Leaked Supreme Court Memos Reveal the Shadow Docket's Extremely Stupid (and Corrupt) Origins

Transcript

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

0:00:09 Thomas: Hello and welcome to Opening Arguments. This is Vapid Response Wednesday. And do we have the vapid for you today? I'm Thomas. That over there is real life attorney Matt Cameron. How are you doing, Matt?

0:00:19 Matt: Great. I can't wait to dig into John Roberts's emails, I guess. They're memos, but close enough. This is actually super important. This is one of the most important things that's happened in the law in years, really.

0:00:30 Thomas: Yep. Yep." And Lydia, how are you doing?

0:00:33 Lydia: I'm doing okay. I'm here and I'm excited. You know, actually, I hadn't read the New York Times article about the stuff we're gonna be talking about. So this is going to be fresh for me. And I'm really excited to get into it and learn what's going on.

0:00:45 Thomas: Yep, we're going to be talking all about the memos that were leaked, I guess, the New York Times from about 10 years ago. The start start of ruining everything. Okay. That's a big claim. The start of ruining something. The I guess I'll say.

0:01:00 Matt: On the X and Y axis of ruining everything, this is a tick. This has definitely a major point.

0:01:05 Thomas: Matt's doing math. Hold on.

0:01:07 Matt: I just hurt myself a little bit as I was describing a chart in Axis. Yeah, no, this is really important because this is how... I mean, if this is a movie, it would be called Shadow Docket Origins. This is where it came from. This the prequel or episode one or whatever. Yeah. I don't know.

0:01:21 Thomas: Days of future...

0:01:25 Matt: I feel like Shadow Docket Origins is a pretty good name. Somebody ought to do that.

0:01:26 Lydia: Interesting

0:01:26 Thomas: It is pretty good. Yeah, I like that. Yeah. Or the shadow docket could be like a villain though, or something like it is a villain. Yeah.

0:01:33 Lydia: Interesting yep

0:01:33 Matt: It sounds like a Grisham novel already. Not even a Kevin Grisham novel. It sounds like a John Grisham novel.

0:01:40 Thomas: Yeah, this, that's pretty much, I mean, we're going to, we got an amuse douche. We still have an amouse douche for you because Matt always brings the fun with that. But we, we've got to talk all about this. That's going to take up the whole vapid response because there's that much vapid in these memos, which you're not going to believe folks. I'm sure you've read this, but we're going to dig in more than just the New York Times article. We're going to actually dig through the memos that they released with that on the side and they're worse, probably worse than you would think or worse than the average person would think. I think we can really, yeah, I think one thing we can offer and with Matt's expertise here is like digging into really how much worse this is than probably people realize. So

0:01:44 Matt: We do. Vintage amuse -douche. Worse than I expected. Tell you that.

0:02:21 Thomas: Fun! But we're gonna have a good time as always that's

0:02:24 Matt: As always, as always. Nobody else I'd rather discuss it with.

0:02:27 Thomas: Right so uh we better we better get to our first break and and we got to thank our top patrons, our hall of famers, our all -time greats at patreon.com/law. These are the folks that pledge at that $5 level and above for at least a month. Thank you to the Ruth Bader Ginsburgler. My house is a mess, but I read a lot of books. Griff, the Tired 1L Gary the seagull Matthew Cutler autistic twitch streamer Vetinari for America 2028 - One Man, One Vote wait a minute maybe matt's been replaced by a seagull maybe that's who got to him yeah uh UnreMerkable because I don't hear the seagulls do you I haven't heard him yet have you ever seen matt and a seagle in the same room don't you dare read this amina donna treadway mother of Veridans. Mike Lapinsky. Naomi. I moan. Oh, that's a good one. Uh, cyanitis. This is a reference to another show.

0:02:56 Lydia: That explains it. No, no.

0:03:20 Thomas: That's awesome. Uh. Good stuff.

0:03:23 Matt: But lazy. Okay.

0:03:24 Thomas: Great. That is fantastic. Great preponderance of the evidence. Why change what's not broken with that one. Apprentice of Adventure. Charlie Kelly. Attorney at Bird Law. Probably a real person. And Nick Fish. Thank you so much, top patrons. You're the best. Thanks for making us chuggle each and every week and looking forward to the other two -thirds of them we'll take a break and we'll get to it all right matt what's sleepy john roberts doing here yeah oh

0:03:49 Matt: I want to know what karaoke song he's doing right now in that picture. He looks really into it, whatever it is.

0:03:53 Lydia: Whoever's right behind him is not impressed at all.

0:03:54 Thomas: He has no soul that's

0:03:57 Matt: Yeah, that might be his wife, actually. So this is a vintage amuse-douche. We're going back 21 years to 2005 -era douche, which was quite a year in douches.

0:03:59 Lydia: Good year.

0:03:57 Thomas: Hillary no I'm just kidding oh he probably is it was good year for douche a good douche vintage no

0:04:12 Matt: George W. Bush was thriving, Hurricane Katrina, et cetera, et cetera. John Roberts, this is very famously his. I watched this live at the time. I don't know about you guys. I was pretty into it. I was unemployed, so I didn't have a job at the time.

0:04:23 Lydia: I was I was in high school and not that.

0:04:27 Thomas: Just starting college I had other things to do that were not better than this yeah yeah

0:04:30 Matt: And I remember thinking the entire entire confirmation hearing, I remember thinking, you know, this guy seems pretty reasonable. Look how normal he is. Look, he's just like your uncle. He's just Uncle John.

0:04:38 Thomas: What'd you say he's just calling balls and strikes man let's

0:04:41 Matt: I might say that. And you know we use that expression. We talk about John Roberts a lot. I thought it'd be good just to go back and look at it and remember what he promised America that he would do in his confirmation hearing, and then we're going to get a hard look at what he's actually doing in this leak. So let's just play it.

0:04:57 Thomas: Play on that douche my

0:04:59 Clip: Will be open to the considered views of my colleagues on the bench, and I will decide every case based on the record, according to the rule of law, without fear or favor, to the best of my ability. And I will remember that it's my job to call balls and strikes, and not to pitch or bat. Senators Lugar and and by talked of my boyhood back

0:05:27 Thomas: Boyhood he does look like a boy I'm

0:05:30 Matt: Yes. He's still fairly boyish 21 years later.

0:05:31 Clip: Home in Indiana.

0:05:32 Thomas: That I sure they meant like his past but I've always thought he looks like a Boy like it just a school

0:05:38 Matt: And you can see there's an era, like Bill Murray could have played him at a certain era. You can kind of see it a little bit. I can totally, maybe a funnier John Rivers story. That's about it.

0:05:39 Lydia: A boyish look yeah Chevy

0:05:45 Thomas: I think maybe yeah maybe I kind of see yeah a little bit maybe Chevy Chase in a different era too yeah the tan is very Chevy Chevy Chase -esque.

0:05:50 Lydia: Chase was what I was thinking yeah yeah. Yeah, exactly.

0:05:54 Thomas: He's always been so tan. I don't know why that is. Is there a lot of sun in the Supreme Court? The light's really bright.

0:05:50 Matt: Definitely. That's true. You know, this is the first time I've watched this since I watched it live. And I am a different person and certainly a different legal thinker than I was 21 years ago. I think a lot of us are. But, you know, I was just coming out of law school in 2005 and I more or less believed that the Supreme Court did the thing that he's saying because it looked like it as a law student.

0:06:20 Lydia: Institutions, right?

0:06:21 Matt: And yeah, no, that he would actually, and you know that he is a conservative. You know he is coming from a corporate background. You know he's not going to be the Warren court, but you figure at some point that he he is actually thinking of things like a jurist. And I think that's been very hard to extract from my mind, even now, even in 2026, and I'm not an institutionalist and I don't really believe these things can be trusted, you know, just to endure just because they should, or that everybody in charge of them is good. But at the end of the day, I think I just was so taken by this like avuncular, everyday judge kind of act that he was doing.

0:06:21 Lydia: Like, that's, yeah, hold them up.

0:06:52 Thomas: That's why Matt voted to confirm him. I can't fucking believe it myself. I hope you regret that vote, Matt.

0:06:57 Lydia: He has, like, that vibe with, like that same, like George Bush vibe, right, like about getting a beer with him.

0:07:02 Thomas: He's very aw shucks.

0:07:03 Lydia: You know, like it feels, like very gregarious, but without, like any sort of, yeah airs about him.

0:07:03 Matt: That's right. He is.

0:07:08 Thomas: He's a weird guy. Why is what's so weird about speaking of pluribus? It's just something let's go back he just he's a pluribus alien too like you know there's something

0:07:16 Matt: He looks like a play school dude, like those classic little play school figurines.

0:07:20 Thomas: He's just like uncanny valley of a human I don't know he's like a conservative you know no yeah exactly but he also wouldn't say he's handsome he just like exists in a weird middle like a serial killer you know they said that's why that one's here ted bundy or whatever one of them was like like, pleasant enough looking, but not in a memorable way.

0:07:25 Matt: He's not unhandsome.

0:07:33 Lydia: I think the hair, the hair is a big part of it. Yeah.

0:07:36 Matt: Mm -hmm, that's true. Play school. Mm hmm. Right.

0:07:44 Thomas: Like, that's why he, one of the reasons he was able to kill people. I feel like that's Why John Roberts is Able to Murder the Constitution.

0:07:44 Lydia: John Roberts is Ted Bundy.

0:07:51 Thomas: He's, yeah, he's like, he's pleasant looking, BUT NOT IN A MEMORABLE WAY, and not in a way that's, like, necessarily good. He just blends in. He's SO GENERIC.

0:07:51 Lydia: I see what you're saying. Yeah. Yeah,

0:08:00 Matt: Right. No, it's true! I mean, When you look at Gorsuch or Alito, they're up to something. You can tell. They're up to something, but this guy, he's a perfect face for the people that put him in there, for the corporate interests that are, as we're going to see in these memos, very much responsible for the way the Supreme Court has gone. I just want to say again, I've said this before, but they don't work for Trump necessarily. They work for the People that put Trump in, the People That Find Trump to be Convenient.

0:08:06 Lydia: Freaking Alito. And

0:08:24 Matt: We'll say that in

0:08:24 Thomas: And and I think alito works for fox news and and and thomas works for yeah it's yes it's yeah

0:08:27 Matt: A way. Sure.

0:08:29 Lydia: The Christian conservatives. Yeah like Alito works for evangelicals like that's what he does.

0:08:35 Matt: They work for Trump when it's convenient, but Trump is not the same thing. But yeah, we should... John Roberts. Actually, his wife, we just found out recently that she has taken like $10 million, probably more than that by now, as a quote -unquote recruiter just within the legal industry, just helping people find jobs, which she should not be doing. He's supposed to be one of the cleaner, more ethical ones. We'll see.

0:08:58 Matt: We can take a look at these memos, we should get started because there's some meat here to get into. I I wanted to immediately follow that clip of Roberts with John Roberts' memo, which is the first thing we're going to take a look at here. Now, this is February 5th, 2016. Now check out the letterhead. This is his official letterhead from the chief justice. And this memo tradition, I don't know if people are familiar with this, but I've read a lot of books about the Supreme Court. This goes back to the beginning of the Supreme court. They constantly are firing memos back and forth. You would think these could be emails. I assume maybe these are attached to emails.

0:09:27 Thomas: Kind of are emails matt there's just without the e they're the mails yeah

0:09:28 Matt: They are. And it's amazing to read back in the Warren court or other areas where they had sharp disagreements. They'd be firing these things off all day. Sometimes they'd just be like a sentence or two and then they'd CC everybody is to run copies to everybody. And I can't even imagine how they did this on paper, just buried in memos, just memo boys.

0:09:43 Thomas: They must have had a team of small boys to run across yeah

0:09:46 Lydia: A team of John Robertses. Is.

0:09:50 Thomas: A little yeah that's what he did as a youth or did they ever have the pneumatic tubes you know that would have been good they should have oops I just bumped my neck they should have like just coming out all the time cc everybody yeah yeah

0:09:54 Matt: So never

0:09:58 Lydia: That would be cool. Yeah. Uh -huh.

0:10:06 Matt: Get to see these memos. This is really unprecedented that we get to this far inside the court, and this is how the sausage gets made.

0:10:09 Thomas: Now like ever or is there a date thing like that happens with some of government stuff just never

0:10:18 Matt: I know that in justices papers, sometimes they've been released. I know the different authors have have had access to different things. But I think as a matter of course, they're not part of the archive.

0:10:26 Lydia: Well, and, and why, so why is that? Because like so much of our government is supposed to be like foiable and, you know, accessible to the public, but all of this stuff just gets to hide behind a wall forever. Why?

0:10:40 Matt: Yeah, I mean, I can see that. But at the same time, I know, you know what? I can't argue with that.

