The SCOTUS Embarrassment That Was the EMTALA Case

Transcript

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

0:00:45 Thomas: Hello and welcome to Opening Arguments. This is episode 1056. I'm your host, Thomas Smith. That over there is real-life attorney, Matt Cameron. How you doing, Matt?

0:00:53 Matt: Hey, Thomas, happy Jerry Day and happy birthday to you.

0:00:56 Thomas: Sorry, heavy what?

0:00:57 Matt: Jerry Day, it's Jerry Garcia's birthday. He would have been 82 today. Just August 1st, one of those days. But how was your birthday?

0:01:00 Thomas: Oh, okay. Cool. You know, didn't notice it.

0:01:06 Matt: Well, maybe next year.

0:01:10 Thomas: Yeah, yeah. Closer to 40, So which old. Can you imagine being 40 or older, Matt, I can't personally. No way.

0:01:12 Matt: No, 40 is the best. Better every year, I got to tell you. 44 is doing going to be fine. But we got a lot to talk about today. There's big news.

0:01:20 Thomas: That's nice, we do We have a ton to talk about. I It is hard to decide what to do, uh, for folks that, uh, Gavel Gavel's got those new, um, Michael Cohen X episodes with the great Eli Bosnick, of course. That's patreon.com/gavelpod, and also, uh, able to get it out as soon as I wanted, but very soon we will have the Alec Baldwin, um, to dismiss, I guess, hearing, right? Is that what I would call that legal thingy?

0:01:49 Thomas: That was fascinating. So I cannot wait to get that all edited and out to you folks. Let's see. Any other announcements? I don't know. I think pretty much just stay the course and everything's good. The state of our union is strong. The podcast union, not our real one.

0:01:48 Matt: Good times. Yeah. That was a fun one.

0:02:00 Matt: That'll do. Project 2025 is over. So drop

0:02:06 Thomas: Oh yeah, it's all done. Well that's a great transition.

0:02:08 Matt: The confetti.

0:02:09 Thomas: We'll be talking about that and some other things after this break. So why don't we we take this break, which you can avoid at patreon.com/law. And we'll see you in a moment. Declared victory over Project 2025. It's all over. We did it. Now. Mean, that's secure because obviously, that it's a a bullshit thing. However, I also do want to say, um, seriousness though, the fact that this happened, the act that they got so scared about project 2025, they ran from it and did, did a fake thing that we're going to talk about, which is pretending it doesn't exist anymore. That is a testament to how much energy there was on this online to you find folks spreading the word about it. Uh, and it seemed to be pretty organic from what I saw. Uh, you know, hopefully we contribute some small part to that, but I do think that's a major deal to

0:02:25 Matt: Absolutely.

0:02:35 Matt: Yeah episode 1009, you go go back and listen. And back in February, we had something to say about Project 2025. Just to remind everybody, of course, it's a 920 -page mandate for leadership document that does everything from revamping the entire way that we hire people in the federal government to guarantee Trump loyalists, to expanding our nuclear arsenal, to mass deportations, to...

0:03:14 Thomas: Like banning divorce. I don't know. Everything's in there.

0:03:16 Matt: Yeah. Oh, no. And actually, there's a sentence I meant to read before. I'm just going to read real quick here because there's some shocking stuff that I think people should understand, because this is, as we're going to find out, very much still alive. Pornography.

0:03:27 Thomas: What?

0:03:28 Matt: Pornography manifested today in the omnipresent propagation of transgender ideology and the sexualization of children. So let's start there, that pornography is like inherently propagation of transgender ideologies and sexualization of children, is telling, isn't it? That's a little Freudian.

0:03:38 Thomas: Trans people existing to them as pornography. Is that what they're saying? Okay. Mean, Hey, you do you conservatives. If you're into that, I think you should just be into it. Yeah. Just be into It and let other people live their lives. You know, if

0:03:46 Matt: Yeah, no, hey, right. But that was not my understanding, but yeah. The is here that it has no claim to First Amendment protection. Its purveyors are child predators and misogynistic exploiters of women. Their product is addictive as any illicit drug, etc., etc.

0:04:00 Thomas: Product, sorry, I really missed this. Are they talking about porn now? Just, oh, okay.

0:04:04 Matt: Are. Pornography should be outlawed. The people who produce and distribute it should be imprisoned. That is in the document. I just want to make sure that everyone knew that. And the Heritage Foundation recently also, in a very related thing, which I think every voter should know. I really think that people should understand what these people are about. Heritage Foundation, again, the people behind Project 2025, and usually like a pretty middle -of -the -road Reagan conservative type, they've gone pretty hard MAGA. They retweeted a while back, I meant to mention this as well, of the people involved in Heritage Foundation. Woman who was talking about essentially how we we need to outlaw birth control so that we can end recreational sex. That's something they want to do.

0:04:09 Thomas: Holy shit. Oh, I have a, I have a project 2025 document I prepared. It's only a single sentence. It says, why don't you go [bleep] yourself? I like my policy proposal better. What do you think?

0:04:50 Matt: Someone else, you might have a good time. So the tweet, when they retweeted this, just in case there's any doubt about what they want here, and I just want to be sure that everyone understands this and tell everybody you know, because it seems important. Conservatives have to lead the way in restoring sex to its true purpose and ending preventing recreational sex, and senseless use of birth control pills. Senseless use.

0:04:51 Thomas: Yeah. Yeah.

0:05:10 Thomas: No, I'm, we're using it pretty, sensefully.

0:05:13 Matt: Is who they are. This is who these people are and what they want. I just want to remind you. So just to set that up, because you've heard a lot about Project 2025 from us and from lots of other places by now, I'm sure. And yeah, it's pretty evil. Is pretty much straight up just an evil plan. And the director of Project 2025 stepped down a couple of days ago after Trump had spent the month kind of criticizing him, talking about how he doesn't know anything about him. On July 5th, Trump tweeted, I know nothing about Project 2025.

0:05:14 Thomas: Yeah, sure.

0:05:40 Matt: I have no idea who is behind it. I disagree with some of the things they're saying, and some of things that they're saying are absolutely ridiculous and abysmal. Anything they do.

0:05:45 Thomas: But he doesn't know what any of the things are, but he does know that he agrees with some of it and disagrees.

0:05:48 Matt: No, just like he didn't know, from

0:05:52 Thomas: To be fair, That's kind of Trump with any issue, so you know what, he might honestly be telling the truth there.

0:05:52 Matt: What I assume. That's true. Yeah, it's like in the same way like David Duke. I never heard of him. What's he about? What's that guy? Yeah, he just tried to distance himself.

0:06:00 Thomas: Yep. Yep. Anyway, I like him a little bit, but not all the way, but I've never heard of him, so

0:06:05 Matt: Yeah, right. Right. They had some heat here. And so the director stepped down and they announced that they'd be winding down their policy work, which is kind of funny because famously they've already produced a 920 page policy document.

0:06:17 Thomas: Now they're just gonna do farming, or what are they, what are the other stuff? Yeah. Just gonna run a restaurant or something? What is that, what do they do in there when they're not doing this?

