Embryos Are People, My Friend

Transcript

This transcript was generated automatically and may contain errors — the audio is the record.

0:00:52 Thomas: Hello, and welcome to Opening Arguments. This is episode 1008. I'm your host, Thomas Smith, and with me is Matt Cameron. Matt, you know, someone pointed out that we should have a quick little blurb for you and or Casey every time, just in case there's new listeners. And I forgot to ask you to prepare that, so putting you on the spot.

0:01:10 Matt: I'm still here, and I'm a practicing immigration and criminal defense attorney, and I'm happy to be here.

0:01:13 Thomas: Love it. I'm practicing none of that. How are you doing today?

0:01:18 Matt: Well, I mean, I'm a little mad. I gotta be honest with you. I'm a little upset after reading this Alabama Supreme Court decision.

0:01:24 Thomas: You sound furious.

0:01:26 Matt: This is me raging, Thomas.

0:01:28 Thomas: Yeah, this sounds absolutely crazy. I'm seeing it everywhere. I cannot wait. This is exactly why I love opening arguments. I've seen the headlines, I've seeing people talking about it, but I don't know what to think yet. I don't know how bad this This is how weird it is. And I can't wait to get the expert breakdown here.

0:01:45 Matt: Might be better and weirder than you think.

0:01:47 Thomas: It often is. All right, I know you wanted to catch us up on some Fonny Willis stuff.

0:01:52 Matt: We had a lot of Fannie Willis in the last couple of weeks. Wanted to mention, it looks like the in -camera hearing has been set for Terrence Bradley, Nathan Wade's former law partner for Monday. So we're going to hold off and see how things go. I still do want to talk about the privilege issue that was raised, especially with Bradley's testimony. But I think we've had more than enough Fonny Willis for the moment. It

0:02:08 Thomas: Yeah. We did a lot in a row. I was realizing I didn't notice at first that back to our earlier coverage, it was something like four in a short amount of time. I loved them. I thought they're all great, but I'm happy to mix it up and do some different topics, especially ones that are so important like this.

0:02:18 Matt: Great. Yeah. Have to say I really enjoyed the last couple of episodes where we just did a shot by shot, you know, taking you through the hearing kind of thing. I want to be able to do that again. I think that'll be fun.

0:02:31 Thomas: So Yeah, yeah. Lot of fun. A lot of work, but a lot OF fun. I think I will If we do something that involved, I'll probably do it on the understanding that that's going to kind of be the week's episodes, you know, because it was I wasn't sure what it was going to be. It was a new thing for for us and for Casey and for you and for me, all of us. And so we didn't know that we would record for five raw hours. And it it yeah, sure. It edits down. You but that that takes a lot of work to get it down. So I can't wait to do that. But it may be the kind of thing where I strike struck a deal with listeners. And it's like, all right, that's what we're doing for the whole week because it's doing that plus all this other stuff is a little tough but

0:02:39 Matt: Yeah, yeah.

0:03:03 Matt: Maybe I'll find you a nice two hour hearing next time. That be better.

0:03:05 Thomas: Yeah, no, it's So interesting, but enough of that. Let's let's get find out how many dependents I'm gonna claim in Alabama or whatever. Yeah.

0:03:13 Matt: Well, you just got to freeze them, apparently. Or no, excuse me, don't freeze them.

0:03:14 Thomas: Don't Don't freeze... wait.

0:03:16 Matt: That's part of, yeah, you can't freeze him, it turns out. Yeah, let's

0:03:19 Thomas: Oh. Well. Then how are they gonna live? Well. We'll find out all that after this uh commercial break that of course patrons on patreon.com/law don't have to hear, so make sure to go there if you would like to skip this annoying ad. All Right, Matt, let's uh let's have it. Is my plan to go freeze a bunch of embryos and uh save a lot of money on taxes? Is that a go? They're gonna work.

0:03:22 Matt: Yeah, they wouldn't. That you could try it. I mean, this Alabama Supreme Court might give it a look, but they do have some issues with freezing. So I will say, up front, I know the one question that you and everybody listening has at And that question is, Matt, what font is this decision in?

0:03:45 Thomas: Ah.

0:03:59 Matt: And I am so mad because it is in a beautiful font. It is in Century School Book 14. And I jealous too, because of course, as I've said before, Massachusetts courts have Courier New, which is just an abomination.

0:04:04 Thomas: You Hate To see it. How Are these things decided? This is the fascinating. I want to know. So forget about like, oh, you know, how the Constitution was written and all those debates and Jefferson and, you else was involved. I don't know. There's some other people. I about all that. I want to know the font convention. Does that go? That's a state by state thing, apparently, or how specific does it get? Do fights break out?

0:04:32 Matt: Person on the Alabama Supreme Court I want to reward right now is whoever came up with that, making sure that was their default font. Great work. Everybody else, come see me after class.

0:04:41 Thomas: Yeah. End of praise for anything in Alabama currently, I So, nice font aside, the decision, I assume, is not as good as the font.

0:04:49 Matt: Yeah. I was trying to give it a little more credit because of the font, but I couldn't do it. So let me back up and tell you how we got here. Alabama in 2018 passed Amendment 2, by 59%, and it codified a change to the state constitution, which declared that the state's policy is to recognize and support the sanctity of unborn life and the rights of unborn children, including the right to life, except obviously the life that we take with nitrogen, but that's something else.

0:05:13 Thomas: Sure.

0:05:13 Matt: Essentially that the state has to ensure the protection of the rights of the unborn child in all manners and measures lawful and appropriate. At the the time, advocates were warning that something like this could easily apply to in vitro fertilization, IVF treatments, which of course are something that a lot of people want, including people who talk about the sanctity of life and oppose abortion, as I understand it. This led to the Human Life Protection Act a year later in 2019. And the interesting thing about both the Human Life Protection Act and the Brody Act, which was back in 2006, is that it defines child, person, as either being a living person or someone who is in utero. And that's about to become extremely relevant if you know anything about IVF treatment.

The Supreme Court doesn't seem to care about this definition Supreme Court now has its own opinions in Alabama. The Brody Act in 2006 did the same thing for criminal statutes. And it's criminal homicide to take a life of a baby in utero. So that is whole other issue that comes up in this often. But what we're talking about in this case is a civil case. So they don't get to any criminal issues.

They as much as say that if they were looking at a criminal issue, that they think that this could be a criminal ratio, but we're not there yet. The plaintiffs in this case are three couples. They all had IVF treatments done in one clinic. Fertility It was run by the Center for Reproductive Medicine between 2013 and 2016. They had multiple embryos frozen as you do when you're trying to go through IVF. And they were stored in a cryogenic nursery at a local hospital.

Here's the part I really don't understand. I don't understand how this happened. It's not really explained in the decision. I couldn't really figure out anything to explain this, but in December of 2020, a patient at the hospital, completely different part of the hospital wanders into the cryogenic

0:05:31 Thomas: Yeah. Oh Oh

0:06:47 Matt: Nursery, took out the cells, the embryos from the cell fridge and dropped them because it turns out that they're super cold. So they're like, their hand froze and they dropped them. I mean, this is just, what what kind of security? I mean, I definitely can see the lawsuit here because you're letting people wander in and play with the embryos.

0:06:47 Thomas: My God. Wow. What in the world? Holy shit. Sue sue everybody in that case. I

0:07:06 Matt: Yeah. I Very sympathetic. Mean, if you, if you're trying to conceive and you've gone to all this effort and these embryos are destroyed by somebody who's just been allowed to walk in, that should be a lawsuit, but maybe not this lawsuit. Suit. Part of the complication, I've just learned something incredible today, along with the font thing, obviously. But it turns out that...