0:10:45 Lydia: I mean, like at the very least, like yeah like like we should be able to request these things and then they can deny it under whatever reason they want but like for it to just not even be something that you could ask for and maybe you could maybe people have tried to and it just gets like flat denied but yeah but

0:11:00 Thomas: You can't but I I think they're immune from that I don't think they said or they're not even included in that right yeah I know but it also or at the very least it could be like a time you know 10 years 20 years later release them yeah

0:11:05 Lydia: Why yeah yeah

0:11:11 Matt: I mean in the same way, I would never expect to have recordings of their conferences when they actually meet in person and talk about the cases, right? They want to have privacy. They want to know that they can have a safe space. But this is what happens when we give them a safe space apparently. So I should talk about what this is here. Again, we don't get to see this very often. And this is in West Virginia v. EPA. Now that case actually came down in 2022 in review of this rule that he's talking about in these memos.

0:11:20 Thomas: Deliberative kind of yeah yeah like

0:11:46 Matt: Yeah, there was a lot of back and forth, a lot things that had to happen, a lot consolidated cases. Now this is the energy industry he's working on behalf of here. The energy happy with the Obama administration saying that it has authority to regulate all coal to some sort of cleaner standards. And I don't know enough about the industry to tell you exactly what they're supposed to be doing. But the Obama administration believed that it had the regulatory authority under the Clean Energy Act to impose new standards on coal plants.

0:11:46 Thomas: It took until then to wow

0:12:18 Matt: And that's what the time that this application for stay is being brought, there has been no decision from any lower court about this. They are just rushing to the Supreme Court to say, you can't let this go into effect. Completely unprecedented. At this point, the court had never stopped. I want to be very clear about this, had never stop an agency action of this kind, not on the merits. And so we're talking about the shadow docket, just for those who are just catching up, we're talking about the business of the court. Typically, the shadow docket in court history has been death penalty cases, where somebody's seeking stay of execution, where they don't have time to get to the merits, but they want to look and see, is there any claim whatsoever? Should we be reconsidering this conviction? And this is the first time, this is why these memos are so historic, because this isthe first time that the thing that we have come to call the shadow docket today, it was first called that in 2015. Steve Lattice had really popularized it and come up with it and wrote a great book about it. And that thing, that shadow doocket, as we know it, in which they're constantly interfering with lower court decisions, that they're getting ahead of things like jumping the gun and staying different agency decisions, regulations, lower court orders, whatever else it may be, without getting to the merits, without having full briefing and full argument with the parties in front of them, and then waiting to get to the later. And of course, that can matter depending on what kind of case it is. If you're talking about the cases in which Trump fired thousands of people, when we get around to hearing these cases in a year, those people will still be fired and they'll be presumably doing something else and maybe not have jobs anymore. So that's very important to stay that decision to fire them, which they didn't do. They allowed Trump to fire him. When you're talking about the energy industry, you can see the argument here that Roberts is going to make that they have to start planning ahead because the final deadline for this stuff actually hasn't even come. It's in 2030, I think. They were also seeking to toll to stop

0:14:03 Matt: All deadlines and extend them way out. They're trying to get a lot done here. So So that's what's before the court is not the merits of a case, but whether or not an Obama rule should be allowed to go into effect while they're waiting to see if the case is going to be yes, yay or nay, basically. And this is a complicated question about if the EPA had the authority to create this rule and to enforce the kind of standards that we're talking about here. But you wouldn't know that from John Roberts. Let's take a look.

0:14:32 Thomas: Just want to get it very clear though because the procedural stuff is tricky because you've got I think probably like at least two or three separate issues like for one we've We've got, can Obama do this with the plan that they're trying to do? I mean, Congress, you know, they lost Congress in 2014, which I think is the most like important election there was 2014 kind of ruined everything. Uh, cause we didn't, we didn'T, we DIDN'T bother. So they took over Congress. They got the extra justice. They blah, blah, Trump. Uh, none of that would have happened. I don't think, but anyway, um, they also couldn't, since Obama couldn't do anything because of Congress that he tried to do more with executive orders. So they, you Know, they do this thing. So there is the question of, should Obama be able to do that? Fair enough. Like, I'm sure there's definitely a debate to be had about the limits of executive power. Could totally have that debate. The normal process, just to get, I know it's just really complicated to get everybody on the same page. Normal process is they would do this. Obviously, the money, the monopoly man would sue. They'd be like, oh, it's so hard with my monocle to do whatever you're making me do. Stop killing people with pollution or whatever. And everybody would be like, that's so sad. Please help this poor Monopoly man. He can only afford one glasses, one half

0:15:48 Thomas: Of glasses. That's how dire he is. But anyway, then they'd sue and then, you know, that would go up through the courts. Right. And then so then separately, though, there's like this idea of stay getting a stay pending the suit. Right? But I guess I get confused. At what point do you do that? So what would be the normal course of action there?

0:16:13 Matt: I think that you'll see Sonia Sotomayor is also very confused as to why.

0:16:14 Thomas: And at what level? Yeah, right.

0:16:16 Matt: Yeah. So typically, they would be seeking that in the district court in the first instances, which is where they're trying to litigate this. That's where you start as a federal district court. The district court denied the stay pretty reasonably. Yeah and

0:16:25 Thomas: Denied the state. Okay, so yeah, that's where I'm just trying to get it straight. So before we even get to the Supreme court, it is a matter for the very, for the district court to be like, they could stay at or not depending, right? Like, and that would still be all be within like the normal course of business, right.

0:16:40 Thomas: I'm trying to, I'm just trace for the normal person here where it kind of goes off the rails. Cause this was the first thing that created this bullshit thing, essentially. Um, I know it probably existed for, for death penalty cases and other stuff, but I'm just trying to trace like for normal non -lawyers to understand this. So that would all be normal. Right.

0:16:49 Matt: Huge precedent. Yeah. Right we're

0:16:59 Thomas: And so where are we when these memos are happening? Remind me where exactly we are in that kind of process that I'm trying to trace out.

0:17:06 Matt: Nowhere near the Supreme Court where we're just even like we're pending proceedings in the district court. And I want to be very clear that the reason this is super unprecedented is that they are seeking stay of an agency action, not a court order. So when you're talking about a death penalty case, you're taking about a final conviction, right?

0:17:08 Thomas: I got that. Okay. Oh, yeah.

0:17:21 Matt: That is now being executed, literally. And when you are talking about an agency act, I mean, that's really extraordinary to say you shouldn't get to do this at all when a court hasn't ruled on it yet. And that's why this matters. This is really big. You know, there's an expression about the Supreme Court that it's supposed to be the Court of Final Review, not First View, which almost rhymes.

0:17:44 Matt: And that's a really helpful thing that they are happy to do when they want it to be that way, if they want things to take their sweet time in Jack Smith's criminal cases or anything else to work their way up. But this memo, this first one from Roberts is truly, I mean, honestly, and again, I'm a lawyer, I think about this stuff a lot, I I think it's shocking. And I think when I give you the context more, and I think any ordinary person can see what he's doing here. I don't think you need to have too much legalese to explain this, but it's to see a Supreme Court justice basically openly advocating on behalf of the coal industry. That's what he'sdoing here. He's like actually acting as a lobbyist, basically.

0:18:19 Thomas: Some of my best friends are the Monopoly men. Do we are we reading through them?

0:18:24 Matt: Yeah.

0:18:24 Thomas: Or what's the plan?

0:18:24 Matt: Well, the first couple, I want to make sure you actually, this first one, especially, this is the first Roberts memo.

0:18:30 Lydia: Have received five emergency applications seeking a stay of the the EPA's Carbon Pollution Emission Guidelines for Existing Stationary Sources, Electric Generating Units, blah, blah. Also known as the Clean Power Plan. Nationwide, by 2030, the rule, quote, will, and this is 2016, yeah, 14 years to go. The rule, will achieve carbon dioxide emission reductions from the utility power sector of approximately 32 % from CO2 emission levels in 2005. 2005.

0:18:45 Thomas: By 2030 keep in mind we're not yeah this is a long time ago yeah

0:18:48 Matt: In 2016. Yeah. Yeah. Yeah. Yeah. So that's bad, apparently. He's setting that up as like, this could be a real problem, guys. We might see emissions go down.

0:19:08 Thomas: 32

0:19:09 Lydia: In the next 14 years. Yeah, within two weeks of the rules publication, 27 states and several labor unions, businesses and trade associations filed petitions for review and applications for an immediate stay from the D .C. Circuit. The D .K. Circuit denied the stay on January 21st, 2016. And so just a week, two weeks before this and the above.

0:19:11 Thomas: Percent from yeah from 2005 okay oh

0:19:32 Matt: And I will say, just on an ad, in addition to denying the stay, they also expedited the case. They said, we're going to keep the rule in place, but we're gonna rush it. But that was good enough.

0:19:41 Lydia: Interesting.

0:19:40 Thomas: So even less of a reason to oh my gosh is

0:19:45 Lydia: And the above captioned applications renew the request in this court. On January 27th, I requested a response to number 15A773, an application filed by 26 states. We received a response from the Solicitor General yesterday. I refer the applications to the conference with my vote to grant the stay in order to preserve the status quo pending judicial review. Absent a stay, the Clean Power Plan will cause, and is causing, substantial and irreversible reordering of the domestic power sector before this court has an opportunity to review its legality.

0:20:16 Thomas: That how the how that you normally evaluate it it's a it's it's an irreversible reordering of the power sector that's That's yeah.

0:20:19 Matt: There's so much going on here. He can't bring himself to say irreparable harm because that is not the standard because they're not reviewing a court order. So there's no standard here. They're reviewing an agency thing. And the APA, I believe Section 705 is supposed to control this. It's a higher standard than the familiar thing about the reputable harm for court orders. But yeah, he's making up a new thing about substantial and irreversible reordering of the domestic power sector. Apparently, he is an expert in the domestic -power sector.

0:20:54 Matt: There are plenty of other places in other cases where they've said, we're not policy experts, we are not experts on facts, right? Except for this one, I guess. They know the energy industry. It really says a lot about his priorities.

0:20:59 Thomas: So weird.

0:21:04 Matt: But yeah, so absent to stay. And he's also saying we have to preserve the status quo, which I mean, the status -quo is the rule. That's the rule that's gone into effect, and you should respect it. The status quo is a bunch of people just lost their jobs, then so be it, that's it. So it goes both ways, right?

0:21:15 Thomas: The well this is when you're talking about the federal

0:21:22 Matt: Yeah. So I mean it's just kind of the status quos whatever you want it to be. But in In this case, when you're talking about an agency that has made a decision that a lower court has declined to stay because it's not easy to stay an entire agency. And to be clear, I should mention too, I feel like I shouldn't skip over some of this basic stuff. A stay is against the authority basically of an agency or a person to do something. An injunction is against a party, right? So that's kind of the distinction here. And it's also kind of unclear about, I just read a Harvard Law Review article to try to understand this a little better about how stays even work against administrative rate of agencies, the court has been pretty inconsistent on that point. So it's pretty messy.

0:21:57 Lydia: Is also assuming that the EPA went through the appropriate rules and regulations process that all agencies would be expected to do anyway. I mean, I don't know specifically what the EPA one would be, but if that weren't the case, that would feel like something you'd cite pretty quickly. And I could see like, okay, yeah, yeah. Press the pause button.

0:22:17 Lydia: This seems to have jumped the gun a little bit, but there's no indication that that actually happened.

0:22:21 Matt: I don't think there's an API claim to that degree of like that it was done wrong. I think they're just saying there's no authority to do it, right?"

0:22:25 Lydia: Yeah.

0:22:26 Matt: So you can skip the next paragraph with the law stuff in it. I have a little down.

0:22:26 Lydia: And we don't like it. Okay. I have little doubt that whatever the outcome of the proceedings in the D .C. Circuit, there will be a petition for cert. I find it very likely that four members of this court will vote to grant the petition, again, regardless of the outcome below.

0:22:42 Matt: So think about what he's saying here and think about the many other cases where they have let things take their time, including, I always come back to this, but the immunity decision where they let the district court and then the circuit decide rather than taking it. When Jack Smith said, please just take this now so we can get this over with. And imagine if they did issue the immunity decision in January instead of June or July, whatever it was. I mean, the difference that might've made politically, I don't know, maybe not, but it's just like, there's no reason to sit on it. And the exact same logic applies to so many of the things that they have declined to stay and just let take their time. There's going to be a petition. They're talking about this before there's been a district court decision, before it's even... So it's just, yeah, the

0:23:23 Lydia: Also believe that there is a fair prospect for a reversal. Okay. The EPA promulgated the rule under Section 111D of the Clean Air Act, which requires, quote, standards of performance for existing utility plants. The statute defines a standard of performance as a, quote. Standard for emissions of air pollutants, which reflects the degree of emission limitation achievable through the application of the best system of emission reduction. The EPA argues that the, quote, application of the best system of emission reduction to a coal -fired utility includes having that utility retire its coal - fired plants and open or invest in natural gas or renewable energy production.

