does. Now, admittedly, the thing I think I know more about his dog toys, but let’s play that clip here.

 

Justice Elena Kagan Okay. A dog toy, I’m just going to say is a utilitarian good.

 

Bad Spaniels Well.

 

Justice Elena Kagan There might be some hard cases. I actually don’t think that the political T-shirt is a very hard case and says something. It’s making a point. But dog toys are just utilitarian goods and you’re using somebody else’s mark as a source identifier, and that’s not a First Amendment problem.

 

Leah Litman Again, I am tempting the universe, but here goes. Dog toys are utilitarian. It’s true. But for doggie influencers like my mini goldendoodle Stevie Nicks, they can also say something and they can make a point. I take pictures of Stevie, the pup-fluencer, with dog toys and bandanas that say some things that I want to communicate. Like I take pictures of her with her little menorah toy around Hanukkah with a dog toy in the shape of a White House. It has two German shepherds, you know, around Biden administration events, a rainbow toy that says love. They take pictures of her humping around pride. Like, the list goes on. And I haven’t even gotten to her men’s tears collection. But the point is, like, dog toys can be expressive and they can say something. And that is one reason why momagers like me get them for their expressive ends.

 

Kate Shaw Not dumb. I think you just won this case, Leah.

 

Melissa Murray I think you did. Excellent. Why weren’t you there for some of their V.I.P. toys? I do think that some of the justices were wrong with Elena on this one. I think she might have been on her own on this. But some of the justices seem to think that Jack Daniels had really overreached here because no one would think that a product like this, a dog toy, a squeaky dog toy about poop is made by Jack Daniels. Like, no one is confusing this for a Jack Daniels product. And that is my point. That’s been my point from the beginning. Like, for f’s sake, Jack Daniels, get a grip. Like, no one is confused.

 

Kate Shaw Yeah, no one is misled, no one’s confused. And that sort of is at the heart of the legal test.

 

Leah Litman Melissa You know.

 

Melissa Murray I know, I know.

 

Leah Litman And so was that argument. This also was Sam Alito’s position. Is the multiverse collapsing? Like what is happening?

 

Melissa Murray Someone has the infinity stone.

 

Leah Litman Like someone has like Neil Gorsuch.

 

Kate Shaw Just stop the clock.

 

Leah Litman Now Alito.

 

Kate Shaw Every every so often, Leah and Neal and Melissa and Sam just converge. And then, you know, we feel really weird about it. It doesn’t happen again for a while. Related to kind of this, I think Melissa’s skepticism and Melissa and Sam’s skepticism, you know, a number of external commentators really did seem to note that, A) it’s not that plausible that anybody is genuinely confused. But, B) if Jack Daniels is actually arguing that there’s confusion in some way, it seems to be suggesting that its customers are too dumb to tell the difference between an actual bottle of whiskey you can drink and a squeaky dog toy. So I’m not sure Jack Daniels should be conveying that message to its customers or to the court.

 

Melissa Murray Who are their marketing people? Like, this is terrible. Other justices were concerned about what kind of rule or what kind of direction they should give to lower courts in order to best protect freedom of expression in particular. Some were concerned about a standard that just told lower courts that in deciding whether there is infringement or maybe whether there’s fair use or maybe whether there’s confusion, consider the fact that it’s a parody. They’re concerned with that kind of standard, was that the determination would only be resolved well into the course of the litigation, which can be very expensive on both sides, and especially because part of a litigation would include running surveys to basically determine whether something was confusing to consumers. So some of the justices wanted a clearer test and maybe something that was more upstream and didn’t require that kind of investment in order to determine whether or not there was brand confusion. And that kind of test would potentially allow courts to screen some of these cases out early at the motion to dismiss stage rather than further along after the whole determination about whether or not it’s the parity standard. So they seem to be looking for cost effective ways to make this determination and get some things out of court.

 

Leah Litman Yeah. And now we come to the poop humor. And more. As we suggested when we previewed this case, the argument was likely to get spicy for a bunch of reasons. You know, the topic of the suit, the products, the identity of one of the advocates, Lisa Blatt. And things did not disappoint. So let’s just start out with this exchange between Lisa Blatt and Justice Alito. That is yet another entry onto the list of things that only Lisa Blatt would do.

 

Justice Samuel Alito Could any reasonable person think that Jack Daniels had approved this use of the mark?

