2026-2027 Supreme Court Term Preview

[SPEAKER_01]: Hey everyone, this is Ali from Prologue Projects. [SPEAKER_01]: On this week's episode of Five to Four, Peter, Rianan and Michael are taking a look at the Supreme Court's upcoming term. [SPEAKER_01]: As you hear, the cases on the docket don't all point in a single direction were reflect a cohesive political goal like for instance the expansion of executive power.

[SPEAKER_01]: Nevertheless, most of the issues the court will be weighing in on, the second amendment, trans-rights, voting rights, reflect long-standing conservative agenda items. [SPEAKER_01]: Showing the right is quietly advancing its project through the court, while Trump gets all the media attention.

[SPEAKER_01]: This is 5-4, a podcast about how much the Supreme Court sucks. [SPEAKER_00]: Welcome to five to four where we dissect and analyze the Supreme Court cases that have shit all over our civil rights, like a high rocks competitor, shooting all over herself. [SPEAKER_00]: I'm Peter. [SPEAKER_00]: I'm here with Michael.

[SPEAKER_00]: Hey, everybody. [SPEAKER_04]: And Leann, hi. [SPEAKER_04]: So what is this? [SPEAKER_04]: I've seen this linked in several boys chats, you know, on text. [SPEAKER_04]: And every time I'm like, I'm not clicking that. [SPEAKER_02]: I got you step aside, boys. [SPEAKER_02]: I have the full story here.

[SPEAKER_04]: Okay. [SPEAKER_02]: So you don't want to hate on somebody. [SPEAKER_02]: So dedicated to the craft, dedicated to admission, dedicated to this kind of, you know, physical beat, let's say, should go without saying, in better shape than us. [SPEAKER_02]: You know, absolutely. [SPEAKER_02]: I'm criticizing for my couch eating fettuccine alfredo.

[SPEAKER_02]: Okay. [SPEAKER_00]: So this athlete does in fact as she doing this high rocks, you know, fitness race, which is like, it's like a multi stage endurance race kind of thing, right? [SPEAKER_02]: Yes, you're going to do some burpees. [SPEAKER_02]: You're going to live some stuff. [SPEAKER_02]: You jump on things and then you run a long time.

[SPEAKER_02]: You know, it's one of those guys. [SPEAKER_02]: And so she does in fact shit herself. [SPEAKER_02]: She shits herself a lot. [SPEAKER_02]: It keeps coming. [SPEAKER_02]: It's visible. [SPEAKER_02]: And it's also getting on the track. [SPEAKER_02]: It's getting on stuff. [SPEAKER_00]: Oh, no.

[SPEAKER_00]: This is the difference. [SPEAKER_00]: I think between this and the sort of standard marathon runnerships themselves. [SPEAKER_02]: Yes. [SPEAKER_00]: narrative. [SPEAKER_00]: So I guess marathon runners occasionally just poop their pants because God didn't intend for any of this. [SPEAKER_00]: Yep.

[SPEAKER_00]: That's something we all accept. [SPEAKER_00]: It's sort of like sometimes it happens. [SPEAKER_00]: Yeah. [SPEAKER_00]: The difference here is I understand it re is that this race involves like shared equipment. [SPEAKER_00]: Yes. [SPEAKER_02]: Yes. [SPEAKER_02]: That she's now dragging shit all over.

[SPEAKER_02]: And so, you know, I think she, again, God bless her and congratulations. [SPEAKER_02]: I think that she actually finishes in one of the top spots. [SPEAKER_02]: And she's like, hey, a wins a win. [SPEAKER_00]: You better finish one of the top spots after that. [SPEAKER_02]: I did this through everything, right?

[SPEAKER_02]: Meanwhile, other people in the race in the competition are like, hey, this stuff's covered in shit. [SPEAKER_02]: I'm actually not going to touch it. [SPEAKER_02]: And they got disqualified. [SPEAKER_00]: right. [SPEAKER_00]: No. [SPEAKER_02]: And she didn't get this qualified for getting shit all over everything.

