Arizona Republican Party Like It's 1864

Transcript

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

0:00:52 Thomas: Hey, hello, and welcome to Opening Arguments. This is episode 1022. I'm your host Thomas Smith. That over there is your co-host Matt Cameron. How you doing, Matt?

0:01:00 Matt: Think I'm angry, Thomas. Is this what it feels like?

0:01:02 Thomas: Holy shit, sound the alarm. Matt's angry, everybody.

0:01:06 Matt: I need like a special sound effect or something just to warn you that I'm going to raise my voice just a little bit. Just a few decibels more.

0:01:13 Thomas: It's, uh, it's like all the news decided to wait until you graduated from anger lessons school. It's perfect. It's good timing. Yeah, no, not great news today. Not great news.

0:01:21 Matt: Oh, we've got two big decisions to look at that both ban abortion in their states. We've got two more states have lost their rights in the space of nine days, April 1st and April 9th. So, you that's not great, but

0:01:34 Thomas: I definitely was about the Arizona one and was paying attention to it. And then I honestly, I missed the Florida one. I

0:01:40 Matt: The Florida one is so stupid. It's so completely stupid that like, I wouldn't blame you if you just kind of blurted out as you were kind of looking at the news, like it just kindof didn't get into your mind because it's so stupid, it. It's that bad.

0:01:43 Thomas: Oh. Boy. Well we're going to talk about all that but A little bit good news to mix into that too, uh right after this break, which of course patrons at patreon.com/law do not have to, uh here so join their ranks, get that Law Awful Movies. Oh, we're coming up on another one of those pretty soon ish goes faster than you think, can't wait to to do that. And, uh you know, bonus stuff, no ads, a lot of good reasons to be on patreon.com/law. uh You'll uh join the ranks, okay.

0:02:17 Thomas: With the good news or ending with the good news, let's, is it a chaser or a pre-game?

0:02:21 Matt: It's good news that we all saw this morning. Maybe it's so bleak that the death of a 76-year-old man Is good news, but a man Who spent 16 years viciously abusing and physically beating his wife before almost certainly killing her and a stranger just because He wanted to. Wanted to mention OJ just because it was a pretty formative thing, I was 14 and I didn't know anything about criminal law until this trial, do you remember the trial, were You following it, that's

0:02:26 Thomas: Yeah. Yeah. Hmm. Uh. Man. I, it's, I think it's gotten to the point in my life because, you know, I'm a bit, a little bit younger, uh not to brag, but slightly younger, I was in third Grade, um, I actually have one weird memory about it, uh, is that it our third grade teacher would like ask us something before class, for some reason would like pose a question just to see if anybody knew it, and he asked, like, "Who is OJ Simpson?" And I kind of recognized him from the news vaguely, and then, and to my amazement, somehow, one kid who wasn't like the smart kid or anything, he was just like this, know, one was normally toward the bottom of the class.

He got up and answered, he's like, "OG Simpson, he's on trial or something." And then the teacher was like, "Yeah, but what, who is he?" And I was like, you got me, I'm glad I'm not up there, buddy, because I have no idea. I thought that was it, I thought the answer was he's a guy who's on trail. And then he said, "Oh, he is." He's a football player, was, like, wow, I did not know that at all. So that's how young I was. I have this weird, you know, those random childhood memories that just stick in your mind, I don't know why.

0:02:54 Matt: True. Oh. Wow, yeah.

0:03:39 Matt: Yeah, I can see how that would stick, and I mean, I, I have never followed football, I had no idea who he was. When, uh, he actually, uh, the murder was on my birthday, on June 12th, 1994, um,

0:03:48 Thomas: You Know, I'm not saying it's the worst part of it, but it's inconsiderate that he did that is all.

0:03:51 Matt: Yeah, no, I could have waited a Day, and then they think the white Bronco chase was either, it was was like that night or the day after or something.

0:03:52 Thomas: Yeah. The other thing I started to say is I've watching, you, the documentary and the dramatization one. And so I don't know, like, what has real memories I have and what has just come from that, because humans have a tendency to do that. You know, we just kind of like constantly rewrite our memory every time we access it, which kind of sucks.

0:04:08 Matt: Yeah. I had that thought too, because I watched both of those, but yeah, no, they're both good. But for me though, it was the criminal law. Like I didn't know anything about criminal law, at you 14 and I did watch some of the trial. I don't remember. It was getting into the players and seeing what the prosecution defense were doing, seeing the way the defense was really pushing to make the prosecution prove its case.

0:04:10 Thomas: Yeah. Yeah.

0:04:25 Matt: You know, I just had no idea how any of it worked. So it my first real trial, my first exposure to any of this stuff.

0:04:26 Thomas: Well, that was what, when you learn that what mattered most of all was if there's a woman involved, what her haircut was. And that's like the, the determining factor of the trial. So that was definitely, I didn't know that at the time.

0:04:36 Matt: It's true. Yeah. No, that was a critical factor. Even then I had some sense that if you're a person with a lot of money that you can pay for a different kind of trial than other people. And that's a lesson that stuck with me. Certainly what O.J. Simpson did. So, I don't know. Yeah. A person, I hope that his only legacy and the only thing he's remembered for is the fact that he definitely viciously domestically abused and murdered someone.

0:05:00 Thomas: Yeah.

0:05:00 Matt: I don't care about football or any of the movies he's been in, so that's maybe my perspective, but yeah,

0:05:04 Thomas: Oh, I Actually used to love those movies, were so funny to me. And also I didn't, was good at football. I'll give him that. It sucks. Actually, I, one question I had that I haven't looked up yet is I do wonder if they're going to take a look at his brain for CTE, you know, like I, that would be interesting. That's a very interesting moral component of this, you Know, cause We've certainly seen, seen times where X, people, players, it's often suicide, but you know it's also often they've done things to other people. And obviously that's horrible and, but it, then when look at their brain and it's just been ruined by this blood sport that we have, it's hard to be like, well, you should have thought of that. I don't know.

Like, you know what I mean? Like, it's just it's this messy thing. I it were true, and I don'T know that it is, I absolutely do not. But like, if it Were true for take, take not OJ, any other player that, You brain was severely damaged by the sport that we all, you, them do, or whatever, like people kind of profited on it, that they might have profited to, but maybe not by the, the way a lot of the uh players that, that didn't, were make a whole lot of money, they just got the brain damage and none of the money. And also the NFL avoiding paying for health care for them as much as they can, all that, it's hard, it's tricky to think about that, like who is really the bad guy in that

0:05:17 Matt: Yeah, it is.

0:05:35 Matt: Yeah. Sure.

0:06:07 Thomas: Situation.

0:06:08 Matt: There's a lot we don't know, and I'm completely willing to concede that the CTE may really actually cause these acts of violence and make people like this. There is such a high incidents among football players, MMA fighters, right? At same time, if it were found to be too dangerous for humans to do and they criminalized football tomorrow, I'd be pretty happy about that. That's my bias. Just as happy to have football out of my life completely. I'm not really the guy to talk about this.

0:06:14 Thomas: Yeah. Yeah.

0:06:26 Thomas: It's Tough when you don't really value the thing. No, I know, I don't, I stopped watching it because of a lot of reasons, but that was definitely one of them. It's like, it's just, yeah, there's, it's not quite

0:06:32 Matt: Yeah. You're complicit. I think you are a bit complicit when You're watching. I don't know. I mean, it does seem that way that there is severe consequences to health and mental health we still don't really know. Know, um, also some evidence that he was kind of a jerk for most of his life so you know

0:06:37 Thomas: Right. Yeah. Yeah, could have entirely not been that at all. I want to make very clear, but I just had that curiosity if that's something that anyone was going to look at. I don't know. I mean, they have to specifically, it's, it' weird. That's the thing you cannot diagnose at least right now until post-mortem. It's just a really interesting, interesting but

0:07:02 Matt: If the science is is there forever to become a viable legal defense we'll talk about it that'll be a great subject

0:07:04 Thomas: Someday well uh, kind of you, your interest in criminal law or yeah

0:07:06 Matt: Yeah just in the whole thing in the trial, like I was fascinated by the trial and the way it all went down, and you know, I, I remember pretty distinctly as a, as a kid, thinking that he had definitely done it, but I could also understand what the, what the lawyers are doing and you and why that was such an effective defense. So, you know, it was, and it's the defense he paid for.

0:07:25 Thomas: Not all right, well, we've, you get your anger ready, have you started, start your anger engines, Matt, I want to hear real

0:07:30 Matt: Yeah. OJ's a good warmup. I think that was a good start.