 

Lisa Blatt I’m, absolutely. It’s it’s that’s why we won below.

 

Justice Samuel Alito Really?

 

Lisa Blatt Yes.

 

Justice Samuel Alito And let me envision this scene. Somebody in Jack Daniel’s comes to the CEO and says, I have a great idea for a product that we’re going to produce. It’s going to be a dog toy and it’s going to have a label that looks a lot like our label, and it’s going to have a name that looks a lot like our name, Bad Spaniels. And what’s going to be in this reportedly in this dog toy is dog urine. You think the CEO is going to say, that’s a great idea, we’re going to produce that thing?

 

Lisa Blatt No, but Nationwide ran a Super Bowl commercial with a dead child in it and they had to pull it because it was such a bad idea. I don’t know who approved that one. It was really embarrassing for them.

 

Justice Samuel Alito So a reasonable person, would a reasonable person would not think that Jack Daniel’s had approved this?

 

Lisa Blatt I think if you’re selling urine, you’re probably going to win on emotion. I mean, on a 12 v. six, but you’re probably also violating some state law. But sure.

 

Justice Samuel Alito Oh, no, you’re not selling urine. It’s exactly this toy.

 

Lisa Blatt I thought it was.

 

Justice Samuel Alito No, it’s exactly this toy I’m sorry. Which purportedly contains some sort of dog excrement or urine.

 

Lisa Blatt Oh, I’m sorry. Okay, my bad.

 

Justice Samuel Alito The CIA’s. The CEO is going to say this is a great idea.

 

Lisa Blatt Well, just showing how confused I was suggesting that I would be your perfect consumer, Justice Alito, how old you are. But you went to law school. You’re very smart, you’re analytical, you have hindsight bias. And.

 

Justice Samuel Alito Well, I went to a law school where I didn’t learn any law. So.

 

Lisa Blatt Okay. But it’s just a little rich for people who are at your level, too, to say that, you know what, the average purchasing public thinks about all kinds of female products you don’t know anything about or dog toys you might not know anything about.

 

Justice Samuel Alito And so I just I don’t know. I had a dog. I know something about dogs. The question is not what the average person would think is whether there should be this should be a reasonable person standard to simplify this whole thing.

 

Leah Litman You know, I am simultaneously impressed with how Lisa managed to both shade Sam Alito and kiss his butt, but at the same time. By suggesting he’s both old, but also that juries are dumb, unlike the very smart Sam. And I do like how she talks to them like they are normal people and not some sort of gods. But wow. Like that was just a lot.

 

Melissa Murray That was like watching an episode of Vanderpump Rules. Like, I mean, that was reunion energy. Like chaotic and crazy.

 

Leah Litman I’m so glad that you also have Bravo on the brain because part of me was envisioning.

 

Melissa Murray Wait, wait, wait. Is this Scandoval  time?

 

Leah Litman It is. So I’ve been trying to get in a stand of all reference to a main episode.

 

Melissa Murray Kate has no idea what we’re talking about

 

Kate Shaw I would, I would turn off my, you know, almost when we do our zoom or when we do this by Zoom, occasionally one of us will just turn off our video When something went me when I just check out of a conversation, just imagine. I’m like, I’ve turned off my zoom video for this portion of  the discussion.

 

Melissa Murray It’s more like I turned off it for her. I turned it off for you.

 

Leah Litman I realize not everyone watches Vanderpump Rules. It is a reality television show that has been on Bravo for over ten years that is undergoing a scandal of.

 

Melissa Murray Epic proportions. Epic.

 

Leah Litman I’m not even going to bother to try to explain it here. But basically it’s like if you watch Friends, it would be like if Rachel had been having an affair with Chandler for a year. Like that is basically what is going on. One of the Vanderpump Rules stars Ariana Madix, her boyfriend of ten years, is cheating on her with another cast member anyways.

 

Melissa Murray We’re not suggesting that’s what’s happening here. But we’re saying it’s chaotic.

 

Leah Litman But Ariana showed up to the Vanderpump Rules reunion wearing a sweatshirt that said 1-800- Boyz- Lie. And a part of me is envisioning Lisa Blatt like standing at the Supreme Court lectern with like 1- 800-Boyz-Lie. But telling like Sam Alito.

 

Melissa Murray That is this energy.

 

Leah Litman That’s exactly, exactly.

