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Kate is joined by Friend of the Pod Steve Vladeck (One First) to break down last week’s legal news, including developments around noncompliance in the lower courts and SCOTUS ethics. Then, Leah and Melissa join to preview upcoming arguments before the Court where the Justices will consider important asylum and Second Amendment cases, among others. Finally, Kate speaks with Elliot Williams about his new book, Five Bullets: The Story of Bernie Goetz, New York’s Explosive ’80s, and the Subway Vigilante Trial That Divided the Nation.

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TRANSCRIPT

Melissa Murray [AD]

Show Intro Mr. Chief Justice, may it please the court. It’s an old joke, but when a 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.

Kate Shaw Hello and welcome back to Strict Scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it. I’m Kate Shaw, your lone regular host for the first segment of today’s show. But fear not, I am not totally alone because I am delighted to be joined by a friend of the pod, Steve Vladeck, who is stepping in as guest host for this opening segment of Today’s Show. Welcome back to the pod, Steve.

Steve Vladeck Thanks Kate, great to be with you.

Kate Shaw Always such a pleasure to have you. So in this opening segment, we’re going to focus on the legal news from the last week. We will then bring you a preview of the February sitting, which starts this week, and that one will include Leah and Melissa. And finally, stay tuned for a conversation that I recently had with author and commentator Elliot Williams about his excellent new book, Five Bullets. Okay, but first up, Steve, let’s dive in to news from the last week. Obviously the top line from the last week was the long-awaited ruling in the case challenging Trump’s big, beautiful tariffs. And in that case, the court struck down those worldwide tariffs by a vote of 6-3, although with some pretty sharp disagreements about just why the tariffs are illegal. We recorded an emergency episode that dropped on Friday, the day the opinion was released. So listeners, viewers, if you want a detailed rundown on our take on that opinion, fire that episode if you haven’t had a chance to listen to it. But Steve, since we have you and there is definitely more to say about the 170 pages of opinions that the court gave us, trying to make the major questions doctrine law, Gorsuch settling scores, the clear message that the only thing more important to John Roberts than executive power is the stock market. What are some of your big takeaways?

Steve Vladeck Yeah, I mean, I wrote about this a bit on Friday in my newsletter. I guess I see, Kate, four takeaways, and you guys have probably already covered all of this in the emergency episode. So big takeaway number one is, you know, this was the first merits case of the second Trump administration. And you know for as much mischief as the court has caused on emergency applications with Trump, and I probably have written more than I care to say about how much if it’s been, it’s a pretty resounding loss for Trump. On the case that the Justice Department chose as the first Merritt’s case. That’s not for nothing. I mean, just optically, the fact that the court was willing to push back, even Kate, if it was for less altruistic reasons, I think is a big takeaway. Big takeaway number two is, I think there’s this continuing split between Justice Barrett and the other Republican appointees on whether the major questions doctrine really is a thing or not. And, you know, I at least read her concurrent opinion. Even though she’s endorsing much of the Robert’s plurality opinion on major questions, to be reinforcing her potentially idiosyncratic view that there’s not much daylight between the major questions doctrine and other existing substantive canons of statutory interpretation. That could matter in future cases, especially future cases where maybe Brett Kavanaugh isn’t gonna Brett Kavanagh. So, you know, doesn’t matter here obviously, probably won’t matter in other Trump cases, but at least in a longer term sense, Barrett’s softness on the major questions doctrine could be a very big deal.

Kate Shaw And let’s pause on that one for one second. So this is this potentially enormously important doctrine that could be wielded in all kinds of directions, right? Like can actually potentially be wielding to important effect if it’s going to reign in overreach by this president. It also is a doctrine that could be wield to potentially really troubling effect if we are ever in a position of having a future democratic president. Like this could be an incredible sort of obstacle to implementation of any kind of meaningful agenda by a democratic president assuming that congress is just not going to do much which i think is a fair assumption for the foreseeable future executive action is going to be how a future democratic president operates and this doctrine could give the court a veto over virtually everything ambitious a democratic President does so i was obsessed of course like with what this means for the next case and i do think it’s important to to focus on Barrett but of course point out, like, you know, Barrett gets you to four if you think the major questions doctrine is another thing, so you definitely still need to count to five. So, okay, so that’s two big takeaways. What are your third and fourth?

Steve Vladeck So, speaking of five, then there is the fact that it’s six to three, and it’s not the six to three you would expect if we told you it was six to 3. I walked out of the oral argument in November thinking that it was going to be seven to two. And of course, as ever, I was wrong about Justice Kavanaugh. The fact that Kavanaagh is in the dissent here, I think, is the latest in a large and increasing body of evidence that he’s just not likely to stand up to President Trump. You know, if we look at, Kate, every single publicly visible vote in a Trump case since last January, the chief and Barrett and Gorsuch have all voted against Trump more than Justice Kavanaugh has. I mean, obviously, Thomas and Alito are less, but, you know, I assume every Trump case starts with two votes in support of Trump. It may be that now most of these cases are started with three votes in supportive Trump and I think that’s a big deal too. For just how much it reinforces how this is really the Roberts and Barrett Court in the cases in which that’s gonna matter. There’s lots more to say about that and why it’s disappointing and why its frustrating, but I think it’s an increasingly undeniable reality.

Kate Shaw I think that’s right. I mean, I guess remains to be seen whether the Cook case bears that out because he seemed pretty skeptical of kind of complete presidential control over the Fed. And so he could well vote against Trump there. But I don’t think that would be an but if he doesn’t, then that is like incredibly powerful evidence that he is as much of a lock for Trump as Thomas and Alito are. But i think you’re right. Once upon a time, you know, six to 12 months ago, if you’re going to say like a six 3 case in which Trump loses, it’s, it would be Gorsuch, not Kavanaugh, who would be a third vote to join Thomas and Alito that you would predict. And I think that that is no longer, we all have to sort of update our priors about kind of Gorsach and Kavanaagh. Okay. So what’s the, what’s the last takeaway? Bye.

Steve Vladeck The other dissenters, I mean, all three of the dissentors, Thomas Alito and Kavanaugh, all were in the majority in Biden versus Nebraska, where the court had absolutely no problem using the major question doctrine to strike down President Biden’s student loan debt forgiveness program. What the heck is the explanation for how this is not that? I mean the, right? And so, just the.

Kate Shaw You mean the non-purely partisan explanation. And like, you know, we’re looking to find anything plausible and…

Steve Vladeck Go on. It’s pretty hard. And struggling. I mean, Kate, you and I have personally been attacked for being like the Pollyannish. Everything at the Supreme Court is principled people, even though we’re not. But here is yet another example, I think, of the justices in the dissent doing absolutely nothing to disabuse people of the view that they’re voting their partisan policy preferences as opposed to being analytically consistent across different administrations.

Kate Shaw Yeah, and for those of us who do care about law, it’s just like wildly disheartening, not the kind of bottom line votes, but just the pure hackery that is on display.

Steve Vladeck I mean, this should have been unanimous. Not because I think, you know, the major question of doctrine is a good thing, but because if we’re being consistent, this is not a hard case. And if we are not being consistent what are we doing?

Kate Shaw Okay, so let me ask one final question, which is, do you have thoughts on the fact that the court just totally punts on the question of remedy? So there have been many, I’m not sure what the figure is now, but big numbers of unlawful tariffs paid under this presidential action, these executive orders, and the court seems entirely unconcerned with how to remedy that. So what do you make of that decision? And what happens next.

