What an Alabama Judge Is Doing to Some LGBTQ Lawyers Is Horrifying and Needs a Spotlight

Transcript

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

0:00:45 Thomas: And welcome to Opening Arguments. This is episode 1036. I'm your host, Thomas Smith, and I will soon be joined by real-life lawyer, Matt Cameron, and guest, that's why I am doing the intro kind of on my own here, because Matt and I recorded an interview a few days back with Chris. And I got to say, there is so much in this episode. For Geidner, who you can find everywhere by Chris Geidner or should amazing coverage, including breaking stories.

I mean, Chris broke a about Alito right when you think we've got a third thing has hit a third tower. I don't even know how to say it. We're beyond that now. We're beyond 9-11 meme speak because Geidner was the first to uncover a certain stock sale that Alito did. Don't want to scoop his scoop, so I'll leave it to Chris to tell us about it in the interview. You and there's that to look forward to, it's really, really good scoop.

It's interesting, it's more on Alito, hopefully that keeps snowballing for him, but even more importantly, there is a story that, after Chris took us through it, I'm scared. Oh, this, this is crazy. It's about what an Alabama judge, or maybe a few Alabama judges, it's kind doing to some LGBTQ lawyers. It reminiscence of a time that I know we all like to think we are not in at all. Just want to mention it here again. Chris is going to take us through all this.

I want to mentioned here because please share this. It's in the second half of the show. I mean, share the whole show, obviously. But the second half of this show, it's basically half and half, is about this Alabama story. And it is, I, it, chilling. Like, I haven't stopped thinking about it since we recorded. Um, just wanted to put out an extra kind of alert on that, please listen and share this one, because we just got to get the word out on this.

And so, with that ominous intro, we also have a great time, because Chris is a great guy. After this short break, I'll get you on over to that interview with the law, Lawdork himself, Chris Geidner, and thanks so much for listening. If you'd like to support the show, go to patreon.com/law, and you can skip the ads. You can get the bonus goodies. We're working on that, Law'd Awful Movies. That'll be out very soon. Boy, that was a, that was, that was interesting. I'm hoping to get that up soon. Patreon.com/law. Thanks to all those who support, and I'll see you on the other side with Matt and Chris.

0:03:06 Thomas: Chris, how you doing today, I

0:03:08 Chris: Know, just wonderful. How could I not be?

0:03:13 Thomas: Sense a lot going on in that answer.

0:03:16 Chris: Lot. There is a lot, and as a message that I got about mid -week, And it's not even June.

0:03:24 Thomas: Yeah, yeah, I, that seems to be something of a mantra for people who follow the Supreme Court, right? Right.

0:03:31 Chris: Yeah, I mean, this is supposed to be the month.

0:03:35 Thomas: Yeah. Well, I think it's now when they release all their flags, though. So that's the thing. It's flag month.

0:03:39 Chris: That is when all of your flag stories are to come out.

0:03:46 Thomas: So speaking of. Yeah, talk about our favorite flag waver, Justice Alito. I think we were we were scheduled to talk before even the second flag hit the towers. So, yeah.

0:03:55 Chris: Yes, yes. There was only one flag at that point. Oh,

0:04:01 Matt: So, Chris, we have got three big data point here about Alita that we've learned in the last week or so, one of them from you. Overall, before we get into the details here, what's your overall sort of takeaway from these three things?

0:04:15 Chris: The is something that I think if you had been in arguments, if you're watching the ins and outs of his opinions, it's not a huge surprise. Prize, um, I wrote it a lot, or I mean, he really is like the Fox News justice. Like, he is the animated MAGA far right. He is your, your watching TV, like nothing there beyond that. He is just literal physical proof flying above his homes.

0:04:30 Matt: Sure.

0:04:30 Thomas: Yeah,

0:04:50 Matt: Right. Two homes. Yeah.

0:04:51 Chris: Yeah.

0:04:51 Matt: Yeah, naturally.

0:04:52 Chris: Yeah. Which he also has two homes, which I think, is I a underrated part of this story that like like of course, he has a vacation home where he could be flying a second flag. Don't we all?

0:05:04 Matt: He's the second wealthiest justice, I think, after Roberts. I think it's something like that. I'd look that up at some point. Maybe 10 million. But yeah, these two flags, maybe we should start there. Because, you know, like you're saying, Fox News, for sure, this is like a culture war. And all three of these items are culture war items. And I guess I can't say anything surprises me about Samuel Alito at this point, but it is a little surprising, maybe, that he is this keyed in to the culture wars, um,

0:05:25 Chris: I think that some of us were talking throughout, the over the course of the past two weeks, like, how tuned in do you have to be to know all three of these things to like have been tuned in to like the upside down flag? The Mulvaney, Bud Light, Anheuser-Busch anti-trans thread that was a part of the stock sale, and then this tree flag that

0:05:34 Matt: Yes. I

0:05:37 Thomas: Yeah, I don' t even know what that is. Yeah well,

0:05:57 Chris: I still don't quite believe that it has a historical pedigree, but they keep insisting that it does.