0:23:59 Matt: Horror, the absolute horror of the thought that the APA could tell them to stop with coal and invest in something cleaner.

0:24:06 Lydia: Yeah, and it's just, yeah, coming off as this, like, this air of, I know energy, energy regulation better than they do.

0:24:14 Thomas: And again if this were all in the inevitable bad decision that it would be like at least it'd be wrong but at least that would be like how you're supposed to do it yeah this is he hasn't heard from any experts on this to your point Matt he hasn no facts on this right there's no

0:24:23 Lydia: Procedurally, yeah. Yeah. No.

0:24:24 Matt: Exactly. And yeah, right. He cites like a BBC interview with somebody, right? That's just like, no, not at all. And you'll see, and we're not going to read all of the Sotomayor and Kagan ones, but they both point out this is extremely complex. We have got to hear more before we can say anything about this.

0:24:34 Thomas: That's not how they're supposed to do at all yeah

0:24:46 Matt: And even this next sentence where he's saying this is a new approach, that is enough that they should wait on briefing to hear about it and how it works.

0:24:51 Lydia: That interpretation of 7411 represents a new approach to the statute. Past rules under 7411D have contemplated that utilities could comply with the articulated, quote, best system of emission reduction solely through installation of control technologies, for example, scrubbers, which seem to fit more comfortably within the statutory phrase. We have a footnote. Matt, does the footnote matter? Let me ask my resident footnote guy.

0:25:16 Thomas: God

0:25:17 Matt: No, for once. No, it really doesn't. Oh, the mercury. Actually, is that the mercury thing? It does matter a little bit. That's where he gets into the mercury, yes. I'm going to summarize this footnote because it is not worth reading. But he's very concerned because the court at some point vacated the clean air mercury rule, which required, I mean, heaven forbid, that we have a reduction in mercury emissions. And he's sehr mad because he found out later that it turns out they started modifying, even when this rule was in effect, that a lot of this is moot because a a lot of these plants already updated, so they'd be emitting less mercury. So that's a problem, I guess.

0:25:26 Lydia: Thank you right

0:25:50 Thomas: The thing is called the clean air act Right.

0:25:53 Matt: Yeah, it's right there in the name. We know what we're doing here.

0:25:55 Thomas: Wasn't that what it was called? I mean, I know, again, this is on the merits of the decision, which they're also wrong on, which is not the main wrong thing, though, of this whole thing.

0:25:56 Matt: That's what Congress wanted. Right. Right? And maybe

0:26:05 Thomas: But it's called the Clean Fucking Air Act. Like, is it that crazy to believe that Congress might have intended that the air be clean?

0:26:13 Matt: A little less mercury? I don't know. It'd be great. The cleaner mercury rule. Yeah? And also, I will point out, we really learned from this that I don't... I mean, I won't say none of the justices, but there is certainly no sense of urgency from the conservatives on the idea that there might be a climate emergency or that this is actually being done for a good reason and that we actually need to do everything possible to start cleaning the air and reducing emissions. That is not a factor for any of these people.

0:26:29 Lydia: Not man uh let's see where am I picking up from after that but no as we noted two terms ago agencies will face high hurdles when they seek to use novel interpretations of a quote long extant statute to quote bring about an enormous and transformative expansion and their regulatory authority without clear congressional authorization. But there was clear congressional authorization.

0:26:59 Thomas: Well, no, I mean, it might be true, but again, that's for later when you actually fight the battle over it, not for reaching down and changing it because you're worried about your Monopoly man friend.

0:27:10 Matt: Yeah, if you want a good example, the birthright citizenship rule, which was insane, which required all federal agencies not to recognize babies being born, right? That's an easy one for a stay, for an administrative stay. That's like the extreme example of why we need to be able to have the power for the court to state things.

0:27:24 Lydia: Will be harm. Yeah.

0:27:25 Matt: There will be immediate harm, and it's also just a stupid rule that's based on nothing that's telling agencies to do something that's completely unconstitutional. This is not that, I don't think. I'm not an expert in the energy industry, but the other justices I think are pretty convincing on this.

0:27:39 Lydia: The applicants also raise a strong argument that regulation of power plants under 7412 precludes the EPA's promulgation of this rule under 7411D. Okay, let's

0:27:48 Thomas: What, so when he says the applicants, I just want to get something very clear. Is that him reading the stuff that's gone on in the lower court or is it, they did, they did appeal to him, right? So they're, so he's reading, I guess, do we know where this stuff is coming from exactly I'm just curious stay application

0:28:03 Matt: This is in the stay application, but it's a combined five cases because there's a whole bunch of different interests that are challenging these rules

0:28:11 Thomas: What

0:28:13 Lydia: See. The applications also meet the third criterion for a stay, irreparable harm. The D.C. Circuit will hold oral argument on June 2nd, 2016, so a cert petition is not likely to be considered by this court until this winter. Depending on the timing of the D .C. Circuit's decision and taking into account the potential for en banc review, it is possible that this court will not rule on the merits until 2017. Though the rule does not require emissions reductions until 2022.

0:28:40 Matt: At the time, yeah.

0:28:40 Lydia: Oh my god, its impact is being felt now. Okay, that's insane. So that's

0:28:45 Thomas: Impact you asshole the impact of the rich people that are my friends are sweating

0:28:50 Matt: I'm getting a lot of emails.

0:28:53 Lydia: Crazy. They would have have five years ostensibly right between a supreme court you know I guess denial to when those things need to be in effect what

0:29:03 Thomas: It's impact is being yeah why is five years any more than like this the what like if they do it it now it's six years or so and he's saying well that's unacceptable uh you know yeah

0:29:06 Lydia: Are you talking about right

0:29:16 Matt: And I'm hearing they're having to have meetings and emails are being exchanged about how we might have to comply with this rule, basically.

0:29:23 Thomas: He's saying sorry so he's says the five years is unacceptable it has to be six years feels very arbitrary to me

0:29:29 Lydia: That's really silly like like that's just silly beyond anything else that just I mean I I can't I don't even know what to say to that that's just so dumb first under the rule states have the option to develop their own suite of state state regulation subject to EPA approval to meet the rule's targets. If a state does not submit a plan or seek a two -year extension by September 2016, the EPA will impose a federal plan on the state's power sector. So you submit a plan and you say, if this goes into effect, this is our plan.

0:29:59 Lydia: That's it. I mean, you do planning like that in government all the time. That's not surprising.

0:29:56 Thomas: Whatever yeah this is all normal and

0:30:07 Lydia: The EPA represents that, quote, the submission required by September 16 to obtain the extension is not burdensome and that extensions are, quote, readily obtained. But the applicants indicate that they are currently in the process of committing time and resources to compliance as the first deadline rapidly approaches. God, freaking whiners. That's so dumb. I'm

0:30:24 Thomas: We can't have that god in the pro that's the harm and they're in the process of committing time and resources to compliance as the first deadline rapidly approaches what's the first headline this oh in order to have a plan or wait what what deadline yeah

0:30:36 Lydia: Sorry. Like 2016, I think is what it said. The deadline is the submission required by September 2016. 2016.

0:30:45 Matt: For an extension, you can get an extension. All the states could have requested one.

0:30:49 Lydia: Or seek a two-year extension. Exactly.

0:30:51 Matt: Right. And you can appeal the denial of your extension. I mean, they haven't even tried to do that yet.

0:30:48 Thomas: Come on yeah

0:30:53 Lydia: I'm sorry. Like, Thomas, you've worked in government. I've worked in government, the number of things that you put time and resources into that end up being nothing. That's every day, every single day.

0:31:03 Thomas: And this is not not even that particularly hard.

0:31:06 Lydia: No, no. I mean, every state has departments that handle this kind of stuff. A lot of states have probably already looked into some of these things as like projects, depending on the state specifically. But like, this is not not crazy. Anyway.

0:31:19 Matt: But well, wait till you see the reduction in coal production in the next paragraph, you might change your mind.

0:31:25 Lydia: Second, and more disruptively, the EPA's own models show that the rule will cause immediate shifts in power generation as the industry must make changes to business plans today to meet the 2022 requirements. The agency's models show the impact of the rule will reduce coal production for power sector use by 2%. John!

0:31:44 Thomas: Sorry. What?

0:31:46 Lydia: Oh my

0:31:47 Matt: But in 2016 and 2017, and doubled.

0:31:49 Lydia: And by 4 .3 % in 2018. 18.

0:31:53 Matt: It'll double the reduction.

0:31:53 Thomas: Are you kidding me?

0:31:55 Lydia: Irreparable harm, you guys.

0:31:55 Thomas: Look, I read the New York Times article, but I didn't actually see where I could read all these memos. I didn't know this was this fucking stupid. Guys, you don'T understand. You don'T underSTAND. 2%. 2%. That's we need to save them

0:32:09 Matt: I wasn't entirely sober the first time I read this memo, and I thought, That's 20%, right? That decimal has to be wrong.

0:32:23 Lydia: Yeah, yeah. You're like, my mind

0:32:19 Thomas: I actually did the same thing yeah I was like oh typewriter issue or whatever

0:32:24 Lydia: Is creating a decimal where it doesn't exist. Yeah.

0:32:27 Matt: 20 % would be a lot, but still not huge, but a lot.

0:32:30 Thomas: Still doesn't matter but yeah that's

0:32:33 Matt: But 2%.

0:32:33 Lydia: What do you guys think he tips when he goes out to eat?

0:32:34 Matt: Not

0:32:37 Thomas: That's a great question uh yeah I

0:32:39 Matt: An irreversible amount. Yeah, somebody

0:32:41 Lydia: Jeez. That harm once incurred is irreversible. What is the harm?

0:32:45 Matt: Think of the coal.

0:32:45 Thomas: Don't see I I don't think so. I

0:32:47 Lydia: And what is the the harm?

0:32:47 Thomas: Don' t. Yeah.

0:32:48 Lydia: Asking it for a two -year extension? That's the harm.

0:32:49 Thomas: For one, what' s the harm? For two, is it not possible to do more coal? I don'' t understand.

0:32:54 Lydia: To pump more pollution into the air? I think we can. I think it's possible. I don't know. I'm not sure. I think we've proven over the years that's possible yeah

0:32:58 Matt: I mean,

0:32:56 Thomas: Yeah, irreversible. This is

0:33:01 Matt: We're laughing, but honestly, it is just awful. It is tragic the way that he does not even consider the irreversable harm to the planet that we're doing with coal. It's just not even like, as a goal.

0:33:09 Lydia: Crazy yeah

0:33:06 Thomas: So stupid. Yeah or like the irreversable harm of you know a bunch of people losing their jobs or sometimes people being freaking executed you know, or whatever, but 2 % coal reduction.

0:33:16 Lydia: Wrongfully yeah

0:33:14 Matt: But Congress passed the Clean Air Act, as you said, Thomas, because they're concerned about a climate emergency. And he's like, no, this is the real irreversible harm.

0:33:25 Lydia: Based off of science and

0:33:26 Matt: This is it. And

0:33:27 Lydia: John Roberts is not a scientist and so he can sit down

0:33:28 Matt: He won't be alive to see the worst of it. I actually hope he is. I hope he makes it.

0:33:31 Lydia: So he doesn't give a shit yeah man listeners can't see this I've just been like shaking my my head uncontrollably this entire time. This is so frustrating.

0:33:39 Thomas: 2 % and 4 .3 % in 2018.

0:33:45 Matt: Just tragic, I know.

0:33:46 Lydia: Given the long lead times and high capital expenditures required for the construction of new plants, once a utility takes steps to

0:33:52 Thomas: Oh my You can see the teardrops in the memo as he was writing this, like, guys, I'm going to try to keep it together, but there's long lead times. Yeah, the long lead types. Oh, it gets me every time.

0:33:57 Lydia: Comply with the rule, its actions are not likely to be undone.

0:34:09 Thomas: Okay. OK, that's up to it.

0:34:11 Lydia: Yeah. As the EPA administrator has stated, the Clean Power Plan is being, quote, baked into the system right now, citing a BBC interview.

0:34:20 Thomas: Dum, dum, dum. Mm hmm.

0:34:21 Matt: This the BBC interview. Yeah.

0:34:24 Lydia: Solar plants are not built in a day.

0:34:27 Thomas: Solar plants are not building. What does that mean? OK, but it wouldn't it wouldn'T be a day, though.

0:34:29 Lydia: I don't know. It's expensive and resource intensive, I guess, is what he's saying.

0:34:30 Matt: We need years of them.

0:34:34 Thomas: I don'T OK, I DON'T this

0:34:35 Matt: You're getting years

0:34:34 Lydia: But also just ask for a two -year extension. Just ask for two-year extension.

0:34:36 Matt: And years. Right. Yep.

0:34:39 Lydia: And none of that matters then. And then the states that don't ask for the two-year extension probably want to be moving towards that anyway and are willing to spend the resources on that.

0:34:47 Matt: Yep.

