“No right is safe in the new legal regime the Court creates,” wrote liberal Justice Sonia Sotomayor, in a dissent she read from the bench, calling the ruling “an attack on our system of law.”

The case stems from the Trump administration’s attempt to eliminate birthright citizenship via an executive order issued hours after Trump was sworn in. Three different district court judges quickly blocked the executive order as unconstitutional under both the text of the Constitution and more than a century of Supreme Court precedent.

Friday’s decision did not address the merits of the executive order, but instead how the judges went about ensuring the core constitutional guarantee of birthright citizenship. In a ruling written by Justice Amy Coney Barrett, the Supreme Court’s six-member conservative wing drastically limited courts’ authority to issue injunctions even in the face of galling illegality affecting millions of people. 

The three judges had issued a “universal” injunction against the birthright citizenship executive order, which meant the Trump administration could not enforce it anywhere in the country. A more limited injunction would have protected just the rights of the specific plaintiffs who sued — leaving the Trump regime free to target anyone who hadn’t gone to court themselves. 

But from today forward, district courts can no longer issue nationwide injunctions, which conservatives gleefully sought and obtained during the Biden administration to block student loan forgiveness and other policies.

“Curiously, this same Supreme Court never thought to say all the injunctions it upheld and stays it granted against Biden administration actions were outside its power,” observed Stanford Law professor Mark Lemley on social media. “But now apparently they are.”

Instead, federal courts may only use injunctions to block presidents and their administrations from violating the rights of the specific parties that filed suit. In effect, judges will have no ability to offer immediate relief to however many people outside the courtroom are suffering from illegal actions of the executive branch. The ruling is certain to spur more class-action lawsuits against the federal government, which are still allowed but carry significant procedural hurdles and additional costs.

“Today’s ruling allows the Executive to deny people rights that the Founders plainly wrote into our Constitution, so long as those individuals have not found a lawyer or asked a court in a particular manner to have their rights protected,” wrote Justice Ketanji Brown Jackson in a fiery dissent. Eliminating universal injunctions “requires judges to shrug and turn their backs to intermittent lawlessness,” Jackson wrote.

“This decision is devastating for U.S. families who are not protected by the limited injunction the Supreme Court left in place,” said Monica, a pregnant mother, asylum-seeker, and named plaintiff challenging the birthright citizenship executive order, in an emailed statement. “Hundreds of thousands of other U.S.-born children are in danger of not receiving U.S. citizenship. I know that every pregnant mother cannot file a lawsuit to make sure their children have U.S. citizenship — that is why I filed this lawsuit to not only protect my child’s rights, but the constitutional rights of all U.S.-born children of immigrants.”

Related

The Clear and Present Danger to the American Rule of Law

The conservative supermajority framed the ruling as grounded in history and ancient principles about the limits of judicial authority. Jackson called this “legalese” a “smokescreen” that “obscures a far more basic question of enormous legal and practical significance: May a federal court in the United States of America order the Executive to follow the law?”

The court’s three liberal dissenters — Justices Elena Kagan, Jackson, and Sotomayor — framed the decision in catastrophic terms.

“Perhaps the degradation of our rule-of-law regime would happen anyway,” wrote Jackson. “But this Court’s complicity in the creation of a culture of disdain for lower courts, their rulings, and the law (as they interpret it) will surely hasten the downfall of our governing institutions, enabling our collective demise.”

Michael C. Dorf, a constitutional law professor at Cornell University, wrote that the conservative wing of the Supreme Court failed to recognize that the “current administration is a unique threat to the rule of law,” and that it was disastrous to remove such “a useful tool for the judiciary to constrain the president at this particular moment.” 

“It’s such a threat because it empowers an administration of lawbreakers led by a convicted criminal and insurrectionist to further evade the law,” Dorf wrote.

The plaintiffs challenging the birthright citizenship order vowed to continue fighting the Trump administration. In one of the cases, the plaintiffs quickly filed a motion in Maryland district court to certify their lawsuit as a class action.

“Even without a universal injunction, we will continue to litigate this case to ensure that every child born in the United States receives the citizenship that the Fourteenth Amendment promises them, regardless of their parents’ immigration status,” said William Powell, an attorney representing the plaintiffs, in an emailed statement. “The Executive Order is unconstitutional, and nothing in the Supreme Court’s decision today calls that ultimate conclusion into question.”

The post “No Right Is Safe”: SCOTUS Bars Judges From Reining in Trump appeared first on The Intercept.

Starting Tuesday, a U.K. court will review Julian Assange’s appeal against extradition to the United States. At the center of the extradition controversy is concern that Assange will be tortured and put in solitary confinement in what’s known as a CMU — communications management unit — in federal prison. This week on Deconstructed, Ryan Grim is joined by Martin Gottesfeld, a human rights activist who was formerly imprisoned in two of the nation’s CMUs. Gottesfeld shares his experience incarcerated in CMU facilities, where his access to visitors including his wife were severely restricted.

Ryan Grim: Welcome to Deconstructed, I’m Ryan Grim.

Later today in the United Kingdom a court will be reviewing, over the span of two days, a high court decision made to extradite Julian Assange to the United States. This could be the final appeal, the final hearing that Julian Assange has before he’s sent over here to the United States.

At the center of the controversy over the extradition in the court proceedings has been whether or not Julian Assange will be tortured, will be mistreated, here in the United States, whether or not he will be put in solitary confinement and, specifically, in what’s known as a CMU, a “communications management unit.”

Now, the Department of Justice sort of pretended to make some kind of offering to the U.K. high court that they would not do this. But then, in the very next sentence of their pleading, they said, unless we decide that we actually would need to do this.

So, to talk today about what a CMU is, and why this has been the focus of human rights advocates who are concerned that he may actually wind up in one of these, we’re going to be joined by Martin Gottesfeld, who himself has spent a significant amount of time in an American CMU.

Marty, thank you so much for joining me on Deconstructed.

Martin Gottesfeld: I’m happy to be here, Ryan.

RG: And so, Marty, before we get to your experience in the CMU, let’s talk about how you wound up in prison in the first place, because I actually think that’s relevant to this conversation. Because it does appear like this is a place where a lot of people who are essentially political prisoners wind up.

MG: Yeah. And I was not the only one, although I do think my case is representative of the larger group, largely representative of the larger group.

So, the government alleges that I am a master hacker with Anonymous. The government also alleges that during a 2014 human rights and child custody matter, I launched one of the largest distributed denial of service —DDoS — attacks that the government had ever seen, to try to free Justina Pelletier, who is being held against her will and against her parents will in a Boston Children’s Hospital psych ward, and then in various residential facilities throughout the state.

The case reached the very highest levels of the political system, with people on both sides, parties on both sides of the aisle commenting on it. Mike Huckabee, Sean Hannity, others on the right, and then the Massachusetts HHS Secretary, uh, Polanowicz; he actually ended up getting involved from the left to eventually send Justina home, which is where most people felt she belonged the entire time.

And before that case, I had been involved — I don’t want to say with, but I guess kind of alongside — Anonymous, protesting the American troubled teen industry, which is also just a political lightning rod, and has been subject to congressional hearings, GAO reports, media exposés, for well over a decade, for the torture and death of American children for profit.

RG: And so, your journey in federal custody actually began in New York. Talk about that a little bit before we get to the CMU, because you actually wrote a piece for us about what it was like in the first jail you were in. And, if I recall correctly, wasn’t Chapo there too? 

MG: So, that wasn’t my first jail. I was arrested in Florida, and then I made a very long extended journey through the federal system to get back to the Northeast. And then I started writing for the Huffington Post, back when you were the D.C. bureau chief. And very shortly after I began writing for the Huffington Post and started a hunger strike seeking pledges from the 2016 election to curtail institutionalized abuse against children and political prosecutions, the Justice Department transferred me to MCC, New York, the Metropolitan Correctional Center, New York, and it’s 9 South SHU and 10 South Sam’s Unit.

And that is where Chapo was held at the time, and it’s also where Jeffrey Epstein later died. And the communications program they have in those units is kind of connected at the hip to the CMUs. It’s run by the same so-called counterterrorism unit inside the U.S. Federal Bureau of Prisons, which is part of the Justice Department.

And yeah, I wrote a piece there for the Huffington Post — several pieces, actually — about that facility, calling on public officials to do something to reform the facility, because I foresaw, even in 2016, that people were going to die there. And then, sure enough, a few years later, Jeffrey Epstein died there.

RG: It was my sense that your willingness to write for us — both at The Huffington Post and then later at The Intercept — while you were behind bars was one of the things that led to you eventually getting moved to a full-on CMU. Do you think that that’s accurate? What do you think? What drove the decision making that got you stuck in that hole?

MG: Oh, I definitely think it was the journalism. Twelve days after my first Intercept article was when they transferred me to the CMU. And that Intercept article was about El Chapo, his confinement, the conditions of his confinement, the human rights violations, and that was what directly precipitated the move to the CMU.

And then, on top of that, when they transfer you to a CMU, there’s not really a lot of due process involved in that decision, and the courts have tolerated that, but they do have to give you this one-page paper with the supposed justification, right? And mine just basically said, you’re a member of Anonymous, Anonymous is this group that we have to watch. So, therefore, we’re putting you in a CMU.

The problem with that, of course, is that there were other guys in the federal prison system associated much more with Anonymous than I was who never were placed in the CMU. So, Jeremy Hammond was one… And I’m trying to remember the gentleman’s name, but he wrote for the Intercept a lot, but his articles didn’t really challenge federal judges, challenge federal prosecutorial discretion. He just kind of satirized the whole thing. And they were very good, but they didn’t really make people uncomfortable the way my writing made people uncomfortable. I named names.

RG: Right.

MG: And I named facilities. I named specific human rights violations, and that, I think, made them very uncomfortable.

And I can tell you, too, from how I was treated, and the other cases that were there, which I guess we’ll get into in a little while, it certainly seems that I was placed there to suppress my first amendment-protected conduct.

RG: Right. And so, where were you sent, and what’s the place like as you first get there?

MG: I spent time in both CMUs, there are two in the federal system. I was first sent to Terre Haute, Indiana, and that’s kind of the first, and that’s the harsher of the two CMUs. And then, later, I spent time in the CMU in Marion, Illinois.

When you first walk into the CMU, it’s a relatively small unit, there were only about 30 guys there when I first got there.

RG: This is the Terre Haute one.

MG: Yes, the Terre Haute one. It’s actually the old federal death house. So, they built a new federal death row elsewhere in the compound, and then they put the CMU in the old federal death house. So, like, I’ve been inside Timothy McVeigh’s cell. And there are guys who say they’ve seen the old electric chair in the basement, that they have not moved that.

And you can actually see the new death house. Like, we have a very small quote-unquote “outdoor rec area,” right? Where you can go and get fresh air. But they make sure that, within sharp view of that place, whenever you’re outside, you see the actual building, where in 2020 and 2021 they killed 14 people. 

RG: What is your cell like? Because this is the place that people assume we will send Julian Assange if the U.S. successfully extradites him.

MG: The cells are very small. They were built in a former era — the building itself dates to, like, the 1930s — and they were built, I think, for a single person, even back then. So the cells do not actually meet the minimum square footage that the Bureau of Prisons publishes in its own policies, in terms of the minimum needed for a human being.

And then what they did is they went in, and they retrofitted a bunk bed onto each one, so that they can double up, and they did do that in the time that I was there. It’s a sardine can, and it’s smaller than you would get elsewhere in the Bureau of Prisons. It’s a concrete and brick building without air conditioning so, in the summer, you just bake. And if there’s a lockdown, and you’re not out of your cell for three or four days, they’re just baking you, they’re just cooking you like a turkey.

RG: So, while you are there, there are two of you? How much room is [left] after the bunk beds are put in there?

MG: There’s less than 56 square feet in the whole cell, and a lot less if you don’t count the toilet, the actual bunk. Now, I spent time there both single-celled and with a cellmate, it depends on the number of guys they have in the unit. But when you’re a journalist like I am, you’re one of the first people they double.

When they try to double you up as a journalist, they doubled up… They doubled me up with a guy who was a known informant, who was actually in the law library as an informant, right? And when I reacted negatively to that, they acted like I was the one who was misbehaving, you know?

But, again, these are all political cases. So, to force you to bunk with an informant and risk violence, right? Because that’s something that’s a direct risk of violence. And the Bureau of Prisons does not care. They do not care.

RG: Yeah. In general, do people want to be doubled up or not? 

MG: No. People generally want the single cell. You have no modicum with privacy any other way.

RG: Right. So, you’re doubled up. How often can you get … If there’s not a lockdown, how often are you out of that cell?

MG: So, you’re out, actually, most of the day. They pop the doors around six, seven in the morning. During the weekday schedule you’d be out until just before four, and then there’d be a count, and you’d be released after the count anytime between like 4:30 and 5:30.

Sometimes the guards are lazy, right? And they don’t want to do the count right away, or they don’t want to unlock you right away after the count. So, even though the count’s done, you can be in your cell till 5:30, 6 o’clock. Then you’re out for dinner, and then you stay out until about nine o’clock.

On the weekends, there’s an additional count at 10 o’clock in the morning. And so, you lock in at like 9:45 and be out around 10:30, 11.

RG: And so, what’s the communication management part of it? Like, what’s different about Terre Haute or Marion, compared to a typical federal prison? When it comes to your ability to communicate with the public, with your attorneys, with your family, and so on?

MG: So, the unit is entirely self-contained. It’s part of a larger federal complex, but if you’re a regular prisoner in that complex, those times that you’re out, you’re not stuck in your housing unit. You can go to the athletic facilities, you can go to the sports fields. There’s a lot more to do.

In the CMU, when you’re out, you’re still kind of stuck in this sardine can. And the communications management … So, elsewhere in the federal prison system, you get between 300 and 500 minutes a month of phone time, and that’s kind of in flux now with the First Step Act and all that. And you get in-person contact visits; like, your family can come and hug you.

In the CMU, you get two 15-minute phone calls a week, max. You have no contact visits, you basically never leave the little unit until you’re either released or you’re transferred.

Those phone calls elsewhere in the Bureau, they say they monitor, but there’s so much call volume that they cannot really effectively monitor; they kind of keep recordings for a little while in case they have to go back and do something. But in the CMU, your phone calls are monitored in real time, and they can be cut off in real time. And so, several times I was speaking with journalists, and they would just cut the call off. And they would never provide any justification for that.

After NBC dropped the four-part docuseries on my case, they just deleted my wife from my contact information, never provided me any written justification for that, effectively banned me on the phone without providing any written justification whatsoever. And you get lawyers involved, and nothing really happens. The system is completely unwilling to check their discretion. The judges just don’t want to hear it.

The judges in Terre Haute get spun. They hear that this is the terrorist unit for Al-Qaeda guys, and that whatever they file is frivolous. And these judges are mostly former federal prosecutors. Like, you’re dead on arrival in court.

I have a federal habeas pending now that I’ve been released, but it’s been pending since July, fully briefed, right? And the judge won’t rule on it, just to give you an example. And federal habeas is supposed to jump to the front of the list, it’s the very first thing a federal judge is supposed to rule on. And in Terre Haute, it becomes the very last thing. Especially if it looks like you’ve got a case.

RG: Let’s talk a little bit about who goes out there, because I remember from more than ten years ago, there was a lawsuit, or there were complaints against the CMUs on religious grounds, where the argument was, you’re sticking all of the Muslims in these prisons, and you can’t do that, that is discrimination based on religion. The Bureau of Prison’s response to that was, oh, well, we’ve got a couple people convicted of ecoterrorism here and there. And so, they kind of just threw them into it, and said, well, look, it’s not all Muslims anymore, so you don’t have your case anymore.

When you were there, what’s the kind of demographic, and what’s the profile of the kinds of people that you’re with?

MG: At any given time, it’s between about 30 and 45 percent Muslims, most of them. It tends not to be the big cases that you would actually associate with a unit like that. It tends to be, like, some 20-year-old guy who got indoctrinated over the internet and was trying to fly to Syria, and they catch him at the airport, right? And he’s never actually hurt anybody. In some cases, these people were entrapped, right? And it tends to be those kinds of cases.

These are not really the serious terrorism cases that one would think they are, but these cases are worth a lot of money. The Bureau of Prisons gets a lot in their budget based on building these guys up as some international threat, even though they’ve never hurt anybody, and had no serious potential to hurt anybody. That’s the majority of the Muslim cases there. 

Then you have probably about 15 percent political cases. And then the rest… They actually started changing the demographic after I started complaining that there was a high concentration of political cases, so now they’re running through guys who get caught with a cell phone in federal prison. That was largely a reaction to my coverage.

It’s definitely not what the public is sold. And these CMUs, they cost millions of dollars, they hire dozens of so-called intelligence analysts to review the cases there. My understanding is that the qualifications of these so-called intelligence analysts wouldn’t meet the bar at the state department or anywhere else. A lot of cases, these are just former prison guards who have no special intelligence training that I’ve ever seen, right? But they do get these exorbitant salaries, once the Bureau of Prisons kind of designates them as intelligence analysts.

And the CMUs, they were started during Iraq and Afghanistan, and the idea there was that, by mining the communications of these jihadis, they would come up with actionable intel to use in the war effort. And the one thing that — to my knowledge anyway — the CMU has never, ever produced, is actionable intel to use in any war effort whatsoever.

RG: So, how often would you wind up in solitary? What’s that system there?

MG: So, I started doing the prerequisites to file a lawsuit that they didn’t like, and they called that extortion, and they threw me in solitary.

RG: How long, that first time?

MG: So, that was about a month and a half. And then they celled me up with that informant. And when I started talking to the media saying they celled me up with an informant, they threw me in solitary for another three, four months. Those are the two stints that I did in solitary in the CMU.

And the solitary cells in the CMU, by the way, are even worse than the regular cells. They’re insect infested, cockroaches everywhere. There are serious sewage issues. The water is not really drinkable. And so, they go out of their way to make those solitary cells very, very heinous, and it’s something that Julian, I’m sad to say, can expect to experience himself the first time he reaches out to a journalist, the first time someone tries to file a lawsuit to vindicate his First Amendment rights, you know? It’s hell.

RG: What kind of insect infestation? That sounds utterly terrifying.

MG: Spiders, cockroaches, various other insects that we couldn’t identify. I actually, at one point, got in — it took some effort — but I got in a North American field guide to insects and bugs, just so that we could identify all the various creepy crawlies, and so that we would know what’s potentially venomous and what’s not. Because they don’t provide any training, any safety. There’s nothing to tell you, don’t get stung by that one, don’t get stung by that one, right?

And there’s an insect there that’s called a “cow killer,” OK? And it’s called a cow killer …

RG: That doesn’t sound good.

MG: Yeah, it’s not because its sting is so venomous that it would actually kill a cow, but the sting is so painful that it can cause a stampede. So, one of these things stings one cow, the cow bucks because it’s in so much pain. This causes a stampede, and you end up with a herd of dead cows, right? And that insect was crawling around the rec yard out there. And, again, there’s no signage, no warning, no anything. If you don’t have the knowledge of the guys who are already there to say, hey, don’t get stunned by that guy, you might step right on it.

RG: What’s it like trying to sleep, knowing that the cell’s crawling with bugs?

MG: In my cell I always slept on the top bunk, even when I didn’t have a cellmate, because they’re just less likely to get at you up there. But yeah, I’ve woken up there with a cockroach staring at me, like, on my chest, just staring at me, and I’m like, oh hi. Had to brush him off the bed.

Guys wake up with spider bites, you know? Like, a big rash going all the way down the leg.

Yeah. Just, nothing is done. I filed remedies all the way up to Washington, in the Bureau of Prisons, saying, you guys got to do something about this. And they basically said, we don’t see any bugs, you guys are fine. And they just lie. I mean, they lie, in writing, on federal documents, they sign them … You know, if you see something, anything from the government talking about the conditions in the CMU, from my perspective, they’re just lying.

RG: And this is all related because — as people I’m sure have gathered by this point in the conversation — you’re the kind of person that is going to be a squeaky wheel. Like, they can do whatever they want to you, and you’re not going to stop pushing back and fighting for your rights. That is also the kind of person that they’re going to retaliate against constantly.

MG: Yeah. They’re trying to break you. That’s their goal. Really. I mean, they’ll never admit to it, but there’s a widely known thing among the CMU prisoners that, if you kind of go to them and you say, hey, look, I’ll stop, just get me out of here. And you drop all your lawsuits, and you stop complaining, that’s the one time they’ll let you out.

And no staff ever threatened me, but I’ve talked to a lot of guys who were threatened, who staff told them, if you don’t stop, we’re going to make sure you never see your kids again. If you don’t stop, we’re going to keep you here. Or, complaining is not the way to get out of this unit, right? That’s the one you hear the most, is that complaining is not the way to get out of this unit. 

RG: The way you got into it, and the way you stay in it.

MG: You stay in it. Yeah, exactly. I think that’s the implication.

RG: Right. And Julian Assange is not the kind of person, either, that is just going to just sit back and accept the fate that he’s dealt. He’s somebody that’s always been completely about transparency.

MG: I mean, the only reason they’re prosecuting Julian — let’s just be real here — is because he told the truth about some things that people in power found really embarrassing.

RG: Yes.

MG: Without that, there would be no prosecution. They’re, they’re, they’re grasping at straws to try to make a federal violation out of something that is arguably protected press conduct. And that’s why the Obama administration didn’t prosecute him in the first place. They had the so-called “New York Times problem.” If we prosecute him, how do we justify that we’re not prosecuting the New York Times?

So, I understand he’s become somewhat of a controversial figure because of a lot of the media narrative that has been run against him. But there was a time in this country ten years ago when he was widely perceived as a hero, and very little in terms of his conduct has changed since that time. 

So, his case, my case, many other cases that are at the periphery of prosecutorial discretion, right? Those are the kinds of cases that end up in the CMU. And we as a country, I think, have to ask ourselves an existential question of, can we tolerate these kinds of units?

Because you go to prison, and you’re supposed to keep your first amendment rights, right? There’s no valid, what they call penological reason. There’s nothing relevant to protection of the public, rehabilitation, any of what the supposed goals of prison are that says you shouldn’t be able to speak, you shouldn’t be able to speak to the media, you shouldn’t be able to file in court. But those are the things the CMU exists to curtail, right? That’s why those units are there.

And the actual stated purpose of the unit — keep the public safe, help fight the war on terror — again, the units never produced a single piece of actionable intel for that. And they’ve slept. They’ve missed more than a few of these things.

There was a shootout in Texas where the mass shooter was trying to get a female federal prisoner freed from the female-equivalent of these CMU’s. And there was no intelligence to say that he was going to do that, they didn’t stop that. She was in one of these units, supposedly to stop that very kind of mass killing. And these people missed it, and Americans died.

And had they not put her there in the first place, frankly, it wouldn’t have happened. I’m not saying that justifies the shooting, of course. But if you’re going to put people in these kinds of units to stop terrorist actions, and you’re going to take millions of dollars from taxpayers to do it, then you ought to at least stop the terrorist actions. And they’re not even doing that. They failed at that.

RG: Let’s even grant them, though, in some imaginary world, where they actually managed, at some point, to do that with somebody who was convicted of a charge of terrorism. How do they justify putting Julian Assange or you in a CMU, when there’s not even any claim that you’re even remotely connected, that either of you are remotely connected to terrorism?

MG: We actually had a district court ruling in my case. The federal judge, who’s not a pro-defendant judge, he’s known as a hanging judge, a very harsh sentencing judge, right? He was Aaron Swartz’s judge. And we actually had that judge rule that the government could not say, could not imply that anything I did was terrorism, right? Mine was an activism case. We actually had a ruling from the bench before the trial and sentence, right? That argument would literally be frivolous in my case, because a district court already decided the matter, and the government never appealed it to challenge it, right?

So, the thing is, they don’t really have to justify it at all. That’s, really, the scary thing. The relevant precedent in the Supreme Court is called Sandin v. Conner, OK? And the Supreme Court basically said, unless what the prison is doing is an atypical and significant hardship as compared to the normal hardships of prison life, then the prisoner has no due process to challenge his placement, wherever the system wants to put you.

So, what they do in the CMUs … You asked before, how often are you out of your cell? So, you’re out most of the time. The reason you’re out most of the time is not out of the goodness of their heart. It’s because they have to say we treat them just like any other prisoner. This is a general population unit, they actually try to maintain that the CNUs are a general population unit. But then you look elsewhere in what they say and in what they do, and it becomes very clear that this is not really a general population unit. But, so long as they keep lying and saying it’s general population, and as long as the federal courts continue to credit them that it’s a general population unit, they can really put whoever they want in these CMUs.

RG: And I guess when it comes to the definition of atypical, it’s in the eye of the judge and the prison. Because when I think about what you said about getting just, what, two 15-minute calls a month? That to me feels like an atypical and radical departure.

MG: Yeah. That’s mentioned with no-contact. I wasn’t able to hug my wife for four years.

RG: I feel naïve asking as if they’re going to give some rational answer to it, but what did they say to you when you would challenge them, and say, this is an atypical deviation from the rest of the federal prison system?

MG: No, they just say it’s a general population unit. You have all the same things everyone else on the compound has. It’s because we have to manage your communications to ensure public safety.

RG: They go back to the public safety argument.

MG: Yeah, even though we had a federal judge rule that mine was an activism case with no real public safety ramifications. And the government in my case failed to prove that anything that I did affected a single human individual. They put it before the jury, right? They asked the jury to find that something I did had affected, or even potentially affected a single human being, and the jury would not convict on that.

So, they got me for financial damage to multimillion- and multibillion-dollar institutions that tortured and crippled a human child, but that’s actually what I was convicted of. And when the government sought to convict me for actually being a potential danger to even one human person, they were not able to convict me of that. But they still sent me to a CMU.

RG: What was the time in solitary like for you? What are the phases that you go through?

MG: So the first time I was in solitary I was on a hunger strike, and that actually lasted 42 days; it was the second longest hunger strike I did in federal prison. The longest one, which we covered together at HuffPost, was a hundred days, and that was during the election.

So, after that hundred-day hunger strike, I had lost a lot of muscle mass. I prepared for that hundred-day hunger strike for six months. People ask me all the time, how do you do that, how do you survive a hundred days? And the answer is: you prepare ahead of time. I prepared for nine months to survive that.

So, the second time, I didn’t have that preparation. I had lost a lot of lean body mass. It was actually much more concerning from a health perspective the second time than the first time, but that colored my experience in CMU solitary quite a bit. Because it’s one thing to be in solitary, it’s another thing to be in solitary and reject, I think it was, 105 straight meals where I did not eat.

I was trying to fight my case at that point, I was still up on appeal, I was trying to change attorneys. Your legal calls are pretty much entirely at their discretion. They open your legal mail, they opened and read my legal mail right in front of me when I was in solitary the first time, even though they’re not supposed to do that. Legal mail is supposed to be kind of sacrosanct. Like, they can inspect it for contraband, they can like make sure no drugs fall out when they open the envelope, but they’re not supposed to read it.

But they went through my incoming legal mail, reviewing for content, and actually confiscated things; like, parts of my appellate brief they would not let me have. When I was trying to change lawyers, they made that very, very difficult, and it was something that, had I not had my lovely and talented wife Dana on the outside fighting for me — and that’s something most of these guys do not have, a spouse, a significant other — I wouldn’t have been able to do that.

So, they make it very, very hard to fight your case, and that adds a lot of stress, too. If you feel you have meritorious claims, you want to get these claims heard before the court.

So, the first time I’m in solitary in the CMU, I’m on a hunger strike, I’m trying to change attorneys, they’re interfering with my legal mail. I mean, they’re basically trying to drive you to kill yourself. To me, that seemed like what the goal was. Like, if I had hanged myself in that cell, they would’ve just wiped their hands of it, and they would all consider that, you know, a squeaky wheel, as you put it, had now been silenced.

RG: Right. Do you have books in solitary? Do you get to leave at all to go outdoors, but only by yourself? Like, how does that work?

MG: So, there are books. The Bureau provides, really, kind of shoddy, like, pulp fiction kind of stuff. Thankfully, in the CMU, since you have this concentration of political prisoners, and it’s really a very smart crowd in that unit compared to the rest of federal prisons. So, the books have been interspersed with books that other guys received from their families. So, you actually have really good reading material, it is one of the best libraries in the Bureau of Prisons, is the irony.

But it’s not that way because the Bureau provides good reading materials, it’s that way because they only allow you to keep so many books in your cell. So, you either can donate them or give them away, but what ends up happening is that the library gets filled with really interesting… And a lot of the classics, a lot of the Western canon. I’d say there’s a better selection there than there is in most public high school libraries. So, that’s one of the good things, I did get a lot of good reading.

RG: So, how much time did you spend in both of these CMUs?

MG: So, I was in Terre Haute from April 1st, 2019 through January 21st, 2021, then I was in Marion from January 21st, 2021 to, I think, November 10th, 2022. And then, again, in Terre Haute from November 10th, 2022 till, I think, June 9th of 2023.

RG: What was it like when you finally got out of there? 

MG: Words fail me, because you’re out in public again. Like, they just put you on a greyhound bus; when I was released, it’s like, they just drop you off at the bus station, and you’re out in public again, and you can talk to people.

RG: Like, 24 hours earlier, you’re just…

MG: Yeah, you’re completely cut off, isolated from the world. They blocked Dana, so I couldn’t talk to my wife for seven months, with no kind of process, no official anything ever handed to me to justify it. And you get out, and you get to the Greyhound station, and it’s just … Can I borrow your cell phone, I need to make a call real quick.

And they didn’t want me to leave with my legal work. So, I had 210 pounds of documents about the CMU, and about my case, between the two, right? And I still have them, but they would not allow my lawyer to come to the prison the day before I was released to pick up my legal documents, even though their own regulations kind of specify that they have to allow a prisoner to exchange legal documents with an attorney, and they knew I was being released. They were really hoping that they would make it logistically difficult for me to bring my legal documents with me, and that I would then trust them to mail these documents home. But, having spoken to guys who had been through the CMU program — and some of them, it’s like their 2nd, 3rd, 4th trip through the CMU program — I was not prepared to rely on the Bureau of Prisons to mail these very sensitive, very compromising legal documents home.

So, I actually had to carry, by hand, 210 pounds of legal documents to the Greyhound stop, and then Dana arranged for somebody to meet me there. And I put the legal documents in that person’s car, and then that person — you know, bless her heart — took them to UPS, and had them shipped home for me. And that’s the only way that I have these documents that show, in detail, the kind of thing that Julian can expect. And the writeups, the bogus disciplinary charges that I got for trying to speak to the media, trying to litigate, trying to tell people what’s going on, trying to help other guys who I feel are wrongfully incarcerated in the CMUs, [to] litigate.

And there’s one case in particular that I really want to mention, and that’s Donald Reynolds, Jr. His case is related to Operation Fast and Furious, which was when the Justice Department walked high-powered, fully-automatic, so-called cop-killing firearms to the Mexican drug cartels. You had mentioned Chapo earlier, right? And so, this was when the Justice Department was actually handing those cartels armor piercing firearms.

RG: Yeah. This became a scandal under the Eric Holder Attorney Generalship.

MG: Yeah. So, Donnie was a Black NRA member, firearms collector. He had a lot of historic weapons, like World War II-era firearms, and a lot of high-powered stuff. And they went to him, they asked him to become an informant for them, he refused. They buried him as a first-time nonviolent offender with a life-plus-75-year sentence; so, they actually hit Donnie off with a longer sentence than El Chapo received. And it looks to me and to others like Donnie is wholly innocent, and they basically just did this to keep him quiet.

And we actually had The American Conservative from the other side of the aisle do a months-long investigation into Donnie’s case. And The American Conservative ended up recommending clemency for Donnie, because of the prosecutorial irregularities. And then a different organization — similar name, The American Conservative Union — on the other side of the aisle, not really known for taking a pro-defendant, anti-law enforcement kind of stance, also recommended clemency for Donnie because of these prosecutorial irregularities.

RG: What charges did they end up hitting him with?

MG: Drug trafficking, and using firearms in pursuit of drug trafficking. But here’s the thing: they never found any drugs on Donnie. Never. They searched his house, they searched his parents’ house. They never found anything.

RG: And he was a player in this entire scandal. So, the thinking is, from your perspective, that holing him up somewhere is an effective way to do PR for this scandal. Is that what you’re thinking? Or what’s the rationale for why in particular they would go after him?

MG: I think that, in his case, you have a lot of what are called Brady violations, which are discovery violations. Donnie’s defense was entitled to information about Operation Fast and Furious to prepare his defense, which he never received. And if it comes out that this information was never turned over to his defense attorneys, well, then that’s a big issue. Because then his conviction is going to have to be overturned, and if they choose to continue to prosecute the case, he’s entitled to all this information about Fast and Furious, which the House committees were trying to obtain from the White House, and the Obama White House asserted executive privilege to quash those subpoenas.

Well, you can’t assert executive privilege to quash Brady, right? Donnie’s entitled to that information if they’re coming for his liberty, which they are. And Donnie had no idea that it was Fast and Furious. It took years for information to come out about Fast and Furious for Donnie to put it together that this was likely Fast and Furious.

And then, when these months-long investigations were done, lo and behold, the names involved in his case are some of the same names involved in Fast and Furious. The dates all line up, as one would expect them to line up. It’s really uncanny. So, there’s a piece at The American Conservative about it called “The Knoxville Kingpin Who Wasn’t,” and that has more of the details about it. 

But this is another great example of a CMU case, right? The Obama administration literally asserted executive privilege to stop any investigation into Fast and Furious. Here you have an innocent guy who is being held in a CMU to keep a lid on that, even to this day. And I’m convinced of that, and I think the facts do bear it out, but if people can read the investigation, then they can come to their own conclusions.

RG: What’s he like?

MG: Donnie’s a great guy, he’s a smart guy. He was a businessman. He ran four businesses before they locked him up, he was married before they locked him up, he’s a father. His father worked at Oak Ridge National Laboratory, had a security clearance. He’s a great friend to have, and he doesn’t deserve at all what’s happening to him, and I really hope someday the truth comes out.

Donnie is one of the many guys who helped keep me safe while I was there. He was also the unit barber, so he cut everyone’s hair. And he’s a funny guy, he’s got a great sense of humor. You’d think after they do all this to you, it’d be very hard to keep your head up, right? And Donnie maintains this sense of humor.

RG: How old is he now?

MG: He’s a few years older than I am, so he’s in his 40s, he’s in his early 40s.

RG: And looking at life.

MG: He’s doing life. He’s been locked up longer than I was. He’s been locked up since, like, 2011 … I might be off by a year or two there. And he’s been in the CMU practically the entire time.

RG: And you mentioned, keeping you safe. What is the violence like there? It’s a small place, and I don’t know if that makes it less or more violent.

MG: Yeah. Six months before I got there, one of the jihadis garroted to death one of the minimum security prisoners there, and stabbed another guy 11 times. And they just completely covered that up. There was a press release that there had been a death at the Terre Haute federal complex, but they did not mention that it was the CMU. There are multiple theories about what predicated that attack, but the one thing that everyone seems to agree, is that the Bureau of Prisons knew ahead of time that it was going to happen, and did nothing to stop it.

There is sectarian violence, but I’m a brown Jew, and they put me in a unit full of radical jihadi Muslims. Like, it’s hard to say that that itself wasn’t an assassination attempt. What they weren’t banking on, though, is that the government’s saying this whole time that I’m a member of Anonymous, right? And Anonymous has a fairly good reputation in the Middle East after the Arab Spring. So, you know, it didn’t work out the way they thought it would.

RG: So, you were cool.

MG: Yeah, I was cool. And I do a lot of legal work for guys. I’m like the resident jailhouse lawyer, anywhere I go. And so, that always keeps you safe. Like, if you’re headed to federal prison through no fault of your own, pick up a Black’s Law Dictionary and get good with the law, because you will become an indispensable person.

But the thing is, about prison, especially about that unit, is it’s never going to be one-on-one. Like, it’s him and his boys versus you and whoever’s going to get your back. And that’s also what is potentially so very dangerous about these units. These units are a powder keg just waiting for a spark to go off. And, in 2018, before I got there, they had that spark go off and, and one person died, and another person was stabbed 11 times. 

RG: And, since you got out, you mentioned all of that information that you were able to take with you. I know you’ve been in touch with Julian Assange’s legal team. I don’t know what you can say about that. How are they feeling about this upcoming hearing? And were they able to make use of any of the insider CMU knowledge that you were able to give them?

MG: So, in terms of their feeling about the hearing, I’m going to defer to them. You’re going to really have to speak to them on that matter.

They were limited. By the time I got out, the lower-court proceedings had already been concluded, and so, they were limited to that record on appeal. So I don’t know that they were able to actually use any of the documents that I got [over] to them, because it was just too late by the time those documents got there.

Now, if the case gets reversed, if he gets to go back to the lower courts, then I think, potentially, some of the documents that I have are really potentially useful. I don’t know what they’ve used and what they haven’t used. Presumably it’s a public docket and we can see.

But I think unfortunately, very unfortunately for Julian, my experience and my records in the legal sense will not really come to bear until the next CMU extradition case. And, at that point, all this stuff can be briefed in the district court, in the lower court, where it’ll become part of the record of the case, and be arguable on appeal, and on appeal to the European Court of Human Rights.

RG: I think one thing I just want to leave people with, you know, you’re no fool, you knew what kind of system you were getting into. And the prosecutors offered a plea deal that would’ve given a significant —  because I remember you and I talking about this at the time — would’ve given you a significantly shorter prison sentence. I don’t remember exactly the details now, but I remember you saying, it’s not about that. I am not ashamed of what I did. Like, I was standing up for Justine. I’m going to take this all the way to the jury, and if the jury finds me guilty, then so be it. 

That’s just an unusual amount of courage, I would say, to willingly stare down a much more extended sentence under brutal conditions. And I think that it’s a fact that that is unusual courage, because I think something like 95 percent of federal cases — some extraordinary number of federal cases — end in plea deals. 

MG: Yeah, it’s higher than 95. The trial system is so unfair in the federal system. I mean, it’s not a fair system. And I would invite anyone who finds that shocking, as I did initially… I get that it’s a shocking thing. This is America, you expect the courts to be fair.

Go do a little research on the federal system, look at cases like mine. They would not even let me plead defense of another, right? Like, they wouldn’t let my jury consider it, that I acted to defend a human life, right? They found that defense inconvenient, so they simply prevented the jury from hearing it.

RG: Yeah, I think any system that has a 95-plus percent success rate for the prosecution, you can pretty fairly say is tilted in their favor. And that’s why so many people take deals.

MG: Well, they want you to believe that these prosecutors are just that good, and they’re just that righteous.

RG: Absolute geniuses. Yes.

MG: Yeah. But, again, just look at it, and just look at the cases they’re bringing. Look at the case they’re bringing against Julian. Look at the case they brought against Barrett Brown or Jeremy Hammond.

RG: Now, Barrett Brown, that’s who you were trying to think of earlier.

MG: Yeah, yeah. But just look at the cases they bring, and look at the cases that they do not bring, right? You had the 2008 financial crisis, right? Who went to jail? The whistleblower. You have the Bush torture program, right? Who went to jail? The whistleblower.

RG: Right. And look at the war crimes that Julian Assange exposed, the only people to go to prison, Chelsea Manning and Julian Assange, right?

MG: Julian, yeah.

RG: Well, Marty, thank you for fighting, and thank you for joining me today. I really appreciate it.

MG: Thank you for having me, Ryan.

RG: That was Marty Gottesfeld, and that’s our show.

Deconstructed is a production of The Intercept. Jose Olivares is our lead producer. Our supervising producer is Laura Flynn. The show is mixed by William Stanton. Legal Review by David Bralow and Elizabeth Sanchez. Leonardo Faierman transcribed this episode. Our theme music was composed by Bart Warshaw. Roger Hodge is The Intercept’s Editor-in-Chief. And I’m Ryan Grim, D.C. Bureau Chief of The Intercept.

If you’d like to support our work, go to the intercept.com/give. If you haven’t already, please subscribe to the show so you can hear it every week. And please go and leave us a rating or a review, it helps people find the show. And, obviously, subscribe to Intercepted as well.

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The post Life Inside the Brutal U.S. Prison That Awaits Julian Assange appeared first on The Intercept.

Their differences immediately reemerge, however, as to why. For Alito, the answer is that there is apparently no federal law that protects abortion access, and the court should have said so. For Jackson, the reason is opposite: Federal law clearly protects patients who need abortion care, and failing to say so puts people in harm’s way.

“How long must pregnant patients wait for an answer?” Jackson wrote in a fiery dissent. “Today’s decision is not a victory for pregnant patients in Idaho. It is delay.”

At issue is the scope of the federal Emergency Medical Treatment and Active Labor Act, or EMTALA, which was passed in the 1980s in response to an epidemic of risky patient transfer practices, known as “patient dumping.” The law requires all hospitals that receive Medicare funds to evaluate every patient who shows up to the emergency room and, in a medical emergency, to provide necessary stabilizing treatment. The law defers to medical professionals to determine when an emergency exists and what stabilizing treatments are needed.

As states rushed to ban abortion in the wake of the Dobbs ruling, some, like Idaho, enacted laws with only vague exceptions for care, including to save the “life of the mother.” The federal government quickly sued to block Idaho’s ban, arguing that EMTALA preempted it. In other words, the Biden administration argued that because federal law guarantees every emergency room patient access to stabilizing treatment, Idaho can’t prevent pregnant people from accessing abortions during a medical emergency. Idaho, of course, disagreed.

While the court’s decision to sidestep a ruling means that, for now at least, emergency abortions are still allowed in Idaho, it also leaves open current and future challenges to EMTALA. Meanwhile, opinions by Alito and Justice Amy Coney Barrett, joined by other members of the court’s conservative supermajority, offer a clear legal road map for anti-abortion lawmakers and activists who are plotting for a nationwide abortion ban.

As Alexa Kolbi-Molinas, deputy director of the ACLU Reproductive Freedom Project, put it, the “opinions just provide building blocks” for extremists to “reach their ultimate goal.”

An Incomplete Victory

After some preliminary jockeying in the federal courts that saw Idaho’s ban enjoined as it related to emergency care — but well before the case had played out through the normal course of litigation — Idaho ran to the Supreme Court for intervention. The state claimed that it would be irreparably harmed if it wasn’t allowed to deny abortion care in emergency situations protected by EMTALA. The Supreme Court obliged, lifting the injunction and allowing the state’s ban to override EMTALA protections while the case was pending before the court.

On Thursday, however, in an unsigned, one-sentence order, the court concluded it had waded into the dispute too soon. It sent the case back to the lower federal courts to resume the litigation and allowed the injunction to go back into effect.

A similar situation is ongoing in Texas, where the state sued to block EMTALA’s enforcement against its own abortion ban. There, the 5th U.S. Circuit Court of Appeals last year co-signed Texas’s efforts, barring EMTALA’s protections in the state while the litigation is pending. The federal government has appealed to the Supreme Court, which still has not said whether it will hear the case.

For people in Idaho, the court’s decision to punt looks like a win for pregnant patients and medical providers who face harsh penalties for disobeying the near-total abortion ban. But as the Texas litigation shows, it is cold comfort in a landscape where anti-abortion zealots are determined to force all people to carry their pregnancies to term, regardless of their viability or the threats pregnancy may pose to the person’s life or future fertility. Nor has the court done anything to ensure that pregnant people aren’t considered second-class citizens in the emergency room and dumped to other jurisdictions for care — the problem the law was designed to prevent.

“The Supreme Court’s failure to clearly and unequivocally affirm the right of every pregnant person to emergency care,” Kolbi-Molinas said, means that “the chaos and confusion caused by abortion bans across the country, including in states like Texas, will continue to prevent providers from providing appropriate medical care to their patients when they need it most.”

“Alarm Bells”

In addition to the court’s unsigned order, several justices penned opinions either concurring with the decision or dissenting from it. Notable among those opinions, primarily for its fictitious content, is the dissent authored by Justice Samuel Alito, which was joined by colleagues Clarence Thomas and Neil Gorsuch.

Like Jackson, Alito disagrees with the court’s decision not to issue an opinion in the case, but for reasons other than the disservice that does to patients. Where Jackson is concerned about leaving patients and providers in limbo, Alito fully adopts Idaho’s position to argue that EMTALA never protected pregnant patients in need of abortion in the first place.

His argument rests on four central claims: that since there’s no mention of abortion in EMTALA, it could not have covered abortion; that since noted anti-abortion lawmakers voted for EMTALA in the 1980s, the law couldn’t have conceivably protected abortion; that since the law contains four references to the “unborn child,” medical professionals are bound to consider the fetus as a separate and equal patient for whom abortion is never treatment; and that to allow EMTALA to preempt a corner of Idaho’s ban would be to unleash a wave of “elective” abortions inside the nation’s emergency rooms.

To make that case, Alito drafted a wholesale rewrite of legislative and legal history.

For starters, EMTALA doesn’t contain the word “abortion” because, at the urging of medical professionals, Congress left the menu of stabilizing treatments to their discretion. Moreover, at the time of EMTALA’s passage, abortion was constitutionally protected care meaning no state had criminalized — or could legally criminalize — it. In other words, at passage, that was a non-issue among the bipartisan majority who voted for the law.

Alito is “using this strawman argument to try to sound like he’s reasoning through the legislative history, but he is making things up,” said Nicole Huberfeld, a professor at Boston University’s schools of law and public health. “And the reason he’s doing that is that the actual legislative history does not support his position.”

“The actual legislative history is that Congress created a national rule that made it so that it doesn’t matter who you are, the color of your skin, whether you can pay, what state you live in,” she said. “It is the single universal access to care rule that we have in the United States. And Justice Alito doesn’t get to just make up the history of this rule.”

Similarly, Alito has taken the “unborn child” references in the statute entirely out of context to claim that the law treats the fetus as a separate individual entity afforded equal protection under EMTALA. It’s a full-throated endorsement of the concept of “fetal personhood,” which is the aim of many anti-abortion activists and politicians.

The problem for the justice, however, is that the history of EMTALA and its actual language clearly say otherwise. Three of the four mentions of an “unborn child” in the statute relate directly to the duty of medical professionals to consider the risks to the fetus during labor when transferring a patient to another hospital. The fourth is meant to ensure that a pregnant person in the ER will receive care for a pregnancy-related problem that is not currently placing their own life at risk.

Kolbi-Molinas of the ACLU said that “there should be alarm bells” going off about Alito’s dissent, “because we know there are extremists out there pushing a strategy to give legal rights to embryos and fetuses that would override the rights of the pregnant person.” While “fetal personhood” was not an actual question in the EMTALA case, she stressed, Alito’s opinion signals conservative justices’ appetite for endorsing it. “If a majority of the court were to endorse that theory, that would mean a nationwide abortion ban — and not only that, it would mean bans on IVF and birth control.”

In a separate concurring opinion, Barrett, joined by Chief Justice John Roberts and Justice Brett Kavanaugh gave credence to another troubling argument: that Congress may have overstepped its spending power by tying EMTALA to the receipt of Medicare dollars.

During oral arguments in April, an attorney for Idaho argued that because abortion is not specified in the text of the statute, the state can’t be forced to allow abortions as a condition for receiving Medicare funds — let alone to accept that EMTALA preempts the state’s criminalization of abortion.

“Petitioners have raised a difficult and consequential argument,” Barrett wrote, “about whether Congress, in reliance on the Spending Clause, can obligate recipients of federal funds to violate state criminal laws.” Put differently, the courts should decide whether Congress could use the power of the purse to force hospitals to provide abortion care in violation of the state abortion ban. (In his dissent, Alito also addresses the issue, concluding, on notion alone, that EMTALA would fall to such concerns.)

It’s a technical point, but one with vast implications. If the court’s majority eventually takes the opinion that Congress overstepped, said Huberfeld, they would allow states to nullify laws like EMTALA. Medicare, Medicaid, the Children’s Health Insurance Program, cash welfare, and food and housing programs would also be vulnerable.

“All of our major health laws rely on the spending power, at least in some degree,” she said. “If states didn’t have to comply with these federal laws, then we would have even more chaos and conflict over social programs.”

Health Care Denied

In his dissent, Alito also claims — without a bare hint of evidence to back it up — that upholding EMTALA’s protection for pregnant people somehow means opening hospital emergency rooms to “abortion on demand.” He appears to believe that many pregnant people in distress who wind up in the emergency room are actually there solely to access abortion — and, presumably, that doctors are fine to just wink and go along. 

The reality is that since the Dobb’s decision (also a product of Alito’s fanciful pen), the proliferation of abortion bans like the one in Idaho have led to distressingly common stories of patients being denied abortions amid medical crises, including in Idaho. As Justice Elena Kagan notes in a concurrence joined by Justice Sonia Sotomayor — and, in part, by Jackson — while EMTALA was blocked in Idaho (at the court’s direction), “the State’s largest provider of emergency services had to airlift pregnant women out of Idaho roughly every other week.” Over the course of the previous year, while EMTALA’s protections were in effect, they’d done so just once.

Still, Kagan agreed that sending the case back to the lower courts for further litigation was the right call. Jackson was not so sanguine. 

The court should not have intervened when it did, dismantling EMTALA’s protections in Idaho, Jackson argued, but neither should it have failed to rule when it had the opportunity to that the federal law preempts Idaho’s ban — and by extension the others like it. “As a practical matter, this Court’s intervention meant that Idaho physicians were forced to step back and watch as their patients suffered, or arrange for their patients to be airlifted out of Idaho,” she wrote. “This months-long catastrophe was completely unnecessary. More to the point, it directly violated federal law, which in our system of government is supreme.”

To Jackson’s mind, the case is clear: “Idaho law prohibits what federal law requires, so to that extent, under the Supremacy Clause, Idaho’s law is pre-empted.”

“We cannot simply wind back the clock to how things were before the Court injected itself into this matter,” she wrote. “It is too little, too late for the Court to take a mulligan and just tell the lower courts to carry on as if none of this has happened.”

The post Alito’s Dissent in Emergency Abortion Case Provides “Building Blocks” for More Extreme Bans appeared first on The Intercept.

The opinion was a stinging rebuke to the Oklahoma Court of Criminal Appeals, which has repeatedly rejected Glossip’s appeals despite mounting evidence of his innocence in the 1997 murder of motel owner Barry Van Treese. The ruling is also a major victory for Oklahoma Attorney General Gentner Drummond, who had previously taken the extraordinary step of asking the OCCA to vacate Glossip’s conviction after he concluded that it had been fatally tainted by prosecutorial misconduct. Finally, it is a momentous victory for Glossip, who has been scheduled for execution nine times and has been served three last meals, as well as for Knight who has spent the last decade fighting to free his client.

Glossip’s case will ultimately be sent back to Oklahoma City where the elected district attorney will have to decide whether Glossip should be retried. If she declines to do so, Glossip could soon walk out of prison.

“Today was a victory for justice and fairness in our judicial system,” Knight said in a statement. “Rich Glossip, who has maintained his innocence for 27 years, will now be given the chance to have the fair trial that he has always been denied.”

Glossip was twice convicted and sentenced to die for the murder of Van Treese inside a seedy Best Budget Inn on the outskirts of Oklahoma City. No physical evidence linked Glossip, the motel’s live-in manager, to the crime. The case against him was based almost entirely on the testimony of a 19-year-old maintenance man named Justin Sneed, who admitted to bludgeoning Van Treese to death but insisted it was Glossip’s idea. In exchange for testifying against Glossip, Sneed escaped the death penalty and was sentenced to life without parole.

At trial, prosecutors portrayed Sneed — a chronic drug user prone to unpredictable bouts of violence — as a hapless follower who acted under Glossip’s complete control. “It’s as if Justin Sneed was a Rottweiler puppy … and Richard Glossip was the dog trainer,” prosecutors argued to Glossip’s jury in 2004. “No matter how you slice it, no matter how you parse it, the person that says ‘sic ’em’ is the person that makes the decision.”

In 2022, the state began releasing to Glossip’s attorneys boxes of previously undisclosed case documents revealing that Sneed gave false statements at Glossip’s second trial — and that prosecutors were aware of his misstatements yet failed to correct his testimony. In other words, jurors condemned Glossip to die based on the testimony of a known liar.

While he was in jail, Sneed had been diagnosed with bipolar disorder and prescribed lithium to manage it. However, when he testified against Glossip, Sneed denied ever seeing a psychiatrist and said he had no idea why he’d been given lithium. 

The records included notes from a meeting between Sneed and prosecutor Connie Smothermon that took place not long before Glossip’s 2004 retrial. In the notes, Smothermon wrote the name of a doctor — “Dr. Trumpet?” — and a reference to the powerful mood stabilizing drug lithium — “on lithium?”

As Glossip’s lawyers later argued to the Oklahoma court, “Trumpet” was clearly a reference to Lawrence Trombka, the lone psychiatrist working in the Oklahoma City jail at the time Sneed was incarcerated there, and thus the only person authorized to diagnose Sneed’s disorder and to prescribe lithium. The notes made clear that Sneed had, at best, misrepresented the situation under oath, when he testified that while in jail he had a cold and asked for Sudafed, but that “somehow they ended up giving me lithium for some reason. I don’t know why,” he said. “I never seen no psychiatrist or anything.”

“So you don’t know why they gave you that?” Smothermon asked.

“No,” Sneed replied.

Related

The “Power, Pride, and Politics” Behind the Drive to Execute Richard Glossip

This exchange was at the heart of Drummond’s 2023 motion to vacate Glossip’s conviction. “There is no dispute that Sneed was the state’s key witness at the second trial. If Sneed had accurately disclosed that he had seen a psychiatrist, then the defense would have likely learned … the true reason for Sneed’s lithium prescription,” Drummond wrote in a motion to the Oklahoma Court of Criminal Appeals. “With this information plus Sneed’s history of drug addiction, the state believes that a qualified defense attorney likely could have attacked Sneed’s ability to properly recall key facts at the second trial.”

In its ruling, the Supreme Court majority agreed. The entire case against Glossip rested on Sneed’s testimony, Sotomayor wrote in an opinion joined by Chief Justice John Roberts and Justices Elena Kagan, Brett Kavanaugh, and Ketanji Brown Jackson. “Because Sneed’s testimony was the only direct evidence of Glossip’s guilt of capital murder, the jury’s assessment of Sneed’s credibility was necessarily determinative here,” Sotomayor wrote. “Besides Sneed, no other witness and no physical evidence established that Glossip orchestrated Van Treese’s murder. Thus, the jury could convict Glossip only if it believed Sneed.” And Sneed’s credibility as a witness would have been undermined if the jury had been aware of the truth. Glossip’s prosecutors had failed to correct Sneed’s misleading testimony as they were constitutionally required to do, the court ruled. “A prosecutor’s midtrial revelation that Sneed lied on the stand would have significantly undercut” his account, Sotomayor wrote.

But the court did not stop there, noting that the violation was part of a constellation of prosecutorial misconduct. “Additional conduct by the prosecution further undermines confidence in the verdict,” Sotomayor wrote. The state had destroyed key evidence before Glossip’s retrial and had hidden evidence that Sneed sought to recant his testimony implicating Glossip in the crime. She also pointed to an attempt by state prosecutors to have Sneed revise his testimony about the murder to better conform to their theory of the crime.

The full-throated court victory came as a surprise to many close to the case, who had speculated after the court heard oral arguments last October that it would likely send the case back for an evidentiary hearing. In a partial dissent, Justice Amy Coney Barrett argued that this would have been the more appropriate action, while agreeing that prosecutors had violated Glossip’s constitutional rights. But the majority ultimately decided this was not necessary. “Because ample evidence supports the attorney general’s confession of error in this Court, there also is no need to remand for further evidentiary proceedings at the OCCA.” 

Related

Shocking Vote by Oklahoma Parole Board Clears the Way for Richard Glossip’s Execution

Justice Clarence Thomas dissented from the majority, writing his own opinion, which was joined by Justice Samuel Alito. In Thomas’s view Sneed’s testimony was “patently immaterial” to the outcome of Glossip’s trial. He also endorsed the OCCA’s absurd opinion that Sneed’s testimony was not “clearly false” because he “was more than likely in denial of his mental health disorders” — even though there was nothing in the record to support that assertion. The majority flatly rejected the idea. “Sneed’s beliefs are beside the point,” Sotomayor wrote. “What matters is that his testimony was false and a prosecutor knowingly let it stand nonetheless.”

At a press conference following the ruling, Drummond, who is running for Oklahoma governor, reiterated his support for the death penalty, emphasizing that he has attended all eight executions carried out since he took office. Drummond told reporters that when he became attorney general he reviewed all of the state’s death penalty convictions “and one stood out.” The “mission” of his office is to “seek justice, not to defend the prosecution,” he said, which is why he sought to have Glossip’s conviction overturned. 

Drummond said he was “pleased the high court has validated my grave concerns with how this prosecution was handled, and I am thankful we now have a fresh opportunity to see that justice is done.”

Now, Glossip’s case will be returned to Oklahoma City where the current district attorney, Vicki Behenna, will review the evidence and decide whether to try Glossip for a third time. If she decides against doing so, Glossip would ultimately be released from prison. During his press conference, Drummond said he has conferred with Behenna and that the two plan to “review the evidence with fresh eyes.” 

Twenty-eight years after the murder, and with no evidence aside from Sneed’s highly questionable account of the crime, it is hard to see how prosecutors could move forward with another trial. One potential resolution to the case is that they offer Glossip a deal to plead guilty to a lesser crime — specifically, of being an accessory-after-the-fact to Van Treese’s murder. This is arguably the only charge that ever had any basis in fact — and is what Glossip was originally charged with in 1997. On the night that he bludgeoned Van Treese, Sneed told Glossip that he’d killed the motel owner. Glossip didn’t immediately share this information with the police, he later told them, because he didn’t believe what Sneed was saying. 

For now, Knight is preparing Glossip for whatever comes next. Knight credited his colleague, paralegal Meri Ellzey, for being an instrumental part of his decade-long fight to free Glossip, and he sounded cautiously optimistic that his client’s long ordeal will finally end. 

“I’m still a one-step-at-a-time kind of guy,” Knight said. “I understand where I am right now, and I realize that, you know, I’m not to the finish line, but, by God, I can see it now.”

The post After Nine Execution Dates and Three Last Meals, Richard Glossip May Soon Walk Free appeared first on The Intercept.