0:07:31 Thomas: Yeah I hear the the veins bulging out of your skull while we talk about these uh and backwards handmaid's tale laws that are, or decisions, I guess. I don't even, I don't even know how to characterize it. Where do we start? We

0:07:39 Matt: Yeah, well, are decisions. One of them is way more idiotic than the other one. And I'd like to start with that just as an appetizer, I think, um, start in Florida. I guess I could have made you guess, but that is the stupid one of the two, um, Judge Jamie Gross Hans, I keep reading Gross Hands every time I read Gross Hans, but, um, decision in Planned planned Parenthood v. Florida, April 1st, 2024, is sadly not an April Fool's joke, although it does read like one in many places, um just walk it back just feel like here's the real decision, yeah, Yeah, not that simple, notes are full of some, though, just many different places. So let's just go through it. Let me try to explain what this is about. Florida, like, was trying to litigate through to figure out what is going on with its state law now that Roe isn't a law. So they have to try to see where the state law can be upheld or not and what's going on.

And of course, Ron DeSantis signed a heartbeat bill, so-called, that criminalizes abortion after six weeks. So that's pretty extreme. And that was signed and would take effect in May. This law was not actually before the court, but everybody knew, and they pretty much acknowledged, that it's going to kick in if they find that there's no right to an abortion in Florida, him. The reason they know that is because the law was actually specifically written with that as a trigger. I thought this was very interesting.

0:08:07 Thomas: They should have just pretended it was honestly, like what would happen? Yeah.

0:08:56 Thomas: Yeah. Yeah. Used to call them trigger laws. That was what we were worried about back in the olden times when we still had something called Roe v. Wade, everybody. I DON'T know how many people remember that, but it was, yeah, it was after OJ, but it's been a while. Lot of states had these trigger laws, right?

0:09:01 Matt: But this is actually a more specific trigger law. It's not about the federal law. It's about state law.

0:09:14 Thomas: Oh, OK. Interesting.

0:09:15 Matt: And I totally agree. There were a number that just kind of kicked in automatically. They were just rearing for that day when Roe was overturned. This one was a little more subtle. I don't know why they did it this way, but this is the heartbeat beat bill. It says that it doesn't become law until one of the following things occurs 30 days after that.

Thing is that the Florida Supreme Court could hold that the right to privacy enshrined in the state constitution does not include a right to abortion. That's actually what they did. Spoiler. Specifically, a decision in the Florida Supreme Court in Planned Parenthood v. State, this decision, which was pending at the time, or a decision from the Florida Supreme Court after a certain point, which would withdraw, they call it receding or overruling the previous decisions that said that there is a right to an abortion in Florida. So they basically, they set this up in several different ways so that, belt and suspenders, so that even if they didn't get through on Planned Parenthood state, state, they could find a way in the future to have one of these conditions kick in so that this would become law. So this is all pretty clever. It's It's obviously all been worked out.

They have a lot of people working on these things, all kind of coordinating in a way that I envy. So this law is not in front of the court, but it is very much in front of the Court because of the point at which the Court finds that there is no right to an abortion in Florida. This law will kick in, and they're certainly aware of that.

0:09:49 Thomas: Hmm, hmm.

0:10:21 Thomas: Is saying that like they some previous Florida court decision said, yes, there is a right to an abortion in our state constitution. Is that what it is? And then they've undone that.

0:10:28 Matt: Yes. Yes. So let me take you through it, because actually I would like to spend some time on this one, because I think this is one of those places where it's actually worth, just like we were doing with the Trump arguments last week, just kind of like knocking them down, just setting them up and knocking them down, and seeing just how bad they are when you actually get in close and start studying what they're doing. Because the Arizona decision, as we'll see, is much more sophisticated.

It's really buried in layers upon layers of statutory interpretation. It looks very smart, very urbane. It looks like something, when you read it, it's like, oh, well, this is a judge that wrote this decision. Is a middle school essay written by someone who just found out about the law. Yeah. And it's just kind of doing the thing. I mean, there's, yeah. Okay. So let me just set it up. Let me explain where we're coming from, which is that in 1980, Florida voters made Florida one of 10 states that actually has a right to privacy actually enshrined in the constitution. So there's an actual constitutional right to private, which we don't have under the federal constitution, you

0:10:29 Thomas: Oh, wow. Cool.

0:11:21 Matt: Know, in the Constitution. It's just been written by the Supreme Court.

0:11:21 Thomas: We've we've got ourselves that umbra penumbra.

0:11:25 Matt: Remember, that's the best we can do. Yeah, Section 23 of the state constitution now has a right to privacy as of 1980. And just to show you how important this is, this is squeezed in between trial by jury and Section 24, access to public records and meetings. So it's up there with those kinds of rights.

And the entire text of the amendment is, "Every natural person has the right to be let alone and free from governmental intrusion into the person's private life, except as otherwise provided herein," that being the constitution. "This section shall not be construed to limit the public's right of access to public records and meetings as provided by law." So the question becomes, does this constitutional right of privacy include the right to reproductive health care and reproductive freedom?

And now, of course, we all know that that was what Roe was based on originally, was the idea of a right to privacy and those pronumbers you're talking about. So at the time when the voters voted on this, that was the law. Everybody understood that the Supreme Court had found that there was a right to privacy and that it included the right for people who are pregnant to have an abortion. Wasn't any question at the time they voted.

But what Judge Grossans does in this case is, honestly, it's a new thing. I haven't seen it done yet. She says, "Well, let's just go full originalist on something that was passed when The Empire Strikes Back was in the theater."

0:12:45 Matt: 1980, let's do originalism on something for which there are still people alive who clearly remember 1980 who we could ask. We

0:12:53 Thomas: Lando Calrissian, for one, I guess we got to ask him.

0:12:56 Matt: Could do that, we could actually go and and like, you know, like look at and talk to people who were there. But she, this, this to me, this decision really brings out the bankruptcy of originalism in a way that even the Scalia stuff doesn't, because I was, well, I was barely alive in 1980. I'm not going to say I was alive in 1980. Um, was six months old by probably the time this thing happened, but

0:13:16 Thomas: Give Give yourself some credit. You were probably alive.

0:13:18 Matt: Was breathing. Yeah, the point is that originalism is like this fun mystical exercise when you're talking about 1776 or 1790 or 1816 or whatever, right? But when you're talking about 1980, you're taking this perfectly good joke, and originalism is obviously a joke for all intents, you're taking it way too far. I mean, this is really, you're taking it to to the point that you get to pick and choose the records that you want from a time that is much better documented and much better remembered than 1776, in that there are people who still remember it. And she goes through this decision, and okay, all right, she not only has to find that this constitutional provision does not and was never intended to include a right to any kind of abortion or reproductive care like that, but she has to overrule a line of cases starting in 1989 that specifically says that abortion is included in this right to privacy. She's got quite a task ahead of her. And not going to say she's intellectually up for it, but she goes for it. She goes all the way.

0:14:08 Thomas: Wow. Well, it's pretty easy, though. You say there's a task, but at this point, do they have to do much more than just sign a vote? No, you know, kind of thing. I mean, I guess they still do that exercise of trying to justify it. I don't know how much that matters though.

0:14:30 Matt: Was going to Say you want to be taken seriously, but I'm just going to saying you're a Florida, you're at a Florida Supreme Court justice.

0:14:33 Thomas: Know we know they don't want that. Yeah, we're

0:14:37 Matt: So I'm sorry. I'm Sorry, Florida.

0:14:38 Thomas: Pretty certain that's not it. We can eliminate that possibility. Okay, next idea.

0:14:42 Matt: I mean yeah, there's Florida Supreme court and they're finding it it on state constitutional grounds, so they're not going to be appealed, right? So they really could just issue a couple of paragraphs or a couple sentences if they wanted to. She has a very long, large print decision that goes on and on with all this stuff about originalism. So I just want to hit some of the highlights here. To be clear, the case that they're overruling, which is a matter of TW, is really They not say it more clearly, I think, that this is what happened, right? Here's Roe. Here's our constitution. Here is what we think. There's a right to privacy. There's the right that includes the right to abortion. So you have to overcome that too, but let's just take her on our own terms just for fun and look at originalism because, as

0:14:49 Thomas: Yeah, hope there's a lot of like our founding fathers of the roller skates in the mall and stuff, you know, just like sub it in with 80s. They're not the founding. Okay, they're not the original ones, but like our founding 80s fathers

0:15:31 Matt: Was written by the Atari Corporation, yes. Going to read you NRATW, from which is the 1989 case, just so you can see how clear this is. Florida's privacy provision is clearly implicated in a woman's decision of whether or not to continue her pregnancy. We can conceive a few more personal or private decisions concerning one's body that one can make in the course of a lifetime, except perhaps the decision of the terminally ill, et cetera, et cetera. Of all decisions a person makes about his or her body, the most profound and intimate relate to two sets of ultimate questions, et cetera., et cetera." Like,

0:15:35 Thomas: Yeah.

0:15:59 Thomas: This reads Like a punchline to something. We just want to make absolutely clear, and in case in the year 2024 someone is a huge dumb idiot, we want to make absolutely clear we think this applies to abortion a hundred percent. It couldn't read anymore like that. Wow.