0:07:17 Thomas: Yeah. I was going to say, how much more font

0:07:24 Matt: This is it.

0:07:24 Thomas: Talk will this be? Why

0:07:27 Matt: Is the only state in this country in which there are no compensatory damages available for wrongful death. Can't get basic compensation if someone close to you is killed as a civil thing. The justification for this was that, literally, that lawmakers didn't want to put value on a human life. So, their right. I mean, it's priceless.

0:07:33 Thomas: Would that be?

0:07:48 Thomas: Let's avoid that whole morass by just assigning a value of zero. Yeah,

0:07:54 Matt: You Can't Possibly. So yeah.

0:07:54 Thomas: Usually when we have like a priceless vase or something like that, it does mean it's worth zero dollars. Like you can just ruin it and there's no possible of compensating for it.

0:08:00 Matt: -known tort loophole, just call it priceless. Should say, just to close that loop, you can get punitive damages. So you have to show that something really egregious was done. And honestly, this does sound like maybe it should be punitive damages because their security was so lax if they're letting people do things like this. So that seems doable. But the question, of course, is under the wrongful death of a minor act. Now, the funny thing about the wrongful death of a minor act is that it was passed in 1872 and hasn't been amended since then. So if you're an actual originalist, as the dissenting judge in this case is, you might think, what did they think a child was in 18 72? Might want to ask that question, right?

0:08:40 Matt: I that's right. Yeah. High earner. Yeah. Now, this is, there is no way that in 1872, anybody was thinking about a collection of cells in a dish as a child.

0:08:38 Thomas: That God Uh an employee. Yeah.

0:08:50 Thomas: Absolutely not.

0:08:53 Matt: No reading of this. And here's the thing about this decision that is making me raise my voice. Happened was they went straight to it and they decided it is a matter of black letter law absolutely determined, we're not going to question this, that embryos are unborn children. Children. The definition in two different places in your statutes includes in utero. These are not, as you might know, in a uterus. Is going on here is a fair question. Yes. And this one of those things.

So often, you read a court decision where you feel like you're taking crazy pills, that you Can't possibly be the reasonable one here, because these people are living in some world where they decide that that the question about extra uterin children, just think about that expression. Not a doctor. Don't understand this, but they determined that it's black letter law. It's clearly established that children that aren't in the womb that are sitting in a collection of cells in a dish are just children. Children, and they'd say that it's the defendants in this case, the hospital, it's the burden of showing that there's some crazy exception for extra uterine children. Yes, okay. Was that a rant? I think that felt like a rant. That's

0:08:53 Thomas: Wow. Yeah. Oh the bear the burden Yeah.

0:10:05 Thomas: Wow, your first rant.

0:10:06 Matt: Pretty good. Oh, just Keep feeding me decisions like this and, yeah, we got more coming.

0:10:06 Thomas: On the show frame. It. Everybody. Yeah. We'll get more rants. That was truly You gotta calm down for a minute. It's definitely worked up. No, that is what, what in the world, so like it really am having a hard time following this and, and glad to hear that maybe you were too, too, because we started off with the the, amendment, and then we, it was kind of codified into law, I guess. Is because those sounded like they were trying to account for this, right? Defined this, what they were doing as in in utero, which I would think would preclude this extra uterine business. Although then this court just decides out of nowhere, like not only no, but hell no. Like it's not even like they examined it. They're like, well, we don't even know what the debate is here. If you want to prove it doesn't mean that, then you have to prove it or

0:10:12 Matt: Yes. Uh, Hit control F and went looking for the word blastocyst all the way through this decision. That does not appear, that you would think might appear given that that is the early stage of an embryo. And it is not in any way anything that anybody had previously considered to be a child, because it's not even in a uterus yet. And by the definition established in these two different places in Alabama law, it's in utero. Two decisions that they're looking at, as I said, involve a stillborn fetus and a 12-week-old fetus killed in a car accident. And there is nothing at all. This is completely coming out of nowhere, this idea that a collection of cells, and again, they don't even examine that, but you know what does appear 41 times in this decision, which is going to make me raise my voice a lot more, is God. There's a lot of God in here.

0:11:32 Thomas: I was going to guess. God, that is OK. Come on. Usually they make some effort to like, kind of, you keep the language a little bit secular for plausible deniability, but maybe not down in Alabama, I guess.

0:11:35 Matt: Yeah. In Alabama. And the chief justice of Alabama is clearly like straight up zealot. Like this is bad. His entire concurring opinion. He's the main offender here, but he's concurring again. He thinks the decision was correctly reached, but He wants to tell you about the Bible. He cites the Bible and God all the way through His concurrence, and that is His scientific authority for the meaning of life.

0:12:02 Thomas: I don't even know how you would do It doesn't, they didn't know about any of this back then.

0:12:06 Matt: Certainly didn't know about blastocysts, but I appreciate too, when He's citing the Bible, He cytes the King James Version specifically, specifically, just to make sure that you're getting the most Shakespearean of the Bibles. He cites a Dutch Reformed pastor from 1650. I means, he cites Thomas Aquinas, but

0:12:20 Thomas: Yeah. These are all great places to go for for your jurisprudence. That's law school. I imagine Matt was thumbing through the writings of Thomas Aquinas just

0:12:26 Matt: Yeah. That's probably what they do over at Asselaw. But do you know about Assela? Have we mentioned Asselau yet?

0:12:31 Thomas: I know about Asla. Yeah, but we should tell, we should Tell the listeners.

0:12:36 Matt: Antonin Scalia School of Law, Asselau, as it shall forever be known. I think they actually tried to change their name to get away from ass law, but they're stuck with it.

0:12:42 Thomas: Yeah. They, they accidentally named it Asla and then I think yeah. Didn't they get rid of some, like one of the letters to fix it. And then everyone's like, nah, sorry. It's Asla yeah.

0:12:51 Matt: Don't care. It's always going to be Twitter and it's always gonna be ass law. That's how this works. So yeah, not I will mention ass law I'm sure. So that the heart of the whole thing, is this idea that they just skip over any discussion of the science, any discussion precedent, any of anything that anybody outside the Alabama Supreme Court is saying, and they just go to this point that this is a child. And if you start at that place, saying that a collection of cells sitting in a test tube is a child, then of changes things a we have yet to see where these are going to go, because this just came out a few days ago, but I can only imagine where this might go, because this was a civil case. They were not examining the criminal aspects, but as they noted, civil cases are much broader. Didn't seem to say anything in here. And they specifically said they're not deciding on the criminal issue right now. They didn'T say anything to me that seemed like they were going to exclude criminal statutes from this. Be bad.

0:12:52 Thomas: It'll be Asla Yeah.

0:13:17 Thomas: You might reach some absurd conclusions. I would think.

0:13:42 Thomas: Don't know if you bothered to look into this and it's okay if you didn't. Cause it truly is just a waste of time. But if you did, I actually want to know how they even biblically justify this. What is that coming from? Do you have any idea?

0:13:55 Matt: I was just looking at it. It's just going on and on about how man's creation in God's image is the basis of the general prohibition on the intentional taking of human life. But again, skipping over the definition of life, skipping over when life begins, and all human beings bear God's Image.

0:14:03 Thomas: Okay. Boy, it's a good thing he didn't use some other model to make us because then it'd be like murder. Fine. Instead of making us in God's image, he made us in Jeff's image. And it's like, yeah, you're killable as hell. Like I seriously don't care if anyone murders you because you're not in God'S image.

0:14:23 Matt: Just don't even know what to say when I see something like this.