Steve Vladeck So you say unconcerned, I say completely befuddled, which is I don’t think that the court’s not concerned. I think they had no idea what to do. And the remedy question wasn’t addressed in the lower courts, it was briefed but not really explored in detail. I think it got one question from Justice Barrett at the oral argument. And so I think two things are true. One, I think that they just didn’t feel prepared to address that question and it already took them. You know, the better part of three and a half months to get this ruling out. But two, you know Kate, historically it’s not that unusual for the court to hand down a major ruling like this and assume that other actors would clean up the mess. My favorite example, and I just taught this in federal courts on Friday, right, my favorite example is Northern Pipeline in 1981 where the court strikes down the entire bankruptcy court system, stays its decision for 18 months and says, hey, Congress, FIX IT! And so the problem here, I think, is not that the court didn’t address remedies, because historically I think that would have been very odd for the court to go that far, is that we live in a moment in which it’s not clear who will. And so I think for now it puns it back to the court of international trade, where there will obviously be really messy litigation about this. But in a world in which we had a function and separation of powers, the question of how to. Operationalize the effects of this kind of Supreme Court rule historically was a question that wouldn’t be answered by the court, it would be answered by Congress. And I think it’s that gap that is back on display in this case.

Kate Shaw I think it’s that gap, and it’s also I think that in a functioning, not just scheme of separated powers, but a functioning executive branch in Department of Justice, you could have the courts essentially shift the onus to the Department of justice to come up with sort of good faith proposals for remedial schemes or to kind of work in good faith on implementing the court’s decision. And there’s no reason to assume good faith on the part of this administration or justice department. And that I think is another potential Long-term effect of this opinion, which is that, of course, this is an enormous loss in name and symbolically and legally for the Trump administration, but in terms of sort of brass tacks, what it means like it’s in their hands what to do. And we have seen them defy lower courts again and again, and we haven’t yet seen it at the Supreme Court level. But if it’s the lower courts doing the implementation, like I’m not sure maybe you’re back in of defiance land.

Steve Vladeck Or at least, or at least if we’re not back in the Supreme Court in six months on the remedy question. Just, and this is the very last thing I’ll say about the dissent. So Justice Kavanaugh’s dissent, which is joined in full by Thomas Nolito, spends a couple pages on how… The built-in sunk costs would be reason enough to come out the other way. And I think that is so giving up the ghost that there’s no principle animating that. That is such a sort of pure real politic like we should rule the other because this is gonna be a mess. That is not how we do law.

Kate Shaw It reminded me, actually, of Trump versus Anderson, the Section 3 of the 14th Amendment case, in which the court, like, pretty clearly is just saying it would just be too messy to implement the disqualification provision of the Section Three of the Fourteenth Amendment, and so we’re just not going to do it.

Steve Vladeck Right, this court saying it’s too hard, it doesn’t really, I think, persuade anybody.

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Kate Shaw So let’s leave it there and kind of this implementation question and potential defiance question I think sort of is a good segue to developments in the lower courts in the last week. So we have seen additional evidence of noncompliance and defiance and actually some maybe meaningful consequences coming from the lower court. So let us start with New Jersey where last week a district court after finding that DOJ had violated one of its orders actually directed the department itself to produce a list of every instance in which administration had failed to comply with a court order in that district since December 5th. In response, the Department of Justice produced a list of over 50 violations across 547 cases. The department, you know, was actually pretty contrite, at least in its rhetoric. It described these violations as accidental. It said, quote, adherence to court orders is a bedrock feature of our justice system. I’m not sure everyone in Trump’s Justice Department feels that way, but that at least was the filing produced in this case. So, you know, a couple things. One, that is a pretty stunning number. I think it makes clear that Judge Schiltz in Minnesota, who recently noted the government had violated nearly 100 orders in just, I think, January in just that district, was not an outlier, that this is a much more widespread phenomenon. So I guess first, sort of, Steve, any reactions to that sequence of events in New Jersey.

Steve Vladeck I guess, I mean, it’s hard to be surprised at this point. I mean I think it’s, you know, Kate, you and I both, I think, talk to a lot of folks behind the scenes, judges, you have lawyers who are practicing these cases and to a person, I think whether it’s the district courts that are in the news, Kate or the ones that are not in the News, they are all deluged with these cases. You know, you had like small district courts that maybe would get two or three of these immigration habeas cases a year that have now gotten a hundred in the last six weeks. And so I think, you know, I understand why folks don’t trust anything this administration says. It is not entitled to any benefit of the doubt at this point. But I also think that at least some of this is a logistics problem. Of their own making. Of their making. And as I think Judge Provenzino pointed out in the Minneapolis case, I know we’re going to talk about in a second, right, one that is not the excuse for the behavior. But I do think that some of this is logistics and incompetence, not malice, where the policy causing all of this was maliciously intended. Absolutely. Right? But where the real problem on the ground is just that there aren’t enough people, there aren t enough lawyers, there aren’t people at ICE who are responding to the lawyers. And the answer has to be sanctions, which I think is where at least we saw in Minneapolis.

Kate Shaw Yeah, so let’s talk about that. And the kind of your observation, I think, crystallized something that had been troubling me, which is like, where those sanctions should be directed, right? Like, so, let’s now talk about Judge Provenzino in Minnesota. So, last week, she found a government lawyer in contempt of court for failing to return the identification documents of a detained immigrant she had ordered released with all of his property. And he did not receive the property that she had directed he be given. And so she actually ordered an actual fine. Of $500 per day until the property was returned. So I do want to know what you make of this development. So judges, as you have documented and we’ve talked about, they have been bending over backwards to issue warnings, to give the government time to correct, to sort of try to use kind of shame and public condemnation. But now we’re talking about actually monetary sanctions. So like, is this an important ratcheting up of the kind of seriousness with which judges are going to take this kind of non-compliance, whatever the cause you were just kind of alluding to, sort of, is it a good development? Are we going to see more of it? And are the right people sort of on the hook right now?

Steve Vladeck Yes, yes, and no, so so I think it is a good and long overdue development I think we are gonna see more of it, and I think its the wrong people. Yeah Right so in this case. It’s the it’s the random JAG lawyer Who was you know assigned as a special assistant US attorney because again back to our last exchange? They don’t have enough lawyers Who’s being fined personally right $500 a day for Kate what by all accounts are? Sort of a lack of Hustle and a lack of cooperation over what she has zero control Yeah, and you know part of the problem here is that not that long ago. I mean Kate. You’ve been in the government I haven’t right but like when a DOJ lawyer would call an agency and say you must do this by this date The agency would jump yeah That that and if there’s any question the the attorney general would call the secretary or the head of the agency and Say yo, you must jump And this is what happens when you have a culture of the Department of Justice in which that’s not something that’s going to wield their institutional authority to achieve. And so, you know, I think it’s if there’s no one else to find, you find the lawyer, but it’s not I think at the end of the day, the lawyer’s immediate fault.

Kate Shaw And the culture at DOJ is a big part of the problem, but in some ways, an even bigger part of the problem is the culture and the DHS components that are just completely uninterested. And you know, you’ve always had kind of different institutional cultures and the FBI versus the CIA versus DHS versus DOJ. And so that fact is not new. But a lot of the details are very new. And I do think that these are you sort of see contempt for courts in the rule of law from DOJ and DHS, to be sure. But I don’t think in equal amounts, and it does seem as at least some line lawyers and know, some maybe mid-level leadership at DOJ would like to comply more fully at least than they have been with what courts are directing them to do, and they are getting no cooperation from the Department of Homeland Security. But I do think that getting high-level officials in court the way Judge Schiltz initially threatened to do I think is something that courts should revisit and actually make happen.

Steve Vladeck So the problem here is that the JAG lawyers, I think, are in an especially vulnerable position because resigning as Special Assistant U.S. Attorneys can only happen if they resign as JAG Lawyers. They would have to resign their commissions to get off of these cases. And listen, some of them may already have approached or crossed that red line. But that’s a little different to me, Kate, from someone who was already working for DHS, right, and walks in the court, like the, I don’t remember her name, but the woman who had the breakdown.

Kate Shaw Yeah, her name. That’s right.

Steve Vladeck That’s right. I actually feel a little more sympathy for the JAG lawyers, because this is not anything they have any control over because they’re subject to orders. The best thing I think we can say is that Judge Provenzino is on exactly the right track, but that I think that the focus has to be higher in the chain of command, and that will necessarily provoke appeals. The administration has already fought tooth and nail about preventing you know, forcing agency heads or senior lawyers to have to come to court. But I think that’s a fight that’s now worth having if you’re the lower federal courts.