0:16:11 Matt: Yes! In the concurrence, one of the other conservative judges, you know, says that I assume that even if Roe were overturned, that this would survive. Yeah. So, sure.

0:16:19 Thomas: Well, Right off the bat, I mean, I- the U.S. Constitution doesn't specifically have like a right to privacy. We've got, like you said, we've got the, we got a penumbra. We got ourselves a penumbria. It's a great penumbri. It's a beautiful penumbrio. We shouldn't, shouldn't be self-conscious about the size of our penumbrium. It's a good penumbrian, but then to to say, well, this state constitution, which doesn't just have a penumbra, we've got an actual thing like they went ahead and took the trouble of voting in and like more right to privacy than you would you would think more than at the federal level, but somehow we're going to say that doesn't include a right to an abortion. Yeah.

0:16:48 Matt: Yeah, even Though again, at that point, Roe had been settled law for seven years, and people understood that there's a right to privacy connected to it. So, you know, we can do originalism too. That's always the fun of this, right? That you can always try originalism from any side because you can always find something in the record that supports what you want. And, you don't want to, but you can. And the thing that she is really blatantly ignoring all the way through this is that that was what was in the water at the time. The dissent tries to point that out and say, well, of course, they weren't talking about it that much because everybody assumed that abortion was legal and it was going to stay Legal because that was the law.

A campaign obviously to try to overturn Roe by that, like the kind of frothing that has occurred later in our lifetimes. I'm as sure, you know, Roe was kind of gutted by Planned Parenthood v. Casey, 12 years after this vote in 1992. And the majority even kind of has the temerity to suggest that somehow because the Supreme Court changed its mind about the basis, right? And so they said that it's no longer a right to privacy issue, it's actually a due process issue under the 14th Amendment, that somehow that cancels out the 1980s. I don't understand that at all. So let me just give you

0:17:20 Thomas: Yeah.

0:17:33 Thomas: Interesting.

0:17:53 Thomas: Oh.

0:17:53 Matt: Just a taste. So she really does do this like a middle school essay where it's just like, here's the thing I have to talk about. I'm going to talk About it. Here's another thing I'm gonna talk about." And then literally, there's an Oxford-Zicknery moment, right? Not Webster's, But Oxford. So she goes a little higher class. But for example, she decides that something we we have to do to start is to just see if the language I just read you from the 1980 amendment includes the word abortion. Oh, it doesn't. Who knew?

0:18:04 Thomas: My God. Wow.

0:18:15 Thomas: That's awesome, amazing. Amazing.

0:18:17 Matt: Just forgot to mention it. They also didn't mention web browsers in 1980 for some reason in our right to privacy. Do you think maybe they didn't want us to have a right to private privacy? I don't know. I don't know. Do you want us have a privacy on web browsers? Do you know?

0:18:22 Thomas: These people are so... thing I want to do for the rest of my life, like if I had the time, I would want to go to conservative conventions or all the different... I mean, maybe not now, but the safer Nazi gatherings, those ones, and just ask them, what are the fundamental rights you think you have? Just tell me. Right to what?

0:18:42 Matt: Right, right.

0:18:43 Thomas: What is it? You think of the Constitution. What is your rights? And okay, I'll give you maybe free speech. I guess technically you could probably find not literally those words, but like words close enough to that. Basically, every single other right that people think they have, you're not going to find the exact wording like the right people would say, oh, I have the right to an attorney. I've the right remain silent. They think that's in the Constitution? I bet they do think it is or they don't think about it.

0:18:53 Matt: Sure.

0:19:10 Matt: Sounds like you're trying to suggest, and this can't be right, but it seems like you are trying to suggests that maybe law evolves with society and has to try to adapt to things as they change?

0:19:18 Thomas: Will do you one one better than that, Matt. Yes. And I mean, yes. And maybe laws aren't written to include literally every single instance in particular item of what it will apply to. Like sometimes laws are just, and I think all the time, almost laws are juste generalities that you then apply to specifics. Sometimes they do the thing where they list examples and say like, including, not, but not limited to, you want to give people an idea, but you like for the most part, it would take a very long time to write down every single literal instance of when a law should apply.

0:19:39 Matt: Sure.

0:19:48 Thomas: Constitutional paper is precious. You know, you can't.

0:19:51 Matt: No, but if that were true, though, then you'd have to have some kind of person to judge whether or not the law said the thing that you think it says. And that sounds too complicated. I don't know. Yeah, let's toss this.

0:19:57 Thomas: Yeah, you're right. We can't do that. Oh,

0:20:02 Matt: So here is now looking at the phrase, let alone. She takes paragraphs deciding what the voters meant when they voted on something thing that said that people want to be let alone. Where she goes with this. First of all, starting with Oxford's dictionary defines let alone as, and going from there.

0:20:19 Thomas: Just thought of a diabolical plan, Matt. You Know, things are rough. We've got an battle when it comes to changing this country. You know what I think we haven't done yet? We haven't tried getting to the dictionary, folks. If we could take every dictionary, I don't know how Republicans will be able to write decisions. If, if we, if, we take every Dictionary, they're probably liberal folks who are in charge of dictionaries. I think we told them, Hey, it's an emergency. Sorry. We need to do this. Whatever dumb ass term is in the thing. We just have them change the entry to say like, yeah, that means an abortion. Like it's definitely a right to an abortion that we tried it. I'm just saying like, it'S extreme extreme times, extreme measures.

0:20:30 Matt: Yes, that's true.

0:20:53 Matt: And could spend the rest of the night having you guess where she goes with the definition of let alone. And I'm sure you wouldn't get it because you're a reasonable, intelligent person who knows what words mean understands that when voters pass a law that says they want the government out of their lives, they don't actually mean that they only want the movement out of the government. They only want to get the government of their wives when it's any kind of thing that only requires you to be alone. That's what she comes up with.

0:21:21 Thomas: Yeah, so wait. Does that mean Okay, so they want, they specifically, here we go, Matt, they didn't want the government to stop them from masturbating, but they would want the government to be able to stop him from having sex with a partner or more, one or more part because then you're not alone anymore, right? Okay.

0:21:22 Matt: So there's No, right? Or Yeah. Exactly. Or what kind of sex are you having it with, right? This is all very important, the government needs to be involved, uh And you know, if being a libertarian or conservative stands for anything, it's that the government has to be, a libertarian or a conservative needs to involved, so is what she actually says. Um, accepted definitions do not seem to us to be in natural ways of describing the abortion procedures of 1980, going originalist on abortion procedures in 1980. Decision to have an abortion may have been made in solitude, but the procedure itself includes medical intervention and required both the presence and intrusion of others.

0:21:35 Thomas: Oh. My god. Yeah. No.

0:22:06 Thomas: Way, Matt.

0:22:06 Matt: Yes.

0:22:07 Thomas: No.

0:22:07 Matt: Yes.

0:22:07 Thomas: No.

0:22:08 Matt: That's what she's saying.

0:22:09 Thomas: I'm Sorry. I this a long time. There's been a lot of stupid stuff. This is beyond belief. I don't like at what point are they just doing a joke? Are they doing a bit? What if they're like, hey, you know, we can just get away with anything. Anything. We can get away mit anything. We're conservatives who control the courts in Florida and most levels of government. Let's do let's let's prank them. Let's just prank them real hard.

0:22:15 Matt: She's I told you. I told ya.

0:22:33 Thomas: This is terrible.

0:22:25 Matt: Yeah. Yeah, we'll just release it on April 1st. Why not? Let's just go all the way. But that is really what she is saying when she's doing her total textual analysis, which isn't even the basis of the decision. She's just having some fun deciding what let alone means. But apparently by this standard, any activity that you could have another person or need to have another a person involved with, you have no right to privacy in. So I don't even know what to say about that.

0:22:35 Thomas: Oh, my God.

0:22:55 Thomas: Unbelievably stupid. I cannot. Nobody would think that's what they're voting for in 1980 or any time.

0:22:56 Matt: Yeah. It's... No. Yeah, just stuff I do by myself. Then she decides to take a look to see if maybe the right to be alone is now for ladies, or could be for ladies or not men. If you're going originalist, you have to see maybe only men had a right to be a let alone. So she goes into the rich legal tradition, going back to an 1890 Harvard law review article in which we're trying to figure out the origin of Of the the phrase, phrase let alone, or the right to be let alone because of course that's what voters were doing in 1980 was going back to an 1890, Harvard law Review article and making sure they understood exactly where that phrase came from before they voted on it. These are very informed voters in Florida. Weren't just thinking, hey, yeah, maybe the government should stay out of my life.

0:23:36 Thomas: Yeah.

0:23:36 Matt: They were carefully thinking through the phrasing. Also notes that courts have found that the right to be alone does not allow self -harm or harm to others. So just discovering things as we go here.

0:23:45 Thomas: Well, -harm is one thing. I didn't need the harm to others because you wouldn't be alone if you were. So you already covered that. But I feel like there would be a powerful argument that it should allow, it at least allow suicide by yourself.

