When Alito's Jurisprudence Is Kavanaughs All the Way Down

Transcript

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

0:00:00 Clip: Thank you.

0:00:03 Jenessa: I have a citation. What is my citation? Two years ago when Kavanaugh made it up with no citation. Is a pipeline to get buzzwords from From, I made stuff up with no citation to, now you have a citation.

0:00:34 Thomas: Hello and welcome to Opening Arguments. This is episode 1262. I'm Thomas Smith. Over there is Jenessa. How are you doing?

0:00:40 Jenessa: Doing all right.

0:00:41 Thomas: What have you got for us today?

0:00:42 Clip: Got something interesting for you so Kalea wanted to do something a little more chill and not partisan and a little little relaxer

0:00:49 Thomas: Thank you. You went searching for like nine O's just to kind of give us a break. Yes.

0:00:58 Clip: And I found one um course in reading a case I always end up reading like seven other cases to back that up and there's like one sentence from Sotomayor with a citation that I was like let me check that one real quick so I know what I'm talking about out.

0:01:14 Thomas: It's always the citation. You always check them. You find something interesting.

0:01:18 Clip: I end up on some cases that are less pleasant and found a really weird connection between this state sovereignty case and Dobbs. Of the key pieces of the argument in Dobbs shows up in the oral arguments in a tax case about sovereign immunity shortly beforehand. It's, once trying to launder his nonsense. I was very surprised to come across this. So, weird that it somehow tied into legal nerdery about state sovereignty and patents and taxes. Is. I don't know why it's there, but

0:02:08 Thomas: I think you know why it's there I think Jenessa's being modest I think she uncovered the uh breadcrumbs of Kavanaugh inventing a thing and gaslighting us about it. And it's something that's all the way in an incredibly important, obviously, an incredibly serious, incredibly horrible decision in Dobbs, which of course overturned Roe v. Wade. And key phrase, this key concept traces back to something completely weird and unrelated from all of a few years before, right? All

0:02:44 Clip: Yeah, it's like a three and a half year time window to get from that to Dobbs, and I am really sick of him just trying to incept something into the court and pretend it was organic. It's very frustrating. Writing.

0:03:02 Thomas: Not that easy to find more positive stuff, but

0:03:05 Jenessa: Just a nice case about some people getting hit by a bus but winning so one died yeah

0:03:12 Thomas: Cool. I mean, it'd be great if, you know, Clarence Thomas died, but you know we'll take it. Right. Well, I'm excited to get to it. Talk about these cases. So why don't we take our usual first break, avoid the ads, get the goodies, patreon.com/law. We'll be right back.

0:03:30 Thomas: Okay. So we got a couple of cases today. Yeah.

0:03:33 Jenessa: So case that started it off is one that was just decided a couple of months ago. Gonna say Gallette. -A -L -L E -T -T E. New Jersey Transit Corporation in 2026 decided just a couple months ago on state sovereignty issues. And that led me into also wanting to talk about the Franchise Tax Board of California, the you're familiar with the tax board.

0:03:44 Thomas: Probably galette yeah oh I'm familiar, I'm familiar with the franchise tax

0:04:09 Jenessa: Not this case.

0:04:10 Thomas: Board yeah no for sure not familiar with this case him

0:04:13 Jenessa: Okay, that's one from 2019 that gets a citation. And I was like, okay, I'll read that one real quick, just to make sure I understand the principle here real quick. And it turns out it's super interesting for understanding a bunch of history of where this went um happened in the recent case um 2017 jeffrey colt was crossing the street in new york city and was hit by a bus in 2018 cedric galette driving his car in philadelphia pennsylvania his car is hit by bus they're both seriously injured they sue for damages uh just Oh, yeah. He is personally injured.

0:04:56 Thomas: And the car I'm just kidding, they're both injured him in the car the car's in the car hospital it's got like the car cast on it like wrapped up like ah really

0:05:07 Jenessa: Also suing for personal injury, both men. Sues in New York courts, New York state courts, because he lives there. Gallet sues him in Pennsylvania Pennsylvania State Court, that's where he lives. That's where the accident happens. In both cases, the buses were run by the New Jersey Transit Corporation, which is not a traditional public transportation like metro thing, but it's also not a fully private corporation either. So have this fundamental question come up. Are they an arm of the state or is Is New Jersey the real party in interest? Because if yes, we're going to invoke state sovereign immunity and they cannot be sued.

0:05:59 Jenessa: If they are not an arm of the state, if New Jersey is not a real party in interest, yes, you can go ahead and sue them in New York state court, in Pennsylvania state court. Go right ahead. Refresher on sovereign immunity. Immunity we've talked before about federal sovereign immunity so the federal government can't be sued in federal or state court and that is a common law thing it is not explicitly stated anywhere in the constitution state it's not

0:06:30 Thomas: Oh, I forgot it wasn't the constitution thing huh Well, they also can get rid of the things that are written down so they're real good at just getting rid of whatever yeah

0:06:40 Jenessa: TECHNICALLY just sovereign immunity in general means a state can't be sued in federal court or state court so they're going to have a very similar thing going on um in the Constitution. 3 is going to get us to State A can be sued by State B in federal court. So that is when New York sues New Jersey, the Attorney General of New York sues the Attorney general of Texas. That can go into federal court because like, mean, how else are you going to resolve a dispute between states? So we

0:07:20 Thomas: Unless they like meet in a state halfway between them or something hmm

0:07:26 Jenessa: Like this just doesn't make sense, right? So the states ratified the Constitution, they inherently consented to this because it flat out says it in the Article 3 of the Constitution.