[SPEAKER_00]: It actually makes it like good strategy. [SPEAKER_00]: Right. [SPEAKER_00]: If those are the rules, then like the smart thing to do is to just like just bring all your energy early. [SPEAKER_04]: Get all over everything. [SPEAKER_04]: Right. [SPEAKER_04]: And everybody behind you gets this quality.

[SPEAKER_00]: You're the only one to finish is the full pizza four hours before the race and just take off. [SPEAKER_00]: take off. [SPEAKER_00]: I get it. [SPEAKER_00]: Get ahead of everybody and then just let it rip. [SPEAKER_02]: Yeah. [SPEAKER_02]: Yeah. [SPEAKER_02]: So I guess now like she's lost a brand deal or something like that.

[SPEAKER_02]: Like there have been some consequences. [SPEAKER_02]: Maybe a one isn't quite just a win. [SPEAKER_02]: But. [SPEAKER_00]: Right. [SPEAKER_00]: No longer wants to be a success. [SPEAKER_00]: This is also one of those things, though, where I do believe she has committed a relatively horrible crime, but does she deserve what is coming in terms of internet, scorn, and abuse?

[SPEAKER_00]: Hard to know, we'll see, it's like a ray gun situation where it's like, I wouldn't describe myself as a supporter of her, but surely you can agree that the reaction was disproportionate. [SPEAKER_02]: Yeah. [SPEAKER_00]: I don't know. [SPEAKER_00]: Maybe it's a closer call here where she sort of shits shit on stuff.

[SPEAKER_02]: Yeah. [SPEAKER_02]: Yeah. [SPEAKER_00]: Maybe it is. [SPEAKER_00]: In order to keep society working once every decade, someone who shits on a shared gym equipment needs to be publicly shamed across the globe. [SPEAKER_00]: All right, term preview episode folks it might have felt like the last Supreme Court term never ended and that you got no respite at all But actually you did you might you might not be aware that the Supreme Court has not technically been in like full session for a few months now We are approaching the first Monday of October and that means the new Supreme Court term and that means a bunch of horrific new cases [SPEAKER_00]: that you're about to learn about over the course of the next nine months, whether you like it or not.

[SPEAKER_00]: So we are here to cushion the blow. [SPEAKER_00]: Give you a little slice of what's coming. [SPEAKER_00]: One by one. [SPEAKER_00]: And Michael, I'm going to hand it off to you for the first case here. [SPEAKER_04]: Yeah. [SPEAKER_04]: And before we get into it, I want to say we're choosing mainly from cases from October November, December.

[SPEAKER_04]: They've already been briefed. [SPEAKER_04]: They've already been set for argument. [SPEAKER_04]: There are cases they've accepted on that haven't been briefed or set for argument yet. [SPEAKER_00]: And there will be cases that haven't made their way up to the court yet as well as emergency applications and things like that.

[SPEAKER_04]: So there's just there's going to be so much more than this, but we're [SPEAKER_04]: This is the latest in a horrific line of second amendment challenges to gun laws. [SPEAKER_04]: In particular, this is about AR-15 style rifles, semi-automatic weapons, what are colloquially called assault rifles.

[SPEAKER_04]: So Illinois, as well as Connecticut, California, New York and about it does in other states, all ban these sorts of weapons. [SPEAKER_04]: there is good reason to believe and I believe some data suggesting that this has a good impact. [SPEAKER_04]: If reduces the likelihood of mass shootings, if reduces the likelihood of school shootings, it has been a social good to have these bands in place.

[SPEAKER_04]: But Kudberto Vittamontes and Christopher Kaya are not happy that they're barred from owning AR-15 style weapons or AR-15 weapons themselves. [SPEAKER_04]: And so they and some gunned rights organizations have filed suit saying this is a violation of the Second Amendment. [SPEAKER_04]: This is, of course, the latest case, since heller finding a second moment, right, individual right to owning firearms.

[SPEAKER_04]: And then more recently, Bruin, which said that when you evaluate gun laws, you look into the history and tradition of gun regulation in this country in order to determine whether or not contemporary regulations are constitutional, [SPEAKER_04]: This is concerning. [SPEAKER_04]: This is concerning that the court is going to overturn yet more gun regulations.