During Donald Trump’s first term, the Supreme Court made some effort to check his power. But that era is over. The court has ruled that Trump cannot be prosecuted for actions he took as president, including for his role in the January 6 attack on the Capitol, and it just wrapped its latest term by restricting lower courts’ power to block his unlawful orders on issues like birthright citizenship, abortion care, and immigrants’ basic rights. 

“What the Supreme Court did is it limited lower courts’ ability to use what has been the most effective tool that lower courts have to reign in the Trump administration’s lawlessness, which is to block a policy on a nationwide basis,” says Leah Litman, author of the new book, “Lawless: How the Supreme Court Runs on Conservative Grievance, Fringe Theories, and Bad Vibes.”  

This week on The Intercept Briefing, newsroom counsel and correspondent Shawn Musgrave speaks with professor and attorney Litman and politics reporter Jessica Washington about how the Supreme Court’s right-wing supermajority is laying the legal foundation for unchecked executive lawlessness — and signaling to Trump that it won’t stand in his way. 

Listen to the full conversation of The Intercept Briefing on Apple Podcasts, Spotify, or wherever you listen.  

TRANSCRIPT

Shawn Musgrave: Welcome to The Intercept Briefing. I’m Shawn Musgrave, newsroom counsel and correspondent for The Intercept. 

During President Donald Trump’s first term, the U.S. Supreme Court seemed at least somewhat interested in holding him accountable to the law. 

But even before Trump was reelected, the Supreme Court showed signs that it wouldn’t stand in his way in a second term. 

CBS: Well you’ve been watching a special report. The nation’s highest court has ruled that former President Donald Trump is entitled to some level of immunity from federal prosecution for official acts he took while in office. 

PBS: Former President Donald Trump is immune from criminal prosecution for any so-called official acts taken as president.

WHAS11: Absolutely immunity for core constitutional powers.  

SM: Last summer the Supreme Court ruled that Trump couldn’t be prosecuted for actions he took as president, including for his role in the January 6 attacks on the Capitol. 

And this past June, the Supreme Court finished its term by limiting lower courts’ authority to block any of Trump’s unlawful orders on issues like birthright citizenship, abortion care, and immigrants’ basic rights. 

The Supreme Court’s conservative supermajority also greenlit Trump’s horrific practice of deporting people to countries they’ve never lived in, countries where they may face torture and inhumane detention, like South Sudan. The Court did so with barely any explanation at all.

For good measure, this term the Court also signed off on a slew of conservative attacks on transgender and reproductive healthcare, pornography, and even basic representation of queer people in public school classrooms. 

All of these are perfectly legal and constitutional, according to Chief Justice John Roberts and the six rightwing justices.  

Joining me now to discuss the Supreme Court and how we got here is Leah Litman, a law professor at the University of Michigan and co-host of the Strict Scrutiny podcast. In May, Professor Litman published a new book, “Lawless: How the Supreme Court Runs on Conservative Grievance, Fringe Theories, and Bad Vibes.”

Welcome to the show, Professor Litman. 

Leah Litman: Thanks so much for having me.

SM: Also joining us is Jessica Washington, politics reporter for The Intercept, who’s been covering legal battles over reproductive rights and other issues. Welcome, Jessica. 

Jessica Washington: Thank you for having me.

SM: We’re speaking on Friday, July 11. 

Professor Litman, before we get into the Supreme Court’s train wreck of a term, could you set the scene a bit? Your book essentially argues that the Supreme Court’s conservative supermajority is no longer practicing law. It’s just doing conservative politics using judicial language. How did we get here?

LL: So I think we got here in a number of different ways. One is a story of the decline of our democratic institutions. In part because of the Electoral College and Senate malapportionment, it became easier for a party that enjoys only minority support to win control of the Senate and the presidency. And of course, those are the institutions that then select Supreme Court nominees.

And so you almost have this double layer of democratic deficit that is built into the modern Supreme Court. And that court therefore became increasingly comfortable catering to an increasingly narrow segment and minority of the country. You add to that several choices that the Republican Party itself made to really lean into the politics of minority rule, deciding to basically channel the backlash to feminism, channel the backlash to the civil rights movement, and go all-in on oligarchs and corporate interests. And that made them a party that then depends on minority rule. 

And so in order to constantly whip their base into a frenzy, they always portray themselves as the victims. And so when that is the message of the political party, and that party can obtain power through minority rule, that’s what you are going to see in the justices they appoint. Particularly because they also perfected this judicial selection machine where they could identify people who are willing to go all-in on some of the more fringe elements of the party.

SM: And we’ll get into this a little bit when we talk about some of the recent decisions. But what role does originalism — the judicial doctrine favored by the six of the justices now, and kind of depending on how you count some of the other liberal ones, maybe they’re also originalists too — but how does originalism play into your framework and kind of what we’re seeing recently from the court?

Can you first talk about what originalism is and what role it’s playing?

LL: Of course. So originalism refers to a method of interpreting the Constitution, and it generally maintains that the Constitution means what it meant when it was originally ratified, whether that’s in the 1700s, or in the case of some of the amendments, 1800s or afterwards.

And so it directs decision-makers to a time when the country was much less democratic. And therefore it’s not really surprising that originalism cropped up as a way of resisting some of the civil rights movements and advances of the 20th century. The first time you start hearing things about how the Supreme Court departed from the original intent of the framers was in the aftermath of Brown v. Board of Education, when segregationists are criticizing the court declaring segregated public schools unconstitutional. And then it really picks up steam during the 1980s in the rise of the Federalist Society and as the Ronald Reagan administration decides to lean into the backlash to feminism and the civil liberties and civil rights revolution of the 1960s. And so originalism starts to become trumpeted and advertised as the method of getting courts to roll back those civil rights advances. And I think it kind of naturally lends itself to doing so. So how does it fit in? I mean, it was a project that was pumped out and advertised as a way of accomplishing some of the Republican Party’s agenda.

And it’s no surprise that in the hands of a super majority Republican dominated Supreme Court that it does just that.

SM: So let’s talk about how this has played out in some recent decisions, specifically, decisions around reproductive healthcare. Jessica, in June you wrote about a ruling that paved the way for South Carolina and other red states to target Planned Parenthood’s funding.

Can you tell us about that decision and how it relates to ongoing fights about defunding reproductive health?

JW: Yeah, definitely. So Medina v Planned Parenthood at South Atlantic, which is the case you’re referring to, can effectively be boiled down to: Can states bar Medicaid patients from accessing a healthcare provider, in this case Planned Parenthood, for ideological reasons?

And the court’s answer was more or less, yes they can. To take a major step back though, in 2018 South Carolina’s Governor Henry McMaster attempted to exclude Planned Parenthood from the state’s Medicaid program, limiting the healthcare options for the 1.3 million South Carolinians who were in the program.

McMaster was explicit that he did this because Planned Parenthood provided abortion care, and I think it’s really important when we talk about this, remember that Medicaid in South Carolina does not cover abortion care, except in extremely limited circumstances. And lower courts have repeatedly sided with Planned Parenthood arguing that the Medicaid act, kind of ironically when we’re talking about originalism, explicitly allows recipients to pick the provider of their choice in a clause known as the free choice of provider provision.

But in June, the Supreme Court rejected those earlier interpretations in a six-three decision. They ruled against Planned Parenthood and that Medicaid recipients do not have a right to pick a specific provider. Obviously, as you’ve mentioned, this comes in a long history of Republicans trying to defund Planned Parenthood any way they can.

And this ruling extends so far beyond South Carolina, essentially granting other conservative states the leeway to also exclude Planned Parenthood from their Medicaid programs. This has massive implications for millions of low income Americans. I believe nationally, about a third of all women have received healthcare services from Planned Parenthood.

And now we’re talking about limiting access to reproductive and sexual healthcare in places where access is already abysmal and incredibly limited. I mean, we have incredibly high rates, I think, in South Carolina of maternal mortality, of sexually transmitted diseases, and really limited access to contraceptives and of course abortion care.

SM: So Professor Litman, this sounds like a pretty technical decision, but Justice Ketanji Brown Jackson writing for the three liberals wrote a pretty fiery dissent, slamming it as “part of a project of stymying, one of the country’s great civil rights laws.” How does this decision about Medicaid and Planned Parenthood and interpreting one federal statute fit into broader efforts over the decades to chip away at reproductive rights and other civil rights?

LL: Absolutely. So I would highlight two aspects of this decision that I think are relevant. One is that, in my view, it really underscores that the movement that led to the rise of originalism, the movement that led the court to overrule Roe v. Wade, it was never just about originalism. It was never just about letting the voters decide whether abortion access is protected.

It was always about this broader backlash to women’s sexual autonomy, their sexual freedom, feminism and civil rights more generally. And so of course, right, this decision is not about originalism, it’s not about the constitution. It is about how to interpret this set of federal statutes. And so it’s no surprise that even when they’re not turning to this methodology originalism — that again, was advertised as a way of rolling back Roe v. Wade and other social policy advancements — that they would do the same thing and accomplish the same result just through a different method here, interpreting statutes. 

Now, when you say Justice Jackson links this to the broader project of rolling back civil rights, as Jessica described, the question in this case is whether patients and providers can sue states when states violate federal law, the Medicaid act. Again, no real question here that South Carolina’s decision to boot Planned Parenthood violates federal law. Supreme Court, right, doesn’t deny that it does. The question is whether you can do anything when a state violates that federal law and the patients and providers had relied on this federal statute, section 1983, which is known as the General Civil Rights Law. That law was passed in the wake of the Civil War during reconstruction as a way of ensuring that private citizens can enforce their federal civil rights and get their day in federal court when states are attempting to deny them their rights. 

And that is the federal law that the Supreme Court says these patients and providers cannot rely on when South Carolina is attacking women’s access to healthcare. And Justice Jackson links the court’s decision to narrow civil rights remedies and the ability to enforce civil rights to the Supreme Court largely dismantling reconstruction in the aftermath of the Civil War.

And so I think that those are really the two projects on display in this Planned Parenthood decision, both an attack on the project of multiracial democracy, that reconstruction represented, and also this attack on feminism, the idea that women have rights.

SM: So there’s another way that this has played out recently in the reproductive healthcare arena.

Last summer, two years after overturning Roe in the Dobbs decision, the Supreme Court punted in another major abortion case out of Idaho, and we’re now starting to see the fallout from that move under the Trump administration. The case last summer was about patients’ rights to emergency abortions under the Federal Emergency Medical Treatment and Active Labor Act, or EMTALA. 

The Supreme Court sent the case back down to lower courts without ruling on what’s actually protected or not under that federal law. Jessica, so what has the Trump administration been doing recently to weaken protections for emergency abortions?

JW: Thank you for asking about this. So just to start off, EMTALA or the Emergency Medical Treatment and Labor Act requires that hospitals that take Medicare provide stabilizing care to patients experiencing medical emergencies.

So in 2022, after the fall of Roe, the Biden administration provided guidance, clarifying that if abortion care was necessary to stabilize a patient in an emergency situation, hospitals were required to do so, regardless of the abortion laws in the state and whether or not they contradicted that effort.

So in June, the Trump administration rescinded that guidance with a super vague statement, essentially saying we’re rescinding this, but kind of nothing really changes and we don’t interpret it the same way. And they said that, and I’ll read it cause I think it’s helpful to. “CMS will continue to enforce EMTALA, which protects all individuals who present to a hospital emergency department seeking examination or treatment, including for identified emergency medical conditions that place the health of a pregnant woman or her unborn child in serious jeopardy.”

It’s really not clear what they meant here. They didn’t add a ton of extra information. HHS told me that effectively nothing would change when I asked. But when I talked to providers, they told a very different story. They said the confusion caused by this new guidance would get women killed in these really uncertain and fast-paced medical emergencies where every second counts.

So essentially what the Trump administration has done here is add a bunch of confusion into our medical system that already had a ton of confusion, and this confusion gets people killed.

SM: Professor Litman, let’s talk about the Supreme Court’s role in the confusion. This seems like another example of the conservative majority on the Supreme Court using a procedural or technical maneuver to give anti-abortion Republicans and the Trump administration now free reign.

They didn’t technically weaken or change the federal law EMTALA, but they also declined to say what it meant. So can you talk about what you see in the road ahead for reproductive rights under this court?

LL: I mean, the Supreme Court has its hands all over the unfortunate catastrophe that is unfolding because states are basically being told maybe you don’t have to abide by EMTALA when it comes to abortions.

So what the Supreme Court did in this EMTALA case is it dismissed the writ as improvidently granted, which just means they decided not to decide whether EMTALA actually does prevent states from enforcing their abortion bans to prohibit hospitals from providing health and stabilizing care when that care is an abortion.

When a woman shows up to an emergency room and she’s experiencing severe complications, and the question is can we stabilize her by providing an abortion and some states restrictive abortion laws say, no you can’t. And EMTALA, right, should say, no you have to. And so by declining to decide whether EMTALA does indeed prevent states from enforcing their abortion bans in those circumstances, the Supreme Court left open the possibility that states can continue to enforce their abortion bans in those medical emergencies. And so that is what creates the uncertainty that Jessica is alluding to, whether indeed these abortion bans can be enforced against hospitals and doctors that are trying to provide life and health saving care to their patients. 

I think the second way in which the court is responsible for this catastrophe is during the period in which the Supreme Court was ostensibly deciding to decide whether to decide it, they had stayed a lower court ruling that had blocked the state from enforcing its abortion ban in these cases of medical emergencies. So what happened when the state could enforce its abortion ban in these cases of medical emergencies, women had to be airlifted out of the state in order to receive emergency care.

If you read the stories of these patients, it is appalling. 

SM: Yeah, it’s horrifying,

LL: Right, like they are telling the helicopter pilots and whatnot, tell my children I love them. They don’t remember what is happening. Women are being told, maybe get helicopter insurance because the price of these rides is just immense. 

And so the Supreme Court, again allowed the state to enforce its abortion ban during the period in which it was deciding whether to decide this case, opted not to decide it, and thereby cleared the way for the Trump administration to signal to states, don’t worry, you can enforce your abortion bans in these medical emergencies.

SM: Let’s turn to some of the other signals the Supreme Court is sending to the Trump administration and conservatives around the country. Let’s start with the birthright citizenship case. The conservative majority didn’t address whether we all still have birthright citizenship as a bedrock constitutional concept via the 14th amendment. 

Instead, they ruled that district courts couldn’t issue nationwide injunctions in a staunchly originalist decision that Justice Jackson torched in her dissent as a “smokescreen of legalese.” So Professor Litman, what’s the real impact of this decision and how does it fit into your framework of a vibe-based Supreme Court?

LL: Yeah, so the impact of this decision I think is twofold. One is the practicalities in litigation, that is, where it might actually undermine people’s ability to enforce their rights. And then the second is more atmospheric and what signals they are sending to the Trump administration as far as emboldening their attacks on lower courts.

So I’ll just start with the first, kind of like the practical rubber hits the road. What the Supreme Court did is it limited lower courts’ ability to use what has been the most effective tool that lower courts have to reign in the Trump administration’s lawlessness, which is to block a policy on a nationwide basis.

Because what the Supreme Court is saying is in order to block the administration from applying its policy to anyone anywhere, you need one of two things to happen. One is your case needs to proceed as a class action, and the second is a case could be filed by a state and a court would have to conclude that in order to remedy all of the harms to a state, the policy has to be blocked on a nationwide basis.

Now, some cases involving some policies are going to be able to clear those procedural obstacles, but not all of them are. And so what that means is in some set of cases, the Supreme Court is going to say, no, you can’t have a class action here, or your state can’t get a nationwide injunction. And what that is going to create is what Justice Jackson called a catch me if you can regime of executive lawlessness, where in order to prevent the executive brand from violating your rights, you would have to sue. And that allows the executive branch, again, to potentially implement its illegal policies in some places that didn’t opt to sue against some people, who weren’t able to get a lawyer, or weren’t able to be part of a class action that was certified. And that’s going to create this patchwork of lawlessness where the executive branch is basically free from its legal obligations.

In some ways, I think, the more concerning aspect of this decision, although that is certainly very concerning. The more concerning aspect of this decision is the Supreme Court’s choice to resolve this issue now, in the context of a case that involves some of the most egregious and blatant lawlessness. Because the Supreme Court had a choice about when to decide this question of nationwide injunctions, what case to decide it in, and also had a decision about what issues in the case to decide. That is whether they would also say, sure, you can’t get a nationwide injunction, but by the way, this executive order, super illegal in multiple ways. 

The plaintiffs challenging it asked the Supreme Court to decide those questions and by opting to decide that the issue in this case that warranted their time is the behavior of the lower courts rather than the behavior of an executive branch that is violating the Constitution, violating federal law and refusing to comply with court orders. That the problem is the lower courts? That is really going to embolden the executive branch in their continued attack on the legitimacy of lower courts enforcing federal law against the executive branch.

SM: Yeah, and since the birthright citizenship case, we’ve seen smaller decisions on the shadow docket from the Supreme Court of them just saying, no, actually we’re just going to reverse this injunction that the lower court issued 

LM: Right. 

SM: No explanation. That’s what they did in the South Sudan case. So, vibe certainly seems to be the way to think about it.

[Break]

SM: Maybe let’s turn to perhaps the most vibe based decision of the term, in my opinion: The Pride Puppy case.

LL: OK. I think I would agree with you. [Laughter]

SM: Yeah. Yeah, it’s a tough category. I would put it between this and maybe the porn case, but the Pride Puppy case. Jessica, can you briefly give us the background on this one?

JW: So in this case, parents in Montgomery County sued over the inclusion of LGBTQ+ inclusive books. These books included, as you’ve mentioned, Pride Puppy, along with a host of other books celebrating people of different queer identities. Parents argued that because they weren’t given the option to opt out of these lessons, their religious liberty was violated.

So in this case, the court ended up siding with the families. And it’s a little more complicated than that, but that saying that they were entitled to a preliminary injunction while their lawsuit went ahead. Now, I think what’s important in this case to talk about is the dissent. So in the dissent Justice Sonia Sotomayor noted this was an incredibly slippery slope, and I think a lot of legal analysts could agree.

This really opens the floodgates for parents to challenge on lessons from everything from evolution to civil rights if it violated their specific religious belief. This also clearly opens the floodgates as well for litigation from families over the inclusion of LGBTQ+ books and classrooms generally.

So I think this is a case where you can really see this kind of slippery slope argument going forward. And also, when you’re talking about this case, we’re really talking about just the inclusion of queer people in general in stories for children. We’re not talking about books that said you have to be trans or anything like that.

We’re talking about books that simply tell children it is OK to be different.

SM: Or just that they exist.

JW: Or that they exist!

SM: Their inclusion as characters.

JW: Yeah, their inclusion as human beings and people with equal value and rights. And this is definitely a backward slide.

LL: Jessica, I agree with your reading of the books. But I think Shawn, why this decision takes the cake on the most vibes-based is because when Justice Samuel Alito and the other Republican appointees looked at the books, they picked up different vibes. And the vibes they picked up is these story books, which again involve a pride parade, and a puppy in a rainbow bandana, and a woman in a leather jacket, and a book in which a girl’s favorite uncle is going to get married, just so happens gets married to a man, and the girl’s concerned that her favorite uncle will have less time to spend with her.

SM: Filth, absolute filth.

LL: [Laughs] The vibes that he picked up and the other Republican appointees is what the books were saying is you have to accept marriage equality or trans people because otherwise you are evil.

Like literally, if you read the opinion, Justice Alito talks about this storybook, “Uncle Bobby’s Wedding,” and says, the book is coy about the precise reason why little Chloe objects to her uncle’s wedding. And it’s like, it’s not coy about this at all. But again, he picks up some different vibes because the books involve gay people and trans people, and he just can’t live with that.

SM: So this ties into a chapter of your book about the Supreme Court’s really scavenger hunt for religious discrimination as part of the conservative blowback to queer people just finally getting some legal rights in landmark cases like Lawrence v Texas in 2003, which struck down state sodomy laws, and of course the Obergefell decision in 2015, which legalized same sex marriage.

So can you give us a bit of the historical context for how we got to Justice Alito’s very particular reading of Pride Puppy?

LL: Yeah. So here too, the story really starts with the political and social movement that the Republican Party capitalized on. And in the midst of this backlash to feminism, there is also a backlash to advancements in LGBT rights.

So my book talks about Anita Bryant, who is this former pageant queen who appeared in Florida orange juice commercials, and she kinda leads this crusade against LGBT rights. And she insists she’s not doing so out of hate, but out of love. And that the problem is that, as she calls it, the homosexuals around the country have the support of liberal politicians and they’re filled with religious bigotry.

And so it’s these ideas that get incorporated into the Republican Party’s resistance to LGBT equality, where they paint efforts to obtain civil rights for the LGBT community as actually attacks on those religious believers who are opposed to LGBT equality. And you start to see these ideas surface in the dissents to those major cases that represented victories for LGBT equality.

In Obergefell v. Hodges, the marriage equality decision, Justice Alito talks about how that decision, to again, recognize that same sex couples can get marriage licenses, how that is going to facilitate the marginalization of people with traditional views about marriage. And he says it will call to mind the harsh treatment of gays and lesbians in the past. As if allowing gay people to get married is just like prohibiting them from getting married and a period in which you could be institutionalized for consensual sexual intimacy with a person of the same sex. That’s the mindset that was in play among the Republican appointees on the Supreme Court, and that is now the mindset that you can see surfacing in their majority opinions.

They deny that there is discrimination against LGBT people at the same time that they insist any and all equality for LGBT individuals is actually discrimination against the religious and social conservatives who are opposed to LGBT equality. And based on that idea, they are chipping away at LGBT equality and giving people with objections to marriage equality the ability to opt out of civil rights laws that prohibit discrimination on the basis of sexual orientation or gender identity. And so it’s that kind of long arc that I trace in political and social movements and then identify in the writings of the Republican appointees on the court today.

SM: Right. One of the really formative moments for me in law school was reading Justice Scalia’s descent in Lawrence.

LL: Oh yeah.

SM: And I mean, I had heard of Scalia all my life as this kind of lion of originalism and rigorous legal thought, but then if you read the entirety of his dissent, there’s some pretty bigoted zingers in there that didn’t quite make the news coverage at the time.

LL: Yeah. He talks about how people are entitled to protect themselves and their families from what they view as an immoral or destructive lifestyle. That is how he talks about that case.

SM: Yeah. And the capture of the homosexual agenda.

LL: Oh, yeah. The court has signed on to the homosexual agenda. It’s like, oh my gosh. 

SM: Before we wrap up, I want to talk a bit about the court’s two most recently confirmed justices. There’s Justice Amy Coney Barrett, the conservative appointed by Trump, who going into this term, was being framed as a moderate or kind of a wild card in the conservative majority by some commentators, especially compared to some of the other Trump picks for SCOTUS. And then there’s Justice Ketanji Brown Jackson, who’s leaning into the role now of writing these blistering, very clear-eyed dissents sometimes just for herself.

So Professor Litman, what did we learn from this term about these two justices?

LL: I think what we learned about Justice Jackson is that she is really the next frontier of what I hope will be Democratic appointees to the courts in that she recognizes what her Republican colleagues are up to and she is willing to call it out in ways that lay plain. You know, the slipperiness of their maneuvers, how selective they are in their approach to legal rules, and the underlying ideology that is doing work at issue in these cases. And I think her willingness to do that is, from my perspective, greatly appreciated, very powerful, and calls more attention to the Supreme Court than they would otherwise get in a world of more subdued dissents or a world where the Democratic appointees are engaged in appeasement and trying to make compromises with the Republican appointees to accomplish what, I don’t know, but I appreciate her recognition that that is not the strategy right now. Especially in a world where the court is six to three Republican appointees.

And I have found her writings and her statements off the bench to just be incredibly persuasive and memorable and also accessible. Justice Barrett, I was not one of the people that thought she was some secret, moderate, liberal squish. So what we learned is that people trying to sell that narrative, were selling us a false bill of goods.

This is a rock-ribbed right-wing conservative, who just so happened to say a state court in New York could engage in an electronic remote sentencing of Donald Trump on those 34 felony convictions, as long as he was going to impose no prison time. Like that was one of the cases in which she departed from her Republican colleagues, in which everyone was making some big deal about it.

And then, I can go into the other examples. But the point is, they weren’t that big a deal. And she was with them on the big ticket cases and in fact, she’s to their right on some issues. 

SM: Yeah, exactly.

LL: In Skrmetti, the case about, yeah, the ban on gender affirming care for trans kids, the Chief Justice’s majority said, oh, this law doesn’t actually discriminate against trans people. And she wrote separately to say, but even if it did, I would be fine with that and still treat it as constitutional. So this is not some secret moderate who’s going to save us.

SM: Yeah. Her concurrence in Skrmetti was wild, especially since from her wing of the court, you’re not supposed to talk about things that are necessary to the decision.

So to kind of pull in this really farfetched argument that it would be really hard to show that trans people have been subject to de jure or by law discrimination was the thrust of her concurrence, which Justice Thomas signed onto. And what world, this century or another, can you make that statement with a straight face? It’s not a moderate result. I agree. 

Jessica, do you have any thoughts, particularly reading some of the dissents that you’ve covered from Justice Jackson?

JW: I think what’s really interesting to me is in Washington, collegiality is so important. Waiting your turn is so important, you know, not speaking before your time. And the fact that she’s been willing to, especially in the Supreme Court, throw that out the window: speak openly, speak often, speak forcefully, call out her colleagues — I think we’re seeing, as Professor Litman pointed out, we’re seeing really this shift in Jackson and hopefully a shift that we see maybe from some lawmakers as well.

But this recognition that we’re not in regular times, we are in this really quick descent, I would argue, towards something akin to fascism. And the fact that she recognizes that and is willing to speak on that is such a shift in this court, and it feels so important in this moment.

SM: I agree. We’ve talked about the bleakness of recent Supreme Court decisions. Let’s end maybe by looking to the future and how our democracy might find ways to repair some of the damage. Professor Litman, in your book’s conclusion, you come out in favor of expanding the court and also give some other thoughts on countering the conservative reshaping of the judicial branch.

So how can we, get past all the damage that the Supreme Court has inflicted so far, and probably will keep inflicting at least for the rest of Trump’s term?

LL: It’s really two things. One are the specific proposals you can enact into law to democratize an institution like the Supreme Court.

And then the second is all of the things that need to be done in order to get us to a point where we can actually adopt those reforms. So it’s easy enough to list the things that I think have to be done from Supreme Court expansion, to limiting the Supreme Court’s authority to strike down laws like the Voting Rights Act, to ethics reform, to all of the other things that would be very helpful to making the Supreme Court a better functioning institution, giving Congress more control over the kinds of cases the Supreme Court hears, or creating term limits, like all of that would be great. And then the question is: OK, how do we get from here to that world?

And this answer is always frustrating to people and they don’t like to hear it, but it’s going to take a while to change an institution like the Supreme Court. And there are going to be things we have to invest in that are not going to yield immediate returns. From public education and information to organizing, to investing in state and local elections and primaries to identify those democratic leaders who understand the situation in the same way that Justice Jackson understands the situation, contra other democratic politicians and leaders. 

So, those are some steps, and that involves organization that involves education, and that involves staying committed to the strategy over the long haul, because again, it’s not something that’s going to get fixed merely by securing a good outcome in the midterms or the next presidential election because the reality is the Democratic Party is still the way it is. And part of the work that has to be done is either reshaping and reforming the Democratic Party so that it understands and responds to the situation we find ourselves in, or changing enough people’s minds to create enough pressure on the current democratic leaders and democratic political elites to do that.

SM: Jessica, do you have any thoughts?

JW: So my two cents are definitely from the people I’ve spoken to, court expansion, and then also just the extent to which we’ve seen so much corruption within the court, really unchecked — unchecked by Congress, even though that is their role. So definitely some real checks and balances on the Supreme Court that we just haven’t seen before, seems to be very important especially with everything that has come out — thank you ProPublica — about Clarence Thomas. It definitely seems like a little more rules in the Supreme Court would help us out.

SM: Alright. And with court expansion and Pride Puppy. I think we’re gonna leave this conversation there.

Thank you so much Professor Litman for joining us on the Intercept Briefing.

LL: Thanks for having me

SM: And thanks for joining Jessica.

JW: Thank you.

SM: Last month, the Supreme Court upheld a ban on gender-affirming care for trans kids in Tennessee. 

In her dissent, Justice Sonia Sotomayor wrote, “The majority subjects a law that plainly discriminates on the basis of sex to mere rational-basis review. By retreating from meaningful judicial review exactly where it matters most, the Court abandons transgender children and their families to political whims. In sadness, I dissent.” 

Ella, from Los Angeles gave us a call to share how her mom and other mothers of trans children are organizing. Here’s Ella. 

Ella: My mother, I don’t know that she would personally call herself an activist, but her and a bunch of moms from greater Los Angeles who have trans children are currently working on a massive spreadsheet of essentially hundreds and hundreds of trans resources.

They’re trying to find tips about possible laws, talking to lawyers, and have created a really incredible and powerful network of support. I think it’s really moving the lengths that these women are going for their children. Something that I cling to when I think of how scary a lot of these times are.

SM: Thanks for sharing, Ella.

That does it for this episode of The Intercept Briefing. 

We want to hear from you. 

Share your story with us at 530-POD-CAST. That’s 530-763-2278. You can also email us at podcasts at TheIntercept.com. 

This episode was produced by Truc Nguyen. Laura Flynn is our Supervising Producer. Sumi Aggarwal is our executive producer. Ben Muessig is our editor-in-chief. Chelsey B. Coombs is our social and video producer. Fei Liu is our product and design manager. Nara Shin is our copy editor. Will Stanton mixed our show. Legal review by David Bralow. 

Slip Stream provided our theme music.

You can support our work at theintercept.com/join. Your donation, no matter the amount, makes a real difference. If you haven’t already, please subscribe to The Intercept Briefing wherever you listen to podcasts. And tell all of your friends about us, and better yet, leave us a rating or a review to help other listeners find us.

Until next time, I’m Shawn Musgrave. 

Thanks for listening.

The post Executive Lawlessness: Leah Litman on the Supreme Court Enabling Presidential Overreach  appeared first on The Intercept.

The independent agency — which oversees payday lenders, credit card companies, and student loans — has long been a partisan target. And as it turns out, its funding mechanism is perfectly constitutional, the court ruled Thursday in a 7-2 decision. 

Its conclusion was straightforward: When it created the CFPB, Congress passed a law that authorized expenditures from specific sources to fund the agency. This satisfies the Appropriations Clause of the Constitution, the court ruled.

The attack on the CFPB is not the only challenge brought this term by conservative opponents of modern regulatory agencies. In as-yet-undecided cases, the Supreme Court will consider whether to curtail the powers of the Securities Exchange Commission and whether to gut a landmark standard for all regulatory oversight. Challenges to the National Labor Relations Board are working their way through lower courts. 

In all three cases before the Supreme Court this term, legions of conservative legal luminaries urged the justices to shrink the administrative state. In the CFPB challenge, however, they lost even Justice Clarence Thomas, who wrote the majority opinion, plus three others from the Court’s conservative supermajority. Only Justices Samuel Alito and Neil Gorsuch dissented.

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As The Intercept reported last year, the case was brought and bankrolled by payday lenders, who asserted the way the CFBP is funded is unconstitutional. If so, every regulation the CFPB ever issued was potentially invalid — including rules issued in 2017 for high-interest loans, which irked payday lenders. 

Congress designed the CFPB in response to the 2008 financial crisis, engineering it to be shielded from certain political winds via provisions insulating its funding and leadership in ways that differ from most federal departments. Four years ago, in a sign that the Roberts Court was eager to hear these kinds of broad challenges, the Supreme Court invalidated provisions regarding CFPB’s leadership structure but left it otherwise intact.

The latest attempt to finish off the CFPB came with impeccable conservative provenance. In 2022, a panel of the Fifth U.S. Circuit Court of Appeals — all appointed by former President Donald Trump — ruled that CFPB’s funding mechanism was unconstitutional. 

Before the Supreme Court, former solicitor general Noel Francisco, who clerked for late Justice Antonin Scalia and notoriously refused to defend the CFPB during his tenure in the Trump administration, argued for the payday lenders. A slew of friend-of-court briefs urged the court to sink the CFPB or at least cut off its funding, including conservative stalwarts like the U.S. Chamber of Commerce, New Civil Liberties Alliance, a coalition of Republican attorneys general, and the omnipresent John Eastman.

In a rebuff, the Supreme Court majority rejected these arguments, concluding its funding model was indeed constitutional. 

What divided the justices — even within the majority — was one of the central disagreements ushered in by Scalia and his fellow originalist revolutionaries on the bench: When the government faces thoroughly modern issues like regulating credit card penalties and semiautomatic weapons, should ancient history matter? 

Justice Thomas, an arch-originalist, went as far back as the Middle Ages, the Magna Carta, and the Glorious Revolution. His opinion, which was signed by the full majority, dwelled on how the First Congress allocated money to agencies, and barely peeked past 1800. 

In a concurring opinion, Justice Elena Kagan pointed out that there are a couple more centuries to consider. “The way our Government has actually worked, over our entire experience, thus provides another reason to uphold Congress’s decision about how to fund the CFPB,” Kagan wrote. Justice Sonia Sotomayor co-signed that view, along with conservative Justices Amy Coney Barrett and Brett Kavanaugh.

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Justice Ketanji Brown Jackson, meanwhile, writing only for herself, suggested that sometimes ancient history has limited lessons for 21st-century issues like financial regulation. “In response to the devastation wrought by the 2008 financial crisis, Congress passed and the President signed the Dodd-Frank Wall Street Reform and Consumer Protection Act,” she wrote, noting that the payday lenders challenging CFPB were “exactly the type of entity the Bureau’s progenitors sought to regulate and whose influence Congress may have feared.”

“An essential aspect of the Constitution’s endurance is that it empowers the political branches to address new challenges by enacting new laws and policies — without undue interference by courts,” Jackson wrote.

In dissent, Justices Alito and Gorsuch howled that the “Framers would be shocked, even horrified” by the CFPB. Alito’s dissent cited Montesquieu, the practices of “the early Stuart kings” in the 1600s, and the accounting methods of Alexander Hamilton, and threw in a gratuitous shoutout to an infamous 17th-century witch trial judge, Sir Matthew Hale, who birthed the legal notion that husbands cannot be prosecuted for raping their wives, which continues to haunt legal systems worldwide. 

Alito concluded: “Today’s decision is not faithful to the original understanding of the Appropriations Clause and the centuries of history that gave birth to the appropriations requirement, and I therefore respectfully dissent.” 

The Court is expected to issue its remaining decisions regarding regulatory agencies’ authority and structure by July. 

Sen. Elizabeth Warren, D-Mass., who proposed establishing the CFPB as a law professor, praised the ruling but looked ahead to future challenges. 

“This isn’t the last attack on the CFPB we’ll see from Wall Street, the banks & their Republican allies,” Warren tweeted. 

The post The Consumer Finance Protection Bureau Is Constitutional, After All appeared first on The Intercept.

Never mind the two-day evidentiary hearing years earlier, which convinced a federal district judge that Smith had an intellectual disability — and that executing him would amount to cruel and unusual punishment. Never mind the three-judge panel of the 11th U.S. Circuit Court of Appeals that agreed. And never mind the decades of Supreme Court precedent contradicting Alabama’s position. Today’s Supreme Court was no longer bound by its own case law.

“Nothing in the Eighth Amendment bars the sentence Joseph Smith received for murdering Durk Van Dam nearly 30 years ago,” Overing began. Although the landmark 2002 decision in Atkins v. Virginia banned the execution of people with intellectual disabilities, Smith did not qualify. “He didn’t come close to proving an IQ of 70 or below.”

An IQ score of 70 has traditionally been considered a threshold for intellectual disability. Smith’s scores hovered above that, ranging from 72 to 78. But under well-established clinical standards, this makes him a “borderline” case. Experts — and the Supreme Court itself — have long recognized that IQ tests have an inherent margin of error. And they have relied on an array of additional evidence to assess whether a person is intellectually disabled. As now-retired Justice Anthony Kennedy wrote over a decade ago in Hall v. Florida, which explicitly struck down a rigid IQ requirement of 70, “intellectual disability is a condition, not a number.”

Under Atkins — and under Alabama law — decision-makers are bound by a three-part test: whether a person has limited intellectual functioning (determined in part by IQ); whether they struggle with “adaptive” functioning (the social and practical skills that make up day-to-day life); and whether those struggles manifested before the age of 18. The federal judges who ruled in Smith’s favor had applied this very test. But Overing discounted this. He had an alternative narrative: The judges had gone rogue.

To help Smith escape execution, he argued, the judges plucked his lowest score and rounded down in his favor, then leaned on lesser evidence as proof of his intellectual limitations. “The sentence ‘Smith’s IQ is below 70’ doesn’t appear in the District Court’s opinion, nor in the Court of Appeals opinion,” he said. The courts “changed the standard.”

“It seems to me that you are actually changing the standard,” Justice Ketanji Brown Jackson cut in. The court opinions didn’t include “IQ is below 70” because that isn’t the law. The first prong of the three-part test requires “a showing of ‘significant subaverage general intellectual functioning,’” she said. “I think what you’ve done is shift this to be all about the IQ test in a way that is not supported by our caselaw.”

“I’m having a really hard time with this case,” Justice Sonia Sotomayor said. Overing was accusing the lower courts of violating a standard that does not actually exist. The record showed that the federal judges adhered to Supreme Court precedent. Hall invalidated the strict 70 IQ requirement. And a subsequent case, Moore v. Texas, emphasized that states could not rely on outdated medical standards to reject intellectual disability claims.

The lower federal courts followed the law. “It’s exactly what we told people to do in Hall, it’s exactly what we told people to do in Moore,” Sotomayor said.

She then cut to the heart of the matter: “What you’re asking us to do is to undo those cases.”

On paper, the question in Hamm v. Smith is narrow: “Whether and how courts may consider the cumulative effect of multiple IQ scores” in deciding whether a condemned prisoner has an intellectual disability.

This question has never been explicitly answered by the Supreme Court. But while Alabama insisted that judges nationwide are yearning for guidance, its appeal to the court was rooted less in questions of law than in political opportunism. In the Trump era, the court has become a friendly forum for right-wing ideologues, with conservatives eagerly asking its supermajority to dismantle any pesky legal precedents obstructing their agenda.

Before Wednesday’s oral argument, it seemed likely the justices would find a way to give the state of Alabama what it wants. The only question was how far they might go. Some conservatives hoped they might take aim at the Eighth Amendment itself — specifically the long-standing principle that criminal punishments must be guided by “the evolving standards of decency that mark the progress of a maturing society.” One amicus brief, submitted on behalf of 18 Republican attorneys general, insisted that this framework must be dismantled. “The Court should never have told judges to chase after the country’s ‘evolving standards of decency,’” they wrote.

It is no secret that Justices Clarence Thomas and Samuel Alito agree with this sentiment. But the scene at the court suggested that Hamm may not be the case where they tear it all down. The two-hour oral argument was mired in confusion over what, exactly, Alabama was talking about. “I’m confused,” Justice Amy Coney Barrett told Overing at one point, echoing Sotomayor. “It doesn’t seem like Alabama prohibits” what the district court did in Smith’s case.

When it came to the supposed question at hand — how to reconcile multiple IQ scores — Overing’s proposed solutions were not exactly subtle. One option, he said, was to simply adopt the highest IQ score, “because there are many ways that an IQ test can underestimate IQ if the offender is distracted, fatigued, ill or because of the incentive to avoid the death penalty.”

“You can see why that might be regarded as a little results-oriented,” Chief Justice John Roberts replied.

With a ruling not expected until next summer, Smith’s life hangs in the balance. After decades facing execution, his journey to Washington shows how case law that evolved to reflect scientific understandings is now under siege at the court. It is also emblematic of the way in which conservatives are exploiting the high court’s growing disregard for its own precedents and for federal courts trying to follow the law.

Joseph Clifton Smith had just gotten out of prison in November 1997 when he met a man named Larry Reid at a highway motel outside Mobile. The pair encountered a third man, Michigan carpenter Durk Van Dam, and decided to rob him. They lured him to a secluded spot and fatally beat him with his carpentry tools, some of which Smith later tried to sell at a pawn shop.

Smith was quickly arrested and gave two tape-recorded statements to police. At first he denied participating in the attack. But in a second interview, Smith implicated himself in the murder.

His 1998 trial was swift and stacked against him. The presiding judge was Chris Galanos, a former Mobile County prosecutor who had prosecuted Smith for burglary just a few years earlier. Smith’s defense lawyers called no witnesses during the guilt phase and largely conceded the version of events presented by the state. This was due, at least in part, to the paltry pay and meager investigative resources provided to court-appointed lawyers.

The jury convicted Smith in less than an hour.

At the time of Smith’s trial, there was no prohibition on executing people with intellectual disabilities. The Supreme Court had refused to impose such a ban in its 1987 ruling in Penry v. Lynaugh. But it ruled that a diagnosed intellectual disability could be used as mitigating evidence to persuade a jury to spare a defendant’s life.

Smith’s lawyers called Dr. James Chudy to testify at the sentencing phase. The psychologist traced Smith’s struggles to the first grade, when Smith was described as a “slow learner.” In seventh grade, he was labeled “educable mentally retarded.” Soon thereafter, Smith dropped out of school.

Chudy gave Smith an IQ test, which yielded a result of 72. According to Chudy, this placed Smith in the bottom 3 percent of the population intellectually. But he also explained that he had to consider “a standard error of measurement of about three or four points.” Thus, Smith’s true IQ “could be as high as maybe a 75,” Chudy testified. “On the other hand he could be as low as a 69.”

Smith’s disability was exacerbated by his harrowing family life, which was marked by severe poverty and abuse. The environment denied him the extra care he needed. As his trial lawyers later argued in a plea for mercy, “He came into the world with a very, very limited IQ. … He had no family support in that respect and that’s how he came to be where he is.”

But prosecutors urged jurors to apply “common sense.” “There are folks out there with marginal IQs who are street wise,” one prosecutor said. “This man’s been in prison, this man’s been around.” If jurors did not sentence Smith to die, he argued, they were saying the victim did not matter. “There was no value in his life and there was no meaning in his death.”

Jurors recommended a death sentence by a vote of 11 to 1.

Smith had been on death row for three years when the U.S. Supreme Court announced that it would reconsider its decision in Penry. In the intervening years, numerous states had passed bans on executing people with intellectual disabilities. As the oral argument in Atkins approached, the Birmingham News ran a special report declaring that Alabama led the nation in the “shameful practice.” Defendants with intellectual disabilities were not only less culpable for their actions, they could be “easily misled and eager to win investigators’ approval.”

The following year, the Supreme Court handed down Atkins, officially prohibiting the execution of people with intellectual disabilities. Reacting to the decision, Alabama Attorney General Bill Pryor said he would follow the law. “But we will also be vigilant against those who would deceive the courts by claiming they are [intellectually disabled] when they’re not.”

The protections of Atkins have never been guaranteed. The court left it to the states to decide how to enforce its ruling, prompting efforts to circumvent the decision altogether.

While to date Atkins has led some 144 people to be removed from death row, according to the Death Penalty Information Center, others have been put to death despite evidence that their executions were unconstitutional. In 2025 alone, three men have been executed despite diagnoses of intellectual disability. One, Byron Black, was executed in Tennessee, even after the current district attorney acknowledged that killing him would violate the law.

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Since Atkins, Alabama has executed at least four people despite evidence of intellectual disability. All of them were represented by court-appointed attorneys who were denied the resources to properly defend their clients — and whose decisions sometimes made matters worse. In the case of Michael Brandon Samra, who was executed in 2019, trial lawyers did not hire an expert to evaluate him. Instead, they told jurors the murder was rooted in his membership in a Satan-worshipping gang.

Smith spent years trying to challenge his death sentence under Atkins. After losing in state court, he was appointed lawyers with the Federal Defenders for the Middle District of Alabama, who filed a challenge in federal court arguing that Smith “suffers from significant intellectual and adaptive limitations,” only some of which were presented at trial. But they were up against onerous procedural barriers. Alabama’s Criminal Court of Appeals had rejected the evidence of Smith’s intellectual disability — and a federal judge could only reverse the decision if it clearly violated the law. In 2013, U.S. District Court Judge Callie Granade ruled against Smith.

But that same year, the Supreme Court agreed to hear Hall v. Florida, which would strengthen the ruling in Atkins. The case centered on a man whose IQ scores ranged from 71 to 80. Because Florida law required a strict cutoff of 70, his appeals were rejected.

Famed Supreme Court litigator Seth Waxman delivered the oral argument in Hall. He began by reiterating the three-part definition of intellectual disability used by experts and established in Atkins: a “significantly subaverage intellectual function concurrent with deficits in adaptive behavior with an onset before the age of 18.” Because of the “standard error of measurement” inherent in IQ tests, he said, “it is universally accepted that persons with obtained scores of 71 to 75 can and often do have [an intellectual disability].”

The argument grappled with the challenge of multiple IQ scores. There were no easy answers. When Florida’s solicitor general argued that “the best measure of your true IQ is your obtained IQ test score,” Justice Elena Kagan pushed back. “The ultimate determination here is whether somebody is [intellectually disabled],” she said. IQ tests were not even a full piece of the three-part puzzle. “What your cutoff does is it essentially says the inquiry has to stop there.”

In 2014, the court struck down Florida’s law by a vote of 5 to 4.

The next year, the 11th Circuit reversed the District Court’s decision in Smith’s case. The judges found that Alabama’s Court of Criminal Appeals had improperly relied on Smith’s unadjusted IQ scores to conclude that there was no evidence of intellectual disability. The court sent the case back to Granade, who granted an evidentiary hearing.

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Two months before the hearing, the U.S. Supreme Court handed down yet another decision bolstering Smith’s case. The ruling in Moore v. Texas struck down Texas’s peculiar method for determining intellectual disability, which was rooted more in stereotypes than science. “In line with Hall,” it read, “we require that courts … consider other evidence of intellectual disability where an individual’s IQ score, adjusted for the test’s standard error, falls within the clinically established range for intellectual-functioning deficits.”

In May 2017, Granade presided over an evidentiary hearing in Montgomery. Over two days of testimony, experts shed light on modern understandings of intellectual disability and how it was reflected in Smith’s life. Because he’d spent much of his adult life incarcerated, it was hard to evaluate his ability to live independently. But he’d struggled in the outside world, living in hotels, following others, and behaving recklessly and impulsively.

The hearing also highlighted the very stereotypes that often prevent lay people from recognizing intellectual disabilities. A state lawyer asked one of Smith’s experts if he was aware that Smith had been paid to mow lawns at 14 and later worked as a roofer and painter. None of these jobs were inconsistent with a mild intellectual disability, the expert replied. Was he aware that Smith claimed he “always had money in his pocket and he always worked full time?” the lawyer asked. The expert replied that, while this may have been true, people with intellectual disabilities often try to downplay their struggles; some “exaggerate their competencies and what they can do.”

Granade ultimately vacated his death sentence. “This is a close case,” she wrote. “At best Smith’s intelligence falls at the low end of the borderline range of intelligence and at worst at the high end of the required significantly subaverage intellectual functioning.” Given the ambiguity as to the first of Atkins’s three-prong test, she turned to the second and third prongs. “Whether Smith is intellectually disabled will fall largely on whether Smith suffers from significant or substantial deficits in adaptive behavior, as well as whether his problems occurred during Smith’s developmental years,” she wrote. The evidence showed that the answer to both questions were yes.

After 23 years on death row, Smith was no longer facing execution.

It would not take long for Alabama to fight back. In February 2023, the case landed back at the 11th Circuit for an oral argument. Speaking before a three-judge panel, a lawyer for the state attorney general’s office disregarded Granade’s careful consideration of the evidence, accusing her of simply cherry-picking “the lowest, least reliable score” in order to vacate Smith’s death sentence.

The judges were skeptical. The state’s briefs ignored the Supreme Court’s rulings in Hall and Moore. “It seems to me like they are the controlling precedent here,” one judge said. Yet the only time the state acknowledged the rulings was to cite the dissents.

Another judge had been on the panel that sent the case back to the district court in 2015. “What we concluded in that opinion was that other pieces of evidence should be considered, together with the IQ scores, to determine whether or not Smith is intellectually disabled,” he said. Granade did precisely this. In fact, he pointed out, not doing so would have violated the law.

The 11th Circuit ruled in Smith’s favor.

By then, the U.S. Supreme Court was a vastly different court from the one that decided Hall and Moore. The power was now firmly entrenched in a conservative supermajority that was dramatically reshaping — and in many cases, eviscerating — the rule of law. In a petition to the justices, Alabama accused the lower federal courts of “placing a thumb on the scale in favor of capital offenders.”

Lawyers for Smith countered that the state was distorting the facts and the law. Alabama continued to insist that the lower courts had manipulated a single IQ score to reach its conclusions. In reality, Smith’s attorneys argued, their opinions were rooted in expert testimony, Supreme Court precedent, and a “thorough review of the evidence.”

Nevertheless, in 2024, the Supreme Court vacated the 11th Circuit’s ruling. Before agreeing to hear the case, however, it sent the case back for an explanation. The 11th Circuit’s decision could “be read in two ways,” the justices said. Either it gave “conclusive weight” to Smith’s lowest IQ score, or it took “a more holistic approach to multiple IQ scores that considers the relevant evidence.”

The 11th Circuit replied that it had done the latter, firmly rejecting Alabama’s claim that it relied on a single score. But the narrative had already opened the door for Alabama, teeing up the case for argument. The Supreme Court put Hamm v. Smith on its 2025 docket.

By the time Overing stepped down from the podium on Wednesday, Sotomayor was fed up. “Show me one case in Alabama that has followed your rule,” she demanded to no avail. She pointed out that the state expert who testified at Smith’s evidentiary hearing had himself relied on information beyond his IQ scores. “Your own expert did exactly what you say is wrong.”

She also pushed back on the claim that states were confused about how to handle Atkins claims. “Although you try to reap some confusion,” she said, “they all seem to be following the method the district court here followed.” A rigid new rule was bound to create new complications.

Even the lawyer representing the Trump administration, who argued in support of Alabama, didn’t quite align with Overing’s argument. A judge was free to consider evidence apart from IQ, he conceded. But “you still need to circle back” and decide whether the other evidence is “strong enough to drag down the collective weight of IQ.” The problem remained how, exactly, to calculate this.

The conservatives seemed open to trying. Justice Brett Kavanaugh went through Alabama’s proposals, from identifying the median score to an “overlap approach” considering each score’s error range, to simply calculating the average. They all seemed to favor the state.

But as Jackson pointed out, none of these methods have been adopted by Alabama. She still did not see how the justices could reverse the District Court. “I’m trying — trying — to understand how and to what extent the District Court erred in this case given the law as it existed at the time … as opposed to the law Alabama wishes it had enacted.”

Alito, too, seemed frustrated, albeit for different reasons. Shouldn’t there be “some concrete standard” for a person claiming to be intellectually disabled as opposed to a situation where “everything is up for grabs”? But the same question had been raised in Hall more than a decade earlier, only for the court to conclude that the matter was too complex for hard rules. At the end of the day, the science still mattered. IQ was not enough. And where the death penalty is concerned, courts still have a unique obligation to consider people’s cases individually.

The third and last lawyer to face the justices was Seth Waxman — the same litigator who successfully argued Hall. Forced to relitigate issues that had been decided more than 10 years earlier, he found some common ground with his adversaries. Replying to a dubious theoretical from Alito — What if the IQ scores were five 100s and one 71? — Waxman said a judge could probably safely decide that such a person was not intellectually disabled without too much attention to additional factors.

But by the end, they were going in circles. “So in just about every case then, IQs and testimony about IQs can never be sufficient?” Alito asked.

“I don’t know how to —” Waxman began, before interrupting himself. “I have given you every possible answer that I have.”

The post Alabama Begs Supreme Court to Make It Easier to Execute People With Intellectual Disabilities appeared first on The Intercept.

Like many who knew Sanchez, Beattie couldn’t believe he’d committed such a horrible crime. She’d never known him to be violent — not like Glen, who could be terrifying. One Valentine’s Day, she said, Glen put a gun to his head at his home in Norman, Oklahoma, only to swing it around and put a bullet in the wall. Other times she saw Glen put a gun to Sanchez’s head. Although she said he never hit her — she threatened to stab him the one time he tried — Glen inflicted “mental abuse.” He was especially sadistic during sex, raping her repeatedly.

Still, it wasn’t until many years after Sanchez was sentenced to death that Glen started dropping hints that there was more to the story of his son’s case. On Friday nights, they would drink in a shed behind Beattie’s house, where Glen had put a warning sign: “WHAT HAPPENS IN THE MAN CAVE STAYS IN THE MAN CAVE.” It was there that Glen brought up Busken.

“He’d just all of a sudden start talking about her,” Beattie said. He said ugly things, calling her “the ballerina girl” or “that Busken bitch.” Perhaps most chilling, “He’d always say, ‘I should’ve done a better job at it.’” When Beattie asked Glen if he was saying what it sounded like, he deflected. She didn’t press him. But she came to call those nights “his confession time.”

Beattie always knew Glen had secrets. In the decades he came in and out of her life, he showed up when he needed a place to crash and refused to answer questions. He parked his black Trans Am behind her house so it wasn’t visible from the street. “Probably because he was running from something,” she said.

But in the spring of 2022, Glen was dying of cancer and spending his time on the couch in her home. Oklahoma was on the verge of setting a slew of execution dates, and Sanchez was likely to be among the men scheduled to die. One day Glen brought up the murder again. “He just made it sound like he was there,” Beattie said. He said his son didn’t know how to tie the knots that had bound Busken’s wrists. And he repeated something he often said: that he never could have survived prison like Sanchez. “‘He’s a bigger man than I am,” Glen said.

On April 24, 2022, Beattie was in her bedroom talking on the phone. The 10 o’clock news had just come on when she heard a gunshot. She ran outside to find Glen dead on her front porch. Beattie was still processing his suicide months later. “You sit here and wonder: Did you really want to die because you don’t want the truth out there? Are you making your son pay for what you did?”

Beattie told her story on an icy morning in late January, at her home outside Oklahoma City. Her adult son Charles played “Assassin’s Creed” in the living room. Charles had negative memories of Glen from childhood. “Whenever I knew that he was coming back, I had bad dreams,” he recalled.

Beattie first shared her account with Sanchez’s death row spiritual adviser, who persuaded Sanchez’s attorneys to look into it. Although the lawyers, Mark Barrett and Randall Coyne, had sought funds to hire an investigator before filing Sanchez’s federal habeas petition in 2011, their motion was denied. In an unusual arrangement, they agreed to use money raised by the abolitionist group Death Penalty Action. Last December, a private investigator named David Ballard came to Beattie’s home and took a statement. He also collected personal items belonging to Glen, including a cowboy hat and a toothbrush. They planned to test the items for DNA.

In February, Barrett and Coyne filed a state post-conviction petition with the Oklahoma Court of Criminal Appeals. It included an affidavit from Beattie recounting Glen’s “confessions” and explaining why she had never come forward before. “I was too scared of Glen while he was alive to even consider revealing what he admitted to doing,” it read. The attorneys asked for a hearing on the new evidence.

Three weeks later, Oklahoma Attorney General Gentner Drummond filed a response. The office had obtained a blood sample from Glen through the medical examiner’s office, which was analyzed by the Oklahoma State Bureau of Investigation. The DNA “does not match” the profile from the case, the bureau said. The results confirmed “what the state and the courts have already known for many years now,” Drummond wrote. Sanchez — and Sanchez alone — was responsible for murdering Busken.

Now 44, Sanchez is scheduled to die at the Oklahoma State Penitentiary in McAlester on September 21. He has insisted on his innocence for almost 20 years. His pleas have been dismissed by prosecutors, the courts, and, according to Sanchez, his own attorneys, who have never been able to overcome the incriminating DNA. Earlier this year, Sanchez asked a federal judge to replace Barrett and Coyne with an attorney introduced to him by his spiritual adviser, Jeff Hood. After his motion was denied, Sanchez waived his clemency hearing. A month later, Barrett and Coyne withdrew from the case.

The state of Oklahoma maintains that its evidence against Sanchez was overwhelming. Prosecutors say he abducted Busken from her Norman apartment complex early on the morning of December 20, 1996. He forced her into her car and drove to Lake Stanley Draper, where he raped her and shot her in the back of the head. The case hinged on two critical pieces of evidence: DNA taken from sperm found on Busken’s underwear as well as a leotard left at the scene.

Sanchez has long contended that the DNA evidence must have been planted or manipulated. He blames his court-appointed lawyers for failing to defend him at his 2006 trial and accuses Barrett and Coyne of abandoning him. The allegations have been amplified by Hood and Death Penalty Action, which launched a Free Anthony Sanchez campaign earlier this year. The activists insist that Glen Sanchez, not his son, killed Busken. Over the summer they placed billboards from Norman to McAlester urging people to watch a short film they produced called “Evidence Unraveled.”

In a state where 10 people have been exonerated from death row, the risk of executing someone for a crime they did not commit is real. “It is undeniable that innocent people have been sentenced to death in Oklahoma,” a bipartisan commission on capital punishment found in 2017. Poor lawyering, a lack of funding for capital defense, and overzealous prosecutors have contributed to wrongful convictions in the state. Particularly disturbing is the sordid history of misconduct within the Oklahoma City Police Department crime lab, where a forensic chemist named Joyce Gilchrist was fired for manipulating evidence — including in death penalty cases. Although Gilchrist was not the analyst in Anthony Sanchez’s case, she was a supervisor during the time that evidence from the case was examined and stored.

There are good reasons to question the forensic evidence behind any criminal case from that era. Yet some of the activists’ claims do not withstand scrutiny. “Evidence Unraveled” downplays and mischaracterizes the DNA. Ballard, the private investigator, now a vocal advocate for Sanchez, insists that the evidence was contaminated based on the fact that the DNA profiles for Busken and Sanchez, who were unrelated, shared alleles: the pairs of genes that appear on a specific location on a chromosome. Veteran DNA scientist Laura Schile, the forensic analyst who blew the whistle on Gilchrist’s misconduct more than 20 years ago, rejects this as egregiously misinformed. Ballard is not a DNA expert, she points out. “It takes a lot of years to understand DNA. And people share alleles with other people.”