0:23:49 Matt: That's right. Yeah. I agree.

0:23:56 Thomas: Why I don't understand?

0:23:57 Matt: Yeah? I think you should have the right right, to make that decision. You know, again, she's trying to go for as much historical context as possible. And she even points out that when Florida advocates challenged their abortion law in 1972, around the time that Roe was being challenged, they didn't bring a right to privacy grounds. So nobody was thinking about it in 1972 just because Roe came later on that, right? Just keeps going.

0:24:20 Matt: Just to make this note, and maybe people are aware of this, but I just want to make sure I say this clearly. There isn't even really an established definition of originalism, because you can actually call yourself originalist if you are looking to see the intent of the people who wrote the law, but you can also call yourself an originalist if you're looking at what people, average people, in the place where the law was passed, would have thought of the law at the time if they thought about it at all. Those are both originalism. And she's going for the latter. She's deciding not to look necessarily so much at what people were thinking when they passed the law, although she gets into that a little bit. But she mostly is just trying to figure out what the average voter would have been thinking. And so she addresses the dissent's very clear and very reasonable statement that Roe was the law. So maybe people were thinking that a right to privacy included a right to an abortion when they went to vote.

Writes, "So while the Roe majority may have deemed abortion to be part of a quote unquote right to privacy, it would require an analytical leap to say that the public would have instinctively associated the right to be let alone and free from governmental interference in one's private life with abortion," even though the Supreme Court had literally used that language in 1973, seven years earlier. I guess we just presume that the general public doesn't pay attention to Supreme Court decisions, including ones this important.

0:24:37 Thomas: Right. Yeah. Yeah.

0:25:27 Thomas: The other key to originalism is just saying what you want and then saying people would have thought that. It doesn't really matter who would have fought it. You can just say, "Well, the founders and the people at the time, they would have taught that this meant whatever," and you just, you just say it. There's no not a high burden there of proof, oh.

0:25:31 Matt: Yes. Yeah. That is what you do. That's right. Yeah, no, there is Actually, an entire law review article making the originalist case for the, of her point, for saying that actually, there's a bunch of stuff. There's their editorials, their speeches, there are people out there talking about this. Now, it wasn't the main point of the amendment, because again, it was the law and people weren't really thinking about it that way. But there were people saying this definitely includes the right to abortion, and she just doesn't mention any of that.

Even though again, 1980, you can find this stuff on microfiche if you want to, presumably. I don't know, it's a lot of work to go through microfiche, but it's out there. Mentions and claims, actually, that at one point the commission, which was reviewing the revisions of the constitution. So just for context, the commission was putting together kind of a package of amendments that were voted on, and not all of them made it to the ballot. She claims that they rejected a separate abortion amendment.

And that's something we can consider, but I couldn't find anything like that. I found multiple summaries of all the different things that didn't make it to the ballot. And you would think that abortion would have been noteworthy, but I'm

0:26:35 Matt: Not saying she's lying.

0:26:35 Thomas: She just claims. That, like, "Hey, this is proof they didn't want it because they rejected that," huh?

0:26:39 Matt: Cites it's something that is not available online. I couldn't find anywhere. I did find two law review articles that reviewed all the different proposals and didn't mention either of those things. I don't know. I'm just saying it's, she had to go pretty deep to make that point. I don't trust anything she's saying in here. I didn't trust her citations. So I was trying to check some of these things. She believes that the commission, when they were proposing this privacy thing, they were mostly just concerned about surveillance and record keeping, not abortion. They weren't thinking about things like that.

0:26:47 Thomas: Yeah. Sure. Sure.

0:27:03 Matt: They were thinking, even though there were, out there, there were gay rights advocates making the point that this is going to be very good for queer people. There were marijuana users saying that this was going to pave the way to make sure that you have the right to smoke marijuana in your house, because there was no right to do that at the time. So, you know, that kind of thing. So she gets into whether or not this was supposed to include what she calls decisional privacy. So there's the kind of privacy where you just don't have decisional

0:27:03 Thomas: Oh. Yeah. No, I didn't break it down into different kind, there's decisional artisanal privacy, vehicular privacy, um, public privacy, there's private. I think it just means privacy, it just mean privacy. Yeah.

0:27:25 Matt: Kinds of privacy. Right. Yeah, there is no way there was not a single voter standing there thinking, well, you know, I'm all about not having the government surveil me, but I do want the government to help out when I'm making decisions. Decisions. Just think about any of this.

0:27:47 Thomas: And, by the way, I, I only want the government to not be able to surveil me if I'm totally alone. If I am with somebody else, like with my wife, then, you know, I'm not being let alone, so I don't, it's very weird. These voters were weird, can I say? These voters who passed this were odd, they're odd ducks, yeah.

0:28:01 Matt: We have such a clear line into their brains. Clearly, we understand them very well. So I think I have to agree with you. Anyway, it goes on. Just a few other quick things that she mentions. Just in passing, she mentions that one of the bill's sponsors said that it would be garbage to think that it has an expansive view of privacy. One of the sponsors. She mentions that 27 of the people who voted in the legislature, because you had to get it through the legislature to get on the ballot, 27 of the people who voted for it in the legislature would also go on to vote for a federal ban on abortion after Roe. That's 27 out of the many, many people. It passed overwhelmingly in the legislator, right? I'm not sure what that's supposed to tell us.

0:28:09 Thomas: Yeah, but All this also is completely stupid because you have the history of cases of stare decisis, what, yeah?

0:28:48 Matt: She has to, on top of doing this originalist thing, which continues to go on, the only other thing I'll mention with originalism is extremely realized I really couldn't trust anything she was saying. I mean, I already knew that because she's doing this weird 1980 originalism. But the way she was doing this, she referred to a number of restrictions in 1978 on abortion starting after Roe. And one of the things that she refers to as a restriction is regulation of clinics and outlying illegal clinics.

She calls that a restriction on abortion, to just do basic regulation to make sure that they're safe, not the the kind of super restrictive stuff that you see today. Regulations fetal remains and stuff that, again, you would have to pass around all of this stuff. And what they're doing, of course, is establishing a legal regime around something that had previously been criminalized. That's what you do when you start to regulate something. You pass regulations. Okay, enough. All right. You get the idea. Yes.

So matter of TW, the thing you were just talking about. So in Florida, when you want to overrule stare decisis, there's a case recently that kind of codified this a little better, called State v. Poole, just from a few years ago. Have to show that that case was clear error. So she goes ahead and says that, for reasons I'll get into in a second, mostly based on all of this dumb originalism.

You also have to show that the reliance on precedent shouldn't keep you from just going ahead and overruling it. And for that part, she just basically copies and pastes from Alito and from Dobbs. And it just says, we agree with the reasoning of Dobbs that reliance isn't a factor here. It's totally fine. And it is. So, Planned Parenthood hasn't argued any other reason for keeping it around. So, you know, whatever, let's kill it.

A really brutal, they call receding of the case, just taking it back entirely in this very clear, very principled language from 1989 saying that this definitely includes your right to an abortion and just saying, no, it doesn't include that at all. They were wrong. They didn't understand in 1989, they didn't understand the proper historical context of 1980.

0:30:35 Matt: I actually hadn't formulated it that way until right now, and that's very stupid, even for this.

0:30:40 Thomas: We had this awful, awful decision, and that means that there's a trigger law that was based on, not Roe, I guess you're saying it was based on this very bullshit, this kind of yeah and so that law meant six week abortion ban, is that what, what it was, I

0:30:52 Matt: Yeah, this litigation. Yeah, what they call a heartbeat bill, I think that's deceptive if they understand it scientifically, but that will go into effect in May.

0:31:02 Thomas: Know, I know we all know this, I know we say it every time, but six weeks, you don't even know you are pregnant oftentimes in six weeks every single time we, you discovered we were having a kid, it was at least five weeks, I want to say, like, there's no, and that's like when you're trying and you everyone is regular, you don't know that you missed a period necessarily within a minute of missing it, like it's not it's it's so stupid, that means, means I just want, I just hope everyone's on the same page, you, we know, all know this, six-week ban means full ban, like there's almost no way to conceivably get an abortion based on the time it takes, based on, you know, and often they force you to make more appointments and do about, there's other hoops you have to jump through, six-week ban means total ban I'm

0:31:09 Matt: Yeah, sure. Sure. Sure. Oh, yeah.

0:31:46 Matt: The idea. That's why Ron DeSantis signed it. You news out of this Florida thing is that right around, I think it was the same week, by a very slim 5 -4, they decided to allow the issue to go on the ballot. So Florida's voters will get to go and actually vote on whether the Supreme Court was correct or not.

0:32:04 Thomas: Sorry, they did a vote on whether or not democracy should exist, and it was five-four, like, just, just barely, some of, unfortunately, some sort of conservatives were like, well, I guess the people should still have a say in like how government works and all that. Fine.

