Matt's Complete Supreme Court Term Recap

Transcript

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

0:00:03 Thomas: It used to be like people assumed due process, like that was just like a part of ground assumptions of how things would go, maybe.

0:00:17 Matt: I do understand the doomers who are saying, you know, the Supreme Court is just going to do whatever Trump wants, but that has clearly not been proven true. And it's not because they're not conservative. It's because they have a different agenda from Trump in many ways.

0:00:34 Thomas: Hello and welcome to Opening Arguments. This is episode 1275. Oh, what a nice number. I'm Thomas, that over there is real life attorney Matt Cameron. How you doing?

0:00:41 Matt: Hey there, just packing up my Supreme Court season gear, you're not getting my Sotomayor jersey back in the box. End of the season, big times.

0:00:50 Thomas: Worse than being a Sharks fan.

0:00:53 Matt: I'll assume that's correct. We still got plenty of World Cup to watch, but Supreme Court Season is officially over and I got to talk about it. There's a lot to cover here, a lot more than is being covered, I think.

0:01:01 Thomas: It was a losing season, Matt.

0:01:03 Matt: No, actually, not entirely.

0:01:05 Thomas: Okay, sure, buddy.

0:01:07 Matt: Here's the thing. The court is not a monolith. They actually do like regular court business.

0:01:10 Thomas: Matt's a homer. You know, he's just a fan of his team, win or lose.

0:01:16 Matt: I'm not really into the Supreme Court. I like Supreme Court season, but I got to say, overall, even on some of the unanimous decisions, I'm not really with them on this. I was very interested to see how many unanimous decision there were, because we didn't really talk about any of them. And there's a lot of stuff we haven't talked about here that nobody's been talking about, because there's just kind of the regular business of the court that has also been happening. So I want to talk about some of that. We'll talk about the big marquee cases, is of course the same ones that everybody else is talking about this week. But I really want to give you a kind of a bigger picture of this term because it's a little more interesting than I thought. Sometimes it's too easy to reduce the court down to a cartoon, people that go along with Trump. Honestly, that's not really what happened this term. It's kind of worse than that actually, but

0:01:18 Thomas: Know yeah yeah hmm yeah hmm

0:01:51 Matt: Also better. I mean, there's also some really good stuff that I think deserves some attention, but they're very much doing their own thing in a lot of ways. It's not the thing we'd want them to do, but it's the thing that they're doing.

0:02:00 Thomas: Is Alito retired or no, do we know?

0:02:03 Matt: That is actually today's footnote. I wanted to talk about the five minutes where we thought that Alito had retired and how that happened, how we report on the Supreme Court these days.

0:02:04 Thomas: Yeah oh okay all right yeah

0:02:13 Matt: I'm going to touch on a lot of cases today. We're going to do a real rundown of a whole lot of things. There are quite a number of cases in here that we're going to be talking about that I'm gonna want to come back to. I want to get some guests back to talk about. I wanna go deep on at some point. I am sure Jenessa is going to want to talk some of these voting cases. So anything I'm mentioning today, we're either going to following up on things we've already kind of closed, just to close the loop on things we've talked about, or we'll probably most likely the most interesting ones be coming back and talking about them again. So I don't want you to think this is everything. But I think just by by doing kind of a quick rundown. And I've kind of grouped these into the best outcomes because there are actually quite a few good outcomes. Some of the more neutral outcomes are just kind of interesting and obviously the bad ones. And there are plenty of bad ones I want to be very clear up front. I'm not here to defend the court. I'm not here. I don't want to say that actually everything is fine. There were some terrible decisions this term, just as there have been every term. There are some decisions that are going to define the shape of this country and the shape of our government and our rights going forward. I am not here trying to give you a silver lining. I just want to give the whole picture.

0:03:09 Matt: Yeah, it's way too easy, especially on these law shows, to just complain constantly about everything the Supreme Court is doing. And what you're doing really is talking about the visible cases, the ones that are getting the most media coverage. But there's a lot of kind of nuts and bolts stuff that is actually kind of interesting that the court's been doing. Some of it might make litigation easier. Some of them will make it harder. Some things that are actually good for defendants in many cases, for criminal defendants, some terrible immigration stuff that I'm going to have to talk about. Voting rights is bad. Yeah. No, no, I'm not. Although there was one good voting rights case, but again, it was very much like the birthright citizenship where it's just kind of the thing they had to do.

0:03:06 Thomas: Yeah just accuracy yeah yeah well that's nice yeah voting rights is awful so that I don't I don't think you're going to convince me that that went well yeah right

0:03:43 Matt: I'm not going to even talk that much about Trump v. Barber, the birthright citizenship case, because the first thing I said after reading this order, we had a show on January 20th, just as Trump was coming in, and we had this executive order about birthright citizenships. That was my first thought, is there's no way the Supreme Court is upholding this.

0:03:57 Matt: I will say, just for what it's worth, and again, I'm Not Babe Ruth here, but I can call it, I can point to the stands. All of my Supreme Court predictions have been correct, for better or worse, that I've ever made in the last two and a half years. I want to try to keep that going. But that's because in many ways, this is a very predictable court. And if you actually read the briefs and watch the arguments, it's usually pretty predictable if you know where they're going to go. The only surprises have been how they've come down. We'll talk about some of those splits. Looking at the stats that we've got from this season, we've gotten more unanimity than you might expect, but also way more polarization as you would expect. So there's some interesting numbers to parse out too.

0:04:32 Thomas: Predictions aside, it is pretty wild to be like, well, birthright citizenship, five, four, five format.

0:04:39 Matt: Yeah, basically. It was really 6 -3, but it is basically 5 -4 in terms of the constitutional right to birth citizenship. I'll explain that when we get there too. In past times under the Warren court, for example, that would have been one of those cases where Warren would have sat everybody down and said, look, we have to send a message. This has to be unanimous. We're going to be doing a three paragraph decision and it's per curiam and everybody's signing onto it. And that's what we're doing, but we're way past that. That's not happening anymore. We don't have those kinds of decisions anymore.

0:05:02 Thomas: Oh boy. I'm really looking forward to what you have because I do agree that there's so much that goes on and we don't hear about all of it. I'm curious for this angle. I always want to know what the truth of things are and what the reality is. So I'm looking forward to it. Why don't we take our first break, which you can avoid at patreon.com/law. Hey, get the goodies, the book club. There's so much now. Book club, a lot of movies. We've got those scheduled out forever. Now we're doing those. It's so much fun. I love that and avoid the annoying ads. Most importantly, support the show. It's the only reason that matt can bring you this info that we can even do this is your support on patreon so thank you so much we'll take a quick break and then we'll dig into matt's sports ball team all

0:05:43 Matt: You got it.

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0:05:47 Thomas: Right, take it.

0:05:49 Matt: Yeah, I was going to try to do a bunch of sports metaphors, but I can't, I just can't. Can't even try. It would be funny, but yeah. So we're in, I don't know, the fourth inning. I don't, I don't know. How many innings are there? Doesn't matter. Okay. The game is over.

0:05:51 Thomas: Away now I think you should because it'll be funny yeah Yeah, oh

0:06:03 Matt: Yeah. So I know that metaphor. Let's start with some basic numbers here, though. One thing that jumped out at me today was ProPublica went back, and this is in the term as of October, so not as of up to now, but this is a really interesting statistic. Not a surprise. But as of October for the first time in Supreme Court history, there were more decisions on the shadow docket than on the merits docket.

0:06:24 Matt: Yes. There are some reasons for that. The first half of 2025 was a very busy time for the Supreme Court, as you might remember, because you had Elon Musk firing everybody. You had all those deportation cases. You had Trump trying to get rid of all of his agencies, right? So you had all these different people coming before the court. That has slowed down quite a lot. And looking at the shadow docket kind of going into this year, it has slowed down a lot. I don't know if it's because they learned anything. I think it's just because the pace of, you know, there was just a flurry of stuff that Trump was introducing. Right. That's right. Yeah.