0:34:48 Thomas: Is ridiculous.

0:34:50 Matt: And so yeah, then the next thing is actually just another thing what this footnote is telling you, the next paragraph is just about the Mercury thing. And he's complaining at the end and citing an article about how it was the majority of power plants are already in compliance or well on their way to compliance by the time they've hit the rule on Mercury emissions. And now check out his, he says, I recommend granting the state. Check out his signature there when we're talking about the little boy.

0:35:10 Lydia: Sincerely, capital JGR slash lowercase JBT. Oh,

0:35:11 Thomas: What the?

0:35:13 Matt: At first I was like he's it's a split personality it's a jekyll and hyde situation here but no that's his law clerk uh jbt yeah so

0:35:21 Lydia: That's actually what I figured. I figured it was somebody who was like putting this together on his behalf, but

0:35:25 Thomas: But IT looks like they're two lovers who carved their initials into a tree.

0:35:28 Lydia: Into a tree yeah a little

0:35:30 Matt: You could put a heart around them pretty easily yeah

0:35:31 Thomas: Yeah, what what how is that your signature? Am I crazy? I guess they're just they're issuing so many of these they're doing a quick thing or something it does

0:35:31 Lydia: Little heart do you think his law clerk is required to put it all in lowercase because john roberts wants all the uppercase yeah so people

0:35:44 Thomas: Seem pretty intentional right unless that he was that one unless the law clerk's that one poet that doesn't do capitals

0:35:48 Lydia: Don't get confused ee cummings

0:35:50 Matt: It's kind of weirdly kinky I don't know uh

0:35:53 Thomas: Yeah it does there's sexual energy coming off this signature line let me tell you yeah well yeah when he's not busy fucking coal literal coal he's he's He's busy doing something with JBT.

0:35:53 Lydia: It's a dom and sub

0:35:57 Matt: And this memo frankly I mean it's crackling with you know

0:36:07 Thomas: I don't know what. You know, I think we should take a break real quick before we get to the, I don' t know, what is next, Matt? We got the response.

0:36:05 Lydia: Wow I agree well

0:36:10 Matt: We got a just a bit more memo and then we'll get to going Yeah.

0:36:17 Thomas: I do want to hear, I see, do we get see any responses to the memos?

0:36:19 Matt: Yeah. Yeah.

0:36:20 Lydia: Yeah well we'll leave everybody with the dom sub vision of john roberts and his law clerk enjoy joy.

0:36:26 Thomas: That Nightmare is brought to you by our patrons at patreon .com slash law.

0:36:29 Matt: Allegedly.

0:36:31 Thomas: And I've got to thank the middle third of them. Them. These are the patrons whose names are in lowercase below our uppercase letters.

0:36:31 Lydia: Thank you, Matt. To our uppercase letters.

0:36:43 Thomas: I'd go lowercase for these patrons. I'm just saying.

0:36:47 Lydia: What an offer.

0:36:51 Thomas: Anyway, I clicked a weird button, but I think I can still see it. Hold on.

0:36:52 Lydia: Of course you did.

0:36:55 Thomas: Thank you, too. When you read this, I will be in trial against a huge insurance company. Wish me luck. Oh, hey, give us an update on that if you can. It's been at least a week of that, right? So So good luck. We are on your side. I'm pretty sure. I can't imagine a set of facts that would not leave us on your side. A negative phenomenon. 404 error. Username not found. You got to fight for your right to ex parte. Jay Sank, David Souther, vehicular man's laughter, offering all pigeon patrons free rides to their local library for open access to technology.

0:36:59 Lydia: Update. Yeah.

0:37:25 Thomas: It's not pigeons. It's seagulls. But okay. It's nice. It's a nice thought.

0:37:25 Lydia: I like the update.

0:37:31 Matt: We're broadening. That's good.

0:37:34 Thomas: Well, what if a seagull goes and he's like, I'm just doing pigeons? You know, I don't know. They're like, wow.

0:37:38 Matt: It's true. It's sure.

0:37:40 Lydia: Avian discrimination.

0:37:41 Thomas: Yeah. And then it'll be like, do you think all birds are pigeons or are, you know, it'd be like a real racist thing. What are you?

0:37:43 Lydia: Can you tell the difference between

0:37:47 Thomas: What are your John Roberts? Yeah.

0:37:47 Lydia: Pigeons and seagulls?

0:37:48 Matt: All bird lives matter. That's right.

0:37:51 Thomas: Holes and chunks and holes and chunks. And holes and chucks. Is that like the boots and cats thing? Maybe like holes and chunk. Chunks and holes in chunks. And it makes a little beat. The Chunk Knobbler. Today's episode is brought to you by the letter something cavalry thomas freeman cajun killer fraud fish he hates everything chris simpson gavelhead chucking away anonymous akila mark schultz et and the cincinnati kid thank you so much patrons we'll take a quick break and uh move on what right matt uh now we're going to get to the rousing opposition the the the uh the andorian so you know uprising against the the the tyranny of john roberts

0:38:33 Matt: From radical left to Stephen Breyer. Yes. Which I would

0:38:34 Thomas: I suspect it'll be a lot of this is irregular yeah Steve

0:38:39 Matt: It slightly differently. Yes, I will say that throughout the rest of these memos, he's referred to as Steve, which really throws me like he's not Steve. He's a Steven, but apparently they call him Steve, so now we know. No, I don't see it.

0:38:51 Thomas: He's not a Steve

0:38:49 Lydia: I don't know. I think that's kind of sweet.

0:38:53 Thomas: Steve yeah if he weren't that guy if he's just if he never he was never the Chief Chief Justice, and he's only a math teacher. He could be Steve.

0:38:54 Matt: Yeah, it is. Yeah.

0:39:03 Thomas: But you can't be the Chief Justice and be Steve, Chief Justice Steve. No, especially

0:38:57 Lydia: I dunno. I

0:39:03 Matt: That's true. John, that's solid. That's solid, but you

0:39:09 Lydia: Dunno. I mean,

0:39:10 Thomas: When you're crying over coal. Then you should be like Stephen, Stephenifer of the, you know, it should be like more fancy with his fucking monocle and his coal. Anyway, really?

0:39:17 Matt: Could have a Chief Justice Matt, obviously, not Matthew. That's no question on that. Let's move on. I would issue an order in these applications along the filing line.

0:39:24 Thomas: You'd have to go by Matthew. Sorry.

0:39:26 Matt: Nope. Nope. Well, it's never happening anyway. Don't worry about it. So I would issue an order in these applications along the following lines is what he says. And I'm not going to read this. I'll just tell you that what he's suggesting, as Lydia continued to point out, is that maybe we could just let the states seek extensions. And if they don't get their extensions, they can come crying back to us.

0:39:27 Thomas: That's how it works. Yeah.

0:39:44 Matt: Pretty reasonable, I think. So let's pick up from his proposed language and I'll read from there.

0:39:49 Lydia: Let's see. I prefer this temporizing order to a grant of these stays for several reasons. First, it is unusual for this court to issue a stay of an agency's order during the time that the Court of Appeals is considering its lawfulness.

0:40:02 Thomas: Unusual.

0:40:02 Matt: Unusual.

0:40:03 Thomas: Wow, Briar.

0:40:04 Matt: Didn't plan that.

0:40:05 Thomas: What a hero.

0:40:05 Matt: UnUSUAL. Yep.

0:40:06 Thomas: Fucking lawyers, man. Just, sorry,

0:40:09 Lydia: Second, issuance of the order now may prematurely suggest a view on the merits of questions that now seem difficult. We do not yet have the Court of appeals view of the matter. Third, it is difficult at this point to say that but the absence of a stay will cause irreparable harm. With respect to the private applicants, the order does not require any company to take action for six years until 2022. If they lose in the court of appeals, they may ask us for a stay then. While I concede that advanced planning may be necessary, I do not see how a few extra months will make a significant difference, snaps from Lydia to Steve.

0:40:41 Thomas: I tried to zoom in and it like scrolled down half the page. My fault.

0:40:47 Matt: Little further.

0:40:47 Thomas: You're on third. Okay, why did the zoom in do that? Oh, it probably resized everything.

0:40:49 Lydia: Go down, there.

0:40:52 Thomas: That's what it did. Okay, sorry about that, everybody.

0:40:55 Lydia: Respect, to the states, the Solicitor General points out that to receive from the EPA a two-year extension of the current september 2016 deadline until september 2018 a state need only identify the approaches if any under consideration describe opportunities if any for public input and explain why the state requires additional time oh yeah please

0:41:09 Matt: If any. That's so easy. It's so EASY.

0:41:15 Thomas: Well, and I have to imagine, I don't know, Briar's not a very like confrontational guy, but I have, but I half to, I half imagine that Briar Yeah. Yeah, I don't know why I said Chief Justice earlier. I meant just the Justice Supreme Court. Why didn't anyone correct me? Um, I mixed it up.

0:41:19 Lydia: Steve I'm just kidding I thought

0:41:30 Matt: I thought it was funny.

0:41:30 Lydia: You were giving him a promotion. I thought it was nice.

0:41:33 Thomas: He, he's more, we, as much as I don t like him, he would have been a better, uh, he for sure.

0:41:33 Matt: It's why he can't be chief.

0:41:38 Lydia: Thank you.

0:41:38 Thomas: But I imagine in Steve s mind, in Steve's mind, he's thinking, um s being absolutely devastated, right? And this is one one of those like you're this is an insult this is a huge I'm devastating you right now you're devastated because it's but like I think what we've hopefully learned is that that just doesn't work on shameless republicans you know you can't be like it it is it is unusual to issue

0:42:00 Matt: Yeah no it's not unusual. It has never happened before. It just never been done.

0:42:04 Thomas: And and and like I think it's so understated well if any the approach is if any like I imagine in his mind he's absolutely like owning him right now and he is factually but like and and not that I don't know if it would have made a difference you know like I don t know if it would make a difference if the the justices on the left ish here had been more like hey dummy like what are you talking about well I don' t know it might have I don'' t know right

0:42:20 Matt: Sounds

0:42:30 Lydia: I'm sorry. Like for me, I also don't know why you would continue to communicate via memo because like getting that from the chief justice, I'd be like, I would be like can we like meet in person? Can we all just get together? Like why are we going to write this stuff back and forth? Like can we just have a conversation? Because you're being kind of crazy right now, John. Like this doesn't make any sense. It's weird to me that it's like, I

0:42:51 Thomas: I think this is how they do things right I mean this is the yeah

0:42:52 Lydia: Guess. I don't know. I mean, that's

0:42:53 Matt: Like you may not be Supreme Court material, I'm sorry. You have to do these memos, it's required, apparently. It's just how they've always done it.

0:42:58 Lydia: Fine. I don' t want to be. It's so dumb. It's

0:43:04 Matt: Yeah, it is.

0:43:04 Lydia: Dumb. I don'' t know.

0:43:06 Thomas: I do think I do they ever well for this kind of thing so for normal decisions they do eventually talk it out somewhat right like they don't just write or I can't like

0:43:09 Lydia: I'm just saying, like, this

0:43:15 Matt: They conference the cases and they get a sense of where they're at and that's how they figure out who's going to write what. But the memos are the main way.

0:43:20 Thomas: But for these ones I don't yeah well but for and for this weird shadow docket thing that they're inventing I don'T know that they ever got in the room together right yeah so to so to lydia's point like it yeah if if I I think you can write a menimo but it would be nice if they also had a fucking meeting about it at least so you could see like hey zoom call

0:43:28 Matt: No, no. This is over a weekend most most of it. Five days, yeah. Or a Zoom call or whatever. Yeah.

0:43:33 Lydia: Is so crazy. Like, any other workplace, any other workplace you get a crazy memo, it's likely going to be followed up by a meeting of the parties impacted, right? And like, let's actually figure this out. What are you trying to say here?

0:43:47 Thomas: Briar should have sent a memo back that just said see me you know or like or whatever like the teacher kind of like uh this is not yeah yep

0:43:56 Lydia: Allowing the EPA to entertain such requests. I think that's where I am. Yeah. In the first instance has the virtue of allowing the agency to proceed with those aspects of the rule that are not challenged here, as well as giving the EPA the opportunity to respond to requests for an extended deadline in the first instance. If the EPA grants a request, we will have more than enough time to hear and decide the matter. If it's not, we'll have to wait and see. If the CPA denies the applicant's request, they can quickly return to us. Moreover, all of the applicants remain free to renew their applications for a stay when the D.C. Circuit issues its decision, which it has agreed to do on an expedited basis. Yours sincerely, S.G.B. slash Scribble Law Clerk.

0:44:28 Thomas: We also have the sub dom relationship here I guess that's just how they do it what don't do what what

0:44:34 Matt: I noticed the libs don't do that. So yeah, a couple of things. Oh, the slash thing, I don't think. I think they're just signing their own names. We'll get there.