0:32:10 Matt: Yeah, I didn't. Yeah. Yeah, pretty much.

0:32:22 Thomas: What know if you plan on going into that, but like, what is the argument on either side of that? Of like, should we let citizens be able to like vote on stuff?

0:32:22 Matt: I didn'T Oh, I would love to talk about ballot amendment law, because that's actually something I got really into for a few years. But I don't know how it applies in this Florida case. It's not something I'm prepared to talk to about today. But that would actually be a great subject for another time, because there is in every state a whole interesting, sophisticated set of law around whether something should get to be a ballot proposal, ballot question. So I think that's interesting. And I'm sure that's an interesting journey on this one, too. But the point is that Florida voters in a swing state will get to go to the polls in November and decide whether or not there is actually a right to abortion in Florida. If you live in Florida or know anybody who does, you know what to do.

0:32:36 Thomas: Sure. Her. Okay.

0:32:58 Thomas: Wow. Wow. Don't think we have a chance of winning Florida, but if we were going to win Florida, it would be because of this. Like you're going to put the issue that Republicans are some of the most extreme on and also is the least popular. It's their work. They're getting killed on abortion Because they, I think people voted or, or rather, rather, maybe answered polling a certain way when they had one idea of what that meant, you know, like, what does it mean to say you want Roe overturned, what does mean now that they see what it is? There are a lot of people who I think just really did not have the imagination to understand that, oh, oh, okay, when Roe goes away, I can't even get proper health care, like, for Just routine stuff, like, just it's so much worse Than, than, I, and I'm saying, even for Republicans, like, even for like conservative women and hopefully some men, they're putting their worst issue on the ballot in a swing-ish state. Wow. That's amazing. That is incompetence that I, for one, would like to celebrate.

0:33:13 Matt: For the most. Yeah, right.

0:33:36 Matt: Yeah, sure.

0:33:57 Matt: Well, I have even better news, Thomas. Exact same thing is going to be happening in Arizona. So two swing states.

0:33:58 Thomas: Oh, that is amazing. And Arizona, that was really close. I was reviewing that the other their day for something. And boy, that was very close. There's a reason there were cyber ninjas hired to, you know, try to throw that whole thing. That was incredibly close.

0:34:03 Matt: Yep yep. Yeah right, of course. Yeah and the bamboo and the ballots, of course. Know if you remember all that, but

0:34:20 Thomas: Hard to keep it straight, but yeah, that want it on the ballot as much as we can, because it really is, people are pissed about this and it's, yeah, it's a bit of good news.

0:34:26 Matt: Yeah. 2022 showed us that. I mean, it was great for 2020.

0:34:30 Thomas: So that's, that's good to hang our hats on.

0:34:30 Matt: It really, I mean it was the only salvation in 2022, really, that really got things out. So yeah, that is, I guess I do want to emphasize in both cases, that as the good news. And now of course the bad news is that abortion is criminalized until then in Florida. Um, no way that I can possibly say that there's a silver lining or anything else when that's the case, but there is at least hope, and that's what we want to try to give you on this show, and whenever possible, is to find the hope. And there is, I really think there is, because, as you said, this is such an unpopular issue, and if it's unpopular in Florido, I know it has to also be unpopular and Arizona. So let's talk about Arizo-

0:34:42 Thomas: Yeah. Yep. Absolutely.

0:35:01 Thomas: Yeah, yeah. A lot of people, again, patreon.com. If you want to participate in the discussion for the Rapid Response Friday episode, that is a hit every time. I'm so glad we're doing it. And many people, many famous patrons, patrons whose names, folks, would recognize, like Torsten What the Fluff Peel or, you Browning or, yeah, names, you household OA patron names.

0:35:26 Matt: Names that redound in these halls.

0:35:29 Thomas: I'm joking, but I'm also not like it is fun, like it would like whatever I get to come across, especially if I ever meet a patron at like any sort of event. And they're always like, oh, I'm this, you know, weird name. And I'm like, I know you totally. Totally. So they're asking this Arizona Supreme Court, how in the world did whatever happened here, which you're going to explain to us, how did it result in implementing an anti -abortion law from before Arizona was even a state? Could this be happening?

0:35:31 Matt: No, we love you. We genuinely love you I had the Same question. I had the same question because I've never heard of territorial law just being picked up and used this way. You would think that territorial law would be off the books by definition now that we have states. The court does actually quickly provide in this decision a quick overview of the history of this. And the fact is that there was something called the Howell Code, code that governed Arizona at the time. That was literally what their code of laws was called.

They named after one guy for some reason. And that included their first criminal code, and that included the constraints on abortion we're going to talk about. And then in 1901, they reiterated the abortion law. And then Arizona statehood happened in 1913, and they just adopted everything again in whole. And then finally in 1928, the Arizona legislature codified it to the statute that we're talking about now. But this language in one form or another has been around since 1864. And that's kind of what the confusion has been, I think, is that we're talking about, and this is very common in Massachusetts, where we have language that literally goes back to colonial days, to 1600s, that's still in our laws. It doesn't mean it's invalid. It just means we just keep recycling it.

0:36:52 Thomas: Yeah. Is crazy that they were not made a state until I'm seeing 1912, but still like that's nuts. What the heck happened before that?

0:36:58 Matt: You're right. It is 1912. The statute was adopted in 1913. Yes. Very good.

0:37:04 Thomas: Oh, gotcha. Yeah. That makes Sense. So, to the question of how in the world could this even happen, I mean, we'll go more in depth, but it's kind of like, well, they re-upped it essentially. Yeah.

0:37:05 Matt: Yeah. Adopted the criminal statute as it was, and that is the law. So you can make the argument that this is dead letter and that this has been around so long and nobody's noticed it, or maybe it has hardly been used. At the same time, abortion, as unfortunately we all know, was legal for 50 years. So this was kind of a dead issue. It wasn't something People were talking about. Let's get into the decision. Florida was just clowns, just absolute clowns all the way way down. Looks like a decision in a very solid way. It's very well written, very well put together. It is very carefully broken down. And like a lot of these things, it gives you kind of the patina of something being done right, of competence. And it is competent.

Think it is wrong, and I completely agree with the dissent, but it is not quite what has been advertised in the news. It isn't exactly, you know, they are just dredging up an 1864 statue just for fun. That's not what happened here. Here. There are two provisions are in play, and they have to try to figure out how these two provisions work together or don't work together in the wake of Roe. And the first is the one that you've probably heard about in the news.

Was passed back when Arizona was still a territory in the late 19th century. And it is section 133603, pretty standard, kind of an old-timey abortion law. Person who provides, supplies, or administers to a pregnant woman, or procures such woman to take any medicine, drugs, or substance, or uses or employs an instrument or any means whatsoever with intent thereby to procure the miscarriage of such woman, unless it is necessary to save her life. They did actually have that exception then, um,

0:37:30 Thomas: Cool.

0:38:34 Matt: Not later.

0:38:33 Thomas: I mean, they, come on Matt, they were pretty reasonable back in 18 fucking 90. Nowadays they're not so reasonable, but

0:38:34 Matt: Yeah. Yeah. I think that was actually I think that was added a little later, but because this has been updated a few times, but the basic language is still there. Uh, shall be punished by imprisonment in the state prison for not less than two years, no more than five years. So a mandatory two-year prison sentence for abortion.

0:38:40 Thomas: Okay. And that surprises me because and I, I didn't think there was that much activism around outlawing abortion at that time. That's kind of surprising to me.

0:39:00 Matt: No, it wasn't the same kind of passionate issue that it is now. Almost kind of just like a poisoning crime or something, I think, from what I can tell.

0:39:06 Thomas: Yeah. Yeah. Yeah, I was going to say that there there wasn't a, you anti -abortion movement in the same way.

0:39:07 Matt: Yeah. In that super morality kind of push that we have now. So that's the old one. And that was After became a state, it was made a criminal statute later. And then, unfortunately, for the purpose of the people who are on the right side of this issue, they re -upped it after Roe. They basically codified and continued to show this is still the law after Roe in 1973, I believe. And so that does count against some of this. I still think that there's a pretty obvious way through this that preserves abortion rights in Arizona that we'll talk about. But this is on somewhat better foundation than, well, okay, it's a radically better foundation than the Florida case, because The Florida case's out in the ocean somewhere. The other section we're looking at was passed in 2022. And it's interesting, because it was passed by Republicans to create a 15 week abortion ban. It was passed, I think, in one of those sort of gestures of like, well look, we're being reasonable, here's a 15 -week ban. It was passed, with the understanding that Roe was going to be overturned probably.

Says, "except in a medical emergency, a physician may not perform, induce, or attempt to perform or induce an abortion unless the physician or referring physician has first made a determination of the probable gestational age of the unborn human being and documented that gestational edge. So it has to be 15 weeks. I don't find that to be be particularly ambiguous. I don't find the other statute to be particularly ambiguous.

