Three Unanimous Supreme Court Decisions, and Why They Sound Bad But Aren't Really

Transcript

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

0:00:58 Thomas: Hello and welcome to Opening Arguments. This is episode 1164. I'm Thomas Smith. That over there is real -life immigration attorney Matt Cameron, who I just feel like I haven't talked to. It's been too long. How are you doing, Matt?

0:01:09 Matt: Good to be with you again. It is Supreme Court season, Thomas. We're getting into it. It's our first episode in June.

0:01:14 Thomas: Oh, that's the worst season.

0:01:15 Matt: Did you forget to stock up on your gear this time? I've got my Sonia Sotomayor number one foam finger ready to go.

0:01:17 Thomas: Yeah, everyone's stocked up on their rights. I went to the store to buy as many extra rights as I could and they're like, hey, you're a white dude. You have all, there's nothing here for you. You already got all the rights. I was like, yeah, you're right. Can I give anyone to anybody else? They're like no, that is what the court is supposed to do, but they're not doing it. It was overall a disappointing trip to the grocery store.

0:01:24 Matt: Keep them in reserve. I'm probably going to do a bunch of mangled sports metaphors. I'll just put you on warning for that.

0:01:40 Thomas: Oh, I love it. That's my favorite.

0:01:42 Matt: Obviously, we've got our team on the Supreme Court and they've made some weird strategic opening decisions in this opening Supreme Court season. So we will talk about that and kind of give you some updates on what's going on with ICE enforcement around here and a couple of the quick things. And then we've got this week's footnote is one spicy meatball.

0:01:56 Thomas: I love It. Here's the good thing, Matt. It is Supreme Court season, which is the worst. It's also footnote season. So that's going to make up for it. By that, I mean, I'm volunteering you to give us good footnotes for the rest of the season.

0:02:08 Matt: Doing my best. Also, there will be lots of great footnotes in the Supreme court cases. Inevitably. I do always read them as we know.

0:02:14 Thomas: All right. Well, let's take a swing and see if we can punt this field goal and convert on the technical foul.

0:02:19 Matt: I'm going to pull off a hat trick. Let's do it.

0:02:22 Thomas: All right, well, we will do the usual. We'll take our break, which you can avoid at patreon .com slash law. You can also support critical legal coverage that Matt is giving us. That's a way to keep the show going. We love you. We love hearing from you, by the way. We love your comments, suggestions, all that good stuff. Lots of good reasons to join over on patreon .com slash law. Thanks so much to those who have. And we'll take our break and then we'll be back with Supreme Court and some other stuff.

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0:02:50 Thomas: All right, Matt, where do we want to begin?

0:02:52 Matt: Well, I want to tell you a little bit about what's going on, because what's the opposite of congratulations? I want to extend whatever the opposite that is to ICE, Immigration and Customs Enforcement. We have had in Massachusetts this week, I just want to note a milestone, ICE has carried out the single largest operation in its history in Massachusetts specifically, just to target us. And I know I talk about Massachusetts a lot on this show, because it's ground zero for a lot of things, and I happen to think it's a pretty great place to live, but 1 ,500 people approximately were arrested in Massachusetts the past month, and I just wanted to break down for a minute, because I'm on the ground here. I'm watching what's happening. I'M REPRESENTING A LOT OF THESE PEOPLE. SO I WANT TO TELL YOU A LITTLE BIT ABOUT WHAT'S HAPPENING HERE BEFORE WE GET INTO EVERYTHING ELSE WE'RE GOING TO TALK ABOUT. WE ARE GETTING CALLS, AS I 'VE BEEN TELLING YOU, LIKE NOTHING ELSE. WE'RE TRYING TO TRIAGE EVERYTHING AND MANAGE WHAT WE CAN. BUT LEAH FULLEY, OUR U .S. ATTORNEY, HAD A PRESS CONFERENCE RECENTLY WHERE SHE SET UP AND SAID THAT THERE WERE, OUT OF ALL THE PEOPLES ARRESTED, AND ESSENTIALLY 1 ,461 PEOPLE IN MAY, I THINK IT'S up to 1 ,500 now as of June. She said that 790 of those had what she called significant criminality. Now, 790 out of 1 ,461. And again, significant criminality can mean they were arrested for something that was dismissed. That's the way they see it, right?

0:03:53 Thomas: Right.

0:03:53 Matt: Any kind of contact, criminal justice system. And so I know for sure, even apart from the viral stories that we've been seeing, I know for sure that pretty much nobody has any kind of serious criminal record and certainly nothing like what Trump was promising in the campaign trail for who's going to deport.

0:04:08 Thomas: That's big difference from 700 something, not zero to 700. That's not a minor error.

0:04:11 Matt: Court. Yeah. Right. Even if it were 790, that's basically half, right? So that's not even anything close to what we were promised. But you might've seen some of these viral stories have been coming out just from my backyard. Marcelo Gomez was arrested on his way to volleyball practice, 18 years old. And they were looking for his father, but might as well take the high school student, right. You got him. So he was just actually released on a $2 ,000 bond as is appropriate. Honestly, they should have just released him on recognizance, but that's somebody that the community really rallied for and got results. I've got 25 year old Daniel Oriana, who was told specifically. No criminal record, no issues. He was told specifically when he was stopped by ICE and pulled in. Oh, wrong guy. Sorry about that. We're taking you anyway. That's been happening a lot. I've got a couple of those actually right now. We've got someone on Alves Ferreira de Sousa who honked at an ICE officer. I'm going to tell you right now, honking at somebody in Massachusetts should just get you citizenship.

0:04:59 Matt: You belong here. You're supposed to live here.

0:04:59 Thomas: Especially if it's in the right context if someone is looking at their phone and they're the front of the turn arrow you should get a badge of some kind for

0:05:08 Matt: That is what you do. I can tell you in Massachusetts, it is a sport to honk at people. We do it all the time. You might have actually noticed during our recordings how much honking is going on in the background in Boston, Massachusetts. Very popular sport. I think that should just be on the local, there's no such thing as a local citizenship exam, but if there were a Boston -specific citizenship exam.

0:05:25 Matt: How often have you used your horn in the past year? It should be on there.

0:05:25 Thomas: Honking yeah they should do one for fun should do like a yeah it shouldn't be like the basis of anything but why not yeah do fun stuff with government once in a

0:05:29 Matt: Yeah. Local test. Right, right. Actually, one of my favorite moments in a naturalization exam recently was, you know, oneof the questions on the exam is name one Native American tribe, which I think is a great question. I think anybody who becomes a citizen should know that.

0:05:41 Thomas: While oh wow that is a good question Yeah. It's low bar. Yeah.

0:05:44 Matt: I would would hope any of us could do that. But my client, super smart and academic, says the Shammat tribe. The officer, nothing against the officer, but I just have to point this out. The officer never heard of the Shabbat tribe, which is incredible because the Shabmat tribe literally used to occupy the land that we were sitting on at the time in Boston. The actual original owners of this land, to the extent that they believed in ownership of land, the officer had to look it up and gave him full credit because obviously that was a good answer. But the multiple levels of of irony, right? Of a recent immigrant knowing more about local native tribes than the inter -adjudicator, but also having that question on the immigration exam at all is something. It's really something. Anyway, just to give you some examples, though, of the kinds of people they're actually taking in, the havoc they're wreaking. All of my detained clients right now, none of them have serious records. Allof them are parents of young U .S. citizens. Three of them at least have been wrong place, wrong time arrests. They just happened to be collateral. But, you know, the man who honked at the ICE officer just literally pissed him off enough that he pulled him over. It was a legitimate hawk as far as I understand it. And his attorney is now claiming that ICE forged a signature on expedited removal

0:06:45 Matt: Paperwork. And I'm inclined to believe that given the way they operate.