[SPEAKER_04]: So this is a big one. [SPEAKER_04]: It's when we're keeping an eye on and one that I think you should be worried about. [SPEAKER_02]: Yeah, especially in a context of like, when they're using this history and tradition evaluation, we know they're cherry picking history and tradition. [SPEAKER_02]: Right, like, yeah, that's right.

[SPEAKER_00]: I can't remember if I mentioned this in Heller or Brune or what, [SPEAKER_00]: My analysis has always been the fact that an AR-15 is considered an arm in the sense that the second amendment says arms is basically a coincidence. [SPEAKER_00]: It is so distant from what the founders thought of when they thought of arms, right?

[SPEAKER_00]: Yeah, great. [SPEAKER_00]: a couple of well trained operators right now could have wiped out the continental army and the militias right I mean it's it's absurd to think these are the same thing but I'm excited to move on we've been talking about AR15 bands from for like a decade now it's time to get into medium range artillery that's right I want a constitutional right to own a drone that could drop [SPEAKER_02]: Oh, I was thinking, like, cannons, but you guys win real intense with it, sure.

[SPEAKER_00]: The fact that like drone use is banned in so many places, you could actually make it more constitutionally viable if you put weaponry on it attached to guns. [SPEAKER_00]: Yes. [SPEAKER_00]: Okay. [SPEAKER_00]: It's like, no, you're on her. [SPEAKER_00]: This isn't a civilian drone at all.

[SPEAKER_00]: This is actually a self-made predator drone. [SPEAKER_00]: That's right. [SPEAKER_02]: And therefore, an arm, and therefore, protected by the second amendment. [SPEAKER_00]: Yeah. [SPEAKER_00]: So I believe I am free to go. [SPEAKER_00]: Alright, next up, another very big one, St. Mary Catholic parish of the Roy.

[SPEAKER_00]: This is a challenge to Colorado's non-discrimination law in the context of religious schools and these states universal pre-school program. [SPEAKER_00]: The state of Colorado has taxpayer funded universal free school, but maybe you're not eligible for those taxpayer funds if your school discriminates against LGBT children and families, right?

[SPEAKER_00]: But of course, religious schools, not too happy about that. [SPEAKER_00]: They want to suck on that government tip, but they don't want to owe anything to society. [SPEAKER_02]: Right. [SPEAKER_00]: That's not what it's about. [SPEAKER_00]: So they are challenging this. [SPEAKER_00]: They are saying that constitutionally under the free exercise clause, they need an exemption.

[SPEAKER_00]: This is something we've talked about in many different contexts, right? [SPEAKER_00]: The idea that [SPEAKER_00]: a lot of modern free exercise jurisprudence is being done through a set of requests for exemptions from discrimination laws. [SPEAKER_00]: And this traces back to 1990, there's this big case employment division [SPEAKER_00]: and in that case, Justice Scalia actually came to the conclusion that any generally applicable neutral law is not going to violate free exercise.

[SPEAKER_00]: This is in the context of a couple of guys who were convicted of the use of peyote. [SPEAKER_00]: And they said, hey, this is a religious thing, right, a Native American. [SPEAKER_00]: This has religious connotations. [SPEAKER_00]: So this should be protected free exercise. [SPEAKER_00]: And the [SPEAKER_00]: The laws against that sort of drug use are neutral, and they are generally applicable.

[SPEAKER_00]: They're not targeting your religion. [SPEAKER_00]: They apply to everyone. [SPEAKER_00]: So we are going to uphold them. [SPEAKER_00]: And that was then the rule. [SPEAKER_00]: We then saw a bunch of narrowing of that rule. [SPEAKER_00]: Conservatives hated it. [SPEAKER_00]: first you saw the passage of Riffra, the religious freedom restoration act in the early 90s.

[SPEAKER_00]: That's something that like Bill Clinton, Jambiant, this had a lot of cross-eil appeal. [SPEAKER_00]: That was able to basically get rid of that case in the federal context, but in the context of state laws, it still applies. [SPEAKER_00]: So it's been narrowed even further by the court since then.