0:06:05 Matt: All the way back to 2015 when it was most recently resurrected because it wasn't being used, you know, really until then.

0:06:07 Thomas: Yeah, wow, ancient history. History.

0:06:12 Chris: Right.

0:06:12 Matt: But

0:06:12 Chris: Yeah.

0:06:13 Thomas: Let's catch our audience up on these details and then I think we can talk about what it means. So we covered the first flag, essentially. That's the upside down one. Much fun was had by all. We learned that if someone calls your wife a name, the flags come out. The far right stuff just comes out. That is how it works. And then I guess someone must have called his wife a named at the beach house too. You know, just

0:06:34 Chris: Yeah, I mean, to Jodi Cantor and the New York Times, and there were some other people on that stories, that got this evidence that for months at beach house in New Jersey, uh, flying this, this freak flag, um, like the the Christian nationalist spice version of the upside down flag. It, I mean, it's like as if the upside -down American flag wasn't like enough to imagine that, like, of the Supreme Court is allowed, like, even if you buy his story that his wife did it, but allowing that to be on his property, like, we've got like religious right version of that. It was up enough on his beach house that it was appearing in Google Street View, which is just the like, the now done done fighting this one, buddy.

0:07:22 Matt: Yeah.

0:07:21 Thomas: Oh, wow. Yeah, you're not going to. So clarify the dates, because the first one was like, oh, it was around whatever, January 6th or something. And then the second one, is that all the time?

0:07:26 Matt: That's

0:07:32 Chris: It was some, the first one was between January 6th and January 20th. The photo I believe was January 17th of 2021. Um, the, the reports that it like had at least been up for a few days. Um. Flag, however, there were pictures of it, I believe from August and September, um, 2023.

0:07:42 Thomas: Mm hmm.

0:07:55 Thomas: Oh, that's the second flag you're saying.

0:07:57 Chris: Second flag, the, the pine tree flag.

0:07:58 Thomas: OK, OK. So for all we know, that one's up a very long time, it seems like.

0:08:02 Chris: Wait, that could have been up basically the whole time that he court was out of session, um,

0:08:07 Thomas: Had at least talked about that second flag on the show, but what we have not talked about is that this stock sale. What happened here?

0:08:13 Chris: Well, and think something of note is that he apparently made this stock trade while he was at the beach house, um, it was the same time, it was on August 14th, 2023, which is right in the middle of this time when, uh, New York Times reports he had that flag up, he sold stock in Anheuser-Busch and on the same date purchased stock in Molson Coors.

This was several months into the right, Kid Rock, Travis Tritt, -trans, Bud Light deigned to send a single can of beer to transgender influencer Dylan Mulvaney in appreciation of her participation in a March Madness campaign that Bud Light had, because of that, when she posted a video thanking them for can that was, uh, her like one year celebration of her transitioning, um, then led to this boycott of Anheuser-Busch.

And, report, uh, at Lawdork, that in in the run up to his stock sale was when there was a lot of reporting about this boycott, um, right around, around the end of July, beginning of August, including the weekend before the stock sale, there had been a in the Wall Street Journal opinion pages, which we've learned over the past year, is a particular fave of Sam Alito. He to the Wall Street Journal opinion pages several times last year to give them an interview.

And that's also, if you forgot, where he went to to sort of like give his pre-rebuttal to ProPublica's report about his trip, where he justified going on private plane and not reporting it because it was a seat that otherwise would

0:10:23 Thomas: Yeah.

0:10:23 Chris: Have gone vacant. Um, This

0:10:24 Thomas: Oh, okay. Well, who among us? Yeah. I often am. Oh, is that seat empty on that billion dollar? Oh, yeah, it is. Oh, then I can go. Okay, sure.

0:10:32 Chris: Take it. Why don't I do that, um, then, like, literally the night before he sold the stock, one of the sort abhorrent people on the internet, Chaya Raychick, the Libs of TikTok, uh, had posted a pre-transition photo of Dylan and was like, "Dylan Mulvaney's a dude." Um, Then he sold the stock and he didn't just sell the stock, like, like, course half of the people responding to this story were like, "Oh, he just showed that he was a smart investor because there was" a boycott. And two aspects of that that make that response stupid. First of all, the stock went up after. His selling it and buying Molson Coors cost him money. Molson Chorus is down since then and Anheuser -Busch is up. Second, it was the fact that he did both of those things. He didn't just sell his Anheuder -Busch stock. This wasn't just like, well, if the stock goes below this point, get rid of it. Was like, like like to get rid of that and get the we like now.

0:10:54 Thomas: Truly awful stuff. Stuff.

0:11:08 Thomas: Yeah.

0:11:42 Thomas: I'll take my business elsewhere to a company that doesn't send a single can to a person. Oh my God, it's so pathetic. It's so bad.

0:11:50 Chris: Of course, like Alito didn't respond to my questions. I am of happy at the timing of all of this because I was working on this story and I sent the questions uh Wednesday uh the week before my story came out so like Wednesday 15th or whatever uh was like Thursday night that the first flag story came out. And so I love the idea that the Alito Chambers was already dealing with Jodi Cantor's questions for the first Flag Story when they got my questions.