0:07:41 Jenessa: Amendment to the Constitution, it says State A cannot be sued by a citizen of State B in federal court. Why do we have an amendment? Because there was a Supreme Court case in 1793 where they said, yeah, go ahead. Citizen of State A, just a private person, go right ahead go to federal court and sue state b sovereign immunity does not apply in that situation and very quickly everybody said whoa whoa whoa that is not what we meant that is not what they wanted and they passed the 11th amendment and the text of it the explicit statement is exactly that. A private citizen, citizen of one state, cannot take another state into federal court. Be able to say a citizen of state A cannot take state A to federal court, it's not written in the 11th Amendment or anywhere else in the Constitution, Constitution, but a Supreme Court case in 1890 says, yeah, you also can't do that. Say the framers never wrote that down because it was just kind of assumed. Like, why would I have to write that down? Of course you can't doing that. They're saying like, well, you know, the founders believed this and it's implied. I'm don't write stuff down and it's 200 years old I'm that's not the best idea if you ask to them explicitly would they agree with you or are you just kind of reading what you think they meant into things I been around since 1890 this this idea that, well, of course, between Article 3 and the 11th Amendment and things, the founders said, yeah, everybody just kind of believed citizen of state A could not sue state A in federal court. So here you go, court case. And they did not rush to make an amendment to fix that. They were like, you know, yeah. Okay. So that's also state sovereign immunity coming from common law coming from a case, not anything explicitly written down. You sue your state in your state court? Or can you Sue State A in the court of State B? We're going to come back to that.

0:08:57 Thomas: State a is traveling 50 miles an hour going east and state b is yeah well I feel like you can't sue your own state unless they let you isn't that the very thing we're talking about

0:10:17 Jenessa: On a train. Much. Yeah. Now what's interesting is I just was was taught that as like, well, of course. And you'd be surprised how recent and controversial that decision was. That's just in my textbook, like no big deal, whatever. The general understanding is in the same way that at common law, the federal government has sovereign immunity and you can't sue the federal government even in federal court unless they let you. You can't Sue your state government in state court unless they let you so also includes don't forget suing federal or state government officials in in their official capacity, basically what the courts say is they are the real party in interest, the state, when you do that. If you go for damages, you're going after the treasury, not that person's bank account. You go für an injunction, you are forcing the government to act. Like, yes, you re telling person A to act on behalf of the government. You re forcing New York State, New Jersey, whatever, to do something. Exception. You can sue a state official in their private capacity in federal court and get an injunction because what the court said is if they are going to do Something, whether it's on behalf of the state or not, if they're going to violate the federal constitution, well, they can't possibly be acting in their official capacity because of course the state could not possibly want you to violate the federal constitution right so go ahead and sue them in their private capacity to get around the 11th amendment but we're going to issue an injunction to tell the governor to not do something as governor it's it's a what we'd call a legal fiction it's work around because is is the other option? Your state officials are allowed to break federal law and you can't do anything about it? We have to have this.

0:12:40 Thomas: Well it seems like the the real option would be that you can sue the state and make them, like, I don't totally get it, but I, this is why, like often the person's name is on these cases, right? And it's, it's why is that that work around? Why isn't it just you sue the state and,

0:12:57 Jenessa: The 11th Amendment says a citizen of state A cannot sue state B in federal court, and we've decided that also means a citizen of state a cannot sue state a in federal court so how would you as a citizen stop your state or any state from violating the constitution what would you do even damages you just want an injunction to say stop it if

0:13:28 Thomas: I guess as a legal fiction, it kind of makes sense. It's like, all right, we're going to pretend that states don't ever want to violate the constitution even though that's wrong because especially now like all the stuff they're doing in texas and like all that you know like trying to enforce immigration at a state level they're know they're jumping immigrants places that they shouldn't they're at one point they were trying to set up like their own little border stuff like battle stations and crap yeah just all this stuff but we'll pretend they would never really want to do that in their heart of hearts sure