0:06:21 Matt: Sustainable farming, yeah. No, because first thought when I saw that was, of course, the main goal of Project 2025 was to build a database of people that could stick into the federal government who are Trump loyalists. And of course nothing about policy would suggest they can't keep doing that. And in fact, Kevin Roberts confirmed it because he loves doing the Bond villain thing where he just tells you. I meant to mention this too. A few months ago, Paul Roberts actually said that nothing can stop Project 2025, which is exactly what somebody says, like, "Well, James Bond is strapped to a rocket that's about to go to the moon or something," you know, uh,

0:06:29 Thomas: Uh, -huh, okay. That makes sense. Okay.

0:06:53 Thomas: Yeah, yeah, Weird. Caught, we caught him monologuing,

0:07:00 Matt: Exactly, uh,

0:07:00 Thomas: The Incredibles, the best superhero film there is, yeah.

0:07:05 Matt: So you can hear it from him, uh, "Project 2025 has completed exactly what it set out to do, bringing together over 110 leading conservative organizations to create a unified conservative vision," etc, etc. "This tool was built for any future administration to use," built, past tense, "we're done our collective efforts to build a personnel apparatus for policymakers of all levels, federal, state, and and local, will continue." So again, there you go. Yeah, sure.

0:07:25 Thomas: I mean, that's kind of fair, like, it is, they did some stuff that's like, can't really take it back in a sense, and so, so more to the point.

0:07:33 Matt: It's done. They don't need a policy director.

0:07:34 Thomas: Yeah. I mean, that's I really hope I don't think anyone's falling for it, but I hope no one falls for this nonsense because it's still very much going to happen.

0:07:40 Matt: I really do just, and because the headlines are out there and just don't, don't just ignore them. And there's one other thing too, that I think is very funny. The New Republic actually just released this. I wanted to mention, because obviously Trump's doing everything he can at this point to say, that's not us, you know, because right now they're losing conservative women. Like conservative women are really having trouble with some of this stuff and among other other things, and obviously all the energy right now around a new candidate. The New Republic got a hold of the foreword written for Kevin Roberts' book, the director of of the Heritage Foundation, Kevin Roberts, which runs 2025. His new book is called Dawn's Early Light, Taking Back Washington to Save America. It's all about how we're on the verge of destruction and all that. So who do you think wrote the foreward to Kevin Roberts' new book.

0:07:42 Thomas: Oh, my God. You're not going to say Trump, are you? Because he can't write. Did somebody ghostwrite it for him? Oh, no, no. It's it's sorry. It's Vance, right?

0:08:23 Matt: No, it J.D. Vance wrote the forward, and I'll just read you the conclusion of the forward. Are now all realizing that it's time to circle the wagons and load the muskets. In the fights that lay ahead, these ideas are an essential weapon. These ideas being Kevin Roberts ideas, the ones that they're now distancing themselves from. This book hasn't come out yet. That forward is something he's written, and it's about to be published, and New Republic public got their hands on it. So just in case you think that it's possible to distance yourself, you're right in it. That's it.

0:08:27 Thomas: Yeah. What?

0:08:54 Thomas: It's a little bit like Hitler Youth saying, hey, we're done setting policy, but we are still going to recruit Nazis.

0:09:01 Matt: We've still got our database. Still clearly supports all of this. And no doubt, Trump supports lots of it too. He just knows he's supposed to keep some distance from people who are saying they want to ban recreational sex and pornography.

0:09:02 Thomas: Yeah. Um, I just want everyone to know that I'm not making the jokes that everyone's making because it's based on a fake made up thing. And I think it's kind of weird, but there are jokes to be made about Dance and the kind of sex that he wants to ban versus the kind that he has.

0:09:25 Matt: That is a very couched comment, Thomas.

0:09:28 Thomas: I, it, that's, that'S a weird choice of, I've never heard you use that as an adjective. Surely there must be something, uh, lazy boy. I don't know. I got no, I can't.

0:09:33 Matt: I feel like you're really cushioning what you're trying to say here.

0:09:44 Matt: I'm done. That's what I got. Anyway, also a point on Stephen Miller has also now denied that he had anything to do with this, even though he was in a promotional video for it. And of course, America First Legal, his organization was one of the first groups to get on board. They were cited 14 times in the whole mandate for leadership.

0:09:58 Thomas: What? Who is that for? Who Is the Steven Miller, I didn't have it. That's sort of it. Trying to think of a weird analogy, but like in some horror movie, if all of a sudden it pans to like Nosferatu and he's like, "Well, I didn't have anything to do with that." It's like, I don't really care if you did or didn't, dude, that doesn't, that changes nothing. You're still Nosferantu, like you're still this weird evil goblin. Like why would, so you, you didn't write this particular thing? Well, A, you probably did, I don't believe you. And B, even if you didn't, you'd probably have something worse going on.

0:10:00 Matt: Yeah, I know.

0:10:27 Matt: There's that one voter out there who's just waiting for Stephen Miller to disavow Project 2025. And now they're going for Trump. Set. Yeah. So, you know, I do agree with you that what you said up front, I think the coverage is working. I think this kind of drumbeat of here's what they are, here's What they believe. I mean, they're the ones who put it in writing and released it. They didn't have to do that. Could have kept it to themselves.

0:10:35 Thomas: Weird.

0:10:46 Matt: This is meaningless. And obviously, the project continues and we have to keep a watch on it.

0:10:45 Thomas: Yeah, here's the important thing that I think is definitely true. Amount of Project 2025 agenda that will happen if Trump wins has not changed.

0:11:01 Matt: Absolutely not. No.

0:11:02 Thomas: So no matter how they try to package it, how they try to make like smooth it over and pretend it doesn't exist, that we know that Trump is willing to say whatever to get elected. We know that he, may he made a bunch in 2016, I'm sure people remember, he made, he made some like populist promises that that like actually appealed and kind of were a reason that some people voted for him who I guess didn't know any better yeah yeah he's gonna fix the whole health care thing, Matt, so he's willing to stay whatever. Obviously we can't put any stock in that whatsoever, so, ever. Yeah.

0:11:21 Matt: Yeah. I mean, universal healthcare, among other things. It's just, of course, yeah, the project continuous, everything's the same as it was. Don't believe the headlines. So speaking of things though, that Project 2025 wants to get done, we a very important Supreme Court case that we did not talk about that I wanted, it was on my docket, and we have a reason to talk about it this week more than we would have because there's a big leak around this case, and I want to get into that leak at the end of what we talk about here, but I wanted to start just by laying out the case. It's a very unusual case. This is what you might have heard called the Idaho MTALA abortion decision, and this was the other big abortion decision in front of the court. We talked about the mifepristone case, ultimately of course dismissed for lack of standing, the FDA v. Hippocratic Medicine, because it turns out the special group of ridiculous doctors they put together didn't have standing to challenge the FDA's approval of mis-admitted pristone.

0:12:14 Thomas: It an insult to the concept of like that they even considered it yeah but just, but yeah, cool, yeah.

0:12:17 Matt: Yeah, absolutely. And standing. Yeah. But this case, I would argue, was a lot more damaging and had a lot more potential to hurt people and it didn't get covered as much. And so I want to go through it because I think we've learned a lot about it since this leak. So we'll be able to put it in context once we get through the basics of the case. I will say just as a trigger warning that going to have to be talking about some pretty disturbing accounts of miscarriages abortions complications of pregnancy um this case comes down from Idaho because Idaho has an extremely strict Defense of Life Act.