0:12:25 Thomas: Yeah yeah, he's got a real situation room going on down there. We gotta get our best on this. Everybody brainstorm. What do I respond? Well, they might have called my wife a name. That's perfect. Go with that. Oh, what do we do about this beer thing?

0:12:29 Matt: Great,

0:12:40 Chris: Yeah, I what he's doing. And then, of course, a few days later, We, say I'm unfair and people should be giving Alito the benefit of the doubt, then we get a flag story. Story.

0:12:40 Thomas: Yeah,

0:12:53 Matt: Straight up in our faces.

0:12:54 Thomas: I, Like the idea that he did that trade while sitting in his second flag house like when the Sharks are in the playoffs and I'm wearing my Sharks jersey and watching the game, I'm like this is this is the I'm living my best life, That's

0:12:54 Matt: Yeah, uh, Just Looking At it as flag leg and, you know, being anti-trans. So, Chris, how'd you actually get this story?

0:13:08 Thomas: Got my transphobic Journey jersey on, yeah.

0:13:11 Chris: He that flag and owning Anheuser -Busch stock. A 2022 law signed by President Biden. Need to post periodic transaction reports when you make stock sales now applies to the judiciary. And a second part of that law now requires the administrative office of U.S. courts to post all the financial disclosures online. And the combination of those two elements of this meant that Alito's transaction were posted online. Otherwise, we wouldn't have found out about this until they post Alito financial financial disclosure, like his annual one, which you're able to get the -day extension. And so we probably wouldn't get it until, ironically, I know we keep going back to this, but until like August of this year. So back when he's back at the home in 2024, we would be finding out about what he did in 2023. because of these periodic transaction reports, we it earlier.

0:14:22 Matt: Back at the confirmation hearings for last week's episode, and I'd forgotten that his Vanguard stock ownership was a big issue at his confirmation hearings. And I was just wondering, if you know—is it common for Supreme Court justices these days to own a lot of stocks? Is that a thing they're doing?

0:14:36 Chris: I do know.

0:14:37 Thomas: Clarify.

0:14:37 Chris: Thank you. That's is one of only two justices to own stock. And, course he does so more obnoxiously than the other justice to own stock, um, stock, individual stocks.

0:14:39 Matt: You might. Right. Right.

0:14:47 Thomas: Do You mean individual stock? They've all got to have Yeah. OK. OK, guys. Yeah. The way, is a terrible way to invest. Just saying.

0:14:52 Chris: Um. Yeah, well, Well, there's that too. The why we might not hear more of it, about it, is that the other person left on the court who still owns individual stocks is one Chief Justice John Roberts. But meager minor defense, been those individual individual stocks over the course of his time on the court. Um, think he should have been able to do it in his first year, but Hey, um, is now down to, he only owns individual stock in two companies. Um. The other hand, one Samuel Alito owns individual stocks still in more than two dozen companies. Truly absurd. So seven own no individual stocks. Had as well, of course. Now, none of the Trump appointees and none of the Democratic appointees on the court own stocks. Justice Thomas does not own stocks, The one area where he's doing the thing that we would want ethical people to do. And Roberts, the two George W. Bush appointees on the court, still own individual stocks. Yeah.

0:15:21 Thomas: Yeah, no kidding.

0:16:07 Matt: You'd written a bit about kind of creative ways that maybe the court can deal with this itself, since obviously Congress isn't going to do it, and the ethics rules don't mean anything that they've just passed in November. You If could talk about that, I thought you had some interesting ideas there.

0:16:19 Chris: I mean, some of this is a more history. And these are things that the court has done in the past when they've been forced to deal with with situations. But the is that each justice is confirmed individually. The has the of being chief justice. Other power that he has is he is the head of the Administrative Office of U.S. Courts. He's the head of the federal judiciary. So to extent he can put in place, he can appoint the right people to the commissions.

He can have people on who actually care about ethics. He should do so. He can and should do. So it comes to the individual behavior of individual justices, it's a lot more difficult. And also I talk about the fact that like there's behind the pressure. They in conference and say, look, this is bad. Recuse. This will all of us look bad, and to sit out. Not, as we saw, and I think it is something something that we've seen in past couple of years.

You remember over the course of once the ProPublica stories started about Justice Thomas and before they issued that code of conduct, you started to see justices starting to say in public speeches that they thought that that there should be a code of conduct. And even once we started moving along that they thought that the justices would announce one. Statements on that front from the chief, from Justice Kavanaugh, from Justice Keegan, maybe from Justice Sotomayor. Um, got lots of speeches especially once we get past June.

Um, I think that have the ability and and they don't need to wait till June. Like, justice can go anywhere right now and make news. Um, no reason why. Why, if they feel, which they should, that Justice Alito's participation in particularly the Fisher case about the scope of the obstruction statute in the January 6th cases, and then the Trump immunity case and Alito participation in that is inappropriate. If he's not listening to behind the scenes things, they say something.