0:14:25 Thomas: Does that do anything? That's just saying because God, that doesn't... Like, I want to look, if you're gonna do this bullshit, I want at least hear some really tortured reasoning about like how, well, when loaves and fishes means that embryos... Like, give me something. Like, how are you getting to embryos not even in utero? How are they doing it? That's crazy. Okay. It's impossible

0:14:47 Matt: Couldn't tell you because they didn't explain it. What's interesting about this too is the nature of the plaintiffs, because I was pointed out that these are plaintiffs coming through personal injury lawsuit, filed by personal injury lawyers. It doesn't appear, nobody's been able to prove yet, there's any dark money associated with this. These are people that just were genuinely upset, as you would expect, by what happened. And were claiming when they filed this thing and an oral argument that they didn't think this was going to affect IVF. But how could this not affect IVf? Other really critical thing about that 1872 law is that it wasn't until 100 years later, 1972, that the court even applied it to unborn children at all, any kind of unborn children. And they certainly didn't apply it to collections of cells.

0:14:49 Thomas: Yeah. Oh, Wow. Yeah, Yeah.

0:15:27 Thomas: Wait, is my cell collection that I've built up over years? Is that going to, is that now a person? Crap. I should have picked a different hobby.

0:15:33 Matt: You better keep that safe. Of radical activism. This is what we should be talking about when we talk about activist judges. Course, as you know, these things can't survive if they're unfrozen for, I more than a couple of days from what I understand. Again if I'm mangling the science, but that I think we understand the basics here.

0:15:50 Thomas: Yeah.

0:15:51 Matt: Was trying to think about how they even got there. Think maybe some people, when they think of the word embryo, they're imagining like a tiny, tiny little human, like

0:15:57 Thomas: Yeah, a little human in there. It's got like a little cane and a top hat. Yeah, I don't know.

0:15:58 Matt: A little pre -fetus. And a little

0:16:01 Thomas: It's It's like the homunculus theory of, way you back when where it's like, yeah, it's little people in there, if you zoom in to the testicles enough, you just find little people, and then they shoot the little people and the other little people.

0:16:01 Matt: Stumpy arms and legs. Yeah, yeah, Yeah just, and then you get

0:16:13 Thomas: It's of that dumb, I'll be honest with you. It's not much less dumb than that.

0:16:13 Matt: More people. In this case, the concurrence reads like a dissent. It's basically somebody who really wants to agree with him, but he just knocks down every one of the things, explains why this is problematic, and then he's like, yeah, but this is fine. So, yeah. But it's the dissent, the disset is fascinating, because again, only in Alabama do you come out as like a full-on Scalia originalist and get the dissent here, right? This is because he makes the very obvious point that in 1872, nobody saw a collection of cells in a test tube as a child.

And even cites Dobbs to argue that they overstepped in this case and that each state should be left to determine about what definition is here. And they're just not ready to do that. So again, to go through a couple of takes because of course, we're a couple of men talking about this, and I wanted to get some women's voices in here. I think it's important just to kind of get the instant kind of within a few days takes. We'll start with William Wolfe, who was a former Trump administration official. You can imagine where he stands on this.

He's actually a full-on Christian nationalist. He is not even hiding it. Writes, "The Supreme Court of Alabama just ruled that life begins at conception and that every human, including the pre-born baby, is made in the image of God. Incredible. This is how we win."

0:16:28 Thomas: Really? Wow. Yeah. Wow.

0:17:24 Matt: So, pre -born baby, this win.

0:17:24 Thomas: This is how we win? Win? Okay. Win what?

0:17:27 Matt: It's like a football game. Yeah, this

0:17:28 Thomas: Yeah. That's to zoom in on that language, but like, this is how we, he's not just saying we won, he's saying this is How We Win, what is that, like? Like just Yeah, I guess what I'm asking is like, do you think he means politically, like, yeah, more of this and then we'll be super popular? Because that's definitely not true, like this stuff is nothing but unpopular. Or does he mean like the the way that the court just did a really stupid thing here, like, that's That's the manner by which we tend to win. In which case, yeah, I guess I agree with you. That is how you tend to Win. Okay. Not important. Just wondering.

0:17:36 Matt: Is the path.

0:17:58 Thomas: Yeah.

0:17:58 Matt: Is this is how we get closer to atheocracy. He's not even being subtle about it because he quotes results. A screenshot here of the concurrence, which talks about God making every person in his image. And he's saying in this tweet that, you know, we're all made the image of God and a court had just found this. This is how we win. So scary stuff, I have to say. We're going to talk another time about what's going on with the establishment clause and conservative legal circles, but scary stuff on the horizon there for the states, potentially.

And this kind of thing is really on the edge of it. But let's get to a better take. This is Professor Carla Spivack, a law professor, who quote tweets her own quote tweet from May 9th, 2019, shortly after the bill we're talking about was signed. And she asks a lot of obvious questions that should have been obvious at the time before they signed it. If a fetus is a person at six weeks pregnant, is that when the child support starts? Is it also you can't deport the mother because she's carrying a U.S. citizen? That was one of my first questions.

0:18:19 Thomas: Hmm.

0:18:47 Thomas: Hey, yeah.

0:18:49 Matt: Can I insure a six -week fetus and collect if I miscarry? Just trying to figure out what we're going into. To. Now, that was in 2019. Very prescient. And she tweeted a of days ago. I tweeted this almost five years ago, a lot of conservatives said it was absurd and silly. However, cannot you change the legal status of embryos and fetuses without impacting every aspect of the law that applies to a legal person.

0:18:56 Thomas: Yeah. Yep. Yep. That's been part of it too. They've That's, been gaslighting people like her this whole time, right up until they take away reproductive rights. It's happened at every step of the way. Oh, you're so hysterical worrying about the Roe v. way. That's never going away. Yes, we took it away. There's like this next sentence out of their mouths. I mean, it's so frustrating.

0:19:14 Matt: Yeah.

0:19:27 Matt: Time. I was curious to see what reproductive rights activists are saying about this, of course. I want to be be sure to get that in. And Garnet Henderson, who's an abortion activist, she's also a journalist, had some really good points about this. I'm just going to summarize very quickly. But she's making the point that these were basically run-of-the-mill personal injury attorneys that brought this. And they were seeking traditional sort of relief. It didn't seem like this is some kind of ideological quest.

0:19:48 Thomas: Yeah.

0:19:48 Matt: But she is asking, do they really not care where this is going? They have to have thought about Their attorneys must have told them that if we get what we want here, if we actually get the court to find that this was an unborn child, IVF is pretty much impossible in Alabama. Nobody's going to want to do it.

0:19:52 Thomas: Yeah, yeah.

0:20:02 Thomas: There are pro -lifers who want to use IVF, I mean I feel like I've heard of that before.

0:20:07 Matt: Yeah, I would think. But of IVF, from what I understand, is that you're creating a bunch of embryos you know you're not going to use or that will fail. So if that, in that case, by this standard, right.

0:20:13 Thomas: Yeah yeah. They implant way more than you end up With because, you know, it's not a perfect system. Think as more people start to see maybe people who had like unexamined pro -life views, you know, who are just like never really thought about it, not super political, or like, "Yeah, no, I don't, you know, I believe that, I like babies, I don't want people killing babies," as they see these things and like, "Oh, this is what, this is meant to, this pro -Life movement, like this is what they were going for all along," like already it's, is so unpopular after Dobbs, and I think it's just going to get more so, but obviously there's going to be a whole lot of heartbreak along the way.

0:20:48 Matt: Would hope that couples that otherwise agree with some of these things who find out the they can't do IVF would have an opinion about this.