0:44:44 Thomas: There is a slash thing he is what the he briar

0:44:46 Matt: In the next memos, the liberals. We're going to see more of them.

0:44:49 Lydia: But he is.

0:44:51 Matt: Yeah I'm sorry, but I'm talking about the more liberal justices.

0:44:50 Thomas: Is it's briar yeah okay yeah

0:44:53 Lydia: The women.

0:44:54 Matt: So do Meyer and Kagan, sorry, in my mind.

0:44:55 Thomas: Fair enough that was sort of like how I mixed him up with the chief justice because they are of a yeah he's not quite fully to the left I

0:45:02 Matt: Right. So this is the rejoinder from the Chief Justice. We don't have to read the whole thing, but he's basically like, no, I meant it the first time. He thinks there are no aspects of the rule that aren't challenged, that the whole thing is, yeah, yeah.

0:45:11 Lydia: So sorry. Like, you guys get emailed. When it goes back and forth like this, it is so obnoxious. I just like, like, just go talk to each other. Just hate this. I mean, I'm glad we have this, but

0:45:22 Matt: This is, yes,

0:45:22 Thomas: I mean I guess what's more obnoxious is just the chief justice like that's the thing that matters here.

0:45:25 Matt: It's good to have. Right, and also, honestly,

0:45:30 Thomas: Not the concept of memos.

0:45:31 Matt: I'm surprised there was this much deliberation, that they do this much deliberation on shadow docket cases. I mean, it's not very much for something that's this consequential for a decision that is going to change the face of the power industry, but it's still more than I would have expected. I would love to see, and I hope somebody leaks the ones from the birthright citizenship cases, both the injunction and the last argument, because there must be some fun stuff in there.

0:45:49 Thomas: We need, yeah, we need somebody to hack the Supreme Court or something. Russia, if you're listening. Not

0:45:54 Lydia: Anonymous even,

0:45:53 Matt: Because Alito must have been making an impassioned argument for why we should actually let this come to effect.

0:45:55 Lydia: If you're listening, like somebody do it.

0:45:57 Thomas: Anonymous doesn't do shit. I always see that they're going to do, I know.

0:45:59 Lydia: I know. Well, that's why I'm calling on them. Prove

0:46:02 Thomas: I also see that there's a lot of I always say they're gonna do something and then nothing happens. I feel like somebody, somebody do it. Anyway, poor Matt.

0:46:02 Lydia: Yourselves.

0:46:08 Matt: So I want to also shout out to our favorite podcast, The Daily. The way they put it was that the shadow docket will bypass a lot of the time -tested steps of the court, which is an incredible way to say, just completely jumped the gun, absolutely jumped the gun in a way that has never been done before, bypassed the steps. Yeah, he's saying yes, is not typical, which is to say it's never been done before but it is, did you hear the first time about how much it's going to cost my friends in the power industry, the energy industry? Did you not catch that?

0:46:24 Thomas: Tested yeah yeah yeah but review is sort of what has been described as the most expensive regulation ever imposed on the power sector net costs have been estimated made a run as high as 480 billion from 2017 to 2031 if you divide that out like what even and

0:46:45 Matt: Can you believe it? Will nobody think of the Enrons?

0:46:53 Lydia: Well, yeah. Yeah, exactly. Divide that out and what are we talking about? And then also across 50 states or across companies or however it's divided up.

0:46:58 Thomas: That's the industry yeah or or whatever yeah companies yeah

0:47:04 Matt: Right. Once again, he gives the Mercury as the example of why this is so bad that we have to stop it because we could have another situation on our hands where there's a reduction in emissions.

0:47:13 Thomas: We can't have that yeah

0:47:15 Lydia: Also, let's look at net costs. Let's look at how much those companies take in over those years and then how are they going to offset those costs? They're going to push them onto consumers like they always do. So knock it off. Off.

0:47:29 Thomas: There's nothing unique in that regard of issuing a stay here what what does he get that oh the second one second point

0:47:34 Lydia: Where's at the second point.

0:47:36 Matt: Regard, as to the merits, basically he's repositioning the argument of like, well, it's normal for us to say things when we think that the party's going to win.

0:47:43 Thomas: Yeah when you're at that part of the process stupid okay

0:47:46 Matt: Great.

0:47:48 Lydia: Third point, the proposed order is insufficient to avoid irreparable harm.

0:47:52 Thomas: As in briar's version right yeah

0:47:54 Lydia: I think so, yes. While the D.C. Circuit has expedited briefing in this case, the court has not, quote, agreed to issue its decision on an expedited basis.

0:48:03 Matt: Think that's implied, John. He's really nitpicking here.

0:48:04 Thomas: My god dude they said they'd hurry but maybe they're only hurry the first part and then they won't hurt dude come on oh

0:48:07 Lydia: John. Remains highly likely that this court will not issue a decision until 2018 at the earliest, Long after the real world.

0:48:18 Thomas: Now he's now he'S upped it by a year that's when you know you're dealing with a good faith arguer it might not it might be 20 million it might we might never happen ever felt

0:48:25 Lydia: Those goalposts a little bit. After the real -world impacts of the rule would have been felt in the absence of a stay. Okay.

0:48:35 Matt: And I'll tell you at the end why it took till 2022. That is a good reason for it.

0:48:35 Thomas: By whomst yeah yeah

0:48:37 Lydia: I, yeah, I think also if there is something where like the decision isn't coming out for an extended period of time, I mean, they could also then petition the Supreme Court at that point, too, couldn't they? And say, like, because of the time, the timing of what we're seeing in the D .C. court versus what the expectation is of the EPA, like can we get some help here? Or I don't know. I mean, like I feel like there's probably something that could have been done in the meantime.

0:49:05 Matt: Yeah along

0:49:05 Thomas: Like when's the next time in the process they could have actually legitimately gotten a stay wouldn't be after the the the circuit court ruling and then they could Have done a writ you know cert for the supreme court or whatever and then They could have then the supreme Court obviously because clearly Roberts wants to to do it, could have issued a stay then, right?

0:49:18 Matt: With that. Yeah and we would have had the merits of a decision to review and to say this actually this decision is wrong, and we think it's wrong.

0:49:30 Thomas: So what he's talking about, is it best like a year or something? I don't know, right. I mean, there's

0:49:36 Lydia: But I guess my question would be, would there be any say say the D。C. Circuit Court did take until 2018, September, the end of 2018. Just just say they did. Like if it's getting closer and closer to that deadline after a two -year extension has been filed and then the EPA is expecting that.

0:49:44 Thomas: Way. There's no way. Sorry, but he said this court, when he said this court in 2018, he meant the Supreme Court. There is no chance the circuit court is taking, yeah. The circuit court would take maybe, what Matt, like, they already agreed expedited, Like it's

0:50:03 Matt: They're going to expedite it, so it's going to be months.

0:50:04 Lydia: I see this

0:50:04 Thomas: Going to be within the year and then the parties, the Monopoly man could take that and go to the Supreme Court and be like, hey, we'll issue a state because it's so hard for us to 2%, 2%. Cool. And then John Roberts could cry about it and then that would be fine. So at most you're talking about the addition of a year, maybe, maybe. Maybe. And the deadlines they're talking about, they can appeal for the, or they can just write, basically, it sounded like, by Breyer's description, a form letter to get an extension.

0:50:04 Lydia: Court. Yeah. Okay I see what you're saying. Mm -hmm. Yeah, right. Yeah gotcha.

0:50:34 Thomas: Like, it sounds like almost nothing required to get An Extension of two years, which would easily cover that period. So, this is just ridiculous. Unbelievable.

0:50:34 Lydia: Yeah yeah

0:50:43 Matt: It's who you care about and the harms you care about. It says a lot. It comes out quick. He's actually getting deeper on that BBC interview I mentioned. He's talking about the rules going to be firmly entrenched and how they just can't afford to let this go into effect. You can keep going, but he's just restating his previous points.

0:50:58 Thomas: Hold on, I love this. This is fantastic. This Is fantastic. Fantastic. Proposed order. And again, I think he's talking about Breyer's one that he put in his memo. The proposal order forces each state to engage its regulatory apparatus and expend resources well before that date. Or yeah, post -order, maybe I'm wrong on that. But anyway, I wanted to read this. It does not, yeah, okay. I think he's talking about Breyer's version. It does NOT assuage my concerns to note that if the applicants lose in the court of appeals, they quote, remain free to renew their application for a stay at that point. Okay, you ready to hear why? Because that's basically the point that I just made, I think, right? Yeah, yeah. Because if they lose, they can just apply for it. Okay, so he's anticipated that, everybody. You ready? Ready? I have little doubt that if the applicants renew their stay request following the panel's decision, the opposing parties will ask that we refrain from acting until the conclusion of any en banc proceedings.

0:51:49 Thomas: Okay. They'll ask, but you're already doing a thing that's fucking insane. So why would it matter? I'm sure they're asking you not to do this.

0:51:55 Lydia: You could do it then too. Too yeah yep

0:51:58 Thomas: Why would it matter? They'll asked. And then again, there's more too. And that it's like Lydia pointed out, like this is the this is the bad faith arguer like just oh and oh I came all this way too and like oh also it's raining and just that and then again while we consider a petition for certiorari and then against again while we decide the merits of the case while each of these discrete periods and it's still it's so good while you've these even in his fucking version of it while each of these discrete periods may only be quote several months each passing day sees the rule further entrenched de facto if not de jure Yeah, but you're the de jure department. You do de jurez. You're not de facto. Don't worry about that. Your job is de jures. You are the chief justice of the de juré is

0:52:32 Lydia: Crazy you guys

0:52:42 Thomas: Your job.

0:52:42 Lydia: Can upend whatever you want when it gets to when it gets to your door I mean like that who cares please

0:52:45 Thomas: This is so insane. The idea that he can't do this because they can't wait until after the decision because the opposing parties will be like, don't issue a stay. But they're already doing that. They already don't want you to issue a stay. Am I wrong, Matt? Have I lost you?

0:52:58 Lydia: Don't yeah yeah

0:53:04 Matt: Yeah. Right. No. You're with me. I'm with you, rather.

0:53:06 Lydia: Corporations

0:53:07 Thomas: Doesn't sound like it. Are you looking something up? What are you doing?

0:53:11 Matt: I was trying to remember what they did with a couple of other issues while I'm listening to you, but I wanted to compare about things like temporary protected status where people are going to lose their jobs and get deported. I typically don't care quite as much about that sort of thing.

0:53:28 Thomas: And in case you, as you gather your thoughts, in case people didn't read the New York Times article, which I think makes this clear, pretty, you know, pretty clear. What's, what seems to really be going on in addition to the fact that he's the Monopoly man and all his friends are the Monopoly men, Matt, let me know what you think. It seems as though he's incredibly pissed pissed off and maybe the other conservatives are too by this interview that you referenced where someone was like well it's basically they're already doing what we want them to do and it's baked in and they see that as such an affront to the supreme court oh there are they think they're above us to be able to like encourage the power utility company whatever to like start not killing the environment you know and like they because he referenced that again here he's so clearly clearly offended by this BBC interview that where they said like, well, it would probably like, even if it gets struck down, they'll probably already have made changes. And he like, can't, he can't countenance that like an asshole.

0:54:25 Matt: No, can't happen. And again, I had to go back and look, and I'm sorry, I was distracted for a minute there because I had to check the TPS stay decision. And I was correct in what I remembered. So in October, they vacated the previous stay of the end of TPS for Venezuela. And as we've talked about before, there's temporary protected status program for a bunch of different countries. They did not explain themselves. There's a long dissent from Justice Jackson saying the things you'd expect, that this is really going to upend people's lives. And maybe we shouldn't be just so readily overturning this decision by the district court to keep it in place until they figure out what's going on. So I think that's a perfect contrast of real people. Of course, there are people from a country that maybe the Supreme Court isn't as excited about protecting, people of a race that the Supreme court has historically not been great with or care about. And versus my friends in the power industry have assured me that this is going to be the most expensive regulatory change ever made. We've got to act immediately. And versus all of these people I know, I know so many Haitians who have been so worried about losing their status, right? We're talking about Venezuela on that one, but obviously, they're going to be reviewing Haiti as well. I mean, it's just the priorities, what you care about and who you care about. It comes

0:55:32 Matt: Through clear. Absolutely.

0:55:32 Lydia: Over people every time yeah

0:55:34 Matt: That's right. And they're bigger people and more important people.

0:55:36 Thomas: And, also, was that still within the actual normal procedure? Or I guess we should talk about like, still not clear on what the shadow docket, like this launched the shadow docket. Right. Essentially like this kind of thing. And I'm Still unclear on, is that normally before a decision has been reached? Is that what that is? Like if you were to define the shadow docket, so, but is it normally before even the lower courts have done anything?

0:55:54 Matt: That is what it is. Yeah. Not usually to this degree, no.