[SPEAKER_00]: If you want to get all legal nerdy, there's this doctrine called the most favored nation and [SPEAKER_00]: The idea is that a law can't prohibit religious activity if similar secular activity is allowed. [SPEAKER_00]: So if you say, hey, this law is preventing me or religious person or religious organization from doing this thing, I want to do under my religion, but it's allowing a secular person to do a very similar thing, right?

[SPEAKER_02]: Yeah. [SPEAKER_00]: That's sort of narrowed the rule quite a bit. [SPEAKER_00]: And then the conservatives have grabbed onto that and just squeezed. [SPEAKER_00]: So during COVID, you had the fight over religious gatherings where there were laws being like, hey, no religious gatherings with this many people in this large of space and the court said, no, no, no, no, you can't do that because you're not treating grocery stores the same way as churches.

[SPEAKER_00]: Now, the thing about that is that grocery stores and churches aren't really similar. [SPEAKER_00]: People don't stand in one place in a grocery store singing and talking, for example. [SPEAKER_04]: Also, you buy necessary sustenance at grocery stores. [SPEAKER_00]: Yes. [SPEAKER_00]: Well, liquor stores were also part of it.

[SPEAKER_04]: All right. [SPEAKER_04]: You buy necessary sustenance at liquor stores. [SPEAKER_00]: basically they sort of started narrowing the idea of like a what's similar right what's what's really similar. [SPEAKER_00]: And Alito Gorsuch Thomas, they've all signaled they want to get rid of this all together.

[SPEAKER_00]: You hadn't felt in the Philadelphia in 2021 and basically we're at a point where like if there's a law that inhibits religious activity and it provides for any exceptions whatsoever, then religious organizations are entitled to an exception. [SPEAKER_00]: So employment division v Smith it's on its last legs and the real question is are they just going to put a bullet in its head because you know they're going to let these Catholic schools discriminate against gay families like right but are they going to be like employment division for scrapping it or are they going to pretend that this zombie precedent is still alive.

[SPEAKER_00]: I think that's sort of the fundamental question here. [SPEAKER_02]: And what you see, like, especially at a Colorado, weirdly, that got litigious fucking conservatives there, but they also have a state ledge that is effectuating passing non-discrimination laws. [SPEAKER_02]: But you see this line of cases too, in recent years, there's Masterpiece Cake Shop, there's 303 creative.

[SPEAKER_02]: there's the therapist doing conversion therapy case, you know, there's all these situations, especially free exercise, freedom of religion, freedom of speech, where the Supreme Court is using those to invalidate anti-discrimination laws, right? [SPEAKER_02]: And like what's coming, a lot of people are seeing is like, could they start invalidating federal non-discrimination statutes, [SPEAKER_02]: This is all coming into question.

[SPEAKER_00]: And what's the difference if everyone who wants to discriminate can just say, yeah, it's right. [SPEAKER_00]: Right. [SPEAKER_04]: I mean, yeah, I think the only real conclusion you can draw from this is just that. [SPEAKER_04]: Because narratives are like, yeah, of course, people should get to discriminate against gay people.

[SPEAKER_04]: They're fucking gross. [SPEAKER_04]: They're wrong. [SPEAKER_04]: They're sins against God. [SPEAKER_00]: Part of the liberal response to these cases has always been, well, can you do it with race? [SPEAKER_00]: And conservatives dodge it. [SPEAKER_00]: Conservatives, I've never seen a conservative tackle this question head on.

[SPEAKER_00]: They'll usually just say, well, it's like a higher level of scrutiny, or they'll be like, [SPEAKER_00]: how dare you compare the two right right our righteous crusade against gays is nothing like the horrible crusade against racial minorities from the mid-century that my literal dad was involved in which is of course in the past yeah and it's also as a wink wink not done because they don't matter and they don't think it's a lot [SPEAKER_02]: Yeah.

[SPEAKER_02]: All right. [SPEAKER_02]: Next up, still on a question of LGBTQ rights. [SPEAKER_02]: There is a case at the court. [SPEAKER_02]: This term coming up international partners for ethical care, the Ferguson. [SPEAKER_02]: Now, this has to do with access to medically necessary care for trans youth.