Kate Shaw And kind of on the topic of the lower federal courts more broadly, and sort of specifically what tools judges have to shore up their authority, defend themselves against threats, we got this really interesting advisory opinion from the Judicial Conference this past week. And you wrote your latest One First Street bonus newsletter about it, and you titled it Federal Judges Speaking Out. So first, can you just briefly tell us what is the Judical Conference, and then can you tell us a bit about that advisory opinion?

Steve Vladeck Sure, so the Judicial Conference is the policy making arm of the federal judiciary. It is formally a group of 26 judges, so it’s the chief judges of each circuit court. It is one district judge from within each of the circuits. There’s one, I think, bankruptcy court representative and then I think and then the chief justice himself. And, you know, this is the body that’s supposed to sort of gather on a regular basis to identify problems of judicial administration, to make recommendations about how we should fix things. And it has a bunch of committees. And one of the committees is called the Codes Plural of Conduct Committee, which is tasked with providing advisory opinions on the scope and applicability of two different codes of conduct, of the Codes of Conduct for Federal Judges, which is what applies to every federal judge other than the nine justices, and the Code of Conduc for Federal judicial employees. That’s why it’s plural. So the Cods of Condut Committee’s latest advisory opinion Was about when and how federal judges can speak publicly and or participate in civic engagement and when they can’t. And what I thought was really striking is most of the four page opinion, Kate, is a rehash of prior opinions where it’s like, okay, you’re not saying anything new, but almost every place where the committee is saying something that they’re not citing to a prior opinion, they’re speaking in support of judges speak it out to defend other judges who have been unfairly attacked and or persecuted, the rule of law, or judicial independence. And, you know, I don’t think that this is a committee that doesn’t do anything by accident. This is the same committee, for example, that said that, for example judges should stop going to federal society events and then got overruled, right, that opinion was withdrawn. It strikes me that this is a message that was subtle, but also unmistakable to the folks who are used to reading these opinions that the committee wanted to signal that it is okay for federal judges to raise alarm bells publicly, as long as it’s not about specific cases, as long as they’re not, you know, suggesting a thumb on the scale on an issue or a case. And Kate, I think some of that’s a reaction to some of the criticisms that we’ve seen from the right. As the New York Times, for example, has been reporting on an anonymous survey of federal judges as MSNOW has interviewed federal judges who have been very critical of the Supreme Court’s behavior. And to me, it’s a very positive response because it’s reminding everybody that the canons don’t prohibit federal judges from speaking publicly and or through their opinions in defense of each other and in defense to the rule of law.

Kate Shaw I agree, it felt significant, the fact that the Chief Justice is involved felt potentially significant. I mean, I think we have been enormously and I think, you know, fairly critical of the Chief and the courts kind of failure to feel like they have the kind of protect and have the backs of the lower federal courts against this really unprecedented onslaught attacks from the administration in particular. And that really contrasts with the first Trump administration in which, you know, Roberts occasionally bestirred himself to defend the lower federal courts against attacks by politicians and even the sitting president. And it felt like maybe this was a sign that the tide was turning in some way, that the chief understands that the Supreme Court itself hasn’t protected lower federal and you know, that may be more needed to be done in defense of lower chords. So that’s a very rosy gloss on this, but I hope that there’s something to it.

Steve Vladeck So I would just say, I mean, so the chief, yes, I mean the chief’s role here is sort of in not disapproving. Right. He’s not on the committee. I would say there’s actually an even more positive sign of the chief be stirring himself behind the scenes, which is how he handled the Boasberg misconduct complaint. You know, this was, I don’t want to sort of go too far in the weeds on this, but right, that the chief sort of sent that to Jeff Sutton when he had a choice of federal judges to send it to. I think knowing what Sutton would do with the complaint, also the administrative office sent two letters to the Senate Judiciary Committee that was basically trying to pour cold water on the substantive allegations against Chief Judge Boasberg. That could not have happened without the chief’s at least implicit approval. So You know, there is this disconnect between what the chief is doing in his own words and what he’s doing behind the scenes, but at least behind the scene, there are some signs of life. Some signs of life, okay.

Kate Shaw Now, in sort of less, I think, positive signs from the chief, we had a development last week on, you know, a topic kind of related to Supreme Court ethics. And when you say that, you might think, oh, like, maybe they decided to do something. And of course, the answer is yes, but not something particularly constructive. So the backstory here is that, and this was all detailed in Chris Geidner’s law dork newsletter that had a very detailed post about this new rule adopted by the court involving stocks held by the justices. So the background here is that some Supreme Court justices hold individual stocks, seems like madness to me, but at least the chief and Alito still do that. And this can lead to recusals that happened at the last minute when Justice Alito had to recuse from a case involving oil companies and the Louisiana coast. So maybe in response to this sequence of events, or just maybe kind of by pure coincidence, Roberts decided to take action on the question of stock ownership by justices. Steve, what did Roberts decide to do?

Steve Vladeck Yes. So now parties must include the stock ticker labels for any company with an interest in a case and not just the names of the companies, which I think is designed, Kate, to facilitate the court’s software, which they run all these briefs through to screen for conflicts, because heaven forbid people actually read these things themselves. So the great stock tickers improvement of twenty twenty six. One might suggest that the easier way out of this is to just not have the justices own individual stocks.

Kate Shaw Not that difficult, but in some ways, like, this is, I think, kind of like the recent revelations of the chief’s, you know, use of NDAs with staff and staff members and clerks, kind of an exercise in missing the point, but also kind of a reminder that they are fully capable of implementing rule changes when they see fit. And so that is a potential pressure point just, you know, to actually get them to do things like require divestiture from individual stocks, which would be the easiest thing in the world for them to do.

Steve Vladeck Well, and just, I mean, but again, at the risk of trying to be rose-colored again, here though, we have yet another example of the court responding to a problem. And it’s like, it’s remarkable that for all the folks who I think are, you know, there’s a difference between being cynical about the court being the do-mers and, you know, you don’t have to actually look that far to find evidence of the Court actually being responsive to certain kinds of problems, Kate, even if the responses themselves are either bewildering or, you know, do grave injustice to the concept of half measures. It’s still it’s still something.

Kate Shaw It is just like their kind of non-code of conduct, which was in substance just wildly disappointing and also important evidence that they listen and sometimes care about sufficient volume and intensity of public criticism. And so it’s really, really important to keep the pressure on. All right. So that’s about all the time we have for this news topper. This is actually had. Unusually kind of high frequency of notes of optimism, but I guess it’s you and me, Steve, and so maybe that’s to be expected. But I did actually want to end on, which again, like we’re very critical, like I’m going to, I feel the need to continue to remind of that because I certainly feel like we are, but also that like there are these signs of life that I think we’re both kind of drawn to identifying. But I did want to note, I think, a good and positive development out of UCLA last week, which is that the Trump administration has dropped its appeal. Of a preliminary injunction that was issued last fall regarding a settlement proposal that the Trump administration had issued to UCLA. This was like in addition to this $1.2 billion fine that the administration sought to impose on UCLA for a number of reasons related to gender affirming care and allegations of anti-Semitism, a challenge brought by UCLA faculty and a big, big win and I think a kind of important piece of evidence in the kind of continuing story of the importance of resistance and not capitulating or surrendering in advance like sometimes when you fight you win and you know when you don’t fight you never win and so I think that is like an important takeaway from UCLA. I don’t know Steve if you have any final thoughts before we break.

Steve Vladeck Uh… Just i agree with all of that and just one can be clear-eyed about how much really ugly bad stuff is happening and still want to highlight where the law is working and where you know resistance is working and where legal opposition is working that’s not by any stretch to say everything was fine it’s really not really not but it is to say that there are reasons to believe that the in deeply imperfect and flawed ways, is still doing a heck of a lot more than it may appear at first blush. Not nearly enough, but we’re still so much better off with all of these interventions by the courts than we would be without them.

Kate Shaw Yeah, and a lot of the solutions lie in kind of the worlds of organizing and politics and not in law, but that law does have an important role to play and that there are little moments in which it is working and that is critically important.

Steve Vladeck And now we need to turn them into bigger moments.