0:06:48 Thomas: It's not as though there's consequences when they mess with people like what what would teach them that there's consequences for them for just abusing people and doing whatever they want.

0:06:51 Matt: No, nothing this administration is going to do to them. They are accountable to the president and that is about it. They're certainly not accountable to the people who are paying their salaries, which includes the people they're arresting, by the way, of course, who are paying taxes as well. So I just wanted to give you some local flavor there and let you know, I mean, this is kind of one state from the ground, but Massachusetts seems to be in the news more more often than other states for immigration enforcement.

0:07:16 Matt: And if you're wondering why, that's why. They're picking on us.

0:07:20 Thomas: Like in particular?

0:07:20 Matt: And yeah, they're coming at us specifically because we are a sanctuary state and we have quite a number of sanctuary jurisdictions, probably more than other places, and they're trying to make a point. It is a point that is destroying families and causing even more damage and pain than ICE usually does. And that's saying quite a lot. But we're doing everything we can. We're still getting people out on bond. We'RE still fighting every one of these cases and we're seeing good things. We 'Re going to talk a little later in the show about about a tactic that ICE is using that I think needs to get more attention that was actually just used in a very high profile case, which the media is not really getting right. So we'll get back to that. But we should move on to Supreme Court season.

0:07:53 Thomas: Okay. Yeah this is tell us about this because I heard some folks talking about this. This is the the number of decisions that we have coming down the pipeline is like insane it sounds insane is that true is it more than normal why is that what can we expect

0:08:08 Matt: So yeah, well, you might remember over the past couple of months, we've been talking mostly about shadow docket cases, about cases that are in progress, where the Supreme Court is ruling on some aspect of it that's not making it to the full docket because they're not ruling on the merits. And there have been so many shadow doocket cases, probably it has to be a record, and I'm sure Steve Lott could could tell us, but it is just disproportionately. And of course, that's because there are so many illegal things as this administration is doing and so many things that need to be reviewed immediately because there's something like birthright citizenship or these illegal deportations that can't wait for the merits, right? There's so many different reasons they have to come up. So I think that's what's been jamming things up. And, you know, of course when we talk about Supreme Court season, I just mean June.

0:08:44 Matt: That's when we start to see them all roll out. The real Supreme Court seasons the last week of June when we'll have a great time trying to get through all that. But they have, yeah, an outstanding number of decisions. I think it's got to be some kind kind of record. They've decided, I think, 12 or 13 cases total so far going into June, and they have dozens remaining. So we will see how it plays out. Last time they had to go into overtime, Supreme Court season, probably will happen again. I have to think at some point, they're just going to have to extend the entire season.

0:09:07 Thomas: Dude well so what's the rules on that can they punt can they it's not like the you know the congress where it's like if they don't the house doesn't get to something and like dies or whatever you know do they do they have some requirement to

0:09:15 Matt: No, sadly. They can hold things over to next term if they want to. They just generally try to finish up their business, and that's generally how it's been. But something like Brown v. Board actually took multiple terms.

0:09:18 Thomas: Like okay okay just don't want to okay

0:09:26 Matt: They came back on it just for one example. So of course, obviously, no question, no surprise, surprise. You and I have a team on the Supreme Court that we support, a team of the liberal justices, and we've got a strange set of strategic decisions in this season opener from the liberal justices. We've got three decisions I want to talk about today. And it's interesting because all three of these, when I say them, when I say what the outcome is, you're going to say, what? How did they get there? And then I'm going to convince you, and maybe we can argue about this, it's okay if we disagree, but it's my belief that actually all three of those decisions are absolutely correct.

0:09:55 Matt: And there's really no other decision that you could reach. Which again, when when I tell you what the outcomes are, and this is, again, this is a lawyer thing, right? Because I understand regular people see these headlines and they're like, well, that sucks.

0:10:06 Matt: How could the Supreme Court decide that, right, because that doesn't sound right. But unfortunately, for all of us, the Supreme court is actually reviewing the law, not what we think should happen. So let's start with guns. We've got three big decisions on three different subjects here. We've gotten guns, we've got discrimination, and we've gotten religion. So some hot button stuff.

0:10:06 Thomas: Well that's nice mm -hmm

0:10:23 Matt: This is the one I've kind of been watching. I meant to talk about earlier, and I'd love to dive into a little bit more because I appreciate the effort here on the part of the governor of Mexico to Sue Smith & Wesson, here once again in Springfield, Massachusetts, major gun manufacturer. And they are trying to push the boundaries of the law. Now, Mexico basically is fed up with the way that American guns are supplying Mexican cartels. No question, that's been happening. We've got massive amounts of guns being exported to Mexico. And unfortunately for Mexico, the Protection of Lawful Commerce in Arms Act specifically keeps gun manufacturers from being sued for things that people do with guns, which unfortunately doesn't make a lot of sense. Guns are portable death machines. And if you kill people with them, it's kind of the purpose of them. That's what they're for. Obviously, this was passed to protect gun manufacturers, and that is what it is doing here. So the PLCAA was passed 20 years ago in 2005. And I think this is the biggest challenge to it. What Mexico is trying to do is use one of the only exceptions that's available. And that is if we can prove that gun manufacturers are working to

0:10:21 Thomas: Yeah okay yeah hmm

0:11:21 Matt: Commit a crime, that they're actually knowingly committing a crime when they're selling guns. And Mexico, unfortunately, and I have to say, because I went back and read it when it was filed, they didn't do much of a good job of actually saying what the crime was. They're essentially saying that gun manufacturers are aiding and abetting cartels. They provide a number of different examples, including different ways they're marketing to Latinos and Spanish speakers, but that's not a crime to market to specific people. But they're also alleging kind of a trafficking, I don't want to say network, but maybe sort of a pyramid, like an understanding that things are going to be trickling down. But unfortunately, there's nothing here that is actually an exception to the law. And there's no no way that they're actually claiming that they actually committed a crime. They've never been found responsible for committing crimes. So overall, this case had to be dismissed. And all three of the decisions we're going to talk about today are 9 -0. These are full unanimous decisions from all of our favorites agreeing with all of Our Least Favorites that these are the outcomes.

0:12:14 Thomas: All two of our favorites wow they're all three of our I guess yeah three sorry hundred

0:12:18 Matt: I think we might look wistfully back in the days when we had three favorites in the Supreme Court. Sorry. Yeah. But the core purpose, though, was to keep gun manufacturers from having to pay for harms resulting from criminal or unlawful misuse of firearms. And that's what Mexico is trying to do here. And they're trying in lots of clever ways to get around that. But as Justice Kagan, who wrote the majority for this one, points out, allowing Mexico's theory would swallow most of this rule, that basically this would allow all kinds of other suits in exactly the contradiction to what Congress intended here. So don't blame the Supreme Court. Right.

0:12:53 Thomas: I don't care about that first part it's I guess the second part I I see your point but yeah it's like I do the argument is like then well then the gun companies will get sued more and that I don't care about but it does seem like Congress decided to protect the hell out of gun companies until we gain control of something. Seems like there was no will to do this in 2020 or anything. So, yeah, it's where we are.

0:12:59 Matt: I know. Right, right. Sure. And the Supreme Court has got to interpret the law as it has it in front of it, and this is the law, and Congress clearly intended the law to do this thing. So there's no way that I can say that what Kagan did here was wrong, and I have to agree with the Jackson concurrence.

0:13:25 Thomas: I want to put a minor asterisk on what you're saying. The Supreme Court does all the time decide not to interpret the law as it is. But we just didn't get them doing that this time because it's not in their interest. The majority's interest. Yeah.