But the deceptive thing that the court does in this case is it decides that this language is ambiguous. Now, Florida, I give it to Judge Grosson's there. It is ambiguous because it has nothing to do with abortion, and it's just a very generalized language about privacy. I get it. You've

0:39:14 Thomas: Yeah.

0:39:48 Thomas: When Sure.

0:40:40 Matt: Got to step in and decide what we are doing here. You have, in one case, a criminal statute that says that abortions generally are illegal, but you have another statute from our times that says that here is a way in which abortions are legal, the dissent suggests, well, what we're looking at here is an exception. It seems pretty clear that the legislature was aware of the other law and decided to pass an exception that would allow for certain kinds of abortions to be performed by certain people. So, and the thing that the majority has to do, this gets kind of interesting because I'm not really sure exactly what the majority's kind of judicial philosophy is here. It's not originalism. It's not exactly textualism because we're going pretty far beyond the text. But again, it's like you said, it's getting to where you want to go. And that's true. It's very important. It's a long decision. I'll have to look.

0:41:20 Thomas: Which dictionary did they use for it? Of the, one of these days, I hope they use the urban dictionary. That'd be fun.

0:41:27 Matt: Oh, that's definitely been used. I mean, I think I've had to use the Urban Dictionary in court before. I know I have. Because you get rap lyrics, you have to explain them to judges. And that's At least a common prescriptive understanding of language. Yeah, the thing the majority has to look at is the construction provision, which is what the legislature included, basically like a signing statement that expresses the intent of what they're doing.

And this is where it gets a little messy, because in this construction provision, the legislature specifically said, "This act does not create or recognize a right to abortion or alter generally accepted medical standards." The legislature does not intend this act to make lawful an abortion that is currently unlawful. That is very confusing when you have a full -on abortion ban on the books that only has an exception for the life of the mother. You can see how this is getting a little messy already.

There is a lot of discussion in this decision about statutory construction and statutory interpretation, and it's painstaking. It's careful. It is going through how we can look at these different things and how we can find ambiguity or not. And they are very intent on finding ambiguity because they want to get to where they're going. And way that they found ambiguity is essentially by saying that because there is a conflicting statute at the time that you pass this that you didn't address, that that creates ambiguity.

And that's not really my understanding of what ambiguity is. Ambiguity is supposed to be textual, like in the actual text of what you're looking at. I will read you from the dissent because I think this addresses this pretty well. Disagree with the majority that 36, 23, 22, the newer provision, is ambiguous. That statute has only one reasonable meaning, and we should apply it." Good thought. "We start with the statute's text because it is the most reliable indicator.

If the legislature's intent is readily discernible, we do not resort to other methods of statutory interpretation." So the dissent is in the position of having to say, we don't need to look at the signing statement of this construction provision.

0:41:29 Thomas: Yeah. Right. No, Yeah, just, so just read what it says.

0:43:14 Matt: Read the words. Just go ahead and just say what it says. And yeah, know. I think this dissenter is taking a full -on textual position and very reasonably, the physician only commits a a crime if the physician performs an abortion when the fetus is more than 15 weeks. So that is, again, that's an exception. That's a pretty straightforward thing. Really important part of this is that the Court of Appeals in Arizona had specifically instructed the Supreme Court of Arizona to harmonize the existing law. And I think that that's really the dissent's strongest point here, is you're not harmonizing, you're just soloing, right?

0:43:17 Thomas: Wait, that sounds really textualist. That Yeah yeah.

0:43:48 Thomas: Harmonizing

0:43:48 Matt: You're just deciding.

0:43:48 Thomas: Would be like, hello, hello. Hello. Hello. I should have done that.

0:43:51 Matt: Yeah, no.

0:43:52 Thomas: Abortion, abortion, abortion.

0:43:52 Matt: This is a solo barbershop, uh, yeah, uh, Nullifying is what it's doing is it's saying that one must stand where, like, only one of these laws can leave.

0:43:56 Thomas: Yeah, yeah, okay. I don't think I'm fully following this, so I want to make sure, can can we reset? So so the old timey one said, remind, and then the newer one said,

0:44:07 Matt: Yeah. Ban except for life of the mother, uh, "Except in medical emergency, a physician may not preform, induce, or attempt to preform or induce an abortion unless the physician has first made a determination of of the probable gestational age of the unborn human being and documented that age in the maternal patient's chart." That's essentially it.

0:44:25 Thomas: And so the problem is that that's suggesting that, like, well, if the first law were to be taken at face value, then you, why would you even be talking about that? Because you're not allowed to do any kind of abortion except for life of the mother, and that's the thing they're trying to harmonize is that what it is, wait,

0:44:42 Matt: And because of the signing statement, the construction provision that says that the legislature does not intend this act to make unlawful an abortion that is currently unlawfull, they're saying that they weren't actually trying to create a right to an abortion at all. And because it says they weren't trying to create a right for an abortion.

0:44:55 Thomas: Then why did they need to pass that? Because that was in 2022, right? They were just passing it to take effect after Roe was struck down, like, they just kind of, to have that ready, is that where it is? This is confusing. Yeah.

0:45:04 Matt: Think so. And, you know, they're trying to be reasonable. Is confusing. This is why this one is a lot more confusing than the Florida one and a lot less fun. Still, I think it's wrong. And I still think that there's a very, very clear path through here where you can carefully harmonize these things. But to me, when the Court of Appeals is telling you harmonize, you really should try, and because it is an extreme act, as the dissent points out, to just strike something down and to say this, this doesn't apply. And it has no independent basis after Roe and there's, you we're just ditching it or

0:45:11 Thomas: Yeah. Yeah. That would be like if Simon and Garfunkel harmonized by Garfunkle, just singing incredibly loudly and telling Simon to shut the hell up. We're hard. I'm harmonizing. Be quiet.

0:45:39 Matt: Just, just locking Garfunkel out of the studio.

0:45:43 Thomas: Well, I purposefully switched it because I was like, wait, Garfuncle is the one who sucked. So it'd be like Garfunple just turning off Simon's mic, Paul Simon's mike, and just being like, it's just me. It's now called Garfunkel. That's the band.

0:45:44 Matt: Yeah. That's true either way. Yeah, it's true. There you go.

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0:47:28 Thomas: Truth of what happened that nobody gave a shit about this 1800s law and they just didn't think about it? Is that what it is? And so they wrote the law being what they wanted it to be, essentially.

0:47:38 Matt: Hard to say that because it was re-upped in 1973. So in a very real way. So it, you know, it is very confusing. Um is actually a lot more evil than the Florida decision in its own way, because the Florida decision, you can read it if you're a reasonable person and you can see what they're doing. They're just making it up. They're completely making it Up. And I think if you understand how words and laws work and what the word privacy means and everything else, like you can Read this. And if you just sitting down in a sober way and actually reading it, I have to believe that you don't have to be a lawyer to see that it's absolutely nonsense. But this kind of thing, when you have a very thoughtful, moderate conservative sitting down and saying, well, let's just carefully parse this statute and go through line by line and just see. And in both decisions, by the way, in the introduction to both decisions both judges say, we are making this completely on a legal basis. There's no moral consideration. We are not thinking about this extremely important

0:47:42 Thomas: Okay. Oh yeah, sure. And

0:48:30 Matt: Issue.

0:48:31 Thomas: I, for one, believe them.

0:48:32 Matt: Yes, of course. So I mean, they said it, right? Right? They went out of the trouble to

0:48:33 Thomas: Yeah. They even said scouts honor in the thing, in the decision.

0:48:38 Matt: That's right. We really mean it. Think it's meaningful too, because you don't see that in most decisions. You don't see judges reminding you that they're just following the law and they don't have no personal stake in this, right? It seems, it on yourself a little bit, I think, by actually saying that out loud.

0:48:44 Thomas: Yeah. Yeah. It's Sort of like implied all the time, isn't it? You'd think. Yeah. For This decision, we're gonna go ahead and call it. We're Gonna go And be objective about it, just letting you all know. It's, you know, we don't do that every day. You should feel privileged. Oh.

0:48:57 Matt: Yeah. Pretty much. Right? This point, This is actually getting to be a little too much for everybody, very much like the Alabama thing. The aftermath is reminding me a lot of the Alabama decision, where they found that embryos are people, and suddenly Republicans had to deal with that. And even Kari Lake has come out and said this is too much, even though she had said before she supported the criminalization of abortion, because she knows, I think, she's supposed to say that. Um.

0:49:13 Thomas: Right, yeah. And I didn't even, so she's running for Senate now in Arizona, I, I had missed that because I was like, what is, what do we give a shit about her? I thought she was going to be VEEP or something, you know, but no. No, I guess she's running for Senate there.

0:49:31 Matt: No. She Still has a career.

0:49:35 Thomas: But that should tell you something, that even she tried to back down a little bit from this, right?

0:49:35 Matt: So And Trump too, because, you know, Trump, this is very bad timing for Trump. Because you might remember that just last week, I think it was, he said this is a state issue, let's leave it to the states. And Then you get two terrible state decisions. Really bad. Yeah.