0:56:02 Thomas: Yeah. That's what, that's the part I'm kind of stuck on. Cause even what you described just then, it sounded like there had been a decision in in a lower court with a temporary protective status. So even those are like more within the normal course of business, right?

0:56:04 Matt: There's no decision really to appeal from. Yeah? Right. Yes. There was. That's right. Yes. But as I said at the beginning, the really unprecedented thing about this is you're directly stopping an agency action when the courts haven't done anything yet. And that is a terrible precedent, terrible precedent.

0:56:25 Thomas: Just, just wanted to reiterate that. Yeah.

0:56:27 Lydia: Like egregious even for the shadow docket yeah

0:56:28 Thomas: It's ridiculous.

0:56:29 Matt: Yes. And no matter what you think the court should be doing or not doing, that's a really bad idea for everybody involved. So this is not on Letterhead, you'll notice, this is the Sotomayor

0:56:39 Lydia: This is Kagan

0:56:39 Thomas: We got Kagan here.

0:56:40 Matt: I just wanted to read the first sentence because I just think it's very funny.

0:56:44 Lydia: Agree with Steve that we should direct the states to seek an extension from the EPA before asking this court to intervene.

0:56:49 Matt: I agree with Steve. It's just such a funny thing to read in the annals of the Supreme Court.

0:56:53 Thomas: What Steve said.

0:56:56 Matt: But also, she's advising. This is such a moderate position. The extension is available. They should be able to seek the extension. And again, our leftiest people are still not even saying this was passed by Congress for a good reason, that there's a climate emergency. They're not really even talking about the fact, and I understand this is all kind of last minute, this is a very rushed process because it's a stay application, but they're not talking about that fact that we are staying in agency action in a way that we never do before or haven't done before. Maybe we'd want to take a step back and not do that. Sotomayor kind of gets into that a little bit more. But she is going to say in the second paragraph, to be fair.

0:57:32 Thomas: Yeah. Well, I think, yeah, maybe we should take a look at that. But she also says like, hey, we could, we can include language of like, you know, DC circuit like make it quick yeah we've

0:57:40 Lydia: Hear your concern on, you know, that they might not issue a decision as timely as you'd like. So why don't we include language that encourages them to do it?

0:57:46 Thomas: Got monopoly men waiting can you yeah

0:57:48 Lydia: Yeah, yeah. The unique nature going down to the second paragraph, the unique nature of the relief sought in these applications gives me real pause. The applicants ask us to enjoin a regulation pending initial review in the Court of Appeals. As we often say, quote, we are a court of review, not of first view.

0:58:04 Matt: That's right. There it is.

0:58:05 Lydia: And then I'm

0:58:05 Thomas: I like the way matt put it better yeah

0:58:07 Lydia: Skipping ahead from her little citation. As far as I can tell, it would be unprecedented for us to second-guess the D.C. Circuit's decision that a stay is not warranted without the benefit of full briefing or a prior judicial decision. On the merits, this is a difficult case involving a complex statutory and regulatory regime. Although the party's abbreviated discussion of the issues at stake here makes it difficult for me to determine with any confidence which side is likely to ultimately prevail, it seems to me that at this stage the government has the better of the arguments. The chief's memo focuses on the applicant's argument that, quote, the best system of emission reduction refers, quote solely to installation of control technologies, for example, scrubbers. The ordinary meaning of system is, in fact, quite broad, appearing to encompass what EPA has done here. Of course, we would want to consider this term in the larger context of the Clean Air Act's regulation of stationary source emissions, footnoted, and we might well decide to place some limiting principle on that term.

0:59:04 Matt: So this is a little getting into the weeds here, but she's making the very good point in this paragraph because, I mean, I'm already feeling myself starting to drift off as I'm hearing this, it's complicated. It's really complicated. Let's slow down.

0:59:13 Thomas: And you have to keep in mind the composition of the court at this time so it's not quite the same mindset as now where it's just like yeah obviously you guys are gonna do your fucking stupid thing we only have three votes essentially because they're I mean kennedy at this time was the was the swing justice right so there was I don't know how good Kennedy was on these issues but it's not as though like it's interesting to think because my first impression was like well it does seem like she's really trying to do the thing where they're just trying to get what they can in the face of this obviously right -wing court and it was still an obviously right right -win court for the most part but it wasn't crazy to think that they could sway Kennedy and this could could go the other five for the other way. It wasn't like crazy for her to think that. Right. So it's, but

0:59:20 Lydia: Dang.

0:59:58 Thomas: I also, part of me is like, why are you even arguing on this? I mean, I really think there could have been far be it for me to second guess the Supreme Court justice that, that I usually agree with, but like, I feel like a little more emphasis on the fact that this is insane. Why are you doing this? Yeah. I mean they did, but it's so polite, you know, see

1:00:14 Matt: And we don't have the memos from Scalia, Ginsburg, and Kennedy, I believe. Which also kind of tells you about this was like, I don't know. I'm not sure exactly who leaked this or why. And of course, that's the only thing the conservatives are concerned about right now is finding that damn leaker.

1:00:21 Thomas: That. Yeah. Yeah, I think it's time to do another investigation that nothing happens about oh

1:00:31 Lydia: Of course.

1:00:34 Matt: So we got another, I agree with Steve, that just throws me every time. But yeah, we can keep going. Basically, she's making a very reasonable argument and she's going to be dissenting in West Virginia EPA ultimately, obviously. So more over the applicant's assertion, we can read that part, I think, a little further down. Yeah.

1:00:50 Lydia: Moreover, the applicant's assertion that absent relief, they will have to begin preparing for those regulations by taking coal plants out of service or beginning construction on new renewable energy plants in the limited time between now and the issuance of the DC Circuit's opinion is both entirely speculative and highly doubtful. The rule imposes no requirement that any plant or class of plant be shut down, nor does it require that any particular type of plant be constructed. Rather, it requires only that states meet an overall emissions target, a goal it gives the states significant discretion to pursue by adopting whatever means they think best, including the adoption of more effective scrubber technology, carbon sequestration techniques, or a cap -and -and-trade system.

1:01:07 Thomas: Jesus yeah

1:01:31 Lydia: I cannot imagine that a regulated entity would take such extreme measures as shutting down a coal plant in anticipation of state regulations that, when promulgated may not require anything of the sort.

1:01:30 Thomas: That's a good point this is ridiculous yeah

1:01:42 Matt: There it is. That brings it right in, right? That's important facts.

1:01:44 Thomas: It's just insane and now I imagine we've seen the escalation is is uh is roberts going to come back with an even more now it's 2019 now it'S GOING TO BE JUST SHUTTING DOWN EVEN MORE YOU KNOW LIKE HE KIND OF of escalates each time does he respond oh

1:02:00 Matt: There's no other. Those are the two Roberts memos.

1:02:01 Thomas: Other roberts oh okay oh

1:02:03 Matt: Yeah, she makes again the point about how long it's going to take. And this is the Seto Maru one. The date is a little weird.

1:02:07 Thomas: There's no name on it that's the one you were saying

1:02:09 Matt: So this is a draft. This is very strange. Oh, and I also want to point out the signature for Kagan. I really like her. Did you see her signature? It's just her first name. Yeah that's

1:02:13 Thomas: Sorry oh wait or is that a slash there yeah

1:02:19 Matt: It could be actually. You know you might.

1:02:20 Thomas: Because they've all been slashed it might be because yeah

1:02:24 Matt: Yeah it's all one hand. That's one thing they're not trying to distinguish. Yeah, so this is the Sotomayor draft and it's dated after the time, which is a little strange, that the state issued. So there's speculation that this might be wrong, the date, right? Mention before, just the procedural thing, this is very important. This is one of those things where the law specified that if you're going to challenge it, it goes straight to the circuit, that it skips the district court. So that's why we're not talking about the district court, that's why there's been no decision below, that why it's so important that they're intervening in a case where there's no decision whatsoever.

1:02:29 Thomas: That's interesting though hmm huh Right. Right, right. Yeah. Yeah,

1:02:57 Matt: Okay, so this is Sotomayor, she's gonna be doing what Sotomaior does and really doubling down on what Kagan says, and she's going to say it in more strict language, but still not really talking that much more about what this is going to do to the court and to the environment or any of that. But again, shadow that's what happens okay

1:03:11 Thomas: Want to emphasize there's been no decision, like you said, but there is one thing that has been like in layman's terms of decision, which is the circuit court decided not to issue a stay, like, and they went through more than this asshole's going You know, they had actual briefings of some kind, right?

1:03:25 Matt: Doubt that's right yep I

1:03:29 Lydia: I agree with Steve's proposal and Elena's supplement to that proposal. As Elena notes, it would be unprecedented for us to grant a stay before any court has reviewed this complicated and complex case. The statutory questions turn on the interplay of several provisions of the Clean Air Act. I agree with Elena that at first glance, the government appears to have the better argument. I do not think that the applicant's likelihood of success on the merits is so high as to justify granting this extraordinary relief. More importantly, I think our resolution of these issues will will be greatly enhanced by the views of the D .C. Circuit, full briefing, and our considered unhurried attention.

1:04:02 Matt: Like that I considered unhurried attention another deep burn it's

1:04:06 Lydia: Yeah. Moreover, the factual basis for the applicant's claim of irreparable harm seems hotly contested by the government and in tension with at least my cursory review of the record. For example, the chief's memos note that, quote, the EPA's own models show that the rule will cause immediate shifts in power generation as the industry must make changes to business plans today to meet 2022 requirements. Requirements. The agency's models show that the impact of the rule will reduce coal production, blah, blah, the 2 % and the 4 .3%.

1:04:32 Thomas: She's quoting the 2 % and 4 .3 %

1:04:34 Lydia: The government, however, has cautioned that the EPA model is not intended to predict any immediate changes in power generation and that drawing any short -term inferences from its highly stylized model is fraught with danger. According to the government, quote, the simplifications and constraints built into the model mean that it is not designed to reliably forecast the rule's impacts on specific power plants and then italicized, particularly in the near -term period at issue here, I .e. during the pendency of this litigation.

1:04:34 Thomas: Thing.

1:05:05 Lydia: In a declaration, an EPA official further cautions, quote, because of the inclusion of simplified modeling assumptions that do not capture all the implementation flexibilities available to states, near - term impacts on the power sector in the policy case case, italicized, will be overstated.

1:05:20 Thomas: Right. So this is like their essential policy document to be like, hey, check out the good this is going to do. Here's how it'll affect. It's probably more, I'm guessing, yeah, a bit more of a marketing document than anything else.

1:05:22 Matt: Even worse right

1:05:30 Lydia: It'll reduce by 2 % in these years. Yeah, yeah.

1:05:36 Thomas: Else. And they literally say, yeah, it's not designed with the assumption that there's going to be all these legal hurdles. And which makes sense because if you're trying to do projections for your plan and you're Trying to sell your plan, they might include like, here's best case scenario here. Here's what happens kind of thing. And you're not factoring in like a long legal battle, even though I'm sure they realize there would be one. And then what Dingus is doing, John Roberts is doing is saying, look at this. This is saying there's going to be reductions even right now, right? Even before any of this thing. It's like, that's not, that wasn't what they were. It'S just a marketing thing, man. They're just trying to say what good it would do.

1:06:20 Thomas: Essentially. It has nothing to do with what would happen before the law is even resolved on it.

1:06:26 Matt: She's about to point out in the next sentence there's marketing on both sides yeah

1:06:31 Lydia: Let's see where, sorry. Indeed, during the notice and comment period, industry commenters criticized the model for making predictions about closures in 2016 and 2017 that were overstated and empirically false. To the contrary, as the SG notes, Solicitor General, no applicant has identified a single real plant as opposed to a hypothetical, quote, model plant that is in immediate danger of closure absent a stay.

1:06:57 Thomas: Ridiculous.

1:06:58 Matt: So I mean it keeps going she's bringing the facts as she always does and you know talking about the actual economic cost the actual everything thing fighting back against the $480 billion thing. That is one view, a likely biased view as the chief's memo recognizes. It's closest that you get to any kind of personal sniping there. But yeah, so she's going to go on just to say, basically, there's unresolved factual disputes, all kinds of uncertainties. No way there's irreparable harm here. What are we doing?

1:07:21 Thomas: Yeah and I like just to put a number on it when he he said 480 billion and she's like well there's another one that says one to three billion annual

1:07:29 Matt: Right. So somewhere between those things.

1:07:31 Thomas: Oh my god oh boy so yeah interesting about the date and the not a name on it oh it's not signed either we don't get to see their signature

1:07:43 Matt: It's just a draft. So it's just, yeah, really makes you wonder where this came from.

1:07:43 Lydia: It's just a draft. Yeah.

1:07:46 Matt: But she's not saying it's not real. And of course, we have to hear from Samuel Ludo.