And as a sort a break in case of fire option, like at least, and I do in the piece basically rule out Thomas as being helpful in effort. But

0:18:59 Chris: Justices, and Chief Justice Roberts, the three Trump appointees, and the three Democratic appointees should together. They don't include a statement in the decision saying that they think that leaders' participation in the case is inappropriate. It would be shocking. But like if think it's inappropriate, if they feel that they're legitimacy of the court is in question, they drafting such a statement might be enough to get him to recuse. Who knows? But to be thinking about the long-term legitimacy of the court if they want it to be able to continue to issue decisions that everybody's going to listen to. Do. I

0:18:57 Thomas: This or any effort. Yeah mean, I I don't know what's going on in three the kind of liberal justices' minds, but I've just been incredibly disappointed by anyone's unwillingness to just start just it like you see it. You know, in the same way that there's almost no stakes here for anybody because we cannot do anything about this short of impeachment, which isn't going to happen. The same goes, though, for any of the liberal justices who want to start making a little noise. Right. It's like they're so terrified that somehow making that noise or being seen as like arguing or or or saying bad things about their colleagues with that. It seems to me that they're worried about that undermining the legitimacy when really that's so much less of a problem for legitimacy. And indeed, it might actually help the legitimacy of the court to see them actually make some of these statements. It's crazy to me.

0:20:35 Chris: Agree with that 90%. Let me just give one Do think think that there is an important element, like sometimes when people go after the justices and say, like, want more for them, I want them to be stronger, I wants them to dissent harder, I wanted them to attack more. Like, get it. And in some cases, they should and need to. Example is like seeing the joint dissent that we saw in Dobbs. Um, do think that we always need to remember that sometimes it's our job outside of the court to be saying things because they have a different job.

They have to get five votes whenever they can, which now means getting two justices to join them in order to like save the the law. I'm more willing to give them a wider berth the way that they're acting because I know that at any point they know that no one case is make or break for them because they have to go back to court the next week and try to get five votes again. And I think that that that is a very difficult position they need to be looking in terms of decades, not in terms of the news cycle.

0:20:41 Thomas: Sure. Yeah.

0:21:18 Thomas: Is there any evidence that that ever works? Works like is there any decision that matters where the justices, who you know one of which is, I don't know if you've heard this is uh flying insurrection flags at their their houses, is there anything that they're going to change their mind at all? Yeah.

0:22:20 Chris: To Get Alito or Thomas, but I think we have seen this alone. I think that Kagan and Jackson and Sotomayor are very smart, and they are able, I mean, if you are paying attention at arguments, there are times when you can, I'm watching it in person, where you, Kagan start picking up exactly Barrett is throwing down. Asks one skeptical question and Kagan starts making making that the entire case and figuring out how I keep her and which other one can I pull over? How can we turn this into a majority opinion? And I to extent we see successes from the appointees at preventing the successes that Thomas and Alito want, the cases this term, I that that is to their credit.

0:23:22 Thomas: I agree with that, I think that it's, I guess it's a hard question to answer, you know, it's like hypothetically could we have the counterfactual of what who would have gone which way if there's a little bit more forceful pushback from the liberal justices about other extracurricular stuff or whatever. It's hard to know. And I think I would say that, like, I think I disagree. But if I if know that it was making a tangible difference, then I think you're making an excellent point. I think the idea that it is our job to do that and their job to everything you've described, I think that's a great point. I just don't know I know how much that works anymore, but maybe that might just be me being too pessimistic about that effort.

0:23:37 Chris: Right.

0:23:57 Chris: Mean, I think there are four justices whose votes are sometimes in question and three, but, but every once in a while on the right case, they know that, that Gorsuch is in play, but like they, do think that, as you get cases like the South Carolina redistricting decision where you have like this clear six three split where like the bad things happen and Kagan should be as aggressive as she can be in her dissent because they're never going to win for anybody over on on that. Like, that's great. And that's why, like, I would have liked to have seen a strong dissent in the 14th Amendment ballot Trump, because like, the clearly got that wrong.

0:24:45 Thomas: Matt, two out of three people on this show say, oh, good. Okay.

0:24:48 Matt: Oh, no, I agree, too. I was

0:24:50 Thomas: We've convinced them.

0:24:51 Chris: Think in, there I were so many cases this term where we know know, at the end of arguments, how it's actually going to turn out because there was such a strong effort to over two of those three, sometimes four votes.

0:25:09 Matt: It's almost as if a setup in which you have to micromanage relationships between nine people to make federal law might not work, might not be good. I'm starting to wonder.

0:25:15 Thomas: Yeah. Yeah. Wouldn't have thought that the interpersonal dealings of these people who should be adults would so be key in constitutional issues, but there you go. Is brought you by trade coffee. Trade Coffee beliefs anyone can be a great coffee maker. Anyone can make coffee at your home. All you need is the best beans, roasted to order and curated for your personal taste, which is exactly what they provide thanks to their in -house team of coffee experts, 50 -plus small batch specialty coffee partners, and 450 -plus rotating roasts. I love a good rotating roast.