0:13:39 Jenessa: Nonsense if they knew it violated the constitution which we will decide in this court so the legal fiction there is the they would never ever want you to do that so So in the private capacity, they possibly be acting on behalf of the state. Go ahead and make it private. And then we're working around this problem. How does your state handle the state equivalent? If you want to tell your state official to not take an action that violates your state constitution or your state law, depends on how your state works. Your state may has a version of this same concept. They might be limiting it to some types of injunctions, but not others. Or your state might say, you straight up can't do that. Your attorney general sues other people who work for your state to make them follow the law, and your attorney general is supposed to be independent, and that's what you do as a citizen and elect better attorney generals. And if your governor appoints the attorney general, well, oops, I don't know. The state level, there's usually some equivalent to this or some other method, or just your state sucks. It really depends. Also have that option to sue in their private capacity for damages. Obviously, if the person was truly acting in their private capacity, then that's fine. They're not immune from suit just because they work for the government. That case you're going after their personal bank account, not the state treasury, if the official can show they were acting in Their Official Capacity, this is not a workaround. You can't be like, well, I declare I'm suing you in your private capacity and therefore everything's okay. We've talked about before like Section 1983 helps you get around this to say, I'm going to sue you in your private capacity for something you did under color of law, but it was unconstitutional. So it's a very similar workaround to go to federal court and say, I'm suing in your private capacity, I am going after your bank account, not the state treasury, they are not a party in interest, it's all okay, but I'm sueing for a constitutional violation so these are all ways to get around it you can also just waive it so

0:14:00 Thomas: Yeah they're unbeknownst yeah like the state can yeah

0:16:34 Jenessa: The state or the fed so federal government has done this with the federal tort claims act they have said we so graciously allow you to sue us when we commit a tort but only some of them so if our federal law enforcement commits a battery, you can sue that person. You

0:16:50 Thomas: I thought we were just on the state one now that's all yeah

0:16:54 Jenessa: So this is all of those. The state and the Fed can do this. Lot of states and the fed will say, like, you cannot sue us for defamation. We will make that flat out clear. Even if we have generally waived, you could sue us. So they might do that by a a statute they can consent by just like failing to raise the defense when you go to court they they have to assert it and say hey sovereign immunity don't what are we doing here um the judge is almost certainly not going to do this on your behalf um also things like when the states ratified the 14th amendment and it said congress can make laws to enforce the provisions of the 14th Amendment, the states were consenting to say, hey, Congress is going to try to enforce against us the we have to do X, Y, Z, and Congress is gonna make us do that, and if we don't do it, we're gonna get sued, right? So we have, by ratifying the amendment, consented to that. So, lots of ways this could get waived voluntarily or, you know, maybe accidentally sometimes. Not absolute in that sense. There are ways to weave your way around it, but as a general rule, anytime you are suing the federal or state government, you are going to have to contend with, you're going to have to write a paragraph about why sovereign immunity does not stop you from doing this it's there's many arguments for we should limit or maybe even just get rid of this because it's really really

0:18:37 Jenessa: Annoying okay

0:18:39 Thomas: I don't really know what the benefit is other than like I state federal employees need to be able to do their jobs without being fear of being sued I get that but if the state is going to be the one to probably handle all the legal whatever, because this isn't like suing the person in this example or in this thing. So I don'T know. I DON'T know what good this is doing anybody, really.

0:19:00 Jenessa: The state and the federal government can afford to defend themselves in court. And doesn't apply to municipalities. Like, your little town is not protected by this. And they're the ones who often cannot afford to defend themselves in courts. So,

0:19:16 Thomas: I'm going to take my town for all it's worth.

0:19:19 Jenessa: Yeah. And you can sue the individual in their personal capacity. So that's not protecting the people who are not able to afford to defend themselves very often. And you can also use absolute and qualified immunity to protect individuals. So you can't sue a judge because you don't like the decision they made. Like, there are ways to do this that don't require that. I don't know. I haven't heard a great argument for this that isn't solved some other way.

0:19:54 Jenessa: Gets in the way of a lot of good stuff we could otherwise try to do. About this issue of suing State A in the court of State A or suing State A and the court in the state of State B? That one we would call sister state sovereign and immunity uh first gets addressed in 1979 I was taught this as just like oh that's the rule can't do that that is like super recent in you know our 250 year history so that case Nevada v. Hall a vehicle owned by the state of nevада driven by a nevADA official unofficial business drove into the state of California and hit the plaintiffs who were California residents in California. -3, the majority says, go ahead and sue.

0:20:49 Thomas: Huh.

0:20:50 Jenessa: Have sister state sovereign immunity yet. Nothing in the Constitution or common law says this explicitly or implied. Lied. Going to say Nevada can be sued by private individuals in a California court. There's a Nevada law that limited tort damages in a case like this to $25 ,000 and California would have allowed more. And they say, you're in California, go ahead and apply the California law. That's what would happen to anybody else. And essentially they're saying California has has a right to protect its own residents on its own highways as it sees fit. There is a historical practice of limiting that kind of cross -state lawsuit. It is a courtesy states have extended to each other. They call it comedy. C -O -M -I -T -Y. I not a legal requirement it is a thing that they tend to do across states from one state to another from one country to another there is absolutely no legal requirement to do that we allow our citizens to sue foreign countries in our own country like a dissent from three individuals they say we're not saying this is implausible to interpret the Constitution and the history this way. Do think it's implied. It's definitely not explicit. It's implied in our opinion, dissenting minority opinion, that the states are considered sovereign to one another, not just to the U .S. government. Mainly, they express a concern if you let one state be sued elsewhere, you're going to end up with just a pile of lawsuits and some confusing, difficult methods to apply the law. You're going to apply California law to another state without