And of course, that's a misnomer in itself because this is killing people, the Defense of Live Act. And it is extremely strict. Honestly, I hadn't really read one of these before and I got angry just reading the text of the statute. It is maddening. Defense of Love Act criminalizes abortion in nearly every case ever. And it's got just some really cold offensive language. I just just want to read so you understand what we're talking about. It's a mandatory two -year minimum with up to five years in prison. You get your medical license suspended for six months on a first offense and revoked permanently on the second.

0:12:54 Thomas: For

0:13:19 Matt: If you violate without one of these exceptions. And so based on the facts known to the physician at the time, the abortion has to be necessary to prevent the death of the pregnant woman. And he uses the pregnant woman language, but prevent the death. And that is obviously extreme. There are a lot of things that can happen short of death that are extremely unpleasant and disabling. Only allows an abortion within the first trimester if the woman can provide actual copy, like an actual proof that she reported rape or incest to authorities. So awful. That's the law that the federal law is bumping up against. The federal law, of course, is the Emergency and Active Labor Act passed in 1986. And the major point of this bill was to make sure the hospitals weren't dumping patients on one another, that when you go to the ER, that you have to be seen

0:13:18 Thomas: Providing an abortion or

0:14:04 Matt: By that ER. And if they absolutely can't treat you, they have a responsibility to transfer you. And that, of course, applies to any medical emergency, but most especially to labor. There's a separate section in there about people giving giving birth.

0:14:15 Thomas: Because that's, that's the only thing where people would be cruel enough to turn someone away based on their stupid ideology. I'm guessing it's aren't a lot of, you know, religious people who are mad at you for like being diabetic or whatever, or maybe they are, I don't know. But like when it comes to this thing, yeah, yeah, yeah.

0:14:21 Matt: It's appendicitis is a judgment of God obviously, but short of

0:14:31 Thomas: That's, it's funny when you put it that way, it's like, shouldn't just get out of that business. Shouldn't you be like, well, God intended, whatever this is. So I'm not even going to be a doctor.

0:14:31 Matt: That. Yeah. Step aside.

0:14:38 Thomas: Why would I try to change anything? But yeah, I just think if if you polled all of society, all of society, and just asked the general question of, hey, do you think it'd be probably for the general welfare for everybody if emergency rooms had to just, you know, help you and not turn you away? Like, I can't think of a more basic, like, pro -social, yes, that should be the policy.

0:14:39 Matt: Yeah The too is the entire purpose of EMTLA being to make sure that people don't get turned away and dumped in other hospitals. This conflict right now with the Defensive Life Act was forcing Idaho hospitals to do that. They were airlifting people out at record rates to other states because they were not comfortable doing anything given their law. And just to get the standard out there for the federal law, the EMTALA, so we can talk about the conflict. So remember, with Idaho, it's just death. Like, basically, it has to be an imminent death of a pregnant person. For EMTALA, the health of the patient has to been serious jeopardy, or the condition could result in a serious impairment to bodily functions or a serious dysfunction of any bodily organ or part. And the patient has to be stabilized, which means that they have to provide such medical treatment of the condition as may be necessary to assure, within reasonable medical probability, that no material deterioration of the condition's likely to result, et cetera, et cetera. So stabilize means stabilize. You have to be in good condition if you're going to transfer somebody or discharge them.

0:15:49 Thomas: Crazy.

0:15:49 Matt: And that's all U.S.C. 1395 D.D., if you want to look that up. So that is the conflict between that federal statute and the Defense of Life Act, which in Idaho is annotated Code 18.622.2a.1. So this is a pretty basic question. And this is a basic first-year constitutional law question for law students. You've got a federal law that says that there's a broad range of things for which people have to be stabilized and that you have to treat them. And you've got state law in which you can only treat them, in this one instance, if they're about to die.

So the Supremacy Clause of the United States Constitution is supposed to, when these two kinds of things conflict, federal law is supreme. That's just Article 6, Clause 2, very basic constitutional stuff. This is not, as Justice Jackson points out in concurrence, this is not complicated. This is something they could deal with. But they're not going to deal with it, as we'll see. The entire procedural history of this one is really unusual. And honestly, it's a real clown show when you break it down. Because the US government stepped in and it sued Idaho to keep it from enforcing this law because people were really getting hurt.

Obviously, as soon as they were able to impose it after Dobbs, they did. And there's actually, there's a, I'm going to link to it, but there's a brief from St. Luke's Medical System, which is the largest employer in Idaho, the largest provider of healthcare.

And they're talking about all these firsthand accounts of what happened after Dobbs, when this law went into effect and people, you know, just all kinds of horrible complications, people having to be airlifted other places, the way that, you know, how painful it is for doctors to have to stand by and watch somebody bleeding out, to watch them in terrible pain, to watch them potentially facing disability or permanent injury, just so that they can meet this standard of imminent death.

So the US stepped in and said, this has to be resolved, that federal law has to be supreme here. And the district court in Idaho held a whole trial where they presented medical evidence, they reviewed everything, they made some findings, and they stayed the law and agreed with the US government that the federal law is to control. So there's an injunction put into place, and this is all pretty normal. This is what you'd expect so far.

You would not expect at that point is that somehow the case would go immediately to the Supreme Court after the injunction. Usually there'd be another step. It would go to the Ninth Circuit. But there is a provision, and I don't think we've talked about this. I don't think it's come up very often because it hardly ever has happened, speaking, the Supreme Court has the right to grant certiorari before judgment.

And this is a little weird because you'd think you'd want to wait until after you had a decision. Under 28 U.S.C. 1254, writ of certiorari can be granted upon the petition of any party to any civil or criminal case before or after rendition of judgment or decree. They have hardly ever done this. From 1988 to 2019, these were granted three times, these requests to do this before judgment. But since 2019, the court has been doing it very regularly, dozens of times actually.

0:16:27 Thomas: Should be how Yeah, it works.

0:18:27 Thomas: There like a good use of this? Is there A way that it would typically be used that you would accept, there, like the good version of using this power?

0:18:35 Matt: No, they did. In the Texas v. Biden case in 2022, they used it pretty well. They jumped in and stopped a challenge to Biden's immigration policies that was not going anywhere.

0:18:43 Thomas: Gotcha.

0:18:43 Matt: But If there's real imminent harm, if there is real damage that might be done, you can imagine situations where it's necessary. But it should, should be used sparingly, obviously, because the appeals court exists for a reason and we don't want the Supreme Court just jumping in on everything. The court itself has its own internal rules and Rule 11 is based on the statute that I just read you. And it sort of provides the standard by which they decide whether they can take something before judgment. And their standard is that it will be granted only upon a showing that the case is such imperative public importance as to justify deviation from normal appellate practice and to require immediate, immediate determination in this court.

0:18:43 Thomas: This Is sounding to me like the major questions doctrine or some shit where they just decide, well, this is something we want to do, so We'll do it. Cool.

0:19:22 Matt: We, I mean, they can have a rule all they want, but at the end of the day, they just get to take it when they want to take It. And here they really wanted to take I. And Barrett, in her concurrence, Amy Comey Barrett has a very interesting tone throughout this concurrence. And I almost think from reading it that she might have been the deciding vote potentially, I don't know, or at least one of them. We know that she had to be one of But she seems to regret taking it at all.