0:25:53 Thomas: No, that just means they have all kinds of different options. From dark roasts to decafs, espressos to cold brew, and with graduations, Father's Day, and summer, Birthdays coming up. Not too early to begin thinking of the perfect gift. And, there is nothing better than the smell of coffee that is 100% the best. But, you love something, why would you not love even more better options for that thing? And trade coffee gives you that. And it's The delivery is so convenient, that's the thing.

Never want to wake up, go to make yourself coffee and realize you forgot to get more, you ran out of beans, you're screwed. That's the worst. If you set up these deliveries, it's always going to be there when you need it. So give Trade a try for a month and see how you can make better coffee at home. Right now, they're offering 30 % off your first month of coffee when drinktrade .com slash OA. Drinktrde .com slash OA for 30 % off a month of copy.

More time, drinktrede .com slash OA thing I want to ask before maybe we talk about this Alabama stuff, and I were having a conversation and I still don't entirely know the answer to this, but my feeling about this flag stuff is A, and now your story with the stock trade, A, yes, I'm absolutely glad that this is getting out 100%. Definitely. Let's talk about it.

Let's make noise about it, but in some sense, it's sort of like as you're watching or reading, you know, or listening to, I guess, Alito in oral arguments, it's so abundantly clear this guy is. And to me, it is sort of like, okay, I am listening to him. I hear him make these references to stuff that is like, that is definitely only inside baseball, Fox News, even worse than that, like OAN kind of references.

0:27:33 Chris: Right.

0:27:34 Thomas: So, this strikes me as a guy who would have a Trump hat. And I, like that is 100%. Like, he is a guy that has a Trump hat, for example. And then it's like photographed with a Trump hat. And then we're like, oh, my God. And it's weird. Like, in what sense does that? Yeah, it's Like, I don't know that I've quite articulated the point correctly. But my thinking is like, something is wrong if the only thing that makes this a big deal is when you see the flag versus we the flag is in all the rulings and the oral arguments and everything. You know what I mean? Does that make sense?

0:27:46 Chris: Sam Alito has a Trump hat. Who would have guessed it?

0:28:06 Chris: Get that. And there is an element of just bluntly, it's very, it's much easier to show people a flag than to explain how these three phrases in a 90 minute or two hour argument show that he's not approaching this with the good faith basis that we expect, blah, blah. Like I'm already bored. And it's like, Like, but I can literally superimpose the pine tree flag on Alito's face and put out a post that night and it like shared everywhere. I Side of it that I think you enunciated is, does like, it only matter when we can see it? It concern us that this is who is sitting on the cases regardless of whether he raises the flag that day? It should. And guy who literally put together an timeline last year showing why Alito should have recused from Moore versus United States, the income tax case, because he was literally conducting these interviews with

0:28:21 Thomas: Fair. Yeah. Wow.

0:28:31 Matt: Yeah.

0:28:48 Matt: No, that's yeah.

0:29:23 Matt: Yep.

0:29:24 Chris: David Rivkin while cert petition was coming in with David Rivkin's name on it, like, that not a problem problem, and still don't have the opinion in that case. Um, what we got from that was a four page, uh, from Alito that said like, Gorsuch wrote a book with one of his clerks and that guy, like, an amicus brief in a case. It's like, Jesus, Sam, like, that's not the same thing at all. And like, like, out his brief. Like, oh, don't threaten me with a good time, Sam. Of unacceptable things continue to happen. And I both think that we can and should be saying that there was already grounds that he shouldn't be sitting in on certain cases, and well, this is proof that moves it over from appearance of to like an actual bias. Like, are different provisions in the recusal statute. And just shows that he has a bias towards a party, Donald Trump. And it's not about an appearance of impartiality. Right.

0:29:55 Matt: Well, You can read his 50 page dissent in Bostock where he explains exactly why he doesn't like trans people or think they should have rights. I mean, it's, it's there if you want to read 50 pages, if

0:30:48 Thomas: Look. Yeah, yeah, me put a final note on that. I think my point, I don't think is a criticism of anything that's happening now. I think, to rephrase maybe a little bit, it. Now that, and not that the much more intelligent justices than Alito needed this example, but now that they have this example, perhaps all future justices who might have otherwise flown flags will be more careful.

And so how do we make sure, I guess, in the future, that these justices, who might, you the flag raising type, but don't because they're going to be a little more coy about it, that's still every bit a problem in terms of what it means for their legal decisions. You know, like the fact that he had the flag versus if he had decided, hey, maybe I shouldn't hang this thing up, but I still feel exactly the same way.

That that choice doesn't change his legal decisions or his writing or his judgment. So how do we try to make sure going forward, any justice who might fall into that category? We got to try to make it important that they're already acting like that before we see the Trump hat or the flag or the whatever, because we might never see it.

0:31:59 Chris: I does come down to paying

0:32:02 Thomas: Subscribing to our podcast and your sub stack. That

0:32:05 Chris: Attention to the courts are doing. It does come down to actually concerning yourselves with those things. It's like paying attention when, confirmation hearings, paying attention when nominations come out. Was a great example just this week, Senator Blumenthal along with a of Democrats introduced a bill that would require justices to, would require the Supreme Court to issue reasoning for its decision to grant an injunction or vacate or grant a stay of an injunction, basically on the shadow docket, and to announce the votes of the justices in those orders.