0:13:39 Matt: But I mean, the purpose of this law is very clear, and the Mexican government was trying its hardest to get around it, but they just couldn't do that.

0:13:44 Thomas: But like if it were instead of that law, it was like decades old separation of church and state. Precedent, then they can just do whatever they want because that's just for fun.

0:13:49 Matt: Right. Oh, sure. Yeah. But this is a pretty black letter kind of statute. The only good thing out of this, though, is that Justice Kagan declined to review... The gun manufacturers are looking for even more immunity on all of this. And she made a pretty narrow decision just based specifically on the text of the law, and she's not giving them any more rights than they had. So that's at least holding the line. That's the most we can ask for from the Supreme Court, I think, a lot of the time. So that'S a pretty straightforward one. Let's move on to tax exemptions for religious nonprofits. This is a case involving Catholic charities in Wisconsin. Do you know much about Catholic charities?

0:13:56 Thomas: Not a ton, but yeah, I saw this. I saw it was 9 -0. And I do know that church -state separation is an issue where not all the, talk about the two to three favorite justices, not always are the justices on the left, I think on the correct side of this, in my opinion. So on this one, I really, I wasn't sure like, was this a decision that made sense? Is this the kind of the justice This is on the left, trying to do some horse trading, which I think is a waste of time and nobody should do anymore in this day and age. And then I try to kind of like read up on this a little in the time I had. And I do not understand this one, Matt. So I'm all ears.

0:15:03 Thomas: Please illuminate what in the world this 9 -0 decision in favor of Catholic Charities was.

0:15:08 Matt: I'm going to show my hand here and tell you I think this is absolutely the correct decision, and I like the way this came down. Partly, of course, because it's our all -star Justice Sonia Sotomayor delivering a very reasonable opinion on this, and I'm always going to be biased when it comes to her. But looking through this, and I got caught some of the oral arguments as well. We'll play a clip in a minute so you can get a sense of how they went. But the underlying law here from Wisconsin, I think, is pretty bad. That's the problem, is that Wisconsin is trying essentially as a state to determine whether or not somebody is doing something for religious purposes. That's what it comes down to. There's Wisconsin Statute 108 .02 .15h. And the central question here is about tax exemptions, and this is in the unemployment fund, for nonprofits operating primarily for religious purposes. Now, the problem is that it is up to the state to determine what religious activities are. And that's a little dangerous. Now, again, we all understand that there could be a lot of fraud committed in the name of religious activities. And of course, I know that neither of us are fans of the Catholic Church or religion in general. But at the same time, if you do have an organization like the Catholic church that claims to care about doing good works for the poor, supporting prisoners, supporting immigrants, which I will say right up front, Catholic Charities does great work for immigrants. And I want to shout them out here. I really have always appreciated what they do. That is one place where I think they can fairly say they're carrying out their mission. But the entities here that are in dispute, I'll just read from the decision, decision—excuse me, read from a summary here—these entities provide various social services, including job placement and coaching for people with disabilities, community -based training, daily living services, and support programs. So Catholic Charities oversees all these sub -entities, it provides management services. So even if the church isn't directly funding some of this, they're saying this is all under their umbrella, and this is All Nonprofit, because they're doing basically charitable work that supports Catholic doctrine and teaching and mission. Jesus did not specifically say to provide job placement and coaching? I don't think. It's been a while. Yes, it is.

0:17:04 Thomas: But it feels more Jesus -y than most things they do. So I'll spot them that one.

0:17:09 Matt: So essentially, the lower court in this case cited this precedent, Yosvi Dekumad, which said that religious activities mean strictly the teachings slash rituals of a faith, rather than what it means to actually practice the faith in the world, which that's a little dangerous if you're talking about keeping the state out of religious activities, of having the state determine what is practice versus what is just teaching. You also, as Sotomayor points points out, I think very well, you don't want to have your non -profits tax -exempt status predicated on whether or not you're doing proselytizing. I don't think anybody wants more proselyтizing. And that's basically what this would do. If you required every single charitable service to also be doing explicitly religious things alongside what they're doing, that's what would happen. Because they're saying that to be religious, it has to be like openly religious rather than just doing works of charity that are, you know, for their own sake.

0:17:49 Thomas: That's what it is? What? Oh, but I thought, okay, maybe this could be where I'm misunderstanding. I thought the way it was presented, it was overall broad question is entities that want exemption from paying an unemployment tax, right?

0:18:10 Matt: Right.

0:18:10 Thomas: And then I thought it was like the ones that, maybe that's why. So it's the opposite of what I thought. So the ones that are primarily religious that they're saying do get the exemption.

0:18:20 Matt: So the state laws, if you're operated primarily for religious purposes and controlled supervisor principally is supported by a church that's from the statute, then you get a tax exemption. So this is Wisconsin law that we're reviewing specifically. And I'm all about not having to proselytize or having to preach to people in order to give them free food, right? I mean, yeah, that

0:18:36 Thomas: Yeah, Yeah. Okay. That makes me feel a lot better. I, I genuinely thought it was the opposite. So I think I got mixed up in my, uh, my, my signs there or whatever. So, okay. So the problem is you wouldn't want a charity that's feeding the hungry to not be exempt, but if you're feeding the hungry and you're preaching to somebody, then all of a sudden you're exempt.

0:18:54 Matt: Is what Wisconsin was trying to say is that they would have to be openly religious to get it. So I'm not going to say this very often, but we might actually get some help from Neil Gorsuch on this one. Let's play a clip here.

0:19:02 Thomas: Well, yeah. Okay, all right.

0:19:04 Clip: What is what is proselytization proselytization would mean when the if catholic charities when it's delivering services says you know please repent essentially repent they have to say repent anything like you know, please join our religion we would like you to become catholic if you're going to receive this service because when sorry your honor so so they have they have to say I just want to know what the test is so repent your sins um you get the exemption not requiring you to repent your sins, I guess you don't get the exception. Or what was the other one? What was your other test for proselytization?

0:19:43 Clip: Join our church? Become a member? As opposed to, we welcome you to attend our services if you want, What's the line there? Because they say they do, they say you're always welcome. I mean, the Catholic Church, we'd love to have you, but we're not saying you have to show up. So, is mandatory church attendance versus optional church attendance, that's the line? I think what we're looking for is analogous to what this court looks for in applying the ministerial exception. What it wants to know when it seeks to— I'm asking you how to apply your exception because the Wisconsin Supreme Court says proselytization is really important. And it says, oh, also, if you serve non-co-religionists, that is a problem. So I guess you only serve those who are co-religionists. That's one solution, I guess, for the church. Don't help anybody else in need. And the other is to proselytize. And I'm just trying to get my hands around what that means in Wisconsin. So I will say the serving of co-religionists is a marginal factor at best. If this court wants to discard it, we have no problem with that. So you're running away from the court opinion. So it all comes down to proselytization. No, Your Honor. What it comes down to is whether the employees of the organization are expressing and inculcating religious doctrine. Do you think that Wisconsin could pass a statute that says we'll give a religious tax exemption to religious groups that proselytize but to no others? I don't think so, Your Honour, because I think that would not be serving any particular purpose. I don't understand why it's not the exact same thing.

0:21:23 Matt: Sotomayor did her best to jump in. That was the lawyer for the state of Wisconsin, by the way, if you didn't catch that. And a pretty uncomfortable moment there with Gorsuch because he really should not have said what he said about that.

0:21:33 Thomas: Really? What?

0:21:34 Matt: Well, the repent thing, that's just too much. I mean, no, no. Yeah. No, the lawyer.