But let me make sure I explain exactly what happened here. So they agree to take it before judgment. They are reviewing the district court's case before it's gone to the Ninth Circuit. They do this in January. And they also surprise everybody by not just taking the case, but then by reversing the injunction, by staying in rather. So making sure that the Idaho law goes back into effect. So from January until June, the end of June, this Idaho law was in effect and people were getting hurt.

There were six people had to be airlifted out of Idaho because the doctors weren't able to help them. St. Luke's has all these other stories of all the other complications and things that happened. So real consequences, as often there are when you lift an injunction or when you grant an injuction, but real consequences for real people in a case that the Supreme Court, not to spoil anything, but in the end, they're going to find they shouldn't have taken it at all, which I agree.

0:19:24 Thomas: Cool. System. Wow.

0:20:32 Thomas: Sort of seems like, why did you do all that then? Okay, yeah.

0:20:35 Matt: Question. And that's what I want to break down here today, because they really, I mean, they've really shunned their ass on this one, the conservatives, entirely. So again, just to review, so we all understand where we're at here procedurally, have district court agrees that Idaho law is trumped by federal law.

0:20:51 Thomas: And just to put my spin on the where we are right now, this is an obvious question, there's no Like, this is like, they're trying to quarter soldiers, soldiers, and they're like, no, actually, it's pretty clear, don't Quarter soldiers, it's in, it's Right there.

0:20:57 Matt: Yes. Right. Can set up a post office?

0:21:06 Thomas: It's

0:21:06 Matt: No. I mean, it's about that. It's almost there.

0:21:08 Thomas: Straight there, Man. Okay, done, case closed, well

0:21:12 Matt: I appreciate your clarity and I agree entirely. Justices generally seem to agree to this, except for Alito, of course, but we'll get to him. So Idaho is stayed. They can't do this law until the Supreme Court steps in before they should have and grants the stay of the injunction and reviews use the case. So that brings us up to April, when they have the oral arguments, and it kind of seems like maybe the conservatives are going to go in Idaho's direction.

0:21:35 Thomas: So, like, I get that obviously this is a clear case to me and any thinking person, but the way our legal system works, it's like, well, yeah, yeah, you, you, we had this appeal, and fortunately the Idaho law was stayed pending the appeal, but you still go through the appeal, and then you would expect, I would hope that the district court would also be like, yeah, obviously you can't quarter these soldiers, that's obvious, what are you doing here? And then we'd go on from there. But then for the Supreme Court to jump in and take it before they normally do and to say, we're grabbing this. And then they, they lifted the stay on the Idaho law.

0:22:08 Matt: And to do that, they have to have found that there's going to be irreparable harm to the state of Idaho. That's what they have defined to do. And

0:22:15 Thomas: You can't harm the state of Idaho. It's already. Sorry.

0:22:20 Matt: Well, I mean, we could certainly have some things to say about it that might offended, but it's a beautiful place, but you know, that's all I'll say.

0:22:23 Thomas: Oh,

0:22:31 Matt: Yeah, the irreparable harm to Idaho, there's an interesting thing here in Comey Barrett's concurrence, which I think is very telling. It's actually, I mean, there is some really good writing all around, but she says that the justices essentially were convinced at the time that they took it, that there was going to be irreparable to Idaho both because abortions were going to be allowed to go forward and because religious healthcare providers would be threatened, I think was her word by this. People who definitely should be practicing medicine.

0:22:50 Thomas: Yeah. So not worried about the people who are going to probably like, you know, die or get horrible medical care because of this.

0:23:02 Matt: No.

0:23:02 Thomas: No about the irreparable harm there. But to the abstract concept known as the stateofIdaho, that's where we got to be careful.

0:23:11 Matt: Will look out for the state? Who will speak for the State? It's true. Literally lawyers, they have lawyers to speak for them, but here we are. Just very interesting because there's two very unusual things that happened in this case. First, they granted it before judgment, and then they dismissed it as improvidently granted, which is very funny to me. Like, yeah, we really shouldn't have done that.

0:23:13 Thomas: Yeah. Yeah.

0:23:29 Matt: What were we thinking?

0:23:28 Thomas: I hope that the decision read, "Oh, okay, never again. Oh, I am never drinking that much tequila again. I don't, apparently we, look, we granted some things and I guess we shouldn't," you know, when you've had a few and those, uh, those stays look a little, those administrative stays look a lot more attractive than they do by the light of day, and or whatever, I guess the opposite of that. And then yeah, it's pretty crazy that they cause this whole mess and then they do a rule, they take the trouble of doing the ruling of, like, all right, okay, so here's what happened, this was not proper. Well,

0:23:54 Matt: We've all been there.

0:24:05 Matt: Yeah, we really, yeah. But what's funny about it too is that the actual order, right? So I'll read you the entire decision is one sentence. It's per curiam. The writs of certiorari before judgment are dismissed as improvidently granted. And the stays entered by the court on January 5th, 2024 are vacated. It is so ordered. That's all they had to do. But then of course, because it's the Supreme Court, there's 42 more pages because they can't help themselves. Me too.

0:24:25 Thomas: I'm glad because like somebody should explain what happened

0:24:27 Matt: I want to know. Yeah. And And I mean, it's just funny, though, that they don't have to. But I'm glad they did, because so we've got three different buckets of opinion here. We've got the Kagan -Jackson -Sotomayor concurrence, in which they agreed that it was improvidently granted. We've Got the Comey -Barrett -Roberts -Kavanaugh concurrence in which they explain themselves, which is pretty funny. I'll get to that in a minute. And then inevitably, of course, you have the Alito-Thomas dissent in which, which they say this is fine, and it should have been allowed to proceed because definitely EMTALA does not cover abortions. I don't really want to give them too much airtime. I don't care that much about what Alito has to say

0:24:28 Thomas: Here yeah yeah so dumb

0:25:05 Matt: Generally, and certainly not in this case. We've got plenty of other things to talk about in this place.

0:25:08 Thomas: Can cover it a few months from now when it becomes the law of the land, it's fine.

0:25:13 Matt: Don't say that out loud. Yeah, that's

0:25:14 Thomas: Hey, today's Alito dissents are tomorrow's law if we let it happen. And also, even if we don't, it's going to happen in some cases. But yeah,

0:25:19 Matt: That's very true. So, of the Kagan concurrence, as you'd expect, is very clear, very morally clear, very understandable, and agrees that, let's read this, "I do so because Idaho's arguments about EMTALA do not justify and have never justified either emergency relief or our early consideration of this dispute." So they're saying, Kagan's saying just go back to the courts, it can work its way, we can do this properly, fine, but I'm interested in the concurrence from the conservatives I'm going to tell you about here.

So we've got Comey, Barrett, Roberts, and Kavanaugh. And we know now from this leak that just came out that we'll talk about at the end that they switched their votes, that there was a lot of vote switching kind of going on, a lot chaos around this one when they lost the majority.

And the ultimate outcome of this is they had 6 votes to let the stay and to allow the injunction to remain in place, and five votes for the whole case being improvidently granted, which is enough to dismiss it. So this kind of worked out as a messy thing. But the conservative concurrence, concurrent, she addresses something that came up at oral argument.