0:49:42 Thomas: Yeah. Mm -hmm. That's why we didn't want to leave it to the states, just so everybody knows. FYI, that we did that with crucial rights, like, I don't know, you know, civil rights and stuff, we saw what happened when we left it to states for a long, long time. It was very, very bad for marginalized people.

0:50:08 Matt: And They're using the same states' rights justification that, and he, he had states' rights. He said it out loud, that that's what this is about. I do really believe that there is a solution with the ballot. I think maybe we could permanently enshrine these things and take care of it.

0:50:20 Thomas: So yeah. Tell me about the ballot thing. So it's weird that this happened in both the states. Was So for Florida, you said there was like a 5 -4 decision that somehow allowed people to be able to vote on that. That doesn't make sense. But, you know, we weren't really going to do a deep dive on that, but for this one, is it just that Arizona citizens are putting a ballot measure on or was there another legal decision involving, you them being able to on vote it.

0:50:42 Matt: This was already cleared. It's going to appear on November 5th. And this ballot initiative would Establish a fundamental right to abortion that the state of Arizona may not interfere with beyond the point of fetal viability.

0:50:46 Thomas: Okay. So basically, the to these laws that were in tension is, well, we'll just throw out the newer one. Is that really what it came down to?

0:51:01 Matt: Um, the Florida case, we'll throw out our line of cases that interpreted Something That was passed in 1980. Yeah.

0:51:04 Thomas: Yeah. So Florida, yeah, that one, total bullshit. I was trying to understand the Arizona decision a bit. It really did.

0:51:10 Matt: Right. It's the Same, same principle. Yeah. It's that they were wrong, um, that they couldn't actually do that. And it's because they're saying that the law did not create a new right, and because of the logic in Dobbs, that they can go ahead and say that there is no right and that this is an invalid law. That's what it comes down to. Yeah.

0:51:11 Thomas: Okay. Yeah. Yeah.

0:51:27 Thomas: It really is the case. I know that this was kind of a of viral coverage, but it really is the case that this 18, whatever, 95 or whatever, that is essentially the law of the land now in Arizona for the time being.

0:51:37 Matt: With a few revisions over the years and having been reinstated a few times. But yeah, no, I mean, it's not like it's territorial law because it was reinstated when Arizona became a state.

0:51:44 Thomas: Sure. Yeah, I gotcha.

0:51:45 Matt: But it is almost completely. It's like 95 percent the same language. I think they at some point added the life of the mother provision. But right, I did see some sort of coverage that seemed to suggest that this court had just lost its mind and plucked something out that had never been used before. And that's just not true. But, you

0:51:49 Thomas: Yeah. Wow. Yeah, that was the impression I was left with, or if not that, I means it was the case that there were a lot of states that had laws that were on the books that no one had thought about or cared about for a while because of Roe v. Wade, right? And and so in my mind when I saw these headlines, I thought it was just kind of a case of that, where it's like, oh well, it turns out, yeah, I guess we are going back to this being the law of the land because we don't know what else to do. But it's not exactly that in this case, it seems like, right? It's also about deciding a newer law is not really going to do anything when there were no Star Wars, so we're going pre this one is completely pre-Star Wars

0:52:27 Matt: And that we can just go ahead and roll but to 1864, because Yes, that'S right. Not a single Star War. Don't know what they did back then, but it wasn't Star Wars. Uh, yeah, are those two decisions? I think there might be more to talk about as these issues continue. Uh, at some point, if I have the stamina, I might even want to do a full deep dive on the Arizona decision, just because it is, it's super interesting. Like, it's it's a lot more legal than these right-wing things usually are. I'm not saying it's right, I'm just saying it looks more right. It does a better job of looking right, so I will give them credit for that. There was one other story that was in the news that I didn't really see any coverage of beyond some basic New York Times stories. But I thought it was shocking. I thought it was something that I'd like to talk about. And it's also something, and I don't know if you're aware of this, or if the American listeners are aware of this, but other countries also have laws. That's something that I

0:52:36 Thomas: Wow yeah well No, really?

0:53:17 Matt: Know. And I've really been impressed by how many international listeners the show has and how many people are plugged into American law. AndI appreciate you coming back week after week to hear about American law. But we do want to talk about international law once in a while, and the law of other countries. That's something I'd really like to start doing deep dives on, because there are better ways to do things. There are also worse ways to do things, but there are other ways out there. So this is a provision of international law that I never thought that I was going to see this kind of a challenge to. And in one week, basically, we had two absolute obliterations of something that is one of the most fundamental fundamental tenets of international relations and diplomatic law. Yeah, I

0:53:52 Thomas: Wow. I been teasing this as something that hasn't gotten coverage. And let's just say I already believe you because I have no idea what you're talking about. I haven't seen whatever this is. OK. Oh,

0:54:00 Matt: Yeah, well, The Version is that the government of Ecuador invaded the Mexican consulate and grabbed a guy who was trying to claim asylum there that they wanted for corruption charges. They just dragged him out and took him. And it's especially ironic, of course, because you might remember it was the Ecuadorian embassy that was keeping Julian and Assange in London for all those years. So Ecuador knows.

0:54:18 Thomas: I definitely did not remember that. I would not pretend I did.

0:54:21 Matt: They know how to protect people if they want to. Haven't really explained why they did this, but I just wanted to mention that the law since 1961 has been very clear. Mean, I don't usually say that about a lot of things, but you cannot miss what it is saying. The Vienna Convention on Diplomatic Relations, Section 2, Chapter 2, Article 31. Consular premises shall be inviolable to the extent provided in this article. The authorities of the receiving state shall not enter that part of the consular premises, et cetera, et cetera. The 1963 revision. But in 1961, they were also very clear that the receiving state is under a special duty to take all appropriate steps. The agents of the receiving estate may not enter them, the premises, except with the consent of the head of the mission. You just don't get to come in to another country's embassy. I think we all know that. I think that if you've seen the Simpsons episode where Bart goes to Australia, one of the best Simpson's

0:54:31 Thomas: Mm hmm. Yeah. Yeah. That

0:55:04 Matt: Episodes by far.

0:55:04 Thomas: Literally my favorite Simpsons episode. So good. It's so good.

0:55:06 Matt: It's really the best. Yeah. Yeah. Overall. But this is like a movie trope about how it's the foreign nation's soil, essentially, that it's not even your country's soil.

0:55:14 Thomas: Well, it's something like, Yeah, we know there have been times where governments have broken down and, you know, embassies are seized or raided. But like that's not cool, like we're familiar with that, not being part, like, cool with the law in international law, yeah.

0:55:29 Matt: Not the government. I mean, Benghazi and in 1979 in Tehran, that was a revolutionary force that did that. It wasn't the government sanctioned necessarily. I'm sure they were fine with it. The only time that I could find, I did a lot of looking because I was curious about this question. The Only time that a country has actually done this in this way and gone in and grabbed somebody was Cuba twice. They did it to the the Vatican embassy.

0:55:30 Thomas: Right. Wow.

0:55:49 Matt: This is pretty bad. They broke into the Vatican embassy in 1980 and broke in to arrest three brothers who were seeking asylum and executed them. These were pretty young people. In 1981, Castro sent troops into the Ecuadorian embassy. Again, Ecuador. I don't know why they're in the middle of all three of these things. And took three diplomats hostage. Again huge violation of international law but that's Fidel Castro. That's a little more expected. But Ecuador and Mexico are on pretty good terms. And the importance of the story was was actually brought to my attention by Opening Arguments Mexico correspondent, Azul Uribe. We were just talking about it, and she was saying how much people in Mexico are talking about this, because Mexico has completely cut ties with Ecuador over this. It's a very serious story.

0:55:56 Thomas: Yeah. Yeah. Wow. That is nuts, yeah, jeez.

0:56:27 Matt: It, I was thinking about this story all day, and then only a couple of hours into thinking about it did I realize that this is a pretty bad violation, but it doesn't actually compete with the fact that Israel just completely flattened the embassy of Iran in Syria, in Damascus. They completely destroyed it and killed, I think it was a dozen people. And, you know, we're not going to go too deep on that either right now, but I just want to point out that those things happen within the space of a week, that you had a country completely destroy another country's embassy in another country. Even And that they did it in the one in Tel Aviv. They did it to the one in another country. Huge violations of international law. And I think at this point, even people who support Israel can acknowledge that Israel is committing massive violations of international law all over the place.

0:57:03 Matt: I I do hope that. Because again, no matter what else is going on at the issue, and I think I know we both stand on it, but you just don't even have words for this. You don't just destroy an embassy in another country to kill one guy, let alone all the staff who are in there. Horrific. But in its own way, this thing of going going in and completely violating international norms by arresting somebody. It's not as bad, obviously. Nobody died. But it's a precedent you can't take back once you've done it. And it's completely hypocritical against their position on Assange, which I supported for years and years of allowing to not be extradited. Was terrible. Have you ever heard about that? About what a bad

0:57:02 Thomas: I hope they can acknowledge that, that would be nice. It he sucked.