Kate Shaw Yeah, that’s right. Okay. Well, Steve, always such a pleasure to have you. Thank you so much for joining me today.

Steve Vladeck Thanks for having me. Thanks everybody.

Kate Shaw Listeners, just a heads up on another podcast we are sure that you will enjoy. On the latest episode of Runaway Country, our friend Alex Wagner is joined by the amazing historian Heather Cox Richardson to unpack how Donald Trump has reshaped Washington, not just politically, but also physically. So they dig into what changes to DC’s built environment reveal about power and legacy and how leaders try to leave their mark. The episode is out now. Listen to Runaway Country wherever you get your podcasts or watch on YouTube. So we’re now going to take a quick break. And after the break, Leah and Melissa will join me to preview the cases the Supreme Court will hear in this upcoming sitting.

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Kate Shaw After a really big January sitting that involved cases on the future of trans rights, the Second Amendment and whether it will cannibalize property law and whether the court will allow the president to fire a governor of the Federal Reserve, spoiler, likely no, because the stock market, that’s law, the court actually has a lighter February sitting in store for us.

Melissa Murray Don’t worry, though. I’m sure they’ll still do some nasties on the shadow docket. This is not an example of a court quiet quitting. They probably will even get around to releasing some opinions and argued cases, so gird your loins. The February argument session, though, does look pretty light, as Kate suggested. And that means that you don’t get to take the day off and sleep on SCOTUS, though because the march sitting is another doozy with the scotus. Many, many important election law cases about whether states will be allowed to count ballots that are received after election day. There are cases about asylum and whether the federal government can just insist that people stopped on the Mexican side of the border at the border cannot raise asylum claims. And of course, there is the challenge to birthright citizenship. So this, listeners, is just the calm before the storm.

Leah Litman It does, however, mean we get to spend a little bit more time previewing some of the February cases, and we’re going to use some of that extra time to introduce you to one of the March cases, Noem v. Al Otro Lado, the asylum case that is hugely significant and, at least in my view, seems to be kind of sliding under the radar. So of the Feb. Cases, we’re gonna spend most of our time on United States versus Hemani. A Second Amendment challenge to a federal statute that prohibits the possession of firearms by someone who is an unlawful user of or addicted to any controlled substance. The theory that the court below and the one the government relied on in this case is that the petitioner owned a handgun for self-defense, but also consumed marijuana a few days a week. And therefore, he was in violation of this law. And if you’re thinking, that sounds weird, bad, unconstitutional, you know, like I’m sympathetic to that.

Melissa Murray Well, there’s a slight problem. The facts are a little more complicated. The agents also found some, a nittedly small amount of cocaine, so exactly one gram. I don’t even know if you can snort that off a toilet seat. I’ll have to check with someone who knows. Anyway, the federal government says Hemani, who is a dual citizen of the United States and Pakistan, they say that his, quote, actions have drawn the attention of the FBI. And the government alleges that in 2019… A search of Hemani’s phone at the border crossing revealed communication suggesting that he was poised to commit fraud at the direction of suspected affiliates of the Iranian Revolutionary Guard Corps, a designated foreign terrorist organization. They also note that in, quote, 2020, responded and his parents traveled to Iran to participate in a celebration of the life of Qasem Soleimani, an Iranian general and terrorist who had been killed by an American drone strike the month before. The defendant’s mother was displayed on video telling an Iranian news agency that she hoped that, quote, her two sons, including respondent, would become martyrs like Soleimani. They also argue that Hemani maintains weekly contact with his brother, who attends an Iranian university that the United States government has designated as having terrorist ties, and allegedly that he told law enforcement officials that if he knew about an imminent terrorist attack by a Shia brother that would kill innocent people, he would not report it to the authorities.

Kate Shaw Things are pretty messy in this case. So these are allegations that are in the government’s brief. But the petitioner slash defendant doesn’t really dispute them and instead suggests that the government has made all these allegations, maybe true ones, but hasn’t actually taken action based on them. But it is not totally clear what the permissible action would be.

Leah Litman So this, methinks, like United States versus Rahimi, might be a case where the defendant is the kind of person this Supreme Court thinks can and should be barred from having a firearm. Rahimi of course was the case that involved a federal statute that prohibited persons subject to certain kinds of domestic violence restraining orders where they were found to pose a threat to another person, prohibited their possession of a firearm.” So the district court and the Fifth Circuit in this case, Hemani’s, held that this statute was invalid as applied to Mr. Hemani. And because we are in the worst of timelines, this case is ostensibly governed by the court’s deranged decision in NYSRPA, New York State Rifle and Pistol Association versus Bruen, which held that in order to sustain a firearm regulation that infringed on the Second Amendment right. The government would have to show that a gun control measure fell within the nation’s tradition of firearm regulation.

Kate Shaw All right, so let’s dive into the history. The petitioner’s brief argues that because the issue of firearms and intoxicants was something known to the framers, they were familiar with both, the government has to show a history of similar regulations that were addressed at this issue. The government concedes that the historical precedent for disarming intoxicated individuals cannot justify this prosecution because the laws prohibited carrying or using but not keeping firearms. So instead, the government points to a law that it says prohibited possession by, quote, habitual drunkards. That seems to push the issue into whether the government is construing present-day firearms bans to apply to addicts or people who abuse drugs or instead that merely use. The petitioner says that the habitual or common drunkard’s law or laws didn’t restrict possession by people who regularly drank alcohol. The government also says that if it can show the government imprisoned people for habitual drunkenness, then it would follow. That the government could impose the lesser restriction of prohibiting their firearm possession. I just have to stop and say I just can’t believe this is what we have to do under the guise of constitutional law and short rant.

Melissa Murray All right. Well, I’m here to tell you it is. Ugh, whether and which of these analogies will actually prevail at this court is really just a game of red pill, blue pill, as this court decides whether it’s going to apply the Bruen version of the Bruen test, which requires an historical twin, as it were, or the Rahimi version of the Bruen test, which doesn’t require the showing of an historical twin. Rahimi, you’ll remember, upheld a firearm restriction. On persons subject to domestic violence restraining orders where they were found to pose a threat to another person. And much of the tenor of the oral argument in Rahimi was along the lines of, duh, you have to be able to prohibit firearm possession by people subject to Domestic Violence Restraining Orders. It says violence in the title of the restraining order. And this led to Justice Jackson making this very pointed but clarifying observation about what was actually doing the work and determining whether the court would say, oh, we only need a pretty general similarity, like laws that disarm bad people, or whether the Court would require the government to provide a more precise and similar analog. Because if it is the former, a general analog, then it’s really about modern sensibilities driving the analysis, not about history and tradition. And it also seems to be modern sensibility that drive the choice of which test, the Bruen-Bruen test or the Bruen-Rahimi test, you actually apply. So let’s hear from her here.

Clip What if we had a hypothetical in which we actually determined based on the historical record that domestic violence was not considered dangerousness back in the day? I just don’t know what we do with that scenario.

Clip So I think in that scenario, you would recognize that is it is consistent with the Second Amendment’s original and enduring meeting that you can disarm dangerous people and the conception of what regulations that permits today is not controlled by founding era applications of the principle.

Clip Then what’s the point of going to the founding era? I mean, I thought it was doing some work, but if we’re still applying modern sensibilities, I don’t really understand the historical framing.

Leah Litman So as I was reading into this case, I saw that one of the amicus briefs on behalf of Second Amendment scholars arguing in support of this gun control regulation was filed by Greg Costa as counsel of record. And if that name sounds familiar, Costa is a former Fifth Circuit judge who basically said, boys, bye to his colleagues during the Biden administration. Like, Costa out. I can’t handle this BS anymore. And I just found that interesting. So we have been kind of talking about some of the oddities of the Second Amendment and how it might work as applied to this particular case. And I think in part because of what seems like an intuition that maybe this Supreme Court isn’t going to be that sympathetic to this individual’s Second Amendment rights, the petitioner in this case has as their first argument in the brief. That the statute here is unconstitutionally vague because the term, quote, unlawful user is ambiguous and susceptible to too many different interpretations. So I also wanted to observe that as we were talking about the government’s defenses and pointing to these habitual drunkards’ law, the federal government, the Trump administration, the one that warned us that Kamala was going to take away guns. This administration, this federal government, is arguing that this law comports with the Second Amendment. And it’s not just this, but also some recent-ish examples that have made me wonder if we are seeing a Second Amendment realignment. So here is a clip of Donald Trump, who apparently speaks for the entire executive branch.