Schile is one of dozens of people I interviewed while probing Sanchez’s case. A monthslong investigation and review of the available record — including trial and hearing transcripts, appellate briefs, and portions of the case file — left me with more questions than answers. But it also revealed significant problems that are all too familiar in Oklahoma death penalty cases. Sanchez, who is part Mexican and Choctaw, was convicted by an all-white jury, a fact his attorneys did not challenge at trial. No witnesses were called on Sanchez’s behalf at the guilt phase. And despite several mitigating factors that could have moved jurors to spare his life — Sanchez had just turned 18 at the time of the crime and grew up amid violence, abuse, and addiction — his trial team did little to develop such evidence.

“DNA is an investigative tool. It is not an investigation in and of itself.”

In Oklahoma, these problems have been eclipsed by the debate over Sanchez’s innocence and controversy over the Free Anthony Sanchez campaign. Local abolitionists have publicly disavowed Hood and Death Penalty Action for their incendiary rhetoric against the attorney general and lawyers appointed to represent people on death row. Barrett and Coyne have denied that they abandoned Sanchez. They accuse Hood of turning their former client against them and persuading him to forgo clemency. Sanchez has maintained that the decisions were his alone. He accuses his former attorneys of sabotaging his case by refusing to turn over his case files — a collection of more than 50 boxes. Last week, a federal judge reversed a previous order denying Sanchez the files but refused to stay the execution to give Sanchez’s new attorney time to review them.

With his execution imminent, unanswered questions still linger over Sanchez’s case. Among them is what role, if any, his father had in the crime. Sanchez’s trial lawyers either declined to be interviewed or could not be reached for comment. But documents in the case file show that his defense team suspected Glen was the real murderer — even if the DNA suggested Sanchez sexually assaulted Busken.

Indeed, even if the DNA implicates Sanchez, it is not at all clear what actually happened on the day Busken was killed. The rest of the state’s case was assembled from flimsy circumstantial evidence that did little to connect Sanchez to the murder. “Nothing else adds up besides the DNA,” Barrett told me. “I can’t believe that for so long the prosecution convinced the courts there was some meaningful corroborating evidence.”

“DNA is an investigative tool,” Schile said. “It is not an investigation in and of itself.” Even in a cold case, it is incumbent on prosecutors to close evidentiary holes that surround it. To forensic DNA expert Tiffany Roy, a death penalty case that relies solely on DNA is a red flag. “If it’s just the DNA, and that’s all you have, then it isn’t enough,” she said. If you can’t go back and put the DNA in context to ensure it is proof of the alleged crime, then it is certainly not enough to justify an execution. “The chances that you’re going to get it wrong, for me, the risk is just too high.”

Juli Busken’s murder was any parent’s nightmare.

Five days before Christmas in 1996, Bud and Mary Jean Busken drove a U-Haul from Benton, Arkansas, to Norman to help their daughter pack up her apartment. Busken had studied ballet at the University of Oklahoma, most recently performing in “Swan Lake.” She finished a semester early and was accepted to the University of Arkansas for a graduate degree in elementary education. Busken planned to go home for the holidays, then return to Norman so she could walk across the graduation stage with her friends.

Busken lived in an apartment complex on East Lindsey Street, just east of campus. As her parents pulled up around 11:30 p.m., they expected to see her red 1991 Eagle Summit parked outside. But it wasn’t there. On the door of her apartment, Busken’s mother found a note that said to contact the University of Oklahoma Police Department.

At the station, the campus police chief told them Busken had been reported missing earlier that day. He also said there had been a body found at Lake Stanley Draper, a large recreation area 15 miles north of Norman. He asked the Buskens for a photo of their daughter, then stepped out of the room. When he returned, he broke the news. The body at the lake was Juli. She had died from a gunshot wound to the head.

News of the murder shocked the college community. Some 300 people attended Busken’s funeral, and a scholarship was swiftly established in her name. Meanwhile, multiple law enforcement agencies began investigating the crime, including both the Oklahoma City and Norman police departments, along with members of the university police, the Oklahoma State Bureau of Investigation, and the FBI.

The overlapping efforts did not ensure all leads were followed. In the days after the murder, multiple tips to police were apparently missed, including calls from eyewitnesses who believed they saw Busken’s car on the morning she disappeared.

The last person to see Busken alive was her friend Megan Schreck, a fellow ballerina who spent the night with her on the eve of her death. Around 10 p.m., Schreck met Busken at a mutual friend’s apartment, where they exchanged Christmas gifts; Busken gave Schreck a pair of angel earrings. Busken planned to drive Schreck to the airport for an early flight the next morning, so the two decided to stay up all night, going out to eat around 2 a.m. They drove separate cars back to Schreck’s apartment, splitting up while Busken went to get gas.

Years after the case went cold, Schreck told a reporter that Busken seemed to take a long time filling up her car — and that she noticed a man’s name on Busken’s cellphone when she finally returned. For years Schreck wondered if this was important. When she was called as a witness at Sanchez’s trial, however, the name on the phone did not come up.

Instead, Schreck testified that Busken showed up with a cappuccino, then took a nap before heading to the airport before 5 a.m. “She drove me to the Delta check-in,” Shreck said. “She dropped me off and that was the last I saw of her.”

When a violent crime took place in Oklahoma County or its surroundings in 1996, the evidence went to the Oklahoma City Police Department crime lab. The lab had attracted good press over the years for its crop of forensic analysts — the “detectives behind the detectives,” as The Oklahoman put it. The year before Busken’s murder, the newspaper ran a flattering story about forensic analyst Joyce Gilchrist and two of her colleagues. “Criminals beware!” it read. “It’s getting harder and harder to go undetected.”

At the time, Gilchrist was in charge of opening the lab’s new DNA section. “We’ll be able to extract DNA from the root of one hair or a very small sample of semen or blood and establish a profile,” she told The Oklahoman. “It wouldn’t be an exaggeration to say that a single drop of blood will give us all the information we need.”

At first glance, there was plenty of potential forensic evidence in Busken’s case. Her unlocked car had been found at an apartment complex a block away from hers. There was reddish sand on the floorboard of the driver’s side. The car was messy, filled with papers, CDs, and a bunch of clothes, including pajama bottoms and multiple pairs of underwear. Half a dozen hairs were lifted from the car. Forty-nine latent fingerprints were found on the inside and outside.

At the autopsy, the medical examiner noted that Busken’s blue jeans were undone; her underwear was soiled and “slightly rolled down.” There was bruising on her thighs and labia and a small scrape on her anus. Her hands were bound behind her back “by a black shoestring ligature.” She had been shot at close range; a “significantly distorted” small caliber projectile was recovered from her skull. A ballistics analyst said it came from a .22.

Yet the murder weapon was never recovered. Neither were a number of key items: an opal ring belonging to Busken, as well as a radar detector, small stereo, and cellphone she kept in her car. Although phone records would provide critical clues — dozens of calls were made from the device following her murder — they did not lead to a suspect.

Evidence found at the lake was largely inconclusive. Shoe prints leading to the spot where Busken was found were not documented before the wind filled them with sand overnight, rendering them “useless,” as one evidence technician later testified. A discarded beer bottle and Coke can were examined for prints but yielded none.

Other items were disregarded, like a small purse found in some tall grass. It was red, with a square pattern that looked like a Native American design. “The sun kind of glimmered on it,” the sergeant who spotted it testified. “It was something that didn’t look like just some trash laying there.” The purse contained what appeared to be drug paraphernalia: a plastic-tipped cigar, two brass faucet screen aerators, and a pair of razor blades, along with a small jar of Carmex lip balm.

Authorities decided the purse had nothing to do with the case. But one item found a few feet away would prove vitally important: a crumpled pink dance leotard. It was marked with Busken’s initials, and according to a forensic analyst, it was stained with semen.

Police calls to Lake Stanley Draper were not particularly rare. With 34 miles of shoreline, the lake made an attractive place for illicit activity, from illegal dumping and drug use to more serious crimes. In 1980, at least eight women were reported to have been raped on the north side of the lake by a man dubbed the “Draper Raper.”

Not long after Busken’s murder, there was another attack at the lake. On the night of December 29, 1996, an 18-year-old woman was assaulted by a man in a 7-Eleven parking lot nearby. He forced her inside his car at knifepoint, “struck her in the face,” according to a police report, and drove to Draper Lake. He told her to “cooperate and you won’t get hurt,” ordered her to pull down her pants, and sodomized her.

The man was described as 6 feet tall and 180 pounds, between 31 and 35 years old. He had a medium complexion, medium build, and brown “short, shoulder length” hair. The victim briefly got ahold of the knife, according to the report; after struggling over the weapon, she managed to flee to the nearest building and call the police.

It’s not clear how much police probed a connection between the rape and Busken’s murder. But there are indications they tried to find a link. According to a report obtained by The Intercept, a detective submitted underwear and a vaginal swab from the rape case for DNA testing at the Oklahoma State Bureau of Investigation, or OSBI, on the same day that he submitted a cutting from Buskin’s leotard.

An OSBI analyst later reported DNA results in both cases. From Busken’s leotard, a complete male profile was found. From the underwear in the rape case, there were only partial results.

The rape case was never solved. In a phone call, the victim told me no one ever spoke to her following her initial report to police. She did not learn the results of the rape kit or whether it yielded any DNA. “Nobody ever contacted me afterwards to follow up,” she said.

Left/Top: A forensic sketch of the suspect in Juli Busken’s murder based on the eyewitness account of Kay Keller Merryman. Right/Bottom: A forensic sketch of the suspect based on the eyewitness account of David Kill. Credit: Oklahoma City Police Department

The Oklahoma City police released the first in a series of forensic sketches of a possible suspect in late January 1997. All of them came from drivers who had spotted a vehicle resembling Busken’s car — small and red, with Arkansas plates — on the morning of December 20. Residents of Busken’s apartment complex had said they heard a woman’s scream at around 5:30 a.m., followed by a door slamming and a man’s voice. Investigators concluded that Busken had been abducted, driven to the lake, raped, and murdered within two hours.

This time frame was based on the eyewitness account of David Kill, an aircraft mechanic at Tinker Air Force Base, just north of the lake. Kill told police that around 7 or 7:15 a.m., he was driving along the lake’s perimeter when a red car with Arkansas plates suddenly pulled out in front of him. The driver looked over at Kill, who decided to follow him, driving as fast as 80 miles an hour. Although it was still dark and he only saw the man from behind, Kill described him as roughly 23 years old, with collar-length, light brown hair and a medium complexion. There was nobody else in the car.

Kill gave his description to veteran law enforcement officer Harvey Pratt, who was Oklahoma’s only full-time forensic artist. Pratt was renowned for his skills, drawing countless composites in high-profile cases. The resulting sketch was heavily publicized, appearing on “America’s Most Wanted.”

Forensic sketches are highly fallible. They rely on the memory of an eyewitness, as well as the interpretation of a forensic artist with their own unconscious biases. As with any eyewitness account, the most accurate descriptions are likely to come soon after an event; the more time passes, the more memories can be distorted by new information. In Busken’s case, most eyewitnesses did not share their descriptions until months or even years after the murder.

With few apparent leads, however, police relied on the drawings to solicit tips. In March 1997, they released a second forensic sketch that bore little resemblance to the first. It came via a man who said he was driving in Norman around 6:30 a.m. on December 20 when he did a “lane dance” with a red car with Arkansas plates. A white woman with blonde hair was in the passenger seat. According to the police report, the witness sensed that the people in the car “had just finished arguing or fighting and were stewing in it.” The driver was white, in his mid-20s, with brown hair “about one inch long.”

A third man, John Henderson, contacted police in October. He had tried to call 10 months earlier, the day after Busken’s murder. But no one called back. Henderson worked at a water treatment plant on the grounds of Lake Stanley Draper. He said he was driving to work between 11:30 a.m. and noon when he saw a red car with Arkansas plates driving erratically. “The driver acted as if he was looking for some place to pull off the main street and stop,” Henderson said. There was a blonde woman in the passenger’s seat, but he could not see her face; she was hunched over in such a way that he thought she might be performing oral sex on the driver. The man was white with a dark complexion, Henderson said. He wore a military-style haircut and a black baseball cap.

Henderson’s account didn’t fit with the timeline the state later presented at trial. Although Busken’s body was not found until around 1 p.m., prosecutors argued that by 7:30 a.m., she had already been killed and left at the lake. Police spoke to Henderson twice; he led them to the location where he spotted the car. But he was not asked to help produce a forensic sketch. Instead, they asked him to submit blood and saliva samples. “They were never really interested in much of anything I had to say,” Henderson told me. He was not interviewed by Sanchez’s defense attorneys, despite his account casting doubt on the state’s version of events.

The last forensic sketch was not revealed until the fall of 1999. Like Henderson, Kay Keller Merryman had tried to come forward with information in December 1996 but never heard back from police. When they finally got in touch with her, she said she was on her way to work at Tinker Air Force Base early on the morning of the murder when she pulled up at a stop sign next to a red car that she would later see on the news. The car was making a right toward the southern part of the lake. The driver was a man between 25 and 30. He looked unkempt, with hollow cheeks, a “day or two’s worth of beard,” and long, dark hair. He wore a stocking cap and looked angry, Merryman said. A young blonde woman next to him looked scared.

According to the police report, Merryman said it was 6:37 a.m. when she pulled up next to the car. She remembered because she was planning to get to work early, and she had been checking her watch. Lead Detective John Maddox wrote that, according to Merryman’s account, the suspect would have had “just had enough time” to drive from the spot, “rape and execute the victim Busken, then leave the crime scene between 7:00-7:15 and be spotted by the witness David Kill.”

Busken’s case had gone cold by the time Cleveland County District Attorney Tim Kuykendall ran for reelection in 1998. The veteran prosecutor found himself embroiled in an ethics scandal over a memo he’d sent to the homes of his staff. “Every employee should be doing everything they can to see that I get reelected and their job is secure,” Kuykendall had written. Defense attorneys called the memo coercive; Kuykendall’s opponent called for him to resign. The Oklahoma Ethics Commission reprimanded Kuykendall, but by then, he had already been reelected.

In an interview with The Oklahoman, Kuykendall was ready to leave the scandal behind. He discussed his love of beans and cornbread over steak and his habit of keeping raccoons as pets. More importantly, he emphasized his “tremendous success” winning murder cases. “We have gotten seven death penalties, 15 life without paroles, and nine life sentences,” he said of the three counties he represented as district attorney. Kuykendall did not discuss the Busken case. But it was never far from his mind. “This is the case I think about every week,” he later told reporters.

Kuykendall’s tenure as district attorney coincided with the advent of forensic DNA analysis in Oklahoma. The OSBI opened its DNA lab in 1994, the year he was first elected. In 1998, the federal government launched the Combined DNA Index System, or CODIS, which provided a national database of DNA profiles taken from people convicted of crimes.

Some experts sought to make clear that DNA was not a magic bullet. “We are not specifically identifying a person,” OSBI analyst Mary Long told The Oklahoman, explaining that results are expressed in terms of probabilities: the chance that an identical profile would appear in a given population. But such nuances were mostly lost on juries. As an expert witness on the stand, Long told me, it was important not to conflate the presence of DNA with the guilt of the defendant. “Unless you saw him do it, you don’t have any idea who did it,” she said.

From the earliest days of the Busken case, the one thing investigators had was DNA. In 1997, the OSBI used an early form of DNA typing that required a large sample of biological material. The pink leotard contained enough sperm for analysts to obtain a male profile using this method. Later, the OSBI analyzed the garment again using PCR testing, which is still in use today. The resulting male profile included alleles at 13 locations, or loci. If a suspect could be found whose profile corresponded with all 13 loci, it would be considered a match.

On March 20, 2000, Kuykendall held a press conference in Norman. He announced that he was filing charges of first-degree murder, first-degree rape, forcible sodomy, and kidnapping against a “John Doe” in the Busken case. In lieu of a name, there was a series of numbers and letters: the DNA profile found on the leotard.

Kuykendall acknowledged how unusual it was to file charges against an unnamed defendant. But he maintained that the evidence was strong enough for a murder charge, and the DNA would be the crux of the case. He hoped that the profile might produce a random hit in a DNA database.

In the meantime, the profile spurred detectives back into action. The Oklahoma City Police Department undertook a DNA dragnet, requesting blood and saliva samples from men in and around Norman. The sweep raised the concerns of civil libertarians. One criminal defense attorney criticized detectives for violating people’s right to privacy rather than doing a more thorough investigation. “Police are basically saying, ‘If we pop a needle into enough arms, we’re bound to get lucky sooner or later,” he told The Associated Press.

Bo Ireland, now an Oklahoma City pastor, was one of the many men who submitted to testing. He remembers being called to the OU campus to answer questions only to find himself surrounded by 75 to 100 others at the health center, all being asked for blood and saliva. “I was like, ‘Wait, What? … I thought you had to have a warrant for that.’” As he recalls, his reaction sparked the officers’ interest — “like, ‘Do we need to get a warrant?’” Like almost everyone else, Ireland agreed to give a sample.

Maddox, the lead detective, bluntly acknowledged that refusal would be viewed with suspicion. “For them not to cooperate with us,” he told CBS News, “it leaves an open end out there for us to look at.” Busken’s father told the media that he did not understand why someone would not willingly give their DNA. “If you don’t want to give your DNA, you have something to hide,” he said.

In the summer of 2004, Kuykendall finally got what he’d been waiting for. An OSBI letter to the Oklahoma City Police Department reported that an autosearch had been conducted of the CODIS database, seeking a match between a forensic item in the Busken case and a sample from a man named Anthony Sanchez. According to the letter, “a candidate match was obtained.”

Prosecutors in Kuykendall’s office were familiar with Sanchez. In 2001, he had been accused by an ex-girlfriend of rape. She told police that she had come home at 2 a.m. to find Sanchez in her living room, where he tied her up and assaulted her. Sanchez insisted it was a false allegation — and the rape charge was ultimately dropped. Sanchez pleaded guilty to burglary. But there was one detail that leapt out from the police report: The girlfriend said Sanchez had tied her up with shoelaces.

There is “no question that this is our guy,” Kuykendall told The Oklahoman.

Sanchez swore from the start that he was innocent. He said he had no idea how his DNA would have ended up at the scene, but he believed it could have been planted using evidence from the alleged rape. As he tells it, he had never heard Busken’s name until two detectives came to see him at the Lawton Correctional Facility, where he was incarcerated on the burglary charge. After he refused to speak without an attorney, he was escorted back to his cell. It was the prison guards who told him that he was a suspect in Busken’s murder.

Someone in Sanchez’s position had good reason to question forensic evidence that had been handled by the Oklahoma City Police Department lab. Just a few years earlier, the lab had been the center of a national scandal when Gilchrist, the lab’s supervisor, was revealed to have manipulated evidence in criminal cases, sending innocent people to prison. One man had already been exonerated and released after being wrongly imprisoned for rape.

The forensic analyst who blew the whistle on Gilchrist’s misconduct was Laura Schile, a DNA scientist who arrived at the lab in 2000 and took over from Gilchrist. Schile had worked with DNA at a cancer research center, then spent three years at the Texas Department of Public Safety. What she found at the OCPD lab was disturbing. “The evidence was scattered throughout the police department,” she later told the OCPD’s departmental review board. There were boxes in the hallway, in the lab itself, and in the old jail. “It was quite obvious that all of the evidence was being compromised, potentially compromised,” she said.

In the case of Jeffrey Todd Pierce, the man who was exonerated of rape, Schile found a box of evidence that also contained evidence from an unsolved homicide. The items were “loose and unsealed,” she wrote in a memo. “Trace evidence was being potentially mixed and evidence was being contaminated.” Gilchrist, she learned, had packaged the items together because she suspected that Pierce was responsible for both crimes.

“It looks like they killed someone who didn’t do it.”

Especially concerning was Gilchrist’s role in some two dozen death penalty convictions, including the case of Malcolm Rent Johnson. A Black man convicted by an all-white jury, he professed his innocence until his execution in early 2000. Schile later reexamined forensic slides in the case and found that, contrary to Gilchrist’s testimony at Johnson’s trial, they did not contain his sperm after all. Although prosecutors insisted the rest of the evidence against Johnson was strong, the case was full of holes. “It looks like they killed someone who didn’t do it,” a defense attorney who reviewed the evidence told The Associated Press.

Gilchrist was fired in 2001. Schile left the OCPD the same year, after getting the DNA lab up and running. She went to work for the Oklahoma Indigent Defense System as the organization’s first in-house forensic analyst. The office provided state-funded trial and appellate representation throughout Oklahoma. For defense attorneys who wanted to challenge forensic evidence in the wake of the Gilchrist scandal, there was no better resource. Schile knew what to look for; she helped with discovery requests, asking defense lawyers to get everything she would need to review forensic evidence, including chain of custody documents, testing methods, lab notes, and raw data. “I would have had no control whether they got it for me or not — that was often the problem,” she told me.

Court records show that Sanchez’s lawyers fought for almost a year to get the Cleveland County District Attorney’s Office to turn over materials related to the DNA evidence in his case. A private attorney who was initially hired by Sanchez’s family filed a motion for discovery in September 2004, only to leave the case a few weeks later because he was not being paid. Lawyers with the Oklahoma Indigent Defense System took over. In August 2005, they wrote that while multiple labs had been involved in “the collection, storage, and/or analysis of evidence in this case,” the lawyers had yet to receive records documenting their work. “Thus far, the information provided has been limited, scant, and obviously incomplete.”

Sanchez had an additional reason to harbor suspicion about the DNA evidence. The earliest filings in the case show that defense attorneys were under the impression that there was only one piece of evidence containing Sanchez’s DNA — and it was so small that further testing would completely consume it. But later they learned that there were multiple items containing DNA. Nobody ever explained the discrepancy, according to Sanchez and his family. To them, the evidence seemed to appear out of nowhere.

The fight over discovery was ultimately resolved at a hearing on the DNA, where Sanchez’s defense team told the judge they had reached an agreement with the state. According to the trial transcript, Schile met with OCPD forensic analyst Melissa Keith, who had tested the leotard and other items in the recently opened DNA lab. They examined the evidence item by item, Keith testified. “I believe we spent the better part of a whole day.” Schile said this would be consistent with her job at the time. Although she has no specific recollection of reviewing the evidence, she confirmed that she received the necessary items from Keith prior to Sanchez’s trial. “I looked at this case,” Schile said. “I can say that I did not see any issues in the DNA testing.”

Sanchez came to mistrust his legal team. He was especially outraged upon learning that one of his attorneys — who later went to work for the Oklahoma Attorney General’s Office — was a member of the same church Busken had attended in Norman.

Today, Sanchez has a term for loyalty he sees among the network of people in Norman’s legal community: the “Crimson blanket.” “They all stick together,” he told me. “It’s like a gang. The cops all go to OU, the judges go to OU.” Sanchez had been raised on the east side of town, which he described as “the ghetto side.” Growing up poor in Norman meant being outside of this powerful, insular world.

Sanchez was born in Ardmore, Oklahoma, in 1978. His father, Glen, who was part Choctaw, had grown up in a large Mexican family in Lampasas, Texas. His mother, Gloria Faulkner, who was Choctaw and Chickasaw, was raised in Ardmore. Glen and Faulkner separated around the time that Sanchez was born. Both had severe substance abuse problems; Faulkner was addicted to drugs, Sanchez said. “I think I was like 6 or 7 years old when her house got raided the first time,” he told me. He was hiding under some covers when it happened, and the cops mistook him for someone trying to evade arrest. “That was the first time police beat me up.”

Sanchez’s older sister Lujuana remembers trying to protect him from their father as a child. “I tried to get him to run away with me,” she said. “Today it’s called abuse, but Daddy was just trying to make him tough.” At Sanchez’s trial, his grandmother recalled seeing Glen hit Sanchez in the chest when he was just 2 years old. “I said, no, you’ll make his heart fibrillate doing that,” she testified. But Glen responded that it would toughen him up.

“Today it’s called abuse, but Daddy was just trying to make him tough.”

When Sanchez was young, Faulkner suffered a disfiguring burn. Glen told Sanchez that his mother had been cooking meth. But Lujuana said that she had been burned by a man she’d gotten together with after the divorce. “Anthony was told that she was making drugs. And she wasn’t. She was trying to get away from an abusive relationship.” Sanchez remembers visiting Faulkner in the hospital and running away when he saw her. “She looked like Freddy Krueger,” he told me. “That’s how bad she was burned.”

Documents in Sanchez’s appellate file show that, according to family members, Glen tried to turn his son against Faulkner, taking him to live with Glen’s new wife, Cathy Hodge, when Sanchez was about 18 months old. According to Hodge, Glen wanted to save Sanchez from an unsuitable environment. But their own home life soon became violent.

“He was fine whenever he wasn’t drinking,” Hodge said about Glen. On weekends he would get drunk and beat her. During one particularly violent attack, Hodge tried to hide in a closet, but Glen found her; Sanchez yelled at his father to leave Hodge alone. Nonetheless, Hodge remembers Sanchez as a mostly happy kid. She showed me childhood photos of Sanchez wearing orange floaties in a swimming pool, sitting on Santa’s lap, and posing in a school football uniform. “The only time that I’d seen [Glen] really being ugly with Anthony was when he was trying to protect me,” she said.

Another one of Glen’s ex-wives remembers him treating Sanchez as “his golden boy.” But Beattie, Glen’s longtime girlfriend, said he “beat the crap out of Anthony.” As she described it, Glen was confident that Sanchez wouldn’t tell anyone.

According to his friends, Sanchez did not talk about his relationship with his dad. Adam Sheets, who knew Sanchez as a teenager, remembers Glen as a “mean, nasty” man who “talked to Anthony like he was a piece of shit.” Sanchez seemed to fear his father while also seeking his approval.

“I saw Anthony pretty much every day of my whole adolescent life,” said Kristina Bryan, Sanchez’s best friend. “We would just like hang out, smoke weed together. … I mean stupid teenage stuff.” Glen was clearly abusive, she said — he even pointed a gun at her once, which her mother also remembers. Bryan and Sanchez later had a temporary falling out over Sanchez’s drug use. As she recalls, he was doing crank, which “was changing who he was.” During a heart-to-heart, he opened up about physical abuse inflicted by his father. But that was the only time Bryan could remember him talking about it.

Hodge finally left Glen for good when Sanchez was about 15. That’s when Sanchez’s run-ins with police seemed to start. “I don’t know if he just didn’t have a family life,” she said. “I think he was just running the streets.” Before that, she said he was often followed in stores and wrongly suspected of crimes based on his ethnicity. One neighbor accused him of breaking into her house when he was actually in school. “She didn’t like them because they were Hispanic,” Hodge said.

The population of Norman was almost entirely white in the years Sanchez grew up there. As late as 1967, it was a sundown town: Black people were explicitly prohibited from staying out after dark under threat of violence. As Norman became more diverse in the early 1990s, racist backlash followed; The Oklahoman reported a rise in racist graffiti and police harassment of nonwhite residents.

Sanchez remembers facing plenty of racism growing up in Norman. “People would tell me to go back to my country, go back where I was from,” he said. He doesn’t remember it affecting him all that much. Most of his friends in Norman were Native American, he said. It was harder to feel like he didn’t fit neatly in either community. “If you’re not fully bilingual, you’re not Mexican,” he said. “If you don’t speak Choctaw, you’re not Choctaw.”

But facing a murder trial in Norman was a wake-up call. “It was all white people, even in the audience,” he said.

Sanchez’s trial began on January 30, 2006, at the Cleveland County District Court in downtown Norman. Media and spectators filled the gallery, including at least one local celebrity, famed football coach Barry Switzer, who attended almost every day. There was a heavy security presence; Sanchez remained shackled throughout. The Court of Criminal Appeals later found that the shackling was illegal but it would not have changed the outcome.

The jury was all white, which did not seem to faze Sanchez’s lawyers or the presiding judge. In a post-trial questionnaire, the judge acknowledged that there were no Hispanic or Native American people on the jury but said Sanchez’s attorneys had not objected. Asked if jurors had been instructed to “exclude race as an issue,” the judge answered only with a question mark.

Hodge brought a suit for Sanchez to wear but was barred from giving it to him. Along with the rest of his family, she was prevented from watching most of the proceedings. “We went and sat at restaurants or sat outside,” she said. She was distressed to realize that the lawyers did not plan to call anyone at the guilt phase of the trial. Like another person close to Sanchez I interviewed, Hodge said the lead attorney, Silas Lyman, told them that his goal was not to prove Sanchez’s innocence but to keep him off death row. Lyman declined to be interviewed about the case.

Representing the state was Assistant District Attorney Richard Sitzman, a veteran of the office who had been prosecuting homicides since the 1980s. As he described it, he did not want to rely too heavily on the DNA. “There are some people who think that DNA is hocus pocus,” he told me. “So it was very important to me and to the police department to prove this case without the DNA.”

“Evil sits right here in front of you today. And it’s Anthony Castillo Sanchez.”

In his opening, Sitzman emphasized how long it had been since Busken’s was killed. “Nine years, one month, and about 16 days,” he said. “That’s how long I’ve been waiting to tell you this story.” He told the tale of a ballerina with a bright future whose life was violently cut short. But instead of explaining how the crime took place, Sitzman described how DNA had finally identified the killer years later. “I call him ‘the cold hit guy,’” Sitzman said. “And the DNA is going to tell you what it’s told the rest of us, and that is that evil sits right here in front of you today. And it’s Anthony Castillo Sanchez.”

Despite Sitzman’s claims about proving the case without DNA, the additional evidence implicating Sanchez was elusive. One of Busken’s neighbors described hearing the scream at 5:30 a.m. on December 20, followed by a man’s voice saying, “Shut up and get in the car.” The state theorized that Sanchez was breaking into cars when he spotted Busken returning from the airport. But there was nothing placing him at her apartment complex that morning. Merryman, the eyewitness who told police she saw a blonde woman looking scared in the passenger seat of a red car, was not asked to identify Sanchez from the stand. Neither was Kill, the eyewitness who testified that a red car had cut him off later that morning. Of the 49 fingerprints found on the car, none of them matched Sanchez.

An acquaintance of Sanchez’s who allegedly told police he’d once seen Sanchez with a .22 caliber pistol testified that it was actually a .25. “I felt like they were wanting me to say something that didn’t happen,” the man told me, adding that he didn’t believe Sanchez had killed Busken. Sanchez’s former landlord testified that, after police tore apart the walls of Sanchez’s old apartment in search of a .22-caliber projectile, the landlord discovered a slug in the debris. Yet there was nothing directly linking it to Sanchez. His ex-girlfriend, Christin Martin Setzer, testified that Glen, not Sanchez, had shot bullets into the wall. “Glen was drunk, and Anthony made me stay in the bedroom,” she said.

Nor was there much linking Sanchez to the slew of numbers found in Busken’s cellphone records in the days after the murder. Prosecutors called a man whose phone number was on the list, but he testified that he did not know Sanchez or Busken — he couldn’t say why his phone would have been called by the killer. There was one compelling piece of circumstantial evidence pointing at Sanchez, however: an old day planner belonging to Setzer, in which she had listed the phone numbers of friends in their social circle. One of them was Melanie Crain, who had dated Sanchez. The number under her name matched one of the numbers in the phone records.

“I hadn’t spoken with Anthony in years by the point that he would have called that number.”

Crain now goes by Melanie Thompson. She remembers being bewildered when detectives contacted her to say that her number had shown up in the records. But she also said that the number in question was no longer hers in December 1996, which made her doubt that the person who used the phone was trying to reach her. When detectives contacted her again to say that the DNA matched Sanchez, “I was really confused,” she said. “Because I hadn’t spoken with Anthony in years by the point that he would have called that number.”

Of all the pieces of circumstantial evidence presented at trial, Sanchez is perhaps most adamant about debunking one: shoe prints found at the scene that investigators ostensibly linked to a pair of Nike sneakers he owned. For years Sanchez has argued that, according to the state, the prints were left by a man who wore a size 9. “I wear a size 11 1/2 wide and have since I was 12 or 13,” he told me.

There were other reasons why the shoe-print evidence was absurd on its face. OCPD officers testified that sand had blown into the prints on the lakeshore, making them impossible to examine. This was clear from a crime scene photograph entered into evidence, which captured a barely discernible shoe print with a vaguely waffle-patterned sole. Even if the print had been left by the killer, there was no way to determine which specific shoe had created the print — and the state did not call a footprint examiner to try.

Instead, OCPD detectives described how a pair of colleagues had taken the photograph of the print to local stores and compared the sole to athletic shoes in stock. “They believed it to be a Nike Max Air 2,” Maddox, the lead detective, testified.

Investigators contacted the Nike corporation and requested an overlay of the shoe model, which was presented to jurors. The visual insinuated a match between the shoe print and the Nike Air Max 2. Prosecutors then utilized Setzer’s planner to show that Sanchez had purchased a pair of Nikes in the months leading up to the murder. In bubbly handwriting on October 14, 1996, Setzer, who was pregnant at the time, wrote that Sanchez had given her a necklace, a baby bed, and a pair of Nikes. “He got matching shoes but boy style,” the planner read.

The link was tenuous. In an interview with detectives, Setzer was shown a photo of a pair of Nike Air Max shoes. “I can’t say they were identical,” she testified.

Left/Top: The Nike Air Max Tailwind, pictured, which had the same sole as the Air Max 2, was shown to jurors at Anthony Sanchez’s 2006 trial. Right/Bottom: A shoe print believed to belong to the man who killed Juli Busken found on the shore of Lake Stanley Draper on Dec. 20, 1996. Detectives said the print was unusable but claimed to match it to a Nike Air Max 2. Credit: Courtesy of Oklahoma Attorney General’s Office

The strength of the shoe-print evidence became strikingly distorted in the years after the trial. Sitzman remembers the prints at the lake as being “pristine.” Kuykendall, the district attorney, has attributed the match to the Nike corporation itself, claiming in a “Forensics Files” episode that “they were able to identify the specific shoe that they believed made this impression in the sand.”

The star witness for the state was Melissa Keith, the DNA manager for the biology unit of the OCPD lab, who laid out her handling of the leotard. “In 1996, when I originally received this item, I examined it. I marked areas for testing,” she said. When she found sperm on the leotard, she sent it for DNA testing at the OSBI. Later, she did DNA testing on the leotard and other items herself. She got a complete male profile from the leotard and the underwear. Sitzman asked her to go through the profile step by step for the jury. The results were decisive. The profile and the reference sample from Sanchez “were found to be the same at all loci tested.”

“If I find a sample to be consistent with a certain person, I can then take that DNA profile, put it into a program called population statistics, and calculate how, let’s say, rare that profile would be,” Keith testified. The probability of finding another donor with exactly the same DNA profile as Sanchez was 1 in 200 quadrillion Caucasians, 1 in 20 quintillion African Americans, and 1 in 94 quadrillion Southwest Hispanics, she said.

On February 15, 2006, Sanchez was convicted on all counts. Two days later, jurors sentenced him to die.

It wasn’t long after Sanchez was sent to death row that his aunt had an odd interaction with her brother, Glen, who came by her house while she was watching TV. “Out of the clear blue sky he said, ‘I might be a woman beater and a drunk, but I’m not a killer,’” she said. “And I thought, ‘Why would he say that?’”

Another time, he pulled up in his truck while she was smoking a cigarette. She can’t remember exactly when. But he gave her a black beanie-style hat and said something like, “Here, you do something with this.” Although his son’s trial was over, Glen seemed concerned that he might still be targeted as a suspect. “Before I know it, they’ll be trying to pin that on me,” his sister remembered him saying.

“Before I know it, they’ll be trying to pin that on me.”

Glen was not wrong to think he was suspected of being involved. Documents in the case file show that Sanchez’s trial lawyers believed that Glen might have been the real killer. Even if the DNA showed that Sanchez had sexually assaulted Busken, there was no real proof that he was the one who shot her. At least one of the crime scene photos also showed what appeared to be a print from a cowboy boot in the sand; Glen was known to wear cowboy boots.

Unlike the vast majority of men questioned by Oklahoma City police, Glen was not asked to give blood or saliva samples. During an interview in 2004, he was evasive and “difficult,” according to a police report. He couldn’t answer basic details about his son’s life, such as where he’d gone to high school or where he was living around Christmas 1996. When he was told about the DNA evidence implicating Sanchez, Glen got agitated, suggesting this was another false accusation, like the one by his son’s ex-girlfriend — “just because of a woman’s loud mouth, a lie.”

According to Glen, “Anthony wasn’t capable of killing at 17 or 18 years old,” the detective wrote. When he asked Glen if he ever went fishing with his son at Lake Stanley Draper, Glen said, “I think so.” The location he gave caught the detective’s attention. It was on the lake’s south side, “just west of the location where the body of Jewell Busken was located.”

According to Sitzman, Glen was investigated alongside the rest of his son’s friends and acquaintances. “I’m not aware of anything that ever raised him to the level of suspect or even a person of interest,” he said. Despite the trial lawyers’ suspicions, it is unclear how thoroughly the legal team investigated the theory. A defense investigator’s memo shows that Glen was interviewed only once before Sanchez’s trial. “After that, he has refused to talk to anyone on the defense team,” the investigator wrote. “Glen is paranoid, does not trust lawyers, cops, or white people.”

Nevertheless, Sanchez’s appellate lawyers argued that evidence of the murder pointed more directly at Glen than his son. To support the argument, they cited the forensic sketch based on Merryman’s account. In Sanchez’s direct appeal, his lawyers noted that Merryman had described the driver as older than the 21-year-old Busken. “Sanchez had just turned 18 at the time and looked quite young,” the lawyers wrote. The state’s own timeline also suggested that Busken was not raped at the lake. There was too much time between her apparent abduction at 5:30 a.m. and Merryman’s sighting well over an hour later. It was more likely that she had been taken to “some other location,” which opened up the possibility that someone else — possibly Glen — had driven Busken to the lake.

“I wish you could look into my eyes and see what I saw because it’s indelibly etched in my mind.”

If his lawyers’ theory cleared Sanchez of murder, it did not offer much proof against his father. What’s more, although the lawyers argued that the evidence was insufficient to convict Sanchez of first-degree rape, they conceded the “presence of what appears to be his DNA at the crime scene.” In a letter after his direct appeal was rejected, Sanchez assailed his attorney for arguing that his father had killed Busken. “What kind of demented lawyer are you?” he wrote. “I feel that you have done your best to help seal my fate at death.” The attorney replied that he had done his best under the circumstances. “The one fact that could not be overcome in your case was the fact that your semen was present at the crime scene.” He reminded Sanchez that they tested his DNA themselves, and the results were the same. “You wish to ignore this aspect of your case, but wishing it away won’t make it so.”

Sanchez’s advocates have continued to use the sketch based on Merryman’s account. It is prominently displayed by the Free Anthony Sanchez campaign — and it’s easy to see why. The drawing shows a man of possible Indigenous ancestry, who looks quite a bit older than 18. With long black hair, the man in the drawing bears a striking resemblance to Glen.

Yet Merryman remembers being frustrated by the sketch. In a phone call, she told me that the forensic drawing didn’t look much like the man she saw. “I said to the artist, ‘I wish you could look into my eyes and see what I saw because it’s indelibly etched in my mind. I don’t seem to be able to convey it to you,’” she said. Today she believes that the man was Sanchez and the frightened woman was Busken. “I couldn’t understand why she didn’t attempt to notify me or say help or something,” Merryman said. “It weighs on me to this very day.”

In November 2010, Sanchez was appointed a new attorney to challenge his conviction in federal court: veteran post-conviction lawyer Mark Barrett. In many ways, Barrett seemed ideally suited to litigate Sanchez’s innocence claim: He had helped exonerate two different clients from death row, including Ron Williamson, whose story was later immortalized by John Grisham in “The Innocent Man.”

Barrett was joined by Randall Coyne, a University of Oklahoma law professor and seasoned capital defense attorney who had been part of the legal team that defended Oklahoma City bomber Timothy McVeigh. Like Barrett, Coyne had a heavy workload; when he entered his appearance in Sanchez’s case in June 2011, he was facing deadlines for the fourth edition of his reference book, “Capital Punishment and the Judicial Process,” while also editing a professional journal covering death penalty trends.

Sanchez was hopeful about his new attorneys at first. In a letter to Coyne, he wrote that he and Barrett were the first lawyers to listen to what he had to say. “All of my other lawyers always say, ‘There is DNA, you did it, nothing else matters.’” Still, Sanchez admitted that he was leery of Coyne given his affiliation with the university. Sanchez asked him to answer questions, including “Where do you go to church?” In a P.S. Sanchez wrote, “For what it’s worth, I am innocent!”

Barrett remembers getting along well with Sanchez in the beginning. “He clearly was a person that had had a rough life in some ways but still wasn’t all that hardened,” he said. Given his age at the time of the crime, Sanchez was “barely eligible for the death penalty,” he said. Yet the state had gone out of its way to make him into a monster. “He was sentenced on 6/6/06,” Barrett said. “I’m almost certain they did that on purpose.”

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Like any federal habeas lawyer in Oklahoma, Barrett was hamstrung by the work of Sanchez’s previous appellate attorneys, who themselves faced daunting procedural hurdles. In most death penalty states, a direct appeal and state post-conviction proceedings are two distinct phases of a capital case. When a direct appeal is denied, a person on death row has a couple of months to a year before their state post-conviction appeal is due. This is critical because the latter is the first opportunity for an appellate lawyer to investigate and present evidence outside of the trial record. When it comes to arguing that a client received ineffective assistance of counsel, often the most viable path to relief, an investigation is usually the best way to reveal a trial lawyer’s failures.

But in Oklahoma, the direct appeal and state post-conviction proceedings happen simultaneously. What’s more, the Court of Criminal Appeals has held that a claim of ineffective assistance of trial counsel must be raised on direct appeal. The practical effect is to prevent appellate lawyers from uncovering evidence that could have been presented at trial. “At the point we come in, if it wasn’t brought up by the lawyers ahead of us, it’s pretty much unusable by us,” Barrett said.

“There has to be another way that this has happened.”

Barrett and Coyne sought to build on the argument that there were alternate suspects. They met with Sanchez’s stepmother, Cathy Hodge, who shared documents that pointed to other potential perpetrators. “There has to be another way that this has happened,” she wrote. “I truly believe that Anthony is innocent.”

Among the documents were two letters from a man named Rocky Dodd, who was on death row when Sanchez arrived in McAlester. The two had known each other in Norman. The letters said that Dodd had spoken with his younger brother Shaun, who had information that Sanchez might be able to use. Around the time of Busken’s murder, Shaun said, two men named Tony and Scott showed up at his mother’s house looking nervous and “in a hurry to get out of town.” They asked Shaun to go to Tennessee with them and he did. There, Tony pawned a number of items, although Shaun did not know what they were. But he suspected the items might have belonged to Busken.

The Tony in question was Tony Reynolds, an acquaintance of Sanchez’s who had been identified by police as a “person of interest” in the Busken case. He had a long rap sheet and lived with his girlfriend in the apartment complex where Busken lived. They moved out shortly after the murder. An OCPD detective testified at trial that Reynolds had answered questions over the phone from Tennessee. Maddox, the lead detective, said they obtained DNA from Reynolds. But rumors persisted long after the trial that Reynolds was involved — and that he had pawned Busken’s opal ring and other belongings after leaving the state.

Dodd said it was possible that Shaun knew more than he’d shared in their phone conversation, which took place over the prison’s monitored line. “Are you wanting to have an investigator talk to Shaun?” Dodd asked Sanchez. “Just let me know and we can get it arranged.”

Barrett and Coyne filed a motion in federal court seeking an investigator. They planned to argue in Sanchez’s federal habeas petition that his trial attorneys had provided ineffective representation by failing to present any proof of his innocence, even though there was evidence pointing to alternate suspects. They also wanted to show that the trial attorneys failed to uncover “substantial mitigating evidence” that could have spared Sanchez a death sentence. Although the trial lawyers called some witnesses during the sentencing stage, they presented a limited view of the abuse and trauma Sanchez experienced as a child.

At the time of Sanchez’s trial, the American Bar Association had developed specific guidelines defining the importance of mitigation. Today, capital cases involve mitigation specialists — people trained to investigate a defendant’s family history to shed light on things like generational trauma, addiction, and violence. But Sanchez’s trial team did not include such a person. Family members mistrusted the lawyers; although a defense investigator interviewed Faulkner, Sanchez’s biological mother, she was “unable to provide the kind of testimony we needed,” according to a subsequent memo. Faulkner then asked to be released from her subpoena and threatened that if she wasn’t, she would “go to the DA and testify for their side.”

Federal District Judge Joe Heaton denied the motion for an investigator. Barrett and Coyne had failed to show why that was necessary, he wrote. Besides, the U.S. Supreme Court had recently decided a case that further restricted the right of petitioners to present new evidence in federal court. In light of this ruling, an investigator would “fail to serve any purpose.”

The lawyers’ resulting petition challenging Sanchez’s conviction was thin, largely reiterating points made by his previous attorneys. There was no new mitigation evidence or evidence pointing to different potential perpetrators. Although the petition mentioned Reynolds by name, it did not explain who he was or why he should have been investigated in the first place.

The following year, Sanchez’s petition was denied.

I first traveled to Oklahoma in January. At that time, Sanchez was set to be executed in April. But Drummond, the attorney general, asked the Court of Criminal Appeals to slow down the state’s frenzied execution schedule. After news broke that Sanchez’s date had been pushed to September, I wrote to get his reaction. He told me I was the first to share the news. He did not hear from his attorneys often.

At the time, Barrett and Coyne were still collaborating with Hood, Sanchez’s spiritual adviser. But after the Court of Criminal Appeals rejected the state post-conviction petition containing the affidavit from Beattie, Glen’s longtime girlfriend, the relationships fell apart. Sanchez and his family sided firmly with Hood. If not for his activism, they told me, no one would know about Sanchez’s case.

Much of my time in Norman was spent seeking records in the case. Some were at the Cleveland County Courthouse. Others were stored in dozens of boxes at Barrett’s office. Among the documents I hoped to review were the police reports, which the OCPD would not release, and additional records related to forensic testing. Barrett did not share them. Over time, our conversations gave me the sense that their contents would not necessarily help Sanchez’s case.

One of the questions I wanted to answer was not about Sanchez but about Busken. A woman who briefly worked as a defense investigator for Sanchez’s original trial attorney told me that she had uncovered evidence that Busken was involved in dealing drugs. She had found multiple witnesses who could testify to this. The red purse found at the lake was almost certainly Busken’s, she said.

The woman said she’d given all her materials to the trial lawyers with the Oklahoma Indigent Defense System. But they did not use what she found. This didn’t surprise her. Although presenting such evidence could have undermined the state’s case, it also could have backfired. “We go from this innocent ballerina OU student that does no wrong to ‘Oh my god, she’s into drugs,’” she said. It would have looked like they were attacking the victim.

Ryan James, a close friend of Busken’s, was the first to report her missing when she failed to meet him for a lunch date on December 20, 1996. James rejected the notion that Busken was dealing drugs. “She was the furthest thing from anything to do with any kind of drugs or alcohol,” he said. Barrett’s recollection was that Busken “was supposed to be a super clean, strait-laced lady.” He didn’t remember evidence pertaining to drugs, but he conceded that it could have been pursued by the trial lawyers if it offered an alternate theory of the crime. “If it helps the client, you have to use it, but you have to be very careful in how you use it.”

Documents in the case file show that at one point, Sanchez said Busken looked like a drug dealer he knew. When I asked Sanchez about this, he said he had no recollection of it. As for Reynolds, Sanchez said the two did not get along, but he did not know whether he was involved in Busken’s murder. “There’s a lot of people who say that he was bragging about it, but I don’t know,” Sanchez said. “I wouldn’t put it past him.” Reynolds did not respond to multiple messages seeking comment.

In the months I spent investigating the case, I was struck by the number of people who believed Sanchez was innocent. Most of his friends and family members said that he was not capable of murder but his father definitely was. Still, many found it hard to believe that Glen would have allowed his son to be executed for a crime he himself committed. And they balked at some of the wild claims made by the activists, like the open speculation that Glen might have been a serial killer.

I also came to wonder what, exactly, Glen told Beattie before he died. In our conversation, she described more insinuations than confessions. But the more she spoke publicly, the more detailed and vivid her accounts became. With no other direct proof of Glen’s involvement, it was impossible to conclude that he was responsible for the crime. But as in so many cases I’ve written about, it also seemed clear that Sanchez was profoundly shaped by his father in ways that led him to death row.

When I first asked Sanchez how he felt when the attorney general’s office released Glen’s DNA results in February, he said he felt “relieved.” He didn’t want his father implicated in the crime. “Don’t get me wrong, I know my dad had his flaws,” he said. “But if he wasn’t drinking, he was a really actually good guy.” Glen’s alcoholism made him act “like an idiot,” Sanchez said. “He was very violent.” But Sanchez had also been accustomed to it from an early age. “I mean, that’s my dad … that’s what I grew up knowing. I didn’t know no different.”

On September 13, the day before Sanchez was transferred to death watch, he went outside for the last time. He had already given away his belongings — mostly clothes and art supplies he used to send paintings and cards to his family over the years. Now he just had to pack up his cell, including the photos that decorated the wall. “I have a lot of family photos,” he said. “I have my three kids. I have my grandbabies. I have my mom, my dad.”

It was a beautiful day in McAlester, he told me. It had been nice to see other people, even if he could only talk to them inside a cage. The recreation yard looked like a “dog pound,” he said, but he was used to it. He’d been at McAlester for almost his whole adult life. “I know a lot of people in prison,” he said. Some of them were pretty cool. But “if I was to get out today, I would not take none of these people home.”

For a man so close to execution, Sanchez sounded calm, if not particularly hopeful. There had been a hearing in Oklahoma City earlier that day about the boxes of files in Sanchez’s case. Heaton, the same judge who denied him an investigator in 2011, had agreed to allow Sanchez’s new attorney access to the records. But he also denied a request for a stay of execution. There was no way the lawyer would have time to go through the boxes before Sanchez was scheduled to die.

Sanchez was looking forward to a visit from Hodge. She was supposed to bring one of his daughters and a grandchild he’d never met. But he refused to put any family or friends on the witness list for his execution: “I don’t want this being the last vision of me for people that I love.”

We talked about what he might say when it came time for his last words. He said he wanted to acknowledge the Buskens. The worst thing about his decades on death row was that it kept him away from his children, he said. The Buskens had lost their child too. “What happened to their daughter was a tragedy. It should have never happened. And if this is what they need to feel closure, then I hope it helps.” Still, he said, “I didn’t kill Juli Busken.”

Now he mostly seemed to want to shut out the world. For the past few weeks, he’d been watching movies on his tablet. “I can put my earphones in and turn it all the way up and I don’t hear nothing.” He’d watched the “Lord of the Rings” series and “The Fast and the Furious.” And he’d watched “Harry Potter,” but he didn’t like it. “I don’t believe in magic like that.”

The post DNA Evidence Sent Anthony Sanchez to Death Row. But Did It Actually Solve the Crime? appeared first on The Intercept.

“The U.S. Supreme Court’s ruling today is a critical step toward the ultimate goal of getting DNA testing in Rodney Reed’s case,” Parker Rider-Longmaid, one of Reed’s attorneys, said Wednesday. “We are grateful that the court has kept the courthouse doors open to Mr. Reed.”

Reed, who is Black, was sent to death row for the murder of a 19-year-old white woman named Stacey Stites, whose body was found on the side of a country road outside Bastrop, Texas, in 1996. Sperm recovered from Stites’s body was matched to Reed. Prosecutors called this evidence the “Cinderella’s slipper” that revealed her killer. But Reed insisted he was innocent. He said he’d been having a clandestine affair with Stites, who was engaged to a white cop from a neighboring town. That officer, Jimmy Fennell, denied the possibility of an affair, claiming that he and Stites had a loving relationship and that Stites didn’t know anyone named Rodney Reed. Fennell was never seriously considered as a suspect, yet there was evidence from the start that he might have been responsible for Stites’s death.

Over the intervening decades, this evidence has only gotten stronger. Friends and co-workers of Stites’s maintain that she did know Reed, and law enforcement colleagues of Fennell’s said he had discovered the affair and was furious that Stites was cheating on him with a Black man. Evidence of Fennell’s propensity for violence has also mounted; in 2008, he was sentenced to 10 years in prison for kidnapping and sexually assaulting a woman while on duty and in uniform. He threatened to kill her if she told anyone.

Prosecutors have repeatedly rebuffed the growing evidence of Reed’s innocence. While failing to offer anything meaningful to challenge the accounts of Reed’s witnesses, they continue to insist that his conviction is righteous — a stance the Texas courts have wholeheartedly endorsed.

Over the years, Reed has repeatedly sought DNA testing of key crime scene evidence that could resolve the matter, including two lengths of a braided leather belt that were used to strangle Stites. Texas has fought back at every turn with a host of dubious claims, including that Reed cannot prove there is DNA present on the belt, that the evidence is too contaminated for testing, and that no amount of DNA evidence would change the outcome of his case. Years of legal wrangling over Reed’s request to test this evidence finally landed his case before the Supreme Court last year.

At issue was a federal civil rights case Reed filed in an attempt to access testing. This time, Texas argued that Reed waited too long to file suit, embracing several different theories to claim that the statute of limitations clock had run out. In its opinion, the Supreme Court found that Reed filed his case on time. The justices who joined today’s majority ruling seemed to grasp that Texas’s claims, as Justice Ketanji Brown Jackson put it during oral arguments, were designed solely to “keep a prisoner from ultimately being able to bring a federal claim.”

Out of Reach

The current dispute started in 2014, when Reed filed a motion in state district court seeking testing of the belt and other items under Texas’s post-conviction DNA testing law, known as Chapter 64. Although the law was intended to provide an avenue for defendants to avail themselves of science as a means to challenge their convictions, many have struggled to access testing, largely due to rulings from the Texas Court of Criminal Appeals, or the CCA, which has repeatedly interpreted the statute in ways that narrow eligibility.

Since Chapter 64’s enactment in 2001, state lawmakers have been forced to amend it several times to address rulings that undercut the intent of the law. At times, the CCA’s rulings have been truly puzzling: In one case, the court ruled that to obtain DNA testing, a defendant first had to prove that DNA existed on the evidence in question, which is nearly impossible to do absent DNA testing.

Prosecutors used this logic to deny DNA testing of the belt used to strangle Stites, arguing that Reed shouldn’t be able to test the belt for DNA because he couldn’t prove there was DNA present. The state also claimed that because evidence had been commingled during storage — mishandling the state itself was responsible for — the items were too contaminated to render any probative DNA results. After the district court sided with the state, Reed appealed to the CCA, which upheld the lower court’s ruling in April 2017. In so doing, the CCA interpreted Chapter 64 to require elements not contained within the text of the law; specifically, the court concluded that alleged contamination of evidence barred Reed from testing, even though the statute says nothing about contamination. Reed asked the court to reconsider its position; six months later, it declined to do so.

While the Supreme Court has ruled that there is no right to post-conviction DNA testing, it has found that if a state does provide access to testing, then the process for obtaining it must be fair, and a defendant may bring a civil rights suit in federal court to challenge an unfair process. That is what Reed did in August 2019, when the CCA declined his request for rehearing.

Under Texas law, such a suit must be brought within two years of the CCA’s denial, but the 5th U.S. Circuit Court of Appeals dismissed Reed’s suit, ruling that he should have filed several years earlier. In a confounding ruling, the appeals court determined that Reed should have brought the civil rights suit when the district court initially denied testing back in 2014, even though that was years before the CCA weighed in and denied Reed’s appeal. If Reed had taken his claim to federal court in 2014, as the 5th Circuit suggested, he would have been wasting time — and court resources — by filing a suit the federal court couldn’t consider because the state appeals process was ongoing.

While the question before the Supreme Court was a narrow, technical one — when, exactly, should Reed have filed his federal lawsuit? — for Reed and others like him, the answer has life-and-death consequences.

Starting the Clock

During oral arguments in October, Texas argued that Reed could have filed suit on any number of dates, just not the specific date he chose after the state appeals process had concluded. Yet the state offered no cogent explanation for why any of those previous dates made sense. Instead, what appeared to underpin Texas Solicitor General Judd Stone’s position in favor of the alternative dates was that each of them would mean that Reed filed his suit too late, after the statute of limitations had run out.

In a brief eight-page ruling, Justice Brett Kavanaugh made quick work of things. Writing for himself; Chief Justice John Roberts; and Justices Sonia Sotomayor, Elena Kagan, Amy Coney Barrett, and Jackson, Kavanaugh noted that, as a “general matter,” the statute of limitations begins to run only when a person has a “complete and present cause of action.” Because the “longstanding Texas rules of appellate procedure” include the right to ask the CCA for rehearing, which Reed did, the clock began to tick once that request was denied.

“When a prisoner pursues state post-conviction DNA testing through the state-provided litigation process,” the statute of limitations for filing a federal civil rights suit “begins to run when the state litigation ends,” Kavanaugh wrote. “In Reed’s case, the statute of limitations began to run when the Texas Court of Criminal Appeals denied Reed’s motion for rehearing.”

In dissent, Justice Samuel Alito, joined by Neil Gorsuch, wrote that the statute of limitations should have started running when the CCA first denied Reed’s appeal in April 2017. Alito reasoned that the full force of the CCA’s ruling took effect immediately and wasn’t contingent on a request for rehearing, in part because the court often denies such requests. In other words, Reed should have predicted that the April 2017 ruling was the court’s final word on the matter.

Writing separately, Justice Clarence Thomas pontificated at length about all the reasons Reed’s case should be rejected, the matter of the filing date seemingly the least of them. It wasn’t until the close of his opinion that Thomas’s disdain for the rights of criminal defendants and naked bloodlust came into focus.

Thomas noted that there was nothing about the majority’s ruling that would bar the state of Texas from executing Reed. The pending civil rights suit “is no barrier to the prompt execution of Reed’s lawful sentence,” he wrote. He suggested that Texas should move forward: “Reed conceded at oral argument ‘that you do not get a stay of execution just because you brought’” a Chapter 64 or federal civil rights suit, Thomas wrote. “Texas is free to take him at his word.”