0:06:49 Thomas: Just right when Trump came in and just a lot of stuff had to be dealt with and you know that's how they do it I guess

0:06:55 Matt: Bertoon ProPublica, and I also want to thank SCOTUSblog for their, they have, they release say stat pack, as they call it at the end of the term. So I'm drawing from some of the statistics here. There's also some stuff I've come up with just kind of going through because I've been following a number of cases just to kind of see what happens with them. And I tried to kind of roughly work this out. Across Trump's second term, we've got 33 emergency applications on the shadow docket. And most of those were, of course, the government trying to get justices to stop some kind of lower court injunction that was trying to stop them from doing something. That was about 80 % of the time that the court has ruled in the administration's favor over the course of this term so far. And I'm talking about the Trump term generally. The shadow docket, just to remind everybody, is extremely important. Even though you're not getting the merits, even though you'RE not getting binding precedent on things that are going to go forward, you are talking about things like whether or not someone gets to keep their job, whether or not someone's going to be deported for life or

0:07:43 Matt: Executed. Right. And so these are very serious things. It's not just provisional as they often call it. These are people's lives. And as we talked about in Wednesday's episode, this is things like the future of temporary protected status, which they effectively eliminated, even though they were not getting to the merits. They just said, nobody gets to have it anymore while you're figuring this thing out. That's important to remember. The merits term, it's an interesting mix of stuff here. So I'm going to later, as I'm talking about all this, we'll run down the specifics of the good and bad. But in terms of the big marquee cases, the big Trump orders, Trump lost more than he won of the kind of four things he was bringing. We can start with birthright citizenship, which I think is honestly the least interesting. You'd think I would think it is the most interesting. I haven't even read the majority opinion because

0:07:42 Thomas: Be executed Yeah, who cares?

0:08:25 Matt: The entire birthright citizenship document is 194 pages. And no, thank you. Yeah. The dissent, so pretty interesting where you have Jackson and Thomas kind of talking to each other from what I was able to skim of them. I think the only thing that's notable really about birthright citizenship, because again, this was assumed, the numbers, as you said, are notable. Officially it is 6 -3 when you're finding the order has to be struck down. But as you say, it is effectively 5 -4 because Brett Kavanaugh and his concurrence, kind of as we predicted when we were talking about the oral arguments, he went a different direction with it. He found there is no constitutional right to birthright citizenship and that it really is up to Congress. And Congress, of course, passed a statute which enables the text of the 14th Amendment, which is where we get birthright citizenship. And he's saying that if Congress wants to, they're welcome to change it and he would accept that. And that's scary because I don't think this Congress right now is going to be able to do that. Certainly, I hope after the midterms, we won't have a Congress willing to do it. But you are leaving the door open for future Congress to do that. You're removing it from being a constitutional right. So effectively, you're talking, as you said, 5 -4 in terms of the constitutional right to birthright citizenship. But the immediate executive order was struck down. And then, of course, we have the tariffs case, learning resources versus Trump. I always enjoy saying that. He's never really going to square up with learning resources.

0:09:38 Thomas: Wow, yeah, yeah. I wish it was just like learning v trump because that would be

0:09:41 Matt: Yeah, so we should shorthand it. That was another one where like birthright citizenship, can't give them a gold star. I'm not going to say they get full credit for this. Does the Emergency Economic Powers Act allow the president to do something the Constitution says that only Congress can do. It's about as stupid a question as, you know, does the president have the right to cancel something that is clearly in the 14th Amendment that is given to everybody at birth? It's the kind of thing, if they'd gone the other way, it would have been a disaster.

0:10:06 Thomas: You're right. It's a kind of question that's so easy. It's five to four. I agree.

0:10:09 Matt: Right, exactly. The two biggest cases of the term, I'm going to argue, were Slaughter, which we should talk about right now. The Slaughter and Cook cases. So Slaughter obviously was taking a look at whether the president can fire members of independent agencies. And that was, Rebecca Slaughter was the plaintiff there from the FTC. And it's a little ironic because the FTC was at the center of the original precedent that is being challenged here. One thing I was also looking at when I was running down my Supreme Court sort of scoreboard was how they did for Project 2025. Just an interesting question to me.

0:10:42 Matt: From our reading of Project 2025 and our discussions over the last couple of years about it, one thing that I made sure to mention is that Project 2025 was very intent on overturning this case called Humphrey's Executive from 90 years ago, in which FDR was trying to fire a member of his Federal Trade Commission because they were not implementing the New Deal the way that he wanted. And the court said he couldn't do that.

0:11:03 Matt: And that has been the rule for 90 years. But Project 2025 said in no uncertain terms that the next Republican administration should do everything possible to act like Humphrey's executor doesn't exist and to seek it being overruled. And so this is the one place where I can say that's a clean win for something that Project 2025 wanted. The net effects of this could be pretty bad. The court clearly has its own kind of vision of executive power here for now, right? But again, remembering that birthright citizenship and tariffs and these two firings were all executive actions. They're all things that Trump did independent of Congress on his own. So the slaughter case comes down saying that he does have the right to fire members of independent agencies. And there's a whole lot of weird stuff about the king and about all the kinds of originals history to expect. But then of course, on the other side of it, you've got the the classic don't mess with the money rule. And you've got the Cook case with the Federal Reserve. And as we discussed at the time,

0:11:27 Thomas: For Now, while Trump's in office. Yeah. Yep. Yeah.

0:11:58 Matt: There was no way they were going to find that he could remove a member of the Federal Reserve because that is really bad for the economy and for our global standing. I have to give full credit to Amy Coney Barrett, who was the only person I believe who was in the majority on slaughter to say that they should be able to fire members of independent agencies and in the dissent on Cook. Let me just read a little bit from her Cook dissent because I just thought it was kind of funny that she's being this direct about it.

0:12:21 Thomas: Yeah. Let her cook.

0:12:22 Matt: Exactly. Let her cook. She's pointing out that Slaughter announces a categorical rule, which is that when an agency executes a congressional mandate against private parties, it exercises executive power and has to be subject to plenary executive control. And citing, quoting Slaughter directly, she says there's no ifs, ands, or buts about it, that these are executive agencies controlled by the executive.

0:12:44 Matt: Yet here, the court claims a special exception, quote unquote, sanctioned by history and based on the Federal Reserve's role in setting monetary policy. How can history support both a categorical rule and a carve -out?

0:12:55 Thomas: Sure seems odd, doesn't it?

0:12:57 Matt: Yep. And she cites Sotomayor's dissent in Slaughter for this point. Do all the Federal Reserve's existing regulatory powers have the requisite connection to monetary policy? If not, are they grandfathered in?

0:13:07 Thomas: Yeah.

0:13:08 Matt: Pretty reasonable questions, but no answers to those. And the answer is really, like I said, I think it's just because practically they know better.

0:13:14 Thomas: The thing they're doing was dumb. They were doing a special carve out for the dumb thing. So there's obviously not going to be any justification for it that makes any sense.

0:13:24 Matt: Exactly. Slaughter and Calais, which you and Jenessa have discussed at length, the Voting Rights Act case, which effectively destroys Section 2 of the Voting Rights Act and stands up for white people, the true oppressed minorities in voting. Those are the two worst cases of the term. Those are the two most impactful cases. And I just want to get this out of the way because I'm going to talk a lot about the good cases, and I want to acknowledge the bad ones first.

0:13:44 Thomas: So is the voting rights in the Humphreys executor or which two were the worst?

0:13:48 Matt: Yeah. In terms of the outcomes, in terms of the net effect and the number of people affected and how it's going to affect our government and our democracy, I would say that Calais and slaughter are the Two Worst. But I would have have to give a pretty solid tie for a second to, I'm just going to kind of group the trans rights cases.