Clip That being said, you know, you can’t have guns. You can’t walk in with guns.

Clip What about the second amendment? Listen, you can’t walk in with guns. You can’t do that.

Leah Litman And here is some box wine expressing a similar view.

Clip You bring a gun into the district, you mark my words, you go into jail. I don’t care if you have a license in another district, and I don t care if your a law-abiding gun owner somewhere else. You bring the gun into this district, count on going to jail, and hope you get the gun back.

Leah Litman Now, obviously it might not be a realignment so much as a reversion to their general rule, which is their people have rights and people who disagree with them or don’t look like them do not, but just wanted to flag that.

Kate Shaw Yeah, it’s somehow figuring out for these justices to sort of try to synthesize the insane history and tradition test of Bruen with the like, for my friends, everything and my enemies, the law, kind of overarching constitutional theory of this Trump administration. I think it’s like going to be a little bit challenging, but it does feel as though that is what we are seeing. And whether the court is like, no, we’re going to try to do something that seems more law-like or just cosine. The For My Friends Everything, the kind of a campaign of we get to decide who gets guns after decades of suggesting that it’s the liberals who want to take some people’s guns, you know, I think is going to be a challenging undertaking intellectually.

Melissa Murray Other cases that the court will hear in February include Havana docks versus royal Caribbean cruises. And this is about the meaning of the Libertad Act, a federal law that governs relations between the United States and Cuba. The law creates a private right of action, which is an authorization to bring a lawsuit for U.S. Nationals who have a claim that their property was confiscated by the communist regime in Cuba. And it allows them to sue the persons to traffic in that property. The question in this case is whether the cause of action applies where the defendant trafficked in property confiscated by the Cuban government when the plaintiff has a claim to that property, or whether instead the cause-of-action applies where the defendent trafficked in the property that the plaintiffs would have continued to own at the time of the trafficking had there been no expropriation. We should note that Chris Landau of Kirkland Ellis filed petitions before becoming deputy secretary of state in the second Trump administration. Within the department that is quote unquote, running Venezuela and threatening Cuba. So also kind of awkward moment.

Clip Yeah, look, if I lived in Havana and I was in the government, I’d be concerned, at least, a little bit.

Leah Litman I just thought this was interesting. Like, I’ve been in this business even before you guys. And maybe, right, that kind of helped bring him to the attention of the Trump administration. Interesting. Yeah, I mean, who knows? Everyone has an origin story. Why not this one? Yes. So another case the court is going to hear is ExxonMobil versus Corporacion Cimex about whether the Helms-Burton Uh-uh. Abrogates foreign sovereign immunity in cases of Cuban instrumentalities, or whether plaintiffs instead must show that their case falls within an exception to foreign sovereign immunity under the general federal statute governing foreign sovereign immunity, the Foreign Sovereign Immunities Act. I love when it’s a theme week. Yes.

Kate Shaw Okay, next up, Enbridge Energy vs. Nestle is a case about whether district courts can still hear cases that are removed to federal court, that is, taken from state court to federal court by the defendant, where the case was eligible to be filed in federal court in the first instance, if the defendant didn’t remove them within the 30 days required under the removal statute.

Melissa Murray The court will also hear Pung versus Isabel County, Michigan. That was easy to pronounce, not like the Louisiana county that you all decided to get our mentions about.

Kate Shaw But anyway, no, it’s actually is Isabel. Right. Isabel. Anyway, this is a lot of ground here, people. It’s hard. It’s it’s hard sometimes we mispronounce.

Melissa Murray Give us some grace, honestly. All right, this case is about the legal limits on the government’s ability to take and sell someone’s home in order to satisfy a debt the homeowner owes to the government. One issue in the case is whether, if the sale results in a surplus and the government keeps the surplus, if that is a taking. Whether the case presents that issue, however, kind of depends on the second issue in this case, which is how to determine the value of the property taken. Specifically, the plaintiff here alleges that the government sold her house for a fraction of its real value. Whereas if they had sold it at fair market value, they would have obtained way more than the tax debt the plaintiffs allegedly owed to the government. The plaintiff also says that the tax debt was erroneous and she never actually owed the debt.

Leah Litman In this case, Hunter v. United States is about the scope of what are called appellate waivers. So often when a defendant pleads guilty and receives probably a more lenient sentence than they might have received had they gone to trial, the plea agreement forgoes certain options the defendant might otherwise have had. One common term in a plea agreement is an appellant waiver, a provision that generally Waves relinquishes a defendant’s right to appeal their sentence. Now, courts have said that those waivers do not prohibit a defendant from raising a Sixth Amendment claim that alleges they received ineffective assistance of counsel, in part because if the defendant was represented by ineffective counsel, then the plea agreement itself would be legally dubious. Courts have also allowed defendants to raise the claim that they were sentenced to more time in prison than. Law permits, even if, again, there’s an appellate waiver in the plea agreement. The question in this case is whether a general appellant waiver also prohibits a defendant from raising a claim that he was unconstitutionally sentenced to have to take mandatory medication for mental health issues. There’s also what seems to be a threshold question that is a little bit more generally applicable about whether the appellat waiver should even apply in cases like this one. The court that sentenced the defendant and approved the plea deal tells the defendant at the end of their sentencing, without objection from the government, that they, the defendant, have, quote, a right to appeal.

Kate Shaw Finally, we have Montgomery versus Caribe Transport LLC about whether federal law preempts a state common law claim against a freight broker for negligently selecting a motor carrier or driver that injures the plaintiff. Okay, so as we said, you know, not the big headline grabbers, but some interesting technical legal questions and that does it for the February calendar. But we did wanna give you a heads up about the important asylum case the court is hearing next month that we fear has crept under the radar and that is known versus al otro lado. The question in this case is whether an individual who is stopped on the Mexican side of the U.S. Border arrives in the United States within the meaning of the Immigration and Nationality Act. That in turn affects whether an individual can apply for and claim asylum because the INA allows an individual who quote arrives in U. S. To apply for asylum and provides that they must be inspected by an immigration officer. People who are physically present in the United States can also apply for Asylum.

Melissa Murray This particular case arises out of a long history of efforts to restrict asylum. So under the so-called metering rule and asylum transit rule, the federal government would only consider asylum cases for non-Mexicans who traveled through Mexico if they had applied for asylum there. Then at the border, officers would only allow people who were US citizens that had valid travel documents or asylum seekers who had complied with the asylum transit rule to actually enter the United States. The courts below concluded that the phrase, arriving in the United States, meant someone who approaches a port of entry. The Ninth Circuit also said that those practices violated another law, 8 USC section 1225, that requires government officials to process their request.

Leah Litman The Supreme Court’s decision to take this case is hugely concerning. There is no circuit split. It is the only federal appellate decision on the issue. And the metering policy that led to the initial challenge has been rescinded, as was the asylum transit rule. But the Trump administration still wanted the Supreme Court to take this case, and the court did. Likely because the Trump Administration wants to adopt a categorical ban on applying for asylum. By people who were stopped on the Mexico side of the US-Mexico border, the Solicitor General’s cert petition, that is the document asking the Supreme Court to take this case, wrote fairly ominously, quote, the decision thus deprives the executive branch of a critical tool. And it argued, this administration should retain the option of reviving that practice.

Kate Shaw If the Supreme Court rules for the federal government, that would create a huge incentive for an administration like Trump’s that wants to basically end asylum to stop people on the other side of the border. Which again, if SCOTUS rules for the federal governor would mean the administration wouldn’t even have to consider an individual’s asylum claim. We will definitely have more to say about this case when it is argued in March.