0:21:36 Thomas: Oh, oh, oh. Sorry. I thought you said Gorsuch shouldn't have said what he said oh yeah oh yeah then when the guy said repent yeah I I don't know

0:21:43 Matt: I think that was off the cuff, maybe. Not great.

0:21:44 Thomas: Well so why is that bad to

0:21:47 Matt: So he was saying essentially that they'd have to preach at them to keep their exempt status while they're handing out food, right? Which is just, nobody wants that. Nobody should want that. We should allow charities to be charities and be tax exempt.

0:21:52 Thomas: Say right nobody wants that

0:22:00 Matt: This whole thing about trying to control about who's religious enough or who's whatever enough. I remember seeing this at the old arguments and thinking, that can't really be what they're arguing, but that, as you can hear, yeah.

0:22:07 Thomas: Yeah I that's I think that's why I misunderstood it because I just that I don'T know who would have passed this law and for what like why even doing this

0:22:11 Matt: Or that the state would actually come in and argue specifically that you have to preach to people.

0:22:17 Thomas: Yeah it's so is it just that they you know I know wisconsin's been you know gerrymandered pretty badly different times were they just trying to like hand religion some money like prioritize religions that's Why they might have passed it yeah

0:22:28 Matt: I don't know. I know nothing about the history here. Yeah. I mean, I feel like they should have known they're going to run into some trouble here because as Sotomayor finds, this is completely unconstitutional discrimination against different denominations and looking into the business of how they do charity. If they're gonna do charity, let them do charity. If they're not doing charity, then tax them.

0:22:31 Thomas: Yeah seems weird otherwise but but okay. Yeah.

0:22:44 Thomas: And this is another key thing I guess I missed. So Catholic charities, the plaintiff then must've been denied the exemption because they're not doing religious stuff enough. I completely missed it. I'm so used to the stencil in my brain of religion coming in and getting a benefit that it shouldn't have that I could, I think I could not fathom that there was something kind of different going on here. So I'm, I'm still, I still, that maybe that's why I couldn't understand it, man. Like I'm so like biased against what's happening. I'm sorry. I've expected them because they've demolished church -state separation in the past decade plus, you know, like absolutely demolished it. Stuff that just should not have ever gone the way it went. I'm still not sure. I'm used to that pattern that I really just misread this one. Okay. So yeah, this sounds like I'm glad now. This sounds like a 9 -0 that makes sense. There's no reason that this should be, right?

0:23:19 Matt: I just really don't want religions to have to proselytize to help people. And I think that anybody right now who's trying to help anyone else, if they're actually doing the work, should keep that exemption.

0:23:42 Thomas: It'd be pretty silly if it's like, all right, here's the food you need. And I also got to hand you this pamphlet. It's got some religious crap on it because we want to keep our exception.

0:23:53 Matt: Repent or else. Okay, next.

0:23:55 Thomas: Here's your food. Okay. You convinced me on this one. That's good. Good to hear. So I feel like you're kind of two for two, Matt, on the convincing. I don't love the gun one, but I also see, you know, it feels like it's how it had to be.

0:24:10 Matt: Yeah, no, Sandra Sotomayor rarely misses. Next up,

0:24:14 Thomas: Yes, that's important because I think Kagan does miss on these ones, if I remember right. Sotomayor does not. So that makes me feel a whole load better.

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0:26:03 Matt: We've got our favorite rookie, also coming up for a 9 -0. So this is another one. Actually, I'm going to read you Elie Mestal's introduction to his summary of this because I thought it was perfect. ElieMestal wrote in The Nation, Today, the Supreme Court made it easier for white people to claim reverse discrimination anytime an employer hires or promotes anybody who is not a heterosexual white person. And the court did so unanimously. And the person who wrote the unanimous opinion for the court was Justice Katanshi Brown -Jackson. I will now walk into the ocean.

0:26:31 Thomas: Yeah, this one I feel like is gonna be a tougher sell, Matt. I'm not.

0:26:35 Matt: I'm gonna sell you on it. Him. Then he adds, which I will also support.

0:26:39 Thomas: Matt's like South African farmers.

0:26:41 Matt: That's right, have you heard of him? The true victims, the true refugees in our world. I got to talk about that sometime. But I just have to add Ellie Mistal's follow -up sentence to what I just read after walking into the ocean. What makes the whole situation even more galling to me is that it's probably, in italics, the correct decision. And so, yeah, got to agree on that one too.

0:27:00 Matt: So the whole thing here, this is a Title VII case, and Title VII employment discrimination. You might remember the last big Title VII VII case, which has come up quite a lot on the show, was Bostock v. Clayton County, in which Neil Gorsuch had to find, just on a strict textual analysis, had to find, and Katonji Brown -Jackson is doing textualism in this one too, correctly, I think, but he had to find that the letter of the law for Title VII requires that we do not discriminate against trans people or other LGBTQ groups.

0:26:57 Thomas: Okay important yeah fair accidentally helped all right through gritted teeth he had to write that

0:27:25 Matt: Yeah, yeah, that's how it goes. So we have to consider now a circuit split. For those who don't know, this happens all the time, and this is one of the Supreme Court's main jobs, is to, when federal circuits start to diverge, and they often pick up different rules or different ways of looking at things, and sometimes they're just so contradictory. You've got to take it to Supreme Court, and they've got a subtle dispute. So this one is about Title VII and how it relates to so -called majority groups, of which you and I are both a part. So Marlene Ames was a 21 -year employee of the Ohio Department of Youth Services, and she's suing because she was passed up for promotion by her boss, who happens to be a lesbian, and the person who passed her up was also a lesbian. And then a gay man stepped into her previous role after she was demoted. So she was looking around and seeing, I guess, a gay conspiracy to take her down.

0:27:33 Thomas: Decision was gonna say I just from I know you're gonna convince me on this just imagine for a moment if this were described the other way and how little anyone most people in this country if any person of color said well I was denied and then a white person got the spot all of america is like that well yeah that doesn't mean it doesn't meet anything you can't It says bigotry even suggests the white person might have given a white person a spell. Like, you're the real racist here. But, like, because this is a group of people that's smaller and marginalized, it looks like a conspiracy.

0:28:38 Thomas: And maybe you're going to tell me that there are facts that mean this was finally the gay agenda that we've been waiting so long for.

0:28:44 Matt: Well, actually, as with the other two, this is not about the facts so much as it is about bad law. So this is challenging because, again, I want the right outcomes in these cases. And I think that the law that is in question here should exist in some form. So the DC circuits kicked off the circuit split several decades ago when it was looking at cases like this in which there's a possible discrimination against the majority. And it's kind of a strange thing to say out loud, right? Discrimination against the the majority. But if you can show that there's a history of just not hiring white people, of not hiring straight people, I guess, I think you're going to have a lot of trouble finding employers that meet that definition.

0:29:19 Matt: Surely they must be out there. But the Sixth Circuit, where this case takes place in Ohio, had adopted its own version of this test the D .C. Circuit came up with. If you're a member of a majority group saying that you're being discriminated against because of your membership in this group, you have to provide what they call background circumstances which support the suspicion that the defendant is that unusual employer who discriminates against the majority, so you're gonna have to show some kind of context. Context?

0:29:38 Thomas: Seems completely reasonable to me.