Thomas’s argument completely misrepresented the facts. What Reed’s attorney said during oral arguments was that Reed received a stay not because of his DNA case, but because of the myriad troubling questions that have plagued his conviction. The CCA issued the stay of execution in November 2019 to give the courts a chance to determine whether the state had withheld exculpatory evidence from Reed’s defense, whether it had deployed false testimony at his trial, and whether Reed was actually innocent. The stay remains in effect and litigation is ongoing.

The Supreme Court’s ruling sends Reed’s separate federal civil rights suit back to the 5th Circuit for further consideration. With the question of whether Reed filed that suit in a timely manner now answered, “the ruling clears a path” for the court to “consider Mr. Reed’s request that DNA testing be conducted on the murder weapon and other probative items from the crime scene,” Jane Pucher of the Innocence Project, another one of Reed’s attorneys, said.

Rider-Longmaid noted that Bastrop County District Attorney Bryan Goertz has refused to agree to DNA testing and urged him to get on board. “He should join us in the search for the truth, rather than blocking it. If DNA evidence exists, as it does here, it should be tested,” he said. “It’s that simple.”

The post Supreme Court Allows Rodney Reed to Keep Up His Fight for DNA Testing appeared first on The Intercept.

Rodney Reed has been on death row since 1998 for the killing of a 19-year-old woman named Stacey Stites. Although Texas prosecutors said the case was open and shut, Reed has consistently maintained his innocence. Over the years, dozens of witnesses have come forward with evidence that undermines the state’s case, casting serious doubt on whether Reed is actually guilty. But Texas has refused to conduct DNA testing that could put lingering questions to rest. This week on Dissent, host Jordan Smith is joined by Intercept senior writer Liliana Segura to discuss the Supreme Court’s review of the case. Segura was in Washington, D.C., for the oral arguments, which focused on whether the statute of limitations for DNA testing has run out. Although it may seem like a straightforward question, it’s anything but — and the court’s decision could have life-or-death consequences for defendants seeking to prove their innocence.

[Dissent theme music.]

Jordan Smith: I’m Jordan Smith, a senior reporter for The Intercept. Welcome to Dissent, an intercepted miniseries about the Supreme Court.

Frank Somerville [KTVU Fox 2]: New at 10, in San Francisco tonight, a candlelight vigil was held in support of Rodney Reed. He is a Texas death row inmate who was granted a stay of execution. 

Victor Blackwell [CNN]: After more than 20 years on death row, Rodney Reed’s case is getting a second look.

Amy Goodman [Democracy Now!]: Reed’s attorney says a new investigation has uncovered evidence Stites was actually killed hours before state prosecutors claimed. The new timeline appears to implicate her fiancé Jimmy Fennell, a white former police officer, now in prison for sexually assaulting a woman.

[Low, percussive beats.]

JS: For the last two decades, I’ve been covering the case of Rodney Reed, a Black man on Texas’ death row. Reed was sentenced to die in 1998 for the murder of a white 19-year-old named Stacey Stites. Two years earlier, Stites was found dead on the side of a country road just outside Bastrop, a small city just east of Austin.

Chris Hayes [MSNBC]: Stites had been reported missing earlier that morning after she didn’t show up for her early morning shift at the H-E-B Grocery in Bastrop.

JS: Reed was linked to the murder by DNA evidence recovered from Stites’ body. It was the only thing linking him to the crime. At his trial, prosecutors called this evidence the “Cinderella slipper” of the case. They swore that Reed and Stites were strangers and that he had somehow waylaid her on the way to work early that morning, and then raped her and strangled her. 

Reed has always maintained his innocence and has said he was having a clandestine affair with Stites, which explained the DNA evidence. Over the years, an overwhelming amount of evidence has emerged, backed up his story, and has cast a harsh light on another suspect, one the state has virtually ignored: Stites’ fiancé, a man named Jimmy Fennell, a white cop from a neighboring town.

CH [MSNBC]: Police find a red pickup truck in a parking lot behind the local high school. A truck belongs to Stites’ fiancé, Jimmy Fennell, a Giddings police officer. He tells the Bastrop County Sheriff’s Department that Stites drove that truck to work. Jimmy Fennell then sits down with authorities to give his account of the previous evening.

JS: Dozens of witnesses have come forward with new information. Some have said that Reed and Stites did know each other. Others have said that Fennell and Stites had a troubled and violent relationship — that Fennell had found out about her having an affair and was furious about it. 

Despite all of this, Rodney Reed has faced execution multiple times over the past several years. His case is now before the Supreme Court. So I sat down with my friend and colleague Liliana Segura, who is also a senior reporter for The Intercept. And she’s also followed the case closely and was at the Supreme Court back in October for oral arguments:

Liliana Segura: I just wanted to sort of back up and pause for a second to say that Jordan’s reporting on Rodney Reed’s case, going back some 20-plus years, has really been critical to exposing a lot of this new evidence that we know about today. She’s really a big part of the reason that Rodney Reed today is one of the most well-known people on death row in this country. 

I first came to know about Jordan’s work on this case, long before I met Jordan, sometime in the early 2000s. I had met, at that time, anti-death penalty activists in Texas, who were fighting alongside Reed’s family to keep the state from executing him and insisting to anyone who would listen that he was an innocent man. And Jordan, to her credit, was really one of the only journalists who had seriously considered what they had to say early on. 

So I came to this case through the advocates who were connected to Rodney Reed’s family. And I remember his mother Sandra saying that she had been aware of her son’s relationship with Stacey Stites; among their family members, this was sort of an open secret. But it was also incredibly dangerous for a Black man to be involved in this way with a white woman who was engaged to a white cop. 

If you know anything about the history of the death penalty in this country, especially in the South, you know that this is a punishment that is inextricably connected to lynching, which was a form of vigilante violence that was justified as a way to protect white women from Black men. 

The last time we talked about Rodney Reed’s case on Intercepted some years ago, we discussed this history. So for anyone who wants to understand this context, which is really critical to this case, I would encourage folks to go back and listen. 

But, like I said, Rodney Reed has faced execution multiple times. And as he’s fought his case in the courts, he has repeatedly appealed to the courts, including to the Supreme Court, and asked them to intervene. 

So Jordan, maybe you can explain a little bit about what some of this past litigation has looked like, and how Rodney Reed finally got to the Supreme Court on October 11 of this year.

JS: You know, this is a lot of backstory. But it’s really important because it explains how many times he’s tried to get to the Court, and how many times his bid has been sort of rejected. And it also is important to understand, because the way that he gets to the Supreme Court now is in this really sort of narrow, technical way. 

So in Texas, there is a law called Chapter 64. And it governed post-conviction DNA testing. And that’s the law that Reed has been trying to avail himself of to get all this crime scene evidence tested. But the problem with the law is not the law itself, it is with the courts that interpret it, and particularly the Texas Court of Criminal Appeals, which has had a super long and antagonistic relationship with Chapter 64 — and really, with a lot of criminal defendants in general, especially those with claims of innocence. [Chuckles.] But that’s a whole other story, I suppose. 

Anyway, when a defendant asks for testing, if they get denied by the trial court or approved by the trial court, either way, it’s going to appeal, it’s going to go to the Court of Criminal Appeals. And what the Court of Criminal Appeals has done is take this law and interpret it as narrowly as possible, such that most defendants can’t even access testing. And that’s happened over and over again. And it’s actually forced Texas lawmakers to go back into the legislature and revise the statute a bunch of times trying to make it clear — to be clear, there’s nothing wrong with a statute, it’s the court, right? So they’re trying to make it clear: No court, we don’t want you to do X, Y, or Z. 

So when Reed goes to court, this is in 2014, he’s asking for this stuff to be tested. And the state just sort of throws up its hands and is like: ‘No way we can’t do that.’ And they invent a reason why. And the reason — they say — is because this crime scene evidence — critical crime scene evidence — has been stored improperly, essentially commingled, like items of evidence stored together. And the other problem they raise is that people had touched the evidence at trial, including prosecutors, without gloves on, meaning there was probable contamination, in their mind, with DNA sort of being contaminated and creating impossible mixtures that would be too hard to sort out to have any probative result. And so he gets denied. 

And it kind of goes back and forth between the trial court and the CCA for two years. CCA sends it back to the trial court in 2016, then it goes back up to the CCA, and the CCA in 2017 ends up being like: You know what? You’re totally right, this contamination thing is a complete issue. And the statute says you can’t have contaminated evidence. 

Well, the only problem with that is that the statute doesn’t say anything about contaminated evidence. And more to the point about that, a lot of jurisdictions, and a lot in Texas, store evidence commingled, right, and have over the years. I think, in certain places, things are getting better now. But people still routinely touch evidence without gloves on at trial. And people still routinely bundle evidence together when it’s being stored. And that’s on the state, because it’s their responsibility to maintain this stuff. So denying them because of that — denying DNA testing because of that — is a little bit ridiculous. 

But also, it’s really not that big of a problem. Because it happens a lot, DNA testing labs are actually used to having evidence that’s been commingled. And they actually have statistical tools and programs now that can try to tease out this probative DNA evidence, right? [Apply a] profile that might be of importance. 

And then here, really, we’re not looking for some rando. We’re looking for Jimmy Fennell to see if he is there. Anyway — but the court said: Nah, it’s been contaminated. And again, like I said, it’s not in the statute. So that’s, again, the CCA going outside the four corners of the statute to come up with a reason to deny the testing. And it’s that that really gets us to the Supreme Court. 

And this is like a little tiny bit more in the weeds. But there’s one little more piece of this: The Supreme Court has said years ago that there’s no right to post-conviction DNA testing. But what they’ve also said is that if a state is going to make a process for post-conviction DNA testing available, it has to be administered fairly. So if you don’t think that the state has been administering its DNA testing procedures fairly, you can then go to federal court, and you can file a civil rights suit, saying that this statute or the scheme is being interpreted in an unfair manner that’s denying you due process. And so that is what Reed ended up doing — after the CCA finally weighed in and said the contamination was a problem. 

So that’s how he gets to federal court.

LS: All of this context that you’re talking about is so important because it shows not only the sort of technical, legal posture that Rodney Reed has been in that has ultimately led to this, but it also shows just how maddeningly lengthy and complicated, and it is just this sort of mind-numbing process by which somebody ends up before the Court. It’s not actually about how meritorious the question is; it’s about any number of different factors that come together to happen to allow a person to make their case. And in this case, I mean, one thing that I think about, as you lay out some of this history is that Rodney Reed had asked the Supreme Court numerous times to take up different questions in his case, [laughs] including the very relevant question of whether it is constitutional to execute an innocent person — and that feels like an absurd question to be sort of posing in a legitimate legal setting. Of course, it shouldn’t be right to do that or allowable. Rodney Reed has tried so many times to try to bring different elements of his case, and the fact that it ended up being this very technical, narrow question that you’re talking about, just sort of shows the arbitrariness of what cases do get taken up. And at this particular moment, with the Supreme Court being what it is, there’s just no guarantee about how this is going to play out.

JS: Here is the technical situation that is before the court, it is: The state of Texas, said that this federal lawsuit Reed filed should go away, it should be dismissed, because they say he filed it too late. And so the argument is; When should he have filed it? Should he have gone to federal court and filed his civil rights claim back in 2014 when the trial court denied him? Or should he have done it in 2016, when the trial court made some sort of updated findings at the request of the CCA? Or should it be some time in early 2017, when the CCA first denied his claim? Or — [laughs] — should it be towards the end of 2017, when, after Reed had asked them to reconsider their case, they basically were like nah, and that is ostensibly what closes that whole chapter in state court? 

Now, according to the state of Texas, any of the first three dates would be the appropriate ones — just not the last one. Because if the last one is the one that really counts, then Reed did file his suit on time, right? So there’s a two-year statute of limitations on when you can file this kind of federal lawsuit, at least if you’re in Texas. And so the first three dates, the one in 2014, the one in 2016, or the one in early 2017, would mean that the state wins and Reed gets bounced from federal court and ostensibly loses any meaningful ability to ever test this evidence. But if he did the right thing and waited until the whole state court process was over — so the statute of limitations would start running at the end of 2017 — then he totally filed in time and he should be good to go. So basically, what the Supreme Court is here to decide is: Which of these dates is the dates that Reed should have filed?

LS: One thing that’s important to note about Reed’s journey to the Supreme Court and how many times he has unsuccessfully asked the Court to review the problems in his case, in 2020, Justice Sonia Sotomayor issued a very powerful dissent from the Court’s refusal to consider his case — and it’s really worth reading in full. But she highlighted some of the really profound questions that had been raised over Reed’s guilt over the course of these past 20-some-odd years, and really kind of called out Texas courts for refusing to confront them. And we included a part of what she wrote in our piece that we wrote after this oral argument, but I thought it was worth quoting at least part of what she said: “Reed has presented a substantial body of evidence that, if true, casts doubt on the veracity and scientific validity of the evidence on which Reed’s conviction rests.” She went on to write: “There is no escaping the pall of uncertainty over Reed’s conviction.”

So those are really powerful words. And this comes some, what, two years before the court finally gets ready to hear this case? So the fact that this question of innocence isn’t even the question before the court, it’s just one of those disconnects that is hard to wrap your head around when you truly understand and appreciate the stakes of what they’re actually talking about, rather than these deadlines, these absurd technicalities that ended up being litigated when the day finally arrives.

JS: Yeah, and I would say on that note, I think you should pick it up there because it was kind of an interesting day at the court. And you actually got to be there. Maybe you could tell us a little bit about how that day went. 

[Low music, and the sound of heels against the pavement.]

LS: So it’s Tuesday, October 11. There is a line around the corner of people waiting to get in to attend oral arguments. And this is the day that Rodney Reed’s case is coming before the Supreme Court.

LS: So I arrived at the Court probably a little bit after 9 o’clock. The scene outside the court was familiar in some ways: There were protesters, there were lines of people, there were tourists passing by, kind of taking it in. 

But one of the first things you saw when you walked up was a group of activists who were all wearing matching shirts and holding up these bright red signs and holding this huge black banner that said: “Rodney Reed is INNOCENT.”

Speaker: We ask just now that you would enter the hearts and minds of the justices who operate in the building behind us, move within them, oh God, a sense of justice and a holy sense of respect of life — respect of this brother’s life in particular, who happens to be innocent of the charges he was convicted on.

LS: And these activists were affiliated with an organization called Death Penalty Action. They have been protesting or rather they have been organizing around the death penalty for a long time and are very supportive of Rodney Reed and his family. 

So when I walked up, they were there, holding up their banner; there were speakers; there was some singing; and eventually, members of Rodney Reed’s family showed up and addressed some of the people who had gathered there. There was Rodney Reed’s brother, Rodrick Reed, who has been the most outspoken advocate in recent years, talking about his brother, being wherever he needs to be to advocate for him.

Rodrick Reed: Thanks, y’all, from the bottom of our hearts for coming out and praying and standing with us — not just today, but over all these years, you know?

LS: There was also Sandra Reed, who is Rodney Reed’s mother, who is getting on in years but has always, always been out front telling her family story and insisting that her son is innocent. 

And there was also Rodney Reed’s nephew, R.J., this is Rodrick’s son, and he is six years old and has essentially grown up going to demonstrations, going to these protests, is well aware of his uncle’s situation — in fact, he was only six weeks old when he first went to see his uncle on death row. Rodney Reed’s family has always been very public in their support of his case — not only him, but of other people on death row. So they had actually been to the Court many times. But on this day, it was the first time that they actually were there to attend this oral argument where they would watch lawyers on both sides, discuss and litigate these very technical questions.

JS: We’re not going to go into every nitty gritty piece of it because it’s a lot of word soup. But I think the real takeaway from the argument is that the state of Texas, who was represented in the court by its Solicitor General Judd E. Stone didn’t have any principled notion for why the earlier dates apply. Because it made no sense — like, no sense at all. It’s more just that they wanted to move the goalposts. They want all those early dates to be the right date for him to have filed so that they don’t have to deal with the testing. That’s it. There’s no lofty legal principle happening here whatsoever. It’s just simply that. 

And I think that, ordinarily, you wouldn’t go to federal court until your state court process had ended. So, for example, this whole idea that Rodney Reed should have gone to federal court in 2014, right after the lower court had denied him DNA testing, makes no sense. And basically, what would have happened if he’d done that, is the federal court would have been like: OK, what? You’re still in state court. We can’t do anything with this, right? 

But Texas thinks that’s OK. So basically, Judd Stone is saying that any of the dates that would deny Reed a chance to seek DNA testing in the federal courts are the right dates for the statute of limitations to start, the one date that’s not right is the date that Reed chose, and that date came after the CCA had denied rehearing in his case. So there was a bunch of discussion about why that wouldn’t be a good enough date.

A lot of the judges actually had some pretty good questions about Judd Stone’s idea for when this statute of limitations should kick in.

Justice Neil Gorsuch sort of kicked that off:

Justice Neil Gorsuch: Counsel, can I ask you to focus your attention on the difference between the date of the court of appeals decision versus the rehearing date? Why should we prefer your view to your colleague’s view on the rehearing date?

Solicitor General Judd Stone: A couple of reasons, Your Honor. The first of course being for purposes of this Court’s presumptive rule under Wallace, the actual constitutional violation that happened, the thing that caused the change of legal rights and decisions, was the judgment. 

Rehearing changed nothing about the rights and obligations under Texas law or the U.S. Constitution to Mr. Reed.

JS: And Justice Elena Kagan jumped in:

Justice Elena Kagan: That’s just because rehearing was denied. If rehearing had been granted and the decision had been revised, then it would have changed something. 

So why shouldn’t we understand that this claim of Mr. Reed’s, which is focusing on the authoritative construction, is focusing on the final authoritative construction, which we don’t know about until the end of the court of appeals’ process?

Judd Stone: Two points, Your Honor. 

First of all, our rule takes account of that. In the rare case — and to answer Justice Alioto’s question, it’s very rare that the Court of Criminal Appeals grants rehearing. In the rare case where there’s a rehearing and rehearing leads to a different decision, which then imposes an unconstitutional condition of some kind, that will be the accrual date. Very uncommon, but at least that will be the defined order which will have changed the rights and obligations of Mr. Reed and any other litigant like him. 

EK: But that suggests that there’s a sort of changing accrual date. First, we thought the accrual date was this, but now we think the accrual date is that. Why isn’t the simpler rule just to say we don’t know what the authoritative construction of the Court of Appeals is until the court of appeals’ process has concluded, the end?

JS: And he was kind of all over the place, right? Like, on one hand, he’s arguing that it should have been 2014. On another hand, he’s arguing that it should have been 2017. Again, it’s not really because he has some principled rule in mind, it’s more that he just wants to deny Reed testing and make it more difficult for people like Reed, to challenge the state of Texas for post-conviction DNA testing. And that’s it. 

But it’s kind of crazy that we end up as a Supreme Court with this case, because as Judd Stone is in there talking about all this, this is a Supreme Court, they’re not just ruling in one case. So these other deadlines that Judd Stone is proposing would create chaos across the system. Nobody would necessarily know when they’re supposed to file. I guess I’m supposed to jump in here while my state process is still going on, or I guess when it first got remanded I should do that, or I don’t know! Nobody’s gonna know. Right? I mean, it’s kind of crazy. What did you make of all of that?

LS: This has always been striking to me the times that I have gone to the Court, which has generally been in a case involving the death penalty, or life without parole, which is that by the time a case gets to the Supreme Court, generally speaking, the sort of facts of a given case, the basic facts, what you’re talking about, these life or death issues, are lost in this unbelievably overwhelming sea of legalese, and trying to follow the average oral argument is really, really challenging even for lawyers, even for journalists who are sort of trained in some of this vocabulary. 

And I sat there and tried to listen to these oral arguments and follow them, I found myself quickly confused and lost. And part of it is because there are precedents in other cases and different legal technicalities that are hard to grasp in real-time. And part of it is also because literally, these arguments make no sense, actually. [Laughs.]

JS: [Laughing.]

LS: In the case of Judd Stone, he was very good at delivering lines and making an argument sound way more legitimate than it should be because of the technical nature of these arguments.

JS: He comes across like he’s got this great moral authority, and has this really legitimate legal argument. But when you start to peel the layers away, it’s just a jumbled mess. 

I had a friend who was talking about this with, a lawyer, and he said: Stop looking for a principled position here. There isn’t one. They just want to deny the testing. And in which case, they just want to make a rule that denies testing.

And I really think, unfortunately, that’s the case. People who know even a little bit about how appeals generally work would know that this whole notion that Rodney Reed should have run to federal court in 2014 is kind of bonkers. It just doesn’t work that way. 

Justice Sonia Sotomayor sort of raised this whole thing that we’re talking about, where if he had filed the federal appeal in 2014, what would the federal court do with it? So she had a few questions and a sort of back and forth with Judd Stone about that.

Justice Sonia Sotomayor: So you’re saying — what should the federal court do? Should it stay and wait until the appellate court says yes or no?

Judd Stone: It need not, Your Honor. I might point out for practical purposes, for specifically Mr. Reed’s claim, even had he waited past rehearing, even had he waited past certiorari being denied, he still had about 10 months left on his two-year clock. So the idea — 

SS: You’re claiming he was dilatory for putting all of that aside, you still maintain that there’s some practical importance to not letting him —  not exhaust but go through a pending appellate process?

Judd Stone: He may, Your Honor, if he wishes. But if he’s already suffered a —

SS: And so — 

Judd Stone: — constitutional violation —

SS: — now the federal courts should wait or not wait?

Judd Stone: It need not, Your Honor. 

SS: But it can? 

Judd Stone: If parties request that it wait, that would be —

SS: That —

Judd Stone: — that would be on a —

SS: —  seems like an  —

Judd Stone: — case-by-case basis.

SS: — awful waste of time.

JS: And our newest justice, Ketanji Brown Jackson, also was echoing these concerns, and was kind of wondering, what was the point of the TK gemstones argument?

Justice Ketanji Brown Jackson: What’s the point? If he goes to federal court pursuant to your rule, while he’s in state court, the federal court will just stay the action until the state court action concludes. 

So what difference does it make? I thought the most compelling part of Mr. Reed’s merits claim or argument was that none of the purposes of the statute of limitations, the principles behind that doctrine, obtain in your rule, that it doesn’t matter whether or not, other than just to keep a prisoner from ultimately being able to bring a federal claim.

LS: It’s really tricky being at the Court trying to read into the reactions from the justices. Everyone is craning their necks to see how is this justice responding to this argument. And I definitely did that over the course of this argument. And there were times that it felt like the justices were appropriately skeptical of the state’s position here. of Texas’ position here, or asking the right questions — and not just the liberal justices. There were a couple of moments involving justice Amy Coney Barrett, where she seemed to be asking the right questions and sort of identifying the illogical position being adopted by Texas here. 

Justice Amy Coney Barrett: Mr. Stone, I have a question about this suggestion that he could exit after the trial court denied the evidence because, I mean, maybe I’m thinking about this incorrectly, but in a procedural due process claim, the claim is that the procedures given by the state were not adequate to protect — to ensure an unconstitutional deprivation of the liberty interest.

And in the case of Article 64, the full run of the procedure includes the trial court and then the direct appeal, in a capital case, the direct appeal to the CCA, and then we can have this dispute about whether the petition for rehearing is included or not. But I don’t understand why he could exit at the trial court stage because the way Article 64 is set up, to ensure that he’s not deprived of a constitutional right erroneously, is to give him the opportunity to appeal to the CCA and let the CCA correct any mistake that the trial court has made.

So am I understanding that correctly? I just don’t understand how the cause of action exists until the procedures have failed him.

JS: Judd Stone tried to come up with an answer for Justice Barrett, but didn’t really come up with a good one. [Laughs.] Instead, he just sort of hit on the idea that the whole point of trying to force Reed out of court was to punish him for essentially carrying on appeals, like they just see this as him sort of endlessly appealing and inevitable execution, essentially. And he was quite emphatic that there was no way that Rodney Reed would deserve a new trial.

Judd Stone: This is not a narrow case. 

This is about whether or not individuals seeking to press Skinner-style claims are allowed to essentially avail themselves of endless procedure in state courts, whether or not procedurally defaulted —

ACB: Well, just the procedure that Article 64 gives — and I — I guess I don’t see how this particular claim would have accrued, been ripe to exit the suit at trial court after the trial court ruled because the claim is that the procedure, as you said, was fundamentally unfair, but it’s not fundamentally unfair if the CCA could have corrected any mistake that the trial court had made, right? 

These are about opportunities for the procedure to run its course in a way that would correct any unfairness or any mistake made below.

Judd Stone: I think there’s a basic difference between insufficient procedures due process claims and unfair procedures due process claims. 

But even if I’m wrong and you’re right, Your Honor, that still means Article 64 provides an appeal up to the Court of Criminal Appeals and nothing else. 

It does not provide him in its own terms with petitions for rehearing motions to recall the mandate, these other additional sort of miscellaneous potential motions that could extend the accrual date for purposes of candidly forestalling imposition of a capital sentence.

LS: She was asking the right questions. Some other justices were also asking the right questions over the course of the oral argument. And that’s very important. But if we’ve come to learn anything doing this work, and in particular this year at the Supreme Court, it’s that there is no real meaning to be found in asking the right questions. We have seen other cases where the justices seem to get it, they seem to understand that there is no real logic or law on the side of the state in a case like this, and yet, that does not guarantee at all that they will come down on the right side of this. 

We saw this on full display in the case of Barry Jones, who is another man with a very compelling innocence claim whose case went all the way to the Supreme Court. And earlier this year, the Supreme Court, despite having asked all of the right questions at that oral argument, despite seeming to grasp that Arizona’s position made no sense and would require them to reverse their own precedent, they came down on the side of Arizona and sort of seemed to say: Oh, well! We don’t really care about innocence. 

In fact, in that case, the state of Arizona’s refrain had been: Innocence is not enough. Even innocence is not enough to guarantee relief in this case. 

So that’s very important to keep in mind as we await a decision in Rodney Reed’s case. The Supreme Court truly does not care about innocence in any way that matters. And we have to be very clear about that. And no amount of asking the right questions is going to change that.

JS: I think it’s clear that the state doesn’t really care. And I suppose the biggest question is: Will the Supreme Court care?

LS: There is something really important about the current political moment we’re in, in which Americans right now are really questioning the legitimacy of this unaccountable, right-wing Court because we see increasingly how it exercises its power in very dangerous and consequential ways. One thing that I’ve been thinking a lot about since I was at the Court watching these oral arguments is that the Supreme Court, it’s not just that these arguments are awash in legalese. This is an institution that is just as awash in prestige; you attend these arguments; and you sort of feel important, you feel the weight of history and the weight of all of this pomp and ritual that you experience while you’re there. And all the ways in which we show great deference to these justices in a way that makes it easy to lose sight of some of the life-or-death issues that are being decided. 

It’s so important — and it’s always been true in death penalty cases — that when you whittle it down to its core, these are justices who are ultimately deciding whether a person like Rodney Reed is going to live or die — and be executed, in this case, truly on a technicality. And I think that those decisions and the arbitrariness of those decisions and how this plays out, that has always been true. It’s just that we’re currently in a moment where I think increasingly Americans grasp that maybe the Supreme Court shouldn’t have the power necessarily to rule our lives in quite the way that we’re seeing now. 

So it’s an interesting moment for this case to come up. I also want to say for all of the maddening legalese and inaccessible arguments that were on display over the course of this hour, there was a moment at the end that was like a balm because it finally reached a point where the truth of what was being discussed could be on display for everyone. And that was where Parker Rider-Longmaid, who was arguing on Reed’s behalf, finally sort of said, towards the end:

Parker Rider-Longmaid: Mr. Reed has a stay of execution from the Texas courts on his ninth subsequent habeas petition before the courts where he raised evidence that Fennell admitted to killing Stites because he discovered she was sleeping with a Black man, that Fennell threatened to kill Stites if he caught her cheating, that Fennell made inculpatory statements at Stites’ funeral and that Fennell and Stites’ relationship was fraught. We have all the other evidence that Justice Sotomayor has pointed to and is in the briefing, and those are all serious things we think the Court should consider. So I think, when you look at the fact that no one’s going to be able to get a stay of execution without some showing, there’s really not a concern of delay in cases like these.

LS: He really just laid it out in a way that might not have legal teeth, but that sort of acknowledged the truth of what we’re actually talking about, where the real facts of this case and the evidence that’s come out — the things that should matter the most — were finally uttered aloud. And that was really important.

JS: That was Liliana Segura, a senior reporter with The Intercept. 

[End credits music.]

JS: And that’s it for this episode of Dissent, a production of The Intercept. 

This episode was produced by Laura Flynn and José Olivares. Roger Hodge is editor in chief of The Intercept. And Rick Kwan mixed our show. 

If you’d like to support our work, go to theintercept.com/join — your donation, no matter what the amount, makes a real difference.

If you want to give us feedback, email us at Podcasts@theintercept.com. Thanks so much.

Until next time, I’m Jordan Smith.

The post Dissent Episode Five: The Death Penalty, Deadlines, and DNA appeared first on The Intercept.

Last year, the Supreme Court’s decision to overturn Roe v. Wade and demolish nearly half a century of abortion rights put to rest any remaining questions as to how far the 6-3 supermajority was willing to go to realize its extreme right-wing vision. With the court’s 2022-2023 term in full force, what rights are at stake this year? On the first episode of Dissent, an Intercepted miniseries, host and senior Intercept reporter Jordan Smith is joined by Jordan Rubin, a legal analyst with MSNBC and former prosecutor for the Manhattan District Attorney’s Office. Smith and Rubin outline the Supreme Court’s term and discuss the major implications of the decisions ahead.

[Intercepted theme music.]

Jordan Smith: I’m Jordan Smith, a senior reporter for The Intercept. Welcome to Dissent, an Intercepted miniseries about the Supreme Court.

Last summer’s Dobbs decision — overturning Roe v. Wade and nearly 50 years of abortion rights — dropped like a bomb. It was the first time the U.S. Supreme Court had acted to take rights away from individuals.

Terry Moran (ABC News): [Sounds of protest in the background.] At the Supreme Court today and historic upheaval. In a sweeping ruling that overturned half a century of precedents, five justices ended the right of American women to choose abortion under the Constitution.

Newscaster (Channel 4 News): Fifty years’ worth of women’s rights in America overturned in an instant, as the Supreme Court whose very purpose is to protect civil liberties, took away the constitutional right to abortion.

Nick Schifrin (PBS NewsHour): From anger and anguish to celebration and gratitude, the Supreme Court’s decision to overturn Roe v. Wade shook national politics and sparked a national response that’s playing out in cities and states across the country. As of today, abortion is illegal in eight states that had so-called trigger laws in place for this very moment. Five more states will ban abortion within weeks. And already today courts have blocked bans from going into effect in several other states.

JS: I wasn’t surprised it happened. I’ve covered reproductive rights for a long time, and there were plenty of us who had warned about this moment for decades. Over the last number of years, it was increasingly clear that Roe’s days were numbered. 

This all started with Senate Republicans blocking President [Barack] Obama from seating a judge in 2016 after Justice Antonin Scalia died. 

Charlie Rose: President Obama’s choice, Merrick Garland will go to Capitol Hill this afternoon to meet with Democratic senators.

Gayle King: Republicans are standing by their vow not to consider Garland, or any nominee, before the November election.

JS: Instead, they held that seat for Trump, who had already announced his intention to put on the bench justices that would overturn Roe, never mind what those nominees said during their confirmation hearings.

Justice Neil Gorsuch: It is a precedent of the United States Supreme Court; it was reaffirmed in Casey in 1992, and in several other cases.

Justice Brett Kavanaugh: And one of the important things to keep in mind about Roe v. Wade, is that it has been reaffirmed many times over the past 45 years, as you know, and most prominently, most importantly, reaffirmed in Planned Parenthood v. Casey in 1992.

JS: After the death of Justice Ruth Bader Ginsburg, Trump and his allies rushed through the confirmation of Amy Coney Barrett — even as voting in the 2020 presidential election was underway. 

President Donald J. Trump: It is highly fitting that Justice Barrett fills the seat of a true pioneer for women, Justice Ruth Bader Ginsburg. Tonight, Justice Barrett becomes not only the fifth woman to serve on our nation’s highest court, but the very first mother of school-aged children to become a Supreme Court justice. Very important. [Scattered applause.]

JS: With that, the court lurched right, creating a 6-3 ultraconservative supermajority.

Given all of that, it’s maybe not surprising where we find ourselves. But I think for a lot of people it wasn’t until the Dobbs decision dropped that they were like: Wait — what is happening?

This supermajority court seems inclined to be as maximalist as possible — to do all the things they’ve long pined for: undermining democracy; stripping their disfavored groups of individual rights; finding a way to make sure we’re all as unequal under the law as possible.

OK, so perhaps it isn’t so surprising that public opinion of the court has tanked.

Still, there are a couple of bright spots — not the least of which is the historic appointment in 2022 of the nation’s first Black, female Supreme Court justice, Ketanji Brown Jackson.

Justice Ketanji Brown Jackson: The separation of powers is crucial to liberty. It is what our country is founded on. And it’s important, as consistent with my judicial methodology, for each branch to operate within their own sphere. That means for me that judges can’t make law; judges shouldn’t be policymakers. That’s a part of our constitutional design and it prevents our government from being too powerful and encroaching on individual liberty.

JS: Amid this landscape, it seemed like a good time to break down for listeners some of what is happening now in the Supreme Court — and to talk about where we’re headed.

Joining me now to do that is Jordan Rubin, a legal analyst and opinion writer for MSNBC Digital. He previously served as a prosecutor for the Manhattan District Attorney’s Office and is the author of the forthcoming book “Bizarro” about the secret war on synthetic drugs. Prior to joining MSNBC, he was a legal reporter for Bloomberg Law, where he covered the Supreme Court.

Jordan! Welcome to our first episode of Dissent.

Jordan Rubin: It’s great to be with a fellow Jordan — 

JS: [laughs] 

JR: — and more importantly, with a journalist I greatly admire. So thanks for having me.

JS: Oh, that was very sweet of you. And it is. It’s really nice to actually talk to Jordan. I don’t get that all that often. [laughs]

JR: We have to stick together.

JS: I know we do. We do. We’re a tribe. 

So let’s just jump right in. How about that? 

JR: Let’s do it. 

JS: When the Dobbs decision came down last term, I’m curious what your reaction was and what it signaled to you about the direction of the court.

JR: Yeah, so it was weird for a number of reasons. But for one thing, we already knew it was coming, because the opinion leaked in May. There was no real reason to doubt that’s what the opinion was going to be. The court all but admitted it in Chief Justice Roberts coming out and proclaiming this was like an act of war on the notion of law and justice itself — the leaking of the opinion, not what they were doing with the opinion.

JS: [laughs] Right.

JR: Nonetheless, though, to me anyway, it did still feel jarring when it came out, when it was actually real. Like, wow, they actually did it. Because we could spend an hour talking about the leak itself, because there was some speculation of what the leak was trying to accomplish by whoever leaked it was doing: Was it liberal trying to get a Republican to change their vote? Was it a further-to-the-right Republican trying to hem in any of the relative middle Republicans, so they wouldn’t have gotten swishy?

So for those reasons, and for every single reason since Roe has been fought against for the last 50 years, I still felt it was jarring when it was actually real, even though we knew it was coming. 

JS: Yeah. 

JR: Last year, there was another revelation of an alleged leak from much longer ago, from the Hobby Lobby decision back in 2014, related to the Obamacare contraception mandate, where the New York Times and others had this really explosive reporting that there was this religious-right campaign to try and infiltrate the court, to bolster the justices, sort of similar to what I said about the right-leaning theory of the potential Dobbs leak to make sure they didn’t go squishy in their weaker moments. And that as part of this campaign of rich donors wining and dining the Republican justices, Alito leaked his Hobby Lobby opinion, not publicly — 

JS: Right. 

JR: — like the Dobbs opinion leaked, but through this wining and dining conservative network that allegedly made its way back to Hobby Lobby itself. And that was through the Rev. Rob Schenck, who became this whistleblower figure. And, again, [we] could talk about him for an hour.

JS: [laughs]

JR: But just to make a long story short, it wasn’t the only leak revelation or alleged leak revelation — not just a leak, but having to do with the abortion issue, too. And so this, again, I think it emphasizes how the abortion issue has been the whole ballgame at the court and in politics for at least the last 50 years. And this all goes to that.

JS: Yeah, absolutely. So now that we have this 6-3 super-conservative supermajority, how does it affect the decisions that the court makes in consequential cases? But also, how does it inform the direction that the court moves each term, if that makes sense?

JR: Sure. So, and the Dobbs opinion is a good example — the perfect example, really — because previously over the last at least a couple decades or so, before we’ve had this most recent iteration, it was Justice O’Connor or a Justice Kennedy who had been that middle seat. I mean, both Republicans, by the way, just to show kind of the relative terms in which we need to even talk about compromise at the court. But there was the possibility — and sometimes it really did happen — that the 5-4 decisions would go the relative-left way as opposed to the relative-right way. 

And then it came to a point where Roberts was in the middle, right? And just given how sort of mind-blowing that is to think about, even looking back to the time of his confirmation, around Alito’s confirmation, which was around the same time too, that that would be the center of the court. But what you have now is that Roberts is on the left of the Roberts Court — as, again, mind-blowing, as that is to think about. 

And the reason that the Dobbs opinion is such a good illustration of that is because you had the five Republican appointees besides Roberts, who joined really the full-throated overturning of Roe v. Wade, and you had Roberts writing this separate opinion, which would have upheld the law — which by the way, would have been certainly a further curtailing of abortion rights. I mean, if that had been the majority of opinion, that would have been significant in its own right, that’s just not where we are right now relatively in talking about the court. But that’s all to say, those other five don’t need Roberts anymore. That’s the bottom line. He could have had a full-throated dissent, and the results would have been the same, potentially. So I think that itself shows exactly where we are. That’s the direction of the court. They don’t need Roberts. Whether it’s his court or not anymore, people can have that sort of debate, however interesting or not that is about the institution. [But] when it comes to the reality of the decisions, there are five Republican votes besides Roberts.

JS: Well, I guess it’s also related to because there’s this 6-3, I mean, it really sort of impacts what cases they’re gonna — I mean can you explain just a little bit about what it takes to get a case accepted? Because obviously, it’s very consequential [laughs] for who gets to decide at this point, right? This majority that we have.

JR: Right. And I’m glad that you asked about that because this is something that there’s no reason for this to be common knowledge for even just a really well-educated news consumer, it takes four votes to grant cert. a case, to get the court to take a case fully up on appeal, hear an argument, have the decision come down, the sort of life of a case that we’re familiar with in a case like Dobbs. And so when there were still at least four Democratic appointees on the court, they could have at least, in theory, voted to hear a case; it wouldn’t have unnecessarily made sense to hear a case, then they wouldn’t have liked the results that a majority would have then reached, them being in dissent, 

But, again, this is in the same category, you can think of it as not needing Roberts. You have the court able to set its agenda in an even more muscular way. Because who knows? Even within both the Republican and the Democratic sides, each justice has their little pet projects, things that are more or less important to them than the other. When it comes to the big ball game, like abortion, guns, things like that, you know where it’s gonna go. But when it comes to figuring out which cases you can get four justices to agree to take, again, that’s more breathing room that the court as a whole has. Obviously, if you’re a justice looking to get a case accepted, you have to be thinking about what the ultimate result is going to be. So there’s only so much sort of gamesmanship you can have there. 

But again, I would look at that as a piece of setting the agenda is at least as powerful as what you can do. Because when you hear a case being talked about, as say, a compromise decision or a narrow decision, that can be true. And again, we could argue all day about how cases are covered and described and all of that. But you’re missing a little bit of the context if you don’t recall that in almost all cases, the court’s docket is almost entirely discretionary. 

And so if I could give one example of a case that’s being argued this term, this case about the so-called independent state legislature theory. And it’s a voting case, described broadly being heralded as the potential end of democracy, right? And the argument revealed what might be described as either a potential narrow ruling, a potential compromise, a potential of not reaching the farthest-right potential theory of that doctrine. But again, whatever decision winds up coming out in that case, it’s going to be important to remember that this was a case that the court decided to take up and it didn’t have to. And so I anyway think it’s important to remember that when you’re heralding any type of, or complimenting, or whatever you’re doing any type of compromise to make something seem potentially more normal or less extreme than it otherwise is, it’s almost manufacturing a normalcy to things. 

Because the court again, only takes so few cases. It used to take a lot more cases of up on argument, almost twice as many, and not that long ago in its history, either. 

So again, you have so few cases, the justices are almost completely within their discretion setting their agenda. And so even in cases where you might look at that and say: Hey! Depending on what one’s view is that could have gone worse or better or whatever — you have to look at the whole life of the thing to see how it got to the court in the first place.

JS: Right, exactly. It’s a very good point. 

I’m just shifting for a minute here: After Dobbs came down last summer, the court’s approval rating just dropped [laughs] to a quite historical low, right? So we had a Gallup poll that found that 40 percent of Americans actually approved of the way SCOTUS was handling his job while 58 [percent] disapproved. 

In October, the Heritage Foundation’s John Malcolm interviewed Justice Samuel Alito, and asked him about the court’s legitimacy. Here’s this clip:

John Malcolm: You recently stated that “saying or implying that the court is becoming an illegitimate institution or questioning our integrity crosses an important line.” 

So how do you respond to those who say the court has become a nakedly partisan institution and what is the danger of crossing that line?

Justice Samuel Alito: Oh, everybody in this country is free to disagree with our decisions. There is no question about that. Everybody’s free to criticize our reasoning and to do [so] in strong terms. And that certainly is done — in the media, and in the writings of law professors, and on social media, and in other fora… There is no question about that. 

But to say that the court is exhibiting a lack of integrity is something quite different. That goes to character. It goes not to agreement or disagreement with the reasoning, it goes to character. And someone also crosses an important line when they say that the court is acting in a way that is illegitimate. I do not think anybody in a position of authority should make that claim lightly. That is not just ordinary criticism. That is something very different. 

JS: And then, Chief Justice John Roberts has also commented on questioning the legitimacy of the court.

Chief Justice John Roberts: I don’t understand the connection between opinions that people disagree with and the legitimacy of the court. 

JS: [laughs] OK. So what do you make of the justices’ views that the legitimacy of the Supreme Court should basically go unquestioned?

JR: Yeah…

JS: [laughs]

JR: I feel like those comments almost speak for themselves in their ridiculousness. I mean — no, but really, it’s not that it’s surprising. But I mean, these are smart people, right? Like, these are not dumb people, whatever else there is to say about anybody who sits on the Supreme Court. And could you even imagine that about any other branch of government? I mean, at the end of the day, we’re talking about power here, right? And so it’s our rulers telling us how we’re allowed to react to how we’re being ruled. Right?

JS: [laughs] Right.

JR: And I mean, that’s really the beginning and the end of it. And so what it’s doing, I think, maybe they do have some great counter-argument that they just don’t want to deploy for whatever reason, or maybe it’s a sign that there isn’t an argument. And so therefore, the argument is: We can’t argue and I’m setting the terms of this debate. 

Again, it is a sort of agenda-setting here in the public sphere, though. And so when they’re in the public sphere, and when they are outside, rather, sort of the four corners of their writing, they can seem even less persuasive when they’re kind of trying to convince a regular person about an argument because it just doesn’t make sense. And this isn’t even, I don’t think, a Republican or Democratic thing. This is just, I think, a general commentary about how the law is created and how power is wielded is: Do we look to our elected leaders, the judges who are indirectly, at least, elected, and look to them for how we’re allowed to criticize them? I mean, I just think that to describe that situation is to show how incorrect that argument is. 

And again, people are free to fall on whatever side of the merits or lack of merits of whatever opinion they want, but to say that you can’t talk about it, I mean, I think that shows a lack of confidence in one’s work. It’s being upset. It’s kind of sore winning in a way, which I think was the theme of probably, Justice Alito, in particular, speeches. And there we saw a little bit, to a lesser degree, of Chief Justice Roberts, who doesn’t really go as far out there as Justice Alito, but for Chief Justice Roberts to say that he doesn’t understand the argument, I think that’s just not true. Because he’s one of our smartest lawyers in some respects, or he’s at least smart enough to not be telling the truth when he says he doesn’t understand something that’s very simple. And if he doesn’t understand that, then that’s a problem. I don’t know what to tell you.

JS: I totally agree. I like your point, too, because it does go back to what you’re saying: It’s like an agenda-setting, telling us we can’t criticize them, while meanwhile, they’re fully stocking the court because they have that power and are able to take these things, which is a very good point. So when you think about: Oh, that was a compromise ruling? Well, it’s like: Well, no, they didn’t have to take it in the first place! 

So to me, it feels like all part of a piece, right? Like, we’re gonna take this and just blow up this docket with these crazy cases, and we’re gonna do some damage. But don’t you dare say that we’re doing damage — where they’re the ones like fully in control of what they’re doing. And then acting like it’s not fair to criticize them on the back end? I just think it’s kind of ridiculous.

JR: Yeah, I mean, it’s objectively unpersuasive, really. 

JS: [laughs] 

JR: And again, look, someone could listen to this and think that I have a certain view and say, therefore, my view about that is subjective in some way. But I really think that no matter who is speaking, when you’re talking about one of the most powerful people in the country, it is just not persuasive to look to them to dictate the terms of public debate. That’s where I land on that. 

JS: Obviously, we’re not going to be able to cover all the court cases this term in this mini-series, and we’re not even going to be able to get to all of the particularly notable or consequential cases. 

So I wanted to ask you about a few of the cases that we aren’t going to be able to get to, starting with the two affirmative action cases, Students for Fair Admissions, Inc. v. University of North Carolina, and Students for Fair Admissions, Inc. v. President & Fellows of Harvard College. Can you break down those cases and tell us where we’re at and what the consequences might be?

JR: Sure, it’s fairly simple, which is that the right has been fighting against affirmative action for decades, not super dissimilarly from the Roe discussion we were having. 

If you go back to 2003, there was a ruling that kept affirmative action in place sort of for now. Justice O’Connor, again, then, going back to sort of the swing voice that was there that is no longer there, at least not in those relative terms, said she doesn’t expect affirmative action to be necessary 25 years from now — I’m paraphrasing what she said. Again, lawyers are not known as math experts, but we’re not quite yet there. 

And again, we see here with the newly constructed court, setting its agenda to take up cases for the purpose of quite possibly overruling affirmative action once and for all. And so that’s really the gist of it. And the argument suggested that that’s the way it’s going to go — at the very least, it’s going to be further weakened. Again, sort of similar to the abortion issue in that, coming out of the argument, there’s no question of what the interests are at play; there’s very little debate as to which side is going to win, maybe there’ll be a question as to what the exact words are going to be, but it’s really as simple as interest groups that have been litigating against affirmative action, they have a court that appears prepared to finally take it down, and they just needed to find a case to bring. They’re multiple cases here, and we’re talking about Harvard and UNC that deal with different parts of it, because there’s a private-public distinction. But again, the bottom line is just we’re talking about the use of affirmative action in higher education. And it’s something that the Roberts Court has been skeptical of. 

And again, going back to the discussion about Chief Justice Roberts, who in some ways has been relatively on the left of its court, the race issue is something that he has been firmly almost as far right as you could be when it comes to this issue. It’s something that he has been passionate about. And it’s a theme that we’ve seen in multiple cases this term, this notion of the Constitution being colorblind, whether you’re just not allowed to take race into account. And so that’s, in some ways, the theme of the Roberts Court, or one of them anyway, is in pushing forward this colorblind version of the Constitution and the affirmative action cases are just one of the cases that we see that notion at play this term. And there are others, too.

JS: Except for, I mean, the Constitution by nature is not colorblind. [laughs] Look at the Reconstruction amendments. I mean, don’t they speak directly to race, right? That we come out of the Civil War, and how do we get the 14th Amendment if you’re not saying it’s race-conscious? 

JR: And Justice Jackson brought that point up at oral argument. And it’s been described by some after she did it as sort of liberal originalism — using the tools of the right against them, sort of thing. I don’t know whether it’s originalism or just looking at what the text of the amendment says, and just taking the reality into account. But she has been at the forefront of speaking against this colorblind notion of the Constitution across multiple cases this term, not just in the affirmative action case. But she brings up almost the exact point that you do about Reconstruction, and it was done for this purpose. You can’t talk about these issues without talking about the history of slavery in this country, but in the way that on the right, you don’t want to talk about that in the political sphere, we see that same manifestation in the court, too. And so that view is being laundered through this notion of a colorblind Constitution. And we see that in the Supreme Court cases, that political idea of being ignorant to history as well. 

JS: Yeah.

They’ve already heard a voting rights case as well, the Merrill v. Milligan. What can you tell us about Merrill v. Milligan Court case again?

JR: Right, so we’re on the same theme here, again.

JS: [laughs] Yep.

JR: We’re talking about the Voting Rights Act, which arguably a previous case was one of, if not the most significant opinions from the Roberts Court, which is in the Shelby County case, which in 2013, I believe, struck down a previous part of the Voting Rights Act. And that was Chief Justice Roberts writing that decision, and so he has been at the forefront of that idea, even when he was a young lawyer in the Reagan era, this was a cause that was dear to him. And so he has been able to accomplish that now that he’s on the court. 

And so to make a long story short, you had part of the Voting Rights Act go down in Shelby County. 

And now we have another piece of that that is bolstering up what’s left, in a sense, of the Voting Rights Act, or at least another piece of it. And that’s again in danger as well. So it’s the court further chipping away at the Voting Rights Act — again, against the backdrop of this notion of a colorblind Constitution, that race should or shouldn’t be taken into account where you’re drawing legislative districts and that sort of thing. 

But that’s the general idea, basically: Voting Rights Act further in danger again, this term. That’s the tagline I think, from that case,

JS: Yeah. This is kind of how dorky I am. I literally remember where I was the day that Shelby County came down, and I was just, I lived in Texas — I lived in Texas for a long time — and I thought: Oh, no. 

Because what was at issue in Shelby County was the pre-clearance, right? Where a number of states had to basically get their voting changes pre-approved by the federal government because, I don’t know, spoiler alert, they had a giant racist history, right? Predominantly states in the South, but I don’t think it was exclusively, was it? But I think it’s predominantly southern states. 

So when that went, I just remember thinking: Oh, God — because the Texas Legislature, they just been for years trying to get rid of one person, one vote. And, it just was like, ugh. That’s why I remember it. 

And that’s why here, that was such a crucial piece of the Voting Rights Act.

JR: So the Shelby County case was Section 5 of the Voting Rights Act and the Merrill v. Milligan case, this is Section 2 of the Voting Rights Act, which is barring election practices that result in a denial or abridgment of the right to vote based on race. 

So that’s baked into the issue. Again, race here, and so whether the court has to take that into account. And so you see in Alabama, that would have made a difference in the number of districts where that would have been at issue and so the court wants to take a colorblind notion when looking at that, which will, coincidentally or not, result in districts that are more in Republicans favor.

JS: OK, so I want to open up a little bit further and just say two things — two-parter! 

I’m curious about what cases you are keeping an eye on this term. But also, you made a comment to my colleague, Liliana Segura, when y’all were both at the Supreme Court back in October, that I definitely want to know the answer to: You were saying that there’s some very interesting cases that they’ve taken, but what’s also really interesting are the ones they haven’t taken. 

So I’m curious, which cases are you keeping an eye on? And also, what do you see in the ones that they haven’t taken?

JR: Yeah, so I think that’s a subset of what I said before in terms of the court, one, setting its agenda, and two, taking relatively so few cases. 

I mean, just by way of some background, a typical reason that the court will take up a case is when there’s what’s called a circuit split, or there’s a disagreement among the appeals courts around the country. Again, it doesn’t necessarily have to be in what someone might think of as a political case if you can hold the idea that there’s some sort of law outside politics. I’m not really going to attempt to convince anyone — 

JS: [laughs]

JR: — one way or the other about that. But relatively within that, you know what I mean. If it’s, this circuit says this word means red; another circuit says it means yellow; it’s up to the Supreme Court to sort out, because the idea is that you want uniform application of law throughout the country. 

I mean, there are tons of cases like that, including quite often in the criminal sphere, people who don’t necessarily have well-heeled lawyers, and not to say that criminal cases from indigent people don’t attract that sort of support and make their way up to the court with relative — almost surprising — frequency, given that there is that sort of lack of constituency, but there is just a lot that gets left on the table. 

I mean, just one petition that’s pending that’s sort of interesting to me is this issue called acquitted conduct, which is this really wild situation where — and this is something you tell to someone on the street, and they just wouldn’t believe you that this is a thing — where even if you’re acquitted of certain conduct at trial, it can still be used against you by the judge at sentencing. They can still take it into account. Which, again, you think that you’re acquitted, that means you go home, right? And I mean, that’s true if you’re acquitted of everything, but in a situation where, as is often the case, there are multiple charges at play, you get convicted of one of two crimes, the judge can then take into account the conduct underlying that second crime that you weren’t convicted of in fashioning your sentence. And so it’s as crazy as it sounds — acquitted conduct. 

And so the court is considering a petition on this. And it’s the sort of thing where you would take a look at it and say: How could something like this stand? And it’s happened for long enough, and so it’s not the sort of thing that’s guaranteed for the court to take up. That’s the sort of issue that, again, the court isn’t necessarily going to take, maybe it will, maybe it won’t, it wouldn’t shock me either way, however shocking the underlying issue is, but there are all sorts of even really less shocking issues, that would just be, frankly, not even that interesting to talk about, but that are just important to the functioning of law, that the court often does not take, despite the existence of a clear circuit split. And again, will use its — by choice — limited resources to engage in what might be termed more of these culture-war types of cases that don’t even really produce that significant of a ruling from a legal perspective. 

Like, in the Masterpiece Cakeshop case, which is kind of a precursor to the same-sex wedding website case that’s at issue this term. I mean, you go back to that, and they had just another one of these sort of very narrow rulings that were tailored to the facts of the case that only — the point of a Supreme Court ruling, in theory anyway, is to provide guidance to the people and courts around the country for how to interpret the law. Ideally, at least in theory, and in reality, I would say they don’t really care about the specific facts of the case, or at least, they don’t have to. The point is to try and work out some sort of legal principle. And so again, they’re taking these cases that have these hot-button issues to them, which don’t necessarily produce significant rulings at the expense of leaving the sort of workaday type of issues on the table. Again, they could do both. They choose not to. They could take the more important issues and not take the more hot-button type cases, especially ones that don’t produce any real significant ruling to them, but that’s how they’ve chosen to operate.

JS: So obviously, they’ve already heard oral arguments on a number of cases, but we don’t have any decisions yet. So how does that kind of compare to past terms? And what do you make of that, if anything?

JR: Yeah, so it’s frankly a little weird that there haven’t been any decisions yet, at least just looking at it in terms of the cold numbers, as far as we’re at this point in the term and don’t have any decisions yet. 

Again, we’re talking about this in the context of hearing relatively fewer cases. But even within all of that, we would have expected to have at least some decisions this term. 

Now, there could be a couple of things going on. We usually have the hottest cases coming down at the end of the term, right? If you think about the end of June, for your entire thinking life, it was probably marked by the Supreme Court telling us how some subset or all of us are allowed to live or not, in some respect, right? Those come down later in the term because they take longer to cook. There are dissents going back and forth. There are justices trying to cajole one another to join this or that opinion. But so that means that in theory, anyway, the easier opinions are coming out earlier in the term, the ones that are unanimous. 

And going back to kind of the court’s publicity campaign and the remarks that we saw earlier, we’ll see in some of those same speeches, someone like Chief Justice Roberts pointing out in his criticism of the media, and how we only talk about the 5-4 cases that oh, if you actually were to look at what we’re doing, we’re unanimous most of the time. And it’s just in these 5-4 cases that the media likes to glob on to.

Now leaving to the side that we’re interested in them, because they’re, frankly, more important, and that’s why the justices are disagreeing with them, the fact that we don’t even have those unanimous opinions yet this term suggests that the court’s just not having an easy time, whether that’s a function of it still being not a great environment after the Dobbs leak, and whatever else has been happening at the court. There certainly have been a significant amount of significant cases, relatively, that have been argued already this term. So that could be part of it, too, it’s sort of a fairly front-loaded term, in terms of them having argued a bunch of significant cases already. But still, you have to think there could have at least been something that’s come out. 

And so it’s like: What are they doing? Has the Chief Justice tasked them all to investigate the league? Are they busy doing stuff with that? 

I don’t know. But it’s really not clear. You would think they would have come out with something, especially given how apparently sensitive they are about public opinion, however much they say they aren’t or how we’re allowed to talk about it. Just break us off a unanimous opinion that no one cares about, and then you can have that stat for yourself. But they’re losing even that talking point in not doing that yet, sort of proving the point that this all is contentious because they’re all just sort of making this stuff up. And that’s a function of when you’re filling the docket, too, with all these kinds of pet projects, you’re going to be left with perhaps fewer of these unanimous cases that give you that talking point of: Everything’s usually all good, it’s just in these handful of cases that you in the media like to make a big deal about.

JS: It’s a really great point. 

You’ve talked about this a little bit, but I want to let you go wherever you want to go with it, is about Ketanji Brown Jackson. And you’ve written about how Justice Jackson is challenging right-wing legal claims. We talked about this a little bit. But I would just like to throw it back to you to say: What sort of imprint do you think she’s had on the court so far?

JR: Yeah, sure. So we got to start with kind of the cold, boring math of it —

JS: [laughs]

JR: — just to make clear what we’re talking about before anyone gets too excited or not. 

She’s replacing Stephen Breyer, who was also a Democratic appointee. So it’s a one-for-one trade. It’s not one of these switches like Barrett for Ginsberg that alters the course of the court. So, again, there’s no real change there as far as the direction of the court. I mean, you have to note the significance of the first Black woman justice; again, that doesn’t change anything about the math. So that’s something you have to keep in mind if you’re tracking the result at the end of the day. 

I do think, though, when you look at something like oral argument, which is how the court sometimes is only interacting with the public; sometimes some members of the public’s only interaction with the court is hearing them speak, to hear her bring up some of these issues, for example, like combating the notion of a colorblind Constitution, it’s maybe possible that Justice Breyer would have said something like that — and I’m quite confident that he would have landed probably on the same result as her — but you just can’t pretend that it has the same significance even if they are saying the same words, which they’re not, in having Justice Jackson being the one saying that. 