1:07:47 Lydia: Hmm. Oops. And

1:07:50 Thomas: Alito great take right well before we get to what alito says which we're all dying to hear his considered opinion uh we gotta take our last break and thank our last batch oh patrons thank top hall of famers here thank Thank you to Bob Loblaw's Law Podcast. Philly Basement Bar is currently closed for spring cleaning and reorganizing. Elect Thomas Smith President, American Honky Tonk Bar Association. Baltic Ate, Philip Kaiser. I came here to chew bubblegum and punch buttfelds and I'm all out of gum. The dub -t -dub reference. Gosh, that guy. Holy shit.

1:08:22 Thomas: Greg Gutfeld is, wow. If you haven't, you should listen to that. If anyone doesn't know that guy or hasn't kept track of the things he's saying, it's shocking.

1:08:18 Lydia: Buttfeld greg gutfeld yeah and we have more coming on that one too mitchell

1:08:34 Thomas: Coryn_Lann a string of unpronounceable characters Malaika Chandler RhondaTheDork.com Milo Meadsong is fighting petty tyrants Big Easy Blasphemy hors d'oeuvres in the court before we report Chris Waltrip FRED R GROOTHUIS Sam Donow Classic libtard and Mitchell all right we will take a quick break and then finish up here all does alito have to say who

1:08:54 Matt: You'll never believe it.

1:08:56 Lydia: He entirely with the chief's most recent memorandum and continue to believe strongly that a stay is warranted. Yeah.

1:09:02 Thomas: Would What a thought.

1:09:02 Lydia: In my view, the applicants are very likely to succeed on the merits of their claim.

1:09:07 Matt: I'm going to point out entirely, strongly, very likely, he's coming out swinging here. Here we go.

1:09:12 Lydia: I also agree with the chief that the irreparable harm the applicants face is immediate and significant. Any suggestion to the contrary is inconsistent with the EPA's own integrated planning model, the economic model underlying the EPA'S regulatory impact analysis of the rule, which explicitly anticipates the rule will begin to reorder the domestic power industry in 2016, not 2022.

1:09:33 Matt: There's that word again, reorder that Roberts used. It's an interesting word. It is not really a legal word.

1:09:35 Lydia: Reorder. The IPM model projects that the country's composition of power generation will change in 2016 including through the closure of coal -fired plants. For example, the EPA predicts that in 2016 alone, the CPP, he's not responding to, well,

1:09:49 Thomas: So if the last one was just a draft, I guess he hasn't seen that. Yeah, damn. Why was that just a draft?

1:09:56 Lydia: Interesting because then the next paragraph says, Sonia and the SG, so something did get get issued by Sotomayor.

1:10:01 Thomas: Maybe they didn't have the final version of that, but they, but something was issued. Okay. I also want to note just for, again, for those who might not be as just cosmically old as, as I now feel, this is back in a time when Alito and and Thomas were just the two assholes dissenting on everything. There was no, there wasn't.

1:10:21 Thomas: Yeah, this is 2016. There's not that many decisions that Alito was a part of that matter. You know what I mean?

1:10:20 Lydia: Old man yelling at cloud. Yeah.

1:10:28 Matt: Yeah.

1:10:28 Thomas: Like, correct me if I'm wrong, Matt, but I mean, they just were the two assholes consenting on everything essentially. And so the, it makes it even more absurd to be like, well, Alito thinks it's going to work. Like he just, he wasn't even, he was rarely in the majority in a way that was representative of yeah exactly this it's a totally different time than now yeah

1:10:42 Lydia: Like you don't matter. Yeah.

1:10:49 Matt: And Scalia too. I mean, all the jokes about him being Scoleto, right? That they were like the same kind of thing and they still didn't have that much power. And originalism is still seen as fairly fringe and not something we're doing all the time, different times.

1:11:01 Lydia: Sonia and the SG note that the EPA's model includes simplifying assumptions. Certainly that's true of this model as it is of all models.

1:11:08 Thomas: Let's you oh my god you asshole or

1:11:10 Lydia: Perhaps the model overstates as the SG contends as a possibility or understates as as the industry applicants contend, okay, the current impacts of the rule. But it is,

1:11:15 Thomas: Understates no no yeah

1:11:22 Matt: That's the kind of thing you might want to just hear some arguments and briefing on about how overstate or understate it is.

1:11:25 Lydia: Tell me more.

1:11:24 Thomas: Well but it's it's such a bullshit argument to be like Like, okay, they specifically said the model is not taking into account the legal crap that's happening and the delayed onset of the whatever. Like, the model ist assuming the thing goes into effect, is my understanding of it.

1:11:43 Lydia: That it goes into effect and that they can perfectly predict how every single state is going to implement the various changes. There's so many different things that the states can do now.

1:11:51 Thomas: But most importantly, they're admitting that it's if this goes into effect right away, and then this asshole is like, well, you know, models, they all have assumptions. Assumptions it's like no it's a little different to be like yeah but they're telling you that this one like they did the model it's not like yeah

1:12:09 Lydia: Well, and they're also telling you, and this is the assumption and that assumption hasn't been met. So why are we looking at that model? We already can throw out that assumption. That's no longer relevant.

1:12:16 Thomas: Stupid I

1:12:20 Matt: Yeah, I'm sure there's an expert on the power industry who could provide a lot more context for this, but I'm not taking anything he's saying at face value, obviously.

1:12:24 Thomas: Dispute

1:12:25 Lydia: Yeah. But it is indisputable that the agency's own model tells us to expect a substantial shift in power generation right now because of the rule. That's just, it's impossible. We should hold the EPA to its own best analysis of when the The, quote, generation shifting its rule requires its rule. What is will

1:12:37 Thomas: That when the generation shifting its rule requires will begin yeah well

1:12:47 Lydia: Begin? Thank you. Surely the EPA may not rely on this model to justify the cost benefit analysis of its regulation, but then disavow it as to, quote uncertain on the question of harm.

1:12:57 Thomas: Yeah but again if the harm you're talking about the harm we're talking about is the harm of not doing a stay allegedly you know like like Like, that's the harm he's talking about. The harm of not doing a stay a year earlier. Yeah, some months, probably, yeah, some several, a few months to a year early.

1:13:10 Lydia: Six months, six to 10 months. Yeah. Yeah.

1:13:16 Thomas: That's the charm. And isn't a contradiction for the EPA to use a model to say this is what will happen when it goes into effect. Thinks Like, if the thing is not stayed that they'll instantly be, like obeying the Obama rule. Rule that's that's not the epa literally can't even really say that like the epi can't mind read into what the power company or whoever the states and the utilities are going to do as a result of like the pending litigation it's just just such a bad faith argument

1:13:44 Lydia: It's also like really depressing when you think about it for like the EPA to come out and say like, no, no. No, it's okay. This is probably overestimating the good impact that we could have on our environment. Like don't worry about it. It is actually not going to be as good as we think it could. We are actually going to impact the world less good.

1:14:01 Thomas: In order to get get past the supreme court

1:14:03 Lydia: Like that is just kind of depressing. And this harm once incurred is by nature irreparable. Coal plants are not shuttered nor solar plants purchased at the drop of a hat. Of course, the administrator knows this, which is why she effectively implied that if the rule is allowed to continue in force, judicial review will be beside the point.

1:14:10 Thomas: How that's matt what does irreparable mean does irreperable mean not at the drop of a hat?

1:14:26 Matt: Yeah.

1:14:27 Thomas: Like, if you're like, that's irreparable. Why? Well, because I can't fix it in a minute. But what if you could fix it in two minutes?

1:14:27 Matt: Unlike

1:14:34 Thomas: Is that reparable?

1:14:34 Matt: CO2 emissions, we can fix CO2 admissions very quickly, so don't worry about it.

1:14:38 Thomas: What if you drop two hats, is my point. Like, if two hats are dropped, and you fix it, that feels pretty reparable to me. So fucking stupid.

1:14:40 Matt: Right, then yeah.

1:14:48 Lydia: Leads me to what is, in my view, the most pressing reason to grant a stay. Lay it on us, Samuel.

1:14:53 Thomas: Here we go.

1:14:54 Lydia: A failure to stay this rule threatens to render our ability to provide meaningful judicial review and by extension our institutional legitimacy a nullity god you are so dramatic yeah

1:14:58 Thomas: Here we got. Mm -hmm.

1:15:04 Matt: Incredible. But also, this is what undid their institutional legitimacy for the next 10 years. This series of things, this decision.

1:15:13 Thomas: And that's all based on a BBC ABC interview. That's what he's basing that on because a Obama official said in a way that may have very well been bullshit, by the way, it could have completely been bullshit because the, the presidency at that time, Obama, after they lost Congress, couldn't really do anything because of our stupid system. They might've been bolster, you know, boasting a little bit. Oh, well, and even if it gets struck down, it, they will have, you Know, they have, they, they've, they'll, they them trying to brag.

1:15:16 Lydia: A single bbc interview yeah yeah we will yeah yeah the environment will be improved like that's what they're saying

1:15:47 Thomas: Or that could have been them trying to brag that like, you know, we're so effective as leaders and negotiating that the utility company, whoever the power companies, they will have made these changes anyway. That could have been then entirely bullshitting to try to like, I don't know, for election purposes, for reputational purposes, because you don't want to get out there and be like, hey, we are ineffective. No one is doing anything as a result of what we do because they know Congress isn't going to help and And they know the Supreme Court's going to strike it down. They're not going to say that. So this whole bullshit is based on one BBC interview, which may be bullshit or not. I mean, even if it's not bullshit, that still strikes me as that's something that companies are willingly doing, you know, like if they're, if they'RE making changes in anticipation of something.

1:16:26 Lydia: Well we saw that with like electric vehicle mandates right like Like that companies, car companies started creating more electric vehicles. So it wasn't just Tesla or the random other thing. Like they were like, oh, no, this is actually going to be an important market for us to be in. And even if those rules go away, that mandate goes away, that's still a viable market. And I think those companies are happy that they actually entered it.

1:16:33 Thomas: And the idea, yeah. And so to try to put it in those terms, it would be as though if, because of a pending like policy there uh car companies were like well we're going to start shifting to electric cars and then alito is like well if we can't reach in and stop this policy way out ahead of time out of order like the normal course of business then that means we have no institutional power because the car company started making electric cars a little early it's fucking ridiculous Ridiculous.

1:17:20 Matt: Yeah. No, yeah. Like you said, it's total drama. And I just can't get my eyes off the expression, our institutional legitimacy, because I think most people, when they complain about the Supreme Court, rightfully right now, what they're complaining about is often shadow docket decisions. It's often things that are made because they set this precedent, and they're not even necessarily complaining about the merits, which the court's just getting to in a lot of Trump policies now, and honestly has been anti -Trump so far on the two that they've looked at, seems like. I mean, we've got the one decision from the tariff, so I think the birthright's gone that way too. But you know, this is institutional legitimacy. I don't think there's anything that's done more harm to the institution than the aggressive use of the shadow docket in this way.

1:17:32 Thomas: This. Yeah, yeah. I think the last two sentences are worth reading.

1:17:58 Lydia: These elite academic assholes that think that

1:18:01 Thomas: If if we fail to stay the rule and maintain the status quo, our which is not the status quo, by the way, our resolution of the merits will not matter because the regulated parties will have complied instead of robust just judicial review. Our opinion will be a mere postscript. But again, this is just about doing something months to a year early.

1:18:01 Lydia: They're better than everybody else.

1:18:14 Matt: They'll have been regulated. Right.

1:18:25 Thomas: If they were going to comply, then they were going to imply anyway, if they're going to apply as a result of that, like it's just ridiculous.

1:18:34 Matt: Absolutely incredible that in the course of a decision about like an actual climate emergency, the thing he's most concerned about, on. The real irreparable harm is to the Supreme Court. That's what he's ending this on, is that our opinion won't even matter.

1:18:36 Thomas: Unbelievable. Yeah. All because an official said something in an interview that was probably bullshit.

1:18:50 Matt: And our institutional legitimacy, because we didn't act rashly and quickly enough.

1:18:55 Thomas: Unbelievable boy.

1:18:55 Matt: When you think about all the other things that they didn't act on when they're asked to, or they did act on to enforce things that were pretty bad. And I just keep coming back to TPS and to the loss of those jobs, right? I mean, the status quo, I'm just... When the status quota is bad, yeah.

1:19:09 Thomas: You know, we, we actually need to read Kennedy's it's so short and I didn't wow that is holy

1:19:13 Lydia: Go to Kennedy. The

1:19:14 Matt: Sorry. Yeah, it is in there. Yeah, let's do it.

1:19:15 Thomas: Shit okay so Kennedy again the swing justice is kind of he Kennedy probably had the power to make or break this thing don't you think Matt like I is it the same threshold do they still ultimately need well

1:19:17 Lydia: Swing vote okay

1:19:26 Matt: It's a lower threshold for a stay than for taking it on the merits.

1:19:30 Thomas: I thought but I thought once someone isn't it the process where it's like a two -phase thing like I think they would have needed five still I think if five opposed it they couldn't have done it I'm pretty sure I think it's it's a two -phase thing, if I'm thinking of the right thing. You could tell me.