[SPEAKER_02]: So international partners for ethical care. [SPEAKER_02]: This is a nonprofit organization. [SPEAKER_02]: They do anti-trans activism and, you know, they operate under this umbrella of parental rights basically, though what they're doing is working to restrict access to gender-affirming care for trans kids.

[SPEAKER_00]: You're parental right to be transphobic, not your parental right to support your trans child, just to be clear. [SPEAKER_02]: that's exactly right. [SPEAKER_02]: So the state of Washington a few years ago found that there was a crisis of transgender youth homelessness, and they took steps to try and address this by updating laws to allow kids in shelters.

[SPEAKER_02]: We're talking about homeless children, you know, updated their laws to allow those kids to access health care, including gender affirming care without contacting their parents. [SPEAKER_02]: you know staff under this law staff at the shelter still have to make a good faith effort to contact parents and they can't withhold information from parents unless it would cause harm to the child.

[SPEAKER_02]: But you know again Washington felt this was necessary to keep kids off the street recognizing and passing these laws that LGBTQ youth are more than twice as likely to experience homelessness. [SPEAKER_02]: They make up as much as 40% of all on-house children. [SPEAKER_02]: So [SPEAKER_02]: incomes, the transphobes, international partners for ethical care to sue the state of Washington here, and they're saying this infringes on their parental rights to care for to raise children how they see fit.

[SPEAKER_02]: However, this case is actually not about the merits, but a question of standing. [SPEAKER_02]: Do these parents? [SPEAKER_02]: Does this organization international partners for ethical care? [SPEAKER_02]: do they have standing to actually sue here? [SPEAKER_02]: We've been talking about standing a lot in the past couple of years.

[SPEAKER_02]: Our last case episode was about Trump's ballroom, right? [SPEAKER_02]: And how this Supreme Court said that the national trust for historic preservation did not have standing to sue to stop the ballroom from being constructed. [SPEAKER_02]: Why? [SPEAKER_02]: Because you have to be harmed to sue.

[SPEAKER_02]: You got to be about to be harmed to sue. [SPEAKER_02]: You know, there has to be an injury or imminent injury. [SPEAKER_02]: So this case where the ethical parents are suing, it goes up to the ninth circuit and a panel there said for this plaintiff group, you don't have standing. [SPEAKER_02]: You're saying your ability to parent has been constrained.

[SPEAKER_02]: That's not standing and also you're speculating that sometime in the future, your kid who you've ostracized in your home might run away. [SPEAKER_02]: Remember this law in [SPEAKER_02]: Yeah, this affects my my right to parent. [SPEAKER_02]: And it's like this doesn't apply to you or your children.

[SPEAKER_00]: Are they saying it makes them like likely to run away like it incentivize it or something? [SPEAKER_00]: Yes, yeah, it's part of it. [SPEAKER_00]: Yeah, kids love that kids love to be homeless. [SPEAKER_00]: You know, for the benefits. [SPEAKER_02]: Right. [SPEAKER_00]: For the sick benefits of being a teenage teenager without a home.

[SPEAKER_02]: Right? [SPEAKER_00]: Who can resist? [SPEAKER_02]: It's ridiculous. [SPEAKER_02]: So the 9th Circuit said this is not injury. [SPEAKER_02]: You have not suffered an injury. [SPEAKER_02]: You are speculating about maybe some remote possibility of suffering an injury under these Washington state laws.

[SPEAKER_02]: You do not have standing. [SPEAKER_02]: But. [SPEAKER_02]: And all the cases we've talked about with standing under this court, right? [SPEAKER_02]: They're finding standing for who they wanna have standing for, for who they want to be able to sue in this instance, our prediction, for the international partners for ethical care and these transphobic parents and they're blocking others from having standing or they're not finding that others have standing who they don't want to be able to sue.

[SPEAKER_02]: So, you know, not much more to say about that, but it's gonna be, it's gonna be harmful. [SPEAKER_04]: We talked about, you know, there's nothing appealing about running away and it usually only happens in for kids who are very desperate. [SPEAKER_04]: But let's be real. [SPEAKER_04]: A lot of these kids are on-house, not because they ran away, but because they were kicked out.