And so I don’t think that they’re going to be ideological opposites by any stretch, they might wind up being quite similar, but we’ve already seen her have an impact, I think, on how the oral arguments are going, which again, lawyers at Supreme Court will tell you, that is not a significant aspect of the case, it’s mostly done in the briefing. But with the public paying this much attention to the court now, perhaps more than ever before in recent memory, it’s significant that she is out there, bringing up that view, when sometimes maybe other justices won’t.

JS: When you go to the court, it’s just all so formalized. And it’s all of this sort of tradition, and it’s sort of steeped in these fancy curtains, and everything’s just sort of gilded or whatever. And it’s meant to inspire this sort of reverence, right? 

But I don’t know that I — I just don’t know that I believe in it anymore. Just the way that the court is now taking these cases, and some of the hypotheticals that they’ve used, for example, I just sometimes feel like they’re sort of arguing just to hear their point and they just know where they want to go, right? That there’s some very results-oriented judging going on here. 

And it makes me wonder: Why — and Lili and I talk about this all the time — why have we spent all these years trying to understand the law? Why have we invested so much time in the rule of law, and trying to understand it, when it sometimes feels like it doesn’t matter anymore? 

And I’m just curious, if, from the first time you sort of stepped into that court and come through now, and the way that kind of things have played out over the last number of years, do you look at that a different way? Or do you feel a different way about the whole sort of mythos of the Supreme Court? 

That’s like my omnibus question. So take whatever piece of it you want and ignore the rest.

JR: Yeah, I mean, personally, I don’t look at it differently. Because I think I always viewed it in the same way of law being just an exercise of power, just by different means. I think what we’ve seen in recent years is an extreme version of that. And so the court is now kind of like the dog who caught the car. And that’s why they’re mad that people are mad at them. 

And so to answer the question of why, though, to keep doing it, I mean, it’s because of that power question. You don’t have to take it seriously. It’s like the Trump thing; it’s like, literally, but not seriously, or whatever that is. But I mean, you have to cover it for the same reason that you have to cover politicians and the president and everything else. And so you don’t have to respect it. You don’t have to bow or curtsy —

JS: Although I think Alito really would prefer it if you’d do that. [laughs]

JR: I mean — you could show the guy some respect, if I may say.

JS: OK, I’ll give that a shot.

JR: But he wanted me to mention that to you, specifically. 

JS: [laughs] OK. Thank you. 

JR: But again, to me anyway, it comes down to power. And so the reason that that has maybe been expressed less loudly is just because of the composition of the court. And where we started in recent decades, anyway, it’s all because of Roe. That’s why Supreme Court confirmations have been contentious in recent decades; that’s how we got the court that we got. So it’s sort of come full circle now. And it’s like, we’re standing at the party, and it’s over, and the lights are on, and it’s sort of awkward. It’s like: What do you do now? Right?

JS: Yeah. 

Well, then my last sort of question that actually follows on to that. Which is that we watch the courts quite closely. And I want to know what you would say to people who might be listening who are actually really concerned about the direction and what lies ahead.

JR: It’s too late. That’s what I would say.

JS: [laughs]

JR: No, really. That’s what I would say. If you’re concerned where the court is, then I would say barring adding seats to the court, it’s too late. And so if you don’t like the direction that the court is in, then you should be in a position of trying to change the composition of the court. And if you’re interested in doing that in a way to have any impact and not just waiting for people to die, or the winds to shift of whoever is or isn’t in Congress, then that’s the step that you would want to take. If you like how things are, then you want to try and do whatever you can to cement the status quo. But you know, when you talk about the big decisions, I mean, that cake is sort of already baked. 

One other thing I would say too, though, is in our federal system, there are the state courts, too — these things that the independent state legislature proponents don’t really want to tangle with. And so what we have seen is some of the state courts kind of flexing more of their muscles — or maybe they were always flexing them, but now is the only time that we’re putting a spotlight on them on the stage. And so I think what we’ve seen is maybe some litigators, who perhaps in the past would have fought to get a case to the Supreme Court are now focusing maybe more on the state courts, whether it’s for abortion or any other issue, really. 

And so, as far as the Supreme Court, you have to look no further than the political process to see how that does or doesn’t move. And I’ll leave that to anyone listening, whatever they want to do with that information. But I think there’s sort of more play in the joints, from a litigation standpoint anyway, in the state courts. And so that’s where the ballgame has moved to, in some respects. Not completely, because the Supreme Court is still there, but that’s maybe one thing to check out that might not be on someone’s mind, who’s still an otherwise educated consumer of what’s going on. 

Just to add kind of one nerdy point to it, which is that if a state court is handing down a ruling based on its state constitution, then that’s not something that the Supreme Court could then reverse, because if you’re thinking — oh, what’s the point anyway, if they could just reverse it — that’s why you see some decisions it’s important on what grounds the state court is ruling. 

So that’s why I think we’ve seen some people focus their attention either instead, or additionally, towards the states, instead of putting any hope in the U.S. Supreme Court.

JS: That’s a really good point. And especially with post-Dobbs, I’ve been thinking about that, and I’ve written about that some, it’s that you have to look at the state constitutions. And I think it’s always good to remember in that context, that the U.S. Constitution is the floor, not the ceiling. So it sets the base level at which you have to protect your people, but a lot of these constitutions go far beyond what you see in the U.S. Constitution. So I think that’s a really, really nice, good point. [laughs]

JR: Maybe a hopeful point.

JS: Yeah, I like that. You gotta take it where you can, right?

JR: Exactly. 

JS: Jordan, thank you so much for joining us. This has been wonderful, and I really appreciate it.

JR: Thank you. It was fun.

JS: That was Jordan Rubin, a legal analyst and opinion writer for MSNBC. 

[End credits music.]

JS: And that’s it for this episode of Dissent, a production of The Intercept. 

This episode was produced by Laura Flynn and Jose Olivares. Roger Hodge is editor-in-chief of The Intercept. And Rick Kwan mixed our show. 

If you’d like to support our work, go to theintercept.com/join — your donation, no matter what the amount, makes a real difference.

If you want to give us feedback, email us at podcasts@theintercept.com. Thanks so much.

Until next time, I’m Jordan Smith.

The post Dissent Episode One: Tipping the Balance appeared first on The Intercept.

Back in 2017, the Supreme Court heard oral arguments in Masterpiece Cakeshop v. Colorado Civil Rights Commission, a case involving a cake shop owner who refused to create a wedding cake for a same-sex couple. In a 7-2 decision, the court found that the state had violated the cake maker’s religious objections. Now the court is considering another case out of Colorado that could expand the right to discriminate under the guise of free speech. In the fourth episode of Dissent, Jordan Smith and law professor Hila Keren discuss 303 Creative LLC v. Elenis, a challenge to the state’s Anti-Discrimination Act brought by Lorie Smith, a website designer seeking to refuse wedding design services to same-sex couples. Unlike Masterpiece Cakeshop, the 303 Creative case has no injured parties; it is a preemptive attempt to allow businesses to practice unfettered discrimination.

[Dissent theme music.]

Jordan Smith: I’m Jordan Smith, a senior reporter for The Intercept. Welcome to Dissent — an Intercepted miniseries about the Supreme Court.

There’s this organization called the Alliance Defending Freedom – or ADF for short. They’re a Christian-right advocacy group, working across the country to create legislation and case law to deny services to LGBTQ people and criminalize consensual sexual activity between adults. And they’ve landed a big case at the Supreme Court.

The ADF is representing Lorie Smith, a graphic designer from Colorado who claims the state is preventing her from developing wedding websites because of — wait for it! — an anti-discrimination law. 

To make their case, the ADF and Smith have developed a series of slick videos with epic music and drone shots over Colorado landmarks. 

Lorie Smith: As a Christian artist I was really excited to step into the wedding industry and use my artistic talents, except there’s a Colorado law that prevents me from continuing with my work and forces me to violate my beliefs and speak messages that I don’t agree with… I love working with everyone. For me, it’s never about the person that I’m working with. It’s always the message I’m being asked to promote… What I am asking the Supreme Court to weigh in on and to protect this fall is the right for all of us to be able to speak freely, whether your beliefs are the same as mine or different. 

JS: The case before the Supreme Court, 303 Creative LLC v. Elenis, is on its face, at least according to the ADF and Smith, about free speech. But my guest today argues that it’s not about that at all.

Hila Keren: There’s no legal limit to the idea of free speech but there are places to carry free speech. And part of what I think goes back to our Founders’ understanding of the reality of slavery and the 14th Amendment is that the marketplace is not the appropriate place for that because once we compromise access to the market, we are really cutting under this way of being in the world.

JS: That’s Hila Keren. She is the associate dean for research and a professor of law at Southwestern Law School in Los Angeles. She writes about the marketplace and the relationship between law and human emotions. 

And she argues that this case is really about weaponizing the marketplace under the guise of free speech and religious freedom and that there’s been no limitation placed on Smith’s speech. She’s actually been sharing her views all over the place. Hila joins me now to break down the case. 

Hila, welcome to Dissent. 

HK: Oh, thank you so much for inviting me.

JS: So, to start we need to do just a couple of things. First, would you lay out, briefly, the facts of this case, 303 Creative v. Elenis, including the Colorado law being challenged? 

HK: So in this case, a lady named Lorie Smith owns a business, which he runs with a company called 303 Creative, which gives the name of the case. What she’s interested in is an exemption from anti-discrimination laws on behalf of her free speech and religious liberty — although the religious liberty part of it was put on hold by the Supreme Court, because it only invited her to hear her free speech claims. 

And so the law in Colorado says that once you run a business and you’re open to the public, what the law calls public accommodation, then you have to serve everyone; you cannot discriminate against groups. In Colorado, like in many other states around the country, one reason you cannot discriminate against is sexual orientation. And it’s named specifically in the legislation, it was democratically added as a category that is protected in the state of Colorado, but in numerous other states. 

And despite this very explicit legislation, the business here insists on a right to discriminate. How would they have a right to discriminate? The argument is that the right to discriminate will or should arise — it never existed before — but should arise from the right to free speech. That business wants to start doing weddings. It is a business that designs websites and wants to embark on designing websites for wedding purposes. And in doing that, they really want to highlight a line that they will do this only for heterosexual couples, but not for same-sex couples. 

Now, the business, importantly, did not do it yet. And so they rushed to sue Colorado before Colorado did anything. And they claim that Colorado is going to be punitive, going to prosecute them, and therefore they are doing something called pre-enforcement litigation, taking a preemptive step to say: You can’t sue me if I ever start doing weddings!

So on behalf of free speech, theoretically wanting to say I will not serve same-sex couples in the context of creating web wedding websites for them. But that’s not all. On behalf of the same claim, I also want to be free to put a sign out there and I’m imagining the sign to be digital at this point because it designs website and has a website — but to declare, basically, that same-sex couples are not wanted for the wedding services that we are going to one day provide. 

This case went through the system in Colorado and lost, but purposely was taken to the Supreme Court. And that’s an interesting point, the Supreme Court picked it up because the Supreme Court does not have to discuss that. And that question some of us thought was already decided in the past. But the Supreme Court limited the debate to the question of free speech.

And the whole litigation, it’s a lot of effort; it is part of legal battles around the entire country. So it’s not just Colorado, it’s not just this business; and the point is to argue we should be exempt from anti-discrimination laws, and in their language, not to be compelled to speak. And I’m saying “in their language,” because some of us may struggle to see where is the compelled speech in this scenario.

JS: That was a nice opening summary because we’re going to get to every piece of that — at least I hope we will. 

But I guess we should back up just a bit here to talk about that previous case, Masterpiece Cakeshop v. Colorado Civil Rights Commission. Can you tell us a little bit about that case, and how it gets us to 303 Creative? And I guess, you’ve already hinted at this, but critically, what’s different about this case versus Masterpiece Cakeshop?

HK: This is another incorporated company business, commercial, this time it also [has] a storefront, that sells our cakes and other baked goods; similar to how the owner of the website designer refuses to serve same-sex — refused, I should say, to serve same-sex couples. 

There is a huge difference, though, between the cases. And this is that [there] baker[s] for real refused to serve real people. Their names are David and Charlie. And they were literally refused, very harmed, their photographs were all over the media. One of the mothers was with them. So there was a big, humane story which I find crucial to our understanding of what’s going on right now because at least people could have viewed both sides of this debate. And the party that is getting harmed for those discrimination was there to speak, to have a photograph, to have some sympathy and to have their story appear during the litigation. 

In Masterpiece, the Court really recognized the problem of stigmatizing the LGBTQ community and creating some undermining of the recognition of the right to marry for same-sex couples that was achieved in Obergefell in 2015, so several years prior, and the Court really said that gay persons and gay couples are social outcasts. And with that sympathy said that they were marked for such a long time as inferior in dignity.

So part of the analysis of the Court that existed in Masterpiece was: No you can’t do this because this is a certain compromise — actually, a big compromise of the dignity and self-worth of not only the couple that you hurt, Mr. Baker — David and Charlie — but the Court talked about community-based stigma, stigma that will be created if we’re going to allow businesses to simply rule out categories and say they’re not wanted there. 

So the Court decided not to decide in an interesting way. Because of that reasoning, the Court emphasized: We’re not going to allow businesses to discriminate and be released from requirements of Colorado to not discriminate and exempt them from any law. However, the Court really reprimanded Colorado’s Committee of Civil Rights for not treating the baker and his sincere beliefs with more respect. 

So respect was sort of the skeleton of this decision. And the Court said: In this case, we’re not going to protect the Committee, but not because we’re giving a wide exemption, but because you had to treat better the baker. 

In what sense did they not treat better the baker? In the sense that several people talking on the Committee opined that this, the sincere religious beliefs, are pretext to discrimination. It got the interpretation of the Supreme Court as possible disbelief of the religious claim, and that was isolated as inappropriate in this particular case. 

Why is it important to this litigation that we are now talking about? Because there were real facts. There was a record of a meeting; there was a citation from a person on the Committee that opined about the baker; and there were David and Charlie. And we can kind of try to do what we always do in law, balance between the human beings at play. And because we’re trying to balance between the human beings in play, there was this kind of fine line in Masterpiece where, well, you have to respect the community of LGBTQ people, and we’re not exempting you. But you have to also award respect to the baker, in that sense. 

So the Court was trying to balance rights and to see the whole picture on a rich factual pattern that is totally, and harmfully, missing in the situation that we are right now talking about in the case of 303 Creative.

JS: Yeah. I wonder if, also, critical to understanding what is going on here is to understanding what public accommodations law is. Can you explain broadly the contours of what we’re talking about when we’re talking about public accommodations law, and about protected classes, people that we’re trying to protect from discrimination? Broadly, or however you’d like to talk about it.

HK: We start from slavery historically, and from the 14th Amendment and the realization that it’s not enough to release people from their status as slaves, but rather crucial to their equality and joining society on different terms is their participation in the market. 

So the 14th Amendment is talking directly about the marketplace and demanding equal rights in the ability to make contracts. And I think that this is what’s at stake here. Because in order to purchase a good, anything I need, the cake from Masterpiece. And in order to actually get the service of website design from the provider in 303 Creative, we need a contract, right? I need the ability to make a contract. 

And when someone is saying: I am not going to make a contract with you because of who you are — not because you don’t have money, not because you entered my store with no t-shirt on, but because there’s something about who you are that I object [to] — that was forbidden from the beginning with roots going back to slavery. 

With time and during the ’60s, the principle was enlarged into a lot of subordinated groups, not only people who were slaves must be treated equally in the marketplace if we have any serious claim that this society is equal. Otherwise, if some people can make contracts, and some people cannot make contracts, if some people can buy houses but others cannot buy houses, then how are we going to just run this society?

And public accommodation law is really circling the demands of equality around businesses open to the public. So if you’re saying: I am open to serve everyone, then you must actually serve everyone. 

Now states created their own version for that. And states differ in what they call public accommodation, and many names, for example, specifically online businesses. So many states moved with time and added online businesses to that list. Because imagine — and after COVID, I cannot imagine that — 

JS: [Laughs.]

HK: — but imagine that Amazon would not serve a group in the population! That matters, even though they are not literally physically open to the public. 

So there is a variety between states regarding what counts as a public accommodation. But what matters to our case, and I want to point it out now, is that there was an agreement between the parties that was stipulated, and they could not argue about it — although the judges tried to argue — but that this business, the website design business, is public accommodations.

JS: That’s exactly what I was gonna say it was. My next question was: Yes, she stipulated this — 303 Creative, my website design business — is a public accommodation.

HK: Yeah. Now to go to the protected groups: That, with time, also was updated, and there is variety around the country. So some states only say you can discriminate based on race and sex and religion, for example. And some say you can’t discriminate based on gender identity, sexual orientation. We have the same principle in the different [states] regarding disability. We have a long — increasingly long — kind of a list. 

In a few states, the most recent addition is political affiliation.

JS: Yeah. So let’s come back to this whole thing about the stipulation because Lorie Smith, the owner of 303 Creative, has stipulated that her website business is a public accommodation. So, theoretically, shingles out there for all comers. Well, if she is saying: Yes, I am a public accommodation. What is she asking for? 

HK: She is asking for a right to discriminate, despite the law. 

She doesn’t call it “discriminate,” but a right to refuse to serve same-sex couples if they will come — and it’s an if, because that never happened — and ask her to design a website for them.

And during the hearing at the Supreme Court, it was interesting, because there were a lot of questions going at: But what if it will be exactly the same website? What if it is Harry and Steve, and Harry and Megan, and Harry and Steve are now getting married? And they come and they say: Well, we want exactly the same website you created for Harry and Megan, would you serve them? 

And the claim is: I cannot be compelled to give my expressive powers in designing websites to something that I disagree with. 

So literally, this is a request for exemptions from anti-discrimination laws, on behalf of free speech, for religious reasons, against same-sex couples right now.

JS: Why [would] one might stipulate to being a public accommodation? And maybe it has to do with opening this door wide.

HK: I want people to understand how this is not really a personal, individual dispute. Rather, what’s going on here is a really big legal campaign around the country, carried out with a very high budget, lots of legal talents, a lot of investment, and led by the largest conservative advocacy group called The Alliance Defending Freedom, or sometimes we call them the ADF. 

The Alliance Defending Freedom, in this particular kind of battle, they’re not defending anyone, they’re actually attacking. They have developed this legal strategy that is pretty sophisticated in which they went around the country — and deliberately around the country, in a variety of states, eight states so far, in Arizona, Kentucky, Minnesota, Wisconsin, Ohio, Colorado, Virginia, and New York, so they spread the battle — and picked people who are doing something somewhat expressive in the wedding industry, some of them photographers, some of them producers of videos, some of them florists, baker[s], we mentioned — a variety of those — and took states that are a combination of difficult states for them to win, like Colorado, and easier states for them to win, more conservative states, like Kentucky and Arizona, but deliberately. 

Why did they go also to the states that are difficult for them? Not because they like the challenge, but because they were hoping to get the issue to this Supreme Court. How do you get issues to the Supreme Court? You create — or you hope for, but here they proactively created — disagreement between circuits. So it all started in eight different states and got to four different circuits: the 6th, 8th, the 10th, and the 2nd. 

And this created a disagreement between the circuits. So for example, in the case of Colorado, the 10th Circuit said: No, you cannot discriminate. 

But the 8th Circuit in the case coming from Minnesota said: Yes, you can discriminate on behalf of free speech, at least in a temporary injunction that they have awarded. 

So that actually helped the Supreme Court to pick the case. But the strategy here is wider. And this goes back to why conceding that it’s a public accommodation because the whole point is to allow as many businesses as possible — and not as few businesses as possible — to actually make those statements. Because the purpose here is to use the marketplace as a platform to put signs out: Same-sex couples are not legitimate in some versions, and therefore I so object to the realness of their wedding and marriage that I object to serve them.

And so the broader it is, the more successful this political conservative battle is. So for that purpose, it’s really important to broaden it and to include public accommodations.

JS: That brings us to some of the arguments which, throughout them, there were a lot of hypotheticals, some rather cringy, and analogies, some of which were quite odd. And frankly, a lot of them, I think, missed the mark, by not implicating a protected class, for example, or even a public accommodation [laughs], like Kristen Waggoner, the lawyer representing 303 Creative bringing up the musical, Hamilton.

HK: [Laughs.]

JS: And how unless you vindicate her client’s rights here, that somehow Lin Manuel Miranda wouldn’t have been able to cast his show the way he did. 

[Musical clip from Hamilton: “The ten-dollar Founding Father without a father, got a lot farther by working a lot harder…”]

JS: OK … Miranda isn’t a public accommodation, and I don’t get how his casting would be an issue, even if he was. So there’s that. 

And then there was also Justice Samuel Alito’s incredibly cringy Back Santa and kids in KKK robes hypothetical, which I think that if people have heard anything about the oral arguments in this case, that might be the thing that they heard about. Let’s listen to a bit of that.

Justice Samuel Alito: […] Justice Jackson’s example of the — the Santa in the mall who doesn’t want his picture taken with Black children.

So, if there’s a — a Black Santa at the other end of the mall and he doesn’t want to have his picture taken with a child who’s dressed up in a Ku Klux Klan outfit, that — that Black Santa has to do that?

Eric R. Olson: No, because Ku Klux Klan outfits are not protected characteristics under public accommodation laws.

JS: Can you talk about why these hypotheticals and analogies just … fail, and how they obscure what’s really at stake here? 

HK: This question alone covers almost everything that is wrong with this case. The judges on both sides, liberals and conservatives, had to use hypotheticals because they didn’t have a case. If you have a real case, you can talk about the facts, but there were no facts. And during this hearing, the oral hearing arguments, there were repeated references to the lack of fact[s]. It was astonishing! 

SA: Well, you should understand what your statute means. So suppose a website designer says, I’m offering my services, but I’m in a lot of demand for my services. And I reserve the right to decide who I will provide a website for and who I will not. Is that a public accommodation, then?

EO: If that’s the only factor then yes, but it can make decisions about who to supply that aren’t based on protected characteristics and choose its clientele just fine. What it can’t do is say I reserve the right to refuse service which means in practice, I will not serve black people

Justice Ketanji Brown Jackson: And isn’t part of the problem here in terms of trying to answer Justice Alito’s various hypotheticals that were presented with a record of stipulated facts and that the opposing — your friend on the other side actually stipulated to the application of the statute?

So it’s really hard for us to know and figure out and determine in this context, how the statute would actually apply, because we don’t really have a real record on that — on that score.

EO: That’s correct.

HK: The fact that there were no facts invited those hypotheticals, made them necessary, because the justices on both sides were trying to figure out: What exactly are the limits of what you’re saying here? Can we do this? Can we do that? And they came up with a lot. 

So that’s one point. But the second point that I’m so happy you emphasized [is] the role of Justice Alito in that, because a lot of the Hamilton, Santa Clause, and all of those examples really come from a line that he and the lawyer wrote for the ADF, Ms. Waggoner, were trying to lead, which is a very problematic line that I want to pull out from the hypotheticals because the hypotheticals are so confusing, that actually you lose sight of what’s at stake.

And so what they were struggling with is the comparison of rejecting same-sex couples, to rejecting African-American people and interracial couples. So each time the word race in any variation came up in the oral arguments, there was a jump on the side of either the ADF, or the main justice was Justice Alito carrying that, to interrupt that, to not let it happen. 

So when Justice Sotomayor started to say: Well, on that premise, you’re free to hold your opinions, you can also discriminate against disabled people, because maybe you believe that they shouldn’t actually create a family, and interracial couples.

Justice Sonia Sotomayor: — tell me why it’s not protected speech, the identical message that — that Justice Barrett put forth, but by a disabled couple. And you say I don’t want disabled people to get married. I think propagating a disability is against my personal belief. It doesn’t have to be religious because we’re not dealing with the religious part of this. I don’t want to speak that message. I too believe that two disabled people getting married and telling their story of how they got in love, I’m not going to serve those people because I don’t believe —

Kirsten Waggoner: It’s not — 

SS: — that they should be married. What’s the difference between that and I don’t believe Black people and white people should get married? 

HK: Because it didn’t really disappear from the discussion, they brought a second line of argument. And the second line of argument was about Obergefell, the recognition of same-sex couples, and saying remember that in Obergefell when Justice Kennedy acknowledged and recognized same-sex couples, he said that some honorable people actually think that this is not really an appropriate kind of marriage. 

And they just repeated during the oral arguments — and when I say they, it’s Ms. Waggoner and Justice Alito — the premise of honorable people, honorable people, that are not like the racists. 

So there was a really big theme there: Is refusing same-sex couples similar to refusing people because of race? And they were leading a line of: No, that’s not the same. You cannot be an honorable racist, but you can be an honorable religious person who disagrees with same-sex marriage. 

However, one thing that is being left out is that there is no way to cabin that. Remember that we explained that the Supreme Court took the claim of free speech and not the claim of religious liberty. So because it’s free speech, free speech protects racists, and sexists, and bigots, and everyone. So if someone has, because of their free speech, the right to discriminate, then of course that it will be the decision that if it is in conflict with your free speech, you can avoid anti-discrimination laws, then the next move is to just say, well, part of me thinks that people, based on race, are inappropriate and therefore I will do the same. 

Justice Jackson also reminded people — and that was a great reminder on her part, great interjection — that a lot of people resisting interracial couples or intermingling of the races were basing it on religion. I mean, there is no limit to what segments of religion can create in terms of objections: Objections to women to women’s rights, what they can wear, to what they can do —

KBJ: Historically, opposition to interracial marriages and to integration, in many instances was on religious grounds. So I don’t know that we can say that just because we have a religious objection to same-sex marriage in this situation that wouldn’t necessarily implicate religious objections to other kinds of situations.

HK: This is really unlimited. So really, part of the harm here is this case is really unlimited in its scope. This oral arguments phase was really exposing a lot of that, a lot of inappropriate moments — not only in the hypotheticals, by the way. Throughout the entire argument, there were really hostile references to same-sex marriage. And it’s hard to reconcile this with the view that this is [an] honorable view. 

While I understand the religious argument here, you don’t have to call a marriage of someone else “false.” And the word false was used again and again during the litigation; the word “bad” marriage was mentioned. The Justices talked about things we loathe, including this marriage; things that are offensive to one’s beliefs. So there was so much of this hostility. 

At a certain point, Justice Gorsuch talked about how the baker for Masterpiece was sent to a re-education program:

EO: But, here, they are defining their service by excluding someone based on their —

Justice Neil Gorsuch: That’s their religious belief.

EO: Well, in Colorado —

NG: You can’t change their religious belief, right?

EO: No, but — but -— well, two —

NG: And you protect religious beliefs under the statute, right? That is one of the protected characteristics in theory.

EO: Yes, and in practice. If it wasn’t in practice, we have heard about it over — over the past several years and — and my friend has pointed to no example where this has been applied in a — 

NG: Mr. Phillips did go through a re-education training program pursuant to Colorado law, did he not, Mr. Olson?

EO: He — he went through a — a process that ensured he was familiar with —

NG: It was a re-education program, right?

EO: It was not a re-education program.

NG: What do you call it?

EO: It was a process to make sure he was familiar with Colorado law.

NG: Someone might be excused for calling that a re-education program.

HK: To me, the hypotheticals and those expressions of hostility are really part of what was so awful and went off track in this litigation. And it all happened because there were no facts. There was no other side. There was nothing to tell here. And therefore it went all over the place, to places that, to me, are inappropriate.

JS: Yeah, I was just going to ask you, basically, which of the hypotheticals stood out for you as actually capturing the core issue and the absolute certain fallout that would flow from a decision in 303 Creative’s favor?

HK: You know, the surprising part is that I think Justice Barrett was, at a certain point, trying to help Ms. Waggoner by introducing a story about [an] interfaith couple, but to me, it only said more about how unrestrained and limitless it is once you start doing all those things. Or there was a story that was part of how inappropriate it was about a couple that met in the workplace, and they were having an affair while being married to other people:

Justice Amy Coney Barrett: A heterosexual couple comes to her and in the engagement story part writes a story that goes like this: We met at work, we were both married to other people, but what began as late nights at the office quickly turned into love. After six months, we realized we could be happy only with each other, so we decided to begin our story today, got divorced, and are marrying each other. Does she publish it? 

KW: I don’t believe that she would. 

HK: I want to say actually, that from the variety of hypotheticals, people should get scared. Because it can target almost any one of us because, again, we have zero control on the free speech of people. And free speech is just unlimited. So if someone wants to say: Well, if you were married to someone when you met a new person, all of us with Chapter B in their lives should be worried — and who knows who is next!

So I think that once you start going downhill with human dignity, that’s where you land. And if you will allow me, I want to say that they repeatedly talked about how this view of being against same-sex weddings is honorable. And it’s honorable because Justice Kennedy promised them that. But Justice Kennedy never promised to allow people to discriminate. Justice Kennedy wrote Masterpiece and said: No, you cannot discriminate. I understand that you’re against it. And I believe you and your religious belief is sincere, Mr. Baker, but that doesn’t mean that you can discriminate. 

So no one promised honorable people that they’re allowed to discriminate. But what is really mind-boggling is how one-sided is this game of honor and dignity, because while they were emphasizing how honorable is the point of resisting same-sex couples, and also at one point, Ms. Waggoner said no one has to be compelled to express a message that violates their core convictions because it’s demeaning to them — meaning it’s humiliating that Colorado dares requiring equality. That was, by the way, a response to Hamilton, because she really got carried away with that. 

JS: [Laughs.] 

HK: But if you think about it, no one can demean the business owner. But the business owner can totally humiliate the customers, right? Only, you strategized the litigation in a way that no one can actually tell a story of how humiliated they felt. I think the loss in Masterpiece or the way Masterpiece said: No, you cannot discriminate — is because there was a voice there of really real people who got so offended and crushed by the refusal. What do you mean our wedding is false, right?

JS: And there was also a lot of talk about well, I guess trying to somehow cabin this in a way by talking about sort of a who versus a what. 

So, at one point, Justice Neil Gorsuch is like: Well, Smith would refuse this wedding website to heterosexual people too! So it’s really not the who who is asking, but the what they’re asking for.

And this struck me as odd [laughs] on a couple of levels. I mean, Smith does not want to provide wedding websites for same-sex weddings. And I mean, heterosexuals don’t generally have same-sex weddings. So the what — the same-sex wedding — is inextricably linked to the who in this scenario, right? Can you explain that a little bit or talk about that a little bit?

HK: Yeah. So this is one of those destructions, I think of, why are you doing this — and adjacent to that is the argument — but she serves the LGBTQ community; only when they get married, she disagrees with them!

And as Obergefell itself said, and they rely on it in their argument, but it also says, without the ability to get married and celebrate the marriage like anyone else, you really don’t have the full personhood. Right?

JS: Right. 

HK: So I don’t think you can separate the what and the who, in that particular situation. 

I have to say that if the same Lorie Smith went to the public square and wanted to carry signs against same-sex couples, I would be with her protecting her free speech. So I do think that people do have rights to opinions that are difficult for us to hear; I would not be on the same side of the campaign with her, but we both should have access to the public square. 

The problem here is the platform they chose to use. This insistence [that] not only we disagree with same-sex marriage, but we take the battle to the marketplace, and we’re trying to create via the marketplace, this segregated marketplace that will convey the larger resistance to same-sex couples. 

And so it’s not that Colorado chases businesses. It’s that those businesses chose to enter the wedding industry to make the point that actually is a political point: We never agreed with the right to get married, and now that it exists — after Obergefell — we’re going to resist it in many ways. And this is our most creative one in which we’re going to use cakes and flowers to make a political point.

JS: You know, I was really sort of worried after the oral argument? I think part of it does have to do with how bonkers a lot of the hypotheticals were. And, of course, it naturally all relates back to the problem of not having a story on the ground, just sort of this hypothetical that Lorie Smith wants to build these websites, she just doesn’t want to do them for you, as you said. 

But by the end of the argument, I was just sort of like: Oh, no, where is this going? And I fear that it’s kind of going towards what you’re suggesting, that the wheels are about to come off the bus here. 

I mean, and then it also strikes me that, of course, yeah, they didn’t have to take this case, right? They kind of grabbed it. 

There’s probably nothing uplifting to say about all this. But I’m just curious what your takeaway was. I mean, the harms are very clear. And I’m very worried. And I don’t know that there’s a reason for me not to be worried, if that makes sense. I’m kind of curious what your final sort of takeaway was.

HK: I share your sentiment. That’s how I ended after listening carefully to the oral arguments, thinking it’s going the wrong way. And the reason it’s going in the wrong way is structural. I think the Supreme Court has six conservative justices. They were never happy about the recognition of same-sex weddings and marriage, and so now they’re undermining it. 

I mean, in the debate about abortion, if you recall, when we were all taken a very, very fundamental right [sic] that we thought we had for 50 years, there was a question: What’s next? Whose rights are next? 

And some people were saying: Oh, no, they’re not going to touch same-sex marriage. But this is a serious way of touching and injuring same-sex marriage, right? Because you can recognize the marriage but undermine everything else around that. And then you really mark second-class citizens here. And then when the list is open of who is a second-class citizen, then we can add to the list more and more people.

So this is dreadful, and it comes from the structure of the Supreme Court. I think that’s another significant difference between the times of Masterpiece Cakeshop and 303 Creative. 

What’s changed is also not only the litigation, but also who’s on the Supreme Court, and you could hear it. I mean, they joined it from the perspective of religious liberty and from the perspective of disliking strongly the state, like you could hear it in Justice’s Gorsuch reactions — like what about Colorado compelling — and that’s like a mixture of several conservative agendas. Like now the state is not allowed to enforce anti-discrimination laws. 

So we are going to before the ’60s, this is undoing the entire system of civil rights. And with no civil rights in the market, no civil rights in the workplace, no civil rights in housing, no civil rights in the public accommodations, where are we headed is a really severe question. 

The only sliver of possible hope I can try to work on, and this is what I’m working on, is to say: You know what? This is not only between states and their citizens. This is also between us as human beings. The problem is interpersonal — although they are hiding it, they were trying to hide it. And we have a legal system that covers the relationship between person to person.

And so to me, my project is to take a look at those laws — for example, contract law. If I’m trying to make a contract with you, and I have the money, and I respect your business and your rules, and I merely entered your store and ordered something you sell to everyone else and I can pay cash or credit, whatever you want, does contract law allow you to say: No, I will not contract with you?

Another big one is tort law. In our tort law, we are actually banning people from intentionally inflicting emotional pain on others. So if someone is to reject in a very humiliating way a client — so David and Charlie with the mom get into the store, only to be turned around for who they are, that’s a lot of pain to go back home with. And so isn’t it intentional infliction of emotional distress? 

So, I don’t know. This is kind of against the grain of our habit to say political questions are going to be determined under constitutional law, and our tort law, property law, and contract law are going to deal with money and the people who have money. But I do think that when interpersonal problems are happening, those laws should offer remedy, even if we lose the battle on anti-discrimination laws.

JS: You know what? I will take that sliver of hope in the law and end there. 

HK: [Laughs.]

JS: Hila, thank you so much for joining us.

HK: Oh, thank you. It was a fascinating conversation.

JS: That was Hila Keren, associate dean for research and a professor of law at Southwestern Law School in Los Angeles. 

This episode was produced by Laura Flynn and José Olivares. Roger Hodge is editor in chief of The Intercept. And Rick Kwan mixed our show. 

If you’d like to support our work, go to theintercept.com/join — your donation, no matter what the amount, makes a real difference.

If you want to give us feedback, email us at Podcasts@theintercept.com. Thanks so much.

Until next time, I’m Jordan Smith. 

The post Dissent Episode Four: The Right to Discriminate appeared first on The Intercept.

The North Carolina Supreme Court rejected a partisan gerrymandered congressional map drawn to heavily favor Republicans last year. The map violated the state’s constitution. The North Carolina legislature is now arguing before the U.S. Supreme Court whether the state legislature has the authority to override the court and ignore its own constitution. The case, Moore v. Harper, raises the prospect of the independent state legislature theory — a fringe theory that, if the Supreme Court rules in favor of, would give state legislatures unfettered authority, remove checks and balances, and undermine future elections. In the second episode of Dissent, host Jordan Smith and Elizabeth Wydra of the Constitutional Accountability Center closely examine oral arguments and unpack how a favorable or even a middle-ground ruling would radically change elections.

[Remixed Intercepted theme music.]

JS: I’m Jordan Smith, a senior reporter for The Intercept. Welcome to Dissent, an Intercepted miniseries about the Supreme Court.

Neal Kumar Katyal: There are three Federalist Papers on the Elections Clause. Not a word, anything like this. What he would do is gut the ordinary —

Ketanji Brown Jackson: So -—

NKK: — checks and balances.

KBJ: And so, to me, it’s not so much the sort of troubling worry of we have the state legislature violating federal constitutional law because we as the Supreme Court and other courts in the federal system can look at that because it’s a question of did they violate the federal Constitution. Here, he’s saying — no, we do have to comply with the federal Constitution; what we can violate is the state constitution. And what I don’t — I can’t wrap my mind around that argument.

NKK: I can’t either, Your Honor. In — [fades out].

JS: Listening to the Moore v. Harper oral arguments about this notion of an independent state legislature, I — like Justice Ketanji Brown Jackson and former acting U.S. solicitor general Neal Katyal — could not wrap my mind around the logic of the case. 

As U.S. Solicitor General Elizabeth Prelogar also argued, the theory before the Supreme Court would “sow chaos” in state and federal elections.  

Elizabeth B. Prelogar: Throughout our nation’s history, state legislatures enacting election laws have operated within the bounds of their state constitutions enforced by state judicial review. This practice dates from the Articles of Confederation, and the Framers carried it forward by using parallel language in the Elections Clause to assign state legislatures a duty to make laws. Text, long-standing practice, and precedent show that the Elections Clause did not displace this ordinary check on state law-making.

Petitioners’ contrary theory rejects all of this history and would wreak havoc in the administration of elections across the nation.

Their theory would invalidate constitutional provisions in every single state, many tracing back to the founding.

JS: The basic idea behind this so-called theory is that the Constitution’s Election Clause gives to state legislatures — and only state legislatures — the power to set conditions for holding elections for federal office — like the House of Representatives. And that, essentially, no one — and definitely not a state supreme court — can really stop them from doing whatever they want, like restricting voting by mail or decreasing the number of polling places, or by shamelessly gerrymandering an election map.

To break down this case and its far-reaching implications, I’m joined by Elizabeth Wydra. She’s the president of the Constitutional Accountability Center, a think tank, law firm, and action center dedicated to fulfilling the progressive promise of the Constitution’s text and history. 

Throughout her tenure, she has filed more than 200 briefs on behalf of the center and so many others – including preeminent constitutional scholars and historians; state and local government organizations; and other groups, like AARP and the League of Women Voters.

Elizabeth, welcome to Dissent.  

Elizabeth Wydra: Thank you so much for having me. I’m thrilled to be with you.

JS: OK — to start, can you give us a little background on the case, tell us who the parties are, how it landed at the court? And what is the theory that the North Carolina legislators are presenting?  

EW: Yes. Absolutely. 

So there is a very important case at the Supreme Court this term called Moore v. Harper, and it comes from an extreme partisan gerrymander in North Carolina for the North Carolina state elections. A lot of people, I’m sure, are familiar with the idea of a gerrymander, but the way it worked out, in this case, was: Let’s say there was pretty much an evenly split popular vote in the state of North Carolina, under this extreme, partisan, gerrymandered map it would have resulted in like 10 Republican seats and four Democratic seats, even if it was an evenly split popular vote. 

So because the North Carolina State Constitution guarantees free elections, and here, it certainly did not seem as if it was a free election, because even if more people voted for Democrats, [laughs] they’d somehow end up with Republicans through the map, the North Carolina Supreme Court struck down the extreme partisan gerrymandered map and they went through a couple of iterations of this, and then a group of North Carolina Republican state legislators pushed the argument that because the Constitution gives to the state legislatures — the Constitution uses the term legislatures — the power to regulate the time, place, and manner of decisions, that this state Supreme Court of North Carolina couldn’t enforce North Carolina state constitutional guarantees, and basically that the North Carolina State Legislature had unfettered authority to draw the map however they want, even if it violated the North Carolina State Constitution. 

So we get up to the Supreme Court. And there, we see really a clash of the conservative majority against itself. [Laughs.] We see really spectacular legal advocacy from the side of the folks who are pushing back against this idea. And the backdrop for all of this is what’s known as the independent state legislature theory, which is what the North Carolina Republican legislators are pushing, this idea that state legislatures can do whatever they want with respect to elections without checks or balances, it would have an important impact not just on the drawing of congressional maps, or partisan gerrymanders, but it could have a huge impact on democracy itself. 

And so the independent state legislature theory is really, incredibly important. And that’s what’s at the heart of the Moore v. Harper case.

JS: We should be clear on the constitutional clause we’re talking about, and it seems like in the whole framework of the thing, it’s kind of unremarkable, and it’s just sitting there. 

But this is what it is. I was going to read it so everybody knows exactly what we’re talking about. 

Here’s the clause: “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of choosing Senators.”

So if you could break down what’s happening here with this clause, and how the role of “the Legislature” is being used to further the objectives of the North Carolina legislators? 

EW: Yeah, so I guess as a backdrop: The Constitution, in many places, has layered authority for things. So sometimes state and local governments have certain authority; sometimes the federal government has the authority. Sometimes, like in this instance, the state has some authority subject to checks by the federal political branches, or the federal courts. And so what I want to acknowledge is that if you are a layperson and you’re reading this, it does say the word legislatures of the state — so you might be: Oh, OK, well, the North Carolina Republican state legislators have a good argument! 

No, they don’t! [Laughs.] And that’s because certainly when the Elections Clause was drafted by the framers of the Constitution in the 18th century, the idea that state legislative activity included other aspects of state lawmaking. So that would include a governor’s veto of state legislative action; it would include state court checks on state legislative activity. That was understood to be part of the legislative action of a state. 

In addition to that kind of mechanical understanding from the founding — not to be too shady about it, but the drafters of the Constitution, like James Madison, were extremely suspicious of, let’s say, the quality of state legislatures. So the idea that they would have given them in the Elections Clause, this unfettered power without any checks or balances, just doesn’t really match up to the feelings that the drafters of the Constitution had about state legislatures. 

But I think even more important, we don’t want to go on just vibes when it comes to interpreting the Constitution, as Justice Ketanji Brown Jackson noted in the oral argument that was held at the Supreme Court in Moore v. Harper, state constitutions create state legislatures. It’s all sort of the same organism. And so if you have the state constitution setting out certain guardrails for election processes, whether it’s with respect to voting rights, whether it’s with respect to the drawing of maps, or, as I’m sure we’ll talk about in more detail, the choosing of electors when it comes to presidential elections, which comes in Article Two of the Constitution, the idea that this those state constitutional restrictions apply to state legislative activity is just an organic part of how this stuff works. So what might seem like a reasonable argument at first blush really isn’t.

JS: Exactly. And we’ll get into some detail about all of these things for sure. But just first, for listeners, there were a lot of lawyers arguing this case – including current U.S. Solicitor General Elizabeth Prelogar and two former solicitors general, Neal Katyal and Donald Verrilli – each of whom argued against this independent state legislature thing — or, ISL thing, for short – on behalf of the various parties. And then there was lawyer David Thompson, representing the North Carolina state legislators who are hoping the Supreme Court will essentially bless this wholesale reimagination of the Elections Clause.

Here’s Thompson with his opening pitch to the justices:

David H. Thompson: Mr. Chief Justice, and may it please the Court: The Elections Clause requires state legislatures specifically to perform the federal function of prescribing regulations for federal elections. States lack the authority to restrict the legislatures’ substantive discretion when performing this federal function. 

As Alexander Hamilton wrote in Federalist 78, the scope of legislative authority is governed by the commission under which it is exercised.

JS: And here’s Katyal, essentially calling this whole idea utter madness: 

NKK: To accept Petitioners’ claim, you’d have to ignore the text, history, and structure of our federal Constitution as well as nearly every state constitution today. Petitioners say for two centuries nearly everyone has been reading the clause wrong.

That’s a lot of wrong — and a lot of wrong past elections. Frankly, I’m not sure I’ve ever come across a theory in this Court that would invalidate more state constitutional clauses as being federally unconstitutional, hundreds of them from the founding to today.

It’s worth taking a pause to think about what petitioners are saying. They claim the word “legislature” means a species of state law that has literally never existed.

JS: And here’s Prelogar, arguing as friend-of-the-court in support of the various respondents:

EBP: There is no category of state law that has previously existed that detaches the state legislature from the state constitution and allows it free rein to have whatever laws it wants without that state constitutional check. And we think that the text and the history and precedent forcefully reinforce this idea that the framers would have understood that when they were giving this law-making power, it carried with it those ordinary checks and balances.

JS: And Verrilli – basically, same vibe:  

Donald B. Verrilli, Jr.: I do want to just interject [laughs] one more time that they have said that this decision is a fair representation of North Carolina law. They are not challenging it under the standard I articulated or any other standard. They have made a different argument, which is that this is categorically a violation of the Elections Clause for state supreme courts to invoke — to apply — vague and general provisions. And so I’m happy to keep answering Your Honor’s questions, I am. But I just want to reinforce that they have conceded that this is a fair interpretation of North Carolina law.

JS: So, going back to the point that Verrilli was making, one of the many things, to me that’s really interesting – [laughs] or maybe baffling might be a better word – is that Thompson, arguing in favor of the ISL, on behalf of the legislators, made it clear that they agreed that the North Carolina Supreme Court had actually gotten the law right — that, in other words, they’d properly interpreted the state law and the state constitution, including its free elections clause, to determine that the map the Republican lawmakers had drawn was, essentially, an illegal gerrymander under state law. But I guess they’re arguing that it doesn’t matter that the [state] supreme court didn’t have the authority to go there.

You’ve got to go there. And also, I’m curious what you make of that concession – that they are about what the Supreme Court here did, that they actually got it right.

EW: That’s a really great question. And what Don Verrilli, who is a fantastic lawyer, is doing here is making clear to the Supreme Court that the proponents of independent state legislature theory in the Moore v. Harper case are swinging for the fences. They are asking for an extreme — extreme — understanding of what independent state legislature theory would mean, which is that even where the North Carolina State Supreme Court is getting the North Carolina constitution correct, and the state legislature engaged in unconstitutional under that state constitution partisan gerrymander, they cannot be — they cannot be — thwarted in their efforts to put this partisan gerrymander into place because, under their theory, state legislatures have unfettered authority. And what Don Verrilli is doing in that clip is trying to convince some of the perhaps more moderate, although it’s difficult to use that label with respect to the Supreme Court, but some of the more moderate conservative members of the court from adopting a middle ground. 

Because one thing that did seem fairly clear from the argument was that it would be tough for the Republican state legislators to get a five-justice majority for that extreme view that state legislatures can do whatever they want; they can unquestionably violate the state constitutional provisions and no one can do anything about it if you’re a member of the State Supreme Court. They did have a weird concession at one point that maybe a governor could veto it. But what Don is doing in that clip is trying to say: If you want to adopt ISL-lite, the idea that if a state Supreme Court has gotten its own standards wrong, then you could step in and say it improperly asserted authority over the state legislature. But that’s not even what they’re asking for. They are swinging for the fences with the broadest possible theory that they can.

JS: Yeah. At one point, earlier in the oral argument, Justice Sonia Sotomayor says the proponents of the ISL are trying to rewrite history. 

Sonia Sotomayor: Yeah, if you rewrite history, it’s very easy to do.

DHT: I’m not rewriting history, Your Honor.

What we’re saying is that when it says all elections, it’s referring to the offices that were created by that constitution. You can see that in Vermont. It says all freeholders shall be eligible for office. It’s not talking about the presidency of the United States, because there’s an age qualification. It’s talking about the —

SS: So why is it that in all of those states [sound of page turning] the legislatures understood that all elections meant that you were going to have paper elections, ballots, in both federal and congressional?

JS: This is a Supreme Court that professes this deep fidelity to original meaning, to this text, to this history. And yet here, Thompson had very few actual historical sites for this proposition that the state legislature is this free-wheeling, hands-off entity when it comes to federal elections. And this stands in stark contrast to the history y’all cite in your amicus brief. Could you tell us about the history, where the legislature comes from – and importantly, how this entity was viewed back at the founding?

EW: So I think this case is really remarkable, in that it puts the conservative supermajority on the Supreme Court’s fidelity to originalism to the test. Because here it’s unquestionably clear that the extreme proponents of the independent state legislature theory are arguing without any basis in constitutional text or history. 

At the time that the Elections Clause was written, the idea of legislatures of the states included checks and balances, like the state courts, like the governor, the idea that limits in state constitutions constrained state legislatures, and that was part and parcel of the idea of a legislature, were just commonly known and accepted by the drafters of the Constitution. 

And they had skepticism about state legislatures and the quality, perhaps, of their decision-making. And so they would never have given unfettered authority in the Elections Clause to state legislatures without those kinds of traditional checks from state courts and state constitutions. 

And I think what’s really interesting is, of course, we at the Constitutional Accountability Center make these originalist arguments against independent state legislature theory in our brief, but we have a lot of company in this case, from conservative originalists. Some of the leading lights of the conservative legal movement, like one of the co-founders of the Federalist Society, and several deeply conservative and well-respected, in conservative circles, judges, appointed by Presidents Bush, came out and said these arguments in support of ISL are complete bunk.

And so you have a cross-ideological, really just tsunami of argument against independent state legislature theory. And if you have these justices on the court who profess to be originalists ignoring all of that, it’s really going to say that this might not be so much about originalism and it might be more about pursuing a political partisan agenda.

JS: Yeah. And just sort of [laughs] naked power, it seems like. 

EW: Yeah. 

JS: Yeah. [Laughs.] There’s an interesting point — or I thought it was interesting, let me see what you think — where Justice Amy Coney Barrett is trying to get at history and saying: OK, well, at the time of the founding, would it be understood that the legislature had the power to set elections? And if that was a baseline understanding, then the second part of the clause, which allows for Congress to overrule them, would’ve been seen as a check on their power that already existed and not that this was some clause that was setting up some new power for the state legislature as Thompson seemed to be arguing. 

I think I read that right, but I was curious if you had any thoughts about that piece of that argument.

EW: Justice Coney Barrett, it was interesting to try to figure out where she was coming from. She definitely seemed skeptical of the North Carolina Republican lawyers’ presentation of history and also the conclusions that he was drawing about that, the concession that I think Chief Justice Roberts brought out of him that a governor could veto state legislative actions with respect to the elections clause — it didn’t seem to be consistent at all with his textual argument that legislatures get to do whatever they want. 

And so, Justice Coney Barrett did seem to pick up on that. And I think that’s why a lot of us, after listening to the argument, counted perhaps her and Chief Justice Roberts in the camp of people who weren’t going to maybe jump in with both feet on the independent state legislature theory. But I think there is definitely a possibility that there’s a majority on the court that could leave the door open for some variation of this. And that could do a lot of damage, even if the court doesn’t take the most extreme view of independent state legislature theory, which I certainly hope they will not.

JS: Another thing that struck me was that Justice Jackson kept coming back over and over again to a very basic question, which was: If the state legislature is a creation of the state constitution — and that’s where it derives its power — then how can it act outside the scope of power granted to it by the state constitution.

So, here’s a clip of one of those moments: 

KBJ: If the state constitution tells us what the state legislature is, and what it can do, and who gets on it, and what the scope of legislative authority is, then, when the state supreme court is reviewing the actions of an entity that calls itself the legislature, why isn’t it just looking to the state constitution and doing exactly the kind of thing you say when you admitted that this is really about what authority the legislature has? In other words, the authority comes from the state constitution, doesn’t it

DHT: No, Your Honor, it’s a federal function, and we know that from Leser. So this Court, in Leser, held it’s a federal function. When these duties are assigned to the states, that is a duty that is assigned by the federal —

KBJ: Yes, it’s a duty. The duty is to make this legislative determination — that is, the determination about elections. 

My question is: Where does the entity’s power come from to make any determinations at all, right? I mean, yes, I see that the federal Constitution is giving them the right to make a particular determination, but they’re not giving just anybody in the state that right. They’re giving somebody called the legislature. And, in order for us to have a thing called the legislature, we have to look at the state constitution to determine what that entity’s powers are, how they can be exercised; other than that, I don’t really understand how the legislature is authorized to act at all.

JS: Throughout the argument, she kept saying, basically: Yeah, yeah, yeah, yeah — but this! 

Right? So I’m curious what you make of this. Explain what she’s trying to get at over and over again here, that Thompson regularly seems to be sidestepping or just flat-out avoiding answering. 

EW: Yeah, I mean, it is a fundamental flaw in the logic. The proponents of independent state legislature theory are saying that they can act contrary to the very charter that creates them. Justice Jackson, one of the things that I really enjoyed seeing from her after she joined the bench, is the way that she just zeroes in on these fatal flaws in the logic of advocates’ cases. It’s probably terrifying if you’re arguing before the court [laughs] — but this was where she just really, I think, got them. 

And Thompson never came up with a good response to Justice Jackson, because there isn’t a good response. The idea that the state legislatures can ignore the state constitution, when the state constitution creates them, just doesn’t make any sense. And the state courts, applying the state constitution, that’s how those guardrails are applied. And she just really got to the point, and he never really was able to get around that.

JS: No. If not the state constitution, where would the legislature come from? [Laughs.] 

EW: Yeah. 

JS: And if it doesn’t come from anywhere else, then how can it not be bound by the thing that created it and, as you said, gives it the guardrails that it operates under in every other way?

EW: Exactly.

JS: I guess, except for: Asterisk! This one. [Laughs.]

EW: Yes. Right. 

It doesn’t make any sense. Thompson, the lawyer for the Republican legislators, never really came up with an answer. But some of the conservative allies of this argument on the court did try to suggest a way around that by saying, perhaps state courts, when it comes to the Elections Clause, have to be enforcing identifiable standards. And so they couldn’t be these vague, broad terms; they had to be identifiable standards. And so that was kind of the way that other conservatives tried to get around Justice Jackson’s trenchant point, but there’s no way under the most extreme theory that you can get around that.

JS: No. And also to that point, they’re like: Well, there’s these squishy things, like fair elections, what could that possibly mean? How could we possibly know? 

And I think there’s, at one point, where Sotomayor is like: What do we mean when we say it’s free speech? What do we mean, when we say due process?

I guess, in whatever the theory is about these mushy things, that somehow the federal court would be able to come in to decide, I guess, when it’s too mushy. 

EW: Yes. 

JS: But I mean, that makes no sense to me, either, because first of all, we have the same sort of mushy — that’s not the right word — we have the same sort of free-flowing kind of ideas that are embodied in our constitution that they still can’t agree on lots of times what they mean, let alone what they know what North Carolina meant by it, or Wisconsin or whoever else. I just thought this is a dangerous theoretical middle ground — 

EW: Yes. 

JS: — or we’re gonna give you some out here, and I find that — it scares me a little bit, because I don’t think that they’re better positioned to decide what that meant for the history of North Carolina or any other state than those Supreme Court justices in those states would be.

EW: Yeah, you’re exactly right. And this is where we get to some of the hypocrisy of some of the conservative justices and advocates, I think. We’re used to hearing from conservatives about federalism and states’ rights. And here, instead of broad deference to state courts, they floated this idea that unless state courts were doing something that was really along the lines of an identifiable and specific standard, the federal courts would come in and say, no, no, no — and that was a little unclear exactly what they were talking about there. 

But you’re exactly right: Our Constitution, and many state constitutions, have broad guarantees. And for a lot of us, that’s a good thing. We should have broad guarantees in the Constitution that then are translated into more specifics by legislation, by policymaking, by the political branches. But, often conservatives we’ve seen in this court, whether it’s with respect to reproductive rights, or other areas of equality and equal citizenship, [have] very limited vision of what those broad terms mean in the Constitution. And so there does seem to be a little bit of a freakout by some of these conservative justices about what are intentionally broad and sweeping guarantees. 

The idea of free elections, which is what we’re talking about under the North Carolina State Constitution, is a big term. It’s a big guarantee. It’s a broad guarantee. And it should be! [Laughs.] And so if we have a ruling from the court that cuts back on state courts’ ability to protect voter rights; to protect against suppression and obstacles being placed on the right to vote, in addition to partisan gerrymandering — not even getting to the fake elector scheme that former President Trump and his allies were trying to push using this same independent state legislature theory, there could be a lot of mischief made that that would be to the detriment of our democracy.

JS: Yeah. 

So we played that clip of Justice Jackson talking to Thompson, and Thompson tried to respond, and then Justice Sotomayor jumped in. 

DHT: Well, Your Honor, we know that’s not right because, in Leser, the people of Maryland tried to prevent women from voting, and the way they did that is they put in their state constitution a prohibition on adopting the Nineteenth Amendment, and then it came to this Court and this Court said that this is a federal function and that substantive limit of the state constitution was inapplicable. So that’s what we’re dealing with here, is a federal function.

SS: But that was because it violated the federal Constitution, not because it violated the state constitution. But let me go back to what I don’t fundamentally understand about this case …

JS: And a bit later Thompson and Sotomayor have a back-and-forth on the difference between substance and procedure. 

SS: Well, it seems that every answer you give is to get you what you want, but it makes little sense. We have more than one occasion that we describe the task in Mistretta of distinguishing between substantive and procedural rules as a logical morass that the Court is loath to enter.

DHT: And one —

SS: And I simply — what I don’t understand is the question that Justice Jackson asked you, which is: If judicial review is in the nature of ensuring that someone’s acting within their constitutional limits, I don’t see anything in the words of the Constitution that takes that power away from the states.

JS: And this kind of gets to, what you were talking about, the veto thing, I think.  So I’m hoping you can try to kind of explain the significance of this idea; this procedure versus substance thing hurt my brain a little bit.

EW: [Laughs.]

JS: Because, it seems like Thompson is saying: Cool, right, so the legislature passes something and if it has this rote hurdle to cross — say, it has to be presented to the governor, and she has the power to veto it under state law — well, that’s just “procedure.” But anything “substantial,” that I guess would give anyone else — especially the courts — the opportunity to change what the legislature has done, then that’s out.

But what I don’t actually get is: Don’t they both get to the same place? Like if there’s an election map and the governor is like: Nope! Veto! 