0:20:54 Thomas: Yeah. It's just, I'm sorry to keep harping on it, but I just, I cannot tell you how many times I've heard like interviews, which I'm glad they're doing them with people who are conservative, who didn't kind of realize like this is how it would be, especially around just normal care that has nothing to do with abortion and how much of that was ruined by, uh, not just Dobbs, you know, the Texas bill, all that crap where people are, you Know, the cases, people are almost dying before doctors can do anything. Cause they're worried about getting sued and people conservatives see that. And they're like, didn't I, know that's what it's going to be. And, and it's as, as obviously horrifying as it is in a way, it becomes a bit ironic to where they a backdoor to like, yeah, maybe, gosh, maybe the people who should be deciding that is like the person and their doctor, you know, it's like, they've never thought about it before. And you're like, yes, what

0:20:55 Matt: Yeah, no.

0:21:40 Matt: Yeah.

0:21:41 Thomas: We've been saying the whole time that those would be the two people you would want involved in this decision, not the government.

0:21:43 Matt: Yeah. I would any doctor ever want to get anywhere near an embryo in Alabama at this point? I mean if they're up for massive civil and potential criminal liability, this is opening the door to.

0:21:58 Thomas: Yeah. Matt, those were some really good takes. Do you have any like shitty ones for us to make fun of? Oh.

0:22:04 Matt: Believe it or not, one of them comes from Nikki Haley. Uh,

0:22:07 Thomas: She's always right. This is so shocking. Cool.

0:22:10 Matt: She was just asked about this and she said, "I mean, I mean, embryos, to me, are babies," Dr. Nikki Haley. So, yeah. Great. Thanks, Nikki.

0:22:18 Thomas: I would say that's begging the question, but nobody seems to know what that means anymore, so and it's not worth saying

0:22:25 Matt: No. But she's just, be fair, that is a pretty solid summary of the Alabama Supreme Court's decision. Embryos, To me, Are Babies. That's what they decided to do.

0:22:26 Thomas: Yeah yeah, yeah why a good decision because they're babies, you see. It's like, wow, that's

0:22:36 Matt: You not hear me? They're babies. Yeah, yeah, come on.

0:22:36 Thomas: Yeah well that takes sucks, yeah.

0:22:40 Matt: But I thought it'd be good to end with someone who is actually going to be directly impacted by this. In the New York Times a couple of days ago, Megan Ligursky, 37, Tuscaloosa, Alabama. She's been going through this treatment, and she her partner have three more frozen embryos that they can implant. It recently didn't work out for them. And she says, embryos to me are our best chance at having children, and we are extremely helpful. But having three embryos in the freezer is not the same to me as having one that implants and becomes a pregnancy, and it's not the same as having a child. Have three embryos, not three babies. Think that's a pretty good way to put it.

0:23:13 Thomas: But going to be the impact of this, do you think, on that person? And are they just no longer allowed? Cause if the process, like you say, the process maybe kills two of those or three of them, but is this just not allowed anymore? Can they just not even do it?

0:23:26 Matt: That's a great question. It's one of the questions the dissent raises. And he says, what is going on here? What are we trying to actually do with this decision? Because we haven't given you any instructions. We haven't told IVF how it could still happen. Seem to have created this extremely broad definition of a child, and we're

0:23:44 Thomas: As in they're just making that decision and then like, hey, as for what this means, go F yourselves, everybody. Figure it out yourselves.

0:23:49 Matt: You figure it out. Yeah. And he makes the point that this is something the legislature should be deciding. We should not be stepping in and making such a major decision about the definition of life. Yeah, I'm him.

0:23:50 Thomas: Okay. Yeah.

0:24:00 Thomas: Honestly, I'm curious if you have any predictions for us. You just said a moment ago that if you were a doctor involved in any of this, you wouldn't go near it. And we've seen that to be true. You know, we've seeing that to true in the of Roe. Doctors You can't, they can't do it. But, you know, you can't, people have this idea that, well, no, they can just, you know, disobey the, no. They can't. There have been really good interviews with doctors. Don't have time for it now. Really good reasons why that's not reasonable to expect. And that's NOT the solution. The solution is not, well let's make the doctors ignore the law. That doesn't, it just is not viable in any way. So, I would have to expect they're going to be, if you they are too scared to give women life -saving abortions in, in Texas, when when they need them, then I have to imagine they're not going to do this, right? They're not going do that last appointment, see if they can get one of those three embryos to work.

0:24:10 Matt: Sure. Yeah? No, why would they? And in the same way that we're losing reproductive care all through the South and all through these places that are passing these laws. It's just one more thing to fall.

0:24:56 Thomas: More clarifying question, is this the kind of thing that immediately it's the the Law of the Land there?

0:24:59 Matt: Is. The latest in a series of decisions that have sort of seemed to have been leading to this, but it's a huge jump from those decisions having looked through them, I have to tell you. So yeah, who knows where it goes from here, but

0:25:07 Thomas: Is nuts. Well, to buy a bunch of physical copies of Nirvana's In Utero and see if I can uh, get, get some, some help on my taxes. You somebody might as well benefit from this horrible shitty news, you Opening Arguments is brought to you by Fume. Tried a break a habit and felt like you're climbing Mount Everest in flip -flops? We're all been here, but... But here's a breath of fresh air. Fume, it's not about giving up, it about switching up. Take your habit, and simply makes it better, healthier, and a whole lot more enjoyable. Of vapor, fume uses flavored air. Instead of electronics, fumes are completely natural. And instead of harmful chemicals, fuming uses delicious flavors. A habit you're free to enjoy and makes replacing your bad habit easy. Easy.

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0:26:39 Matt: So I did have a few other takeaways after reviewing this, including one thing that I didn't see anybody asking. And maybe they're just, this may not have been out for long enough for anybody to pursue this, but there was an alternative claim that was presented to the trial court of negligence, which is pretty obvious, right? It's, you don't have to go for wrongful death when they were clearly just negligently handling these embryos.

0:26:57 Thomas: Keep forgetting all this came from that claim. Like, I don't know why I'm just like, oh yeah, this court just did a dumb thing. But yeah, it was connected to the hospital letting someone just totally ruin their embryos. Forgot about that for a sec. So they could have done a different theory of it, you're saying, or?

0:27:00 Matt: Right. Right? Yeah, they did. So they presented an alternative. They said, basically, the first line that they're going with is that this is a person under the wrongful death of a minor act. But they said in the alternative, if the trial court didn't want to find that, which it didn't, the trial Court completely disagreed with that. It was the Supreme Court that imposed it. Trial Court found, just try to go with this, because I can't make any sense of this. The trial court found that in vitro embryos don't meet the definition of person or child. Great, with you. Also that the negligence claim

0:27:12 Thomas: Oh. Yeah? Okay, now you stop. Stop. Just stop there. Just up there. Trial court. You're, you're fine. No need.

0:27:41 Matt: Right, you got it, right?

0:27:42 Thomas: All right. See you later. T trial court. We're done.

0:27:44 Matt: But they also found, and this is verbatim from the Supreme Court decision, and nobody is asking what this is about, that the negligence claims could not proceed because of the rule against compensatory damages for loss of human life.

0:27:58 Thomas: Wait, that's that weird one of, Alabama of, coming back to, I guess, haunt somebody. I don't, it's hard to keep track at this point. Point.

0:28:05 Matt: So just to be clear, just to really break this down, because you cannot get compensatory damages for wrongful death under any circumstances in Alabama. You can get punitive damages, but you can't get the compensatory kind that you would usually expect in a wrongful death suit. So they simultaneously found that these embryos did not meet the definition of person or child, but also that you could not get damages because this was a loss of human life. Read that several times, And then I read it in the dissent where he says this is a catch -22 and it doesn't make any sense. I'm wondering, I'm just left here wondering why they didn't more aggressively appeal the negligence.