[SPEAKER_00]: Right. [SPEAKER_04]: And the idea that after being kicked out, [SPEAKER_04]: of their home because of their identity. [SPEAKER_04]: Those parents then still get to reach out and prevent them from acting on their identity. [SPEAKER_04]: And getting care for their trans identity, it's so fucking monstrous.

[SPEAKER_04]: Like, top to bottom monstrous. [SPEAKER_04]: These are these are very, [SPEAKER_04]: I think the Jews are evil people, if they think they're just the fucking scum of the earth. [SPEAKER_00]: We do have a solution for these types of people, but we can't talk about it on the podcast. [SPEAKER_02]: Yeah.

[SPEAKER_00]: Because it's too cool. [SPEAKER_02]: It's practically nothing. [SPEAKER_00]: Catch us in the DMFBI. [SPEAKER_04]: So next up we have a voting rights case because what's a Supreme Court term without, you know, you got it. [SPEAKER_02]: You got to have one. [SPEAKER_02]: Yes. [SPEAKER_04]: You got to have one at least.

[SPEAKER_00]: It's like every year for for Christmas. [SPEAKER_00]: My mom used to put Hershey Kisses and a stocking. [SPEAKER_00]: You know, and that's that's what they do with voting. [SPEAKER_02]: Every year a term is being announced and you're going to have a voting rights case. [SPEAKER_02]: You're welcome.

[SPEAKER_04]: This is R&C V. Mi Familia Volta. [SPEAKER_04]: This is about a state law in Arizona that requires proof of citizenship, documentary proof of citizenship in order to register to vote. [SPEAKER_04]: Now, the thing is, Arizona is subject to this law called the National Boater Registration Act.

[SPEAKER_04]: It's passed in 1993. [SPEAKER_04]: Most states are subject to it. [SPEAKER_04]: The only exemptions are [SPEAKER_04]: If you don't require voter registration at all, which is North Dakota, or five other states that allow same day registration. [SPEAKER_04]: So you can go to the polls on election day and register to vote, a handful of states do that.

[SPEAKER_04]: The other 44 states in the District of Columbia are all subject to this law, which among other things requires that they make voter registration available. [SPEAKER_04]: when you get a driver's license. [SPEAKER_04]: So you can check that little box that says I want to register to vote to and it's done.

[SPEAKER_04]: So requiring documentary proof of citizenship is an additional hurdle to registering to vote. [SPEAKER_04]: That is, you know, [SPEAKER_04]: in conflict with this law. [SPEAKER_04]: Arizona is also subject to a consent decree which is a settlement of litigation where they agreed to do certain things in this case related to this law and not requiring proof of citizenship.

[SPEAKER_04]: So the question is, can they do this? [SPEAKER_04]: Can they, there are criminal penalties for, for people who violate this law? [SPEAKER_04]: And you have a question of, well, does the National Boater Registration Act sort of supersede this state law? [SPEAKER_04]: Does the consent decree prevent the state law from going into effect?

[SPEAKER_04]: et cetera et cetera. [SPEAKER_04]: So this is the big case. [SPEAKER_04]: Arizona is a classic hotbed of voters suppression these days. [SPEAKER_04]: It's not the first voter case we've had out of here and I doubt it'll be the last they have an absolutely insane Republican party. [SPEAKER_04]: So, you know, it's not hard to imagine the court ruling for the RNC here, which could make it much easier to suppress the votes of minorities and lower-income people in Arizona.

[SPEAKER_00]: Yeah, all right. [SPEAKER_00]: Sorry if that was depressing. [SPEAKER_00]: Let's talk about climate change. [SPEAKER_02]: Yeah, because because that Peter, because that. [SPEAKER_00]: Now, climate change doesn't like often come to this supreme court in this format because it is legal. [SPEAKER_00]: It is legal to boil the earth.