Isn’t that basically a substantial change? So, is this just weird parsing without actual difference? Can you just help my brain wrap itself around this [laughs]? Because I found it all, whew, a little hot.

EW: Yeah. No one was really buying this distinction. 

JS: [Laughs.]

EW: Well, I shouldn’t say that. I don’t think there was a majority of justices on the Supreme Court who were buying that distinction.

It seemed to be an attempt to say something like the procedures by which a decision is adopted or made can be enforceable by the state courts or by a governor. But the actual substantive guardrails can’t be enforced by state courts.

And that just doesn’t really make any sense, other than through kind of a results-oriented, backward, [laughs] reverse-engineered logic. And I think that part of this when it was argued a little more coherently by some of the friendlier justices on the court in their questioning of the lawyers who were pushing back on independent state legislature theory, was this idea of trying to limit some of the interference on state legislatures when it comes to election procedures. And that’s where we get to the ghost of Bush v. Gore, where all bad things come from. [Laughs.]

JS: I was just going to bring this up. So why don’t we just go to that. Because the thing that keeps coming up over and over is Bush v Gore. So just a reminder that it is the court case that essentially ended the recount in Florida back in 2000, and landed George W. Bush in the White House. 

So why, why, why Bush v. Gore? 

EW: I know, right? 

JS: And what’s the significance and how terrified should I be? [Laughs.]

EW: Yes. 

JS: That this has somehow raised its head from the — ugh.

EW: It was supposed to be fact-bound, but somehow it still sticks around. 

JS: It’s escaped its cage! [Laughs.]

EW: Yes. Exactly!

And it’s interesting because many of the now-justices when they were lawyers, the conservative justices, worked on the Bush v. Gore case, on behalf of President Bush. 

So, in Bush v. Gore, there was a side argument from the late Chief Justice Rehnquist, a very conservative jurist, who argued that Florida didn’t follow its own procedures. And so the Florida State Supreme Court just kind of got the procedures wrong. And so that was an acceptable reason for interfering with the Florida State Supreme Court’s adjudication and decisions in the recount. 

Because again, normally, there is this deference that we provide to state courts when it comes to their interpretation of state law. Because they presumably are the experts and not the federal courts, who are experts in federal law. And so this kind of side argument from Chief Justice Rehnquist focused on the state court, presumably getting it wrong. And this was different from the majority’s basis for their ruling, which was obnoxiously on the equal protection clause of the federal Constitution. 

All of that is a long way of saying that there was sort of this attempt by some of the conservative justices in Moore v. Harper, who might not be willing to take the train all the way to crazy town when it comes to independent state legislature theory, but might be willing to sort of get on for half of the ride to say that if it seemed like state courts were not properly enforcing the state constitution, that there could be limits on the way that they check state legislative activity when it comes to federal elections. 

But that is very unclear, really, what that means. And it really would open the door, I think, to all sorts of shenanigans, and litigation, and major questions about something as sacred and fundamental to democracy as the vote of the people being understood to be reliable and predictable in the sense of: you cast your vote; your vote gets counted; your vote has meaning. That is concerning.

JS: Yeah, actually, there’s a great — I’m sure you remember — there’s a great part where Justice Elena Kagan really hit home, the ramifications, the fallout, I guess, essentially, that would come from an embracing of the ISL. Let’s play that clip:

Elena Kagan: [T]his is a theory with big consequences. It would say that if a legislature engages in the most extreme forms of gerrymandering, there is no state constitutional remedy for that, even if the courts think that that’s a violation of the Constitution.

It would say that legislatures could enact all manner of restrictions on voting, get rid of all kinds of voter protections that the state constitution, in fact, prohibits. It might allow the legislatures to insert themselves, to give themselves a role, in the certification of elections and the way election results are calculated. 

So — and, in all these ways, I think what might strike a person, is that this is a proposal that gets rid of the normal checks and balances on the way big governmental decisions are made in this country. And you might think that it gets rid of all those checks and balances at exactly the time when they are needed most, because legislators, we all know, have their own self-interest. They want to get re-elected. And so there are countless times when they have incentives to suppress votes, to dilute votes, to negate votes, to prevent voters from having true access and true opportunity to engage the political process.

JS: Following on that, it’s sort of: If the Supreme Court rules in favor of North Carolina, and we could go full train to crazy town or even just make a stop at the depot, however you want to take that, how would that affect the way elections are run? And what could be the ramifications, even, maybe, beyond what Justice Kagan has outlined during argument?

EW: If you start from the facts of the Moore v. Harper case, and then work your way out from that, obviously it would allow extreme partisan gerrymanders to go forward without meaningful checks. This is a real problem. You have states where, again, the popular vote, if you look at what the votes said in terms of who people voted for, and then look at the way that they’re translated into representatives, it bears very little relation. In this case, it would have been if there was about an evenly split popular vote, it would have gone to about 10 Republicans and four Democrats. 

And so you know that the extreme partisan gerrymandering maps — just the facts of this case are very concerning. And because the U.S. Supreme Court has said recently that they do not think that the federal courts have a role to play in striking down extreme partisan gerrymanders, that really would allow them to continue without any recourse for voters. So if you then expand from that, worth looking at state limits on the right to vote, voter suppression, making it harder for people to cast their votes, whether that’s changing voting procedures or the way that you register to vote, those could go forward without any sort of state court checks and balances.

And then jumping from Article One of the Constitution to Article Two, which deals with the way in which the President of the United States is elected.

JS: Actually, let me stop you, because we might as well just put that in the mix now because I was going to ask you about that. Because there’s this other piece, right, which is this Article Two piece. Maybe you can say what that is, because I think the fear I hear, in part, from what I’ve heard and read, is sort of like that this is like one step. This form of independent state legislature is one step, and there could be something far worse. And that is based on this ISL buried in Article Two. 

So maybe you could just unpack that a little bit, because I’m not sure that everybody knows exactly what that is. Although [laughs] we’ve heard fake-electors-this, fake-electors-that, but how does this all kind of tie together, I guess?

EW: Right. So the section that we’re talking about from Article One of the Constitution in Moore v. Harper deals with the time, place, and manner of congressional elections of representatives, and the ability of the legislatures of the states to prescribe the manner of elections. 

And then when you get to Article Two, and the clause that deals with the election of the President, it talks about the legislatures of the state. So again, the same wording, being in control of setting the manner of choosing electors to the electoral college. 

So generally, when we’re talking about how to interpret legal phrases and words in the laws, if it’s interpreted one way, in a related context, you interpret it similarly in the other context. And so the concern is that if there is this unfettered authority given to state legislatures with respect to the time, place, and manner of congressional elections, in that part of the Constitution, when it comes to the manner in which electors are chosen for the president in Article Two of the Constitution, then that same extreme independent state legislature theory would apply — and then you would get yourself into situations like we saw being pushed by team Trump, where they were urging state legislators to put up a whole new slate of electors that went against the will of the people in that particular state, and that would have kept President Trump in power, despite the vote of the people to the contrary.

JS: So nothing that much to worry about. [Laughs.]

EW: No, it’s definitely something to worry about!

JS: Ugh.

EW: And I think sometimes I understand that for folks who are not deeply entrenched in this, your eyes start to glaze over when it’s gerrymandering, and independent state legislature theory, and all of this. And in some ways, I think that was very savvy for proponents of the independent state legislature theory to bring it to the court in this particular context, and not in perhaps the most dangerous context of trying to keep a president in power, despite the vote of the people electing a different president, you know? And so I think there should be no mistaking that that is what we would be headed toward if independent state legislature theory is accepted in this particular case.

JS: Neal Katyal’s opening was sort of lasered in.

NKK: Thank you, Mr. Chief Justice, and may it please the Court: For 233 years, states have not read the Elections Clause the way you just heard. There are two reasons to affirm: One is that when enacting legislation, there’s no such thing as an independent state legislature. The other is that North Carolina statutes authorized what the North Carolina court did.

JS: So, on our first episode of Dissent I spoke to legal analyst Jordan Rubin about why the court would even take up this case, right? The point that Katyal is making here underscores that question. What do you make of the court taking the case in the first place?

EW: Yeah. I think it’s important to remember that to take a case you need four justices. And to win a case you need five. So we already know that there are a number of justices on the court who either are embracing the theory, I’d put under that category probably Justices Alito, Gorsuch, and Thomas. And then at least, Justice Kavanaugh, who, during his time as an advocate, argued, in a certain sense, for the independent state legislature theory. So I’m not surprised necessarily that there are four justices who wanted to hear it. 

Again, it’s tough using this label for this court, but it’s all in context, the more quote-unquote moderate conservative members of that conservative supermajority, like perhaps Chief Justice Roberts, might have wanted to tweak the theory to make it a little more palatable and not quite the extreme version that is being put forth by some conservatives. We don’t know because of the lack of transparency around the certiorari process which four justices — or maybe more — voted to hear the case. But I can see some reasons why they might want to. 

And again, if you’re someone who wants the independent state legislature theory to move forward, it’s probably better to have it in the North Carolina redistricting case, rather than a Trump v. Democracy case. And I will say, fortunately, we saw in most of those efforts from team Trump, when they tried to push this, they were roundly rejected by pretty much every court that John Eastman and company tried to push this theory in.

So yeah, they didn’t need to take the case, because, as Neil Katyal said in his opening, there’s been pretty much unanimous, historical understanding that the legislative process includes state constitutional restrictions as interpreted and applied by state courts. And also Supreme Court precedent itself suggests that that’s not the way that state legislatures operate when it comes to the Elections Clause. And the response from the proponents of ISL was just like: Yeah, overturn all of that. [Laughs.]

JS: [Laughs.] Another thing that Jordan Rubin and I talked a lot about [is] how the court essentially sets its own agenda; it can take these cases; and so that when you come out with an opinion that’s maybe not this full embracing of this thing, and you get trapped in this thing where you’re saying: Oh, well, we have a compromise. And I think that again, it’s dangerous, right? Because they reach out and take this — there was no reason for them to do it. And, I don’t know, I just really didn’t have a sense — we talked about this a little bit — it was very hard for me to tell where people stood at the end of this. And I don’t know even if there’s a compromise opinion that goes halfway to crazy town, like, should we accept that?

EW: No! [Laughs.] 

JS: Do you know what I’m saying? Is that still a problem? Yeah, maybe just go for it.

EW: Yeah I think one of the hallmarks of the current Supreme Court is that because it is so, so conservative really the window has shifted for the types of arguments that are being presented to the court. And those of us who are court watchers, and just all of us in this country, should really resist that shift. Again, so just because you don’t do the absolute craziest thing if you still do something crazy and dangerous, that is still bad. You know?

And so, I think really what we’re seeing — and it’s not just in this case, we’ve seen it, across the spectrum of issues — is that these really extreme arguments are being presented to the court. And in some cases, this court is embracing those theories, with the complete overturning of Roe v. Wade, [which] was the most extreme version of that. 

And just as we’ve seen in some other cases, we’re prepared for the absolute worst, and then when it doesn’t happen, I think there is sometimes this tendency to be like: Oh, OK!

No — do not give in to that tendency here. I mean, look, it could be really bad if they fully embraced the extreme, really unhinged theory of the Republican North Carolina State legislatures. But even opening the door to some version of independent state legislature theory could be extremely dangerous to democracy.

JS: Yeah. And I guess I’ll just wrap up on this, which would be that, obviously, the faith in the Supreme Court has just really dwindled, particularly after Dobbs, which just hit so many people like a bomb. And the cases that they’re taking up now don’t seem to offer much hope for this super-measured court. So I’m curious about your sort of broader thoughts on the direction of the court and about calls for reform. And I’m curious for you, what would reform look like?

EW: When it comes to reforming the Supreme Court, the way that I like to think about it, is to put on the lens of what are the problems of justice that we’re seeking to solve. And those problems are deep. And while I think probably the most obvious, and maybe easy decision of what reform steps to take is adding more justices to the court simply because, we haven’t done it for a long time, the country has grown bigger, our ideas of who is included are broader — thank goodness. And so simply having a few more justices is probably just good government, regardless of what side you’re on. 

But looking deeper at the problems of justice we want to solve, there are real problems of access to justice, of equal justice [and] fairness. And so we at the Constitutional Accountability Center have just done a look at the way in which these questions were looked at during the Reconstruction period after the Civil War. And so many of the same issues were being debated: Should we expand the court? Should we strip jurisdiction? Should we require a supermajority of justices in certain cases?

And one of the things that they did, in addition to expanding the court for a brief period, was they passed legislation that sought to make good on the promises of fair justice and equality in the Constitution. And so I would urge us when we talk about court reform, to think more broadly than just adding justices on the court, although that’s probably step number one, and think more about what can we do to actually create the system of justice that is truly just and is the one that we want, and deserve. 

And for this court, I think that this case, the Moore v. Harper case, is a real test for them, because there is this overwhelming consensus amongst conservative and more liberal scholars that the independent state legislature theory is absolute bunk, even according to the conservative originalist arguments that a majority of these justices profess to follow. And so if they don’t follow that constitutional text in history, where it leads, which in this case would be to slam the door on independent state legislature theory, then it is just going to make absolutely clear that they’re following something other than the law, which many people already suspect is a partisan ideological agenda. And that would just further damage confidence in the court and the public faith that we should and deserve to have in our courts of law.

JS: Elizabeth, thank you so much for joining us. 

EW: Thank you for having me. I really enjoyed the discussion.

JS: That was Elizabeth Wydra, president of the Constitutional Accountability Center. 

[End credits music.]

JS: And that’s it for this episode of Dissent, a production of The Intercept. 

This episode was produced by Laura Flynn and José Olivares. Roger Hodge is editor in chief of The Intercept. And Rick Kwan mixed our show. 

If you’d like to support our work, go to theintercept.com/join — your donation, no matter what the amount, makes a real difference.

If you want to give us feedback, email us at Podcasts@theintercept.com. Thanks so much.

Until next time, I’m Jordan Smith.

The post Dissent Episode Two: Judicial Adventurism appeared first on The Intercept.

Which wetlands are protected under the Clean Water Act? That’s the question before the Supreme Court in Sackett v. EPA. Back in 2004, Michael and Chantell Sackett purchased a residential lot near the idyllic and popular Priest Lake in Idaho. In preparation of construction, the Sacketts started filling the lot with gravel and sand. But after an anonymous complaint about the dredging and filling, the Environmental Protection Agency ordered the Sacketts to stop construction until the proper permits and assessments were sorted out. The EPA argued that the Sacketts were building on a wetland protected by the Clean Water Act. Instead of securing federal permits, the Sacketts took their case to the Supreme Court for a second time.

This week on Dissent, host Jordan Smith is joined by Sam Sankar, the senior vice president for programs at Earthjustice, a leading environmental law organization. Smith and Sankar discuss the Clean Water Act, wetlands and “navigable waters,” and the powerful interests backing the Sacketts. The outcome of the case, Smith and Sankar warn, could further gut the EPA’s ability to prevent pollution of the nation’s waters and combat climate change.

[Dissent intro theme.]

Jordan Smith: I’m Jordan Smith, a senior reporter for The Intercept. Welcome to Dissent, an Intercepted miniseries about the Supreme Court.

[Slow, rhythmic music.]

JS: In the Northern Panhandle of Idaho, nestled below the Selkirk Mountains is a body of water that the state touts as its “Crown Jewel.” Just miles from the Canadian border, Priest Lake is 19 miles long, up to 369 feet deep, and has a surface area of nearly 37 miles. 

The area is home to all kinds of wildlife, including bears and bald eagles. And it’s a popular vacation spot — there’s boating, and I’ve read, excellent fishing. According to the local chamber of commerce, it’s a “magnificent” spot to take in the Northern Lights. It’s also known for its pristine waters.

Idaho Water Resource Board Promotional Video: Dawn breaks on the Northern end of Priest Lake on a quiet July morning, casting a golden glow on the water. A lone Angler Fishes off the point of the new 1,500-foot long breakwater structure, while the water skier carves perfect turns.

JS: In fact, there are four large wetland complexes along the lake’s 62 mile-shoreline that help to keep the lake’s water’s so pristine and its rich habitat intact. One of those wetlands is toward the Southern end of the lake, known as the Kalispell Bay Fen. And it is ground zero for the case we’re going to talk about today, Sackett v. EPA — a challenge to the federal Clean Water Act — the outcome of which could further gut our ability to combat climate change. 

We’re going to jump into all of the specifics of the case with our guest, Sam Sankar, the senior vice president for programs at Earthjustice. Sam has spent his career working in environmental law, including as a trial attorney for the Justice Department. Earthjustice is a leading environmental law organization representing more than 1,000 pro bono clients in cases combating climate change. 

Sam, welcome to Dissent.

Sam Sankar: Thank you. Very glad to be here.

JS: Just to start: Can you give us a bit of background on the Clean Water Act: What prompted its passage, what does it say, and, broadly, what is it intended to do?

SS: So the Clean Water Act is one of the nation’s core environmental laws, most of which were passed in the early 1970s, right after the initial Earth Day and this sort of congressional and national recognition that environmental degradation was becoming a nationwide problem. So it came in there with the Clean Air Act — and a lot of the other laws that we all think of as the laws that are core to protecting our environment. 

What it basically says is that two agencies, the Army Corps of Engineers, and the U.S. EPA, have a responsibility for protecting the chemical, biological, and physical integrity of our nation’s waters. And the trick in all of these things is defining what you mean by the nation’s waters, and that’s what this case is about.

But broadly speaking, what the Act says is, in order to protect those waters, a couple of things have to be true. Number one: You’re not allowed to pollute those waters, if you want — and of course, we all know that lots of people are polluting waters all the time. So there’s a significant proviso, unless you get a permit. So typically, if you’re, say, a sewage treatment plant, you go to EPA, and you say: Hey, we need to treat sewage and we need to get a permit — and the EPA issues you a permit, and says: These are the rules you have to follow in order to discharge that pollution to that waterway. 

And importantly, one of the kinds of pollution that are covered, pretty sensibly, is dredging and filling. So if you are near a waterway and you fill it in, that’s something that Congress cares a lot about — both because it can change the kind of waterway that you have, but also because dredging is a very important form of pollution to waterways, dredging and filling, both.

JS: Great. So, let’s talk about wetlands. We’ll get into wetlands in the Clean Water Act in a minute. But, first, I think, if you could explain the role that wetlands play in protecting our waters and our communities, that would be helpful. 

SS: Sure. Well wetlands are our waters. As anyone who’s spent time on a lake or a river knows, when you get out of your boat near the shore, it doesn’t immediately transform from flowing water into dry land. There’s a huge amount of territory in this country and indeed the world that is in this shifting boundary between deep flowing water — or deep bodies of water — and dry, dry land. And wetlands are waters, right? Wetlands are the parts of our nation’s waters that are closely tied up in the soil underneath — that are right there. 

So you can say that wetlands protect our nation’s waters. But what I would say is that our wetlands are protecting the surface waters, the parts of our waters that we think of as the rivers and the lakes and the streams. And wetlands protect those waters in several ways. First of all, they’re really important buffers for pollution, and sediment. So when you have a rainstorm, or when you have surface water runoff, wetlands trap a lot of the sediment, they collect a lot of that pollution, and they prevent it from entering the nation’s waterways. 

Secondarily, they’re really important because they maintain water flow — so, as we’ve seen all over this country, as climate change is changing our weather patterns and precipitation patterns, flooding and drought are huge problems in this nation. And wetlands are critical buffers for both flooding and drought. And that means when it rains a whole lot, and you’re trying to avoid a flood, those wetlands are absorbing, they’re like a sponge. And in times of drought, where there’s no water, well, the wetlands are releasing that water back into the waterways, which is a good thing. 

And lastly, they’re critical biological parts of the nation’s waterways. So everyone knows that, you know, frogs don’t lay their eggs in flowing water. [Laughs.] If you want to have a healthy ecosystem, you need to have these wetlands be healthy as well, because that’s where our fish and aquatic life — those are critical areas for the biological integrity of free-flowing and open waterways.

JS: So, now let’s talk about how wetlands come into play in the Clean Water Act — how they’re talked about in the act — and then, if you could, walk us through how that language has been interpreted by the Court?

SS: Sure. OK. There’s a lot in that question. 

JS: Yeah. [Laughs.]

SS: And, in fact, inside of that question is the entire arc of this case — and the Supreme Court itself spent two hours talking about it after writing reams and reams of paper about it. So I’ll try to do this at a high level. 

JS: OK. 

SS: When Congress wrote the Clean Water Act, it said that the waters it wanted to protect were navigable waters, but it didn’t really explain what “navigable waters” means. Instead, it actually used a very expansive term: “the waters of the United States.” And so that’s where this acronym “WOTUS” comes from, by the way — so: waters of the United States. 

And it made it clear throughout the act that it wasn’t going to draw, take a Sharpie and draw a line around that, that it was relying on scientists, and experts, and agencies to figure out precisely what that means.

So shortly after that, the Army Corps put out a regulation that expressed a fairly narrow construction of that term that basically said: It’s the traditional navigable waters that go down these — the major stuff. And immediately, everybody said: Wait a minute, this doesn’t work. We passed this law in 1972 because the nation’s waterways were falling apart, the chemical, biological integrity of the waters was really degraded; the image that was burned into public consciousness as the burning of the Cuyahoga River caught on fire. And everybody said, Well, wait a minute, no, no, it’s more expansive than that very narrow, traditional test. 

So the Army Corps went back and wrote new regulations that included coverage of wetlands that said, though, that this term “waters of the United States” includes these waters that are bound up with the shore — the wetlands. 

And relatively soon thereafter, Congress passed some amendments to the Clean Water Act in 1977. And during the course of those amendments, developers and industries pushed really hard. They said: Hey, Congress, rewrite the law to make it clear that the Army Corps and EPA are wrong about this, that wetlands aren’t covered. 

And in fact, they put a bill in, and the bill got passed by the House, but the Senate said: Uh-uh. No way. And: That’s not what’s supposed to happen here. 

And, in fact, what happened was a law got passed to amend the Clean Water Act. And it included language in there that made it very clear that the Clean Water Act was going to protect wetlands. In fact, the Supreme Court said so itself in a case analyzing that language, it said that that new language in 1977 made it unequivocal that Congress meant to include wetlands — and yet. And yet! That doesn’t sit well with a lot of folks. 

So the development industry, and a lot of other industries, have been pushing over and over to get what they couldn’t get in those amendments back in 1977. And since they can’t get Congress to do it, they have been trying a new approach and that is to get the courts to narrow the interpretation of this — to read the very same words differently than courts have been reading it for a long time. 

And so the Sackett case that is going on at the Supreme Court is the culmination, a culmination, of that effort to say: If we can’t get the lawmakers to change the law, then maybe we can get the judges to change the law.

JS: So, I think before we go any further, I am going to give a shop to describe the property at issue in this case, which is owned by Chantell and Michael Sackett, so that folks can — [laughs] — maybe get an image of it in their mind. 

So, the Sacketts’ property is just under two-thirds of an acre and sits 300 feet north of Priest Lake. At the south end of the property is a road that separates it from a cluster of houses along the lakeshore. There are no houses on either side of their property, and just to the north is Kalispell Bay Road. On the other side of that road is a large wetland complex, known as the Kalispell Bay Fen — which included the Sacketts’ property before the road went in. That main fen is still connected to the Sackett property via a shallow subsurface flow of water. 

Also on the north side of Kalispell Bay Road, just 30 feet from the Sacketts’ property line, is an unnamed tributary that carries water from the wetland complex southwest from the Sackett property to Kalispell Creek, which drains into Priest Lake. I should also mention that at the shoreline, by the houses, just south of the Sackett property, are pipes that carry water, and that drains into the lake.

OK! [Laughs.]

SS: For viewers — or listeners, I should say — who are struggling with this narrative explanation, it’s totally hard to understand. This situation dissolved into —

JS: [Laughs.]

SS: — a bunch of words. But you can look at pictures. There are pictures in the record of this case.

JS: Yeah. 

SS: And I think anybody who looks at the pictures of the process when they caught the Sacketts filling this thing in midway — [laughs] you see an awful lot of water.

JS: Yeah. We’ll talk about that for sure. For sure. Absolutely. Because I was going to say, with that description in mind, maybe people can roll it around a little in their heads — but yes, you can find pictures — I want to get into the facts of the case. So I want you to tell us what the question is that the Court is being asked to weigh in on – and how the case got to the Court in the first place.

SS: Sure. So as with all legal questions, as with all good legal questions, this one comes wrapped up in a wonderful set of facts. And that’s how judges do law. Congress writes laws in the abstract, but judges should be deciding cases in very specific instances. And in this specific instance, here, we have this family — or this couple, the Sacketts — and they bought a piece of land in 2004. And they wanted to develop it. And as you said, it was connected to these nearby fans. And I think there’s been a lot of argument about what the status of the land is. We don’t have to describe it any further.

But they bought the land. And three years later, they decided they wanted to fill it in. Now, before they purchased it, about I think in 1996 or so, the prior owners had said: Hey, is this a wetland that’s covered by the Clean Water Act? 

And they’d actually had folks in the government come out and look at it. And they said: Yeah, no, this is covered by the Clean Water Act. And if you want to get a permit to fill it in, this is how you would go about getting a permit. 

And that’s an important fact, right? Nobody said they couldn’t do it. They just said: You need to get a permit. So the Sacketts decided to fill it in without getting a permit. So they got 1,700 cubic yards of gravel, and anybody who’s ever — as I have — tried to shovel a cubic yard of mulch when they were a teenager, and their dad asked to do it — [laughs] that’s a massive amount of fill.

So they’re filling this thing in. And somewhere in the middle of this, this is a very pristine area, and a lake that’s very pretty. And one of the neighbors said: Hey, I don’t know what these guys are doing! And they phoned in a tip. And some folks from the government came out and said: Look, you need to get a permit here. You can’t do it this way. So stop what you’re doing.

And when they came out and talked to them, the folks who they talked to was the excavation company that was actually filling it in, and that excavation company was actually owned by the Sacketts. So the Sacketts were people who were professionally specializing in this sort of work. And one could only imagine that they were pretty aware of what they were getting themselves into by filling this stuff without a permit — anyway! 

They go ahead, and they fill this in, and then they get into a legal battle. They said: We are suing the EPA to say that we can’t be stopped from doing this. 

And that case, which started quite a while ago has wound its way up to the Supreme Court before this. And the first time it went up to the Supreme Court, the question was whether or not the Sacketts could really bring a lawsuit like this at this preliminary stage, right, when EPA had not actually exacted penalties or anything against them. And the Court said: Yes, you can’t. 

And so now what we see is that it’s gone all the way back down to the lower courts, and it’s all the way back up. So we’re 15 years now — 16 years, I guess — after that initial action and the Sacketts are still in the Supreme Court. The case has become a bit of a cause célèbre for those who want to restrict the scope of the Clean Water Act, and a bit of a head scratcher for many of us who want to defend it.

JS: Yeah. I was going to say that I wanted to talk about the Sacketts a little more, and you kind of got to it. I think it’s sort of emphasizing that the property was determined to be a protected wetland back in 1996. And again, when you look at the photos of the site, even with all that fill, there’s water everywhere. Everywhere that they haven’t filled in, it’s just like, water! 

So Justice Sonia Sotomayor raised this in oral arguments in an exchange with Brian Fletcher, who is representing the EPA:

Justice Sonia Sotomayor: Your adversary — the other side, I shouldn’t call them adversary — the other side argued that Mr. Sackett could not tell this was a marshland. Is that true? Because you said the first thing is it has to be a wetland.

Brian H. Fletcher: So I don’t know what Mr. Sackett could tell, and I don’t want to speak to that. What I can speak to is what’s in the record, which is communications from the Army Corps to the prior owner in 1996 saying: This is a jurisdictional wetland, you would need a permit to build, here’s information about how to seek nationwide permits. 

And we also have the pictures of the property that are at Petition Appendix 37 to 39 and also in the Joint Appendix. Now we don’t have pictures before it was filled in with gravel, but the pictures after it was filled in with gravel show that the parts that are not filled with gravel have standing water in them. 

And, also, the Sacketts’ own environmental consultant who came and looked at the property confirmed the Corps’ judgment that these are wetlands. I think it’s also worth emphasizing that although they’re now separated by the larger fen across the street by Kalispell Bay Road, historically, before the road was built, that wasn’t true. It was all part of one wetlands complex, and the whole fen drained down through the Sacketts’ property and into Priest Lake. 

JS: So kind of like what you seem to be suggesting, I find it hard to believe that it would not have occurred to the Sacketts that it might be connected to the fen — and even harder to understand given that they own a construction and excavation company. So one would maybe think that they had run against this kind of thing maybe once before. 

But their attorney, Damien Schiff, disputed that they knew the property was in a wetland before purchasing it. In his closing statements, Schiff was channeling some, like, heavy victim energy – that the Sacketts are being abused by the big mean old government. And it was a vibe that appeared to resonate with at least a couple of the justices. Let’s listen to a bit of an exchange between Schiff and Justice Neil Gorsuch:

Justice Neil Gorsuch: And that is what’s being asked, is a person who purchased a property with a sewer hookup a block from the lake with a subdivision between you and the lake and a road on the other side is supposed to know that that’s a water of the United States, that piece of property, or else what? What are the penalties associated with this? What was threatened to your clients and what does one face in these circumstances?

Damien M. Schiff: Well, certainly, for the Sacketts in particular, they were threatened with significant civil and administrative penalties and, of course, also the continuing liability of having to restore the property to the way it was before they began any work. But, also, there is lingering over all of this discussion the threat of criminal penalties, and I think this is particularly important because the waters of the United States are as much relevant to the criminal portions of the Clean Water Act as the civil portions.

JS: And, notably, other justices were like: All you had to do was ask to know if it was covered – which, again, rather unbelievably, they didn’t appear to do.

Justice Ketanji Brown Jackson was among the justices who thought that was an issue:

Justice Ketanji Brown Jackson: Yes, I just wanted to follow up on Justice Gorsuch’s very fair points, which were my points. How do people know? Is there a process by which a homeowner can ask?

BHF: Yes. Any homeowner can ask the Corps for a jurisdictional determination. The Corps makes those available free of charge.

KBJ: And so you’re not really facing criminal liability without the opportunity to get an assessment from the government regarding your particular circumstances?

BHF: That’s correct.

KBJ: Alright. 

JS: So, there we go!

SS: So — there are so many things to say here. 

JS: [Laughs.]

SS: So in my current job, I run a very large public interest environmental law firm called Earthjustice. But at previous points in my life, I’ve been a lawyer for industry and also for the federal government. And in particular, I was a Justice Department lawyer. And one of the things I did was try to enforce cases like this. And I can tell you that the idea that the government is running around criminally prosecuting people in these situations for truly innocent, accidental developments of these kinds of property is beyond ludicrous. It’s hilarious. You would get thrown out of the building if you said to your supervisor: I want to sue this couple in this situation. 

And to be clear, nobody has ever actually done that. There is an imagined set of threats from these folks. In order to win in a criminal case, you have to show all kinds of intent, mental conditions that you could never prove in the situation that these folks are imagining. 

In addition, as you yourself have pointed out [laughs], right — this is a couple who owned an excavation company. You know what happened here, I think we all know what happened here. They were pretty sure what would happen if they went and asked for a permit, that there would be conditions and there were things they have to deal with. And they did what a lot of people do when they put up a fence next to their neighbor’s yard or when they do something in the city and they hope nobody’s looking — they build a little addition on and they hope nobody notices. And when somebody does notice, and when somebody says: Hey, you needed to do it differently, they claim a whole lot of innocence. 

I would venture to say most of your listeners have been there at least once. Whether it’s at a stoplight — 

JS: [Laughs.]

SS: Or out in the back of your property. And we understand that people do it. But then to claim that in this situation they were completely ignorant is, I think, kind of ludicrous.

JS: Yeah, it would be a little bit like the whole: Better to ask for forgiveness than permission. 

SS: Exactly. Exactly. 

JS: But see here, I think, I don’t know — and this is just me — I think that’s a little too generous. I mean, particularly when you read through the docket for this case, you were just struck by how many amicus briefs have been filed by industry groups – mining, construction, agriculture, like Big Agro! Can you talk a bit about who is backing their position — and, I guess, essentially what they’ve done, right? And about what their interests are or might be? 

SS: Sure, well, the Sacketts are being represented by a law firm that is heavily bankrolled by industry interests. And as you’ve noticed, the industry interests that are filing all these briefs are not innocent landowner couples in the arid West wondering if they will be mousetrapped. No, these are polluting industries that are fully aware of what they’re doing and simply don’t want to have to follow the laws. They don’t want the laws to cover them. Because the scope of the Clean Water Act is really important. If you are a mining company, right now you have to follow laws that require you not to dig up all the wetlands or fill in the nearby streams or do things that cost you money, of course, but protect the rest of us. And if those laws didn’t exist, if the Supreme Court said: Well, this law that has been the same for 50 years is now different, that’s a profitable bonanza for you. Now you don’t have to protect those areas. So the reason those industries are filing all those amicus briefs is not because they have some abstract idea of what should be protected. It’s because they don’t want to have to protect the environment. And if the Supreme Court reduces the scope of the Clean Water Act, there’s less of the environment that the law protects.

JS: In contrast, Earthjustice penned an amicus brief on behalf of 18 native tribes. Can you talk a little bit about that brief and about the tribes’ interests here?

SS: Sure. Well, tribes occupy a special space in environmental regulation. In many cases, the government protects their interests through federal laws. And they rely on the protections of federal laws to protect their both official lands over which they have jurisdiction, the lands where they are sovereigns, but also lands that are historically theirs, and while they may not be under their property, are actually very significant — culturally, historically — for those tribes as well. 

And so what our brief said is that the tribes rely on the Clean Water Act and those federal protections for a lot. This is not an abstract thing to them, and that many states will not protect their interests if the federal government is not there to do it. 

For example, if you are a tribe that is downstream from one of these areas, that’s threatened by mining development, or by oil and gas infrastructure development, and those areas are no longer protected by the Clean Water Act. The water that inevitably comes out of those areas, that comes through those wetlands or that is no longer protected by those wetlands is degraded. 

And under the current statutory framework, that is to say the one that we’ve been operating under for the last 50 years, the tribes have lots of opportunities to actually do something about it — they can comment, they can ask the federal government for intervention, they can do a variety of things to protect their interests. And in this situation that the petitioners, the Sacketts, are envisioning, the tribes would not have that protection. 

And so Earthjustice filed this to say this isn’t just about the states and the federal government: There are important other sovereigns that have been sovereigns over this land for far longer than the federal government and the states.

JS: So can you give me an example of what you mean about how this would all play out for the tribes?

SS: So, for example, one of the tribes we represent, the Pueblo of Laguna, would lose somewhere between 80 to 97 percent of the protections for their waters because the Rio Porco in New Mexico flows through that area. And a lot of those waters in the areas are either intermittent or their wetlands, and depriving those areas of Clean Water Act protection would radically change the situation for the Pueblo of Laguna. There’s places in the Midwest along the St. Louis River where tribes have been harvesting wild rice for centuries, millennia — time immemorial in legal terms. Again, these are areas that would lose protections. And in the Pacific Northwest, along the Skagit River, the Swinomish Tribe, another one of our clients, would lose a lot of wetlands protection that are critical for juvenile salmon, a species and a resource that they’ve relied on again for millennia.

JS: So let’s dip our toes a little bit more into the turbid water of these arguments. [Laughs.]

SS: [Laughs.] There is a lot of opportunity for puns —

JS: I’m sorry, I couldn’t help myself. 

SS: No, no, I don’t blame you. [Laughs.]

JS: OK! So, one thing that sticks out was just so much discussion of the word “adjacent.” And, naturally, what that word means here depends on who you ask. So Schiff was like, well, obviously it means things that touch — especially when you’re talking about quote-unquote “natural features.” 

But a number of the justices were like, ummmmm, that doesn’t even match the common definition of the word.

So, here’s an example of that dynamic in an exchange between Schiff and Justice Elena Kagan, with a little Justice Ketanji Brown Jackson at the end:

DMS: However, the example that I was going to give is, if I were to say that I own two adjacent parcels of land, I don’t think anyone would just simply think that I meant I own two parcels of land in the neighborhood, that that necessarily implies that they’re physically touching, and it’s that particular —

Justice Elena Kagan: Well, let me give you another example. I grew up in an apartment building in New York City. If I say there are two adjacent apartment buildings, do they have to be touching each other, or it could be, you know, one is across a side street, you know?

DMS: Again, Justice Kagan —

EK: I mean, I would say that those two apartment buildings are adjacent to each other because there’s no other apartment building in between them, even if they’re not touching each other.

DMS: Again, Justice Kagan, I would say that when we’re speaking specifically about physical, topographic features, natural features like wetlands and other water bodies, I think that physically touching requirement is essential and is the meaning of adjacency as used in 404(g).

That is, in fact, actually —

KBJ: But, Mr. Schiff, isn’t the issue what Congress would have intended with respect to adjacency and there was a regulation that defined “adjacency” to include neighboring? And as far as I know, Congress used the term “adjacency” and didn’t adjust it to try to make clear the touching requirement that you say was intended by the term.

JS: Would you like to talk a little bit about adjacency? [Laughs.]

SS: Oh man. [Laughs.]

Well, let me talk about something even more general, which is the difficulties of doing these sorts of complex environmental judgments in a courtroom without pictures, right? Because there they are in the Court, they don’t have the pictures, they can’t talk about [it] — far removed from the situation where you have a bunch of people with law degrees, and who have to make adjacency analogies using apartment buildings in Manhattan —

JS: [Laughs.]

SS: — talking about how this law should be interpreted. Well, Congress knew how it wanted to do this, which is to give the agencies these judgments. And instead, what’s happening is because of the way this Court is approaching the case, everybody is trying to figure out what one word means. And what Justice Jackson is pointing out is, Congress was trying to do something with this big law. Can we just focus on what they were trying to do? The rivers were on fire, wetlands were being lost at this incredible rate, all of this stuff was happening — can we interpret these words in light of those things rather than trying to figure out what they mean by looking at apartment buildings in Manhattan? 

JS: [Laughs.] Right. 

SS: Like Justice Kagan is not saying — she’s trying to illustrate that these words have slippery meanings.

JS: Right. 

SS: And that trying to pin them down without thinking about what Congress was trying to do and what the nation needs is a fool’s errand and one yet that this Court, and certainly the petitioners in this case, seem interested in doing.

JS: Yeah, I mean, I guess the language in the statute is something like: “wetlands adjacent thereto” — correct? Isn’t that right? The portion that they’re talking about? Which is these wetlands that are adjacent to these navigable waters — and it’s all bound up in the waters of the United States or WOTUS. 

So I did find [laughs] — I was just like, oh, my God, I don’t think I ever want to hear the word adjacent ever again. 

SS: Yeah!

JS: Because I mean, I felt like — well, we can talk a little more about this, but I felt like Schiff was just sort of winging it, right? Like: This is what adjacent means. [Laughs.]

SS: Well, he’s winging it, because it doesn’t make any sense. 

JS: [Laughs.]

SS: And he knows it. And what’s tricky with these textual things — these hard, bright-line textual arguments — is even when you come up against hardcore textualists, people who are really interested in the words, people like Justice Kavanaugh, and Justice Barrett, and Justice Roberts will say: Look, if it can only mean one thing, it doesn’t make sense, right? So under your definition, this would happen. And wait a minute, even the Trump administration didn’t want to do what you wanted to do. Right?

JS: Right. 

SS: And so Mr. Schiff really struggled to try to put a persuasive position together in terms of legal strategy; what that did was open up a big middle space for what could be the rule here, which is never really what you want to do as an advocate, because he didn’t even really want to play on what other rules that could be put in. 

JS: Yeah. Well, let’s talk about Kavanaugh and Barrett here for a second. Because I felt, broadly speaking, it felt like some justices would be happy to dismantle the science, the expertise, that’s baked into the CWA, while others – and Kavanaugh and Barrett come to mind – seemed more skeptical of Schiff’s position. And, at one point, to your Trump point, Kavanaugh says: Well, why is it that seven prior presidential administrations have disagreed with your position? 

So let’s hear a bit of that exchange:

DMS: — definitional —

Justice Brett M. Kavanaugh: Last question, why did seven straight administrations not agree with you?

DMS: Well, I wouldn’t quite say it’s seven straight. At least under the Trump Administration, their proposal was certainly closer to what the text —

BMK: Wait. No, let’s be clear. They said that it would still be covered even if it was separated by a berm or dune, for example.

DMS: No, that is correct, and —

BMK: And under your test, that would not be covered?

DMS: That is correct, Justice Kavanaugh. And I don’t presume to know more than those seven prior administrations, but what I do know is what is the text that Congress has used, and nothing can supersede that.

BMK: Thank you.

JS: Although, I guess you are presuming, right?

SS: Yeah. Exactly. I wouldn’t presume to know more —

JS: However! [Laughs.]

SS: However, my client presumes that he doesn’t like — or they don’t like — what’s going on here. 

JS: Right. 

SS: Look, what you’re seeing there is exactly what I talked about.

JS: Right.

SS: Justice Kavanaugh is saying you have this very bright-line test. And it seems to create some really not-sensible results. And this, this problem with this bright-line test is what this Court is over and over and over getting itself into by focusing so excessively — not excessively — focusing so intently on the text, and really refusing to consider what experts scientific agencies are saying about how these rules should work. 

The modern Supreme Court is really anti-agency — frankly, it’s anti-science — and it is struggling to make sense of these complex environmental laws, because it’s trying very hard to do it in a purely legal way without considering context, facts, science, and reality. 

JS: Yeah. And while Kavanaugh is saying: Well, wait a minute — there were other points where he and others seemed to be feeling something for the Sacketts, right? 

SS: Oh yeah!

JS: It’s like — we have a clip of Kavanaugh again, talking with Fletcher:

BMK: But the text doesn’t say in referring to adjacent in 1344(g) whether that means bordering or contiguous and stop there or also include neighboring, as the regulation does. And as I understand, the case really, as your brief set it out, comes down to, okay, what about a wetlands separated by a berm or dune or by a dike or levee? And on that question, I suppose, since Congress hasn’t specified that it goes that extra step, why not let Congress figure out where the line is? I mean, I think that’s the toughest hurdle you face, is that Congress — we’ve gotten, as Justice Alito says, from waters to adjacent and now from contiguous or bordering to also neighboring, and shouldn’t that be Congress’ job? So what’s your general response to that?

BHF: So I think, if you look at 1344(g) in context, Congress has answered this question.

We think you’d get there past just directly abutting and to neighboring on the dictionary definitions alone, the definitions we cite at page 22 of our brief, but I don’t think you need those here because of the history against which Congress acted.

JS: So, in other words, I feel like he is trying to thread the needle, right, a little bit — perhaps? I don’t know. I want to know what you make of all of it. And also, more broadly, what struck you about the arguments.

SS: So Kavanaugh’s entire approach to this is one that would not have been an approach of the Court — certainly not a majority of the Court — 20 or 25 years ago. That Court would have said: Well, it’s clear what the Congress is trying to do here, we’re not going to obsess over this or that. We’re also going to think about the history of the statute; we’re also going to think about the background facts against which Congress was regulating. 

And Kavanaugh talks a little bit about that. But this kind of Kabuki dance about dictionary definitions and micro-parsing of when this happened and when that happened is a very new model. And it is a very pro-industry model of reading statutes. Because the more narrowly you are parsing these things, and the more you insist that judges make the decisions — and not the scientists, and not the experts in protection — the more you’re going to end up protecting only what the industries want to protect. 

JS: On that, it seems like a decent time to circle back to something you said earlier, which is that just because the Sacketts’ property was considered a protected wetland under the Clean Water Act, does not mean that they cannot build there at all. Right? 

So this brings me to a question — or maybe two — about the role of the federal government versus the state governments where clean water legislation and regulations are concerned. Because there was a lot of that [speaks in a robotic voice] federal-government-regulation-bad-energy going on during the arguments. And then there was like the suggestion at times that perhaps it would be different if the states had more control. 

And I think — [laughs] — I don’t know that if that were the case, there would be a reason to think these challenges went away. So what I’m hoping is that you can tell us about the various roles that the feds and the states play here. And is it reasonable to buy into this notion that if the states were the ones taking the reins that the Sacketts, and the groups that support them would just be completely jiggy with those state environmental regulations?

SS: Well, first of all, the many industries that are on the side of the Sacketts are not big fans of state regulation. In fact, they are busily arguing in the case of the Clean Air Act that states like California can’t have their own regulations about air quality or tailpipe emissions of cars — that kind of state regulatory authority is inconsistent there, as soon as the states want to do something a little stronger, they say: No, no, no, you can’t. 

Similarly, it’s important for all of us to remember that the reason the Congress passed the Clean Water Act in 1972, was before that, it was the states who were in charge of protecting waters. And it was a disaster. It was a disaster. The reason Congress passed the Clean Water Act is because empirically, it had failed, leaving it to the states. And also, structurally, it’s not surprising, right? States don’t have a whole lot of reasons to protect the water that goes downstream to other states. They also have a race to the bottom where the state that puts the least environmental regulations in place, probably gets the most industries to move in there. So there’s a whole lot of structural reasons why federal protections matter and make a lot of sense. 

Additionally, one thing that these folks talking about state regulation will not want to talk about is the fact that most of the Clean Water Act is actually administered by states. That is to say it’s a federal law. But states actually run the programs, and the states really like to run the programs, and they can run the programs. 

In some areas, however, whenever they take them over, the federal government kind of has to supervise this because many times the states don’t really want to actually do it. They want the money for the regulatory programs, but they don’t actually want to protect things. Again, there’s a lot of pressure from local developers. There’s a lot of pressure to race to the bottom and to not worry about downstream states. 

So there’s a tremendous amount that is left to state regulation — for example, most agricultural pollution, water pollution, is not at all covered by the Federal Clean Water Act. Most of that is left to the states — not most, all is really left to the states. And that has been a disaster; most pollution of our nation’s waterways in the dead zone in the Gulf of Mexico and all sorts of other things are the result of agricultural pollution that hasn’t been handled by the states. 

So anyway, when folks are saying: We want state regulation — that’s actually code for: We don’t want regulation. 

One more thing, I would be remiss in failing to mention here. Many states have laws prohibiting them from putting in regulations that would protect these things. Many states, their own legislatures have said: If the federal government doesn’t protect it, we won’t protect it either. So again, states rights — [laughs] — just as it was with the Civil Rights Act, is in fact code for no regulation, no laws.

JS: Throughout this Dissent miniseries, we’ve talked a lot about how the Court really sets its own agenda. And one of the startling things in this case is that the Court took it while agencies were in the middle of making new rules, which seems bonkers to me. 

Justice Elena Kagan made a point of acknowledging this:

BHF: The 2015 rule, as we discussed, tried to draw some bright-line rules. Those were criticized as arbitrary and over-inclusive, which is the problem with bright-line rules, that they’re over-inclusive or under-inclusive. But I certainly think there is a range of reasonable understandings of what adjacency means, and also I know you’re focused on that, but significant nexus too.

EK: Did I just understand you to say that the rule that you’re issuing may, in fact, have more guidance than we currently have as to what “adjacency” means?

BHF: I don’t want to represent what’s coming in the forthcoming rule because it’s not issued yet. And, by definition, the agencies haven’t finished their deliberation. I will say they’ve sought comment on how to cache out, how to crystallize, this significant nexus test and the adjacency framework that it is a part of. And they’ve also said that even after this rulemaking, they are interested in –

EK: When is the rule-making coming down?

BHF: So it’s with OMB now. It’s public that in September it went over to the Office of Management and Budget for interagency review. The agencies have told me that they still expect to issue it by the end of the year. 

JS: So you have subject-matter experts, scientists, working on updated rules. And then you have the Supreme Court pluck this case and put it on its docket. So, maybe you can talk about that and how it fits with this agenda-setting theme, and what it means for the Court to be taking this case on now, knowing that rule-making is going on.

SS: Look, this is the clearest sign ever, that what we have with this conservative supermajority right now is a highly aggressive deregulatory Court. Because a Court that was just trying to get it right, and just trying to offer stability to regulated parties, to have the machinery of government work well, would never have taken this case, while the government was on the brink of issuing new regulations in this area. 

That is totally contrary to the understanding of the way the Supreme Court is operated. And that is something that everybody learned in law school when I was in law school, and I think is still being taught in law school, but they’re now throwing asterisks up on that all the time. Why does it matter to wait until the other branches of government have their say? Well, that’s because the other branches of the government can do science, the other branches of the government do policy, the other parts of the government can wade through all of the potential consequences of reading law in one way or the other, and offer those judgments up in sophisticated legal regulations. 

And when the Supreme Court hears one case, and reads a word like adjacent and tries to make sense of it from the dictionary, and rules before the government comes out with an explanation of this, it means that it’s taking power away from our policy branches, and grabbing them to these unelected judges who sit on the Supreme Court. That is the line — that is precisely the line — that the conservative movement used 30 or 40 years ago to complain about judges taking power away. But now that they’re in a situation where the country is largely in favor of environmental protections and doesn’t want to see these laws changed, they’ve gone to the courts. And they’ve gotten themselves a hyper-conservative Supreme Court that is willing to do these things. And this Court doesn’t need to see those regulations, because this Court, at least many of the justices, don’t care what the science says.

JS: Well, and also the swooping in amid rule-making, isn’t that also what happened with the Clean Air Act case that they took up in the last term? Isn’t it the West Virginia case?

SS: That’s right. 

JS: I’m sensing a theme! [Laughs.]

SS: [Laughs.] Well, the Court is incredibly eager to put its stamp on this country. And when I worked at the Court, like I said, 20 years ago for a woman named Justice O’Connor, who had a profoundly different vision of the role of the Supreme Court in American society, which is one that issued rulings as infrequently as possible, and in as restrained a manner as possible, recognizing that when the Court answers something, debate stops; that it doesn’t really allow for the rest of government to be engaged. And she recognized that we make mistakes all the time. And once we write an opinion about this, it’s hard for us to undo those mistakes. 

This Court doesn’t feel that way. It feels that it knows what it’s doing. And it can’t wait to do the things it wants to do. And one of the things that it clearly wants to do is restrict the role of the federal government in protecting the health and welfare of people.

JS: Yeah. And just as a side note, it sounded in arguments like those new rules were imminent. Have they been released?

SS: They were released at the end of last year, in December. 

JS: Oh!

SS: And the federal government, the EPA, sent a polite note into the Supreme Court that said: Well, as Mr. Fletcher predicted, we did actually get these rules out. And we’re unsure of what to say to you. It didn’t literally say that — [laughs] — but geez, maybe you should take a look at these. But I guess you really can’t, because you said that you took the case and the regulations aren’t there — so it creates a real problem, because now we have new regulations that are out, that are the law of the land. And we have a Supreme Court case that is reviewing a situation from before these new regulations came out.

JS: I mean, I don’t know if there’s a way to even summarize it, how different the rules are or if there’s any significant change in the rules?

SS: Yeah. So before the Obama administration, everybody was operating on a set of regulations that were generally referred to as the 1986 regulations. And those were sort of the law of the land that had been the case for since the Clean Water Act was created. 

In 2015, the Obama administration issued new rules that would have clarified and expanded the scope of this a little bit. Those rules were immediately enjoined. The Court said: No, no way, we want to look at these more carefully. 

In the meantime, the Trump administration came in, put out an extremely narrow rule for what would be protected — although, as you said, not as narrow as what the Sacketts want, but a very narrow rule; that rule, too, got enjoined in a case brought by Earthjustice because it just didn’t follow the text of the act at all. And now we have a new Biden rule. 

And in summary, what I would say is the Biden rule is significantly more conservative in its reach than the Obama administration’s rule. It strives to kind of make sense of this adjacency wording, and it strives to honor the intent of Congress to protect the chemical, physical, and biological integrity of the waters by trying to make clear that what we need to protect are the wetlands that have this close relationship with the surface waters that we all think of as being most obviously protected. So it includes a ton of context-sensitive stuff about how to figure that out; as we’ve pointed out, it talks about the resources that people have in order to figure out what is covered and what isn’t. It’s very deeply scientifically based — and in fact, if you went through and read all the science that it’s based on — it’s just a colossal record of information that the agency reviewed and tried to come up with this rule. 

JS: You were a guest last year on Strict Scrutiny, and something you said stuck with me. It was essentially making the point that environmental laws are often written broadly and that they need to be written that way. 

I’m more used to, in my daily work life, of thinking about laws like penal code violations — [laughs] — which are pretty specific. So could you talk about why environmental laws are written the way they are and why that matters?

SS: Sure — first of all, we’re learning more about the environment every day. And our understanding of what threats are out there today is very different than the understanding of Congress from 10 or 15, let alone 50 years ago. We have threats that we’re facing now to water that weren’t clearly in the minds of Congress back then. There are chemical compounds that chemical companies are creating and putting into the waterways that didn’t exist back then. 

So if Congress had said: This is the list of pollution that is not allowed, the pollutants that you aren’t allowed to put in them — they would have missed a ton of things. 

So they said: Here’s what pollutant mean — and the definition of pollutants, by the way, in the Clean Water Act is enormous. [Laughs.] It’s basically anything you put in there. 

And it’s written that way, because of two reasons. One is the Congress knew it couldn’t predict exactly what was going to need to be protected in the future. And number two, there was this important entity in between Congress and the public. And that is these regulatory agencies. And the regulatory agencies are the ones that review the science, that conduct the studies, that pay for more science to be done to figure out how to actually implement these laws in a sensible way. 

And, of course, those agencies aren’t, you know, running off completely on their own. They’re run by political appointees. So the people who are running those things are people who are selected by elected officials. And there’s very much political control over this. And Congress also can say — can step in and say: Hey, wait a minute, you the agency aren’t getting it quite right, we are going to rewrite the law in a certain way to fix things — which they did in 1977! So writing laws in a broad way gives scientific experts flexibility to write regulations that reflect what’s on the ground. And it allows those laws to serve future generations and to give you real protections for the environment, where very specific and narrowly worded things would need to constantly be updated — every year, if not every day.

JS: Yeah, well, it doesn’t seem that this 6-3 supermajority, super-conservative Court really likes this broad writing [laughs], because it maybe doesn’t fit with their sort of philosophy. I’m just kind of curious — it seems that they just kind of hate it. And maybe it has to do with the fact that they hate the regulatory state. Or I don’t know! This Court in particular — I mean, they don’t seem to like broadly written laws like these. And so I’m just kind of curious if you have any thoughts on that?

SS: Well, the Court has this broad animus — these judges were selected for their adherence to a philosophy that these unelected bureaucrats and EPA have no business deciding how these things should be done. Instead, these unelected judges, who are completely unaccountable politically, should be the ones deciding how these things get done. 

So there’s a real hostility in this Court to the idea that scientific judgment, expertise, and process outside the courtroom or Congress should be a part of our nation’s regulatory structure. And that’s a profoundly deregulatory worldview, right? That’s profoundly one that leads you to a place where industries have more latitude and where protections get pulled back. And that’s why it’s always a one-way ratchet downwards when you have that kind of a view.

JS: And where the Cuyahoga River is suddenly ablaze again!

SS: That’s right! And this isn’t a great direction for the Court to be taking. And we’re not just seeing it, right, in the Clean Water Act: We’re seeing it in COVID protections; we’re seeing it in voting rights protections; we’re seeing it across the board, where the Court is pulling back on the role of protections in the government for people.

JS: So to end, I’d like to back up and get a broad view about what’s at stake in this case. 

So maybe first, you could lay that out in terms of immediate impacts. 

But then second, could you put it into the context of the climate crisis, and how what happens here might impact our ability to address climate change?

SS: Sure. Well let’s step through those from the bottom up.

So I would start by saying that in some of the worst case scenarios that one could imagine if the Supreme Court wrote its opinion in certain ways: Up to 45 million acres of wetlands could lose protections in this country. So 45 million acres of wetlands that you couldn’t pollute — you can’t pollute today — you suddenly could pollute. People could just say: Well, I can fill it in, I can pollute it, I can do whatever I want. 

Next level: As climate change stresses our environment, removing the protections for all those wetlands, smaller waterways of all kinds, becomes all the more problematic, because we know that all these environments are deeply stressed by climate change already. We know that flooding and drought are becoming an increasingly big problem. So by taking away protections for waterways and wetlands, you’re exacerbating the scale of the climate crisis, right?

And then, at the third level, in order to combat the climate crisis, we’re going to need strong environmental laws and regulations. And we’re going to need expert agencies, figuring out how we can make all these things happen. How can we reform our transmission grid? What kind of pollution is okay? What kind of standards are not? How do we figure out how to reduce emissions from all kinds of different things in ways that are going to help us survive as a species, as a nation, as individuals. And if you have a Supreme Court that is profoundly anti-regulatory, you make it much more difficult for the government to actually do what most people want, which is confront those problems. More than three in four people support federal protections for water. Most people want the federal government to do more about climate change. And the Supreme Court is going in the other direction, taking the government out of the game at a time when it needs to be most in it. 

JS: Sam, thank you so much for joining me.

SS: You’re more than welcome. Thank you for doing this. Anytime somebody wades into the Supreme Court, environmental law, whatever, I’m always eager to help out, because this is not easy stuff. [Laughs.] And it’s really important. But some issues like abortion or voting or whatever, people can naturally understand — you don’t need to read the law to understand what’s going on. But on things like this, somebody like you, you really have to dig in to kind of figure out what the questions should be, read the argument, try to figure out what the heck is going on. So I appreciate that you did that.

JS: And that’s it for this episode of Dissent, a production of The Intercept. 

This episode was produced by Jose Olivarés and Laura Flynn. Roger Hodge is editor in chief of The Intercept. And Rick Kwan mixed our show. 

If you’d like to support our work, go to theintercept.com/join — your donation, no matter what the amount, makes a real difference.

If you want to give us feedback, email us at podcasts@theintercept.com. Thanks so much.

Until next time, I’m Jordan Smith.

The post Dissent Episode Six: The Clean Water Act Comes Under Attack appeared first on The Intercept.

R.J. was only 6 weeks old when he first visited Texas death row with his father, Rodrick Reed Sr. By then, his uncle had been there for almost 20 years — and had come close to execution once. In 2019, as R.J.’s third birthday approached and Reed faced another execution date, their hometown newspaper in Bastrop, Texas, printed a front-page photo of R.J. standing in front of the Supreme Court, where his family called on the justices to intervene. Their pleas were rejected. But Reed’s execution was called off at the last minute anyway.