0:22:56 Jenessa: Their consent. It just will start to get it weird and confusing and difficult. The case that's coming up, the dissent will say, hey, in the 40 years between these cases, you've identified 14 times that State B has been sued in the court of State A. So that concern was probably not warranted, that this was going to like explode into something terrible. That's the main concern of the dissent here. And they do say, We disagree, but mainly that problem. For like years, our country just didn't have like any official statement about the rule. 1979, the Supreme Court says we don't do sister state sovereign immunity. Community the reason this hasn't come up is because they tend to just as a courtesy do it for each other but you don't have to the government is not going to force you to do it in 2019 that will be overturned 40 years later and that's this case franchise tax board of California v. Hyatt. Case dragged. It first hit the Supreme Court in 2003. So if you go to look this up, you got to find the 2019 case. It went back and forth and back and forth about like seven different issues. And is going to write the majority opinion here, Clarence Thomas, and he's going to say, oh, well, you know, the reason we didn't just just decide this issue right off the bat back in 2003. It's like, well, they didn't ask us to decide that. And I'm like, yeah, or that was 2003 and this is 2019 and you have a completely different court composition. Like saying we weren't

0:24:52 Jenessa: Asked to decide this is a little misleading. Leading?

0:24:55 Thomas: Do tend to do that, though. It's funny. They're like, we decided this in 1865. You're like. Wow. You look good for your age. Yeah,

0:24:57 Jenessa: Been around a while. So is 5 -4, and Thomas writes the majority, joined by Roberts, Alito, Gorsuch, and Kavanaugh. The dissent is Breyer, joined by Ginsburg, Sotomayor, and Kagan. And, of the argument is just rehashing Hall, Nevada v. Hall. Was it just a tradition of being kind to one another or is it a requirement? Um, opinion is just freaking painful. It's, you know, everything written by Thomas has got to do this thing where we're going to go back in time, pretend he's a trained historian who is qualified to talk about the entire historical context of what everybody was thinking and what they meant by words that probably meant different things 250 years ago. And just so frustrating, especially when you read the dissent. And they're like, yeah, here's a great alternative interpretation of what all of these things might have meant to people and arguments for why that probably is what they meant. So important to note when they do this originalism, it's not that the liberals opposing that are going to say, ah, who cares about history? They will always write a detailed description of why they disagree with their interpretation of the

0:26:36 Thomas: With the nonsense selective history reading. That's a good point. I don't think we emphasize that enough, you know, because like, yeah originalism sucks, but they still managed to steal the framing of the conversation and still managed to be like, oh, well, we care about what the law was at the time. And you are the I don't agree with that. So presumably you don't care what the lot was at that time. And like you're saying, it's like, no, it usually just you care about what the lie is, how you made it up right now.

0:27:07 Jenessa: Very often. The liberal justices will say that, the Constitution is a living document. We need to update our understanding of the law because times have changed. But also, a lot of the time, they will talk about what was the founders' understanding when they wrote the First Amendment? What was the Reconstructionists' understanding when theywrote the 14th Amendment? Like, it does matter what they meant for the law to do. And the liberal justices do engage with that and come to a different conclusion it's it's not a dispute that history doesn't matter and I think that's really important here um also do a really good job of pointing out how much uh is is picking and choosing and pulling things out that are very selective, where, oh, well, this person said this, and they're like, that's funny, because he also said this. Example, Clarence Thomas quoted this guy, Emmer de Vettel, the majority, Clarence Thomas writing, refers to the founding era's foremost expert on the law of nations, that's Vettell, who stated that a sovereign is exempt from all foreign jurisdiction. But same guy made clear the source of a sovereign's immunity in a foreign sovereign court is the consent of the foreign sovereign that choose country a where you're getting sued says we will choose to grant sovereign immunity to country b and we know that because the united states does not always grant it we let other countries get sued in the united States

0:29:03 Jenessa: Added that reflects a tacit convention among nations and underscored that can be rejected consent can be withdrawn upon notice at any time this is the same guy clarence thomas pulls a quote where he says oh yeah sovereign nations respect each other's sovereignty and And, like, doesn't finish the sentence where the exact same guy who's supposedly the founding era's foremost expert on the law of nations said, it's a consent thing. It's a choice people are making. It is not just an absolute law that you must follow. Clarence Thomas just goes off on this whole thing about before the Constitution, it was understood that states had sovereign immunity. And it's like, yeah, because there wasn't a United States. And they were basically sovereign nations at that point, post -revolution, pre -constitution. And they signed the Constitution. And the question is, did they keep that understanding, which, again, would still have been a consent -based thing? And he says well you know the constitution transformed our understanding of state sovereignty so you can't just say yeah yeah we know foreign countries uh the sovereignty that they have is consent -based but the constitution changed that when they they agreed to give up some of their sovereignty in order to form one singular country and it's It's like, all right, well, then which is it? Does it matter what they thought about their sovereignty before the Constitution and that, like, they thought of themselves as sovereign and the Constitution didn't change that? Or are you saying that signing the Constitution changed their understanding of their sovereignty and therefore what it meant beforehand to foreign nations didn't matter? Like, he's just having it both ways, and I don't understand how he doesn't get called out more for have graded a lot of freshman college papers, and, like, this is going back with a C plus, B minus at best. Just there's basic logical errors in here that much time did you spend writing this and leave that stuff in it's extremely frustrating and the dissent just calls them out but like way too nice about it that like that's dumb so