1:19:46 Matt: It's the other way, that four of nine have to grant to accept it on cert, and five of nine have to stay.

1:19:56 Thomas: Yeah, yeah. So the initial thing, and I think it's the thing where, isn't this the one where they all have their own circuits and they could do a decision, but then if the rest of the justices want to kind of challenge it, you know, because the ones where they're issued like, Clarence Thomas says, you know whatever, like it's that weird system. Anyway, point is, I'm pretty sure it's accurate to say, Matt, correct me if I're wrong, you can disagree. I'm sure it is accurate to say that Kennedy, it's highly likely he could have made or broken this with his vote. Because you've got, this is back when you've Got Breyer's against it. We know Sonia's against It. We Kagan's against it. I guess unless Ginsburg was secretly for it, that would be five. And there's no way they could grant it with five of them opposing. So this is like the swing vote. This is it right here.

1:20:45 Lydia: Look at how short it is something

1:20:48 Thomas: And read the insane logic of it.

1:20:50 Matt: To the parties?

1:20:50 Thomas: Why don't you read it, hon?

1:20:49 Lydia: So so monumental the memoranda from the conference have been very helpful and

1:20:57 Thomas: Lydia. He's like, I love memos. Contrary to what a podcaster might say 10 years from now.

1:21:01 Lydia: Just talk just talk to their faces in my view a stay would be granted in four to six months in any event.

1:21:09 Thomas: Okay. Okay, there we go. So hold on, stop there. In my view, a stay would be granted in four to six months in any event. Okay good, you're right. What, but what does he complete that with?

1:21:13 Lydia: So let's wait. So let's Wait. And fairness to the party's councils that we should grant it now.

1:21:22 Thomas: What? How does that, how

1:21:23 Matt: Which? To a party, one of the parties.

1:21:26 Lydia: To a single party.

1:21:28 Matt: How is it better for both parties,

1:21:28 Thomas: Does that follow?

1:21:30 Lydia: Therefore, I agree with the recommendation of the chief that the stay applications be granted sincerely, in all caps, AMK, lowercase law clerk, dom sub situation.

1:21:42 Thomas: This is, this is insane. This is absolutely insane. Saying.

1:21:43 Matt: Aka the same initials.

1:21:46 Lydia: Oh, yeah, same initials it's

1:21:46 Matt: Actually, I slept on this one. I just kind of skipped over because it's so short, there's nothing to talk about. But you're absolutely right, this is linchpin stuff, and it's nothing.

1:21:53 Thomas: This is the linchpin stuff. And here's what I want to say too. Even if there were some merit, which I don't think there is, I'm not a lawyer, you can take it with a grain of salt. Even if there were some merits to the idea that like, well, we're going to grant it anyway, so grant it now. I would think that when you're doing something fucking unprecedented, at the very least, the tiebreak should be like, Well, if it's close, we should probably not do the wildly unprecedented thing, right?

1:21:57 Lydia: Three sentences yeah

1:22:18 Thomas: Like if it is like 50 -50. And so this lot is casual logic.

1:22:18 Lydia: Yeah that's usually how judges

1:22:22 Thomas: Logic, oh, of course, yeah, the usual way the judges are is none of this, like, this is just ridiculous, but, like the idea that you're going to be like, well, we're probably going to grant it anyway once it's the normal time we do it, so fairness would dictate that we should do it at the not normal time, it's insane, it'S absolutely insane, I don't, this is weird, like I, I, uh, I get, I have to admit, I thought more of Kennedy than this, it'd

1:22:22 Lydia: Are too like like they're they're usually very very cautious yeah yeah mm Mm-hmm, do you think he goes by tony I want to know yeah

1:22:47 Matt: Yeah it's disappointing.

1:22:53 Thomas: Be funny if they all had little little nicknames like a hockey team uh the

1:22:58 Matt: So I should tell you what happened after this. I had to go back and remember all of this because because it is very complicated. There's a good reason, though, that the decision, the actual merits, didn't come down to 2022. And that is that Donald Trump was elected. And so immediately, he withdrew that power rule, the thing that they're arguing about. And they replaced it with their own version, which was called the Affordable Clean Energy Rule, instead of the Clean Power Plan Rule.

1:23:01 Thomas: Country fell apart and we fucking everything went wrong yeah Scalia dies

1:23:19 Lydia: There you go okay

1:23:28 Matt: And of course, that means affordable to power plants. So very important. Basically, it was just completely focused on state energy grids and and efficiency, basically, but nothing about cleaner power sources, nothing that would actually enforce the Clean Air Act. And so at that point, the DC Circuit deemed that plan to be arbitrary and capricious right around the time that Biden comes back. So flip -flop, flip -Flop, right? We got this. And this is interesting, the way this plays out, because Biden's in office now, they know, the power plants know there's going to be another rule that's going go the other direction. And so even before anything else can happen, they the DC Circuit decision about the Trump rule. And they decide not to just challenge what they're saying about the Trump rule being arbitrary and capricious, but to say that the EPA shouldn't have authority to compel states to do any of this.

1:23:27 Lydia: Yeah

1:23:48 Thomas: Sorry who's they so who's challenge what oh

1:24:20 Lydia: Power companies the the industry

1:24:22 Thomas: They challenged the Trump rule I yeah I don't think I understood that

1:24:26 Matt: Just to be clear, this is how it worked out. The original original Obama rule is withdrawn by Trump. Trump instates the affordable one, and that is ruled arbitrary and capricious by the DC Circuit. And then they appeal that and the power companies, and they're not just saying that the DC circuit was wrong in that case. They're going to swing big and say that there's no way the EPA can compel states to do any of this because they don't want to have to have a new Biden rule because they know that's coming.

1:24:48 Thomas: I think the way you made me think that Biden did something. Okay, I got you. I'm with you now.

1:24:52 Matt: So 6 -3 and West Virginia v. EPA in 2022. I remember this case coming down. It came down right after Bruin.

1:25:01 Matt: I So it didn't get much attention with the gun rights. And so basically, they did eventually agree with the thing that John Roberts was leading with here, that 7411 does not give the EPA the authority to mandate that states use greener energy sources. And the whole thing was decided on our good friend, the Major Questions Doctrine. So that was one of the first big uses of that. And that is how it all came down eventually, is not reviewing the Obama rule, but reviewing a much more ridiculous Trump rule. Did not enforce the Clean Air Act, and ultimately that this is where it is. But what can we learn from all of this, from this ridiculous, that's a great start.

1:25:20 Thomas: Of course. Don't elect Republicans. Vote in midterm elections. Fucking 2014. God, it was even more key than I knew with this. I didn't know that election also probably would have subverted all of this. Because then they wouldn't have had to do this. If we still had Congress in 2014, maybe Obama would have been able to actually do something through Congress and it wouldn't Have felt this kind of pressure sure to take a big swing with an executive order, et cetera, et cetera, etc.

1:26:03 Matt: I guess as a lawyer when I'm reading these, I just think how loose this all is, because I can't even tell what standard they're using to do this. And it should be, I know it is a higher standard, I can'T quote it exactly, but there's a higher standard for if you're going to stay in agency action with no actual court decision, no trial has been held, no evidence has been presented, you're not even looking at briefing, you are looking at some interviews and some articles you read, and whatever your newsfeed is telling you, yeah, oh sure, the lobbyists, no doubt, getting heavy pressure from lobbyists. This is so revealing. It really shows a lot about who they protect and how and why, and even more nakedly than I would have thought. When I heard these things came out, I thought, well, this might be interesting read. I didn't realize it was actually going to be this bad.

1:26:16 Thomas: You would think.

1:26:25 Lydia: Your email from your industry insider friend yeah yeah Yeah. Yeah. Corrupt.

1:26:28 Thomas: Yeah, it's absolutely fucking ridiculous.

1:26:45 Matt: I don't think so.

1:26:45 Thomas: Yeah and just to clarify the fact that the decision was in 2022 is not evidence of anything that John Roberts was saying. Just I mean, make it absolutely clear. I know you're not saying that but it's not as though it took that long. It's because of the election and because like it would have been decided in the normal course and sounds like the D.C. thing would have been pretty fast and you know, I'm sure once this day was issued, maybe the D.C. Circuit didn't bother to expedite stuff or who knows?

1:27:08 Lydia: To expedite, yeah.

1:27:09 Thomas: Yeah.

1:27:09 Matt: Probably, yeah. I dunno. But

1:27:10 Thomas: But the point is that that isn't evidence that it would have taken that long. I just want to be very clear.

1:27:14 Matt: Not at all. No, this is all happening.

1:27:16 Lydia: And nobody's talking about this stuff, right? I mean, like, yeah, there's a New York Times article, but like your average Joe is, yeah...

1:27:21 Thomas: Yeah, they're talking about it for now. But yeah, it's like the I think your average people. Sorry. Go ahead. Yeah.

1:27:26 Lydia: Just the average folks are not, you know... First of all, I don't think they always understand the shadow docket or how monumental it can be or exactly how it came to be, which these memos reveal right

1:27:37 Matt: You can't make a TikTok video about this, it's just not really possible. There's so much context. To explain it from the beginning at at least. You can do it for people that listen to our show and that know what the shadow docket is, but you'd have to lie or exaggerate or something to get it into a 60-second thing to explain about exactly why this is so bad and why it matters so much that John Roberts was... Because I think people... Understandably, I think people have a very hard time understanding the difference between the merits docket and whatever this is, whatever's going on here. But I think that the shorthand here, when you're trying to explain this to people around you, is that they short-circuited their own judicial review process for the power industry, and then set a precedent for the next 10 years that is still with us that they could just stop anything they didn't like or allow anything, no matter how crazy it is, to go forward that they liked. And again, I'm not saying there aren't times when you shouldn't be allowed to stop agency action. There is a standard for that. It does exist. And like I said, for birthright citizenship, if the agency action is there's going to be no more Social Security numbers for babies, yeah, let's stop that right now. That's clearly an emergency.

1:27:38 Thomas: I mean, you could try, but yeah. Yeah yeah yeah yeah.

1:28:38 Matt: But this stuff where it's super complicated, I mean, we don't need to have 300 pages of briefing about why it's bad to deny Social Security numbers to babies. That's pretty straightforward.

1:28:47 Thomas: Yeah. And the whole harm is like, well, they might reduce the power they're doing now. It's ridiculous. All right. Well, we're way out of time, but that was infuriating. And I mean, good on the New York Times for publishing this or whoever. Good. Fuck that. Good on whoever like leaked these. Yeah. People need to leak everything.

1:29:00 Lydia: Who released it yep oh

1:29:03 Thomas: You know, that guy who leaked the tax returns in 2022 ish or whatever, around that time, that person's still in prison. There's something about him the other day. And I was like, boy, that sucks. We got to we got to pardon that guy there's like we need more whistleblowers um and you know that guy broke the law but and I'm probably whoever released these probably broke the wall as well but I you know it's good that there's people who take that risk and I am glad these are out well

1:29:12 Lydia: Especially when we're talking about an institution that barely has an ethics code like they don't

1:29:30 Thomas: And has yeah and has no accountability no um at all uh and I I for one am just so glad that they They did this in memo form so that we could see them. We've got Lydia anti -memo over here.

1:29:42 Lydia: Whatever no I'd like I'd Like both I would Like both I'd Like memo and I would like minutes following the the conversation that they have. I want it all.

1:29:47 Thomas: Alienate our audience. Our audience is a huge memo, people. Yeah, in the meeting. Yeah, yeah.

1:29:55 Lydia: But I think that they should have called him out to his face.

1:29:55 Matt: And you know, if they did record it, Thomas would be annoyed because they'd use a Walkman or something, like 80s tape

1:30:01 Thomas: God, yeah, it would be so bad. I've listened to a lot of oral arguments that are terribly recorded.

1:30:02 Lydia: A la Todd Blanche for the Ghislaine Maxwell.

1:30:02 Matt: Deck, Real to real. Yeah,

1:30:07 Thomas: All right, well, thanks so much, everyone. Thanks, Matt, for the breakdown. Thanks, Supreme Court, for fucking nothing. And thanks, Lydia. You.

1:30:13 Lydia: And making the planet worse. Yeah.

1:30:15 Thomas: Yeah, yeah. Thanks for saving us from 10 minutes of cleaner air that we might have had in 2016.

1:30:15 Lydia: Thanks. Thanks, Supreme Court. Yeah,

1:30:23 Thomas: Fuckers. All right. We'll see you for Rapid Response Friday, everybody. See you real soon.

1:30:32 Clip: This has been Opening Arguments, produced by Thomas and Lydia Smith, with editing help from Peter Baird. The intro is by Thomas Smith. This outro is by Matt Cameron. Support the show at patreon.com/law. Contact us through Patreon or openarguments@gmail.com. Make sure to follow our blue sky at OpenArgs. But most of all, please share the show. Thanks for listening.