Now, the justices had finally decided to consider Reed’s case. The family made the trip once more to Washington, D.C., to attend the oral argument. The outcome will determine whether Reed can seek DNA testing of key crime scene evidence through the federal courts.

“My family’s been fighting this my whole life,” said Reed’s niece, Brittany. Growing up in Bastrop with the last name Reed wasn’t always easy. But things had started to change, she said. The last execution date brought a wave of protests in support of her uncle, fueled in part by celebrity advocates like Kim Kardashian. More recently, a nine-day evidentiary hearing revealed compelling new evidence pointing to Reed’s innocence — including witnesses who tried to speak to the police years earlier but were ignored. “A lot of people are able to see the real truth,” Brittany said.

Reed, who is Black, was sent to death row in 1998 for killing a 19-year-old white woman named Stacey Stites. Her body was found on the side of a country road outside Bastrop, and sperm recovered from Stites’s body was matched to Reed. Prosecutors called this evidence the “Cinderella’s slipper” revealing her killer. But Reed insisted he was innocent. He said he’d been having a secret affair with Stites, who was engaged to a white police officer. That officer, Jimmy Fennell, denied the possibility of an affair, claiming that he and Stites had a loving relationship and she didn’t know anyone named Rodney Reed. Fennell was never seriously considered as a suspect, yet there was evidence from the start that he might have been responsible for Stites’s death.

This evidence had only gotten stronger over time. Friends of Stites’s confirmed that she and Reed knew each other, and law enforcement colleagues of Fennell’s said he had discovered the affair and was furious that Stites was involved with a Black man. Fennell was later sentenced to 10 years in prison for kidnapping and sexually assaulting a woman while on duty. He threatened to kill her if she told anyone about it. Yet Texas courts have repeatedly blocked Reed’s efforts to win a new trial.

Although Reed’s family was cautiously hopeful the Supreme Court justices would rule in his favor, they learned long ago not to stay silent while leaving his fate to the courts. No matter what happened that morning, Rodrick said before ascending the courthouse steps, he and his family would keep fighting. “There’s a lot of things still yet to come.”

Years of Legal Wrangling

The road to the Supreme Court was long and arduous. By the time the justices agreed to review a narrow legal question, Reed had sought the high court’s intervention numerous times. In a pointed dissent from the court’s refusal to consider his case in 2020, Justice Sonia Sotomayor highlighted the grave questions that had been raised over Reed’s guilt over more than two decades — and the repeated refusal of Texas courts to confront them. “Reed has presented a substantial body of evidence that, if true, casts doubt on the veracity and scientific validity of the evidence on which Reed’s conviction rests,” she wrote. “There is no escaping the pall of uncertainty over Reed’s conviction.”

Texas’s case against Reed has all but collapsed. Medical evidence suggesting Stites was killed on the morning of April 23, 1996, while she was on her way to work has been debunked; experts say she almost certainly died the night before, when she was at home with Fennell. A stream of witnesses with no connection to Reed have come forward with stories about Stites and Reed’s relationship and Fennell’s propensity for violence, flipping the state’s narrative and pointing to Fennell as a more likely killer.

“There is no escaping the pall of uncertainty over Reed’s conviction.”

Texas has rebuffed this evidence. While prosecutors haven’t offered anything meaningful to challenge the new witness accounts, they nonetheless insist that Reed’s conviction is righteous.

Testing physical evidence for DNA could resolve the lingering questions. But while the state has long pointed to the sperm DNA as key evidence that Reed is guilty, it has resisted testing crucial pieces of crime scene evidence that should, at least theoretically, bolster its case. Chief among the untested items are two lengths of a braided leather belt used to strangle Stites. Years of legal wrangling over Reed’s request to test this evidence is what finally landed his case before the Supreme Court.

In 2014, Reed filed a motion in state district court seeking testing of the belt and other items under the state’s post-conviction DNA testing statute, known as Chapter 64. Although the statute was passed in response to several high-profile embarrassments, many Texas defendants have struggled to access testing, in large part thanks to rulings from the Texas Court of Criminal Appeals, the state court-of-last-resort in criminal cases.

The CCA has long had a reputation for hostility to claims of innocence and efforts to secure DNA testing. Since Chapter 64 was enacted in 2001, the legislature has repeatedly amended it to address court rulings that severely narrowed eligibility, an approach lawyers say neuters the law. At times, the court’s rulings have been confounding. In one case, the CCA concluded that to obtain DNA testing, a defendant would first have to prove that DNA existed on the evidence in question — which is nearly impossible to do without DNA testing.

During a hearing on Reed’s DNA request in November 2014, prosecutors took a similar position, arguing that Reed could not prove DNA existed on the belt used to strangle Stites. The state also argued that because the items were handled by multiple people at Reed’s trial (including prosecutors) and then commingled during storage, the evidence was too contaminated to render any probative DNA results. Reed’s experts have countered this notion, explaining in detail why neither circumstance is particularly unique nor problematic.

Nonetheless, the district court ruled against Reed, writing that the state’s case against him was “strong,” meaning that even if DNA testing of the belt had been done before his 1998 trial, there was “no reasonable probability” that Reed would have been acquitted of Stites’s murder. The judge also concluded that Reed was seeking testing solely to delay his execution. Reed appealed to the CCA. Although it initially sent the case back to the district court, asking the judge to clarify his findings, the CCA ultimately affirmed the lower court’s ruling in April 2017.

Under Chapter 64, DNA testing can be ordered by the court only if the evidence “is in a condition making DNA testing possible” and has been “subjected to a chain of custody sufficient to establish that it has not been substituted, tampered with, replaced, or altered in any material respect.” The Bastrop County clerk, who is the custodian of evidence, testified that the items had been secured “under lock and key,” and none of them had been tampered with or altered in any way. But the CCA glossed over this and instead determined the evidence had been “contaminated” — a concept not contained in the statute. Reed asked the court to reconsider its ruling; the CCA denied the rehearing request via postcard roughly six months later.

Although the Supreme Court has ruled that there is no constitutional right to post-conviction DNA testing, if a state does provide access to testing, the process for obtaining it must be fair. The court has determined that a defendant may file a civil rights suit in federal court to challenge a process that is unfair. Reed filed such a suit in August 2019. The suit was dismissed, however, when the U.S. 5th Circuit Court of Appeals ruled that it was filed nearly three years too late.

Under the statute, Reed had a two-year window to file his federal claim after he was denied testing. According to the appeals court, Reed should have filed the suit in 2014 after he was denied testing at the trial court level. Reed appealed the decision to the Supreme Court, arguing that filing back in 2014 would have been premature since the CCA hadn’t yet considered his appeal. If the CCA had reversed the trial court’s decision and allowed DNA testing, then the whole matter would have been resolved — and taking the fight to federal court would have been a waste of time and resources. This spring, the Supreme Court said it would take the case. While the question before the court is technical, the consequences for defendants, and particularly those on death row, are substantial.

Moving the Goalposts

The oral argument in Reed v. Goertz began well after noon. The first case before the court that day, National Pork Producers Council v. Ross, consumed more than two hours, with lively back-and-forth between the justices and attorneys that included meditations on morality. “How broadly would you define immoral?” Justice Clarence Thomas asked a lawyer for the Humane Society of America, which argued that bans on gestation crates and other forms of animal cruelty followed a “moral tradition” in the United States.

If there was any irony to be found in the time spent pondering the confinement of farm animals set for slaughter versus the ethics of executing a human being who has spent most of his adult life in a cage, it went unacknowledged. By the time Reed’s attorney rose to make his case, much of the courtroom had cleared out, including the press section. The energy was of a workplace meeting where most people were thinking about lunch.

Much of the discussion focused on Texas’s dickering over when the statute of limitations clock began to tick.

The state has variously changed its position on this question. Texas has argued that the clock began after the state district judge first denied DNA testing in 2014; that it started two years later, after the CCA asked the district judge to revise his findings; and that it began in April 2017, when the CCA issued its opinion inventing the non-contamination rule. But where it definitely did not start, Texas Solicitor General Judd Stone told the court, was the rehearing date in October 2017, when the CCA denied Reed’s request to reconsider the case. Generally speaking, a person can take their legal fight to federal court only after a state claim has been exhausted. The rehearing denial was the court’s final word on the matter, closing any meaningful avenue for redress within the state’s legal system. This is when Reed’s lawyers say the statute of limitations clock should begin to run.

Under any scenario but the last, Reed would have filed his federal civil rights case after the statute of limitations expired. That seemed to be the state’s true goal: Move the goalposts just enough to eliminate Reed’s ability to seek DNA testing through the federal courts, even if doing so would create an arbitrary rule destined to create a confusing morass for everyone else. Many of the justices’ questions homed in on the logic of Stone’s position.

“Can I focus your attention on the difference between the date of the court of appeals decision versus the rehearing date?” Justice Neil Gorsuch asked. “Why should we prefer your view?”

Reed’s request that the CCA reconsider its ruling didn’t matter, Stone responded. “Rehearing changed nothing.”

“That’s just because rehearing was denied,” Justice Elena Kagan interjected. If it had been granted and the court had revised its previous decision, then Reed might be in a different position, which “we don’t know about until the end of the court of appeals process.”

“That seems like an awful waste of time.”

Stone said his proposed rules would take that into account. If rehearing had been granted and something had changed, then the statute of limitations would start running then. But that would create different clocks for different scenarios, Kagan pointed out. “Why isn’t the simpler rule just to say, ‘We don’t know what the authoritative construction of the court of appeals is until the court of appeals process is concluded.’ The end.”

Sotomayor noted that Texas has also said Reed should have pursued his federal court claim back in 2014, after the district court first ruled against him. Yes, Stone said. But if he does that and simultaneously appeals in state court, should the federal court wait to address Reed’s civil rights case? Sotomayor asked.

“It need not,” Stone replied.

“But it can?” Sotomayor asked.

“If the parties request that it wait —” Stone began.

“That seems like an awful waste of time,” Sotomayor said.

Justice Ketanji Brown Jackson echoed this concern. If the federal court would pause consideration of a civil rights case to allow state courts to weigh in first, how would Stone’s proposed rules makes any sense? “What’s the point?” she asked, nodding to Reed’s argument that the state’s position seemed designed “just to keep a prisoner from ultimately being able to bring a federal claim.”

Chapter 64 contains a process for appealing a district court decision to the CCA, Justice Amy Coney Barrett noted. How could Reed have gone to federal court in 2014 if he didn’t yet know what the CCA was going to do — and thus whether the law was applied in an unfair way? “I just don’t understand how the cause exists until the procedures have failed him,” she said.

Stone tried to explain but ultimately hit on this: The point of this dispute was to decide whether individuals like Reed who want to seek DNA testing through the federal courts can draw things out by availing “themselves of endless procedure in state courts.”

The state’s position seemed designed “just to keep a prisoner from ultimately being able to bring a federal claim.”

But Reed was just availing himself of the provisions of Chapter 64, Barrett noted. “The claim is that the procedure, as you said, was fundamentally unfair, but it’s not fundamentally unfair if the CCA could have corrected any mistake that the trial court had made, right?”

Chapter 64 provides for an appeal to the CCA, Stone said, but it says nothing about seeking rehearing in that court. (Despite the fact that rehearing requests are part of the normal CCA process.) All Reed was doing, he said, was trying to extend the time to file “for the purposes of, candidly, forestalling imposition of a capital sentence.”

Such dilatory behavior deprived the state of being able to retry Reed if he were to prevail in the courts, he said, because prosecution witnesses might die or develop dementia. Stone brought up the recent evidentiary hearing, claiming that Reed’s evidence was unreliable and his defenders were exploiting his innocence claim to delay execution. “Additional delay harms the state’s ability to be able to redress this if, for example, he is entitled to a new trial for one reason or another,” Stone said, “which he most emphatically is not.”

Parker Rider-Longmaid, who was arguing on Reed’s behalf, took aim at Stone’s assertions. The CCA called off Reed’s planned execution in 2019 not because of his Chapter 64 claim, but because of the mountain of evidence that now points to Fennell, not Reed, as Stites’s killer. That evidence is still under review. In addition to the troubling evidence Sotomayor laid out in her 2020 opinion, he noted, there is evidence that “Fennell admitted to killing Stites because he discovered she was sleeping with a Black man; that Fennell threatened to kill Stites if he caught her cheating; that Fennell made inculpatory statements at Stites’s funeral; and that Fennell and Stites’s relationship was fraught,” he said. These “are all serious things we think the court should consider.”

After the oral argument concluded, Reed’s mother, Sandra, exited the courtroom with her son and grandson. Members of Reed’s legal team held her hands for support. She looked tired and a bit overwhelmed. For more than two decades she had told her story to anyone who would listen, speaking at countless rallies and interviews. In recent years, Rodrick had taken over much of the public speaking. But Sandra remained a constant advocate for her son. Back outside, an attorney thanked her for being there. “I wouldn’t have missed it,” she said.

A ruling is expected in 2023. But there was no waiting on the court. The family’s next stop was an event at Howard University later that day, where Brittany joined her father in telling Reed’s story. However the fight for DNA testing might end, the truth was on their side, she said. As the evidentiary hearing showed, what’s hidden in the dark “always comes to the light.”

The post Texas Invents New Barriers to DNA Testing While Blaming Rodney Reed for Delay Tactics appeared first on The Intercept.

A founder of Rise Up, Sunsara Taylor, pushed past an Ocasio-Cortez aide and got the New York representative to join her in chanting through a megaphone that the decision was “illegitimate” and needed to be contested by going “into the streets!”

AOC joined us in the streets to call out this decision for what it is ILLEGITIMATE

This court is Illegitimate and this decision must not stand. Legal, Nationwide abortion on demand!

Get in the streets NOW. AND TOMORROW and the next day! Post Roe? HELL NO! pic.twitter.com/w6qVAsRyoC

— Rise Up 4 Abortion Rights (@riseup4abortion) June 24, 2022

Taylor, a longtime leader of the tiny, Harlem-based Revolutionary Communist Party — a group better known as the Revcoms, which is dedicated to spreading the ideas of the former ’60s radical Bob Avakian — then offered Ocasio-Cortez the mic. As the Democratic congresswoman spoke, Taylor also handed her a green bandana, a symbol of abortion rights in Latin America available for purchase on the Rise Up website.

After Ocasio-Cortez told the protesters that the effort to restore the right to an abortion nationwide would be “a generational fight,” a reporter asked what Congress could do. As Ocasio-Cortez gathered her thoughts, Taylor interjected: “Fill the streets.” Ocasio-Cortez agreed. “We have to fill the streets,” she said. “Right now, elections are not enough.”

Speaking outside the Supreme Court, Rep. Alexandria Ocasio-Cortez (D-NY) told protesters that "right now, elections are not enough" to reclaim abortion rights in America "we have to fill the streets." pic.twitter.com/dgfKo8FQFR

— HuffPost (@HuffPost) June 24, 2022

Before she left, Ocasio-Cortez took a moment to comfort one of the young Rise Up protesters, Julianne D’Eredita, a 21-year-old from Texas, who was in tears behind her. As Ocasio-Cortez hugged D’Eredita, Taylor started a chant of the slogan that is also the group’s name: “Rise up for abortion rights!”

As #RoevWade is overturned, @AOC charges into the crowd outside the Supreme Court demanding people “take to the streets”, hugging pro-choice protesters pic.twitter.com/mv55EOA1f1

— Sarah Gough (@sarahgoughy) June 24, 2022

Anyone watching news coverage of the protests at the court that day, and in the weeks since, would be forgiven for thinking that Rise Up 4 Abortion Rights must be one of the nation’s leading reproductive rights organizations, since its activists, chants, placards, and the green bandanas and stickers sold on its website have been prominently featured in report after report.

The day after Roe v. Wade was overturned, for instance, an MSNBC interview with D’Eredita and another young member of the group, Zoe Warren, 19, went viral, as their frustration at Democrats for failing to codify Roe and fundraising off the decision was seconded by progressives like Ocasio-Cortez and Nina Turner.

She’s not wrong.?? pic.twitter.com/8mJDZIR2dZ

— Fernand R. Amandi (@AmandiOnAir) June 25, 2022

But the flurry of attention in recent weeks is misleading, since Rise Up 4 Abortion Rights has only existed since January, when Taylor and a handful of other Revcom activists launched it with a protest outside the Supreme Court on the 49th, and final, anniversary of Roe v. Wade.

Rise Up 4 Abortion Rights has only existed since January.

The role played by Revcom members in the recent wave of abortion rights demonstrations has alarmed grassroots organizers for reproductive justice and experts on left-wing movements who liken the devotion of self-described “followers of Bob Avakian” to a cult.

“That viral clip of the woman in the green shirt (Zoe Warren)?” Imani Gandy, senior editor of law and policy for Rewire News Group, tweeted. “She is associated with RiseUp4Abortion rights which is yet another one of Bob Avakian’s many social justice fronts. He occupies space in order to get more people to join his weird cult.”

Talia Jane, an independent reporter who covers extremism and activism, has compared the Revcoms and their new offshoot to a multilevel marketing, or MLM, scam.

“RevCom showed up even though they’re not welcome, so I told people about how they’re a scam cult taking advantage of new people who want to get involved,” Jane reported on Twitter after a protest in New York in May. “If you took any pictures or flyers of RiseUp4AbortionRights (the girls with the white pants with blood in the crotch),” she added, “please know they are a scam front run by a MLM cult that thinks their dear leader will return to tell them how to revolution if everyone joins their cause.”

Sam Goldman, a Rise Up leader who has promoted Avakian’s teachings in the past, sent me an official statement from the group rejecting the criticism. Goldman, who also hosts a podcast for another offshoot of the Revcoms called Refuse Fascism, said that it was incorrect “to untruthfully conflate” Rise Up 4 Abortion Rights and the Revcoms. But recent Rise Up 4 Abortion Rights protests in New York and Los Angeles have been led by Revcom activists wearing Revcom T-shirts.

Rise Up has also been criticized by veteran abortion rights activists for focusing, from January through June, on the quixotic strategy of trying to stop the Supreme Court’s conservative supermajority from overturning Roe by calling on millions of Americans to take to the streets.

To that end, in June, Rise Up 4 Abortion Rights volunteers staged a series of small, theatrical protests which drew media attention but failed to either ignite a mass movement or keep five justices from signing Justice Samuel Alito’s majority opinion in Dobbs v. Jackson Women’s Health Organization, which held that “Roe was egregiously wrong from the start.”

Grassroots reproductive rights organizers also claim that Rise Up’s own fundraising, which is boosted by media coverage, has only served to divert much-needed resources and attention away from organizations that do important work, like defending abortion clinics and providing funds to people who need to travel to obtain abortions.

In early June, for example, the Texas-based writer and reproductive justice activist Andrea Grimes criticized a protest in Houston at the televangelist Joel Osteen’s megachurch, in which D’Eredita and two other women stripped down to their underwear during a service and shouted, “It’s my body, my fucking choice!”

Disruption for Abortion Rights at Joel Osteen’s Lakewood Church in Houston TX.@riseup4abortion pic.twitter.com/5XFnHPDEn5

— TX4ABORTION (@tx4abortion) June 5, 2022

“I haven’t seen this gaining traction anywhere meaningful, but for reporters covering whatever these dipshits do next: these folks are part of a widely despised cult of personality not tied to any serious repro health, rights, or justice organization,” Grimes commented on Twitter. “They are not supported by folks here doing the work on the ground. Nobody knows them. Nobody likes them. They’re not a thing. They show up when the cameras come on.”

Grimes added that she, and other members of a group called Texans for Reproductive Justice, had previously denounced a prior Revcom abortion rights group led by Taylor, called Stop Patriarchy, when it staged a series of unwelcome marches there in 2014 in which activists wore chains and chanted, “Forced motherhood is female enslavement!” By equating restrictions on abortion to slavery, Grimes wrote at the time, Taylor and other followers of Avakian disrespected the suffering experienced by the ancestors of people of color.

When she led the protest outside the Supreme Court that Ocasio-Cortez joined last month, Taylor was wearing a Revcom T-shirt that read: “Forced Motherhood Is Female Enslavement.”

In late June, Rise Up was similarly criticized for staging a protest outside Justice Amy Coney Barrett’s home, in which a 15-year-old girl and a half dozen others wore white pants with fake blood stains and carried dolls in their bound hands.

Watch: 15 yr old Ariana who organized a baby doll procession speaks powerfully in front Amy Coney Barrett’s house

“Children forced to give birth to children! Women will be inferior! ALL OF U WHO ARE PRO CHOICE. Come to DC & stay!”#RiseUp4AbortionRights pic.twitter.com/ARhwVoSyWL

— Rise Up 4 Abortion Rights (@riseup4abortion) June 18, 2022

“Why do they have these kids out here doing this dumb shit?” Mary Drummer, an activist and digital strategist who has led advocacy campaigns for Planned Parenthood, Color of Change, and MoveOn, asked on Twitter. “What purpose does this serve? How is this strategic?”

Rise Up 4 Abortion Rights, Drummer argued, “is a front group of the Revolutionary Communist Party (also known as RCP or Revcom), which is basically a cult run by Bob Avakian and is known for co-opting social justice movements & protests.”

Drummer noted that Revcom activists had previously been accused of trying to amplify anger over racist policing to trigger the full-scale communist revolution mapped out in Avakian’s tracts. For instance, Revcom activists in T-shirts with Avakian quotes were greeted with suspicion when they appeared in Ferguson, Missouri in 2014, when the police shooting of Michael Brown gave rise to the Black Lives Matter movement.

“RevComs is notorious for ‘swooping’ — descending on protests organized by other groups, positioning their banners and signs prominently where they’ll be photographed, but then leaving the event at the first sign of police or counter protesters,” one left-wing organizer, who asked to remain anonymous to comment on the group’s tactics, told me in an interview. “All they do is lead pointless marches designed for photo-ops.”

In the days after the viral video of Zoe Warren’s comments brought Rise Up national attention, a coalition of pro-abortion activists from nearly two dozen organizations, led by NYC for Abortion Rights, released a statement denouncing the group as “a cult and pyramid scheme.”

“Similar to its parent group RevCom, RiseUp’s only goal appears to be gaining more followers in order to raise more and more money,” the activists argued. “Both essentially function as pyramid schemes that prey on social movements.”

They “essentially function as pyramid schemes that prey on social movements.”

“RevCom and its fronts — RiseUp and Refuse Fascism — are notorious for raising tens of thousands of dollars and using those funds to pay RevCom leadership, and to purchase marketing materials (to raise even more money),” the statement continued. “The RiseUp website, for instance, features urgent prompts to donate with no information about where this money goes. What we do know is that this money never goes to abortion funds (which they argue are not a strategy to defend abortion access), providers, practical support groups, or anyone actually working to increase abortion access.”

The activists also criticized Rise Up for “theatrical tactics” like “the wearing of white pants painted with fake blood, die-ins, and coat-hanger imagery,” which “further the extremely harmful idea that abortion is a violent procedure and safe self-managed abortion is not possible.”

Rise Up and the Revcoms have heard and rejected the criticism, as evidenced by a Rise Up protest last week in Los Angeles — led by a Revcom activist in a “Forced Motherhood Is Female Enslavement” T-shirt — in which four women wearing white pants daubed with fake blood chained themselves to City Hall as the steps were drenched in red paint.

ACTIVISTS IN LOS ANGELES POUR “BLOOD” DOWN THE STEPS OF CITY HALL AFTER CHAINING THEMSELVES TO THE BUILDING IN PROTEST OF THE SUPREME COURTS OVERTURNING ROE V WADE. pic.twitter.com/yBwQ0Mi8P4

— Mike was here (@bellikemike) July 6, 2022

“Some so-called ‘leaders’ in the so-called ‘movement’ have decided that the fall of Roe — shutting down of abortion in 8 states immediately w more to follow quickly — is the time to attack the ONE org that consistently fought to mobilize people to prevent the fall of Roe,” Sunsara Taylor tweeted in response to Rise Up’s critics. “There is an unthinking fanatical pile-on to using the scary word ‘cult’ to try to tar and keep people away from uniting with followers of Bob Avakian or… heaven forbid… looking into what he is about for themselves,” she added.

The Rise Up statement sent to me by Sam Goldman also attacked the veteran organizers as people who “have done absolutely nothing to mobilize people to fight this decision when it was impending over the past 6 months.”

The statement, which was signed by Taylor and two other founders of the group who are not Revcoms, also said that “Rise Up 4 Abortion Rights has never used any funds it has raised for any purposes other than exactly what the funds were raised for.”

Last week, Rise Up added an update to the statement which said that the group’s lawyer had “sent a letter to those who have accused us of financial wrongdoing instructing them to cease and desist in spreading these blatantly untrue, baseless, extremely dangerous allegations.”

A separate statement on the Revcom website also rejected the criticism that the group is a cult, but does so in a curious way: by lavishing praise on Bob Avakian to such an extent that it seems to reinforce the charge.

“Bob Avakian’s leadership, and the new communism he has brought forward is absolutely essential for making revolution and emancipating humanity,” the Revcom statement reads. “Any chance at all for not just avoiding the nightmare we are heading toward but bringing forward instead an emancipating future requires all of you who read this to engage what Bob Avakian has written in a serious way.”

Despite the group’s best efforts to sell Avakian as a revolutionary leader, skepticism of the Revcoms is deeply rooted among left-wing activists and commentators. For instance, when Hasan Piker, a popular progressive Twitch streamer, discovered that the two young Rise Up activists who criticized Democrats in the viral MSNBC clip were linked to Revcoms, he collapsed in despair during a live broadcast.

The moment that @hasanthehun found out that Rise Up 4 Abortion Rights is actually a cult ??? but seriously they are a Rev Com cult group! Don’t support them! pic.twitter.com/6aNIRNWY0b

— People's City Council – Los Angeles (@PplsCityCouncil) June 27, 2022

In a phone interview, however, Warren told me that she had no idea that Rise Up 4 Abortion Rights was “associated with Revcoms” when she first volunteered for the group two months ago and does not share Sunsara Taylor’s belief in communism or devotion to Avakian’s leadership.

“I’m not a member of the Revcoms and I never have been and I don’t plan to be,” Warren said. “When I first got involved with Rise Up 4 Abortion Rights, I didn’t know that they were associated with Revcoms, and when I found that out, that was a little concerning for me,” she added.

Still, she said, the group’s efforts to pressure Democrats to pass a federal law legalizing abortion by protesting makes sense to her. “I believe that Rise Up is doing something that no other organization is really doing right now, and that is calling people into the streets to do something they might not have done before, which is demand more from their government than they are getting,” Warren said.

Because the excerpt from her MSNBC interview that was clipped and went viral online focused on her anger at Democrats, I asked her if she agreed with Taylor, who tweeted the day after Roe v. Wade was overturned that it was pointless to “Rely on voting and the fucking Democrats.” Warren told me that she did not think protesting instead of voting was a good idea.

“I believe that a combination of both is definitely necessary,” she said. “I think that to a certain point getting as many people in the streets as possible to demand that our current government make abortion legal nationwide now is an amazingly powerful thing to do. But, when November comes around, that doesn’t mean we shouldn’t vote. We most definitely need to vote, and we most definitely need to vote for Democrats because we do live in a two-party system and they’re our only option.”

The post Abortion Rights Activists Call New Group Leading Protests a Front for a Far-Left Cult appeared first on The Intercept.

In 1982, a group of conservative students and professors gathered at Yale Law School giddy with the opportunity offered by Ronald Reagan’s presidency. They spent the time discussing the perils of federalism, decrying the cultural influence of “coastal elites,” and listening to speakers who excoriated everything from New Deal politics to the legalization of abortion and its impact on “acceptable sexual behavior.” This relatively small crew of around 200 began the process of building a language and a culture around constitutional originalism, a designed approach of interpreting the Constitution very narrowly based on what the framers — all white, all men, all Christian — supposedly meant at the time they wrote it. They named the new group the Federalist Society as a bit of an inside joke. One of the organizers wrote to invite future Supreme Court nominee Robert Bork to help them, saying that the group “settled on Federalist Society as a name which I suppose makes up in euphony what it lacks in accuracy. If you have any brilliant ideas for a better name, however, that would be splendid.”

Legal scholars from Bork to future Solicitor General Ted Olson and future Supreme Court Justice Antonin Scalia — then a law professor just months away from his first federal judgeship — spent the weekend deep in conversation with adoring students. They were all convinced that there was a desperate need for an antidote to what they believed was insidious left-wing bias in law schools. One of the student organizers, Steven Calabresi, recalled that “part of Reagan’s policy was to build up forces in battleground nations in order to topple enemy regimes, and I thought of us as kind of the same equivalent in law schools.”

Perhaps no speech better articulated the overarching mission of this new endeavor than that of Bork, who had recently been appointed to the U.S. Court of Appeals for the District of Columbia Circuit by Reagan, when he told the gathered students that the courts were legislating with made-up constitutional rights:

This is a process that is going on. It happens with the extension of the equal protection clause to groups that were never previously protected. When they began to protect groups that were historically not intended to be protected by that clause, what they are doing is picking out groups that should not have any disabilities laid upon them.

Given that Bork had excoriated the Civil Rights Act as being grounded in “unsurpassed ugliness” and had opposed Griswold v. Connecticut, which granted married couples the right to contraception, those who read the speech reasonably concluded that Bork did not include historically marginalized groups as meriting protection. This seminal speech was later invoked in Bork’s Supreme Court nomination hearings and helped sink his chances at confirmation.

The weekend was a smashing success, with one prominent attendee comparing it to Woodstock for right-wing legal activists. The attendees left convinced that they were a silent majority, despite all evidence to the contrary. They believed that if they could make it socially permissible, many more students on college campuses would come out against liberalism. They emerged from the gathering energized to build the Federalist Society, a new effort to train and promote conservative-minded lawyers into prominent positions, with an eye toward installing far-right judges. Backed by a who’s who of right-wing money, the fledgling group quickly grew from a handful of grassroots chapters on college campuses into a million-dollar organization with headquarters in Washington, D.C., and at least 75 campus affiliates. One of its initial backers was the John M. Olin Foundation, the force behind the establishment of business-friendly law and economics programs at law schools throughout the country.

The Federalist Society scoped out the legal aspect of Falwell and Weyrich’s new strategy, and it found that abortion proved to be an excellent litmus test for likely members of the radical right. It turned out that young and ambitious legal minds who had an antipathy to Roe v. Wade were far more likely to be on board with the full agenda to assert control and maintain the status quo of right-wing power.

Edwin Meese, a top aide to Reagan, hired many “Federalists,” as they came to call themselves. Other GOP operatives helped young, newly graduated Federalist Society lawyers find jobs. The movement was riding high when Chief Justice Warren Burger informed Reagan of his intent to retire in 1986. Reagan, in his second term with no reelection to plan for and chastened by the backlash to his Sandra Day O’Connor Supreme Court nomination, did two things: He moved to elevate right-wing ideologue William Rehnquist to occupy the position of chief justice. Then he nominated Federalist Society superstar Scalia to replace Rehnquist.

They were also exhausted. They voted to confirm Scalia the same day as the vote on Rehnquist. The Democrats had little fight left in them, and they had spent all of their political capital. Besides, the junior nominee was relatively unknown outside his own conservative legal circles, without an established paper trail on hot-button issues — a profile that became a staple of Federalist nominees. Scalia was confirmed unanimously by the Senate and went on to become one of the most right-wing justices in the history of the Supreme Court, upending norms by using oral arguments as political theater and writing scathing dissents in cases in which he was outnumbered.

The following year, Justice Lewis Powell — of the infamous Powell memo — announced his intention to step down, giving Reagan yet another opportunity to shape the court. Reagan drew again from the same well, nominating Federalist Society founding father Bork. The man who had used the original conference to decry “the gentrification of the Constitution” and to claim that states should be able to ban abortion and define “acceptable sexual behavior” was up. The new legions of Federalists were ecstatic about the possibility of having two of their own on the Supreme Court.

But Democrats and progressives were not going to be caught flat-footed again. Opposition to Bork’s nomination came fast and furious from civil rights and women’s groups. Kennedy, who led the opposition, responded to the nomination by saying:

Robert Bork’s America is a land where women are forced into back-alley abortions, Blacks would sit at segregated lunch counters, rogue police would break down citizens’ doors in midnight raids, schoolchildren could not be taught about evolution, writers and artists could be censored at the whim of the government, and the doors of the federal courts would shut on the fingers of millions of citizens for whom the judiciary is — and is often the only — protector of the individual rights that are the heart of our democracy. … President Reagan is still our president. But he should not be able to reach out from the muck of Irangate, reach into the muck of Watergate, and impose his reactionary vision of the Constitution on the Supreme Court and the next generation of Americans. No justice would be better than this injustice.

The extreme ideology on display at Bork’s initial Federalist speech came back to haunt him in the lengthy confirmation battle. Bork’s nomination was defeated in a bipartisan vote after months of bitter fighting. The seat ultimately went to Justice Anthony Kennedy in 1988. The Federalists were enraged and took a solemn vow to never let one of their own be sunk again.

Other groups were also hard at work using law and the courts to tilt culture in the direction of the radical right’s goals. In 1990, Christian televangelist Pat Robertson created the American Center for Law and Justice specifically to go head-to-head with the liberal American Civil Liberties Union. The ACLJ held a stable of attorneys ready to jump into high-profile battles worldwide focused on its version of family values. The organization, today led by former President Donald Trump’s personal attorney Jay Sekulow, has fought changes to the Kenyan constitution that would allow abortion, supported the government of Zimbabwe in its effort to criminalize homosexuality, and, closer to home, effectively blocked the construction of an Islamic cultural center near the World Trade Center site.

They subsequently joined in common cause to choose a series of high-profile cases that they believed would cement the idea that liberal reforms around civil rights and gender equity amounted to an attack on traditional religion. In California, the ACLJ and its allies aggressively defended Proposition 8, the ballot measure designed to ban same-sex marriage in the state. Their rhetoric presented out-of-touch elites trying to foist a liberal agenda on the rest of the nation. In 2018, the Alliance Defending Freedom advocated in the Supreme Court case Masterpiece Cakeshop v. Colorado Civil Rights Commission, which dealt with religious business owners’ ability to refuse service to people based on their sexual orientation, for similar reasons.

Perhaps the feather in the cap of the movement architects — some of whom did not live to see this day — was their victory in the 2014 Hobby Lobby Supreme Court case. President Barack Obama’s Affordable Care Act had mandated long overdue reform that contraception be covered by insurance at no extra cost to the employee. The owners of the craft supply chain Hobby Lobby sought to deny their employees this coverage, using their go-to claim that it violated their religious beliefs. Core to the plaintiffs’ case was the claim that the owners of Hobby Lobby believed that some kinds of contraception were “abortifacients.” This term was straight out of anti-abortion propagandist John Willke’s playbook. It suggested, with no grounding in medical fact, that birth control was tantamount to abortion. In a hotly contested 5-4 decision, the court ruled in favor of Hobby Lobby, opening the door to the erosion of all sorts of hard-won gains in the name of moral objection. Tellingly, the court’s majority wrote that the fact that birth control did not actually cause abortions was irrelevant in this context. For a violation of religious liberty to occur, the plaintiff must only believe that it could happen. Four of the five justices who ruled in Hobby Lobby’s favor had Federalist Society ties.

The Hobby Lobby case was a massive triumph for the radical right, underscoring the effectiveness of the mutually reinforcing strategies. The movement had effectively used abortion as a Trojan horse to move the goalpost, limit access to contraception, and enshrine disinformation into the legal canon. For them, it was icing on the cake that the victory undercut the ACA, a crowning achievement for the much-loathed Obama administration. They had effectively reversed one of the most significant national steps forward for gender equity in decades.

In the first week of May 2022, a draft decision penned by Justice Samuel Alito was leaked to the press laying bare the intention of the majority of the Supreme Court to overturn Roe v. Wade. Many legal experts warned immediately that the draft was written to not only eradicate the current federal protection to abortion access, but also to lay the legal groundwork to undo a whole host of other rights guaranteed through the 14th Amendment protecting privacy and equality for all individuals.

Alito repeated a common refrain from right-wing leaders and judges all the way back to Bork that the original interpretation of the 14th Amendment was just wrong. The ground is being set to review and revoke so many hard-won gains, from access to birth control to marriage quality. Six of the current occupants of the Supreme Court were nurtured and backed by the Federalist Society: Justices Alito, Clarence Thomas, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett, as well as Chief Justice John Roberts. The architects’ plan has finally come to fruition, but this is only the beginning, not the end, of their quest to make sure we’re all living in a world of their creation.

This article was adapted from the bestselling book “The Lie That Binds,” by Ilyse Hogue and Ellie Langford.

The post A “Woodstock” for Right-Wing Legal Activists Kicked Off the 40-Year Plot to Undo Roe v. Wade appeared first on The Intercept.

Coming back from lunch on November 22, the date of the defendants’ deadline to respond, the Mexican lawyer-diplomat found that the companies had done exactly as he expected, arguing that a 2005 law that the National Rifle Association considers one of its greatest legislative achievements, which grants “broad immunity” to gun companies in gun violence lawsuits, is not bound by borders. It extends everywhere, they argued, including Mexico. The companies’ message, as Celorio read it, was simple: “’We don’t care what we’re doing. We don’t care if others don’t like the way we’re doing it. We’re gonna continue to do it.’”

The “veil of impunity,” as Celorio called it, was expected. What did catch his attention, however, was a potential seepage of politics into what Mexico insists is an apolitical legal challenge. The manufacturers, holding companies, and distributors accused in Mexico’s 139-page complaint include Smith & Wesson, Barrett Firearms Manufacturing, Beretta U.S.A., Beretta Holding, Century International Arms, Colt’s Manufacturing Company, Glock, Glock GES.M.B.H., Strum, Ruger & Co., Witmer Public Safety Group, and Interstate Arms. In a joint filing urging the court to dismiss the suit, the firms representing the companies — among them one of the largest law firms in the world, Jones Day, which represented President Donald Trump in his efforts to overturn the 2020 election — argued that “at bottom, this case implicates a clash of national values.”

“Our reading is that they’re going to try to politicize this,” Celorio told The Intercept. “They’re already increasing the political cost to the judge to rule in favor of Mexico. They’re saying, ‘You’re an American. If you let this litigation pass, you don’t hold dear to your heart the American values.’”

“They’re saying, ‘You’re an American. If you let this litigation pass, you don’t hold dear to your heart the American values.’”

More than two years in the making, the story of Mexico’s lawsuit against U.S. gun companies is unfolding on multiple levels at once. The litigation itself tests whether legal protections inscribed in the Protection of Lawful Commerce in Arms Act, or PLCAA, which President Joe Biden urged Congress to repeal in his national strategy to prevent gun violence earlier this year, extends to foreign countries. Should the challenge succeed, it would deal a historic blow to U.S. gun manufacturers. With limited exceptions, PLCAA has provided a near-impermeable shield to the U.S.-based small arms industry. For the gun companies, the law represents a vital bulwark against potentially industry-ending lawsuits. For gun control advocates, who point to instances like the victims of the Aurora, Colorado, theater massacre who were ordered to pay $203,000 to an ammunition dealer after losing a lawsuit on PLCAA grounds, it is the epitome of a deeply American brand of gun company impunity.

The legal fight is also taking place against the backdrop of a dramatic historical moment in the U.S.-Mexico security relationship. In the year before and the year after PLCAA was passed, two key events took place. First, in 2004, Congress permitted a federal assault weapons ban in the U.S. to expire. Second, in 2006, the Mexican government announced the deployment of the military into the streets in a “war” on drug trafficking. The Bush administration threw its support behind the campaign with a multibillion-dollar security aid package known as the Mérida Initiative, beginning an era of unprecedentedly close binational collaboration in the drug war’s most violent front.

With the shifts in law to the north and the declaration of war to the south, the stream of military-grade weaponry flowing into Mexico, legally and illegally, became a surging river of iron. In the past decade and a half, Mexico has weathered its worst period of violence since its revolution more than a century ago, with more than 400,000 people killed and paramilitary-style criminal groups building U.S.-sourced weapons arsenals capable of inflicting significant damage on government forces. Each year, according to Mexico’s complaint, an estimated 500,000 U.S.-made firearms are illegally trafficked over the border into a country with just one legal gun shop, owned and operated by the army, and some of the strictest gun laws in the Western Hemisphere.

“We have at least 10 million guns in Mexico that shouldn’t be here because we don’t sell them in Mexico,” Celorio said. Criminal organizations, he added, “have a certain degree of impunity, not because Mexico doesn’t want to prosecute them, but because of their firepower.”

Mexican President Andrés Manuel López Obrador, popularly known as AMLO, came into office in 2018 vowing to undo the militarization of his predecessors. He declared an end to the drug war, replacing it with “abrazos, no balazos” — “hugs, not bullets” — a suite of social initiatives aimed at directing young people away from crime while rolling back the military’s presence in the streets. With violence still at record-high levels, some López Obrador critics say the president is naively ignoring a metastasized public safety threat and needlessly abandoning the progress made through years of joint security initiatives, while others point to the fact that the military’s role in the public security operations has in fact expanded under the current administration, particularly in the realm of immigration enforcement. The tenuous binational relationship came to a head in 2020, when U.S. authorities arrested, and subsequently released, Salvador Cienfuegos, the former head of the Mexican army, on drug trafficking charges. In response, an outraged López Obrador passed a law limiting U.S. Drug Enforcement Administration operations in Mexico. Last month, after Mexican foreign minister Marcelo Ebrard announced that the Mérida Initiative was “dead,” top Biden administration officials — including the heads of the departments of Justice, State, and Homeland Security — met with their Mexican counterparts to hammer out a new bilateral security framework.

“Both sides are kind of tailoring their messaging to what they want to pressure on and the message they want to project for their own public,” Stephanie Brewer, director for Mexico and Migrant Rights at the Washington Office on Latin America, told The Intercept. The Biden administration, Brewer argues, overwhelmingly approaches the binational relationship through the prism of stopping migration to the north. “This is the major challenge right now facing U.S.-Mexico security cooperation and relations more broadly: the disproportionate weight and also very counterproductive form and direction of U.S. immigration policies, border policies specifically.”

By focusing so much energy on migration, Brewer contends that progress on other key issues in the binational relationship, such as the steady flow of weapons south, has suffered. While the two countries’ new “Bicentennial Framework for Security, Public Health, and Safe Communities” does touch on arms trafficking, Brewer said, “there’s no revolutionary change in approach there.” Given the enormous power of the U.S. gun lobby and the protections in law granted to gun companies, Brewer is doubtful that the Mexican government’s legal challenge will bring about official change either. “The gun lawsuit is a very powerful and I think really relevant action,” she said. “But its ultimate impact might be symbolic rather than legal.”

Mexico’s legal complaint is careful to make clear that its targets are private entities engaged in allegedly negligent business practices — not the U.S. government nor the legitimacy of the Second Amendment. “It’s a tort law case,” Celorio said. Still, it is no secret that the litigation is one piece in a broader effort to reframe the country’s relationship to Washington on matters of violence and security. On November 22, the same day that the gun companies filed their responses, Ebrard appeared before the U.N. Security Council to present a proposal for an international strategy to combat small arms trafficking. The foreign minister explicitly connected the proposal to the lawsuit.

“The Mexican government would never try, attempt, or give a signal that we want a change in domestic law in the U.S. We respect that sovereignty,” Celorio said. “But we’re dying. We cannot wait until things happen. So that’s why we’re resorting to other actions.”

From El Paso to Black Thursday

The genesis of Mexico’s lawsuit was August 3, 2019, when a gunman walked into a Walmart busy with back-to-school shoppers in El Paso, Texas, and murdered 23 people while wounding 23 others.

Eight of the victims were Mexican nationals. Many of the others were Mexican American. The youngest victim was 2 years old. The oldest was 82. Not since the early 1900s, when posses of vigilantes and border lawmen lynched and murdered them by the hundreds, had people of Mexican descent in the Texas borderlands sustained such a bloody and targeted terror attack. Authorities said the alleged shooter, 21-year-old Patrick Wood Crusius, bought his GP WASR-10 semiautomatic rifle and 1,000 rounds of ammunition online, then drove all night from his home in Allen, Texas, with an explicit plan to murder Mexicans and repel the “Hispanic invasion of Texas.”

Facing 90 federal charges, including 45 for hate crimes, Crusius pleaded not guilty in the case. A trial date has not been set.

Celorio was in Mexico City when the news broke, having returned from a five-year posting at Mexico’s embassy in Washington, D.C., where he was section head of Hispanic and Migration Affairs. Inside the AMLO government, career officials worried that El Paso could be the beginning of something even worse. “August 2019, remember where we were in terms of white supremacism and white nationalism,” Celorio said. “We were thinking that there were going to be copycats because he basically called on others to grab their own weapons and stop the invasion.”

Ebrard tasked Celorio with finding a way to hold the shooter accountable and prevent further bloodshed. He encouraged his legal adviser to be “inventive,” in Celorio’s words, and “courageous.” Celorio traveled to El Paso and spent days meeting with prosecutors, reviewing video of the killings, and speaking with survivors. He contacted Jonathan Lowy, chief counsel and vice president of legal at Brady Legal, the litigation arm of the Brady Campaign, the country’s most prominent gun control organization. Celorio also spoke with Steve Shadowen, a Texas-based civil rights attorney who he had gotten to know through litigation involving Border Patrol agents fatally shooting Mexicans across the border. Both Lowy and Shadowen are now co-counsels in the suit against the U.S. gun companies.

Together, the lawyers discussed what it was about El Paso that Mexico hoped to address. For Celorio, part of the motivation was rooted in “the fact that someone inspired by white nationalism” could so easily acquire the means to bring their murderous fantasies to life. Early ideas for a legal response included suing Crusius, Walmart, or the city of El Paso. The problem, Celorio explained, was legal standing. “The government of Mexico wasn’t there,” he said. “You can sue representing all Mexicans, but it’s difficult.”

Two and half months after the El Paso attack, events in the Mexican state of Sinaloa prompted the government to widen its approach to the gun issue.

On October 17, 2019, Mexican security forces, reportedly operating under heavy Trump administration pressure, arrested Ovidio Guzmán López, son of the famed Joaquin “El Chapo” Loera Guzmán, in the Sinaloan capital of Culiacán for extradition to the U.S. on drug trafficking charges.

Black Thursday’s binational implications were stark: a criminal network whose financial power is derived from U.S. customers used U.S.-made weapons to terrorize a state capital and thwart a U.S.-based extradition effort.

What happened next would go down in local memory as “Jueves Negro” — Black Thursday. Hundreds of gunmen, including some who were drawn by social media calls for paid volunteers and then outfitted with guns, mobilized a blindingly swift counteroffensive. They rolled into the capital in armor-plated vehicles mounted with .50 caliber machine guns. They cut off entry and exit points into the city, staged a successful jailbreak, burned vehicles and homes, then surrounded a housing complex for the families of Mexican soldiers, effectively taking the wives and children inside hostage while they demanded Guzmán’s release. Video of the siege showed parents hiding behind cars with small children while gunfire rang out, and civilians evacuated businesses and sheltered in restaurant kitchens. Several weapons manufactured by the companies that would become defendants in Mexico’s gun lawsuit were observed at the scene, including Colt’s AR-15 platforms, Beretta and Glock handguns, and a Barrett M82-series anti-material sniper rifle, a behemoth weapon designed to disable and destroy battlefield equipment at long distances. By the day’s end, the Mexican military announced that it was terminating operations in the city, and Guzmán was free. Fourteen people were dead. The citizens of Culiacán were left to pick up the pieces after the traumatic ordeal.

Black Thursday’s binational implications were stark: a criminal network whose financial power is derived from U.S. customers used U.S.-made weapons to terrorize a state capital and thwart a U.S.-based extradition effort. Other touchstone events soon followed. Less than three weeks later, on November 4, 2019, a three-vehicle convoy was ambushed on a desert highway in the Mexican state of Sonora. The attackers disabled the vehicles with a deluge of gunfire, then set them on fire. The victims who died, three women and six children, were members of a Mormon community that has lived in the area for years. They were all dual U.S.-Mexican citizens, making the massacre a kind of grim reversal of the attack in El Paso, with Americans now gunned down on Mexican soil. Eight months later, the spectacle of extraordinary violence landed on the very doorstep of the country’s most powerful officials. As dawn broke on June 26, 2020, an estimated 50 gunmen carrying assault rifles, .50 caliber sniper rifles, and grenade launchers attacked the head of Mexico City’s police, Omar García Harfuch, while he was driven through the capital. Harfuch’s vehicle was shot more than 400 times. Both of his bodyguards were killed. Harfuch was shot three times but survived.

Together, the events in Sinaloa, Sonora, and Mexico City crystalized a realization for Celorio and his colleagues: The phenomenon Mexico hoped to address was bigger than El Paso. “The common factor in all of them was the firepower,” he said. What happened in Texas reflected what Mexico has been living through for years, with the key difference being that in Mexico, the guns fueling the violence are the illegal product of massive and illicit cross-border trade.

Willfully Blind

With Ebrard’s support, Celorio began coordinating a legal strategy that would target the flow at its source. His team researched the contours of gun violence and the illicit arms trade in Mexico. They found that between 70 to 90 percent of all guns recovered at crime scenes in the country are U.S.-made, with firearms produced by six manufacturers — Smith & Wesson, Beretta, Century Arms, Colt, Glock, and Ruger — turning up most often. While previous government estimates put the number of firearms illegally trafficked into Mexico annually at around 200,000, the complaint Mexico filed in August alleged that “between 342,000 and 597,000” of the companies’ guns are trafficked into the country every year.

The legal team observed what drug war trackers have long known, that in an illicit industry that generates an estimated $250 million annually, Barrett’s powerful .50 caliber sniper rifles stand out as both a tactical asset and a status symbol. In 2016, the government noted, gunmen in the state of Michoacán used a Barrett to shoot down a helicopter belonging to the state attorney general, killing the pilot and three officers on board. “Barrett knows that its dealers sell these military guns to traffickers, often in bulk, to arm the cartels that use them to battle Mexican military and police who are trying to stop the drug trade,” the government alleged. According to the complaint, Mexican soldiers recovered 227 of the company’s .50 caliber rifles from 2010 to 2018.

Barrett wasn’t alone in appealing to organized crime, though. With its patent on the hugely popular AR-15, Colt’s guns turned up at more crime scenes than any other manufacturer’s weapons, Mexico told the court, with more than 2,000 weapons recovered between 2006 and 2018. “Colt does not even try to hide its pandering to the criminal market in Mexico,” the government complained, pointing to three .38 caliber pistols — “El Jefe,” “El Grito,” and the “Emiliano Zapata 1911” — as explicitly marketed to Mexican buyers. A Zapata pistol, named after the Mexican revolutionary and inscribed with the words, “It is better to die standing than to live on your knees,” was used to assassinate Mexican investigative journalist Miroslava Breach Velducea in 2017, adding another name to the grim tally that makes Mexico the most world’s most dangerous country for journalists.

Mexico couched its argument for damages in history, describing how the 2004 expiration of the assault weapons ban in the U.S. altered life for the worse. Prior to the expiration, from 1999 to 2004, murders in the country were on the decline, the complaint said. Once the ban expired, the defendants ramped up their production and distribution of military-grade weapons. “Border-state gun dealers now sell twice as many guns as dealers in other areas of the country,” the complaint said. According to the government, in the years immediately following the expiration, illegal gun ownership per capita in Mexico increased tenfold and the homicide rate increased by 45 percent: “No nation other than Mexico experienced a similar homicide surge during this period.” In 2003, there were fewer than 2,500 homicides committed with a gun in Mexico. By 2019, there were more than 23,000.

“The magnitude of these deaths is so extensive that, beginning in 2005, it significantly affected the life expectancy of all Mexicans,” the government said, noting that while the life expectancy in the country increased by approximately six months from 2000 to 2005, “it decreased by about the same amount from 2005 to 2010.” Today, Mexico is home to the third most gun-related deaths in the world, and even though the country has less than half of the population of the U.S., a Mexican is more likely to be killed with a U.S.-made gun than a U.S. citizen. Murder is the leading cause of death among Mexican teenagers and young adults, the complaint said, and last year more than 40 percent of Mexicans under the age of 18 reported frequently seeing or hearing gunfire in their day-to-day lives. Citing the Institute for Economics and Peace, an international think tank, the government said that the financial impact of the violence in 2019 alone was $238 billion, more than 20 percent of Mexico’s gross domestic product.

At the core of Mexico’s claim is an argument that the gun companies could make any number of changes in their business practices to help stem the violence but that in the interest of making money, they deliberately chose not to.

At the core of Mexico’s claim is an argument that the gun companies could make any number of changes in their business practices to help stem the violence — examples the government cited included “limiting sales of multiple guns,” “mandatory background checks for secondary gun sales,” “curbs on straw purchasers” (individuals who are paid to purchase weapons for a third-party buyer), and “a restriction on assault weapons sales” — but that in the interest of making money, they deliberately chose not to. As part of its legal challenge, Mexico is seeking internal records detailing what measurers the gun manufacturers are currently taking to limit the flow of their products into criminal hands. If successful, the release of such information could offer a rare window into the gun industry’s mechanisms for tracing products that turn up at crime scenes — thanks to the 2003 Tiahrt Amendment, another NRA lobbying achievement, those records have been shielded from public review for nearly two decades.

As for PLCAA, Mexico argues that the law is a nonissue in the case. The Supreme Court “has repeatedly held that where conduct in one nation causes injury in another the ‘default rule for tort cases’ is that ‘the local law of the state where the injury occurred determines the rights and liabilities of the parties,’” the government said in its complaint. When “U.S.-based corporations cause injury abroad to foreign sovereigns, the U.S. Constitution and statutes allow those sovereigns to sue for ‘violations of their own laws and to invoke federal diversity jurisdiction as a basis for proceeding in U.S. courts.’” In other words, because the harms happened in Mexico, Mexican law applies. Rendering PLCAA even more irrelevant, Mexico argued, was the fact that the legislation was clearly passed to address alleged harms on U.S. soil alone: “Every aspect of PLCAA confirms that the U.S. Congress enacted that statute with only U.S. domestic concerns in mind.”

While the U.S. is free to chart its own course in balancing “the financial interests of the gun industry and the rights of victims within its jurisdiction,” the Mexican government argued, Mexico has the right to do the same: “Just as defendants may not dump toxic waste or other pollutants to poison Mexicans across the border, they may not send their weapons of war into the hands of the cartels, causing repeated and grievous harm, and then claim immunity from accountability.” It is not as though the companies “live on another planet in which they are sheltered from news of their corrupt dealers, the trafficking of their guns into Mexico, and the devastating damage suffered by the government and its people,” the complaint said. “They simply choose to act as if they are blind — willfully blind — to those facts.”

By increasing the production of military-style assault weapons and high-capacity magazines, marketing to criminals, and using distribution networks known to feed into their armories, the gun manufacturers have made a deliberate choice to “maintain their supply chain to the cartels,” Mexico argued. The companies have “refused calls for reform because, from the perspective of their bottom lines, their distribution systems are huge successes,” the government alleged. “Their supply of guns to the criminal market in Mexico is a feature, not a bug.”

Pandora’s Box

A month after Mexico filed suit, Steve Shadowen, the Texas-based co-counsel, was feeling confident. “This case is rock solid,” Shadowen told The Intercept in September.

While outside legal analysts have described Mexico’s lawsuit as a long shot, Shadowen, a tort law expert, believes the defendants have the scope of PLCAA all wrong. “Yes, the U.S. has a statute, OK, but Mexico does not have that statute. Instead, it has tort law,” he said. “We will prove that the tort law of Mexico says that Mexico should be able to recover here. This PLCAA statute is an outlier in the world, generally, and it certainly does not reflect the social policy or the law of Mexico.”

The veteran attorney predicted that his team would have “a big battle with the defendants” over the legislation. The 58-page joint motion for dismissal that the gun companies filed last month indicates he was right.

“Unable to control cartel violence within its own borders,” Mexico is attempting to shift the blame, the companies argued. “The Mexican government wants firearms, all firearms, out of Mexico,” they said. “Taking the necessary steps — improving border security, rooting out corruption, and adequately funding police and military, for starters — would require time, resources, and the political will to take responsibility for a massive social problem.” Instead of taking responsibility, Mexico is trying to circumvent an ongoing diplomatic dispute by appealing to the courts, the companies said. “By seeking to bankrupt U.S. gun makers, this gambit not only threatens America’s constitutional freedoms, but also the careful balance of firearms regulations set by Congress and state legislatures,” they argued. “This Court need not play along.”

To prove its case, Mexico relied on an “attenuated chain” of events, the companies said, that ran from production by the gun manufacturers, to the wholesaler, to individual gun stores, to straw purchasers, to cartels, to violence in the streets, to damages incurred by the government. The defendants argued that the Mexican government did not and could not prove all those steps, but even if it could, the defendants would still be shielded from liability. “In 2005, Congress enacted the Protection of Lawful Commerce in Arms Act to prohibit precisely the type of claims asserted in this case,” they said. And even if the companies did know that some weapons would be sold to dealers who would then sell them to criminals, they were still be protected: “After all, car companies know their cars will be used for reckless driving, knife companies know their knives will be used to hurt others, and beer companies know that minors drink, but none of this knowledge makes those companies liable for resulting harms.”

If Mexico prevailed, the companies argued, it would open a Pandora’s box of legal challenges, blowing a “gaping hole” in the protections PLCAA was designed to provide.

Mexico’s “real hope,” the companies alleged, “appears to be convincing the Court that the PLCAA does not apply at all to protect U.S. firearms companies against foreign plaintiffs.” The claim had “no merit,” they said: “By its plain terms, the PLCAA applies to all suits brought in U.S. courts against U.S. defendants for conduct in the U.S., regardless of where the alleged harms occurred.” If Mexico prevailed, the companies argued, it would open a Pandora’s box of legal challenges, blowing a “gaping hole” in the protections PLCAA was designed to provide.