0:57:38 Matt: House...

0:57:39 Thomas: Right, I mean, yeah.

0:57:40 Matt: There was some cat abuse going on. He was filthy as... I don't know. But again, in principle, I didn't want him extradited. Other thing about this is there's not really any kind of remedy for a violation, um, briefly had signed on, there's like a protocol that actually would establish remedies for these things that only like 50 countries have signed on to, and we withdrew from it in 2005, so you, these are just norms that we have to respect amongst each other, and there's not really any way to to not have them happen, know? Right, it's an interesting moment, I just wanted to mark it because nothing like this, this has happened in our lifetimes except 1981. It is. See how this develops.

0:58:11 Thomas: You say there's no remedy, I mean, what, it's against international law, isn't there something there, like, what do you do, or

0:58:16 Matt: Actually, in drafting the Vienna Convention, they actually turned down an opportunity to include a provision that countries could take things to the ICJ, the International Court of Justice. And like I said, the protocols, I think, do allow for something like that, but you have to sign on to this separate set of protocols. International law is a mess. It's very complicated. But the, pretty easy to read, the real, but remedy is that you cut ties, but that's not great to have you know, two major countries in the western hemisphere

0:58:24 Thomas: Yeah.

0:58:36 Thomas: No or you have like you know a war yeah, that's not great, yeah.

0:58:39 Matt: Yeah yeah It's kind of a difficult war with Ecuador being where it is, but, um, is it's not a small country, and I've been there, um, Mexico obviously is one of the most important countries in western hemisphere, and they should be talking, um, we'll see what happens, yeah.

0:58:44 Thomas: It Crazy, I definitely did not hear about that, uh.

0:58:52 Matt: Of course, the thing on everyone's mind, I know, is on the 15th, on Monday, we do actually have, against all attempts from the defendant, we have an actual jury selection beginning. And Judge Marchand has put out his suggestions about jury questionnaire, about security around all of this, because we have obviously a completely unprecedented situation here. You know, we've had high profile media trials in New York before, but nothing where the Secret Service is involved, right? This is a completely new thing. And And nothing where you've had a defendant who is this familiar to everybody on earth.

0:59:04 Thomas: Yeah that's

0:59:23 Matt: So we're going to have to talk at length. I think what I'd like to do is once this gets going, because I think the jury selection is going to take a while.

0:59:18 Thomas: So weird yeah yeah, mm.

0:59:29 Matt: But once we're kind of reaching some traction and it feels like we're getting somewhere in this case, I'd like to sit down and do like a full guide to the New York case so we can really talk it through and make sure people understand the issues, what to look for, what's coming up, where this could go. York trial won't be televised, but we'll have multiple reporters obviously streaming as much as possible, live tweeting and such.

0:59:36 Thomas: -hmm hey

0:59:48 Matt: So I think we'll Have lost communications by then.

0:59:47 Thomas: The revolution be at least, though, dang. Yeah

0:59:53 Matt: Obviously we'll be following this very closely. This is one of the most important trials in our lifetimes, as are potentially the next three that we hope are coming out of all of this. And it's also one of the harder ones to explain. So I want to make sure that everybody understands what it's actually about by the time we get to substantive trial. But it's going to be on for a while. So we don't have to get started now.

1:00:10 Thomas: How long does a jury selection normally take, like, if we're not in crazy town, what's, what's this problem, but like, let's assume it's like a, you, big-ish trial in terms of resources and whatever, to get a good basis of comparison, what do you think, like, what, how long is that process typically, yeah?

1:00:26 Matt: Well, in my case, which is not a good comparison, my case is it takes the morning, basically. And I love jury selection. Jury selection is a weird process. We'll have to talk about it. But no, usually in a major case, we're supposed to have somebody who's more high profile. It can take a week or two. This could certainly take two weeks, I think, or more. Who knows? And they're going to find all kinds of ways to slow this down as much as possible, of of course, as they always do.

1:00:29 Thomas: Yeah exactly yeah yeah oh well and still there's The fundamental question that I don't know the answer to that we've both kind of posed on here, which is, who is a juror that doesn't know Donald Trump enough to be, you know, like, who even are you looking for, like, what's the ideal juror, is it someone just coming out of a coma, is that, what is that it? Like who else? An alien?

1:01:02 Matt: That would be actually, that'd be perfect.

1:01:04 Thomas: Yeah. I feel like there's a sketch or something. Yeah. They should keep, yeah. Coma wards that are just there for potential juries. This is all they're there for.

1:01:05 Matt: Can we wake up a bunch of people? If you could have coma patients establish residency in New York and then wake them up. God, should have thought of this. Because I can't imagine anyone else.

1:01:17 Thomas: Yeah, that'd be great. So short of that, I don't know who else is supposed to be the perfect juror. It's somebody who like hasn't made their mind up about Donald effing Trump. Like I don't, I don't understand it. Yeah what a, how is that system supposed to work?

1:01:20 Matt: Yeah.

1:01:29 Matt: Who are you? Who are you? What

1:01:32 Thomas: I don't get it, I

1:01:33 Matt: Planet do you live on? I really want to visit it because it sounds like a lot more fun than this one.

1:01:37 Thomas: But I'm like genuinely asking, who, like, what does the law think is supposed to be a good juror in this, some

1:01:43 Matt: If I'm the defense, I want somebody who's given off signs of being being secretly pro-Trump somehow, or is open at least to that. And if I'm the prosecution, I want probably an average New Yorker.

1:01:51 Thomas: So it's just like a fight, it's just a question of who wins that battle, it's not really, there isn't like a legal standard of like, here's what a juror should be, I thought it was, I thought there was for some reason impartial

1:02:02 Matt: I have to be a reasonable person and capable of running an impartial verdict. And the judge actually specifically said in his letter to the attorneys, he said, I'm not actually going to get into details. If somebody tells me they can't be impartial in this case, if somebody tells me they have an issue, we're going to kick them. That's going to be it. We're not going to go into a long, because that could take forever, right? If you get to every single person's objection to Trump and why, and deciding whether or not they could be impartial yeah

1:02:03 Thomas: Yeah yeah that's the word, well Yeah, here's what I think should be in the law. And you tell me how to make this happen. I think there should be, in terms of impartiality, there should be like a reasonable stuff that you can hate someone for, you entire if the world tunes in to a television channel where Trump kicks a cat, I feel like you can't have the standard be well, juror can't have seen him kick that cat. Like, you know what I mean? Like there should be like a well okay this is about you know business law whatever the hell this is the stormy daniels thing but like it's okay to be like yeah well he sucks because he kicked that cat that one time but that's that's fine you know like that should be able to be like priced in

1:02:24 Matt: Right and I don't want people who hate cats, right that's not great either so that's the only other option, right the cat had it coming, yeah

1:03:01 Thomas: Right right yeah the other side the other yeah exactly well what avenue was the cat on is what a lot of people want to know uh was in the middle of fifth avenue yeah yeah I I don't know if that's real but that's just the thomas law version of like if there's something that objectively everyone should hate someone for just just anybody defend it I think that should be fine you should be like well okay you are allowed to hate him for this but if there's something else you hate him for yeah okay whatever is that real is that anything but

1:03:19 Matt: Right Yeah, I think that we have to acknowledge we can't, I agree. I agree, there are basic standards we can't get around and things we know that we can now.

1:03:34 Thomas: Is that how the law works or are you just agreeing with my new

1:03:38 Matt: Well, your hypothetical is unlikely. So I just, it's very, very, very rare that the entire jury pool would know anything about any one person.

1:03:41 Thomas: Okay. Okay, that's interesting. So it almost relies on there being some people who are like, I don't know, have actual lives. Some people touch grass now and then. They're like, all right, let me see your hands. All right. Hey, this person touches grass occasionally. Okay you may be able to be on this jury. Okay interesting.

1:03:56 Matt: Yeah, right. I'm seeing 17 downloads of opening arguments. Nope, I can't have it.

1:04:07 Thomas: You're out. All right. Well, it is going to be interesting, so much to keep an eye on there. Looking forward to it, but thanks, uh, for another great Rapid Response Friday. Matt, this is two states that suck, suck in different suck ways, um, thanks for taking us through that. Right, listeners, we'll see you for a deep dive on Monday as usual, thanks so much for listening, we really appreciate you and, uh, please support the show at patreon.com/law that be nice you know I don't want to get all passive aggressive with our audience but But like, oh, yeah, it'd be great if you can go ahead and do that audience like we'd be we'd super.

1:04:29 Matt: Vote for reproductive rights whenever you can. You got a few months, but yeah.

1:04:39 Thomas: Yeah, it's not too too much trouble.

1:04:39 Matt: All right, see you next time.

1:04:43 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.