I listened to most of the oral argument on this, and there was a lot of back and forth about whether or not the stabilization could be in response to a mental health crisis, right? So essentially, if someone comes in and is suicidal, I think is really what we're talking about here, or so depressed that they don't feel like they can go on, and the abortion is related, it'd be a way to stabilize it. There was a lot of concern that the conservatives were concerned this would slip through as something. And Elizabeth Preliger, in her footnote five,

0:26:50 Thomas: Prelogger.

0:26:50 Matt: They made a big thing about this footnote. Preligger, excuse me. Why am I like this? This.

0:26:53 Thomas: It's always the opposite way you think.

0:26:55 Matt: Know. I just... Okay.

0:26:57 Thomas: She is truly amazing. So it's worth getting right. I love her.

0:26:57 Matt: Yeah. Course. No, we love Elizabeth Prelager. Did I just do it again? Preliger.

0:27:03 Thomas: Nope, that was the right way. It sounds wrong, though. That's why we had to check several times. But she does seem to pronounce it Prelagger.

0:27:04 Matt: Okay. It's... Yeah. Is before beer. Okay, I can remember this. Easy enough. Preluger.

0:27:13 Thomas: Yeah. Yeah, that's what the Supreme Court need to learn. Look, liquor pre -logger. You've never scranted foggy or I don't know. I got nothing more.

0:27:23 Matt: Never enjoyed harder. Yeah, I think she should be our next Supreme Court Justice, us, but from everything I know about her, she's a great nominee. So in a footnote, though, she basically was trying to dismiss the concerns about this mental health thing. And then she was grilled at it more about an oral argument. And Connie Barrett just really disingenuously latches onto this as one of the things where she's like, well, if we'd known this at the time we granted, if we just want to read the way she backpedals because I think it's very funny. I mean, it's just, like I said, it's just funny to watch them do this. It's not funny the way it worked out and the way that the Idaho law was in effect all these these years, months. "Both decisions were premised on the belief that Idaho would suffer irreparable harm under the injunction and that these cases were ready for the court's immediate determination. Since then, briefing and oral argument have shed more light on this case than the nature of things was afforded at the time that the court considered petitioners' emergency applications."

0:27:26 Thomas: That would be pretty cool.

0:27:44 Thomas: What if we don't what?

0:28:10 Thomas: What? What light?

0:28:13 Matt: They actually heard the arguments, I guess. She's going through these things about mental health thing, about

0:28:18 Thomas: Still don't understand. So she's using that as a way to justify. Well, look, yes, this seems weird that we're going back on what we did five seconds ago. Go, but we didn't know what, what, can you tell me what the thing they didn't, she's saying they didn't, no, is, oh.

0:28:32 Matt: She's saying that they emphatically disavowed the notion that abortion is ever required as a stabilizing treatment for mental health conditions. And that is ultimately where the government landed on, to be clear. That was that was Preligar's ending at any point. Sorry about that.

0:28:45 Thomas: Okay. So the, there's some argument that in like terms of the damage, because I had assumed when you're just talking about the damage to Idaho, it was just the fact that they want to ban abortion and then they this won't let them ban abortions, what I assumed. But you're saying that it was a little specifically, they were saying, well, it's going to make it so that sometimes you have to perform an abortion to stabilize someone by the definition of this federal law. And that's where the harm is.

0:29:12 Matt: They're saying there's a loophole here that would allow somebody to get an abortion if they're depressed. That's what they're trying to say. But they said that was one of the reasons that they're claiming, that was one of reasons they granted the review. And now they're saying, well, now the government said that's not true and it's not going to happen, then we're okay with that. Some other things too, but really in the end, I think that they just realized that it's don't. Okay. So in the end, obviously, they don't reach the merits. This is the real problem. And Jackson, in her concurrence, goes on about how obviously they really should have reached through the merits because it's not a difficult question.

0:29:41 Thomas: You've come all this way, man.

0:29:43 Matt: Exactly. And I'll just read again, Jackson quickly becoming one of my all -time favorites. How long must pregnant patients wait for an answer regarding their rights to emergency treatment? Until we confront the pending petition that the government filed with us after the Fifth Circuit enabled Texas's flouting of EMTALA, until these very cases return to us in a few years, will this court just have a do -over, rehearing and rehashing the same arguments that we are considering now just at a comparatively more convenient point in time. Or maybe we will keep punting on this issue altogether, allowing chaos to reign wherever lower courts enable states to flagrantly undercut federal law, facilitating the suffering of people in need of urgent medical treatment." So that's why she's both concurring in the idea that it wasn't probably granted and dissenting and saying we should have actually reviewed this.

0:30:21 Thomas: Right. Why not? We're here. Why don't we just fix this right now? Let's just patch this up.

0:30:24 Matt: And out, this is kind of like time travel. We're just like doing it interferes with the entire process. And so it is now too little too late to take a mulligan and just tell the lower courts to carry on because we've already interfered. So as long as we've interfered, right, now's the time.

0:30:36 Thomas: Yeah. I want to make a note about Justice Jackson, who, as don't tell Justice Jackson that Marianne Williamson is also your favorite candidate. I think I'll take away from the compliment. But I listening to a series on originalism. It's a topic I care about. It's always interesting to me. And I actually think I've come to understand what she's doing with her originalism a little better in a way where I was worried that her of branding herself a liberal, a left originalist was perhaps, it of playing their game and enabling the nonsense they're doing. But I think I've come to understand it a little differently before. I just want to note that, yeah, upped my fandom of her as well. So just on that another time, I'm sure.

0:31:13 Matt: We should talk about that. That's a great subject. I've had some similar readings. Again, in the end, we're talking about the Supreme Court just kind of showing itself. And there was a lot of confusion around all of this. And people were not happy because obviously they went to the trouble of taking this. They didn't do anything. They sent it back. And now Texas has a very similar challenge, Texas v. Becerra, that's pending cert review right now. They haven't granted cert yet, but it seems like they're going to have to now that they've not decided on this one. They have to come back to the question. So it is still out there, but

0:31:43 Thomas: What would the question be? It would just be the very basic can we quarter soldiers thing, right? It just be that does the federal law trump the thing? Or is it that they're trying to, like, redefine what the law actually means in terms of the kind of the life-saving or that? Like, which is it? It

0:31:47 Matt: Yeah.

0:31:58 Matt: They're just trying to decide between a very strict abortion abortion ban, which is in case of only imminent death, and the much broader EMTALA standard, which one controls, and that really is it. And that supremacy clause is it, that's the end.

0:32:10 Thomas: Yeah, I guess I'm just trying to make sure it's because easy and that's stupid and that's an obvious question, but is it the kind of thing where they're gonna do some conservative jujitsu to say, "Well, actually, we're gonna redefine, we're going to say that yes, amtala amatola of course, yeah, because everyone knows that's how it works, Amtola, uh, here or whatever, um," we're like to, like, redefine EMTALA in some stupid way that allows abortion bans? Like, is that what they're going to do? Or do think they're just going to stick to the question of, yeah, obviously EMTALA is the thing that reigns supreme here?