Melissa Murray Guess what, Stricties, we are, again, just weeks away from seeing you, our amazing Strict fans, in person on the West Coast. If you have not gotten your ticket for the LA show at the Palace Theater on March 7th, I’m sorry, but what are you waiting for? Like, get on it. We wanna see you and you wanna see us. We are gonna have the most, most fun. Super fun games, it’s gonna be amazing. You’re going to be so glad you came. Am I right, Leah?

Leah Litman So yeah, you are for sure right. I am so excited for this West Coast trip. I feel like I have been anticipating it for years and certainly months. I’ve basically already mapped out all of the sugar I will be eating in preparation for the show. So I am actually out of control by the time we even hit the stage.

Melissa Murray I’m telling you, this is going to be insane. And we’re gonna have awesome giveaways. It’s gonna be so much fun. Seriously.

Leah Litman I sent Kate, Melissa and Melody and Michael versions of the shirts that I will be bringing and I will just say their teenagers stole their shirts, which is basically the biggest compliment and sign that these shirts are super awesome.

Kate Shaw They’re going to school the next day like yeah, I never had a chance with that with one of those shirts. Yeah, they’re great

Melissa Murray So get your tickets at crooked.com forward slash events and then ponder why it took you so long. Just really think about it and then question your choices. That’s all. Be better. Be best.

Kate Shaw Let’s take one more break, and then I’ll be back with Elliot Williams to talk about his new book, Five Bullets.

Melissa Murray [AD]

Kate Shaw For our final segment today, I’m delighted to be joined by Elliot Williams to talk about his new book, Five Bullets, the story of Bernie Getz, New York’s explosive 1980s, and the subway vigilante trial that divided the nation. Elliot is a CNN legal analyst and regular guest host on NPR and Sirius XM. He is also a former deputy assistant attorney general at the Department of Justice, among other things. Elliot, welcome to Strict Scrutiny.

Elliot Williams So great to be here, Kate.

Kate Shaw So happy to have you. So let’s dive right in. Elliot, you are from Brooklyn, where I now live, but you no longer do. And you grew up in Jersey. So the events in this book loomed very large during your New York area childhood. I’m from Chicago, even though I now live in New York, so it wasn’t as close to home for me. But I definitely remember hearing about Goetz and his trial. But I learned, of course, a ton from this book. For our listeners who did not grow up in New York, or maybe our younger listeners who just like, don’t really know much about the story, what happened on that New York City subway car on December 22nd, 1984?

Elliot Williams Right. And also for viewers who don’t recall the lyrics to Billy Joel’s We Didn’t Start the Fire with foreign debts, homeless vets, AIDS crack, Bernie Getz. It was an event that was regarded as among the pantheon of some of the biggest moments of the 20th century. And a lot of people may not remember it, but Bernard Getz was a quirky loner who lived in the West Village of Manhattan and had been mugged once before and always carried an unlicensed firearm with him everywhere he went. There were four young, unarmed black teenagers on the subway, on the same car he got on. They were rowdy, they were acting up, but certainly did not mug or assault anyone. But a number of the passengers thought, hey, these guys are bothersome, perhaps a nuisance in some way. One of them approached Getz and either demanded $5 or asked Getz for $5. Sir, can I have $5? Getz. Fearing that he would be mugged, immediately pulled out his firearm and shot all four of them in somewhat rapid succession, with the last one possibly even having stood over and said, you don’t look so bad, here’s another, and shooting him in the chest. He ran away, ultimately turned himself in after nine days, but became a cause celeb. Almost in a polarizing case, people really rallied behind, many people rallied, behind this individual. At a time when New York was just very unsafe and rough and people saw him, many, as an Avenger, as almost as Batman of sorts.

Kate Shaw Sort of paint that picture of 1980s New York as a dangerous place. And many people really felt that. And so they attached themselves, right? They sort of saw something of themselves in Bernie Getz in a way that was really troubling to read about but is very real people. And it was kind of a cross-racial coalition of supporters, which is one of the very interesting. Complex dynamics, right? This is not just a story. It is not not a story, but it is not just story about an angry sort of white man who’s kind of a recluse and who is scared of these four black teenagers and decides, you know, to act on that fear in a way that only white New Yorkers, like, identified with. He had a lot of supporters across the spectrum, right?

Elliot Williams He really did. And just to put a finer point on how rough New York was at the time, this wasn’t the New York or isn’t the new York of the Labradoodles and kombucha and lululemons on every corner that we think of when we think about New York today. I mean, the homicide rate in New York was hovering just below 2,000 a year, which, you know, by way of comparison, you’re talking about three or 400 homicides a year in New York. The graffiti, the litter, the mismanagement, the seeking bailouts from the city, it was just a offer. Place. And yes, an odd multiracial coalition did seem to get behind Getz who, you know, I quote a number of black people in the book even saying, you know, I would have done the same thing he’d done. Now, again, it became very abstract. A lot of people weren’t on the train. And also, it’s really easy to look in to see this potential hero from a situation. That you were not in, right? And that sort of lifted him up. Now I will say this, certainly there was a multiracial coalition of sorts around Bernard Getz. However, the fact that he was white certainly made it much easier to make him a hero. And a point I make throughout the book Five Bullets is what if the races of these individuals were reversed? And I almost challenge the reader to really search within yourself and think when your knee-jerk reaction were you to hear. That a black man had shot four white teenagers, what would you think? And I think people are quick to say, oh, I’d regard everything exactly the same, and I just don’t believe that’s the case, at least certainly in 1984 and even today.

Kate Shaw Absolutely, then, now, and you both pose the question and have a number of people really articulate that explicitly in the book. Okay, so 1980s New York is sort of the subject of the book, and I kept thinking about just how wildly current so many of the dynamics in the books are. It really does feel like the 1980s are present in all kinds of ways right now. So partly I think I read this book. Kind of quick on the heels of having read Jonathan Mahler’s Gods of New York, which is also kind of covering a similar period in New York history. But everything from like the rise of Donald Trump, who is not like a central character at all in the book, but does show up, to the kind of politics of fear and anxiety to Rupert Murdoch, who is then, you know, stewarding the New York Post rather than Fox News. But it just feels like we are living right now, either like in a version of the book. Or, you know, the kind of logical outgrowth of much of what is in the book. And you know you actually make that point explicitly sort of connecting Getz to Trump in some ways near the end of the book in a passage that kind of just wanted to ask you to read because despite what sort of what I what I was just saying about it is a striking aspect of the books that it is a more complex picture in terms of who supported and who condemned Gats. That I think maybe I realized at the time, there is also a straight line between the particular style of racist and reactionary politics that gets in many ways embodies to Donald Trump today. So do you mind reading that passage for me?

Elliot Williams Of course, and yeah, and it’s absolutely it’s not just right. I mean, it’s fear based reactionary politics. So here’s from toward the end of the book. If gets his reasons for mistrusting those in power sound familiar, they should. The notion that has been a thread undergirding about American politics for at least a generation, reaching its high point with Donald Trump’s second election to the White House in twenty twenty four. One of the most devastating campaign ads in recent memory featured a parade of grainy images. Of transgender inmates over the voice of Vice President Kamala Harris speaking about trans issues. The tagline, Kamala is for they them, President Trump is for you, cleanly captured gets his animating principle decades after he became vocal about it. Half a century later, transgender inmates or MS-13 members pouring across the border in caravans can be swapped for black crime and represent largely the same thing, a menace driving public fear that politically. Correct elites refused to even name. Bernie was anti-woke before being anti-Woke was cool.

Kate Shaw I just, when I read the book and then just now when you were reading that passage, I just like the William Faulkner quote, like the past is never dead, it’s not even past. It was just like so front of mind.

Elliot Williams Well, I would just say one more thing. It’s the issues we live with today, vigilantes, race, fear in cities, how afraid we should be of cities, which all of Minneapolis, Washington, D.C., and Chicago know are all about what Washington thinks of cities. Literally, the people are the same as well. Rudy Giuliani, Rupert Murdoch, Al Sharpton, the National Rifle Association, which are key players in the book, literally used the events in 1984 to bolster the careers they have today.