Because in their appeal to the Supreme Court, they basically said the same thing, that if you find that under the wrongful death of a minor act that this is still a person, then obviously everything else is moot. Because it seems to me the more obvious claim here would be that these embryos are your property, they're not people. Mean, obviously, we don't want to go too far down the road of people being property, but I think if we clearly distinguish that things in a jar, in a test tube, are property and are people, pretty comfortable with that.

0:28:15 Thomas: Right. Yeah.

0:29:06 Thomas: Me fashion a really big jar. I'm in a jar. No, that doesn't make any sense. So, okay.

0:29:11 Matt: No, yeah.

0:29:12 Thomas: So the trial court, you I'm saying they said they're not people? The embryos aren't people. Okay. And okay, that's why I was a little confused because I was mixing it up with the other ruling. So they also They also said they're not people. And also, you can't get any money because they're people.

0:29:18 Matt: Reasons you would think. Yeah.

0:29:27 Thomas: That's what they said.

0:29:27 Matt: Got it. That is, and that's almost, I mean, again, Alabama, come on. And I just wanted to address the obvious question, which is that could this go to the Supreme Court and what would they say? And this is extremely unlikely to go to the Supreme Court, first of all, just because of Dobbs, which specifically said these things have to be left to the states. But more specifically, because this was completely a state court interpreting a state statute. There really is no federal issue raised.

0:29:29 Thomas: Oh, my God. Yeah. Yeah. Yep. Yep yep. Yeah.

0:29:52 Matt: So So this is the end of the line.

0:29:54 Thomas: We covered that a lot back in the day. This is one of those ways that it's like the Supreme Court in theory shouldn't be be able to do anything about this. I feel like they kind of, it's up to them if they just violate that sometimes, but whatever. We'll leave that aside.

0:29:55 Matt: Sure. Yeah. I don't think they will

0:30:06 Thomas: They probably don't want to. I was Yeah. Going to ask that. Definitely. I always want to know like, is there another level of appeal or whatever? So this is, this is donezo. There's nowhere to go from here?

0:30:06 Matt: Here. It's going back to court, the trial obviously, and they're going to find that applies because this is a person now. Yeah, no, there's no further appeal.

0:30:20 Thomas: But in terms of, right, like the trial, that's just sending it back. Hey, we decided, um, are people, go figure out what that means, but they can't come back and be like, "Embryos or not people," that's not a possible, they have to, they're still bound by that, as far as that finding is concerned, there's no higher court, you know, you're already, right, you're ready in the state, it's already, wow, okay.

0:30:21 Matt: Yeah. Yeah. Yep. That's it. I can see this getting messy enough that in the future, they're gonna have to change their minds. Or you get a different composition of the court that changes their minds. Because again, chaos.

0:30:45 Thomas: Yeah, it could be another, another case.

0:30:47 Matt: You've already got IVF facilities now in Alabama that are not going to be working, like they today announcing that they're just not going to do this anymore. And there's all kinds of questions about, does this mean that you have to implant every single embryo because we can't waste any of them, right? Is it, I mean, that's terrible medicine. Terrible. Like, that's just, I know that, that you shouldn't do that.

0:31:06 Thomas: That all sucks.

0:31:07 Matt: No, Well, I do have a better story. And I think it's good to kind of do a little pairing. I would like to do this more in the future to have one bad case and one good case so that we can talk about it that way.

0:31:09 Thomas: Ah, um, Asterisk while supplies last is what I'll say. Don't make any promises that, you Know, this country can't keep Matt, but we'll try, you Now.

0:31:19 Matt: Yeah sure Yeah, I wanted to bring this up because this is a case that didn't make a lot of headlines, didn't get a lot of attention. And I think it's worth pointing out that the Supreme Court, once in a while, still does its job. It still just does the thing that it's supposed to do. I know the bar is low here, but once in a while, the Supreme Court will actually notice a complete injustice done by a state and it unanimously. And that's what happened here. So I want to talk about...

0:31:39 Thomas: Yeah.

0:31:49 Matt: Unanimously.

0:31:48 Thomas: Nah, Pixar, it didn't happen. I don't, I don'T believe this. It's not real. Unanimously? No, no way. You're going to come on to opening arguments and try to convince our intelligent audience that this happened. Don't believe it. Sorry, okay.

0:31:53 Matt: Yeah. Well, Alito did have to get his digs in his concurrence, but he still agreed with the outcome. This was written by Ketanji Brown-Jackson, who I want to tell you, I've really come to appreciate. She's obviously the most junior justice right now. So they gave her this one because honestly, it's kind of a low ball. It's the kind of thing you give the new justice because it's kind of, you know, take a swing. Yeah.

0:32:19 Thomas: Imagine the conservatives out here. This is a good thing, I guess. You can have it. We hate doing these

0:32:25 Matt: Right. Basically. You know the rule about how the youngest justice and the newest justice has to go and open the door whenever there's a knock when they're in conference. You ever heard about that?

0:32:25 Thomas: That be fake, or I'm suing on behalf of Katanji Brown Jackson because I'm not this oh god hey Um, don't do it. What are they gonna do, what are you? Oh, the ethics rule, rules sell with ethics rule. There's nothing. We've learned there is no recourse. Just don't do it. Quit doing that stupid ritual. There you go. Hope she listens.

0:32:36 Matt: Is true. I know it's not great in her case, but That's true.

0:32:52 Matt: Sam can't help but notice, but you're sitting next to the door. You want to get that? Yeah. So yeah, super cool thing. About Ketanji Brown-Jackson, besides obviously the fact that she is the first black woman on the court, and that's awesome, but she's also the first public defender to serve on the Supreme Court. And I really appreciate. Now, again, this is a pretty straight up and down, balls and strikes kind of decision. If you really look at the facts, I don't think there's any other way they could have come down. Well, I dunno. This Supreme Court these days, who knows, but by the book, by the actual Constitution, this is how they come down.

But she goes out of her way to write a decision that is more like what a public defender would write to defend juries and to defend acquittals in a way that I think is really interesting. I wanted to get through this a little bit, but let's talk about the decision because like I said, it's interesting to talk about these kinds of cases that will not be remembered by history. This is an interesting case. I don't think it's going to get cited that often. It's a fairly unique set of circumstances.

0:33:04 Thomas: Yeah.

0:33:40 Thomas: Unless we make it go viral, everybody. Share, share, share. Get this one decision. Make it famous, everybody, everybody.

0:33:45 Matt: But it's just the kind of thing I like to pick apart when nobody else is looking at it. I'm just going to tell you a little bit about it here. This is a murder case in which we have a young man who was struggling with very serious mental health issues. So he, I mean, his diagnosis, schizophrenia, it sounds like he had some other things going on. He came to believe that his mother was poisoning his food with pesticides.

And he told police after he killed her that I killed my mom because she was poisoning me. So pretty straight up obvious mental health defense here. He was charged with malice murder in Georgia. This is all in Georgia, malice, murder being first degree felony murder. And aggravated assault. And the felony, underlying felony for this was aggravated assault. It's a little weird how they do that there. We don't do it that way, but that's fine. Here's how it came down.

This is really weird, and of like the trial court decision we were just talking about, where you say this out loud, and it doesn't make a lot of sense. He was found not guilty by reason of insanity for malice murder, for first degree murder. So essentially, he didn't

0:34:38 Matt: Have the mental capacity, couldn't distinguish between right and wrong. He had a delusional compulsion that overmastered his will to resist committing the crime. That's the standard. It's not too different from the old monotone standard, the English one that we use.