0:14:06 Matt: We have Scrimeti about access to healthcare. We've got West Virginia v. WBJ that just came out a couple of days ago about state bans on trans athletes for schools. And then we have Charles v. Salazar, which we didn't really discuss, but that was finding that conversion therapy as protected speech has to be subject to strict scrutiny. That's kind of a mixed one, but my understanding is, I mean, it's very obviously conversion therapy shouldn't exist, and it is generally disfavored for good reason amongst the medical community. Obviously, Scrimeti and NWBJ were the really bad precedents. These are things that are going to be very, very bad. Shell v. Salazar is a little more nuanced in that it is remanding back for a strict scrutiny review. But these are clear statements about the state's ability to ban trans people from access to health care and athletes, children particularly. But of course, there's no reason, as discussed at oral argument, why this won't eventually apply to adults. I just wanted to note that because I do not want anybody listening to think that we have not noticed that. We've been talking pretty consistently, I think, about Scrametti. I want to have guests on in the future to talk a little bit more about the future of trans rights after these decisions and where things are going and what the states are doing. But the just obvious, top of the line, bad cases. We have got a case that will allow the president to reform the federal government in his image, basically, by firing all kinds of agency heads that previously were not subject to presidential control. We've got the Voting Rights Act case, which Jenna says has done a very good job of explaining, I'm not going to get back into, but essentially allowing racial gerrymandering in a way that was not supposed to be allowed. And then we have these trans rights, or I guess trans wrongs in these cases. I would also put up at the top of the worst, the case that we did on Wednesday, Mullen v. Doe, about how temporary protected status is unreviewable.

0:15:42 Thomas: Wonder

0:15:43 Matt: No matter how they reach the decision, the courts are going to find that they can't review how they terminated TPS, which is really bad.

0:15:50 Thomas: How many unreviewable things there were before this court like I know it exists I guess but like I feel like that's something that I didn't start hearing about until this stupid

0:16:01 Matt: It's also that Congress has passed a lot of statutes that say that certain parts of this aren't reviewable.

0:16:04 Thomas: Court, hmm, okay, fair.

0:16:04 Matt: So then you have to review that about how reviewable that is or what the parameters of that are. But they like to find certain things are not reviewable and that other things are extremely reviewable. Some of the other bad cases, we had Eltro Alotto v. Doe, which I'm sure I'll talk about at some point. That is a pretty strict limitation on the rights to seek asylum at the border. And that is the one that we discussed the other day where Alito had the unprecedented step of actually orally sort of responding after Sotomayor heard Redderson.

0:16:28 Matt: We've got a case that went completely under the radar. And this is interesting because it's a unanimous case. I've got several of these unanimous cases I want to talk about. There's been kind of a headline that I think is a little misleading about how this is one of the most unanimous courts in about 20 years.

0:16:26 Thomas: Enough oh right yeah Yeah, yeah.

0:16:40 Matt: It's true in a way, but in terms of 9 -0, we're just looking at the stats I've got here in terms of the signed 9-0 decisions. It's about 36% of the cases, and they're mostly pretty benign procedural kinds of nuts and bolts kind of law cases. Some of them are actually pretty good, and we'll talk about them, but this one, not so much. This was a 9-0. I haven't seen any coverage of this except a bit in the immigration world. This kind of locks in a very high standard of review for when the circuit courts are looking at the immigration judges and the Board of Immigration Appeals when they've reached findings of persecution, about whether you've actually suffered persecution. And that is a really open question in asylum cases, because you wouldn't believe some of the things you could sustain, some ofthe physical violence and threats you can sustain, and they will find it's not persecution.

0:17:23 Thomas: Obviously, yikes.

0:17:25 Matt: It is kind of a mixed question of both law and fact, because it's not a matter of fact that you've been persecuted. You have to apply the law to determine if the things that have happened to somebody kind of rise above what they call mere harassment. Because it's a mixed law and fact question, there's been kind of this open question about whether how reviewable it really is. Because generally speaking under AUSC 1253B4B, you can't have any circuit court review of conclusive findings of fact. What the court found in a 9 -0 is that these are not reviewable and it has to be a substantial evidence standard. You'd have to show that no reasonable fact finder could have reached these conclusions. And that's for the finding of persecution. So it makes it that much harder to review asylum cases in an environment where we already have the immigration courts and the Board of Immigration Appeals stacked with Trump employees. I'm not going to say appointees because they're not appointed. They're just hired to be in those positions. We have NRSC v. FEC that expands Citizens United.

0:18:17 Matt: This one, again, was kind of in the flurry. I think that was in the last day there.

0:18:20 Thomas: That was so funny because I saw that reported by the New York Times and it was, it's one of those like court overturns, you know, kind of the final campaign finance limit of any kind in huge win for Republicans. It's just like, why they could just report that as huge win for Republicans. And that's fine. It's just weird to even say that.

0:18:41 Matt: It's a loss for democracy is what it is. Kavanaugh goes out of his way to talk about how this isn't going to benefit Republicans. It is going to benefit Republicans and Democrats. All the dark money. Everybody is spending dark money. That's right. We love it. We love it,

0:18:49 Thomas: Yeah. Yeah. We all benefit from all the dark money in politics, right? We all benefit equally from it.

0:18:56 Matt: Damn. This was particularly about limits that were imposed by Congress through the Federal Election Campaign Act. The rules had come down to how much the party committees can spend to coordinate with candidates, and that's gone now. J.D. Vance, when he was in the Senate, started this off with a lawsuit and challenged the spending limits. And of course, under Citizens United, when money is speech and you can spend as much as you want, you can't restrict it, the rule is extended. So this is just another extension of Citizens United. It's bad. I'm not going going to say it's not. Just trying to make sure that you are clear that there are a lot of bad cases. I promise in the next section, we're going to talk about good cases. We've got Lander, which you might've heard about with the, it's a religious liberty case. It's a very unusual one because it's really actually more about the spending clause, according to Neil Gorsuch it is. But this is the one in which you had a Rastafarian who had a few weeks to go on his sentence in prison. He's showing prison guards a fifth circuit decision that says that he needs to be allowed to keep his hair, which is a very important part of being Rastafarian. Unfortunately, they forcibly held him down and shaved his head.

0:19:53 Thomas: So awful.

0:19:54 Matt: It's terrible. This is just basic religious freedom stuff. The Gorsuch opinion in this, of course, and there was a whole series of cases, and I don't have to do maybe even a whole show on this. In the past couple of weeks, there's been a series of cases about who gets to sue and who doesn't. And you will not be surprised to learn that a Rastafarian prisoner does not have the same rights to sue as Exxon Mobil, for example, which has lots of rights. This was a particularly weird one because there was an interpretation of religious land use and institutionalized persons act, which was passed specifically to apply to this kind of situation. I mean, probably not Rastafarians. I think they were thinking of different kinds of people. But it's a spending thing. It's how Congress appropriates money, and it's conditioning things. Neil Gorsuch found that these officers were not bound by any of this, and there's no right of action against them, and they didn't have to follow it. So it makes it a completely meaningless right, these basic restrictions. And so this is an unusual religious liberty case. You get the three liberals dissenting in this case. We'll get into some of the stats at the end. There's some interesting things that come out from the numbers. I'm just going to run down a few more not -so -good cases. We've got CASA, of course, v. Trump, which was the first round of birthright citizenship, where that was just looking at the stay, and they took the opportunity

0:21:03 Matt: And the concept of universal injunctions against the government under certain circumstances. There are still alternatives, and things have still been working, but that overall was pretty bad and potentially could open things up to having very different law in different parts of the country, making it much harder for people to get in the door for these kinds of suits and to enforce against the governor. We have got Blanche v. Lau, which is kind of a last -minute immigration case case from last week that didn't really get a lot of attention. This is about permanent residents who are returning to the United States. This was a particularly interesting one to me. When you have a green card and you're coming back through the airport, you're technically seeking admission. Even if you've just been out of the country for a few days, you know, just in the Caribbean or whatever, coming back in, you are not usually seeking admission, usually you have a Green Card, you don't have to be let back in. You don't need to go through any process. You just show your card and come back in but there is an exception that if you have committed certain offenses, now that has generally been interpreted to mean if you had been convicted of certain offenses because how is is an immigration officer supposed to know, a CBP officer, supposed to know if you've committed certain offenses without a record in front of them, right?