0:31:35 Jenessa: A legal nerdery perspective yeah there's all these arguments about like should they get this sister state immunity, should they not? We get to stare decisis. 40 years ago, this court said, yeah, that's not a thing. And now you want to say, yes, it is. You should have this immunity. Are we doing this? You know, at oral arguments, Sotomayor says, hey, you have a brief from 47 state attorney generals who say they do think they should have sister state immunity why don't they just write an amendment that's more than two -thirds of the state amend the constitution make it explicit like why am I supposed to do this when you could just make it the law I guy arguing in favor of that immunity in favor of overturning the case says well like amending the constitution is not supposed to be taken lightly but the supreme court interprets the constitution that's amending it like stuck with it until you amend the constitution or overturn the ruling so that just doesn't make any sense the

0:32:45 Thomas: Think we are men amend some justices personally, but that's just me.

0:32:49 Jenessa: Lawyer for that case against the sister state immunity says like that's a bunch of state attorney generals I don't think think you should assume that represents the opinions of the states like that they would actually for two -thirds vote in favor of this so get too excited about that and roberts says like that's a remarkable assertion that we should assume state ag's opinions don't represent the opinions of the states and

0:33:16 Thomas: Don' t know what's happening here. What are we talking about? Yeah, we're talking about the decision of,

0:33:20 Jenessa: Yeah the the stare decisis aspect of like we said this 40 years ago you're asking us to overturn why should I do that and one part of it sotomayor says like just amend the constitution then why are are you asking me to overturn the case in the past we had that one case where we said you can sue a state in federal court and you immediately amended the constitution to say no you can't if you have 47 states who think we were wrong amend the constitution like decisis I want to leave this alone and so that's a little bit of this argument here um thing clarence thomas is going to say about stare decisis is exactly what you expect. Just, don't have to do that. He says there are factors that go into that, and here's four relevant ones, and why I think three of them are in our favor and one of them is, you super decisive. Classic classic legal thing. If there is a factor test, you need to name them all and go through them, and if you think some of them are irrelevant, you can, with, like, a couple sentences, just quickly go, that one's irrelevant because, and, to not even tell me what the other ones are, just, like a trust me, bro, that there's other ones, but they're irrelevant, it's like, that's really bad legal writing. So, Something that is really important here. You can go to the oral arguments, timestamp it starts with Kavanaugh, but then the question is. I think it's important to hear how Kavanaagh is going to frame blame stare decisis and whether they should overturn this.

0:35:08 Clip: The question is how we figure out what the compelling reason is. And that's very difficult.

0:35:17 Clip: And you say nothing has changed. That's true in a lot of cases where the court has nonetheless overruled a prior decision. And so how are we supposed to think about it? Is it enough, for example, if we think it's egregiously wrong and the prior decision has severe practical consequences and there's no real reliance interest at stake. Is that enough? How to apply that to a particular case is hard, but what I just said in terms of egregiously wrong, severe practical consequences, no real Reliance, is that enough, in your view, to overrule? I think egregiously wrong, no practical consequence to overly precedent, certainly go a long way to indicating there is a compelling reason for doing so. But I'd also start always by asking, is there anything today that's before the court that it didn't have when the earlier case was decided? Well, if we applied that strictly, a lot of cases that everyone agrees should be overruled would not have been overrulED. And so I'm questioning that particular factor.

0:36:22 Thomas: That's very interesting, because that is before they overturned Roe v. Wade with it was egregiously wrong from the beginning.

0:36:30 Jenessa: Yeah. As I can tell, this is the first time egregiously wrong appears. Yeah. If you Google egregiously wrong right now, even without a court case, like almost every hit is talking about Dobbs. Really hard to even find anything that isn't about Dobbs. If you go to Dobbs and look up that language, it will show up a bunch of times, at first without citation, and then eventually we will get a citation to this case Ramos v. Louisiana. You might remember this case.

0:37:08 Thomas: Sounds familiar.

0:37:10 Jenessa: Louisiana had a rule that you didn't actually need a unanimous verdict to go to jail. Would be quite hard to disagree with the ruling, right? They were saying like a 10 -2 verdict was good enough. And I think people probably all agree, like, unanimous should be the rule for something so serious as taking away your most important civil liberty to walk around space freely. Case, in a concurrence written by Kavanaugh, the words egregiously wrong first appear. And that is where Dobbs cites to. Basically, in this oral argument on January 9th, 2019, Kavanaugh uses the words egregiously wrong. In a concurrence, in an opinion that was argued October 7th, 2019, 10 months later, and then the decision appears April 20th, 2020, Kavanaugh writes it, concurrence, and then it appears in the majority opinion in Dobbs citing Kavanaug's concurrence in Ramos v. Louisiana in June 24th, 2022. Correct.

0:38:34 Thomas: Uh who wrote dobbs right yeah he wrote the egregiously wrong from the beginning right but he cites to that yeah what citation in the whole opinion what or only ah I

0:38:39 Jenessa: But he cites to, it's the only citation, no. For that language, where is he getting those words egregiously wrong?