0:32:56 Thomas: Would be nice.

0:32:57 Chris: Some questions about the ins and outs of the bill, some changes that some of us were talking about when the text of the bill came out, um, like point was like, good, like, I want to see like a dozen of those bills this year. So feel like people on the left are very good at worst at case scenario planning, but also do a little bit of good scenario planning and get some of those bills ready that would add more transparency to the court, would add some accountability to the court. And then, if Democrats are in a position next, to start adding things into other bills. This docket bill is four literally pages. Into appropriations. Okay, when Roberts, Jackson go to the Hill to talk about the budget request, that onto the budget bill. Like, okay, yeah, for your new hundred million security dollars that you want, but in exchange for that, you're actually going to have to tell us why you're doing these things. Yeah.

0:34:04 Matt: Nothing else, I hope all of this gets that to be a priority. And this is a great segue because we were just talking to Steve Ladek a few weeks ago about court reform bills. And one of the things we were focusing on was actually the forum shopping, which there are two competing proposals, which we discussed at length with Vladek. And in the course of that, he mentioned this case in Alabama that I actually, I'm sorry to say, I hadn't heard anything about, that you've been following pretty closely with allegations of forum shopping for trans rights. If you could just explain that one for us.

0:34:31 Chris: Complicated and extremely concerning situation. Had passed a on gender -affirming care for minors, gender - Affirming Medical Care for Minors, as now several red states have done. And there sort two similar cases brought in two different districts in Alabama. And there was a question about like getting moved to that they would both be before the same judge.

And then literally there was weirdness on like a Friday afternoon where they were be consolidated, and then the judge handed them off to a different judge, and the lawyers were like, we don't know why this happened, it's weird, we don't like it. And they dismissed the cases, as is their right, then refiled, refiled.

And in formally one of those cases, the who had gotten these cases, Lyles Burke, basically said, I am concerned that the that are being taken here might suggest an to forum shop, judge shop, and I like it. Then led to this unprecedented, unprecedented. The chief judges of the three districts of Alabama authorized an investigation into Allegations of judge shopping, in which the chief judges of each of the three districts of Alabama assigned a judge in those three districts to convene a three -judge panel to investigate nearly 40 attorneys. And these are basically, because there were these three different cases, these are basically all of the leading LGBTQ rights lawyers in America, and started holding secret hearings for a long time. Almost all of this stuff was under seal.

Panel was like its own case number, so unless you knew that docket existed, you weren't even going to like know what it was about. It was under the name of like lawyer in alphabetical order who wasn't even one of the top lawyers. So like it wouldn't have even been a flag to anybody when the case appeared on the docket. Um, uh, one point something got filed on the Bow versus Marshall docket, which is the the the case against the gender affirming care ban that went forward.

Um, it, a couple of other people noticed it, had heard that there was something going on, not realize how intricate it was, did not realise how much had already taken place. Basically, they had called these lawyers together. Um, by the of, uh, 2023, they, three -judge panel issued a report, which was redacted at the time, initially. Burke, who was hearing the Boe v. Marshall, this case, who was also the original district court judge who had questioned whether there was judge shopping, so he was had an interest in this, was then forwarded the three judge panel's report and told to do with it what he would. So now the who originally raised the questions, who also is the judge hearing the merits challenge to Alabama's gender affirming care ban, is now also on a third level, the judge who is going to be deciding what to do with this report.

He did make it public in in late March. Got very little coverage. The wrote it up, and bluntly, I was still in arguments for the Supreme Court term, and there were a few big cases this term, if you didn't know, and

0:36:03 Thomas: Wow. Geez.

0:38:51 Chris: Not had time to really spend the time on this that I wanted to. I read through the report, I was shocked at the way that they handle some of it. They sort of give all good faith presumptions to the judges involved in these decisions and all bad faith presumptions to the lawyers' actions, and decided that a handful of these lawyers should potentially face sanctions.

Lyles-Burke issued a series of show-cause orders ordering these lawyers to respond to the allegations in the final report, and those responses were happening, and I was planning on looking into this and doing like a big report on it once all of those were filed and we were moving towards the hearings.

And then Burke issues this wild order on Friday afternoon, saying that by the next Monday at 5, so basically one business day later, including a lawyer who's not even one of the potential lawyers that they're to planning potentially sanction, another lawyer altogether, have to turn over this Q&A document that had been prepared as of the investigation. It wasn't a back from the original cases.

It was a document prepared as a part of this investigation, and the lawyers for the lawyers and the lawyers themselves say is clearly attorney-client privilege, is clearly work product. And Burke just like shoves in the middle of this order that he thinks the crime fraud exception might apply. And he has to be able to review the Q&A document in camera before he can decide whether the crime fraud exception applies that would allow him, as the decision maker in the the show cause hearings, to, uh, it.

So there's a like, well, he would then get to see it regardless of the decision he makes about whether he's allowed to see it. So, there's that fundamental problem with this.

0:41:23 Thomas: Wow.

0:41:23 Chris: But then, that's not the end. He then says if they don't do so, he is going to, and order them into custody.