 

Melissa Murray I mean, this was again, like when you see oral arguments in real time, like people are like incredibly deferential to them, like she’s a repeat player. So, I mean, there is a level of comfort of going before the lectern over and over again. But, wow, this is comfortable. I mean, like she took her shoes off at the court.

 

Leah Litman And did want to acknowledge that Justice Alito does seem to know something about dogs. He had a dog named Zeus who used to come with him to work.

 

Kate Shaw Shall we talk about some other things that Lisa did during the argument?

 

Melissa Murray Well, I mean, or that Sam did I mean, like the Yale Law School erasure has got to cut.

 

Kate Shaw That’s true. And people in the courtroom really like that.

 

Melissa Murray I mean, yeah.

 

Leah Litman It slaps.

 

Melissa Murray It’s,  it does slap.

 

Kate Shaw Everyone loves to hate on Yale Law School. I mean, really brings us together.

 

Melissa Murray So another thing that Lisa Blatt did during this argument that I thought was, again, displayed a level of comfort that no black woman has ever had at the Supreme Court is to tell Justice Sotomayor that she may have made a humorous joke. So let’s roll that clip.

 

Justice Sonia Sotomayor One of the political parties, Animal Lovitz, and makes a T-shirt where the animal looks drunk, accompanied by a slogan, It’s time to sober up America. And they wear that proudly at a protest or here in court.

 

Lisa Blatt Do you want my answer?

 

Justice Sonia Sotomayor She sells these T-shirts on Amazon.

 

Lisa Blatt Okay.

 

Justice Sonia Sotomayor The The Political party gets a suit consumer survey purportedly showing that 15%, 20, 25, ten, whatever number we make up, okay, think the activists needs the party’s permission to copy the logo. So. I’m a judge. I know what I would do. But tell me what you would do. And who do they have to go through a full political or full trial under the Polaroid factors to decide this case?

 

Lisa Blatt Okay. So, I mean, first of all, that’s funny. Your example. I’m going to give you that.

 

Melissa Murray Okay. All right. People need to stop playing in women’s faces. Like, what was that?

 

Kate Shaw Don’t you think the Cape DJ interaction was even crazier? Okay, so there’s that moment, and then we will maybe just go immediately into an exchange that she had. So Justice Jackson asked a long question, and Lisa really, like, turns it up in the response. So let’s play that now.

 

Justice Ketanji Brown Jackson They are doing that. If it’s being used as a source identifier. Then I suppose we get into all of the questions under the Lanner-Mack test as to whether or.Not there’s trademark infringement. What’s wrong with that?

 

Lisa Blatt Well, unfortunately, a lot and with respect that literally you’re taking language in the text of parody and into the text of 1115.B4, which you had a Supreme Court case on KP permanent makeup saying designation of a source are actually exceptions under two statutory provisions that don’t appear in infringement. So I’m fine with you making up stuff.

 

Justice Ketanji Brown Jackson I’m not making it up. I mean, you said here this morning and I wrote it down, that the whole confusion issue. Do you agree that confusion is the heart of the Lanner-Mack confusion?

 

Kate Shaw She kept her cool? Justice Jackson did so well there. But like, I feel like I my face is getting hot just like that heaering that audio.

 

Melissa Murray Do you remember at her confirmation where Ted Cruz was just going at her and she literally took that pause and was like, do I risk it all? Like.

 

Kate Shaw I remember that.

 

Melissa Murray Do I risk at all? I think she did that here because I was like, I’m sorry, what?

 

Kate Shaw Making stuff up. I know.

 

Leah Litman A part of me wonders, like, does Lisa hate the court? Does she hate some of the justices or does she just talk shit about them, including to their faces? In which case, I wonder, what does she say about them behind their backs? It’s just a fascinating dynamic. And here it was just really weird to answer to Justice Jackson. You guys can just make stuff up. I mean, Justice Jackson has been on the court for a hot minute and wrote a unanimous statutory interpretation opinion like she has been making shit up. And another oddity of Lisa being so extra with Justice Jackson is that Justice Jackson, I thought was again awesome in this argument and seemed to understand that trademark law is limited in part because the First Amendment concerns. And she’s, you know, very different from Justice Breyer, how he was it argument. But I did like Justice Jackson asking what’s wrong with that? That was a classic Breyer question formulation. It’s very nice. And I just find it kind of endearing that she used it.

 

Kate Shaw That we predicted there would be some porn references and we have trimmed the ones that are really not safe for home listening around children. But she started her rebuttal with the following.