0:38:53 Thomas: Didn't know he had to get him from anywhere I thought he was just giving us his personal take like

0:38:59 Jenessa: Rather than a legislator, and you are going to say, this is why we overturn things this is why the you know how we interpret a law blah blah blah you should be citing other opinions or the something

0:39:14 Thomas: Agree I just didn't think they did I feel like sometimes they just give us their take you

0:39:16 Jenessa: Well this is exactly the problem Kavanaugh says it you hear it here in this argument of this oral argument here's my kind of thoughts what if what about this standard what if we said said egregiously wrong, and this and this and this. What do you think about that? It doesn't appear in this decision. He just says it in the oral argument.

0:39:42 Jenessa: Then in Ramos, like, later, he writes it in a concurrence with no citation, no explanation. This is just him pontificating.

0:39:42 Thomas: What is he writing about like what is He's using it to say I guess oh

0:39:57 Jenessa: Saying that's could be a rule for overturning stuff if one wanted to do that in his concurrence about it and then it gets laundered in Dobbs Alito is going to say egregiously wrong why is that not Alito making stuff up and coming up with his own reason why we can just overturn decades of precedent on abortion law I have a citation. What is my citation? Two years ago when Kavanaugh made it up with no citation.

0:40:35 Thomas: Made an off -the -cuff remark. Yeah. Wow.

0:40:39 Jenessa: This to that major questions doctrine thing. A very similar timeline. Kavanaagh wrote major rules doctrine in a dissent on the DC Circuit Court May 1st of 2017. The EPA in a a statement on deregulation wrote major question doctrine July 8th of 2019 and cited that Kavanaugh dissent. And then the first ever appearance of major questions doctrine in a legal case is West Virginia v. EPA, June 30th of 2022. Kavanauch is a pipeline to get buzzwords from From, I made stuff up with no citation to, now you have a citation.

0:41:28 Thomas: Just so people remember, this is the episode we did on Major Questions Doctrine, where you were trying to, as a detective, track down where the hell that even came from, and it was even, like, we all kind of knew it was just bullshit, but it was interesting to hear the tale of that bullshit, and now it sounds like you're saying there's a pattern here. There's like a Kavanaugh just says some shit and bootstraps something into existence and then they cite itself and you know it's not unlike how when we cover woke bullshit on where there's woke or whatever it's just a bunch of the news sources pointing to each other where be like lives of tiktok said this and then that like cites over to like you know uh some breitbart bullshit oh that was a dated reference I don't even think that's relevant anymore some uh yeah some uh some other far right nonsense newsmax something or other and they just formed this like circle of citation like well it's not really citations I guess but referencing or linking each other you know to it kind of bootstraps a fake news story into existence

0:42:11 Jenessa: Don't even know if they're, yeah. Mm -hm. Yeah.

0:42:28 Thomas: And it feels a lot like that but

0:42:31 Jenessa: Yeah. Maybe this is just, Kavanaugh is really good at coming up with a buzzword that Clarence Thomas and Alito are gonna like, and now they have a citation for it. Or there is a pipeline here where somebody is workshopping the buzzword that makes this sound plausible as a legal argument and appeals to people as like reasonable and he just says some bs with no citation wherever and now it's citable to a legal opinion and it looks legitimate like number two of Kavanaugh made some crap up. And in this example, it took three and a half years in major questions doctrine. It took five years for him to just say a thing with no citation. And then it shows up in a majority opinion in the Supreme Court citing his concurrence or dissent. Did vs. Louisiana was overturning, to some extent or another, some previous rulings about requiring the unanimous juries so majority opinion has their own reasoning for why it's okay for us to overturn these older cases cavanaugh first inserts very shortly after this oral argument where we heard him float the idea he says here's one way you could do it in his concurrence uh

0:43:36 Thomas: Did that like phrase apply in in that case like what was that about hmm that's just a concurrence that no one else signed on to really or did some wow he's always doing that weird shit yeah yeah he always does that he writes his own concurrence maybe that's this why he's doing it he's had a few hits you know and he's trying to continually make you know make his next uh yeah make it make his next hit make his thing happen you know trying to make fetch happen

0:44:21 Jenessa: Yeah, he joined the majority. Yeah. Yeah, yeah.

0:44:39 Jenessa: Maybe someday he'll get to write a majority where he cites himself using those buzzwords. But for now, it's Alito and Clarence Thomas citing him to adopt those words. But yeah, Alito did not make up the egregiously wrong. Kavanaugh did in this case about the tax board and a lawsuit over a failed patent and tax evasion a few years earlier and nobody noticed because nobody would ever pay attention to this case except me because Sotomayor cited it

0:44:44 Thomas: I'm sure he already I'm sure he already has huh well there's no way you're the only one who checked the citation on the most egregious opinion to use the word again somebody else has looked at that yeah

0:45:24 Jenessa: No the someone will have checked the citation to Ramos but to find that he said this in an oral argument in this other random tax case is like yeah