0:22:01 Matt: In this case, this person traveled out of the country with pending charges of some kind of financial crime. He's coming back in from China and the officer pulls him aside, sees their pending charges and puts him into proceedings because if somebody is seeking admission, when you find that they are not just doing a regular return, you can detain them if you want to. Most of the time, in my experience, they just release people and have them come back to the airport to kind of talk to an officer and establish whether or not they should initiate removal proceedings, put judge decide if they get to keep their residency or not. So this is a lot of power. CBP has a lot of power all around, but potentially you can really mess somebody's life up and you can take their liberty. So that was a Clarence Thomas joint. And he essentially found that there's not only not a clear and convincing evidence standard for whether an immigration officer can initiate these proceedings, but there's really no standard. He didn't actually, he didn't give us a

0:22:00 Thomas: Hmm, huh.

0:22:46 Matt: Standard, which is pretty bad. And it means potentially that you can see a lot harassment of green card holders coming back if they have anything that looks like a record, or even if the officer can make an allegation that they might have a record somewhere.

0:22:57 Thomas: Thomas can't really be bothered to give anyone a working standard. Didn't you do the stupid gun one that was like the history and tradition gun thing?

0:23:05 Matt: Yeah, right.

0:23:05 Thomas: And then people were like, how, what do we do with this?

0:23:06 Matt: Exactly. Yeah.

0:23:08 Thomas: Yeah. He's not, he's not a stickler for the details. Yeah.

0:23:10 Matt: No, no. And this one could use a standard. And Congress didn't really create one, to be fair. But I do have to think when Congress wrote anybody who's committed an offense, they don't just mean like anybody who is alleged to have committed offense. They need to see that it's locked in, that you have committed it at the point at which you were convicted. I'm sure that's what they meant. But Thomas didn't find that.

0:23:28 Thomas: It used to be like people assumed due process. Like that was just like a part of the background assumptions of how things would go.

0:23:35 Matt: I remember even having a presumption of innocence, I think it was called. I don't know. I think that was a while back. So that's not so good. And that's just one of those sleeper cases as I wanted to note. There's also, if you're into gun rights, this is good news, I guess, but there is welfare to be Hawaii. I don't know if you saw this about this Hawaii law that was criminalizing concealed carry.

0:23:37 Thomas: Maybe this was Good news? Oh.

0:23:52 Matt: It's good news for gun owners. If you're gun rights. It's not good news from me. I was trying to divide these out into like good for constitutional rights, good for civil rights, criminal immigration stuff. If you're a second amendment absolutist, if you are an expansionist, this is great because it means that Hawaii could not criminalize.

0:23:54 Thomas: Okay. I was going to say, this is terrible news. Yeah, it's stupid.

0:24:10 Thomas: Yeah, man, you could say the campaign finance one you talked about was good for free speech rights. Yeah. Yeah.

0:24:13 Matt: Exactly. Great for first amendment, right? If you are that kind of libertarian, sure. Sure. Yeah. Yeah, I don't personally think so. But this was trying to criminalize concealed carry on private property, open to the public, absent the owner's express consent. So if you posted a sign that said no guns, apparently you can still walk in with a concealed carry. I don't like that at all.

0:24:33 Matt: I would say those are the worst of the cases that we have. We can take a quick break and come back and talk about the neutrals and the good cases, because there are some.

0:24:41 Thomas: All right. Well, that's good. We saved it for the end. Why don't we take that break? And then we'll apparently, allegedly, good news. Can't wait to hear what, the sound of going to break is just going to be Matt going, and like driving away, you know, like the classic, like, and we'll have the good news right after that oh he's gone all right matt if you're still there what's the good news, hmm?

0:24:55 Matt: Yeah, right, yeah, you find it.

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0:25:06 Matt: All right, I'm absolutely still here for this we'll start with the neutral news the thing is I think they're just kind of interesting these are all nine zeros nobody's really talking about what the nine zeros are and it's interesting just to kind of get a sense of the court as I said that immigration case that I didn't like involving asylum review is the only nine that I really didn't like, but as I said about 36 percent of the overall docket this year was nine zeros that were actually signed by somebody not per curiam to give you a sense of kind of the everyday business of the Supreme Court when they take a case and they're actually looking at how the law should be run. We hear about the social stuff, which is important, obviously. There's nothing more important right now, I think, than trans rights and the civil rights front, and certainly prisoners' rights and defendants' rights. I'm always watching for just in terms of how any of this stuff works. Like this one, I don't really have an opinion on this. And this is interesting because the one I'm going to tell you about, it's Villarreal v. Texas. This is written by the first public defender ever to serve on the Supreme Court. So I do trust Jackson more than most people on defendants rights. But think about this situation. The defendant was the only witness in his murder trial. He was claiming self -defense. He'd stabbed someone. So court takes a 24 -hour recess. They negotiate an instruction with defense counsel in which obviously they're not going to restrict defense counsel from talking to his client. He has every constitutional right to confer with counsel, but he gave him a very specific instruction that he couldn't coach the testimony. They couldn't discuss what the testimony was going to be, couldn't do anything that would be sort of managing what was going to be seen in front of the jury. You can talk about maybe there's another witness we could put in, or there's a motion we can file, or here's what you can expect from sentencing, any of that kind of stuff, right?

0:26:32 Matt: But you're not going to talk about ongoing testimony, no coaching. And he challenged that and said that was a problem for his defense. And this was upheld 9 -0, the judge's decision in that case. I think that makes sense. Generally, ethically, we're not allowed to coach in between. Once somebody's taken the witness stand, we'RE supposed to just have them testify. And if you have a break, you'RE not supposed to take advantage of that. So that fits with my basic ethical understandings. We've got Case v. Montana, which is about the emergency aid exception. So this is the kind of thing where if somebody calls in and says, there's somebody with a gun in my neighbor's house, and I don't know what's going on. Or I think that my neighbor is going to hurt himself, right? It allows police to go into your house without a warrant.

0:26:32 Thomas: -hmm yeah hmm

0:27:08 Matt: The question was, do you need probable cause? If we're talking about emergency aid, maybe there's not even a crime being committed. You could be talking about somebody who's going to hurt themselves. They found that it's an objectively reasonable basis. This was a case in which someone was called in and alleged to have been suicidal. They thought he might have a gun. And so the police rushed in and they shot him.

0:27:24 Thomas: They do that he might have a gun he's suicidal let's quick let's do something about that yeah

0:27:30 Matt: Let's shoot him, right?" Sotomayor had a really good concurrence on this one. This wasn't I know as well. And they found on that there can be, if there's an objectively reasonable basis, and this does make sense. And I really liked Sotomayor's concurrence because it was very cautionary about, let's try to make sure we understand what this is for and why it's used and that police should always consider alternatives to just rushing in when there's a mental health crisis. Gorsuch had an interesting concurrence, of course, typical kind of Gorsich thing where he's like, hey, does this even need to be a warrant exception? Because the common law has always had this exception.

0:27:58 Matt: Let's just say it's the commonlaw, which is pretty funny in 2026. Just an interesting thing. There's always been like a public safety exception that has allowed peace officers to go and into people's homes if there's an emergency. That kind of makes sense instead of calling it an exception to the warrant requirement, but I think I'd rather call it an exception to the warrant requirements because the presumption should be that police need a warrant.