0:41:37 Chris: Or non-respondent, so even this guy who isn't one of the nine lawyers at issue, any respondent who fails to comply must appear at the the courthouse to show cause why the court should not impose monetary sanctions for noncompliance and remand him or her to the custody of the U.S. Marshal Service until he or she complies.

0:41:59 Thomas: This is terrifying.

0:42:01 Chris: This led to Don Verrilli being the lawyer for these lawyers. Don Verrrilli is the former solicitor general under the Obama administration, and he filed briefly a mandamus petition at the 11th Circuit saying, stop this, calling out how absolutely absurd this is, lacking any basis to sanction petitioners for their conduct in the underlying litigation. The district court has has now suddenly levied baseless allegations of fraud, as well as threats to jail petitioners if they do not turn over their privileged communications on one day's notice with no opportunity to be heard. That is an abuse of the judicial power that this court should not countenance. Now, the 11th Circuit got off easy for now because Burke did sort of pull back, uh, didn't end the request, but he pushed, put it off till, uh, Monday, May 28th. Um, are literally still things happening. This could, uh. Verley told me he expects it will be back at the 11th Circuit based on things Burke has said.

0:42:00 Matt: Over

0:42:02 Thomas: In the world?

0:42:25 Thomas: Yeah.

0:43:20 Chris: And even though I hadn't had time yet to do, like, my full report on this, like the fact that, like, I felt like I had to raise my own flag to go back to our topic. Um, like, is potentially is like a huge crisis that is is the drain and and could explode at any moment. There's like eight metaphors there, and I'm sorry, but like, this is, it's truly shocking behavior. Yeah.

0:43:48 Thomas: It really is.

0:43:53 Matt: We should fully expect this is going to be happening to everybody who's brought suits in front of Matthew Kacsmaryk and Andrew Hanen, right in Texas, that's same treatment

0:43:59 Chris: I mean, it's it's really wild that the Northern District of literally responded to that from the Administrative Office of U.S. Courts or whatever, the Judicial Commission, by saying, eh, nah, we're just going to keep doing this our way. That just like literally has just gotten lost in the ether. Like that letter was wild. Yet a hundred miles over, in we've had an investigation that has literally been going on for two years. The first hearing on this was May 20th, 2022. 22.

0:44:00 Matt: Yeah. Yeah. Yeah. Yeah. Yeah.

0:44:15 Thomas: Yeah.

0:44:38 Thomas: This is crazy. So what are even the allegations? Was it just like one case or what?

0:44:44 Chris: I mean, that complicated, and there were questions about why they did it and whether it was based on judges who, uh, uh, the case, but there was also like weird things that happened on the part of the court, like judges, there was a judge who got these cases, there was like lower number cases because they were earlier filed cases, and that's normally who a should go to. And then all of a sudden on a Friday afternoon, this cases were were reassigned to a different judge. And everybody was like, how did this happen? Why did this happen? We're very concerned about this happening. Lawyers all like got on a conference call and decided like, this is weird. We don't know what's going on. We're dismissing these cases.

0:45:15 Thomas: And it's just like a couple cases.

0:45:41 Chris: Were just, yeah, this was literally about two initial cases cases challenging the ban. It was two initial cases challenging the ban that were dismissed, and then a third case that was filed.

0:45:45 Thomas: It's not like a systemic, that's

0:45:55 Chris: They found out later that the reason for the transfer was because the judge who was going to get both of these cases had a significant, lengthy criminal trial that was was about to start. And he didn't want these cases because he already knew that they were going to be looking for preliminary injunctions and on the like date when like the effective date of the law. And so he didn't want to be having to do with those preliminary injunptions while he was dealing with this criminal trial, but they didn't know that. And even the three -judge panel credits as being obviously true, that they had no reason to know it. They weren't told it. They just got this notice that the judge who they thought was the better judge on the case transferred the case to the judge who they thought was going to be the worst judge on the case. And they had a thing that many judges and many lawyers in many cases talk about. They got worried that the judge who took the case, who got reassigned the case, they were worried that that judge had reached out and wanted the cases.

0:45:56 Thomas: It. Holy shit.

0:47:16 Thomas: Right. Like inverse judge shopping. I guess the judge going shopping. I don't know.

0:47:16 Chris: Yeah. Yeah. And They were concerned about that, and so they, they dismissed the cases. Um, bottom line is that, think anybody had like idyllic the majesty of the law behavior, but like literally I don't think anybody did. Like Like, I don't think the courts handled it well. I don't think all of the lawyers handled it great, but like followed since then over the past two years is really ridiculous.

0:47:34 Thomas: Sure.

0:47:50 Thomas: Crazy. Disproportionate to say the least.

0:47:54 Chris: Disproportionate, and particularly like the detriment of, of the the lawyers on multiple levels, because like they've been dealing with this while fighting this like attack on trans people. Like they've had to deal with this. They've been having to literally show up in person to hearings and, and inquiries. Like, there's all sorts of like offensive, to outright offensive treatment of these lawyers by the judges, things like, like them not to have contact with each other and like hearings at the same time by different judges in different rooms.