 

Lisa Blatt What the other side and I don’t hear you guys talking about is the half of speech that no one likes the pornography and the poison. And it is hard for me to see how you can say that the trademark owner doesn’t have an interest in something that approaches compelled speech if their mark is being using in porn films and porn toys and sex toys and people are profiting off of that.

 

Leah Litman These are dog toys?

 

Kate Shaw We’re way past dog toys.

 

Leah Litman I told you Stevie humps her love Rainbow. I mean, so.

 

Melissa Murray The case is submitted.

 

Leah Litman Predictions are hard to say. The chief asked only one question. Justice Barrett and Justice Kavanaugh didn’t ask any at all. This argument was probably a little too uncouth for Justice Dolores Umbridge to go. But yeah, so hard to say.

 

Kate Shaw Okay, so we actually wanted to pivot now to flag an important state court decision close to home. So just over a week ago, the Hawaii Supreme Court, in a unanimous opinion authored by Justice Eddins, issued a first of its kind ruling, a finding that citizens have an affirmative right under the Hawaii state constitution to a life sustaining climate system, and that this affirmative right should shape the way that government actors and agencies carry out their duties and exercise their powers. So we want to take a couple of minutes and really talk about that opinion.

 

Leah Litman So in brief, the case involved an effort by the Hawaii Electric Light Company to get the Public Utilities Commission to approve a power purchase agreement that would have involved converting a plant and having that plant produce energy by burning eucalyptus trees. The Public Utilities Commission rejected the proposed agreement, finding that it would have emitted substantially more carbon than it sequestered, and that even though it made promises of eventual carbon neutrality, those promises were largely speculative. The power company challenged that denial in the Hawaii Supreme Court, which affirmed the denial finding that the Utilities Commission acted within the scope of its constitutional and statutory authority.

 

Melissa Murray And significantly, the Hawaii Supreme Court grounded its ruling in part in Article 11, Section nine, of the Hawaii State Constitution, which guarantees each person’s right to a clean and healthy environment, which, according to the court, also encompasses a right to a life sustaining climate system. And we have talked a lot about. The importance of state constitutions and the fact that state constitutions are often more generative of individual rights than is the federal Constitution. And this is one of those situations. And we should also note that this opinion was unanimous, and this reasoning actually breaks some new and important ground linking this right to a clean and healthy environment to the Utility Commission’s obligations to consider greenhouse gas emissions and making its regulatory decisions. So it has a lot of shades of Massachusetts versus EPA, but going further, like doing more and again, from a state constitutional law perspective.

 

Leah Litman Yes. And then just in drawing out some of the comparisons between this case and some federal court decisions, I wanted to also highlight in a separate concurrence, Justice Wilson wrote to draw attention to the urgency of the climate crisis and to note that the right to a life sustaining climate system should be understood as a component of not just the Hawaii Constitution’s right to a clean and healthful environment, but also the due process clause of the Hawaii Constitution and that Constitution’s public trust doctrine. And this could be relevant and having potential application to other state constitutions that might not have, you know, parallel or analogous provisions to the Hawaii Constitution. One regarding a clean and healthful environment, but have similar language to due process and public trust that could do similar work. And as I suggested, the concurrence kind of draws out a comparison between state courts action on climate and federal courts, at least the current era on the federal courts. So the concurrence details Federal Court’s abdication on climate, including the United States Supreme Court’s decision in West Virginia versus EPA, which had invalidated the EPA’s Clean Power Plan, and the concurrence described that case as federal courts abdicating environmental rule of law, which I thought was both very evocative and accurate and a distinct take on what the Supreme Court did there, kind of abandoning ordinary principles of interpretation and describing, you know, the set of cases in which that occurs. The concurrence also offered a alternative approach to identifying what rights are protected by constitutions. Implicitly, that is what rights aren’t specifically enumerated in the Constitution’s text, but are nonetheless protected. And it was a different approach than the history traditions or a deeply rooted approach that the US Supreme Court has taken to .

 

Melissa Murray Imagine that.