0:28:01 Thomas: What's common law exception hmm right yeah yeah.

0:28:17 Matt: Interesting case called Coney Island Auto Parts about a defunct auto part company in New York. I'd never really thought about this because I don't do a lot of civil litigation, but when you're challenging a judgment as void, when you'RE saying that it was void of ad minutio, that the whole thing never should have happened, they're actually imposing time standards on that, which seems a little counterintuitive because if you're saying that it was never a good judgment. Maybe that you should be able to come do that anytime. In this case, you've got a bankruptcy in 2015. You've got an acclaim that was brought against the company that they became aware of by 2016. They were alleging there's some kind of service issue, but they didn't do anything about it until 2021.

0:28:51 Matt: And Alito writes for unanimous court in this and says, there's got to be limits here. We have to say that reasonable time means something. This kind of goes against what I think a lot of lawyers have always thought, that if something's void, you can sit on it if you want to and come back and try it later.

0:29:03 Thomas: Hmm, interesting.

0:29:04 Matt: I think that's probably all be better for the system to have people not try to decoy something void 20 years later. Those are the kind of neutral things. So in terms of good, I've already mentioned Cook, and I think that's obviously an unqualified good, even though it comes with slaughter, the idea that you can't just fire somebody from the Federal Reserve because we have to have an independent central bank. Interesting case called Barrett v. U .S. It goes after a pretty common federal prosecution strategy in which they use two different parts of the gun statute, 18 U .Sc. 924c and 924j. You You might recognize 924 because that is actually what's going to come up in Hamani on the guns and drugs statute that Hunter Biden was convicted under.

0:29:42 Matt: They would commonly do this double dipping kind of thing where they would charge somebody in a 924C, which is using or carrying a firearm during a crime of violence, and 924J if you're carrying a gun in a crime in which someone dies. And that's potentially up to life. And they were kind of stacking these two offenses. This is a good, clean 9 -0. Can't do it. Prosecutors can't stack these things. They're too close. They're just playing games. I love this kind of stuff, right? That's good. That's a good ruling.

0:30:06 Thomas: Yeah. I'm curious it's a 9 -0. I surprised Clarence Thomas went for that. He's so tough on crime, usually.

0:30:13 Matt: It was one of those things where there's different parts or whatever, but the holding itself was 9 -0.

0:30:17 Thomas: Gotcha.

0:30:17 Matt: And then there's a case you discussed with Jenessa, Pitchford v. Cain. It was a 5 -4 in which a death penalty case was sent back because the defense didn't get enough opportunity to challenge the prosecution striking four black jurors from a case with 11 white jurors and one black. So that was unusually good outcome for a death felony case for the Supreme Court, even if it was 5 - 4. I think maybe two of the biggest kind of slept on cases from this term in terms of criminal rights and defense rights. Hunter v. U .S. is a really good one. This is about appeal waivers. When you plead guilty, you're generally giving up your right to appeal anything.

0:30:51 Matt: This can lead to some unfortunate results. And in this case, you've got a man who wanted to appeal. He was taking a plea. He understood the conditions of the plea, but he was told that as part of his probation, he was going to have to submit to certain mental health medication that he didn't want to have take. The judge told him at the time of sentencing that you could still appeal that part of it, but that was an error. He was wrong.

0:31:12 Matt: He entered a guilty plea on the understanding that he was going to get to appeal that Part. He didn't get to to appeal that part. Generally speaking, an appeal waiver is something that has been considered to be absolute once you've signed it. So Kagan makes this very good point, also in a 9 -0, that we've got to leave some room, right? There's got to be some room for miscarriage of justice if the court just totally misrepresents what's going on or if somebody really gets it wrong.

0:31:33 Matt: We don't want to do this in a way that opens up the kinds of appeals that appeal waivers are supposed to be blocking. She says, from start to finish, courts are in the middle of and partly responsible for appeal waivers and their results. Because that is so, the standard for enforcing appeal waivers implicates the interest not only of the agreement's parties, but also of the judiciary. If the court always carries out those waivers, no matter the kind or degree of error in tainting a sentence, the judicial system's integrity may come into question. So just to keep the integrity of the system, we have to have this safety valve so that people can challenge these things. One I really liked in Ellingberg v. U .S., also 9 -0, this is kind of an open question for a while about whether or not restitution is punishment.

0:32:09 Matt: Typically, it hasn't always been considered to be punishment because you're just repaying something, damage you did. It's not punitive so much as it is just restorative. The court takes a close look at what restitution is, at the history of it, and it shows that obviously when it's part of sentencing and you don't pay that part of it and you can end up doing more time, you know, just it's treated like any other probationary condition. This one is especially interesting because I agree with it because it's an ex post facto thing. This man owed $7,000 from a bank robbery in the 90s and then there was a change in the law. And because of this change in law, they were going to increase his restitution. I don't think they put the number in that they're going to decrease it, but they're just going to of retroactively increase what the restitution was when he'd agreed to a certain amount because of this change in the law.

0:32:48 Thomas: Huh yeah that doesn't make

0:32:51 Matt: That's ex post facto. You're clearly punishing somebody after the fact when they've already reached an agreement. But the idea was, well, restitution is civil. It's not a criminal penalty, so we can do whatever we want with it. And the court finds, no, you can't do that. And I think that's a great outcome. And the thing that really blew my mind about this is, as I'm reading the Gorsuch and Thomas concurrence, I'm just nodding along. I'm actually completely in agreement with a Gorsuch-Thomas concurrence in this case.

0:32:59 Thomas: Sense

0:33:14 Matt: They're actually saying that the original case from 1798 that has been interpreted to mean that you can only have ex post facto issues with criminal offenses has been badly misinterpreted. And we now have this whole scheme of interpreting it from Calder v. Boal from 1788. And they're saying we have to reconsider how we looked at ex post facto because there are so many things that are technically civil that are extremely punitive at this point that we could have this kind of issue with that we have with the retroactively increasing them. And I'm all for that. I'm for controls on any kind of retroactive punishment for people. So I think that's a very good outcome. And then we got one more very good criminal law case, Boe v. U .S. I don't really see anybody talking about it, but Roberts joined the majority in this one to allow the possibility in some cases of multiple post -conviction federal motions under Section 22 to 55 when you're trying to challenge a set -aside judgment. Anything that opens the doors to more post - conviction stuff is good for me. Great stuff there. And Chaudhry, which I think Jenessa wants to talk about at some point sometime soon, so I won't spend too much time on it here. But this was about whether there's a reasonable expectation of privacy in your cell phone location data and geofencing. This is another one of those that honestly, like tariffs or birthright citizenship, it seems pretty obvious that your phone is recording all of this extremely personal information about you. Of course, you should need a warrant, but it's the kind of thing that would have been pretty bad if it went the other way. And I've seen people saying this is one of the most important Fourth Amendment decisions in a while, so I'll give a credit for that. And then we've got Hamani, which we talked about a couple months ago, which is is the very rare intersection of gun rights and weed rights. This was a 9 -0. It didn't come out the way that I wanted. It basically came out the way I predicted, but not the way that I would have wanted. This is the petitioner who he's charged under the same provision of section 924 that Hunter Biden was. If you remember that Hunter Biden was charged with applying for a gun license at a time when he knew allegedly that he was suffering from addiction.

0:33:12 Thomas: Wow yeah

0:35:05 Matt: The entire trial was about trying to nail down exactly when and what he's addicted to and what his status was. It's a big mess. 922G3. This is the one where the federal government was trying to say that there's a historical analog because it's a Second Amendment case. You're saying, when can you restrict gun ownership to people that occasionally use marijuana, right? Is it the same as habitual drunkards, which is the closest thing they could find when habitual drunkards weren't allowed to get guns for obvious reasons in colonial times? I was a little disappointed.