0:48:36 Thomas: Jeez.

0:48:36 Chris: So that lawyers won't be able to compare notes, and you, you have this like one, one, just like national level, like distracting these lawyers from like important work that needs to be going on. But then also on like level, this literally happening in Alabama while the case is going on before Burke, challenging Alabama's law. Burke's initially before the 11th Circuit got a hold of it. Yeah.

0:48:37 Thomas: Can Just pretend for fun that these lawyers did order the code red, and they're like, "Yes, I did it. I did try to withdraw that because I thought that judge was going to be bad." What would happen then? What's the normal, like, pretending they actually did that, what would be the procedure? Like, what would happen in that case? Yeah.

0:49:23 Chris: The case scenario is like a, a public report written about them that says that the appropriate sanction is that they're disbarred from the District of Alabama or whatever, and that of the other districts of Alabama will also disbar them from participating. And then that could then be forwarded under like professional responsibility rules to their various like state bars, uh, to consider whether action should be taken against them based on that. Um, does not appear to be what we're like is under consideration here. Um, as like, that was filed and then withdrawn at the 11th Circuit. Uh, like, not any, any real basis at the end of the day to sanction these nine lawyers that are left on the list?

0:50:18 Thomas: Totally. Granted I And I, I was just wondering, like, does this happen? Do we have any examples of this happening in a not, uh, obviously homophobic, uh, attempt to ruin these lawyers' careers or something? Like, what normally happens if this ever happens? Sure.

0:50:32 Chris: I Definitively on-wise, but literally just going like professional responsibility, I mean, like it's of candor to the tribunal, um, of the judicial system sort of things, like that, like, that are ways in which intentionally, intentionally withdrawing a case because you do not like the judge that you get assigned, and then refiling it, uh, different plaintiffs, hoping to get a different judge, like, you do that like six times. Mean, it's sit here and say, I also, bullshit, because like, also tracking, like, at this point, I think 10 challenges to the Biden administration's Title IX rule that are literally, like, I watch how quickly they proceed, like, people are filing their motions for preliminary injunction and how, they're asking for expedited review, versus ones who have only filed it so they can put out a press release that, "I'm suing Biden," the in the 10th Circuit, Oklahoma.

Very clear that there's an effort to get an injunction, an APA -based injunction that will stay the effective date of the rule, which therefore would be nationwide, and to get that before August 1st when the rule, to go into effect. And they're going to the Fifth Circuit, Sixth Circuit, and Eleventh Circuit to do so. There are cases in Texas. There are cases in Alabama. There are cases in Arkansas. There are cases in Tennessee, Missouri, I think, Eighth Circuit. Then there's the, the Oklahoma case.

Um, it's like, it's, that's not judge shopping because they're brought by different people. Um, like, mean, in the olden years, in the old days, there would have had one case filed, and it, D.C.

0:50:48 Thomas: Yeah uh

0:52:36 Chris: Would have gone up to the D.C. Circuit, which would have hurt it, and we would have moved on. Now, why wouldn't you get the Fort Worth Chamber of Commerce to join the U.S. Chamber of Commerce's challenge to the CFPB's credit card late fee rules so that you can file in Fort Worth and, uh, a 70% chance of getting Reed O'Connor. That's what they did.

0:52:40 Thomas: I yeah, crazy

0:53:00 Matt: What I kept coming back to, exactly Reed O'Connor, yes, because that was the, uh, for the Boeing, uh, prosecution agreement we're talking about, as well as for, obviously, Kacsmaryk with Mr. Preston, like, these, those things happened during those two years that those lawyers are being tortured in the story you just told us, and it's just obviously subject matter, there's no other way to see it. Yeah.

0:53:15 Thomas: This Is this, is really alarming? I, that the, the specific, like, and hatred that, that feels like to me, is just really alarming by these judges. I, like, a secret, secret proceedings and all those ways that they're trying to, uh, with them, like, that's, that's scary. Yeah.

0:53:33 Chris: And I mean, there's there is history for this. This isn't the first time. I mean civil rights lawyers were harassed and the judicial system in the South, like years ago like not news I

0:53:36 Thomas: Sure yeah wow Well, that is really alarming. Thanks so much for, uh, this, because that, that is information that I really want people to know. Wow. Um, where can people find you again? With, again, a big thanks for coming on. Um, .com, is there anywhere else you'd like to send people?

0:54:01 Chris: Am Chris Geidner on everything and also Law Dork has accounts on Twitter X, on Blue Sky, on Instagram, and yeah. Yeah, www.lawdork.com. I will be covering everything that nine throw at us over the next five weeks, as well as a more on this Alabama happenings.

0:54:20 Thomas: Big exhale yeah wow that that's important coverage, I hope everyone checks that out. Yeah.

0:54:28 Matt: Thanks for that spotlight spotlight. Yeah.

0:54:32 Thomas: And thanks again for coming on the show, stopping

0:54:35 Chris: A lot for having me.

0:54:36 Matt: Great talking to you.

0:54:36 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.

0:54:53 Chris: Don't know, am I allowed to swear on this podcast?