Kate Shaw No, Giuliani was like a really serious lawyer back then, and it was just like kind of wild to be reminded of the fact that that was the case. Wait, one more person you didn’t just mention, but I do want to ask you about for a second, is Curtis Sliwa, who, you know, people locally are, he’s probably front of mind for folks who remember that he just ran in the last New York City mayoral race, and they kind of know him as this sort of older gentleman with the beret and a lot of cats. But that’s maybe all people know about him. Can you say a few words about Curtis Lewa for the uninitiated?

Elliot Williams Fascinating figure, for lack of a better way to put it. So he founded in the early 1980s, or late 70s, this organization called the Guardian Angels. And it’s a, for a lack of better term, vigilante group. They are a public safety patrol, largely made of black and brown teenagers around New York, but 50 cities worldwide now, that seeks to, at least according to them, fill in where the police failed. And I interviewed him a bunch through the book. And he regards the fact that the guardian angels even exist as indicative of the failures of the NYPD and policing generally, that if they did their jobs, we wouldn’t have to step in. If the mayor cared about public safety, we would not have to stop in. And he gave me many colorful at best and almost racist quotes at worst throughout the book, talking about, because he was part of the trial team. He was in effect the security. Was explicit about the fact that the defense team really wanted to stoke the racial fears Of the jury and they played into that and but needless to say he has been a player On the new york scene certainly for decades He he and bernard gets to run into each other quite a bit believe it or not at pro marijuana legalization rallies They’re big cannabis guys both both of them

Kate Shaw New York was wild in the 80s, and still is. So you talk to Salivo, but you also talk to Getz a lot. And I, yeah, there’s, casually, at one point, you ask him about this really, really racist statement that he made that was not admitted in the criminal trial but was admitted in a civil trial, if I remember correctly. And you ask them to explain that. He basically says, I was high as a kite, so I don’t even know what I was. I mean, anyway, he, I guess, has been a big marijuana guy for a long time. But yeah, so talk for a minute about your decision to interview Getz. You talk to him a lot over the course of.

Elliot Williams I did, and I really wanted to make it a complete work, not an essay, not a polemic, not all the terms, right? And I felt that completeness would have required talking to him, not validating him, not platforming him as some people might say, but I wanna hear what Bernard Goetz has to say. Now to be clear, I made perhaps dozens of attempts to contact the surviving two. Young men, and they declined to be interviewed for the book. And I understand that. It was a traumatic experience 40 years ago. They’ve tried to move on with their lives. One of them, to some extent, has. But I did talk to Getz. And the most remarkable thing in the conversations with him was the utter lack of self-reflection that came through. And I would have even accepted, had he said, I was scared on the subway that time, that day. New York City was a scary place. I was vulnerable. I’d been mugged once before and I wasn’t gonna let it happen again. So I did this, comma, and it was a tragedy. And it was Dickensian in its tragic outcome. No, he in effect almost made it sound like eugenics. And he said to me, those guys needed shooting. Those were his words. That’s not why I shot them, but they absolutely needed shooting. And to him, it’s almost as and he was just unrepentant, almost proud of the action. To him, it’s almost that there are people who are unworthy of residing with the rest of us under our social compact or whatever else, and they just have to go. And he there was no hesitating. There’s no flinching. And that’s the thing that again. You can, you can be comfortable with your actions in the past, but at least have some reflection about them. And if anything, it’s metastasized in him and he’s gotten even more aggressive.

Kate Shaw Seemed less complex with the passage of time than sort of in the early days you’re kind of recounting.

Elliot Williams Yeah, and I’m glad it’s in the book. I don’t think Bernard Getz comes across in that long chapter, the chapter where I detail the conversation, I don’t think he comes off positively, and I certainly did not intend to make him the protagonist or hero of the book, but you really see what’s going on in this man’s mind.

Kate Shaw And in his own words. Okay, a couple of questions sort of pivoting to maybe kind of like law and policy. One, you mentioned the NRA. And I’m curious, like, can you just talk a little bit about what the case meant for the rise of the modern iteration of the N.R.A., which is, of course, very different from the NR. A. In its inception. And this case plays a role in that transformation.

Elliot Williams Yeah, and everyone who’s written a book will say, I think that there are things that you thought when you set out to write and then things you just learned. And I feel like I’m one of the world’s foremost experts on Bernard Getz in this shooting now. But I did not know this when I started reporting. And ultimately, the NRA prior to 1977 was literally a sporting organization, Cub Scouts and clay shooting with Grandpa. Was was really their focus. They did not have an appetite for wading into the full-throated second amendment advocacy that we know

Kate Shaw Founded by right like Union soldiers working on improving marksmanship. It’s really about the training and marksmen

Elliot Williams So in 1977, there was a literal revolt in the organization and it’s not me being cute. They called it the revolt at Cincinnati. It was a takeover or a coup at the board meeting at the convention that year where the second amendment sort of oriented members of the NRA took the organization over, got rid of the whole board and decided to move into full throated second amendment advocacy. Well, a few years after that… The Bernard Getz case happened. And it was as perfect a test case for any that they wanted. It was a white, urban dwelling individual in a blue city, in a Blue State, who had applied for a firearm and been denied and had, at least according to them, engaged in an act of self-defense. It was adjusted for every possible variable that made him perfect for them. Now, the more they learned about the case, the more sort of backed off it. But this was. A case that they latched on to. They gave him $40,000 over the life of his legal defense, for his legal offense, and really saw it as a watershed Second Amendment moment.

Kate Shaw And that actually is a perfect segue to the next question I wanted to ask, which is, you know, we are a Supreme Court podcast. Our listeners likely do know that in 2022, in the Bruen case out of New York, the Supreme Court struck down the state laws that required some special reason to get a permit to carry a gun, the very kind of version of the state law that, you now, gets unsuccessfully tried to use to get permit to carried. His failure to get a permit did not prevent him from acquiring him and carrying his gun, but he would have gotten it on his first try today. And we talked about this a good amount when the case was argued. We didn’t talk about get specifically, but we did talk about, at the argument, New York City in the 1980s and the subway kind of loomed large, like Alito was asking questions that sort of evoked the city from that era. And it just conjuring up that image of New York City like seemed for at least Alito to kind of be, to motivate the need to declare, you know, a state of affairs that entitled everybody to carry a gun because places like New York are so dangerous, like even though they of course dress up the reasoning as kind of historical, but like that is not the New York city of today or of 2022 when Bruen was decided or even a couple of years after. Oh yes. So I guess what do we make of the fact that It looms as large as it does over kind of law and culture and I think has somehow motivated in some ways the Supreme Court to declare this far more lax regime of firearms regulation in a way that like could be really dangerous if we end up again in a New York City that looks anything like the 1980s.

Elliot Williams Absolutely, and it’s really important that you said just a few years after, when we talk about Bernard Getz’s civil trial, which was 1996, the city, the homicide rates were down, the city was just turned around, it was in stronger fiscal footing, things were just different. A race meant something different in the city at the time, even over the course of that decade. I’m not saying that it was a multiracial haven and the perfect utopia, but it was just a different place than it was 1984. What’s, what’s fascinating about the way people regard that firearm question is it’s very much a Rorschach test, which is if the city is rougher, therefore we need more firearms. Well, the argument was that the city remains as congested and crowded and the risk of stray gunfire is just a different and more acute issue in a more dense place like New York City than elsewhere. And they tried to make that argument. People have been trying to make it for decades and it just did not. Take hold. I mean, I think there was a Supreme Court majority that was certainly receptive to the idea that a more safe place necessarily requires more guns to be more safe. And that’s that’s just the argument that one but it really is remarkable. And you know, one of the voices that I speak to a few times in the book is one of The leaders of the NRA at the time, their policy wonk, who is He was lovely to speak with, but just comes at it from a perspective that more firearm, number one, as a constitutional matter, it’s a no-brainer to him, but also as a policy matter, more firearms in a place like New York are a good thing. Now, I would note Bernard Goetz was charged with reckless endangerment because of the fact that he opened fire in a crowded subway that had at least one. There was a baby, right? There was totally, like in the, so. This whole idea, the argument that, well, New York is different because it’s congested and crowded and the risk of someone being harmed by a firearm literally played out in this case of, number one, a charge he was not even convicted with. He wasn’t ultimately convicted of the reckless endangerment charge, despite admitting to having blindly fired shots the first time. He said he didn’t even aim the first times he shot, but also there was a huge risk to other people. And somehow that argument just did not win.