0:29:40 Matt: It does, because Title VII, obviously, on its face is just individual case -by -case discrimination. But we all understand why Title VII exists. It's not to protect you and me. That's not why it was passed. And this really galls me, and I have to agree completely, obviously with Elie Mestal on this, because we all understanding that the purpose of Title VII is to protect people who are not straight white people, among others. But unfortunately, the way it's written, they weren't really thinking about it that way. But in the context right now of a time when the Trump administration is trying to destroy anything that looks like diversity, equity, and inclusion, conclusion, and when they're trying to go after people criminally for allegedly doing things like this. And unfortunately, there's no way around it. This decision is going to open things up in a way that's not going to be good, but I also don't know that they could do anything else. So the problem with this test, this thing about the background circumstances, and this case was tossed originally by the Sixth Circuit because they found that she could not meet this test. She couldn't provide the context that they require for majority groups. The problem with this task is it's completely made up by judges.

0:30:35 Matt: It's not in the law. And it's fine for judges to make up tests that help to interpret the law, that happens all the time, although those are very much out of favor. You might remember those famous balancing tests, like the lemon test that has been pretty much murdered by the Supreme Court at this point.

0:30:35 Thomas: Oh, okay, well, that was a good one, though.

0:30:49 Matt: That was a good one. Scalia had that famous line about how it's like a zombie back from the dead every time we put a stake through it. But I think they finally did kill it off. And of course, the Warren Court was just a series of tests. And something like, yes, she loved balancing tests. Yes. But you know, something as simple as your Miranda rights, right? That was completely made up, right. There's no law that says they have to read off the things we all know from TV. But they found that the easiest way to make sure that law enforcement gets this stuff across is to make up a thing that they have tell people. And that makes sense. That still hasn't really, they've tried, but it's never been chipped away.

0:30:53 Thomas: Mm -hmm. I think Sandra Day O 'Connor really liked doing these things, right? Yeah. Mm -mm -hmm, it seems like it's worked pretty well.

0:31:24 Matt: It has. Otherwise, what, you're going to count on every state to develop some version of Miranda rights? Like, these are your constitutional rights. You should be told what they are. But unfortunately, the Sixth Circuit, I think, did go too far, I have to agree, because Title VII is about as clear as law can be. And Title VII was not supposed to be about groups of people. It's supposed to be about individual discrimination. So it's one of those things where on the personal level, I think that maybe Title VII could be amended to include a test like this, where if you're just trolling, or if you think that you're seeing, I guess, reverse discrimination everywhere. And I mean, obviously, I hesitate to use the word reverse discrimination. I mean, it's just a stupid stupid phrase to begin with. But all around, what we're talking about here is pretty reasonable, that you shouldn't have the court making up a completely new thing that's not in the law. Now, Justice Jackson does prominently cite Bostock a few times in here, just to underscore how important that particular decision was. And I think just to troll, of course, it's just a little bit. And of course we're at a time when, as we've talked about before, there's an executive order that's trying to cancel

0:31:27 Thomas: Yeah, yeah, it's, seems like a mess. Mm, yeah. Yeah,

0:32:19 Matt: Just to say that Bostock doesn't exist and shouldn't be applied.

0:32:21 Thomas: I forget what the episode was, but I was joking that I wonder how much Gorsuch regrets doing that decision. Oh, I think it was that other case where he was, like, silent the whole time, and it seemed to have implications on Vostok. But anyway, point is, I've been worried that they're just going to, like. Undo this, even though it's in very recent history.

0:32:37 Thomas: But so this is Kataji Brown Jackson kind of, is she blowing smoke? Like, oh, what a great decision this was. It's amazing. We all ought to honor it.

0:32:44 Matt: Yeah. She cites it a couple of times on purpose, like in a very prominent kind of way. But, you know, they're looking at the history of this kind of judge -made, and this is not just the Sixth Circuit. I should note that the split includes DC Circuit, Seventh, Eighth, and Tenth Circuits all came up with a heightened standard of some kind when you're a member of a majority group.

0:33:00 Thomas: So that didn't exist anywhere in the law.

0:33:02 Matt: No, no. They basically just said, this is what makes sense because that's what makes sense.

0:33:06 Thomas: Yeah, it is what makes sense.

0:33:09 Matt: But unfortunately, what makes sense isn't always the actual statutory law.

0:33:13 Thomas: I guess.

0:33:13 Matt: So, I mean, Title VII, just to be very clear, bars employers from intentionally discriminating against their employees on the basis of race, color, religion, sex, or national origin. That's all it says.

0:33:22 Thomas: Yeah? I mean, fair enough.

0:33:23 Matt: So you can see the argument. But as Jackson has to say, Congress didn't leave any room for this kind of thing, and it's just not right. So that is why we have a 9 -0. The headlines look terrible, right?

0:33:32 Thomas: Yeah yeah.

0:33:32 Matt: I mean, the Supreme Court authorizes reverse discrimination lawsuits. That's what it sounds like.

0:33:36 Thomas: And it is.

0:33:36 Matt: The Supreme Court authorizes gun manufacturers to sell wantonly to Mexican cartels, right. Right?

0:33:41 Thomas: I think now I mostly agree with ellie mustel is that who you said that yeah I think this sucks it might be the right decision maybe but I also think okay so lest all the uh reverse discrimination fans in our audience get mad at me I'm not saying that like no, I'm not saying that minority groups should be able to discriminate against the majority group not really saying that but I am saying that the consequentialist kind of effect of this is very bad because that isn't an issue that's happening in any scale that matters at all remotely, just not even close. And like if you if you isolate a case and you said, yeah, there's these here's these people where the white person is like in a tough position in the workplace and they're getting discriminated against or bullied on the basis of the race. Yeah, that's bad. And I agree that they should have some recourse. But I think the heightened standard really does make sense because that allows it to both be something that is protected in those bad instances, because I would just, you know, I assume you can meet that at standard if it's really bad and also doesn't open the floodgates for a bunch of bad faith reverse discrimination bullshit and it's not just that it's also the chilling effect so it's like being even more hesitant to put a non -white person in a thing like it's

0:34:46 Matt: No question.

0:34:46 Thomas: Just gonna be bad consequences even though maybe technically correct the worst kind of

0:34:49 Matt: No, and that's completely how I feel about it. But at the same time, I always have to think about this from the other side of how I would feel if something like this existed for something that I didn't support. And I was thinking kind of the equivalent of this might be that, what if a circuit decided that maybe we just don't want people convicted of drunk driving to get asylum? We just think that drunk drivers meet some standard we just made up, so we're just going to never allow people... We're just going say, as a rule, it's okay to deny asylum to people who are convicted of drunk driving. That's not in the law anywhere.

0:35:07 Thomas: Correct or have them meet a higher like what burden or something

0:35:14 Matt: Yeah, or create a higher standard of asylum. Exactly. Right. And that is not something that courts can do. And I would be extremely opposed to that.

0:35:21 Thomas: Okay I hear you I hear your counter example I want to make sure that's tuned correctly I want make sure I understand I would think that it'S way more more arguably within the mission of Title VII to protect minority groups, because that's the backdrop of it and that's what it needs to do. And so within that context, maybe this heightened standard makes a little more sense. Whereas in your example, I don't really think, in that example anyway, we may construct a different one, but there's nothing about drunk driving laws that also we wanted to make sure to screw over undocumented people.

0:35:35 Matt: That is right. Right, right.

0:35:50 Thomas: There's nothing that could remotely be read to include that. I guess I win. It's over.

0:35:52 Matt: Good point. But at the same time, the purpose, although I will say on the other side of it, like the purpose of asylum statutes was to protect people that deserve asylum. So you are chipping away at that, you know, in the same way. But so yeah, this is a tough one. AndI do think that Congress should seriously consider the next time that we have a reasonable Congress, if we ever have one again, should reasonably should consider some kind of incorporation of a heightened standard just to prevent

0:35:57 Thomas: Stick to your guns, Matt. That.

0:36:13 Matt: This kind of trolling.

0:36:13 Thomas: Interesting. Yeah.