0:34:50 Thomas: That Old one.

0:34:50 Matt: That's all right. We'll talk about it another time. But the outcome when you're found not guilty by reason of insanity, or what we'd call mental health defense, is that you're sentenced to a mental health facility until release is determined appropriate. So you're not, there's this kind of idea, I think, in popular culture that you get off, that you'd get acquitted, right?

0:34:51 Thomas: I don't know, yeah. Yeah.

0:35:08 Matt: But no, these are not fun places to go.

0:35:07 Thomas: Yeah. You don't, it can be worse, like

0:35:12 Matt: Yeah, no, no, you're indefinitely, yeah, perhaps to a place that could be worse than prison in some ways. So outcome in case was actually pretty good because the alternative was he could have been facing the death penalty. So between the two, arguably he's doing better. Here's where it gets really weird.

0:35:14 Thomas: Yeah. Okay. Me guess, did they also find him guilty of something like a different count that does like contradict the fact? I'm just going based on the cues you gave me.

0:35:28 Matt: Yeah. Yeah, you're thinking a Georgia jury. Good job.

0:35:40 Thomas: No, Matt.

0:35:41 Matt: Sorry.

0:35:41 Thomas: Come on, we were friends. Oh, God. I've never, been I've never been so insulted. I'm quitting the show.

0:35:44 Matt: Yeah, I guess that's not a compliment. Yeah? So on the felony murder and aggravated assault charges, they found him guilty but mentally ill, which is, 14 states have this. Massachusetts does, is not, but it's guilty, but mentally ill, I think is a real misstep.

0:35:59 Thomas: Okay. What the hell, yeah.

0:36:04 Matt: Yeah. It's like, think about he did it, but he was not well, right. But you're not finding that he was overpowered with a compulsion that he didn't know right from wrong. You're just saying that he was just kind of out of it or mentally ill.

0:36:09 Thomas: Well, Okay, this sounds, I guess I can't, I'm agnostic because what does it mean? Like, if it's like, yeah, guilty but mentally ill means, okay, physically did it, sure, but mentally ill, it depends on, I guess, what are they doing with that part? Like, what does that do punishment wise or something?

0:36:28 Matt: So you end up Department at of Corrections discretion, you can be referred for temporary mental health treatment. So it kind of comes out the same way, but it's not the same as with NGRI, where you end up in a mental health facility potentially for the rest of your life because they find they can't release you. So it's a little more borderline. And it's what happens if you fail to prove an insanity defense, but the jury still thinks that you're not well, basically. Were passed in an attempt to try to, I guess, basically out of the non -existent problem. Thank you. Yes, exactly. For the idea that people were getting off and living happily because they were getting off on these insanity defenses, which you could, people think they fake them all the time, and that's very hard to do.

0:36:52 Thomas: Fix a non -existent problem? Yeah. Yeah.

0:37:03 Matt: Right, so here's the problem. You've got guilty but mentally ill on felony murder and aggravated assault, and you've not guilty by reason of insanity for first degree murder. Doesn't make any sense. There you cannot hold those two things at the same time because you're saying he has enough mental capacity and like he can form a thought enough that he could commit aggravated but not that he can commit murder. It just doesn't really work. It doesn't at all. It's a split verdict.

0:37:15 Thomas: Hmm. No, that doesn't make any sense. That's why we have that old, age old insult. You're thinking like a Georgia jury. That is where that comes from. I don't know if you know the origin of that. Incredibly just. You know what? I should bleep that out. That so insulting. I shouldn't even let the words go on the show. Sorry.

0:37:46 Matt: And that's an obscenity in Massachusetts, it's true. So yeah. But again, this matters in the sense that, just keep in mind, first degree murder in Georgia carries the death penalty, potentially. I'm not sure they would necessarily impose the death penalty on somebody who clearly is not well, but it still has that risk. They would. On appeal, McElworth makes the obvious point that this doesn't make a lot of sense. You have have got affirmative findings by the jury that are not legally and logically possible of existing simultaneously.

0:38:11 Thomas: Yeah, it, so they might have been trying to save him from the death felony then, right? You know, what that's why they have that saying, thinking like a Georgia jury, because it's really, like, they're try to do a good thing. They're Make sure now, I mean, honestly, if that was what they were thinking, I kind of get it.

0:38:26 Thomas: They're like, okay, put this man to death. But they're not super cool. So they're like... Well, yeah, we still want him punished quite a bit. So that actually kind of explains that contradiction in my mind. I don't know if that's really the answer.

0:38:14 Matt: Yeah. Bring it back around. Yeah, That's What it, and Brown Jackson gets into this a little bit as we're talking about how Much we can actually think about what the jury was thinking, but that's a perfectly good explanation of what they might have been thinking. It doesn't make any sense, is the problem. Georgia, I've never heard this expression until today. This is called a repugnant verdict. It's a repugnant verdict when you have two verdicts at the same time that are not legally and logically possible of existing at the same time. It is not just inconsistent, it is disgusting. It It's repugnant. I don't know why they call it that, but that was funny. It's the repugnancy doctrine.

0:38:40 Thomas: Right. Yeah. It's really putting a lot of spin on that ball. Like, yeah. Okay. Maybe someone messed up, man. Like, disgust you, disgust me to my core. Yeah, okay, maybe we misinterpreted the phrase. Come on, like, jeez, harsh.

0:39:14 Matt: Right. Maybe we didn't want to kill him. Could have been.

0:39:23 Thomas: Yeah, yeah. Now, who's repugnant?

0:39:27 Matt: Yeah, definitely. The Supreme Court of Georgia did something very interesting here, because they'd only ever once actually had a repugnant verdict case in 2008, Turner v. State. I looked into Turner v. State. They don't really get into it in this decision, but it was actually a case, a very similar sort of thing, in which the jury simultaneously found that someone had acted in self-defense and acquit him of murder, but found that he had not acted in self -defence, again, by shooting a single bullet in the same act, right?

0:39:27 Thomas: Wow. Uh,

0:39:53 Matt: Yeah.

0:39:49 Thomas: And the same thing. Yeah, yeah, that's

0:39:54 Matt: So, no.

0:39:55 Thomas: Oh, was it Harvey Two -Face? Did he do the that?

0:39:59 Matt: I see where you're going there, but that

0:40:00 Thomas: Would have been good, though. We find that the, you know, unpleasant looking face side of him guilty, the other one. Yeah, he's fine, he's free to go. But are you really saying there's only one? Because, like, I feel like this would happen all the time. Like, the law is confusing enough that, I mean, maybe through jury instruction or something, that this doesn't happen that often, or are you just saying it, like, hasn't gone to a certain level of court that often?

0:40:08 Matt: Would be quite an appeal. Yeah, Harvey T. Fez. Guys.

0:40:24 Matt: Georgia, the Supreme Court has only looked at it once. I confirmed that.

0:40:24 Thomas: Huh, interesting.

0:40:28 Matt: And that was in 2008. But the interesting thing in that case was that they reversed a conviction. Not quite exactly what happened here. So in this case, the Georgia Supreme Court something pretty weird. They decided that because these verdicts didn't make any sense together, let's just vacate them both and send it back. A little weird. They said this is essentially the same as if there's a mistrial when a jury can't reach a verdict. But the jury did reach a verdict. So yeah, you

0:40:48 Thomas: Oh, I mean, I kind of see that, I guess, if, like, if we're going to say, say, okay, it's logically, we're deciding that you can't have two logically contradictory parts of a verdict. I can see the appeal of, like, well, that's like a mistrial because they didn't reach consensus in a way or something. Okay. Also feels double jeopardy -esque though.