0:45:37 Thomas: I'm I'm mixing it up so it's the so the tax case thing was first and so what was the context of that then what was how did egregiously apply to that oh

0:45:48 Jenessa: So this tax case here remember 1979 they say sister state that's Nevada v. Hall sister state immunity is not required in the constitution California go ahead and let your plaintiffs sue the state of Nevada in California court. And now in 2019, 40 years later, in the tax board case, they say, actually, 5 -4, we're going to completely overturn this. Sister state immunity is required by the Constitution. Was, oddly enough, California and Nevada again. Cannot sue another state, State A in the court of State B, no matter what. And in this oral argument just says hey what about this what about agregiously wrong could that be why it's okay

0:46:39 Thomas: So it's two phases of workshopping to you know focus grouping to rolling he's the marketing department I guess sure

0:46:48 Jenessa: In the this obscure tax case that is about sovereign immunity for states he floats it in the oral argument then in Ramos v Louisiana he actually writes it down and I am very confident many people have read that case and of course Dobbs of course seen seen that citation but I thought it was so strange to spot I as I can tell like googling around again it's very hard because everything is buried under Dobbs I think this is where he starts floating the idea isn't it it's just very hmm there there's something

0:47:22 Thomas: That's so weird yeah I don't know what it means is that normal yeah something

0:47:29 Jenessa: Going on I know no to to just start tossing ideas. I mean, at some point, every rule came from somewhere, but it doesn't usually go from floating the idea in an oral argument to three and a half years later, it is the singular citation.

0:47:49 Thomas: The first sentence isn't it like the first the opening sentence of the most important decision that they've been working up to for decades and decades is you v wade was egregiously decided for the wrong from the beginning right isn't that like the first sentence I I don't it's it's uh it's been a while because it's so like deeply troubling to read it but you know I that's my memory of it

0:48:14 Jenessa: It be. The sentence everyone talks about as so deeply shocking and the only citation for where that language egregiously wrong comes from is kavanaugh saying it two years earlier in a concurrence and the total timeline I'm putting together is three and a half years one person it becomes yeah the the reasoning for the majority opinion to overturn 50 years of precedent on abortion law like it's not normal for a rule to develop like that that's for sure so

0:48:51 Thomas: To correct myself it wasn't like the First Sentence it's just in it was in his like introduction you know and it was like I think toward the end like the toward the conclusion of his kind of opening salvo oh yeah it does Roe

0:49:01 Jenessa: It reappears multiple times um it's his most important theme, really, because they have to overcome this stare decisis issue in Dobbs.

0:49:14 Thomas: Was egregiously wrong from the start huh huh about

0:49:16 Jenessa: Over and over, he says it. So, ultimately land on, despite 5 -4 and an absolute crap argument from Clarence Thomas, we have sister state immunity. You may not sue a state A in the the court of state be and that's the end of it and that is somehow in the the plan of the constitution I whatever like completely a textual he talks about how like saying thatyou actually can do that because it's not explicitly in the text of the the Constitution is an ahistorical literalism. And I'm like, that's your whole thing, bro, is like ignoring history, like the full context of history and just being a literalist. So I don't know. That's the decision we get stuck with. Would like to compare in our closing moments to just a nice pleasant 9-0 written by Sotomayor legal that New Jersey transit case. Is going to say, okay, we are stuck. She doesn't say it like that we are stuck with this issue that if the New Jersey Transit uh thing an arm of the state you cannot sue New Jersey in the court of New York or the court of Pennsylvania and you are not going to be able to do this and I bet you when you go to New Jersey you're not going to be able to sue them there either because they have their in -state sovereign immunity and you're just screwed. But if they're not New Jersey, if they are their own thing, yes, you may sue them. Is this organization? We get a cute little history here of like, Starting in the 1960s and 1970s, New Jerseyans increasingly drove to work. All right, we need buses and trains. It's causing huge congestion. Instead of New Jersey just, like, starting public transportation, they did this really weird thing where they made this sort of corporation.

0:51:30 Jenessa: They, yeah, kind

0:51:30 Thomas: It's public private corporate yeah this is it like what Amtrak is I feel like we've had this come up before sure

0:51:36 Jenessa: Law says it is a body corporate and politic with corporate succession and as an instrumentality of the state. It's doing public and essential governmental function. It's within the department of transportation, but it's independent of supervision or control by that department. It's run by a board. Every member is appointed by the governor, and the governor can fire them. On the other hand, they adopt their own bylaws. They hire a CEO, which is like very not a government thing to do. They raise their own funding in 2024 they generated 832 million dollars in revenue like by charging people to go on the transportation so for their own purposes does not go to the treasury of New Jersey stays internal right

0:52:27 Thomas: But where does that go because okay I mean what about like the post office like they charge for stamps where does their revenue go kind of thing you know what what I mean kind of does stay within the post office or theoretically

0:52:42 Jenessa: But that's you know I actually know that

0:52:47 Thomas: It could be grabbed by yeah I don't know if there's a difference there because it you're making it sound uh you're making it sounds evil and corporatey but I don't know if that's just normal for how that kind of thing works

0:52:59 Jenessa: You know I don't actually know what the post office like hypothetically could the money the post Office raises at any time be grabbed by the federal government as like you belong to us I don t actually know about that like