“The history of firearms law in the United States is a history of legislation and regulation continually calibrated to protect Americans’ constitutional rights while also protecting people from a potentially dangerous product; the Court should not allow that incremental evolution to be upended by a lawsuit filed by a foreign power,” they said. “Under bedrock principles of international law, a foreign nation cannot use its own law to reach across borders and impose liability based on conduct in another country that was lawful when it occurred there. By trying to do so, Mexico is effectively seeking to impose its own gun control policies on U.S. firearms companies in disregard of the choices made by domestic legislatures and embedded in the federal and many state constitutions.”

Political Animals

The gun company immunity that Mexico is contending with can be traced to a man with deep ties to the border. Born in 1913 and raised in Laredo, Texas, Harlon Carter followed his father into the U.S. Border Patrol, eventually becoming chief and overseeing “Operation Wetback,” one of the largest deportation operations in U.S. history. A lifelong pistol shooter, Carter joined the NRA’s board of directors in 1951. At the time, the NRA’s primary mission was marksmanship education and supporting hunting and sport shooting. Carter would change all of that.

By 1965, Carter was president of the NRA. Ten years later, having secured a lifetime position on the organization’s executive council, he became the NRA’s chief lobbyist. By that point, a contentious rift had developed among members who supported the group’s original mission and those who believed it should shift focus to unrestrained weapons access and militant gun control opposition. Carter was an ardent supporter of the latter. “We can win it on a simple concept,” he wrote in a letter to NRA leadership. “No compromise. No gun legislation.”

In 1977, Carter and his supporters made their move, seizing control of the NRA at a dramatic annual meeting in Ohio. The former Border Patrol chief’s militancy became the ethos of the NRA. It wasn’t until 1981 that his personal relationship to firearms was fully illuminated, when the New York Times reported that the NRA pioneer was convicted of murdering a Mexican boy 50 years prior. The victim was 15-year-old Ramón Casiano. In 1931, a 17-year-old Carter confronted Casiano and his friends while carrying a shotgun. Carter’s mother suspected the boys might have information about the theft of the family’s car. Carter ordered them to come with him for questioning. The boys refused. Casiano pulled out a pocketknife. Carter asked Casiano if he believed he wouldn’t shoot. Casiano said he wouldn’t. Carter pulled the trigger. Though he claimed self-defense, Carter was convicted of murder and sentenced to three years. The case was vacated two years later, after a court ruled that the jury had been given improper instructions.

PLCAA was arguably LaPierre’s greatest tribute to Carter’s legacy, a historic piece of legislation resulting from years of heavy lobbying.

Carter died in 1991, but his legacy lived on. That same year, Wayne LaPierre assumed the role of executive vice president of the NRA. LaPierre was firmly in Carter’s camp during the NRA’s 1977 leadership coup and later took over his old job as the organization’s chief lobbyist. Two days after Carter’s passing, LaPierre eulogized his predecessor as “our champion and fiercest warrior.” PLCAA was arguably LaPierre’s greatest tribute to Carter’s legacy, a historic piece of legislation resulting from years of heavy lobbying. LaPierre, by then the NRA’s chief executive, told the New York Times that it was the most significant victory for the gun lobby in nearly 50 years.

In the mid-2000s, as violence in Mexico surged, LaPierre developed a punchy line for deflecting criticisms that U.S. gun policy might have some relationship to the violence, particularly when those criticisms suggested a reinstatement of an assault weapons ban: “Our rights are not what’s wrong.”

Arturo Sarukhán was the Mexican ambassador to the U.S. at the time, serving under then-President Felipe Calderón. “When I arrived as ambassador, I sent Wayne LaPierre a letter saying, ‘Look, I’m not here to challenge the Second Amendment. That’s a sovereign decision of the American people. It’s in the Constitution in its amendments, but what I am convinced of is that the Second Amendment wasn’t written to allow Americans to buy armor piercing ammo to hunt deer or to illicitly traffic guns across an international border. So why don’t we talk?’” Sarukhán recalled in an interview with The Intercept. LaPierre never replied. “We called this office three times to follow up on the letter,” Sarukhán said. “They didn’t even pick up the call.”

In 2012, a paper published by researchers at New York University and the University of Massachusetts Amherst found that the expiration of the assault weapons ban contributed to “substantial increases in homicides” in Mexican border communities. The following year, the University of San Diego’s Trans-Border Institute estimated that without gun trafficking to Mexico, roughly 47 percent of federally licensed firearms dealers would “cease to exist.” For Sarukhán, the relationship between the weapons, the violence, and the money was obvious. “The sunset clause of the assault weapons ban coincides with the exponential growth of seizures of assault weapons and semi-automatic weapons in Mexico,” he said. “There’s a direct correlation.” Doing something about the issue, then and now, was another matter. “We all know that there won’t be an assault weapons ban anytime soon in Washington,” Sarukhán said. The former Mexican ambassador is likely right. Though Biden renewed his calls for an assault weapons ban in the spring, the prospect of Congress passing significant gun control legislation is considered unlikely.

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Sarukhán is a staunch critic of the AMLO administration’s security policies. “López Obrador’s ‘hugs and bullets’ are creating more homicides than Calderón’s militarization of the war against drugs,” he said. Sarukhán argues that by pushing away U.S. involvement in shared problems, Mexico only hurts itself. Still, his criticisms of the administration’s broader posture aside, Sarukhán supports the government’s lawsuit. He pursued a similar project as ambassador, he said, albeit focused on gun shops rather manufacturers, but ran out of time before the changing of administrations. “I think the Mexican government does right in doing this,” he said. “It’s an important shot across the bow.”

While the national gun conversation tends to focus on issues within U.S. borders, a report to Congress in February revealed significant holes in the government’s system for stopping the flow of weapons south. The Government Accountability Office told lawmakers that the top U.S. federal agencies tasked with stopping illicit cross-border trafficking — the Bureau of Alcohol, Tobacco, Firearms, and Explosives, or ATF; Immigration and Customs Enforcement’s Homeland Security Investigations; and the State Department — routinely fail to communicate with one another or monitor the efficacy of their efforts.

“None of the agencies have fully developed performance measures for their efforts to disrupt firearms trafficking to Mexico, and thus they have limited ability to assess progress,” the report said.

Keith Heinzerling had an up-close look at U.S. efforts to curb the flow of guns south, serving two tours as the ATF’s country attaché in Mexico before retiring in 2016. While he pushed back on some of the depictions of the impact U.S. gun policy has had on the country — Heinzerling believes the expiration of the assault weapons ban had little relationship to violence, for example, and he suspects Mexico’s lawsuit is little more than “smoke and mirrors” — the retired ATF agent acknowledged that there are indeed major issues impeding the interdiction of southbound weapons.

In Mexico, U.S. federal agents lack the sweeping authorities they enjoy stateside and as a result are encouraged to work very closely with ostensibly vetted partners. “When you work hand in hand, you’re worried about issues of corruption and information maybe going the wrong direction,” Heinzerling told The Intercept. As an example, he pointed to the case of Genaro García Luna, the former Mexican public security chief once considered Washington’s greatest drug war ally who is now facing federal drug trafficking charges in New York.

Some of the biggest problems, however, are not on the border, Heinzerling argued, but in Washington. In a move straight out of the Harlon Carter playbook, the NRA has waged a multidecade campaign wherever possible to undermine the ATF, which LaPierre once referred to as “jack-booted government thugs.” As a byproduct of those efforts, the agency hasn’t had a confirmed director since 2013. Biden’s pick to head the organization, David Chipman, a 25-year ATF veteran who worked as policy adviser for gun control groups, faced heated Republican pushback in a Senate hearing earlier this year, with Iowa Sen. Charles Grassley equating his appointment to putting “antifa in charge of the Portland Police Department.” According to Heinzerling, the absence of leadership has had a devastating impact on morale that trickles into important missions like cross-border weapons trafficking.

“It’s a political animal — the NRA,” he said. “All the people in ATF want to do the right thing, believe me, but we can’t even get a director confirmed because it’s all politics. It’s insane.”

The Never-Ending Arms Race

Ieva Jusionyte, an associate professor of international security and anthropology at Brown University, has spent years studying gun trafficking to Mexico at the ground level, spending her days with Mexican purchasers of illegal U.S.-made weapons, observing Mexican government gun buyback programs in action, and interviewing rank-and-file members of Mexican organized crime for a forthcoming book.

Attempts to understand the U.S. and Mexico strictly as two separate countries with their own separate laws obscures the ways in which those laws inform conditions on the ground, she argued. “This is a regional political economy of violence where different laws on both sides create opportunities for various criminal activities that increase violence,” Jusionyte told The Intercept. Rising violence, she added, creates economic opportunities for U.S. gun companies. “Insecurity in Latin America — in Central America, in Mexico — is a big market for U.S. gunmakers because they equip both sides,” Jusionyte said. “They sell the guns to the police forces and security forces and then they allow their guns to illegally supply those organized crime groups that security forces then fight against. So it’s a big win for gunmakers.”

Jusionyte’s observation points to one of the great ironies of Mexico’s lawsuit: While one arm of the Mexican government is supposedly attempting to bankrupt the U.S. gun industry, another is feeding it millions of dollars a year.

“This is a regional political economy of violence where different laws on both sides create opportunities for various criminal activities that increase violence.”

Over the past decade and half, the Mexican military has become one of the biggest government purchasers of U.S.-made weapons in the world. From 2015 and 2017 alone, legal U.S. guns and ammo exports to Mexico surged to nearly $123 million, more than a dozen times what it was from 2002 to 2004, making the Mexican military the largest Latin American buyer of U.S.-made arms by far. As sales have skyrocketed, some U.S. lawmakers have grown increasingly concerned at the repeated evidence of U.S.-made guns flowing to Mexican security forces with abhorrent human rights records. Scores of Colt rifles, for example, were sent to municipal police in the city of Iguala both before and after the police there were implicated in the 2014 disappearance of 43 college students, one of the most infamous crimes in Mexican history.

The effect Mexico’s lawsuit might have on the multimillion-dollar exchanges between the military and U.S. gun companies remains to be seen. Three of the companies currently being sued by Mexico —  Colt, Glock, and Barrett — have sold weapons to the Mexican military in the past. So far, Celorio said, his office has received “no pushback at all” from its military colleagues.

Despite its stated commitment to demilitarizing Mexico, the AMLO administration is currently presiding over the largest deployment of troops in the streets in recent history. The continued reliance on the military in public security, and in particular for U.S.-backed migration crackdowns, has drawn fierce criticism from human rights advocates. Celorio is attuned to the critiques. To draw down the military’s presence in the streets, he argued, “the criminal gangs, their firepower has to decrease.”

“There’s a spiral of violence that is escalating because of the illicit traffic of guns,” Celorio said. “We always talk about the wholesale of guns, the big shipments, and how Saudi Arabia shouldn’t divert their weapons to Yemen,” he said. “But what about what is happening in the stores in Laredo?”

Celorio said those who might doubt the sincerity of Mexico’s current efforts are mistaken. “We’re doing this for real,” he said. The litigation, he argued, is evidence of a changing Mexico. “It’s a Mexico that believes in itself, saying, ‘We’re no more, we’re no less than any other country, but in the equality of rights, we’re Mexico, and if we need to defend ourselves, we’ll do it,’” he said. “That’s a Mexico that is transforming.”

The post Inside Mexico’s Historic Lawsuit Targeting U.S. Gun Companies appeared first on The Intercept.

Two weeks ago, Politico obtained a leaked draft of the Supreme Court decision to overturn Roe v. Wade, the nearly 50-year-old ruling that acknowledged the constitutional right to abortion. Although this is the most egregious attack on reproductive rights, it only follows the anti-abortion momentum that has been building for years around the country. This week on Intercepted, Intercept investigative reporter Jordan Smith discusses the aggressive, irrational, and dangerous Supreme Court decision to overturn Roe v. Wade. Smith is joined by Melissa Murray, the Frederick I. and Grace Stokes Professor of Law at New York University and co-host of “Strict Scrutiny,” a podcast about the Supreme Court. Smith and Murray talk through the draft decision, its implications, and the future of reproductive rights.

[Intro music.]

Jordan Smith: I was a 19-year-old sophomore at the University of Maryland when I found out I was pregnant. And I freaked out. I did not want to be pregnant.

I knew I needed an abortion, but I didn’t have the money.

I gathered up a bunch of change and called my mom from a pay phone. And she didn’t miss a beat when I told her I was pregnant. “No, you’re not,” she said — and sent me the money that day.

It was 1991, nearly 20 years after the Roe v. Wade decision changed abortion rights in the U.S. For me, once I had the money, the access was easy. I went on with my life, and I have never regretted my decision. Abortion was the reason I was able to stay in school, go on to graduate school, and develop my career.

But while I had a relatively easy time exercising the right conferred by Roe, that is far from a universal experience.

For many, Roe was always just a promise on paper. And for decades, those against reproductive freedom have worked with their conservative, elected allies to make abortion all but inaccessible for millions of people.

I’ve watched this happen over the nearly two decades that I’ve covered assaults on reproductive health access. The burden has fallen disproportionately on people of color, those with low incomes, those living in more rural areas of the country, young people, immigrants, and LGBTQ+ people.

And now… the biggest attack on abortions rights is on the horizon.

[Intercepted theme music.]

Jeremy Scahill: This is Intercepted.

JS: I’m Jordan Smith, a senior reporter with The Intercept.

Two weeks ago, Politico obtained a leaked draft of the Supreme Court’s decision to overturn Roe v. Wade.

The opinion, written by Justice Samuel Alito, is irrational, incredibly aggressive, and extremely dangerous for the future of reproductive freedom. Right now, that future looks bleak.

So joining me today to talk through the draft decision, its implications, and beyond is Melissa Murray, the Frederick I. and Grace Stokes Professor of Law at New York University, and a co-host of one of my favorite podcasts about the Supreme Court, Strict Scrutiny.

Professor Murray, thank you for being here with us.

Professor Melissa Murray: Thanks for having me.

JS: I’ve been reporting on reproductive health access and abortion rights since about 2003, mostly in Texas. And so I’ve seen up close the relatively long and certainly consequential trajectory that puts us in this moment. And I think that’s why I’m not surprised that we’re here. 

But, I was, nonetheless shocked by the leaked Alito opinion. And not necessarily the bottom line — [laughs] which was what I expected. But like, the shrieking, aggressive tone I found really unnerving, as well as the way in which he deploys some kind of wobbly facts and logic to get to his bottom line. 

And then, beyond that, I was pretty startled by the breadth of what he’s laying out here — in other words, that this isn’t just about abortion. 

So before we get into the thick of all that, I think it’s probably worth backing up for just a second to talk about the case that has brought us to this moment, Dobbs v. Jackson Women’s Health Organization. So can you maybe just tell us the basics about the Dobbs case and how we’ve wound up where we are?

MM: Sure. So Dobbs is a challenge to Mississippi HB 1510, which is a law that prohibits abortion at 15 weeks of gestation, well in advance of what is known as viability, which is a marker at which the fetus can survive outside of the womb, and typically it is marked at around 23 or 24 weeks of pregnancy. So a 15-week ban is very much ahead of where the viability line is. 

Viability is really important in the court’s abortion jurisprudence because, despite the limitations and restrictions of a court has allowed on abortion rights, it has remained steadfast that Roe v. Wade, that 1973 opinion that announced the right of a woman in consultation with her physician to choose an abortion, they’ve been very steadfast that the right to an abortion includes the right to an abortion before viability without any bans. So it prevents the state from banning abortion before viability. And so that’s critically important in why viability is such an important marker. 

Obviously a law that restricts abortion, which bans abortion in advance of viability, runs afoul of Roe v. Wade. But interestingly, when Mississippi was defending its law, it was initially enjoined by the district court in a really amazing opinion by Judge Carlton Reeves, who is a district court judge in the Southern District of Mississippi. In that opinion, he enjoined the law on the grounds that it flagrantly violates existing Supreme Court precedent. 

When Mississippi challenged that all the way to the Supreme Court — they lost at every lower court because the law is plainly unconstitutional — when they filed their appeal at the Supreme Court, at first, their request of the court was relatively modest. So this was in 2019. And they just asked the court to rethink whether viability was a salient marker in the court’s jurisprudence, if that continued to be the case. And they emphasized that this is not a big, monumental, cataclysmic kind of case; it was not going to completely reorient abortion jurisprudence. They were asking for some guidance on a very specific question — a tinkering at the edges kind of question. 

Fast forward to 2020. In September of 2020, by the time the court has announced that it’s going to take up this challenge, Ruth Bader Ginsburg has passed away, and she has been replaced on the Supreme Court by Amy Coney Barrett, a justice, who I think it’s fair to say, was genetically modified in a lab for this moment. [Laughs.]

JS: [Laughs.]

MM: She’s a staunch conservative, raised in the conservative legal movement. She, in some of her writings, and indeed, some of her personal dealings has expressed some skepticism of abortion rights, I think is a generous way to put it. And she’s now seated where Ruth Bader Ginsburg once sat, and Ginsburg, of course, was one of the most steadfast and stalwart defenders of abortion rights on the court. 

So it’s a very different court, we’ve gone from a 5-4 majority to a 6-3 conservative supermajority. And not surprisingly, that change in personnel also prompts a change in Mississippi’s posture in this litigation. So rather than focusing on a kind of incremental change, or a very minor question, when Mississippi finally filed its initial briefs before the court, in this case, in the fall of 2021, its requests are much more assertive. So instead of telling the court like: This is really modest kind of thing, tell us a little bit more about viability, they just sort of go balls to the wall and say: We want you to overturn Roe v. Wade and Planned Parenthood v. Casey, the two pillars of the courts, abortion jurisprudence.

And so that’s where we found ourselves in December of 2021, when the court took up oral arguments in this case, and I think was very clear from oral arguments that there were five justices who were skeptical, if not outright hostile, to the prospect of retaining Roe v. Wade as stare decisis, that principle of the Anglo-American legal tradition that says that settled decisions are to be followed, regardless of the personal predispositions of the judges reviewing those precedents. Despite stare decisis, it seemed like there were five justices on the court who were ready and are able to overrule Roe v. Wade. So that’s where we are.

JS: Right. Right. Burn it down. [Laughs.] Which, of course, brings us to Alito’s opinion. When I read it again, not surprised but kind of shocked because I was like: Bonkers! And deeply troubled, right?

So, I’m just curious: What was your initial reaction when you saw it?

MM: So I wasn’t shocked that there was an opinion overruling Roe v. Wade. I was actually shocked that Amy Coney Barrett hadn’t written it.

JS: Right. [Laughs.] Because like: Woman on the court! This is why you’re here. 

MM: Well, it’s not me saying this. Back in 2017, when they were sort of gearing up for a wave of nominations, including the anticipated retirement of Justice Kennedy, Ramesh Ponnuru, who is a conservative pundit, argued that President Trump — and this was in an op-ed that was published widely — President Trump should select Amy Coney Barrett, and one of the reasons he identified for her selection was that it would look really, really terrible for a very conservative court composed of four white men and one Black man to overrule Roe v. Wade. It’d be much better if a woman could put her feminine touch on it. 

So that surprised me. It surprised me that given the moment, given this opportunity to overrule this long embattled precedent, that she was not the one to sort of finish the job. But Justice Alito is a worthy second runner-up to this. [Laughs.]

JS: [Laughs.]

MM: He’s long expressed skepticism — if not hostility — for abortion rights. He’s always been very clear about it. And so, if it wasn’t Justice Barrett, then Justice Alito was a pretty sure second, and he did not disappoint.

JS: No! No, he did not, did he? No, he did not. 

MM: He did not. 

JS: So let’s talk a little about what he has in here. And one of the obvious things is that he writes that the word “abortion” isn’t in the constitution. So the right doesn’t exist. 

MM: You know, what also is not in the Constitution?

JS: What? 

MM: Women!

JS: Yes, that’s true. That’s true. Yeah. Yeah. We’re not there, either. [Laughs.]

MM: OK. So it all checks out. All tracks.

JS: It does. It does, doesn’t it? But, well, OK, fine, true: abortion, not in there. But the read he has seems to just elide completely over the protections guaranteed by the Ninth Amendment, right? And then articulated in the 14th Amendment, which we know is a Reconstruction-era addition, right, meant to kind of ensure some individual liberty, including this right to decide about family things like weather, and with whom to have a family. So I’m curious what you think of his analysis. And also, you’ve spoken really great about this. And I’m wondering if you could just sort of unpack the basis for and kind of the promise of the 14th amendment? 

MM: Sure.

So let me first explain his logic, and then I’ll explain why I think it’s incorrect and incoherent. 

JS: Please. 

MM: So he argues that there are two major problems with a right to abortion. And the first is that such a right is not specifically enumerated in the text of the Constitution as opposed to protections like freedom of speech or religious freedom, all of which he says, are very specifically enumerated in the Constitution. And that’s kind of true, but kind of not. There are aspects of the First Amendment that we have come to accept as part of the First Amendment’s guarantees that are not specifically enumerated; they’re sort of implied from what is enumerated. So you know, that too, is, I think, a little bonkers.

But he sort of sets up this juxtaposition between these unenumerated and therefore problematic rights versus text-based rights. And he talks specifically about these Bill of Rights amendments. And of course, anyone who’s seen Schoolhouse Rock! and has been sentient for much of middle school civics knows that the Bill of Rights is a series of 10 amendments. Justice Alito focuses only on eight and he needs to because he stopped short, as you say, of the Ninth Amendment, which says that, just because we have specifically enumerated certain rights here does not suggest or disparage the prospect of additional rights that might be implied and are not specifically enumerated. 

So the Ninth Amendment kind of gives waste to his argument, because the Ninth Amendment specifically contemplates the prospect of rights that are not enumerated, but are nonetheless protected. And he doesn’t address that. Nor could he, I think it’s a real problem with his analysis. But it seems like the framers of the Constitution left a kind of failsafe there, like a safeguard, if you will, for situations like this, where people are saying, well: Here’s what’s listed, that’s all there is. It’s like: No, that’s not all there is. There’s this other stuff that can be implied from the premise of these existing amendments and also the sort of spirit of the Constitution. 

That brings us to the 14th Amendment and the Reconstruction amendments more generally. As you suggest, the 14th Amendment is part of this trio of constitutional amendments that are passed in the wake of the American Civil War, and they’re passed for a specific purpose. They are passed to abolish the institution of slavery, that’s the 13th Amendment. They are passed to enfranchise African American men, so to make newly freed, formerly enslaved persons, members of the body politic and the political community. That’s the 15th Amendment. 

Then there is also these provisions that are intended to specifically repudiate certain aspects of slavery, including the fact that enslaved persons had no right to marry, they had no right to their families, to any kind of family integrity, their children could be sold away from them. And perhaps most importantly, they had no control over their bodies, whether it was for labor or for sexual labor, right? Their bodies could be conscripted in any way their owners found permissible and useful. 

And so this trio of amendments was intended to repudiate all of this, to formally abolish the institution, to enfranchise African-American men and to repudiate these aspects of slavery. And I’m emphasizing this because the second part of Justice Alito is argument as to why the abortion right is problematic, it’s not simply that it is unenumerated and not found in the text of the Constitution. It is also that it is not deeply rooted in the traditions of our country and in the history of our country. And as evidence of that, he cites the fact that there have been criminal prohibitions on abortion, which is true but there also have been lots of prohibitions on lots of things that I think we now would say should not have been prohibited. 

And, again, I come back to this idea that the Reconstruction amendments were intended to repudiate the vestiges of slavery, an institution that was so deeply embedded in the foundations of the country that you actually needed a cataclysmic event like amending the Constitution to root it out. 

So I’m saying all of this to explain: I don’t think he is right to say that this is an unenumerated rights. I think this is a right that very much is part of this idea of liberty that is specifically stated in the 14th Amendment. The 14th Amendment denies the state the opportunity to deprive individuals of life, liberty, and property without due process of law. This idea of liberty was understood capaciously by the drafters of the 14th Amendment, to include these things like family integrity, the right to marry, the right to your children, and again, the right to your body, your labor, your wages, all of these things. 

And so it is kind of specifically enumerated, it’s just he doesn’t have the same vision of liberty that I think the ratifiers of the 14th Amendment did. And it is deeply rooted in our history, because at least since 1868, our understanding of what liberty meant was this opportunity to control your body, to have access to your family, access to the right to marry, all of these things. And so, I think understanding this history of the 14th Amendment, and my NYU colleague Peggy Cooper Davis has written a magnificent book “Neglected Stories: The Constitution and Family Values” which is being re-released. And it lays all of this out. And it’s all there, hiding in plain sight. It’s in the legislative history behind these amendments. And he completely ignores it, and instead offers in this crabbed and narrow understanding of the 14th amendment and its guarantee of liberty. And it has to be crabbed. It has to be narrowed. Because otherwise I don’t think you could rightly come to the conclusion that the Constitution strips women of the opportunity to control their reproductive capacities.

JS: Well said. And I think that actually brings me the next point, which, kind of ironically, Alito then pedals this notion that abortion has been a tool to oppress Black people, and to essentially erase the Black race. And he writes “Some such supporters have been motivated by a desire to suppress the size of the African American population,” which is obviously certainly a nod to Clarence Thomas, who wrote that 2019 concurring opinion that linked abortion to eugenics, and obviously, that’s troubling on multiple levels, not least of which is that an individual person terminating their own pregnancy is not eugenics. 

And you wrote this awesome Harvard Law Review article about the Thomas concurrence, and about how it’s ahistorical and really kind of conflates some things. But but you also wrote in there, that instead of surfacing race, as a means of promoting greater autonomy and access to abortion, that he uses it as a way to sort of destabilize abortion rights. And I think that’s a really great point, and kind of piggybacks on what you were just saying. And I was hoping you could just sort of unpack that a little bit more, because I think it’s useful to talk about what Thomas gets wrong about how race and abortion interact, and what Alito seems to adopt, I guess, and try to use to his advantage, but also how we should think about the intersection of abortion and race. So take whatever piece of that you would like. 

MM: I’m going to take all of it. 

JS: OK.

MM: There are three different strands that I’m going to weave together. So stay with me, right?

JS: All right. 

MM: Let me explain this opinion, then, let me sort of talk about why I think Justice Thomas really misses the thread — quelle surprise! And then finally, I want to talk about why is that footnote, footnote 41, of this opinion included? Because it is entirely gratuitous, if you are overruling the right to an abortion based solely on the fact that it is atextual and ahistorical, right?

JS: Right. 

MM: So you don’t need this. And so the real question is, why is it there if we don’t need it, and I want to hold on to that. 

So, in 2019, as you say, there’s this case on the shadow docket, recall the shadow docket, it’s gotten a lot of press this year. It’s called Fox v. Planned Parenthood of Indiana and Kentucky and it’s a challenge to two laws: One is a law that requires the funereal disposal of fetal remains. The other is what is known as a reason ban or a trait-selection law that prohibits abortion if it is undertaken for purposes of race or sex selection or because of the diagnosis of a fetal anomaly.

The court took up the funereal disposals law and they upheld it. But they denied certiorari on the trait selection law, and Justice Thomas concurred and this was unusual because typically on the shadow docket decisions, there’s just a sort of summary opinion of the court and you don’t really understand the reasoning why they did what they did, but Justice Thomas decided to concur here, and he concurred specifically to agree that yes, we don’t have to take this now, but the time is coming, when we will not be able to avoid this question of whether states can take modest steps to prevent abortion from fulfilling its quote-unquote eugenic potential. 

And that could have been the end of it, it would have been very weird. But it could have been the end of it. 

JS: [Laughs.]

MM: But he decided to go further, and going further, he crafts this quite selective history in which he graphs the birth control movements history, and Margaret Sanger’s history with the eugenics movement to the history of abortion. 

JS: Right. 

MM: And they are two very distinct histories, to be sure. Margaret Sanger, who was the mother of the modern birth control movement, was not necessarily in favor of abortion; she actually had deep antipathy for what she called surgical interventions and thought that none of this would be necessary if women could just have access to contraception. So, the shades of arguments we hear today. 

But in the early 1900s, when she was sort of really mounting the birth control movement and this idea of voluntary motherhood, she was really trying to secure the support of these first-wave feminists who were really skeptical of Margaret Sanger because Margaret Sanger wasn’t just saying, like, you need to be a mother on your own terms. She was also arguing for birth control as a means of women’s sexual pleasure — like, sex can be recreational, not just procreation. And the feminists were like: OK, that’s a bridge too far for us. These first-wave feminists were not with her. They didn’t support her. And she got some overtures from the eugenics movement, which is really sort of picking up and really became thick and quite influential in the United States in the 1920s. 

And they had this imprimatur of science. Eugenics was a science. Harvard University had eugenisis on the faculty of the University of Virginia where I graduated from, also was a hotbed of eugenics theory and quote-unquote science. And so it was an actual movement with real influence and heft and they were making overtures to her and she accepted them. 

Now, to be very clear, the eugenics movement is deeply, deeply racist, right? 

JS: Yes. 

MM: Maybe Margaret Sanger is deeply, deeply racist. But not in the ways, I think, Justice Thomas thinks. Justice Thomas argues that her work with the eugenicist is about deracination; that they have purposely geared up to site birth control clinics in African-American communities for the purpose of stamping out Black reproduction and limiting Black political participation. That’s not actually true. 

Margaret Sanger cites birth controls clinics in Harlem and in other African-American neighborhoods at the behest of the Black community. She’s working with W.E.B. Dubois, who believes that as the Great Migration is beginning and African Americans are leaving the South, and leaving the vestiges of slavery and tenant farming for the North and industry, they can’t have the big families that they once had, it’s going to be a burden on them. And so he wants them to have access to family planning. He wants them to plan for smaller families. And he works with Margaret Sanger to introduce family planning to the Black community. So this isn’t something that’s foisted upon Black people; at least some parts of the Black community are viewing this as a way to shore up the economic fortunes and long-term prospects of this community that has been quite beleaguered.That’s not enough for Justice Thomas, though. He never, ever mentioned this. He just talks about the siting of these birth control clinics in Harlem. 

The other thing that’s worth noting, though, about the racial dynamics of this moment, is that eugenesists are, as I say, deeply racist, but not in the way you would expect. They are interested in eugenics for the purpose of purifying and optimizing the white race. 

JS: Right. 

MM: And so their interests and their attention isn’t necessarily focused on Black people, or even non-white people. It’s really focused on maintaining whiteness. 

And so, for example, in 1927, the Supreme Court takes up a case called Buck v. Bell, which Justice Thomas does reference. And it is a case in which the State of Virginia has sterilized a young white woman who is poor, who is believed to be cognitively deficient, and who has already had a child out of wedlock. So she’s basically failed to perform whiteness in three different ways. She’s poor, she’s under-educated, she’s pregnant outside of marriage. And the court, in a decision that is infamous, says, “three generations of imbeciles are enough” and permits her sterilization. That’s interesting because eugenicists didn’t really put Black people in these colonies to be sterilized; they weren’t interested in feeble-minded people of other races. They were literally interested in making sure that white people who had the wrong genes didn’t transmit those wrong genes to future white populations, so they’re about optimizing whiteness by making sure only the best of those that race actually reproduce. And so their principal technology of reproductive control is sterilization. And it’s primarily directed at white women, poor white women.

JS: Right.

MM: So Justice Thomas invokes this history of eugenics, but kind of misses the plot. They’re not concerned about abortion. 

JS: Right. 

MM: In fact, to the extent they are interested in abortion, they want to stop abortion because white women are contracepting and terminating pregnancies in order to keep their families a manageable size. And instead, what the eugenicists want is for native-born white women to have more children, so that whiteness doesn’t get overwhelmed by these immigrants who are coming in. And their interests: eugenicists are deeply involved in immigration policy.

JS: Right. I was gonna say they’re deeply anti-immigrant. [Laughs.]

MM: Yeah, that’s where their interests are. They’re not focused on Black people. And so he misses that entirely. And if he really wanted to sort of delve into Blackness and race and reproductive control, he could have just waited until the 1960s where many states have maintained their sterilization programs and now deploy them against poor women of color who are in receipt of public assistance. They make sterilization a condition of continued receipt of public assistance benefits, but he completely elides all of that, to make this kind of fakakta argument that abortion is a tool of eugenics. 

And, as you say, there’s so many reasons why this is wrong. An individual exercising the right to abortion is not the same as the eugenics movement trying to optimize whiteness, and to embed white supremacy, like it’s very, very different. But he completely elides these differences for an argument that’s attractive and has flourished in the lower federal courts among many of his former clerks who are now judges, but really is divorced from the actual history and divorced from the voices of Black women during the 1960s, who were arguing that they wanted access to family planning, because they wanted not only economic and educational opportunity, but if the Black Power movement was going to succeed, it could not be a movement entirely of men with them staying home to care for the children. 

JS: Right. 

MM: And if you want it to talk about genocide, and injustice, as some members of the Black Power movement were, you really needed to talk about the poor conditions in which Black women were forced to raise their children or the Black women who were dying from illegal abortions or because of the absence of contraception or the absence of access to health care in those communities. So it elides a lot of things and especially Black women’s voices. 

So those are the first two things. I’ve gone on long, but I’m going to clean it up right now. 

JS: OK! [Laughs.] 

MM: The last thing, why is this here? So in footnote 41, Justice Alito nods to this history of eugenics. It’s very much a love letter to Justice Thomas. Why does he do it? Is it just merely collegiality, like: I’m going to do Clarence a solid and put this in here? Because he doesn’t need to. He’s already overruled Roe v. Wade on entirely different grounds. There’s no need to talk about this eugenics frame. 

I think the real reason that it is in here is because, as I’ve pointed out in my writing, it’s not a great argument for abortion, because the histories are so different, and distinct, and you can easily put point out the fallacies in it. It is, I think, a better discussion, if you link this solely to the history of contraception, because Margaret Sanger was working with the eugenics movement, and if the idea here is to recast abortion, and contraception, from being tools of women’s autonomy, and liberty and equality into being tools of racial injustice, the argument probably works better and is easier to make with contraception. So I wonder if this footnote is kind of a breadcrumb or a tiny bandanna around a tree branch to come back to later when they’re ready to start challenging contraception and access to contraception. 

[Musical interlude.]

JS: I want to get to one thing, just back to what you were saying about the ways in which which Black women were having to raise their families and all these things, and like conditions around these things being really important because I think the truth is that even after Roe, right, people with resources will still be able to get abortions. Like, duh, right?

But that the problem with Roe was in part that it was always, for so many people, just a right on paper. So let’s just talk for a couple minutes about how Roe and then Planned Parenthood v Casey, which mostly reaffirmed Roe never actually conferred an actionable right for many, and then how that sort of proliferation of statewide restrictions just kind of pushed people farther from access, and about really who this has most impacted, right? So, yeah. [Laughs.] That makes sense!

MM: It does. So the right secured in Roe is quite interesting. And this is also worth noting row was not the only abortion rights case percolating when the court was sort of taking this up. 

In the 1970s — the early 1970s, late 1960s — there were a lot of different cases, including one from New York state called Hall v. Lefkowitz that was brought by feminist lawyers. And they were making the argument that New York’s abortion law, which made it very hard for women to get abortions in New York, not only violated the right to privacy, that was something that had happened a few years earlier, in a case called Griswold v. Connecticut, it not only violated the right to privacy, it also was a question of sex equality, and race equality, and class equality. And they talked about how women of color bore the burden of these bans, and they were the most at risk for being killed if they sought legal abortions, they had the least amount of access to medical care all of this. They also argued that it was an Eighth Amendment violation, like to bear a child, because the state forced you to was a cruel and unusual punishment. So, I mean, they’re making all kinds of arguments. They’re going to see whatever sticks.

Interestingly, that case and another case led by another set of feminist lawyers, does not make it to the court in time. The Lefkowitz case is meted out when New York State repeals its abortion law and puts in place a more liberal law that provides greater access to abortion. So that gets thrown out and it doesn’t go up to the court. There’s another case called Struck v. Secretary of Defense, which was a challenge brought by a female Air Force captain, Susan Struck, who found herself pregnant out of marriage while serving in the Air Force in Vietnam. And it was the federal government’s policy at this time that if you were a female service person, and you found yourself pregnant, you either had to get an abortion or you had to leave military service. And Susan Struck did not want to give up her job. She also didn’t want to have an abortion because she was a Catholic. 

So Ruth Bader Ginsburg, who litigated this case on Capt. Struck’s behalf, argued that there were religious liberty questions here, that this was pregnancy discrimination, this was an employment discrimination issue, in addition to being a privacy case, a sex equality case, all of these things. And so I just want to emphasize: There were lots of different frames around which to think about reproductive rights. And Ginsberg thought the Struck case was the perfect vehicle to go up to the court because it showed: This wasn’t just about avoiding motherhood, it was about choosing motherhood on your terms.

JS: Right. 

MM: And that case also gets muted because the federal government changes its policy to allow women to remain in military service even when they’re pregnant.

So it’s Roe. That’s sort of the last man standing, and gets to the court. And it’s actually argued by two women, Sarah Weddington and Linda Coffee, who are fresh out of law school. [Laughs.]

JS: [Laughs.]

MM: And they’re 25 years old or thereabout. And they focus on the right to privacy, in part because it has actually been a very winning argument in the lower courts in Texas at that point. There had been a challenge to a Texas sodomy law that had been struck down on privacy grounds. And so it makes sense for them. But they aren’t making the multifarious claims that these other lawyers are making in these other litigations. 

And when it gets to the court, Roe has already cabined to the right to privacy. The court could have expanded it, perhaps, but they focused solely on the right to privacy, and that has really been framed as a kind of a negative right; the right to prevent the government from making this decision for you. But there is no ancillary or concomitant obligation of the government to furnish the conditions under which you exercise the right, like a positive right. 

JS: Right. Right. Exactly. 

MM: So it’s not just that the 15th Amendment can provide you with the right to vote — like, you actually have to have elections, right? 

JS: Right. 

MM: That’s not the case with abortion. Like, yeah, you have a right to an abortion. But what if you can’t access it, what if you don’t have the money, what if you live far away? Who cares?

JS: Right.

MM: And in the 1980s, there was a case called Harris v. McRae, which is a challenge to the Hyde Amendment and the Hyde Amendment is an appropriations rider that has gotten tapped on to almost every session of appropriations bills in the House, and has gone through Congress and been approved many, many times. But it basically prohibits the use of federal funds for abortion with some limited exceptions. And the Hyde Amendment, it was argued, would have a disparate impact on women of color, on Black women, on poor women. And the court was kind of like: Yeah, that’s probably true. 

And they just said Roe v. Wade gives you an a right to an abortion, but it doesn’t give you a right to government subsidy of your abortion. And that is really a pivotal moment in the court’s abortion jurisprudence because it is a right, as you say, on paper for the millions of people who lack the resources to actually access this or who are too far away or who live in a state where there is now a single abortion clinic, like Mississippi.

JS: Right. 

MM: So that’s kind of where you are. And you’re exactly right. The women who bear the brunt of this are indigenous women, young women, undocumented women, women of color, poor women. And that’s a problem.

JS: And I think you’re right. I mean, I think it’s really good, actually; I hadn’t even thought about this in that way as a negative right, like this limiting thing. Because then Planned Parenthood of Southeastern Pennsylvania comes along, and in a way kind of doubles down on that, which then allows all these additional restrictions state by state by state that then, again, access? Whatever! 

It’s never been a priority. And, in fact, what the court has done is make it just more difficult and more difficult, so that these same populations just keep getting pushed further and further to the margins and not able to access those rights. 

MM: So yes, and no, right?

JS: OK.

MM: So Planned Parenthood [of Southeastern Pennsylvania] v. Casey does a lot of things. It does really trim back Roe v. Wade in a lot of ways even as it quote-unquote saves Roe. So you lose by winning with Planned Parenthood [of Southeastern Pennsylvania] v. Casey, because it does save the abortion right. But it also gives the state wider latitude to restrict access to abortion. 

But one of the things that Casey does that I think doesn’t get quite a lot of airtime is that it rectifies a problem that Roe had that really was just a problem of timing. The Supreme Court takes up Roe in 1973. That’s right at the moment where the court is reading the 14th Amendment to finally include women. Women, as I said before, are not specifically enumerated in the Constitution. The Constitution says nothing about women. 

Through Ruth Bader Ginsburg’s efforts and the efforts of other pioneering women lawyers, the 1970s becomes this moment where they are pressing the court to interpret the 14th Amendment in a way that reaches questions of sex discrimination and gender discrimination. And so Roe comes at the same moment as we’re getting all of these cases that are about whether the state can make distinctions on the basis of gender. And so, the fact that they are contemporaneous means that the court’s abortion jurisprudence isn’t really nourished or cross-fertilized, interestingly enough by what is happening in the sex discrimination-realm, right. So Roe is a privacy case, it doesn’t really think about sex equality in a very thick way. 

And it’s also a case decided by nine men. 

JS: [Laughs.] Right. 

MM: Planned Parenthood [of Southeastern Pennsylvania] v. Casey is a 1992 decision. And so we’ve had almost 20 years, at this point, of women being part of constitutional law, like literally being part of constitutional law, and the court having a framework and a vernacular for thinking about what it means to discriminate on the basis of sex and gender. And so Casey, even as it limits Roe, even as it expands the power of the state to restrict abortion, it also talks about abortion in radically different terms than Roe did. And it talks about it as a vehicle of women’s equality, it talks about the idea — and this, I think, is also a function of the court now having a woman on it.

JS: Right. 

MM: So, Sandra Day O’Connor is part of the plurality in Casey. And I actually think she probably wrote this part. She talks about the women of this country coming to rely on abortion, planning their lives around the prospect that this exists if something goes wrong. And it has been a vehicle for women to make their way in this society, and it’s necessary for them to be understood as equal citizens. This idea of controlling your own reproductive capacity is fundamental to the prospect of women’s equal citizenship. 

You don’t get that in Roe. You do get that in Casey. And it’s not surprising; you’ve got 20 years to sort of let this jurisprudence of sex discrimination steep.

[Meditative musical interlude.]

JS: I want to get to one really important thing, which is that Alito tries to silo abortion rights as the only thing on the chopping block here, but I don’t understand how you can see it that way. 

Can you explain why that isn’t necessarily the case and what additional rights may be threatened?

MM: So this is gaslighting, pure and simple. And I will just say there are a number of male pundits who, I think, over the last week have said like me and other women who have said that this is clearly not the case, our hysterical lady parts are getting the better of us. 

JS: [Laughs.]

MM: OK, I’m happy to be Cassandra destined to know the truth and not be believed. Because it doesn’t make any sense that abortion can be sequestered from these other rights: same-sex marriage, contraception, interracial marriage, because if the problem with abortion rights — and Justice Alito is very clear about what the problems are — they are unenumerated, they’re atextual, they’re ahistorical. So are all of these other things. 

Nothing in the Constitution speaks of marriage. Nothing in the Constitution speaks of same-sex marriage. Nothing in the Constitution speaks of interracial marriage. The Constitution says nothing about Ortho Tri-Cyclen and birth control. 

JS: [Laughs.] Right. 

MM: Nor is there a historical tradition, right? Contraception was criminalized in many states until the Supreme Court invalidated that in 1965. Same-sex Marriage was not permitted in most jurisdictions until the 2000s. And interracial marriage was banned in many jurisdictions well until 1967, when Loving v. Virginia was decided. So the idea that abortion is unique, abortion is distinctive, and it is distinctive because it involves the destruction of a potential human: OK, but nothing in the logic of this opinion allows for us to meaningfully sequester the prospect of invalidating rights to abortion from the prospect of invalidating rights to all of these other things. 

And all you have to do to see the writing on the wall is listen to the Republicans. At Ketanji Brown Jackon’s hearing, Sen. Marsha Blackburn was like: Do you agree with Griswold v. Connecticut? Griswold is the 1965 decision that permitted adults who are married to use contraception in their marriage. She was suggesting it was wrongly decided. 

Sen. John Cornyn, the senior senator from Texas, was asking Judge Jackson about her views of Obergefell v. Hodges, the 2015 decision that legalized same-sex marriage. Sen. Mike Braun of Indiana suggested that interracial marriage should be left to the states — and then he tried to walk it back, but not that much. 

JS: [Laughs.]

MM: I mean, they’re showing you where they’re going. I mean, I don’t know why you take Justice Alito, the angriest man on the court, at his word here. The only thing that will stop them is what they think they can get away with.

JS: Exactly. And so this kind of comes back to Marsha Blackburn, to this idea that they’re speaking these things out loud, you just got to take them at their face value: like, when they tell you who they are, believe them. Because I just want to see what you think, the next battle lines. Especially regarding reproductive freedom and maybe beyond. 

I see fetal personhood and resulting criminalization, but also definitely attacking various forms of birth control, and thinking like IUDs, plan B in particular. And kind of jumping onto your footnote thing, I think that some of these things I’m concerned about are precisely because of some of the positions that the court or its members have taken in the past. So I’m curious what you see ahead, and are there any clues and other Supreme Court opinions about how these might play out within a new landscape?

MM: Let me first say that any changes don’t necessarily have to be immediate. Remember, it took almost 50 years to overrule Roe v. Wade. So they’re skilled at playing a long game. And I think you could see that. And I think that might be the case for same-sex marriage, for example. It is something that enjoys a great deal of popularity right now. And withdrawing those rights could definitely be politically problematic. 

But we’ve also seen a rising effort and the proliferation of accommodations for religious objectors to same-sex marriage. And it might be the case that we just continue to bless the prospect of religious objections. And once you’ve actually normalized the idea that you can treat same-sex couples differently in the public marketplace, you do that for 20 years, and it’s not that hard to imagine curtailing the rights more substantially. 

JS: Right. 

MM: Right. So, this could be a longer game. Contraception, I think, is a more immediate prospect, in part because we’ve already seen the groundwork being laid for that in the objections to the contraceptive mandate of the Affordable Care Act. 

So in 2014, there was a case called Burwell v. Hobby Lobby [Stores, Inc.], which involved a challenge to the contraceptive mandate that was brought by a family-owned corporation Hobby Lobby, that not only sold stencils, but also harbored real objections to certain forms of contraception — [laughs]

JS: [Laughs.]

MM: — including IUDs, emergency contraception, and some other forms of long-acting contraception. And the reason why they objected to these forms of contraception and providing them to their employees as part of the Affordable Care Act’s mandate was because they viewed them as quote-unquote abortifacient and the “science” here, and I’m saying “science” in quotation marks, is that they argued that these forms of contraception prevented the implantation of a fertilized egg in the uterine wall, and therefore they were tantamount to an abortion. Right? 

JS: Right.

MM: So I just want to say for everyone who has followed me on Twitter and has blamed me for not knowing science. I’m just reporting this. I don’t believe this. I know this is not science. But this is the argument that was made — and it is scientifically unsound. That actually is not how IUDs work. It’s not how emergency contraception works.

JS: Exactly. There’s science and there’s junk science, and it’s deployed freely in the reproductive space. Go back to eugenics and now their take on IUDs, and plan B, and stuff like that. So absolutely: science is real, junk science is junk.

MM: But junk science shows up at the Supreme Court. 

JS: Yes! Yes!

MM: And in the Hobby Lobby opinion, Justice Alito, who wrote that opinion crediting this argument and ruling for Hobby Lobby, doesn’t really do anything to dispel the idea that an IUD is an abortifacient. And so that lives in a Supreme Court opinion. 

JS: Right. 

MM: And once you’ve sort of had the imprimatur of the court, sort of blessing this idea that an IUD is a mini-abortion, you can continue from there. And so I think we’re already beginning to see that. 

So Louisiana has a law that has been proposed that would essentially make abortion a homicide, but also includes, as an abortion, the prospect of IUDs and emergency contraception, the question is whether or not those are considered abortions because they are quote-unquote abortifacients. And so that, I think, is the whole game, like: What is an abortion? And once you sort of expansively define what it is to be an abortion, what it means to perform an abortion, then I think it’s a much easier road for banning certain forms of contraception. And once you normalize that you can’t expect access to certain forms of contraception, again, I think it becomes easier to limit other forms of contraception.

[Musical interlude.]

JS: You did this “Why Abortion Is Essential to Democracy” event with the Brennan Center, where you were speaking to this idea that this is what broken democracy looks like, that kind of regardless what the court rules here, that being at this point, right, where we are, kind of shows how democracy has been damaged. 

And you talked a bit about Texas’ S.B. 8 as part of that. So I’m wondering if you can go ahead and maybe explain what you mean about broken or disrupted democracy? And then, while doing so, maybe offer a brief description of the Texas law to just remind people what’s going on there?

MM: Sure. 

So we often think of voting rights and reproductive rights in two different silos, and they don’t overlap at all. And I think we have siloed them to our detriment, because they are really very much inextricably intertwined. And I mean that to say that the law enforced in Texas right now, S.B. 8, which is a patently unconstitutional law that the Supreme Court has allowed to continue to be enforced in Texas for months now, it’s patently unconstitutional, but it’s also the product of a democratic failure in that state. 

So that is a state that has been gerrymandered beyond recognition at the district level. And it’s allowed for not just a red legislature — I mean Texas is a red state, but it has pockets of blue. But a lot of those blue pockets have been rejiggered so that they are smaller and therefore less influential in the political process, less influential in the state legislative process, and it is allowed the legislature to be decisively red, decisively conservative. It’s extreme gerrymandering. And that’s basically how you get a law that’s as extreme as S.B. 8. 

This is going on all over the country, right? And the Supreme Court, interestingly, has said in an opinion from 2019, that there is no role for the federal courts in dealing with partisan gerrymandering; that’s something the states have to decide. Which honestly is like your house got burgled and you turn to the burglar to return all the stuff. Like: The states are doing this. Why would they stop? Right? 

So the court has left it to the states to fix the problem the states have created. So, terrific. That’s one aspect of it. 

And then, the court itself has also dismantled the opportunity for individuals to register their discontent at the ballot box because they’ve dismantled the preclearance process of the Voting Rights Act and made it easier for states to pass laws that actually suppress the vote. So you know, here are our choices. We can either prevent these laws from getting passed — harder to do if you live in one of these states that’s been gerrymandered beyond recognition, and then you can sort of protest. That’s harder to do if your vote isn’t being counted, if it’s harder to vote, and essentially, you’ve got a court that has made it so hard to participate in democracy — and this also has the ancillary benefit of shielding the court. Like, when they do actually overrule Roe vs. Wade this summer, how are we supposed to register our discontent?

I mean, this is the thing that’s so funny right now. People are all up in arms because people are silently protesting Justice Kavanaugh’s house. Like, you’ve dismantled all of the acceptable means of protesting that are legitimate, like voting! What are people to do? You’ve got a wall around the Supreme Court, where should they go? It’s not surprising that they have gone to your house, the only thing that is surprising is that your neighbors are facilitating it.

JS: [Laughs.] Exactly. And this is where I want to try to transform that into — perhaps, can we find a glimmer of hope here?

Which is that, for me, even before the opinion leaks, I’ve been talking to providers, advocates, activists, and they obviously were all pretty clear this was coming, too. But they were like: OK, look, when Roe falls, we have an opportunity, though it may take awhile, to build something new. But that it’s going to take people joining forces, that you have to come from a full sort of social and reproductive justice framework, and that we have to support each other, that we have to understand that all our rights intersect, which of course gets me to thinking about what you were saying about the other challenges that had been brought to get at the abortion, right, in the cases that finally didn’t get there — that kind of looked at this situation more broadly. 

So I’m wondering: What do you think is the thing that we can do knowing what’s out there. What do we need to do to try to reassert our voices and to try to get this tanker ship to turn back on course?

MM: So, one: I know a lot of people are just like, voting is terrible. Nothing ever happens. We haven’t been able to secure protections for voting rights in the Senate. 

I want to just be like a complete older person about this. 

JS: [Laughs.] 

MM: We have to vote. We have to take the midterm elections seriously. 

One of the reasons we haven’t been able to do all of these things that people want is because the Senate is exactly 50-50. If we had a more decisive majority in the Senate so much more would be possible. 

I mean just even think about the judges that could be appointed. Justice Jackson is amazing. Again, genetically modified in a lab for this moment. But she was also selected because she was so impeccable, so fantastic, and did not have a record on abortion cases. Like nothing that could really be assailable or could be just leapt on by the Republicans, and they still came for her. Right?

JS: Yeah. Mhmm. In the most tacky and disingenuous — oh, it was horrible are the nicest things I think I could say. Yeah. 

MM: But imagine if there was a more decisive majority in the Senate. If the Democrats had a more decisive majority.

JS: [Laughs.] 

MM: You might be able to get someone who had actually written about abortion and had been very clear. Someone like Ruth Bader Ginsburg. I mean, we’re living in a time where Ruth Bader Ginsburg could not have been appointed to the court from the Senate. Because she has done things like advocate for women’s equality: what could we do if we actually were able to channel our voices through the democratic process. Like, when you talk about elections, it’s clear that there are lots of people who care about different issues, and they’re not voting. They don’t think their vote matters. They don’t think it counts. They think the system is rigged. What if those people just, on a whim, were like: I’m going to vote in this one. I’m going to vote with this progressive majority. I’m gonna make my voice heard because this moment is too important. We could make gains. 

JS: Right.

MM: We could stop partisan gerrymandering. We could be heard. You could turn Texas blue. Look at those 5,000 people who turned out with three days notice in Houston to hear Beto O’Rourke. 

JS: Yeah. Yeah!

MM: Like, Texas is a purple state for some purposes. 

JS: Oh, yeah, absolutely. [Laughs.]

MM: What could we do if we actually took this moment seriously?

And so I’m so excited to see all of the agitation and how exercised people are about this. Keep this energy to November. I think one of the things this leak was designed to do is to get people all aflutter right now. And then by the time they actually do release an opinion in June, we’re sort of like: Yeah, we knew that was coming. Or if it’s not a complete disaster, and it’s not as extreme as Justice Alito’s draft opinion, we actually think it’s a victory when it’s not. We have to be as mad in June and in November as we were on the Monday night that draft decision got announced.

[Musical interlude.]

JS: Melissa Murray is the Frederick I. and Grace Stokes Professor of Law at New York University, and the co-host of an excellent podcast about the Supreme Court, Strict Scrutiny. 

Professor Murray, thank you so much for joining me.

MM: Thank you for having me. It’s been great to be here.

[Credits music.]

JS: And that’s it for this episode of Intercepted. Follow us on Twitter @Intercepted and on Instagram @InterceptedPodcast.

Intercepted is a production of First Look Media and The Intercept. Jose Olivares is lead producer. Supervising producer is Laura Flynn. Betsy Reed is editor in chief of The Intercept. And Sharif Youssef mixed our show. Our theme music, as always, was composed by DJ Spooky.

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If you haven’t already, please subscribe to Intercepted. And definitely do leave us a rating or review — it helps people find us. If you want to give us feedback, email us at Podcasts@theintercept.com.

Thanks so much.

Until next time, I’m Jordan Smith.

The post Overturning Roe v. Wade: “Irrational, Aggressive, and Extremely Dangerous” appeared first on The Intercept.

The Seattle-based conglomerate recently retained a consultant named Russell Brown to help thwart the union election that began recently at its fulfillment center in Bessemer, Alabama, new disclosures show.

Brown was brought on by Amazon on January 25 for a contract to help persuade Amazon’s Alabama employees not to join the Retail, Wholesale and Department Store Union, or RWDSU, a union that is affiliated with the United Food and Commercial Workers, also known as the UFCW. He is paid $3,200 per day, plus expenses, for the work.

Brown is the head of RWP Labor, which touts itself as a specialty firm that assists companies in “maintaining a union free workplace.” The company features a team of consultants that includes a former International Brotherhood of Teamsters trainer who now assists corporations with defeating union campaigns. The firm brags that it has won many previous anti-union drives and specializes in training company leaders, persuading employees, and developing corporate social responsibility plans devised to prevent union interference.

Amazon did not immediately respond to a request for comment.

Brown also serves as the president of the Center for Independent Employees, a think tank that has received funding from the billionaire Koch network that routinely lobbies to weaken the political power of labor unions.

The vote at the Bessemer warehouse could be pivotal. If a majority of votes cast of the 5,800 workers at the facility, located in the suburbs outside Birmingham, favor the union, they will form Amazon’s first unionized facility in the U.S.

The vote at the Bessemer warehouse could be pivotal.

Amazon has worked furiously to derail the effort. In recent weeks, the company has sent mass texts to workers warning them against voting to join the union, set up an anti-union website, and sponsored Facebook ads urging workers to vote “no.”

The RWDSU has said that Amazon has also enrolled workers into “classes” in which instructors have attempted to scare workers about the supposed dangers of unionization, with false claims that unionization may decrease wages. According to a report from Wired, when workers challenged these claims, some were “called to the front of the room where their badges were photographed,” in an apparent attempt at intimidation.

The company also lost a bid to compel the union election to be held in person, a demand viewed widely as an attempt to hold last-minute coercive meetings to discourage union support. Election ballots were mailed to workers last Monday for a process that will continue over the next several weeks.

Brown, records show, has engaged in anti-union consulting work for decades. He has served similar roles in persuading employees not to join a union on behalf of UPS, General Electric, Krispy Kreme, Kumho Tire, ProPacific Fresh, and the St. Joseph Regional Medical Center hospitals, among other clients.

Through the Center for Independent Employees, Brown is also active in high-profile labor policy debates. Brown participated in lobby events to oppose the Protecting the Right to Organize Act, the keystone labor rights bill advanced by labor advocates in Congress to help gig industry workers better obtain health care and minimum-wage rights. In recent years, he has routinely appeared on coalition letters supporting Republican priorities, including the appointment of Amy Coney Barrett to the Supreme Court.

The labor movement has fallen short in many of its recent high-profile attempts to organize major employers in the South. A contentious fight in 2014 at Volkswagen’s Chattanooga, Tennessee, plant ended in defeat for the United Auto Workers. Three years later, Boeing workers roundly rejected a labor organizing drive at a 787 aircraft assembly factory in North Charleston, South Carolina.

But shifting public opinion around the importance of basic rights at work, shaped in part by the coronavirus pandemic and the shift to more online organizing tactics, has created a unique opportunity for Bessemer workers. Organizers have countered Amazon’s anti-union messages on social media and mobilized testimonials from workers attesting to the unfair working conditions at the fulfillment center. Many workers have complained bitterly about Amazon’s alleged refusal to take concerns around health and safety seriously and have said that the company has pressed them to the breaking point with constant surveillance and productivity demands. 

The post Amazon Hired Koch-Backed Anti-Union Consultant to Fight Alabama Warehouse Organizing appeared first on The Intercept.