0:36:15 Matt: I do think, as you said, it's probably incredibly rare. I know it must happen, but it's incredibly rare and not enough of a problem that we need to open the door this way.

0:36:20 Thomas: Yeah, I think that's my overall feeling on it. But I also think in terms of the law, I would be curious. I know there's a hard question to answer. I'm not putting it to you on the spot, but I'd be curious how much else there might be that is this that we don't care about. You know, I don't know.

0:36:33 Thomas: Like, is that because on one hand, when you say judges invented a test that's nowhere in the law? Yeah, maybe that is the vast exception and doesn't appear anywhere else. But at the same time, the way I'm looking at it, that is like at least the test is is definitely, in my opinion, definitely in line with the goals of the law. And so maybe that if we look at it that way, maybe it's not so rare. Maybe there are other examples of it, but I'm not the lawyer. I have no idea if that's true. And like, I couldn't pull any examples off the top of my head. So that's how I'm thinking about it. But what do you think?

0:37:01 Matt: I have to say that, unfortunately, just to get extra, extra annoying about this entire thing, I HAVE TO NOW ALSO AGREE WITH CLARENCE THOMAS. Yeah, he wrote a concurrence here about, I mean, again, not completely, but I understand sort of the thrust of what he's saying more than usual, and I agree with him. And he's sayings that we need to be very careful about judge -made doctrines, and that is true, because it does subject all of this to being immediately reversed when you have judges making up law that arguably doesn't have anything to do with the statute itself when there's no actual underlying legal authority. So he goes on and on about it.

0:37:29 Thomas: So which of our rights is he trying to take away in the long run by saying that? Is there some other test where he's like, yeah, and therefore gay marriage is gone or something, you know?

0:37:32 Matt: I think this is kind of a typical Thomas thing where this just strikes on something he's been meaning to say for a while. So he's just writing an editorial about judge made law,

0:37:43 Thomas: Yeah, but he has something in mind, Matt. He always has something he's going for next. In fact, he even specifically said it in that one case where he's like, we should also look at other rights that are based on this.

0:37:54 Matt: Yeah, there's something. Them.

0:37:54 Thomas: So I don't know. I'm worried. Yeah.

0:37:55 Matt: Yeah, I mean, he goes on and on about the application of the underlying case here, McDonnell -Douglas, the Supreme Court case that sort of the DC Circuit took and ran with. I don't really have time to get into it, but he definitely has a bugbear about that that I think is probably worth looking into to see what he's trying to say. But I think at the end of the day that he's supporting the MAGA agenda.

0:38:11 Matt: I mean that's more or less, but yeah, his own very mysterious agenda. But Project 2025 was pretty big on reverse discrimination and DEI elimination, right?

0:38:11 Thomas: Plus his own agenda that predates that. Sure.

0:38:20 Matt: So this is all in line with what they all want.

0:38:22 Thomas: So Justice Cameron would have voted the same way, though?

0:38:26 Matt: On all of these cases, I have to say, yeah, Yeah. I think I would have joined the nine.

0:38:29 Thomas: Well, I'm not a dino, Matt, so I would have maybe been the one to say, why can't we have a couple of Clarence Thomas's and Alitos, but for good stuff, you know, that just writes a dissent every time. That's like, hey, screw all this. Let's just have things be good for people. Oh, really? Well, no, it's the majority. Oh sorry. Yeah, yeah, yeah. No, I, I strongly disagree that Sonia Sotomayor is anywhere near the left version of

0:38:45 Matt: Well, Sonia Sotomayor does do that. I mean, that's a lot of her dissents. Yeah, in a lot of these cases, that is her role.

0:38:57 Thomas: Justice Alito. I want an actual left version of Justice Salido who has no, no. It could be me. Actually, I could do this job. No doesn't know anything about the law really, particularly. Doesn't rule. Maybe I know about it, but doesn't rule based on that. It's more how mad I am at something, but let's, yeah, I would love to have that crankiness, but for injustice, yeah. Justice Bernie Sanders, that kind of thing where he's just like, no, it seems like we should just do this. I don't give a shit about all the precedent crap, whatever he said. That sounds lame. Boo. Boring. Let's just give people healthcare. Yeah. Thank you. Appreciate it. All right. Well, I will say, I'll give you a two and three quarters out of three on the defending these decisions oh

0:38:57 Matt: Oh, no. I agree. Hmm. Hmm. Just kind of cranky. Yeah. There you go. Perfect.

0:39:28 Matt: I can get behind the other Justice Thomas. I could get that campaign going.

0:39:37 Matt: All right. I will take it. Well we will have to keep tuned for the rest of the season, but it is a very strange start for the home team. I got to tell you.

0:39:43 Thomas: Boy yeah I they front loaded I'm surprised they didn't sprinkle these in we'll also keep an eye on their release strategy you know because I know they do that where they try to pair a good one with a really bad one

0:39:49 Matt: Yeah, it's also interesting that these are three unanimous cases all written by liberal justices coming out at the same time. Kind of like, hey, we're all getting along today.

0:39:57 Thomas: Yeah why wouldn't they sprinkle those around I'm very surprised that that chief justice didn't it's just when they can actually agree on stuff could also be that like if they are really just time limited and they're like okay well these ones we agree on so they're the easiest ones to get maybe that's what's going on actually because maybe they're really having some issues with the other ones but we'll see. Okay. I'm braced for a really shitty season of crap that we will keep you informed on everyone. Well, why don't we take a break, Matt? And then we've got a couple other stories and the footnote that I'm very much hoping will ease my suffering in the Supreme Court season.

0:40:01 Matt: Watch this space. Easy stuff. Yep. Could be. Yeah. It's a painful one. We'll find out.

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0:41:57 Thomas: Matt, you teased it. What is the media getting wrong about an immigration -y thingy that most people don't understand?

0:42:02 Matt: I love being able to do this because this is my thing. I'm not so much getting wrong as I think this is something that is worth really, really emphasizing how bad this is. And we're looking right now for places where the Trump administration is pushing on our rights and pushing the state of the law into things that are completely illegal. And the way they're going to be doing that is through people they're gonna call terrorists and gang members. We've already seen what they're doing to people they call gang members who definitely weren't gang members and with these terrible deportations to hell. But this week, of course, we had Mohammed Sabri Suleiman, who I have to just say right up front, this is despicable what he did. And I just, I'm honestly a little concerned about the state of the left and some of this stuff. We already agree, we already understand that the Israeli government is firebombing children and doing horrific things in Gaza. There was a report this week from a humanitarian report that said this basically is worse than hell on earth at this point. We have agreed at this this point that it's genocide and terrible things are happening. But that doesn't mean that you get to throw Molotov cocktails at Holocaust survivors. I don't know why I have to say that out loud,

0:42:55 Matt: But it's worth saying out loud I think. So 45 -year -old suspect, he's Egyptian born and he was actually at a pending asylum application and he carried out this terror attack in which six people were injured. And one of them unfortunately was an 88 -year old Holocaust survivor. And actually the report was that he stopped doing it kind of midway because he realized the horrible injuries he was causing, which is an interesting human response when he'd been planning to do this for a year and realized as he was doing it that he was horribly torturing people.

0:43:18 Matt: Really for no reason, frankly. The reason I'm bringing this up is because you might have seen the Trump administration announced on Wednesday that it had arrested his entire family. And they in fact posted a meme in which across the picture of him was this giant stamp that said, family arrested, which is just fascist, just fascists. No matter who the person is, why do we celebrate arresting their family?

0:43:25 Thomas: Yeah, Yeah. Truly, absolutely unhinged. Yeah. Yeah, genuinely authoritarian fascist

0:43:43 Matt: Awful, awful.