 

Leah Litman It’s a good thing to to identify and constitutionally protected rights. You know, here under the state constitution rather than the federal constitution. So the concurrence notes how climate affects native communities. In particular, it describes climate as a human rights issue and how environmental justice disproportionately impacts native peoples. Calling to mind what you had said, Melissa, about the work being done at the University of Hawaii’s Kahului Center to show how climate issues and environmental issues have been used as a tool for colonization. And the concurrence also emphasizes that the legislature has repeatedly recognized that it is. The Hawai’i legislature has repeatedly recognized that climate is an issue in various laws and resolutions that the legislature has passed, and in doing so incorporates a broader conception of who we, the people, are that are recognizing our constitutionally protected rights and the foundations of sound governance systems and contemporary movements and values into the analysis. Rather than, say, returning us to the Dark Ages.

 

Melissa Murray It’s almost like we, the people are alive now.

 

Leah Litman Yeah, almost.

 

Kate Shaw Just blasephomy.

 

Leah Litman But unless Matthew Kazmierczak has anything to say about it. Yeah.

 

Kate Shaw But the beautiful thing is that he has nothing to say about the Hawaii Constitution. Right? And so that. Right?

 

Leah Litman Yeah, exactly.

 

Melissa Murray Give them time.

 

Leah Litman Until the independent state legislature theory becomes the independent federal courts theory. State courts can’t do nothing theory.

 

Kate Shaw Okay, well.

 

Leah Litman That that got dark, that.

 

Melissa Murray We were going to end on a high note. Why did ou do that?

 

Leah Litman I know. I know.

 

Kate Shaw We are. I have this. I have a high note. I have a note, which is to say, as Melissa and I talked about on a recent episode, about the sort of background of the marriage equality fight, the why Supreme Court is no stranger to setting in motion, you know, legal theories that fundamentally change our law. Right. All of our law. So in 1993, the Hawaii Supreme Court was the first court to find a constitutional right to marriage equality. Also there in the Hawaii Constitution and 20 plus years. And many, many, you know, political and legal twists and turns and developments. Later, the United States Supreme Court declared marriage equality the law of the land. So the ice cream court has been sort of showing all of us the way for a long time. And this, I think, is a really important decision that is going to have repercussions both in Hawaii and well beyond.

 

Leah Litman And yet another reminder about the importance of state courts as we are going to the Honolulu of Lake Mendota next week, where there will be an election that will determine control of the Wisconsin Supreme Court. The most important election in 2023.

 

Melissa Murray And an election that we can all take part in, not by voting, but by helping out so we can help out from afar, whether you’re in Hawaii or in Wisconsin or somewhere in between. You can volunteer. You can phone bank. You can make people aware of this election. It’s an off cycle election about the Supreme Court doesn’t get a lot of attention, but it’s really pivotal. Wisconsin is a state that has been gerrymandered beyond recognition. This state Supreme Court is going to have a lot to say about reproductive rights, a lot to say about gerrymandering. And they could use your help in getting out the vote. So if you have some spare time, you can go to Vote Save America, another crooked enterprise and find out how you can volunteer your time there. But again, the importance of state courts and especially the importance of Hawaii. So this is our episode for today live from the Aloha State. We are so glad to be here. I really want to thank everyone at the University of Hawaii, Richardson School of Law, and especially Dean Camille Nelson, Richard Chen, Susan Serrano and the Inouye Committee for inviting me here for a week. It has been absolutely fantastic. I have been so delighted to be here. Thank you so much for this opportunity and for allowing me to bring the ladies with me. So thank you so much. Mahalo. And that’s all we have today.

 

Kate Shaw Don’t forget to follow Crooked Media on Instagram and Twitter for more original content hosts takeovers and other community events. You can also follow us on Twitter and Instagram. And if you are as opinionated as we are, and if you like our show and only if you like our show, consider leaving us a review in your favorite podcast app.

 

Melissa Murray Strict Scrutiny is a Crooked Media production hosted and executive produced by Leah Litman, me, Melissa Murray, and Kate Shaw. It’s produced and edited by Melody Rowell  with Audio Engineering by Kyle Seglin Music by Eddie Cooper and production support from Ashley Mizuo, Michael Martinez, Sandy Girard and Ari Schwartz, and digital support from Amelia Montooth. Aloha.

 

Leah Litman Before we go, we wanted to extend a special aloha and mahalo to Strict Scrutiny superfan, Bob Merce, who has apparently been sharing the strict scrutiny love with the entire island of Oahu. Thank you so much, Bob. It was wonderful to meet you. It was also great to meet the Strict Scrutiny superfans at the University of Hawaii, Richardson School of Law, including Maddy, Joshua and many more. Thanks. And we hope to see you again soon.

 

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