0:41:11 Matt: Could see that. But It certainly is. That is our problem. The Fifth Amendment is right at the middle of this one. Just wanted to mention Justice Pinson's concurrence in the Supreme Court, because it's kind of funny. He said that he could not quite shake the doubt that the court's ruling was inconsistent with, this is very funny, the quite absolute sounding bar against retrying a defendant who has secured an acquittal.

0:41:36 Matt: Don't we have something like that? Isn't that quite absolute -sounding?

0:41:36 Thomas: Oh yeah. I like that. So he's like Thomas of opening arguments. He's like, I can't remember what the hell it's called, but I think, I seem to remember we have a pretty solid rule against this.

0:41:44 Matt: Yeah, right? Is it a daily double? Yeah. Yeah. He joined the majority. However, this is where it gets really weird. Guy needed to grow a pair, frankly. Lingering doubt was not enough to justify dissenting from an otherwise unanimous court. I just think that's funny.

0:42:03 Thomas: Okay. Is he pulling a prank where, like, he's doing a meta commentary by having his ruling be, like, inconsistent with the, like, logically inconsistent with what else is going on? Because that's that's pretty cool. I gotta say, question.

0:42:11 Matt: Right. Yeah, it's I just to say that I'm pretty sure double jeopardy applies here, but everybody else is going this way, so I'll just jump off a bridge. Fine. So they vacated both verdicts and sent it back to the trial court. So at this point, he does not stand convicted of anything, but he's also just been acquitted and they're going to try to retry him. Yeah.

0:42:35 Thomas: Could it have been an option? I don't know how anything works. Could have been option, if you were, like, you know, pretty worried about the whole retrying someone who's been acquitted, could you have just vacated the other one, like the guilty one, is that an option?

0:42:35 Matt: Yeah.

0:42:46 Matt: That's what they should have done. And that's pretty much what they...

0:42:48 Thomas: Oh, I didn't know you could do that. Okay, well, I'm a genius. Hey, elect me the Supreme Court of Georgia, everybody. Oh.

0:42:49 Matt: Yeah. Or they could have vacated it and acknowledged that you can't retry on the other charge, which is what they also should have done. They could have vacated both and done that. This whole thing about it just being like a mistrial does not really comport with Fifth Amendment law. So Ketanji Brown-Jackson comes in as a former public defender, and she is absolutely firm in several pages that an acquittal is actually an acquittal. We can't actually reconsider that. It's not an option. Jury holds an unrevealable power to return a verdict if not guilty, even for impermissible reasons. An interesting thought. And this is something I want to preach for a minute because jury nullification, big fan.

0:43:00 Thomas: Okay. Nice.

0:43:25 Thomas: Jury nullification. You know, giving us a little, yeah. Yeah.

0:43:29 Matt: I really think that the jury should be free to reject the prosecution anytime it wants to for any reason and never have to explain itself. I'm very uncomfortable with the idea of making them explain themselves. If you just don't think this is a good charge.

0:43:38 Thomas: Me too should not go the other way though, right? This is only for a not guilty. Okay, good, then I agree. Is

0:43:44 Matt: Right, right. Yeah. You know, obviously for other things, we get to pull the jury and yeah. Out who actually voted what. Argues that essentially this is a nullity, that this repugnant verdict just didn't exist. No acquittal took place because it was just so inconsistent. And Ketanji Brown-Jackson comes in hard and says, we don't care what you think it is. Is double jeopardy. And at the the end of the day, the Supreme Court, the federal government, gets to say what an acquittal is, no matter how you're defining it below. I really appreciated the firmness of this.

0:44:13 Thomas: Nice.

0:44:14 Matt: She says several times in several different ways expressions like, Georgia is mistaken. I just like it when we just say that straight up. It's nice. Doesn't matter how they got there. She says in several ways in some really nice language that you question the jury's verdict. We cannot send this back and have them retried. An acquittal's an acquittal, and that's the end of it. Argument, Sonia Sotomayor said, one possibility is that the jury made a humdinger of a mistake. I think that's a funny way to talk about sending somebody to life in prison.

But another possibility is the jury made no mistake at all, but instead decided to compromise something or decided to show leniency of a kind that is within the right of a jury to show. The exact same thing that you're asking us to look into, which we always said we will not look into. At the end of the day, what they say here is that you can't vacate and send back. Acquittal is the acquittAL that stands.

But what's interesting now is about this, is they have still vacated the guilty on the other charge for which he was facing life in prison. And in a footnote at the very end of it, she acknowledges that the Georgia courts may address as a matter of state law, the status of McElrath's vacated conviction for felony murder, which means means potentially they could retry him. Is actually consistent with something that Justice Ginsburg found a few years ago in Bravo Fernandez v. U.S. in 2016, that when an inconsistent verdict is the only reason that you're vacating it, that it is possible to retry on a guilty conviction.

0:44:14 Thomas: Yeah. Me too. Yeah. Yep.

0:45:30 Matt: So potentially, though, the good news for him is that he has a shot now at a new trial in which he could actually prove that he's NGRI on the whole thing, or acquitted. I mean, it's certainly, if you find the right jury, he might actually be acquitted. It certainly sounds like he did not know what he was doing or have any understanding of reality at the time.

0:45:46 Thomas: You know what, we probably need to do is try to fix that guy's brain, if we can, and then he's not actually a criminal. That would be how I would approach it. Yeah.

0:45:53 Matt: You proposing? Some kind of rehabilitation?

0:45:55 Thomas: I mean, especially in a the case case like that, I mean, it's just so it's to me how much our, you know, human vengeance can't allow us to take a single logical look at any of this stuff, you

0:46:06 Matt: No, I really think rehabilitation should be the purpose of any kind of system like this, but we've given up on that many years ago, and I'd like to bring it back. Alito could not help himself. He could not just join this unanimous decision.

0:46:10 Thomas: Yeah.

0:46:18 Matt: I'm sure that this wonderful language about how important jury acquittals are just didn't rest very well with him. And he wrote this very short concurrence where he's like, like, hold up, just stop a second. Let's be clear about what we're doing. This isn't such a big deal. All I care about, and he's right, he's not wrong. Higher courts can't review acquittals. There was an acquittal. They can't vacate it. That's it. It's done. Full stop. You know, he's basically suggesting we could have just gotten there in a couple of paragraphs, but yeah, maybe.

0:46:25 Thomas: Okay.

0:46:46 Thomas: Like, like, this is dicta kind of thing, like what KBJ is adding isn't necessary. Does

0:46:50 Matt: Right. Enough of this public defender stuff. Let'S just move on. Just wanted to add that concurrence, because that's in there.

0:46:55 Thomas: That functionally do anything? Like, is or

0:46:58 Matt: Just got to get his little bit in. That's all it is.

0:46:59 Thomas: Okay. Just, just gotta, gotta, Alito's gonna Alito. That guy.

0:47:03 Matt: Yeah, every time. Every time.

0:47:05 Thomas: I hate that guy.

0:47:07 Matt: All So yeah, there is the Supreme Court of the United States doing its job quietly, just going about its business. This is the kind of thing we used to count on them to I don't know, back when people basically thought it was okay, I don't, maybe there, there was probably no time when the entire country basically thought I was okay. But back before they were just making stuff up all the time about everything. I Um, thought it's a small piece of good news. I know the bar is in hell, but you know where we're talking about the US Supreme court in the current iteration, but,

0:47:15 Thomas: Did? When? Yeah, yeah. Might be rose -tinted glasses.