0:43:43 Thomas: Crap like Nazi regime crap.

0:43:45 Matt: And their doing this, of course, as usual, to put us in the position of defending his family, which I'm going to do.

0:43:50 Thomas: Oh, yeah. Happy to do it.

0:43:51 Matt: And I'm defending his rights as well, of of course, but it looks like he's getting the rights he's supposed to have so far. But his family, there's no allegation his wife was the getaway driver. His kids helped him make bombs. We're talking about five kids and his wife. His daughter just graduated from high school. He actually waited until his daughter graduated from school to do this as it happens.

0:44:05 Matt: Much questionable father decision. But my point is that in the course of this, there was something that I really that caught my eye because the Trump administration announced it was going to be subjecting the entire family to expedited removal. And we've talked about expedited removal a few times on the show, but I want to be very clear that expedited removal under I -92 -35 is reserved for very specific classes of people. Those do not include people who entered the United States illegally. And there's no allegation that these people entered the United States illegally.

0:44:28 Matt: They came on visas and applied for asylum. And the only other way that you can subject somebody to expedited removal, which again, gets around the immigration court. That's the purpose of it. It completely kills any chance of due process you might have had. And in caps in this post, the White House, the actual White House account posted that they may be deported as soon as tonight, because that's what expedited removal could do. You can throw people out. If you have their passports, you can put them on a plane because they have no right to see a judge or challenge their deportations in any way.

0:44:54 Thomas: Absolute fascist dog shit crap.

0:44:57 Matt: So bad.

0:44:57 Thomas: This is unbelievable.

0:44:58 Matt: It's so bad. And fortunately, in Colorado, there's already been a TRO blocking the removal because of course there was. It had to be filed by a next friend, which is kind of the new thing with habeas petitions now, where if you can't get to the actual person, you get a lawyer or a community member to file as the next friend of that person to file a habeas petition to say something terrible is going on to this person. I have enough of a connection to them that we should be able to raise this petition and get this stopped.

0:45:19 Thomas: Wow, that exists.

0:45:20 Matt: So yeah, it's necessary, unfortunately, with these habeas his claims now, being the way they are. But I want to just flag this as something to watch because some of the media reporting I saw was basically like, okay, well, they've arrested his family and now they're subjecting him to expedited removal, which is not okay. That's not normal. There's nothing normal about that. The criminal equivalent would be if the FBI had arrested them without a warrant and was just holding them without charges now.

0:45:40 Matt: It's the same thing. It is as illegal as that. And expedited removal sounds just like a normal thing you can do to somebody, right? But it is absolutely not. It just not. Right.

0:45:49 Thomas: Yeah it sort of sounds like they're just streamlining some paperwork.

0:45:51 Matt: Exactly. And that's what what they're trying to do. And we're going to talk another time about the ways they're abusing that now by doing immigration court arrests. But the new ICE strategy across the board is trying to find ways to get people out of immigration court and just straight out of the country, because it's necessary. They're going have to, to get the mass deportation numbers they want. There was a report last week that Stephen Miller had held a meeting with ICE senior officials where he screamed at them and said, we're gonna have to get these numbers up to 4 ,000 arrests a day.

0:46:15 Thomas: To be fair, everything that guy says is screaming.

0:46:18 Matt: I think so. Just normal tone of voice, just Stephen Miller meeting. They just set the record of 2 ,200 arrests in a day. And that's, you know, typically it's been 600 or 700. But, you know, he's doing the usual bully fascist thing about how you're all going to lose your jobs if we can't get these numbers up. That's all he thinks about. That'S what he's for. So this is an easy way to do it, to expand expedited removal. And they're purposely doing it on the family of a bona fide terrorist who had nothing to do with his crimes. And they're doing it so that when you and I talk about this, it sounds like we're defending terrorism, which we're not.

0:46:20 Thomas: No difference. Yep. Jeez. No, it's not even close. I don't give a shit. I'm not even gonna... It's not Even close, Matt. I mean, I see where you're concerned, but like, what? Who is saying that? That's insane. Hey, here's the reason attacks on Jewish people are wrong. It's attacking innocent people for what another group of people is doing. So therefore, let's punish this guy's family. What?

0:47:03 Matt: Illegally punish them. Let's just break the law and set a precedent, which is what they're going to try to do. It sounds like Judge Gordon P. Gallagher is all over this. I'm going to keep watching this docket, but I am very interested to see him.

0:47:07 Thomas: To be fair, hold on. There is that part of the constitution. I haven't read it enough, but it says the sins of the father shall be visited upon the children or something like that. What's that one? One. That's article two or yeah.

0:47:19 Matt: Oh, right. It's weird how we left that in. Yeah. It is like that one 6 ,000 -year -old part of the Constitution. Weird how that stayed in. But I am very interested in seeing what their defense is going to be of this, because the only time you can use it, as I said, is for people that entered without permission, if they are here for fewer than two years, or if they lied to get here, and maybe they are going to make some argument about that.

0:47:38 Matt: But that is out of nowhere, and it has nothing to do with what he did.

0:47:36 Thomas: You didn't tell us your dad was going to do a terrorist attack. I don't know. They kind of tried to do that with one of them. What was it? Marco Rubio was like, if he'd have told us he was going to do all this stuff, it was one of the college ones.

0:47:50 Matt: Oh, Mahmoud Khalil, yeah. Because he left some things off his application some of his jobs. Nothing too controversial. He wasn't like, oh, that's right.

0:47:55 Thomas: I didn't even think it was that. It was also like the sense was he had no details. He was like he's going to be a troublemaker. If he told us, he was gonna be a troublemaker. I think it might even have been that word. It was like something that stupid. I wonder if they'll go for that yeah so the point is this is even worse and should get more coverage and more of a spotlight than it's getting

0:48:02 Matt: If he's going to organize students to protest genocide, I think there should be a very clear statement that this is an illegal act, that this is an intentionally illegal act that's being carried out with the convenience of being a terrorist family and that we can't allow it. This is just another place we have to take a stand. And again, I'm counting on this federal judge to do that because I don't see how this could be upheld, but I do not want this to go any further. And this is going to be a human rights disaster, even beyond the mass deportations that they have planned, if they're able to use

0:48:36 Thomas: Yeah the posting on the account it's it's just so wow that's dark, I, oh boy Well, Matt, you've got to get us out of this uh this mood so can you footnote, can you please footnote in the in a

0:48:47 Matt: Well, I promised you a spicy meatball, and that is literally what I'm going to get you. We're talking Dragon Balls today at a restaurant called Kuda Thai, which is a fantastic name for a restaurant for Thai food. Now, I want to be clear, I don't think that what happened is necessarily funny, but it's an interesting case, and it does raise a lot of interesting questions. This is a yet another food footnote, and this involves a neurologist named Harjesleen Kewalia, and she went to eat at Kuda Thai in Los Gatos, California, and she is suing defendants Doze 1 through 25 on top of the restaurant. Which is quite a lot of does. That's what you do, of course, in a civil

0:48:51 Thomas: Pleasing way yeah

0:49:22 Matt: Complaint where you're not sure who you're suing. The suit was filed in 2023. It made news this week because she fired her lawyer and she's representing herself, which we all know is never a good way to go. Now, I am sympathetic to what she's claiming happened. I haven't seen documentation that this is what happened. But just to give you the idea here, she ordered the Dragon Balls at Kutatai and she asked that they be made less spicy. She said she's very averse to spice. And I will say, as somebody who suffers from acid reflux, I really, unfortunately, I love spicy food, but I don't get to eat it anymore. I get that.