0:32:37 Matt: You been reading Samuel Alito's diary? That's pretty much what the dissent is.

0:32:40 Thomas: No, I'm just someone who has listened to opening arguments and understands what these assholes are doing. And that was entirely me. Like, that was just me brainstorming what these asshole would do. Because I can get into the mind of an asshole, Matt.

0:32:54 Matt: Yeah, you really can.

0:32:56 Thomas: You So, yeah,

0:32:56 Matt: That's some talent. I wouldn't come up with that.

0:32:57 Thomas: I don't know if maybe I should be worried about this, but I seem to be able to do that.

0:33:03 Matt: Yeah, no, the Alito-Thomas-Gorsuch dissent, is just, well, EMTala doesn't cover abortions, which is ridiculous because it's not like you have to list every single procedure that's included in emergency treatment. That's what they're saying. It just doesn't mention abortions. Actually, Jackson felt so emphatic about that, that she joined the Kagan part, just the one part where she trashed Alito for this, because they're really unhappy with the way that they're just... But this is the preview. This is what they would say. And this is probably what they were trying to get six votes for and couldn't. So we should talk about that. We have a leak. We had a leaker in the the Supreme Court. Don't know how this is related to the Dobbs leak, but this is a pretty solid leak. These are things we do not get to learn, things we have really not learned other than somebody like Bob Woodward writing a book where he anonymously... The Brethren, great book, which one of my favorite initial legal books that I read when I was a kid. He sat down and interviewed the justices anonymously and put together in the Bob Woodward kind of style,

0:33:51 Thomas: Yeah.

0:33:51 Matt: Which honestly, as a journalist, he sucks. I mean, it's just there's no citation to anything, thing.

0:33:52 Thomas: Yeah, I'm glad you said that.

0:33:54 Matt: But he's not good.

0:33:55 Thomas: Some of his work is, you know, for sure worth reading, but I also don't Know How Much of It to Trust, because it seems like he puts his, like, his take of what he thinks is happening becomes, like the God's eye view in his books. And it's, yeah.

0:34:00 Matt: Yeah, it's you really have to trust him because he's not citing the conversations because it's all kind of off the record and on background. So right. But so that kind of thing where, I mean, you got some kind of shocking stuff in The Brother and things like that, where you interview the justices anonymously and they say things about each other about cases that you want to know. But this is very specific, detailed information about the negotiations and what happened behind the scenes in this case, which is very helpful helpful because this case is chaotic, right? Obviously, nobody intended when they took this case to just say they shouldn't have taken it. So we know something went wrong somewhere.

0:34:09 Thomas: Yeah, exactly. Yeah, right, right. Right. That's not an outcome anybody wanted, so of course it's already easy to figure out logically something had to have changed in in between. Yeah, so I missed this, how, what, what form did this leak? Is, did somebody submit it to The Intercept? What what was the leak, how did we get the information? Yeah.

0:34:37 Matt: Yeah, right.

0:34:47 Matt: Was going to mention that too. It's an interesting sort of commentary we were at. They leaked it to CNN and it was a print piece for CNN. I assume they probably also did a video piece, but it's good to see CNN doing journalism. I hadn't really seen much of that recently.

0:35:00 Thomas: When someone makes them, I guess. Yeah.

0:35:02 Matt: Literally drops it on their lap, yeah. Is an exclusive leak to Joan Biskupic of CNN, and it was published a couple of days ago. We'll link to it, obviously. But it sounds like this leaker could be more than one person. It's probably one person from what I can tell here. And it sounds they're going to continue to leak. And in fact, they just leaked something else we'll talk about by the end here that is unrelated to this case, and maybe we'll get more. Somebody who really wants people to know what's going on inside the courts. So keep it up, I'm an anonymous leaker. If you want to come on opening arguments, maybe we can mask your voice.

0:35:04 Thomas: Wow.

0:35:28 Thomas: I was gonna say yeah we'll keep your

0:35:30 Matt: Let's Let's do it. In this leak, we found out that it was 6-3 at the time at which they voted to take certs. So the conservatives across the board had agreed that this was something they should take. And by the time after oral arguments, apparently things had shifted so much that Roberts wasn't able to assign the decision, which is really unusual. It's the justice's job as chief justice to assign the decision after they take a vote. It got so messy that there was no clear majority for anything after the oral argument, and they had to work out this compromise. And we know all this from the leak. And they ended up with this compromise where they're going to have five votes for the improvidently granted and six votes to lift the stay. And again, things we shouldn't know, but it's interesting just to kind of get a sense of the tension over this inside the court. Forward. Alito leak we should also talk about. So the second one, very quickly, as long as we're talking about these leaks, and I really want to encourage whoever's doing this to keep it going.

0:35:30 Thomas: Secrets for sure.

0:36:17 Thomas: Please.

0:36:18 Matt: Just got this late yesterday about Samuel Alito that he lost two majorities basically just for being an asshole. It's great news. No, it is great to see because he has written the fewest majorities this term.

0:36:24 Thomas: Is fantastic.

0:36:31 Matt: He's only had four and he's the second senior senior justice. And it turns out that there were two First Amendment social media cases that we didn't talk about this year. Should still get to them and maybe we'll get into more detail. But apparently, Ketanji Brown Jackson and Elena Kagan switched their votes because they hated his draft so much, even though they were prepared to agree with him.

0:36:31 Thomas: Yeah, sure. Wow.

0:36:52 Matt: So, yep. And

0:36:53 Thomas: Well, that, so you look, I thought we had a nice thing and then you burst my bubble a little bit because I want to feel like this guy is such an asshole that he loses the other evil people like the other evil conservatives.

0:37:03 Matt: Yeah, no, right?

0:37:04 Thomas: But if all it is, is that like, you know, right thinking people were going to agree with them and then they didn't. I feel less. I mean, it's good, but I still feel less good about it.

0:37:11 Matt: Yeah. He's just making it harder to compromise. And he's not a compromising kind of guy. It's not too surprising. It does appear from what we know about this leak that it was Kavanaugh, Gorsuch, and Roberts who changed their position and if kind of thing continues, and even just from these two stories, I would think that John Roberts would want to get this together and try to investigate where this is coming from.

0:37:22 Thomas: Nice. Oh,

0:37:31 Matt: Just like they did with the Dobbs one.

0:37:30 Thomas: Yeah, get on it, bud. You're so good at investigations of leaks. You're

0:37:35 Matt: That's right.

0:37:35 Thomas: Amazing at it.

0:37:36 Matt: So conclusive.

0:37:36 Thomas: Let's out three over here, everybody, the yeah

0:37:39 Matt: Walk everybody in the room and start going through their phones. Yeah. It's going to be interesting to see if there's any way that... I'm guessing whoever this is is doing it very effectively and will not be caught. It really does go to just the disorder order right now in this court, the disarray. Never had anything quite like that happen. And it's good. It's not healthy. It does show that there's enough dissent that I think that there are people inside the court who agree with us that this is not good in the way things are going down. So I do appreciate that. Elena Kangan did say about Moyle, this case in particular, that the court may have learned a good lesson. That was what she said, that it might be a good listen for us to sort of say to some of these emergency petitions, no, too soon, too early, and let the process play out. Which again, it's pretty new that they've done this at all.