[SPEAKER_00]: Technically, there's no law against it. [SPEAKER_00]: And nominal efforts to fight it at most over the last several decades usually this shit comes to the court in the form of EPA regulation. [SPEAKER_00]: Yes, knocked down. [SPEAKER_02]: Yeah administrative state stuff. [SPEAKER_00]: This one sort of novel.

[SPEAKER_00]: Let's say you thought, hey, [SPEAKER_00]: I would love to sue an oil company for doing climate change. [SPEAKER_00]: How do you do it, right? [SPEAKER_00]: There's no law generally speaking. [SPEAKER_00]: That says, like, can't do oil shit. [SPEAKER_00]: Quite the opposite plenty of permissions in our laws for companies to drill for oil, et cetera.

[SPEAKER_00]: Boulder City and Boulder County, Colorado, put together a sort of network of tort claims. [SPEAKER_00]: And... [SPEAKER_00]: like they involved nuisance, trespass, civil conspiracy, deceptive trade practices, all sort of like targeting the idea that these companies are engaged in harmful and deceptive practices, contributing to climate change.

[SPEAKER_00]: They sued Suncore and Exxon Mobile. [SPEAKER_00]: This is a strategy that was used against big tobacco, very effectively in the 90s. [SPEAKER_00]: You know that these companies are causing big widespread harm, but there's no statute that allows you to target it super directly. [SPEAKER_00]: So you have to be creative with Big Tobacco, there were cases surrounding like Medicaid and the fact that they were making people as healthy and then that would raise costs for everyone else and you also had tort claims like this one.

[SPEAKER_00]: So Big Tobacco responded saying, hey, no, these claims are precluded. [SPEAKER_00]: by federal law. [SPEAKER_00]: You have federal laws like the Clean Air Act, those are the laws that sort of control this area and should preclude these state claims. [SPEAKER_00]: Preclosure is just the idea that in some areas of the law, [SPEAKER_00]: federal law is supreme to state law.

[SPEAKER_00]: So if there's a federal law governing that area of the law, then you can generally can't sue under state law, right? [SPEAKER_00]: You're trying to interfere with federal law too much. [SPEAKER_00]: And so they say it's precluded. [SPEAKER_00]: So the question is, are these claims precluded, even though they are garden variety, port claims?

[SPEAKER_00]: So not to get too doomer on this podcast. [SPEAKER_00]: But I'm trying to think of a case that has a confluence of things that conservatives dislike more than this one. [SPEAKER_00]: Activist tort claims. [SPEAKER_00]: Yeah. [SPEAKER_00]: Targeting oil companies caring about climate change.

[SPEAKER_00]: You're talking about John Roberts' friends at Xon mobile. [SPEAKER_02]: Yeah. [SPEAKER_02]: Come off it. [SPEAKER_00]: You're talking about the owners of the yachts that Sam Alito and Clarence Thomas are patient on. [SPEAKER_04]: Alito, I think, has documented investments in oil companies, right?

[SPEAKER_04]: Significant ones. [SPEAKER_00]: Yeah. [SPEAKER_00]: That's a lingering thing in this case, which is that, like, Alito, as far as we know, it still has oil company investments and has not recruited himself from this case. [SPEAKER_04]: Yeah, that's right. [SPEAKER_00]: God, I love being in the game, dude.

[SPEAKER_00]: It's so good. [SPEAKER_00]: It's so funny. [SPEAKER_00]: It's so funny that he's just like, trust me. [SPEAKER_00]: Trust me, I'll be on my side. [SPEAKER_02]: Bye, yes. [SPEAKER_00]: Yeah. [SPEAKER_02]: It's good stuff. [SPEAKER_02]: Everybody having fun. [SPEAKER_02]: I'm having so much fun.

[SPEAKER_00]: These term previews are so fucking brutal. [SPEAKER_02]: I'm having so much fun. [SPEAKER_02]: I say through clenched teeth. [SPEAKER_02]: I'm white knuggling the desk in front of me. [SPEAKER_02]: So the next case y'all is called Nielsen V. Watanabe. [SPEAKER_02]: This is an eighth amendment case.