0:35:33 Matt: This came down as a Second amendment decision and kind of looking at the history and tradition of how we restrict gun rights to people. That may have substance problems or other kinds of social ills. The entire statute that it's looking at, that it is brought under, is really vague. I mean, it's an incredibly vague thing about this drug use or addiction.

0:35:50 Matt: It was a Gorsuch decision. I would have kind of hoped that, yeah,

0:35:49 Thomas: Interesting yeah this is the one where gorsuch had to he got all creative where you know talking about all the how much they used to drink and it just annoyed me to no end because it's just like so obviously this unlikable asshole trying to like I don't know yeah well and it was it was so folksy and like he felt so like pre -prepared like oh I'm gonna I'm gonna wow this audience I'm going to make them all love me Neil

0:35:58 Matt: That's right. That's right, give you a lecture. Yeah, yeah. He's coming in with his facts. Yeah. Well, it earned him a clip on opening arguments. Worked for him. But yeah, no, I agree with him. I would've thought, Gorsuche being the way he is, that he might've wanted to strike this. He enjoys a clear text, obviously. To me, the statute is void for vagueness, but what they did instead is they just said it's unconstitutional as applied to this particular plaintiff, which doesn't really help. It's a good thing to be able to reference. It doesn't necessarily precedential for a lot of things, but I hope it helps prosecutors maybe consider how they bring this kind of stuff against people who are just smoking weed once in a while and gun rights for people that are just smoking weed once in a while, which are really no different from gun rights or people who have a few drinks. That is my rundown of, and again, there are actually a few more than that, but we'll keep moving here. That is my rundown of the best, I think, of the term, the really good outcomes, not at all to negate the really bad outcomes, but just to point out that there's a lot of stuff happening that the media just doesn't cover and that's what we're here for. That's what we're trying to do. I want to go deep. I don't want to get guests on to talk about some of these other bigger decisions. One of my obsessions right now is trying to track how the conservative legal movement created the case that became Barbara B. Trump. They created this whole alternate history of birthright citizenship. I wanted to get somebody to talk About that because it's fascinating. And as we've discussed before, you've got people like Ellen Worman and pretty much two other people that were willing to put their names on the idea that maybe that It didn't mean what it said it meant in the 14th Amendment. There's stuff like that that I want to develop from some of these cases, but I just want to do the overview for now. A few of the things from the statistics that we have now, the two -decade average has been hovering around 40 % for unanimity, and we're around that in this term, more than you would have expected, I think, maybe. But the polarization is pretty clear, and no surprise to anybody. More than one in five decisions in this terms were 6 -3, so that's just straight ideological. Ideological. According to SCOTUSblog, over the past five terms, the average for 6 -3s has been 11%, or the ideological split, at least. It wasn't always 6 -2, obviously.

0:36:17 Thomas: Gorsuch yeah yeah

0:38:05 Matt: We've got doubled the ideological splits. I think that's important. And that, of course, is one way, because out of all of those, it's Sotomayor, Kerrigan, and Jackson pretty much always in dissent. And just one case in which Thomas Alito and Gorsuch were on the losing end, and that was Trump v. Barber, the birthright citizenship. Pretty much what you'd expect. In the closely divided cases, the six threes, five fours, 100 % of the time, Jackson and Sotomayor agreed, and 4 % of the time Jackson and Alito agreed. That was an interesting statistic.

0:38:35 Matt: I don't actually don't know which case that was. About 25 % of time, we had Sotomaior, Kagan, and Jackson teaming up in dissent. That's pretty expected. And then about 15 % of cases, there were three or more conservatives dissenting. Pretty much what you'd expect. But the shadow docket thing, I think, is really what we need to pay attention to. What is going on with these cases where they're making really split decisions. Because on the one hand, you've got CASA, as I was saying, with the universal injunctions where they're going to keep a lot of people out. But then on the shadow docket, they've been more and more willing, and this is a trend I've been trying to follow, to find that it's pretty much automatically irreparable harm if the government doesn't like it. And that's very concerning. That's one trend I really want to keep watching because that should not be happening. That is not the purpose of this. Irreparable harm to the government should be a lot more than that, a lot than Trump wants to do it. But he can't. That just is not how it works. But in terms of the writing stats, I thought it was kind of interesting. Thomas was the winner, actually,

0:39:28 Matt: With 28 total opinions and 15 concurrences. And his concurrences, as we were discussing just on Wednesday, and as we've talked about many times before, his concurrencers are almost always, have you considered going back 100 years? Have you considered doing the weird thing? Unfortunately, sometimes I think he's showing us where this court might be heading as it gets more conservative. So they're worth reading for that, if nothing else. Jackson had 26 total opinions, which for the most junior justice, I think is pretty impressive.

0:39:52 Thomas: Yeah I wouldn't have thought that to to, to your point of like how much we can't quite cover everything. I would never have, I would, I would have guessed like five.

0:40:00 Matt: Yeah, she's been busy. She also was the dissent leader. In terms of actually writing dissents, she wrote a total of 10.

0:40:06 Thomas: Yeah. Good.

0:40:07 Matt: So she was the least often in the majority, 67%, and 41 % in the more divided cases.

0:40:12 Thomas: Yeah, I think she's probably doing the best out there. I mean, I love Sotomayor, but I, I'm maybe, maybe Jackson's the new, my new favorite. I don't know.

0:40:21 Matt: Oh, no. There's a sports metaphor here, isn't there?

0:40:23 Thomas: I Don't know yet. Yeah.

0:40:24 Matt: Something about a rookie or MVP or something. I don't know. But she's the dissenting MVP for our side, I guess. That was Sotomayor's role, and it still is very much, but sort of like the lead dissenter, the person who's speaking out and building the record. And I think that's what expect the junior justice in the liberal wing to be doing. And that's fine. John Roberts only authored six opinions this entire term, the fewest. As the chief, he gets to assign, when he's part of the winning block, he gives to assign the decision. So of course, he assigns the big ones to himself. He wrote Slaughter, the Humphreys executor case, allowing the president to fire everybody.

0:40:29 Thomas: Rookie of the year. Yeah. Really? Boy. Voting rights.

0:41:02 Matt: He wrote the Federal Reserve, Lucas Lisa Cook thing, the tariffs case. And he also wrote the longest opinions on average, about 7 ,100 words. So thanks for that, John Roberts. I really appreciate that. That. So he's writing the least, but also the most when he does write. And he's also in the majority 95 % of the time. It's good to be chief, I guess.

0:41:20 Thomas: Yeah. It is his court.

0:41:23 Matt: Yeah, that's how it works. It doesn't mean they're persuasive. It just means that they're obviously in the right.

0:41:27 Thomas: Yeah, I mean, you could argue that like he doesn't want to be on the other end of five fours, you know, when it's going to be a victory anyway. Because like there was a lot of talk like, did he lose control of the court once Amy Coney Barrett was on there just because of, you you know, how much pure MAGA, who knows if he really is in the majority that much, or if it's, if they're going to win anyway, he still wants to look like he's in control of his court. I don't know.

0:41:49 Matt: And that's his prerogative, I suppose. And after everything that's come out about him in the last year or two, he has a lot to make up for. I think this is interesting as a writer who's doing the most and least writing. The shortest individual opinion of the entire term. Amy Coney Barrett, her dissent in Chautry, the Fourth Amendment case, geofencing. 60 -word dissent, which I appreciate. That's the way it should be. The longest dissent was Thomas's and Barbara, the birthright citizenship case, and he wrote 29,400 words to dissent. Yeah. Just a novella. Just not necessary.

0:42:19 Thomas: That's a lot of words. What's like a book? How many words is a book I have? No, I don't read. I have no idea. That seems like a lot. Oh yeah.

0:42:24 Matt: Yeah. That's a lot of words. I mean, I think... Actually, wait. I've been trying to write one myself. Let's see. Average number of words in a book. More on that soon.