0:37:41 Thomas: Yeah strong

0:38:21 Matt: If you just look at the chart, it's only the last really four or five years that they have been doing these before the circuits get involved. So the regular job.

0:38:28 Thomas: Words. Hey, maybe we just do the normal thing. Cool. Sorry.

0:38:33 Matt: They're going to have to grant cert in the Texas case, I think, and we'll be talking about this issue again. I am hoping, of course.

0:38:38 Thomas: What's the Texas case, I might watch, because we were on on several different things, we're on intel and then we're on, I'll

0:38:42 Matt: So I was saying, because warns in her concurrence dissent that storm clouds are still on the horizon, this is not going to solve anything. And she's talking about this Texas v. Becerra, which is almost the same issue, but it's being brought by Texas. And that's pending cert right now, I mentioned a few minutes ago. So I think that if we get cert on this, which I almost certainly expect we would because this issue is now outstanding, that we're going to be talking about all this again next year.

But I will say the more we talk about this and the more that we bring it out, I was just looking at some polling around all of this. And right now, Republican women are early June 2022, before Dobbs, there was a polling question put out by what appears to be a pretty good polling firm. And they were asked about if Republicans' views on abortion are too extreme. 22% of Republican women agreed at that point that Republicans' abortion views are too extremely before Dobb's.

And now in April 2024, the same question comes and it's double. It's 38%, just about. So that's a pretty significant improvement in attitude from just two years. Other interesting findings I found from this were that one in three black women under 44 said they seriously considered either moving to a safer state or making sure to remain in the state they were in to be sure they were protected. It's to the point that the Supreme Court is affecting your life that much.

0:39:53 Thomas: Be honest, I mean, I'm not the target demo there, but I wouldn't move to state at all.

0:39:57 Matt: No, I wouldn't either.

0:39:58 Thomas: I mean Again, like, just our limited experience, we could have been screwed over by, you know, Texas or one of those states, so yeah.

0:39:58 Matt: Absolutely not. No. Yeah, sure. No and I have no plans to have kids, but I just want good healthcare. Of voters, 59% say that abortion is either extremely or very important to their vote.

0:40:09 Thomas: Yeah This say which way, though, so Even people who might be like, yeah, it's important to me to prevent abortion.

0:40:16 Matt: Just across the board. That's true. But it's still, it's an issue that is getting people out either way. But I do think the majority is with us from what we've seen in the last showing of this, that this is something that's very motivating. And we have to remember this is what's on the ballot because these questions are coming back and the Supreme Court is going to be coming back in a very real way in the next four years. We're going to have opportunities to change the composition. So I just want to remind everybody of the stakes once again. I know we've been doing that pretty much every episode, but this question is not done. This was almost kind of funny the way it resolved here, but it's not funny at all that this law was in effect for as long as it was that we don't have an actual clear finding that states can't

0:40:22 Thomas: Okay. For sure yeah

0:40:57 Matt: Have this kind of conflict with the federal law.

0:40:59 Thomas: Have been a few of those lately. I feel like there's another case we covered where it's like, okay, so technically didn't screw us over, but also why didn't you just answer that obviously the law works the way it should? You know, it seems like they're just kind of keeping the irons in the fire or something, whatever the metaphor is. Like they're their ammo cool or whatever, you know, that kind of thing. Gunpowder. Yeah, that's it. Gun powder. Cool.

0:41:20 Matt: Well, now that project 2025 done, it's nothing to worry about.

0:41:22 Thomas: Yeah. Matt. So great breakdown there. I'm still very worried, but I this leaker. Hey, Mr. Leaker or or it is. Off, everyone should leak from the Supreme Court. There should just be one. Let's have a lot of them. Secondly, please contact us. We will keep your secrets.

0:41:34 Matt: All the time. Anytime. Happy to give you whatever time you want.

0:41:43 Thomas: We think in that, that Texas case, though, that could be what whenever they want to, like, whenever they come back from their summer, flag flying, yeah.

0:41:50 Matt: Yeah, they should be making these sort of decisions pretty soon. So we'll know.

0:41:53 Thomas: All right.

0:41:54 Matt: But I really would be surprised if they didn't take it.

0:41:55 Thomas: All Right, Matt, still a little time, just enough time to cover another little story here. Glad we uh got a few extra minutes here because uh the Trump gag order, he gags me, oh, I better play. That I just want to play, I don't even know if there's a story there, there. I just want to play the sound clip. So if there is a news story related to he then by all means, please do it now.

0:42:09 Clip: He digged me! He digged me!

0:42:13 Matt: Any excuse. Excuse at all, please. There's been a lot of back and forth since the conviction of Donald Trump for 34 counts of falsifying business records in New York about the extent of his gag order, because he's obsessed with the idea that he wants to be able to talk about the jurors and about the judge and everything else, that he thinks it's keeping him from campaigning somehow.

0:42:18 Thomas: Yeah. Yeah, well, and credit where credit's due. It's I don't not the lawyer, but I wouldn't know the answer to that. Like, OK, you've been convicted, but it's still under appeal. So what would like it's not I don'T think he would ever have the same literal same jurors. Would he would would

0:42:47 Matt: But No, it's still in a critical stage of the case. We're still in the case because he hasn't been sentenced yet. So that's one of the questions here.

0:42:53 Thomas: Right. I guess about a gag order, I'm saying it wouldn't surprise me if like, well, the jury, you're done with the jury. Like, so you could return to having the freedom of speech to say whatever you want about them or not. I'm just saying I wouldn't necessarily.

0:43:04 Matt: No, Merchan agreed with you in part. So yeah, I meant to mention, so on June 25th, he lifted some of the restrictions. It was just a couple of days before the debate. Wanted to, I guess, make sure he could say things on stage.

0:43:06 Thomas: Oh, okay. Okay. Interesting. Oh, sure.

0:43:16 Matt: I don't know about the witnesses.

0:43:16 Thomas: Yeah. And then he realized he didn't need to because, yeah, that happened.

0:43:19 Matt: Yeah, we don't have to talk about that. The on his ability to comment on witnesses because he basically found what you did, that the witnesses and the jury's work were done, that they're not going to be coming back.

0:43:28 Thomas: Oh, so I wouldn't have said that about the witnesses because isn't there? Look, basic criminal procedure stuff. You let me know. Isn't there a chance he could have like a, you know, a retrial if something happened? Like maybe he got an appeal and he won an appeal. And they had to read. Isn't that a possibility that they could have to redo it?

0:43:41 Matt: Yeah. Mean, he's got a pending post -conviction motion right now. The judge has pushed on sentencing so he can consider it based on the immunity argument. It's an absolutely terrible argument.

0:43:51 Thomas: Of course.

0:43:51 Matt: It's not going anywhere.

0:43:52 Thomas: But just for the sake of law and for the stake of like, you this should work, I thought that, no, these witnesses could still be relevant at a later date. And you don't want him to be harassing them, intimidating them. So that's interesting. What do you think about that? So you're saying Merchan said he could bash the witnesses all he wants.

0:44:04 Matt: Yeah, lifted it and just preserved the part that kept him from going after the court, individual prosecutors and family members of anybody involved. Fault. So again, even that though, even that Trump could not accept and continue to appeal. So a five five judge panel just yesterday disagreed with And sorry, let me me say that again.