0:49:47 Thomas: Me too but I don't think I'd order something called the dragon balls maybe you go for a different different thing yeah

0:49:51 Matt: Right. Kind is prominently featured as spicy. A true revolution of your senses, fireworks light up your mouth from our traditional menu that puts the true Thai back in command of Thai food. The fireworks part gives me pause, potentially. But the Dragon Balls, of course, were advertised as spicy. That's what you expect. Now, I was looking to see if there's any indication that maybe these were made off -site or they're frozen or something. She actually added one of the chefs that was recently hired to the complaint. I think she's alleging that this man put extra peppers in. There's Thai chilies, rather, not peppers. So this raises an interesting legal question, which I'd never really considered before about about a restaurant's liability when it's talking about levels of spiciness. Because, you know, you mean all the thing on the menu when it is one, two, or three peppers, right? And that is incredibly relative. One man's spicy as another man's perfectly fine. And this complaint actually references the Scoville unit scale, which you might be familiar with if you've indulged in some super hot things. But the Thai chili pepper is between 50 ,000 to 100 ,000 Scoville units. So it's somewhere between a jalapeno and a habanero. So the allegation here is that they failed to take precautions in preparing these meatballs and that she suffered actual physical damage, like permanent damage

0:50:52 Matt: From eating spicy meatballs. Never heard of this one. This is a new one. This is coming up for trial in August.

0:50:57 Thomas: Wow that's a spicy meatball I know you've been waiting to say your honor

0:50:59 Matt: It is a spicy meatball. That's the only way you can say it. I mean, it's literally... That's right. So there's some interesting unresolved questions about all of this, about how responsible you are when the customer asks you to take it down, when it's something that's been advertised as being spicy.

0:51:04 Thomas: This is spicy meatball

0:51:15 Matt: And they're saying that she should have known, you know, this advertised as spicy, that any amount of Thai chili was going to be in there.

0:51:15 Thomas: At the same time if they I mean the name aside there's plenty of times where I'm at a restaurant and I'm like is there a non -spicy version of this and they're like yeah sure I feel like they should follow through on that I feel Like it's not super cool if they're like yes and then psych more spicy for some reason

0:51:35 Matt: Right. Or, you Know, it could just be a bad batch of pre -made meatballs that somehow a whole bunch of spice got into one meatball. I mean, I could see that happening. That's certainly a liability in any case, but it's making me wonder if maybe they should just print the Scoville scale. It's kind of a cool thing you could do, I guess, next to the, just so you have like an objective metric of spiciness. That's something at least.

0:51:40 Thomas: Yeah maybe we can't even make sure there's not rat poop in our food matt we don't have a federal government doing anything so dream on yeah

0:51:57 Matt: I MEAN, WE'RE MAKING AMERICA HEALTHY AGAIN, AND I THINK THAT'S GOING TO HAVE TO INCLUDE A SPICE SCALE. THAT'S THE MOST IMPORTANT THING THE GOVERNMENT COULD BE DOING RIGHT NOW, CLEARLY.

0:52:03 Thomas: Nope, just includes raw milk and no more vaccines sorry, Matt, and

0:52:07 Matt: IRONICALLY, RAW MILK WOULD HAVE ACTUALLY REALLY HELPED THE SITUATION. THAT'S ONE THING THAT SHE WAS SAYING. She was not given any kind of milk products to counter this.

0:52:14 Thomas: You mean not raw milk would have helped you don't want to trade spice for like a parasite that ate half or more of rfk's brain

0:52:15 Matt: Well, milk, yes, right. That's true. Yeah, I mean, I am sorry to hear that if there is permanent damage, you know, I don't know. She doesn't have documentation of that here. But she is also choosing to represent herself, which does raise questions about all of this. And generally speaking, you're just going to get your case is going to go get a lot spicier if you start to represent yourself. I will say that from experience.

0:52:35 Thomas: Is this something Matt that just works out to be like a facts -based thing or is there some actual like novel concept of law here about whether or not they can be held responsible for this kind of

0:52:45 Matt: So I guess to me that the question is about something I just never considered personally about the duty of care and the liability that you have just what you should know or reasonably know, as a restaurant, we were serving spicy food, because I'd never actually thought of the fact that spicy food could harm you, that it could actually cause

0:52:56 Thomas: Thing Boy, I think about that all the time yeah

0:53:02 Matt: Physical injury. I mean, beyond the acid reflux, which is horrible, if you've ever had like an all -night acid refflux attack, I certainly, I wouldn't sue the place necessarily, but would want to know if there's excessive spice in there. But I think there's an interesting balance here between restaurants' liability when they're serving something that's inherently dangerous. I means, spicy food to a point, it's kind of a poison, right? I mean if you're talking about massive amounts of extremely spicy bird's eye chili. So I mean, when you're serving poison, I bet, I mean obviously bars are serving poison too.

0:53:27 Matt: So we understand that a little better, but when you have inherently dangerous products that you're selling, I just hadn't really considered spicy food as being one of those things. So there has to be a balance between a consumer's understanding and the duty of care that a restaurant has when they're serving you these products.

0:53:41 Thomas: Well by analogy I mean if you if we said hey make me a virgin margarita and then like sure and then we still put half the alcohol in it or something. That wouldn't be cool. I mean, I grant that that's probably a slightly different thing, but it seemed to work with your analogy. Yeah.

0:53:51 Matt: Not at all. Yeah. How about, I meant, what if you're an alcoholic and you haven't touched liquor in 20 years? This is a more foreseeable thing though. If you overload something with way more spice than it's supposed to have.

0:53:57 Thomas: Yeah, well, I guess and that's where I don't know what the facts would bear out. Like, is it actually overloaded or was it, you know, like we don't Know anything about where the facts will shake out here, right?

0:54:10 Matt: Right, and they're claiming they've been serving this dish for many years. She's claiming that she's heard of other complaints. I guess she's going to document that at trial, but yeah.

0:54:16 Thomas: I think that this was all just a ploy to be able to say, well that's a very spicy meatball, Matt. And you know I appreciate that. I think That's what you're working toward and it's fine. Go ahead. Do the line, Bart. Say the line.

0:54:28 Matt: Well, Thomas, this footnote was one spicy meatball.

0:54:33 Thomas: What a hilarious joke.

0:54:34 Matt: I'm not going to do the voice, though. This is the only voice you get.

0:54:36 Thomas: Well, another great episode, great breakdown. Sound off, folks. Do you think Matt convinced you that those three decisions were the right decisions? I certainly would love to feel that way. It makes me feel better, which always makes me skeptical of more skeptical of things when it's what I want to feel. But especially when it comes to Sotomayor, you know, on the religious issue, she's always been very solid on that. And yeah. So let us know if Matt convinced you on those those three cases.

0:54:57 Matt: I just want to say it's easy to say the Supreme Court sucks, and it often does.

0:55:00 Thomas: Mm -hmm. That's because it does, Matt.

0:55:02 Matt: It does, I know. But they're interpreting the law at the end of the day, and there is a lot of stuff that they do, even in Supreme Court season, that isn't all that controversial when you actually look at what they're doing. So it helps to go beyond the headlines on this stuff, which is what we try to do here.

0:55:08 Thomas: All Right. Well, thanks so much, Matt. Thanks everyone for listening. And thanks most of all to our patrons. We'll see you on Tuesday. Supreme Court.

0:55:37 Matt: Honking at somebody in Massachusetts should just get you citizenship. My mouth isn't working. Hold on.

0:55:42 Thomas: Finally, the gay agenda that we've been waiting so long for. Hey, screw all this.

0:55:48 Matt: We're talking Dragon Balls today.

0:55:51 Thomas: We can't even make sure there's not rat poop in our food, Matt,