0:42:33 Thomas: Can't just drop that on us. What are you writing

0:42:38 Matt: The thing is, if I talk about it too much, then it won't happen. I got to finish it first, but I'm really proud of it. 70 ,000 to 100 ,000 words in the average adult fiction novel. So you're writing half a book, good for you, I guess. It's half of a romance, apparently, 60,000 words.

0:42:39 Thomas: About yeah yeah yeah wow so let that be inspiration to you, Matt you know

0:42:53 Matt: That's right, if he can do it. And if he can do it to take all that time to explain why the 14th Amendment doesn't mean what it says, then I can certainly finish what I'm doing.

0:42:58 Thomas: Yeah yeah well I guess you'd want to write something that people want to read though I guess that's the only downside never

0:43:04 Matt: I hope so. Yeah. Right. I'd seen this thing about how there's a lot of unanimity, but I hadn't seen what it was about. With the exception of that asylum decision, I agree with the nine zeros. I think they're all pretty sensible. Oh, there's another one too called Enbridge Energy about removal. And I'm not sure what to think about this because again, it's not, it's kind of outside of my field. I can see a lot of civil attorneys not liking this, especially those with ADHD. The holding is very straightforward. This is about removal from state court to federal court when you get to do it. They found that it is a 30 day deadline. Like it is a hard deadline. You don't miss that window. You can't argue back in. That's it. It's just just mandatory claims processing, which is good for managing the courts. It makes sense. You can't have people coming back months later and saying they want to remove it. That's just one of those interesting kind of like bar exam kind of cases that actually really matters a lot. Very much like the Coney Island thing.

0:43:16 Thomas: Mind what's the coney island

0:43:55 Matt: Oh, that was the one with how you can't just come back years later and say something was void. You have to actually challenge it closer to the time. In terms of how you're going to practice, how you are going to advise your clients, how are you going to set your strategy and this stuff, it really matters. It's why we got to pay attention as lawyers to just happen to be called Coney Island Auto Parts. It makes it easy to remember just some guys in Coney Island. 9 -0 doesn't mean that they're absolutely right. And it could certainly, some of these could be proven wrong, but I can't, except for the asylum thing, I can'T really say any of them are.

0:43:58 Thomas: Thing oh yeah I guess the Title IX trans rights case was not you know that part of it and I'm I'm really curious what what you think about

0:44:24 Matt: I want to get a guest on to discuss that. That is a bit beyond my ken. It was interesting the way that came down. I mean, that's obviously, it's unfortunate that they found that states can ban trans kids from playing the gender they identify with. Kind of underlying that was the 9 -9 agreement, the Title IX, which protects women's rights in universities doesn't apply to this, or gender rights in universities. So I honestly have not had the time to even look at that. It doesn't sound right to me. I'd like to know how that happened, but I think I want to get a guest to talk about the future of trans rights specifically. It's too important.

0:44:58 Thomas: That yeah we gotta talk about that case for

0:45:01 Matt: Absolutely. Just today, in terms of looking back at this term, I think the things we're going to remember here, obviously, are the fact that the president can now fire all kinds of people he wasn't able to fire, and that two of the big swings that the Trump administration took, birthright citizenship and tariffs, like major signature policies, things that he He promised he was going to do by executive order, which everybody at the time said, you can't do that by executive order. It turns out even the Supreme Court is going to say you can't do that by executive order. There is a lot to the idea that I think that they would much rather that we spent this entire time today talking about the birthright citizenship case. They released it at the end. They wanted to be the big dramatic finish.

0:45:39 Matt: But of course, on the same day, they released the trans athletes and the very bad campaign finance case, which are much more important because those were not inevitable. Obviously, birthright citizenship is deeply important, but that was fait accompli. That was just going to happen that way.

0:45:51 Thomas: Yeah five four matt you keep saying this a fait accompli five four

0:45:52 Matt: I know, I know. Yeah. And if Congress passes a law, then we got other problems. Not tomorrow, but I think that they're certainly opening the door to 10, 15 years from now. We've got a different Congress, different court. Maybe none of this is constitutional right anymore. I'm not saying I'm worried about it in the future, but there was not a single serious person that I was seeing out there saying that birthright citizenship was ever in danger on this particular docket. I understand. I do understand the doomers who are saying the Supreme Court is going to do whatever Trump wants, but that has clearly not been proven true. And it's not because they're are not conservative, it's because they have a different agenda from Trump in many ways. It's also to their benefit to occasionally disagree with him. The tariffs and the birthright citizenship were easy places to do that. But in terms of things we'll also remember from this term, it's unfortunately Scrimeti is going to be overshadowing. I think that's going to be seen as a stain on the court's reputation for a long time.

0:46:41 Thomas: Was that the voting right oh yeah sorry

0:46:43 Matt: That's the trans rights case, or trans wrongs, I guess, and Kalei as well, the voting rights case. So those are all kind of the takeaways, I think. I Think it's also good to just go over some of the right ordinary business and other interesting procedural stuff that comes out of this so that's what I got for

0:46:47 Thomas: Just bad with names in terms of seasons of television would you put it above like the ninth season of game of thrones or below. That's pretty much below all television. I know they'd say it.

0:47:06 Matt: That oh that's it's hard to have anything worse yeah yeah this is more like second season of the wire maybe I don't know just kind of like comes and goes that's actually a great season no that's not fair that's not fair no the fifth season actually the fifth isn't where there's a serial killer plot for no reason which again on rewatch actually was better than I

0:47:14 Thomas: Oh, I love that season. Underrated, underrated. I thought there were only four seasons. Man, it's been too long since I watched that.

0:47:26 Matt: Remembered yeah no the fifth uh it goes a little off the rails it just it's it kind of thing like with the end of game of thrones really characters are doing things they shouldn't really be doing and that annoys me

0:47:30 Thomas: Well, this is, was worse than all of that. So, all right,

0:47:36 Matt: Yes, right. Yeah, nobody's rights were taken away by The Wire or Game of Thrones, except our time, I guess. I just want to emphasize again that I do see the very bad things that have happened, but I just wanted to make sure that we come in here and give the full picture, and we're here to go beyond the headlines for legal stories, and that's what we're doing.

0:47:53 Thomas: Well, we'll take a break. And then I've been promised a wild card, I believe.

0:47:56 Matt: Yeah, we've got some weird Supreme Court news.

0:47:59 Thomas: More Supreme Court stuff. Okay.

0:48:01 Matt: Yeah, one more.

0:48:05 Ad: [Ad break 3 — ad music]

0:48:05 Thomas: All right, Matt, Footnote me.

0:48:06 Matt: For about five minutes at the end of the Supreme Court's term this year on June 30th, we believed that Samuel Alito was about to retire, and I just wanna talk about how that happened. Because it's so shocking to me that NPR, Nina Totenberg, Nina Totenberg, of all people would get this wrong. I've thought about this a lot about how ridiculous it is the way that we report on the Supreme Court. Not we, obviously, I sit around and think about it. But we're talking about the people on the ground, you know, the CNN, MSNBC, NPR people that have to rush in there and then rush back out. And they're holding a 60 -page, you know, 194 -page document, right?

0:48:36 Thomas: Oh yeah. So I saw those pictures. It's just so ridiculous. Like not nothing they're doing is worth that. You know what I mean? Like, it's just like their decisions are such garbage. I don't, I know they probably have to do it, but it's just, I just resent, basically I resent everything about this court all the time and that's on me, but I hate it.

0:48:40 Matt: Like, take a minute. No. I think there should be like an embargo maybe for like two hours to let people sit around and read these decisions before they talk about them I don't know maybe that's crazy because they're released on the website immediately right I guess you get them a few seconds earlier uh yeah no I sit around every supreme court season

0:49:05 Thomas: Wait, they are? There's no way they're doing this stupid running thing if they're released at the same time online. I'm sorry. Right. There's no way. That makes it even worse.