0:44:14 Thomas: Wow.

0:44:23 Thomas: Interesting. OK. OK, gotcha. You're like the doctor from Arrested Development. Well, he's all right. He lost his left hand. Yeah.

0:44:28 Matt: Let me try that again, so a five-judge panel of the appellate division agreed with Judge Merchan that it should remain in place, the entire order should remain in place because he's saying that the entire as it is, I'm sorry, that we're still in a critical stage.

0:44:44 Thomas: Okay. Oh, you're killing me here. You're absolutely killing me.

0:44:56 Matt: Sorry, I don't know why this is so unclear to me, but we haven't gotten to sensing yet, we're so in a critical stage and it's still legitimate for the judge to say that you can't talk trash about the prosecutors, the lawyers involved, and the judge and his family.

0:45:07 Thomas: Reasonable.

0:45:07 Matt: Leave it to Trump, of course, to spend all this money to try to make sure that he can get it all... I don't even know why. I don't understand why you can't just leave it alone. At But I never be somebody who wants to speak out about a judge's daughter. It's just not going to happen.

0:45:16 Thomas: Yeah. Most likely not. Would say it's a couple of things. For one, I still am pretty sure that since he has access to a, just a fire hose of money money through, um, donors. Uh, I, he has like some real lawyers. I kind of wouldn't be surprised if like, Hey, yeah, we definitely got to appeal this more billable hours here. Um, yeah. It's definitely a great case. Let's make that happen.

0:45:41 Matt: Gives you something else to complain about, Which is really important for the campaigning. Of course, in his campaign, Stephen Chung, spokesman, has been having some really golden quotes during this campaign. He said that the order is blatantly un -American. President Trump continues to forcefully challenge Acting Justice Merchant's decision to leave in place portions of the unconstitutional gag order, which is meant to prevent President Trump from speaking freely about Judge Merchant disqualifying conflicts. Yeah, that was what it was for. That's really what it is. He just wants to be be able to complain personally about Merchan and how he's the most conflicted judge in history and how his daughter works with Democrats. And

0:45:42 Thomas: Yeah.

0:46:09 Thomas: Well, was going to be the second part of my answer was, or he and or his lawyers know there isn't any way to stop him from talking about anything. So just clear the field as much as possible. Like make Make sure.

0:46:19 Matt: You got to try. That's true. Sentencing is scheduled for September 18th. We'll see how things go. There is this motion I'm sure we'll be talking about sometime soon. Love to get Liz Skeen on and talk about this. There's nothing to it. It's based on the immunity thing, but we should address it because it is in front of the court.

0:46:21 Thomas: Yeah.

0:46:34 Thomas: I guess the moral of the story, Matt, is he gagged me. He still gagged. I.

0:46:40 Matt: It's never not going to be good. Just going to be enjoying that for the rest of my life.

0:46:43 Thomas: Is it's what it's up there, it's up there, yeah. We have time, time for even another bonus, bonus, bonus little story. This was something from last week that I saw a headline where the Nikki Haley Pack is like trying to support Kamala Harris and Nikki Haley's like mad about it. And remember when there was that brief time during the primary where she was like, well, she's a woman of conscience. Who knows if Nikki Haly could support Trump? Oh, you just never know.

She's such a, she's a strong woman, conviction, you know. And she has, cut to, to the RNCE, and she's making a speech that no one cares about where obviously she's supporting Trump still and blah, blah, so much so that her super Pack is trying to support Kamala. And she's like, "Wait a minute, but it's called the Nikki Haley, whatever, for America or some shit.

You can't use my name to support Kamala Harris." And I, I feel like, look, I'm not the lawyer, I can't wait for Matt to tell me what the answer to that is, but I thought the whole super Pack bullshit thing that we had was they're supposed to be not able to control them. I thought that was why Ted Cruz had to put that awkward footage of his family

0:47:42 Thomas: On YouTube.

0:47:42 Matt: That's right.

0:47:43 Thomas: For anyone to use for any, for any inquiring super Packs who want to know how awkward Ted Cruz is with his family. So I would think that this would be fine. But what's the truth behind that? What's the actual law? Hey, nice.

0:47:55 Matt: It is fine. They are completely outside of your control at that point. They actually had previously changed their name to Haley Voters for Biden. I don't know that but they actually got a cease and desist at that point. It's the pivot pack, which I think is a pretty good way to characterize it. We're just pivoting over to the other party. They sent a cease und desist. The I guess not campaign, but Nikki Haley herself sent a seize and desists letter saying that, you know, get your name out of my mouth, basically.

0:48:03 Thomas: Oh, yeah.

0:48:18 Thomas: No, get my name out.

0:48:21 Matt: It's the second time I've done that. What's wrong with me?

0:48:22 Thomas: Yeah. And unfortunately, the first time it didn't make it in, which is funny. And you didn't even plan this, but you did the same thing again. Get my name out of your mouth. That's what it would be.

0:48:33 Matt: There we go. Yeah. The PAC responded and said that Haley's request demonstrates a misunderstanding of the organization and federal law. So basically she's saying like people are going to think that somehow because your group is called Haley voters for Paris, not Haley for Harris, somehow I'm associated with this or these are my views. And of course the website has a disclaimer saying that it doesn't reflect your views. Uh, and it's pretty obvious, I think when it's just a group of people that used to support one person who now supports someone else that that's what's going on, but hey, you know, you got lawyers, you got to use them and

0:48:40 Thomas: Yeah.

0:49:01 Thomas: It is kind of interesting. Like, I don't remember this happening before, although it feels like it have, but maybe not. I think it's kind of a unique issue, but it's like, hey, yeah, I mean, there are some limited tiny, tiny controls on people's ability to give way way too much money to candidates. And one of that is that you technically have like an arm's length relationship with your super PAC. So you can't just tell it what to do. It's kind of interesting that that actually did matter in this case.

0:49:27 Matt: That they could just go support the other party, I think that's pretty great, actually, you've created a monster, yeah, one

0:49:29 Thomas: Yeah, that's awesome. Good stuff. Sort of like how when the never back down super PAC back down.

0:49:37 Matt: Of the better moments in super Bag history. What

0:49:38 Thomas: Yeah, I wouldn't be surprised if what's his name? DeSantis made the same. Hey, Hey, your name says never back down, and yet there's a bunch of rats fleeing this sinking ship. I would think you'd have to stay with this ship and keep money into a bonfire to how it works.

0:49:45 Matt: Are we doing here, yeah, Nikki Haley back in the news and then out of the news again and that's that's the end of her, I think. So, uh, onward and upward, uh,

0:49:56 Thomas: Yep, yep. Good stuff. Well, that was so comprehensive, Matt. Thanks for getting to so many stories for us. That was fun to some bonus stuff there, and also the excellent coverage of Imtala. Um, that's our show, thanks.

0:50:10 Matt: Right, I'm, I'm going to go jam in some, some Grateful Dead tunes. Celebrate Jerry Day. Getting

0:50:12 Thomas: Have to edit this podcast, so I'll go do that, but uh, yeah, no, thanks so much for supporting patreon.com/law and we'll see you very soon.

0:50:22 Matt: Later.

0:50:22 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.