0:53:10 Thomas: Probably I mean just budgeting wise I

0:53:13 Jenessa: Congress passed a law to say that sure

0:53:17 Thomas: Like it's kind of fungible it'd Be like oh they have a surplus so we don't have to budget you know allocate as much so it's kind of hard to say but I don't know if this that's any different than this or not are

0:53:26 Jenessa: Like for this case it certainly stays internal it is not part of new jersey treasury they can't touch it yeah

0:53:34 Thomas: People making like bonuses or anything I feel like that's the key like

0:53:36 Jenessa: They got employees they've got that seat they hire a ceo they hire a president oh

0:53:40 Thomas: Employees yeah I know but but the point is like government workers they don't get like incentives and bonuses and stuff I'm just asking if they're doing that kind of thing with the money because that would be very corporatey

0:53:51 Jenessa: That's not written in here on the other hand the legislature does appropriate funding for them um year to year it could be anywhere from 15 to 46 percent of their budget so like what is this thing um York State Court of Appeals it's not it's really not right this

0:54:07 Thomas: Not a super easy question I guess really but it also feels like it shouldn't write on that like it shouldn't be like well if technically they're blah blah blah like then if someone runs over you you can't do anything seems like I point out like the absurdity of this whole thing like I don't know if someone run my ass over I should be that should be in the constitution if somebody runs your ass over with a horse and carriage you should be able to sue them I don't care what state they work for or government they work for that's just common whatever common decency oh

0:54:44 Jenessa: Like New York Court of Appeals will say they are not an arm of New Jersey on their own little three -factor test. The York Court of Appeals is our highest court. The PA Supreme Court will will say they are an arm of New Jersey and you may not sue them here. We have a six -factor test and the Supreme Court will take cert and be like, okay, this, yeah, we be doing this. This is not going to work. We need to have a rule for the states of figuring out, are you an arm of the government? And basically, Sotomayor, nice like 9-0, everybody's on board, is going to be like, okay, yeah, exactly.

0:55:06 Thomas: I mean better we three factors we got uh double that easily here's our test okay everybody agreed so it gets to be a good opinion then it's actually probably makes sense Okay.

0:55:33 Jenessa: She's just going to say, look, they said out loud, it's a corporation that it is not part of the state. It is a separate arm. They the law, it can sue and be sued. If it is sued, we, the state are not liable. So you can sue the pants off of them.

0:55:45 Thomas: That seems pretty strict. Did you even have to have a case about this? It sounds like it just said it all. Weird.

0:55:54 Jenessa: I know. No it's literally I think purely because of the split that pennsylvania said you can't and

0:56:02 Thomas: So what the hell is Pennsylvania thinking? That's what I'm wondering. Those weirdos. Got to them. New Jersey got to some mobsters yeah

0:56:06 Jenessa: They said the of control exercise like the fact that the governor appoints the entire board and can veto there's a logic to it I guess but Sotomayor is just like, no, if sue them, you don't touch the New Jersey Treasury. At best, you bankrupt the whole thing, but you can't touch The Treasury.

0:56:20 Thomas: Fair yeah well but also didn't you say something like they said you could sue it like I feel like that trumps everything else right like

0:56:38 Jenessa: But if we have this stupid thing that the federal, according to Clarence Thomas, the federal constitution implies that you can't sue state A in state B, then state A cannot write a law that says, I mean, I guess you can consent to it. So that should be good enough.

0:56:56 Thomas: It could you can still consent to it yeah that's what I'm not getting huh

0:57:00 Jenessa: Focus on that. They focus more on this arm of the state thing, but I think that should just be enough. But fact that New York says you can and Pennsylvania says you cannot, now we have just a nice little test for for everybody across the whole country. Here's some rules about it. And and everybody's happy. And

0:57:05 Thomas: It must be some reason if it's if it'S uh yeah there must be something we're missing oh well now go off and get run over everybody now we can all be run over in happiness happily and yeah

0:57:32 Jenessa: Sotomayor could be writing these dorky little opinions that nobody cares about if only the world weren't burning down. And that is my my wish for her someday.

0:57:39 Thomas: Well honestly I feel like it's almost like I'd rather she be writing the important ones then we can we can do if it's a nine oh we can dull this off to one of the dork conservatives if they're still on the court in our perfect world you know oh yeah this has gorsuch written all over it oh boy well is that our tale is that are the end of our our journey.

0:57:47 Jenessa: Yeah. Also that shouldn't Gorsuch care about this? Apparently not yeah yeah a

0:58:05 Thomas: That was interesting. So we started with looking at a weird random, yeah, people were hit by buses and then we were hit by dobs, I guess is the point, kind of the way it went there. What an interesting little journey. Main takeaways, anything else or we got it?

0:58:05 Jenessa: Long a long journey of people hit by buses basically yeah yeah we're pretty much uh stuck with state sovereignty being really annoying unless we amend the constitution or get the court to change its mind but there are ways around it you can't extend it out to the state made a private -ish corporation and you still can't sue them? No, not that. So you can sue when you get hit by the bus, kind of.