0:49:27 Matt: I think you can see them like a couple of minutes earlier but like I I watch every major decision day I get on SCOTUSblog I watch the live chat and then I also am refreshing on the supreme court's website and the stuff comes up pretty quickly right around the time people say it's being announced I know right they just need the drama

0:49:27 Thomas: Even worse. Stop the running. Yeah.

0:49:30 Matt: By definition like these are things that take time to sit and absorb and especially with these decisions where it's like Gorsuch joins Part 3A and Barrett joins 5B, and you have to really parse it. There have been all kinds of hilarious misunderstandings or things gotten wrong over the years with Supreme Court decisions. I'm a pretty quick reader, but I can't tell you in 30 seconds. Even if you know the record, if you the case, maybe you can get the idea pretty quickly. Anyway, so Nina Totenberg, very experienced NPR reporter, somebody that we've been hearing for a long time, released this entire story about Justice Alito, very, very detailed story story about Alito's retirement that was up on the NPR website for about five minutes. And it confirmed my suspicion that it's not just obituaries. They have everything ready to go in the chamber. Like they just have a story that's just sitting there for when he retires because it'll happen at some point. And if he dies, they'll just turn into that, I guess. Kind of reminds me of the, remember the Dana Carvey, like the real classic SNL sketch? I love that one with the chambroka. Like, that's right. Gerald Ford, eaten by wolves. Because he's going on vacation. Yeah. That's one of my favorites of all time.

0:50:21 Thomas: Yeah, I do remember that. Yeah Gerald Ford died today and I'm gay. Hey, wait a minute. Try to do all the future. It's future headlines. Yeah that's so funny.

0:50:35 Matt: But it does make me think of that. So she published her Gerald Ford eaten by wolves story a little early there.

0:50:40 Thomas: Is that what you're thinking it is because I thought this was like more based on actual reporting than like oh we just have this ready like in an obituary sense oh okay

0:50:50 Matt: But let's hear her explain it because I've just sent you the link.

0:50:53 Thomas: I would love to hear

0:50:54 Matt: I thought it was worth actually hearing because it's such a ridiculous story. I don't really understand it anyway.

0:50:58 Clip: And NPR's Nina Totenberg joins me live now, along with NPR'S Editor-in-Chief, Thomas Evans. We're here because we want to take some time to acknowledge an error we made today. We reported that Justice Samuel Alito is retiring. I did, to my boss.

0:51:08 Thomas: Explain huh

0:51:17 Clip: And I scared everybody half to death for about five minutes. And it's entirely on me. It's not anybody else's fault.

0:51:16 Thomas: What

0:51:23 Matt: Scared's not the word.

0:51:25 Clip: And I've written to Justice Alito to apologize. I apologize, and I thought I would read you most of this letter because it tells you everything. Dear Justice Alito, there are no words to adequately apologize for today's error in reporting your retirement. It was entirely my fault. I rushed out of the courtroom after the opinion announcements, and when I realized that the usual rush of folks after a few minutes had not happened, I asked somebody what was going on inside, to which the answer was retirement announcements. I didn't hear the S on announcements and assumed something no reporter should ever do, that you were retiring.

0:52:05 Clip: It was the worst professional mistake of my more than 50 years in journalism. I could go on, but I don't know what else to say except that I am so, so sorry. And I am eternally. You know, this was a rookie mistake.

0:52:02 Thomas: The hell

0:52:19 Clip: Have you heard back from the justice?

0:52:20 Matt: So kind of weird.

0:52:22 Clip: But I didn' t expect to hear back from him. You know, we in the press corps always want people to own up to their mistakes, and they most of the time don't. So I'm not going to do that. This is on me and only me.

0:52:19 Thomas: Huh that is bizarre okay

0:52:38 Matt: Yeah. She just heard some people saying, and again, retirement announcements could mean like, you know, one of the clerks is retiring that they all love, right? Or like one of the janitors or something, who knows, right. And she heard retirement announced. And I just thought that was funny too, that she immediately assumed Alito and not Thomas. He was older.

0:52:51 Matt: And for all we know, he might have a health problem or something. And we know Thomas is going to hold on as long as possible. Sure.

0:52:54 Thomas: Yeah I think that's a safe assumption to be honest with you but who knows yeah

0:52:56 Matt: But he did make a mystery visit to the White House the other day. Nobody knew why. So you never know. I thought it was particularly funny. And of course, I appreciate Nina Totenberg is an honest reporter. She falls on her sword and says, it was my fault. I just heard somebody say this and immediately rushed out to publish this story without verifying it, which is a little nuts. Right. Pressure to get it right.

0:53:20 Thomas: Yeah give you a sense of how stupid our media environment is that you'd feel that much like can't even call one person

0:53:24 Matt: It's big news. That's pretty important to get right. I appreciated the comment from NPR executive editor, Krishnadev Kalmar. This is one of the best regret statements I've ever seen. We profoundly regret the error and the confusion that this has caused. And Nina has reached out to Alito to apologize personally. This sort of shit should not happen. Yep. But that was great. That was the official statement on the NPR website from

0:53:42 Thomas: Weird what that was out of nowhere really

0:53:51 Matt: Kelly McBride's story on this. Yeah, that was funny. This sort of shit should not happen. I agree, Mr. Kalmar, yeah. Yeah.

0:53:52 Thomas: So now we have another apology coming for that I'm sure what the hell really that was a what

0:54:03 Matt: This is in the official story in which NPR explained their retraction. Kelly McBride quotes him on the record as saying this sort of shit should not happen, and that they're going to be reviewing their process for posting breaking news. But I would suggest that the entire media needs to reconsider how they post breaking news on Supreme Court decision days as it is.

0:54:22 Matt: It's just too important, and they're too big and complicated. Yeah, don't do it again anytime, Bernie. Yeah.

0:54:26 Thomas: She's been around for a million years. Like what? It's bizarre. Yeah, huh?

0:54:28 Matt: She's generally very good at this. She knows better, as she said. She was very honest about that. But I don't think scared is really the word for it. I wasn't scared to see he was retiring. We don't want to know who's going to replace him.

0:54:38 Thomas: I mean, it's not great. I would I were still I'm still holding out hope that their egos are too massive and they'll they'll try to stay too long and then get burned by it. But I mean, that's, the odds are so low. They're astronomically low, but that's at least, at least we get a fool's hope still. They haven't taken us away from us yet.

0:54:59 Matt: And maybe someday Gerald Ford will be eaten by wolves. Who knows? Yeah.

0:55:03 Thomas: Ah, good times. All right, Matt. Well, really interesting roundup to the Supreme Court season there. The lows are so slow that it's like hard to talk about it in any other way than this is a disaster. But I guess there is other stuff going on besides the lows. So good to get a full picture of that.

0:55:21 Matt: I mean, sometimes people survive a plane crash. So you know, that's good news. I got to find it.

0:55:24 Thomas: Good for them, I guess. Yeah. Oh, boy. All right. Well, thanks so much for listening, everybody. We'll see you on Monday.

0:55:32 Matt: All right. Later.

0:56:09 Clip: Support for WAMU's live stream comes from the American Fuel and Petrochemical Manufacturers.

0:56:14 Matt: Of course it does. National Public Radio, folks. Brought to you by Petrochemicals.

0:56:19 Thomas: Worse than being a Sharks fan,

0:56:23 Matt: Oh no. There's a sports metaphor here, isn't there? This sort of shit should not happen.

0:56:29 Matt: My first thought and the first thing I said, as soon as I came on the show back in January, 2024, um, excuse me, I don't know what year it is. Uh, the first thing I said after reading this order, we had a show on January 20th, 2025.

0:56:38 Thomas: The year currently is 2026.

0:56:43 Matt: Nope. Yes, that's right. So very likely last year. Yeah. I've lost all track of years. Uh so when we recorded on January 20th you know, just as Trump was coming in