0:47:36 Thomas: The bar is in hell with several members of the Supreme Court.

0:47:41 Matt: But we do still have up and coming new young justices that aren't Brett Kavanaugh and Amy Coney Barrett, and hopefully more to come. So I think Ketanji Brown-Jackson is very promising. I hope she sticks around a long time. And this is a good decision.

0:47:52 Thomas: Yeah. To share in the Ketanji Brown-Jackson, the KBJ love, and I do, but also she says she's an originalist. Isn't that weird? Is that just like, she's like, well, there's only one way to get anything done in this stupid court is to pretend you have a stupid jurisprudence that doesn't make sense, but use it for good. Like, is that what she's doing?

0:48:13 Matt: Know if she exactly says she's an originalist, but I think she calls it progressive originalism, I remember her using that for the voting rights. Act. There is an argument for progressive originalism for looking at things from the left, but honestly, yeah, I have to agree. I don't think that there's any reason to meet these people on that turf. So I hope we don't see too much of that out of her, but I'm open to seeing some kind of progressive originals and that might actually work, but just don't want to give it that much credence, I guess.

0:48:15 Thomas: I think she does.

0:48:37 Thomas: Yeah. How does that, Is there a way that it reaches progressive conclusions or something?

0:48:42 Matt: You, for example, believe that the entire point of the -war amendments, the post civil war amendments, was to provide people of color. You approach all of your jurisprudence that way. Could be progressive originalism, right? That's a point that's been made.

0:48:55 Thomas: Interesting. Yeah.

0:48:57 Matt: You look at things and you recognize structural and institutional racism as being a major motivating factor in American history, you could work that direction for originalism. It's certainly possible. I really don't want want to be in a court scenario.

0:49:10 Thomas: I don't know if it's necessary.

0:49:11 Matt: Yeah, I know. I just, I don't think that like, we don't need to have like, rock 'em sock 'em originalism. Like, I dunno, just competing kinds of originalism, it's not the law, it's just history.

0:49:11 Thomas: Yeah. Yeah. On On one hand, it's all made up. So it's like, all right, fine. We have a made up thing too. But ours is better. Our Made up thinking, beat up your big made up think. But one, you does lament the idea that we're just getting further and further into made up land for everything. Thing I know, I know, like the law is at its core, it's all made up, but like you'd like to think there's something to it, you know, like something, oh.

0:49:26 Matt: It's extremely made up.

0:49:41 Matt: Well, especially when you start throwing in history, any history that you want to do, as we've seen with originalism you just edit history however you want. So there's some danger of that too, I guess, but but I don't know. I'm still very much pro -Brown Jackson. I'd be very happy to see her. And I know you are too, but

0:49:46 Thomas: Yeah.

0:49:55 Thomas: Of course, yeah, I, how insulting is it to your profession, Matt, that she is the first, is that really true, the first public defender to be a Supreme Court justice that is wild to me, like that's the thing, if you just ask anyone on the street, hey, what's like a really, what's a, what's an attorney, what's a lawyer what's it, you know, I feel like they would think of like, oh, you know, that's Atticus Finch or something, you know, he's trying to get, get someone who's been absolutely railroad you out of trouble, and like that feels like that's a, that's a lawyer, that's you know, and that you're like, well, we've never had one of those at the highest, you know, the most important court, we don't use those people, we just don't, they're

0:50:02 Matt: That's the truth. Yeah. Yeah, yeah. Yeah?

0:50:33 Matt: Mean you think

0:50:34 Thomas: Unnecessary. Necessary.

0:50:34 Matt: About the pool of people that we draw Supreme Court justices from, and it tends to be people that went to elite universities who went on to become judges and have kept a pretty clean, low profile so they can get themselves on the Supreme Court. And, you know, even Earl Warren, I believe, is a prosecutor. He didn't come from the defense side, and he was one of our most liberal justices.

0:50:46 Thomas: Yeah. Hmm.

0:50:52 Matt: Generally, you're talking about people who have been politicians, who've been academics. Nothing wrong with those things. But I do want to see more people of practical backgrounds getting out of the Supreme Court. I think that's really important. And, especially people of color with practical backgrounds who've really seen it. And I will point out, too, she also defended Guantanamo detainees. She really saw what the federal government's doing.

0:51:02 Thomas: Yeah, for sure. Hmm hmm. Like the ones that Ron DeSantis was be busy, on the other side of.

0:51:12 Matt: Yeah, I was yeah. I remember she got grilled about this at her confirmation hearings, as if there's something wrong with defending Guantanamo Bay detainees, right? I mean, it's people who desperately need a defense.

0:51:14 Thomas: Yeah yeah.

0:51:23 Thomas: Gosh, those are stories I really want to tell on this show. I have a book that was related to that. And you just, you look at these cases and even like me, you know, I think of myself as very progressive now and very anti like Bush administration, all that stuff. And, but like not I don't think have gone back and reconciled like, wait a minute, what, uh, we were a little, uh we were little drunk back then. What did we do? You know, like we don't, they just disappear.

0:51:43 Matt: And we're still doing it? Yeah, they're

0:51:46 Thomas: Yeah. These people just disappear, we don t give them anything for what we did to them, which it's just horrible.

0:51:46 Matt: Still there. Yeah.

0:51:51 Thomas: The stuff we did to people, absolutely horrible. We just move on. The country is just like, yeah, well, even, here's what gets me, even the people who like with it or disagree with it now move on mostly because of bandwidth. Like there's, so much going on at all times. It's horrible. But there's these horrible injustices that just never got addressed.

0:52:03 Matt: Right. Yeah? Yeah. It's perfect that you say that because I was one of those people. I mean, I still care very much about it, but I remember there was a period of my life where I just couldn't stop thinking about the fact that we were doing this, that we had this constitution -free zone where we were torturing people indefinitely and just holding them in these terrible conditions. Good news, though, I do know a guy. I think we might be able to talk about this, and maybe there's an episode coming on Guantanamo Bay. It'S something I'd love to talk talk about.

0:52:19 Thomas: Yeah. Ooh, I would really love that. 'Cause that there's... there's so much there. That'd be, that'd be really good. And so I don't want to sour the note of great decision by KBJ, our Supreme Court hero, written. And even the bad decisions, it's really nice to be able to hear her voice and read her voice. So good news. And I told you to, you know, prove it when you said there was good news, and you did. Did okay, I- mean, I haven't seen like the paper of the decision, do you haven's seen it written out? So he, Matt, might be making this up, everybody. Like, I'm not sure, but, uh, you know, if he did, good job. Yeah.

0:53:02 Matt: It very creative. Yes.

0:53:03 Thomas: Sure, right. Well, that's the show, Matt. Thank uh you so much. That's it for episode 1,008. Really excited for what we have planned for Monday's episode. Thing, we did a little bit of good news in this one. Because Monday, prepare to be not good newsed, but in a very important way.

0:53:20 Matt: How that stuff you've been hearing about how Republicans are going to end democracy? Democracy. Let's talk about that, how they might actually do it. Yeah.

0:53:25 Thomas: Let's talk about that. Thanks so much for listening, everybody. Please patreon.com/law. And we'll see you then.

0:53:33 Clip: This podcast is a production of Opening Arguments Media, LLC, All Rights Reserved. It is produced and edited by Thomas Smith, who also provided the fabulous intro and outro music used with permission.

0:53:50 Matt: Alabama, it's the only country... That's scary. It feels like a country. Excuse me. Alabama rational decision would actually examine this.

0:53:55 Thomas: Yeah. Do I think it's actually blastocyst? Am I crazy?

0:54:00 Matt: Oh, you know what? I think it is blastocyst.