Kate Shaw OK, so maybe this will be the last question. There’s a couple of different parts to it. So you mentioned the later civil trial a decade or so later. You spend a lot of time back to the criminal trial now. So you spend a lots of time on the trial and on the jury. And the jury mostly acquits, right? They convict on one relatively minor count, but acquit on everything else. And then they do subsequently award millions in a civil case brought by one of the victims, although like uncollected millions. But I guess back to the criminal case. My, again, impression from the Midwest, but just my general impression, I feel like, from the way I had understood the significance or understood the kind of trial was that this verdict was a travesty and an outrage, like these young men’s lives were not valued, that hate and fear won, and that that was the sort of bottom line takeaway. And I’m not saying that you don’t, that you’re like writing hard against that. But I do think, as is true throughout the book, you take something of a more nuanced view. So let me offer this and you tell me if I’m reading you properly. That like, juries are us, right? For better or worse. That grand juries and like a jury in a criminal trial. I’ve thought about this a lot because grand jury is like this week refusing to indict democratic members of Congress or guys who throw sandwiches in DC. And it’s, you know, right or wrong, the jury was reflective of the views of New York at the time. And that doesn’t erase the kind of normative bottom line that I just offered, but it just says something different. So for better or worse, they are us, and that is who New York and maybe the country was at the moment of this criminal trial. So I guess, is that a fair reading of the kind takeaway? And what do you think about the institution of the jury, I guess? Having spent all this time both, you know, looking at the the gets jury, but also as somebody who follows, you know, kind of the law very closely right now. Like, what is the role of the jury? I mean, big question, but I think it’s a really important one.

Elliot Williams Yeah, well, let me answer that second question first. What is the role of the jury? I have long believed, and this is a very cynical view, that no matter how much we as a legal system attempt to believe the fiction that juries are truly applying law to fact and pouring over the jury instructions and given clear directions as to the definition of reasonableness and reasonable doubt. And the recklessness and all of these different legal standards really are just trusting their guts. At the end of the day, these are complicated concepts. Explain, we don’t have the time here, but Kate, explain the concept of reasonable doubt to me, another seasoned attorney. Well, in an hour, maybe we could unpack it, but it’s a deeply complex concept that no jury instruction really explains well. Juries just sort of feel like, I really think he did it. Or I really think he didn’t do it and I just don’t have a good feeling about this, but at the end of the day, they’re trusting their guts. And the problem, and this comes up in the Getz case, where race and inequality, whatever else, are factors looming over the trial. Trusting their guts means also putting themselves in the place of a defendant that they felt they had some kinship or connection to. And I do make that point. Now, like he said, I treat it with some nuance, which is that, look, they did the best they could. But they were just sort of winging it, I think, despite what the jurors I’ve spoken to from the trial seem to know they believe that they followed every aspect of the law to a T, but I just think, number one, the racial dynamics of the case were so clear, and number two, the act of applying fact to law is just an immensely complicated one and far more complicated than we, as lawyers, wish to think. So to answer your question, what is the role of the jury? It’s a wonderful thing. And yes, it’s great that people get acquitted sometimes because that’s the way the system should work. But at the end of the day, I don’t think, I think it’s a bit of a fiction to think that juries really are applying fact to law in the way that the lofty goals of our system seem to hope and think that they actually are. That was the loft and the bigger, well, I mean, the specific point about this jury is the same thing, but only just related to that broader point. I just think that this jury, one, just look at their defensiveness, and I quote a couple in the book, their defenseness about the question of race. And I even posed the question to the juror I interviewed, and I just said, look, in the back of your mind, you can’t tell me it wasn’t kicking around. And he just almost got defensive. Oh, of course not, no, no. I would cheat the same case, any case the same way. I don’t care if you’re red, white, black, blue, or brown, whatever, that kind of. Nonsense to me. And I just think they they were of that city of that time in a rough city Six of them had been victims of crime three of them Had been victims, of subway crime and to some extent. I think they were just going with their guts

Kate Shaw All right, well, there’s more to say about this great book, but you’ll have to read it for yourself. Listeners, I’m going to hold this up. Viewers, I’ll hold mine up too. I’ll have yours up too, the book is Five Bullets, The Story of Bertie Goetz, New York’s Explosive 80s and the Subway Vigilante Trial that Divided the Nation by Elliot Williams. Get it at bookshop.org. There’s an audio book that Elliot reads, and it really, really is a fascinating and profound meditation on a lot of stuff that we are still very much. Grappling with. So Elliot, thank you so much for taking the time to talk to us.

Elliot Williams Thanks so much for having me, this was wonderful.

Kate Shaw Thanks again to Elliot Williams for taking the time to join us today. And before we go, let’s briefly identify some favorite things from the last week. I’m just going to mention two. One is I am finally reading, I’m actually listening to Ron Chernow’s Grant biography, which is fantastic. It’s really long, which is kind of what dissuaded me from reading it in the first instance. And it’s, you know, 40 some hours on audiobook. But I’ve had a lot of travel this week, and so I’ve been listening, and it’s fantastic. Um, and I am finally watching with my middle kid the What is it, eight or 10 part Michael Jordan documentary Last Dance.

Leah Litman Oh my gosh, I’m obsessed with that.

Kate Shaw So of course, like I know the memes, I know the tears, I took that personally, but I and I grew up in Chicago and so like I watched the Bulls in the 80s and 90s and it is still like one of the best pieces of documentary filmmaking. There’s so much amazing contemporaneous footage. The interviews today are incredible. Like it’s just so good. And so I’m four episodes in and cannot wait to watch the rest of them.

Leah Litman So here are mine. I was traveling on vacation last week, which is how I knew the court would release the tariff’s opinion. So I was doing some recreational reading. I finally read Adriana Herrera’s A Caribbean Heiress in Paris series. Absolutely loved it. Also, I am obsessed with Charlie’s Wuthering Heights album. I’m not a Wuthering Heights girlie. Probably not going to see the movie. Love the album. I’m Dying for You, my favorite track.

Kate Shaw I have to say, I haven’t seen the movie yet. I do plan to see it, but I really liked, I started listening to the album, but I needed it as background to write and it’s actually like too engaging. Like you can’t just put on, you have to actually fully listen to it. So it’s not writing music, which I for some reason had a feeling that I thought it would be, but yes, it’s very good.

Leah Litman Yeah, two other things. So Kenny from Crooked stepped in to do our video production of our emergency episode. So I wanted to add that to Favorite Things. And then finally, this is a manifestation. One of my favorite things this week is going to be reading an acceptance from a law review on my article, The Passive Vices, which I have sent out this cycle. And yeah so.

Kate Shaw It’s a fantastic article. Students, if you have spaces, pick this article up. It’s so good.

Leah Litman I feel like it’s a good title and it’s going to get cited.

Kate Shaw It’s a great title and a great piece. Indeed. That is going to be one of your favorite things. And Law Review Editors, it will be one your favorite thing when you read it.

Leah Litman Working with me, right.

Kate Shaw Exactly. That too. It will.

Leah Litman Strict Scrutiny is a Crooked Media production, hosted and executive produced by me, Leah Litman, Melissa Murray, and Kate Shaw. Our senior producer and editor is Melody Rowell. Michael Goldsmith is our producer. Jordan Thomas is our intern. Our music is by Eddie Cooper. We get production support from Katie Long and Adriene Hill. Matt DeGroot is our head of production. And thanks to our video team, Ben Hethcoat and Johanna Case. Our production staff is proudly unionized with the Writers Guild of America East. If you haven’t already, be sure to subscribe to Strict Scrutiny in your favorite podcast app and on YouTube, at Strict Scrutiny Podcast, 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.