[SPEAKER_02]: The eighth amendment protects you from cruel and unusual punishment. [SPEAKER_02]: Unless it doesn't. [SPEAKER_02]: You know what I mean? [SPEAKER_02]: So let's talk actually about some important [SPEAKER_02]: The court a couple of times in the past. [SPEAKER_02]: It's just a sprinkle that they do something good.

[SPEAKER_02]: We've talked about this case Bivins. [SPEAKER_02]: This is a Supreme Court decision from the early 70s that says that when federal officials violate your constitutional rights, at least under the fourth amendment, you have a private right of action against those federal officials. [SPEAKER_02]: You can sue them for damages.

[SPEAKER_02]: because your fourth amendment constitutional rights were violated. [SPEAKER_02]: And that case, you know, then about a decade later, was extended to eight amendment violations. [SPEAKER_02]: That's a case called Carlson. [SPEAKER_02]: But conservatives hate this. [SPEAKER_02]: They don't care about violations of individual rights under the fourth and eighth amendments.

[SPEAKER_02]: they certainly don't want there to be a remedy for it when it happens, right? [SPEAKER_02]: What Bivins does, what Carlson does, is gives you a remedy when your fourth or eighth amendment rights are violated. [SPEAKER_02]: You have a remedy for it. [SPEAKER_02]: The Supreme Court said in the past, you should be made whole.

[SPEAKER_02]: You can sue for damages, conservatives hate this, right? [SPEAKER_02]: Just to take a quick step back and to say two sentences about this, you know, conservatives care a lot about the second amendment, not to say that there's a [SPEAKER_02]: But it is really important that we think about sort of systemically that at a time, for a time, the Supreme Court saw fourth amendment violations and eighth amendment violations as important enough to affirmatively create a remedy for people when those rights are violated.

[SPEAKER_02]: Now flip it when conservative justices are looking at this. [SPEAKER_02]: They don't give a fuck at all about the fourth amendment or the eighth amendment. [SPEAKER_02]: So they don't want there to be a remedy. [SPEAKER_02]: Back in 2022, I don't remember the case name, but Gorsuch said that Biven's, for example, he called it, quote, a misstep.

[SPEAKER_02]: So they want to get rid of these of these precedents. [SPEAKER_02]: Let's talk about what happened here in terms of this 8th Amendment violation. [SPEAKER_02]: Kikai Watanabe was incarcerated in federal prison in 2021 when he was brutally assaulted during a fight. [SPEAKER_02]: His back was broken, bone chips entered soft tissue in his lower back, but instead of taking him to a hospital.

[SPEAKER_02]: Instead of getting him or providing him, necessary medical treatment, federal prison guard, a paramedic in the federal prison system, Francis Nielsen, told what to Nabe to stop being a crybaby, and he didn't do anything about what to Nabe's very serious injuries. [SPEAKER_02]: Instead, actually, this eventually led to what to Nabe being put into solitary confinement for two months without medical treatment.

[SPEAKER_02]: And so under Bivins, it's progeny Carlson, [SPEAKER_02]: What's an obvious sued? [SPEAKER_02]: He has a private right of action against the prison guard Nielsen, because his 8th Amendment rights protecting him from cruel and unusual punishment had been violated. [SPEAKER_02]: But Nielsen, this guard, he's represented by former assistant solicitor general Jeffrey Lampkin, and their argument of course is that Bivens Carlson.

[SPEAKER_02]: these should be overturned outright. [SPEAKER_02]: And so what would happen if the Supreme Court agrees with that pretty sick argument? [SPEAKER_02]: Well it's illegal regime in which a person who is intentionally injured by a federal agent's violation of their constitutional rights, that person has no remedy for damages.

[SPEAKER_02]: They can't be made whole. [SPEAKER_02]: And before we move on to the next case, we've talked a lot about how [SPEAKER_02]: if you don't have a way to be made whole after your rights are violated, then what does the right actually mean? [SPEAKER_02]: So this is, you know, continuation of them, essentially ineffectuating especially the eat the amendment here, but if they overturn bivins, that's ineffectuating the fourth amendment, too.

[SPEAKER_00]: So, what do you got, Michael? [SPEAKER_00]: I think good happening. [SPEAKER_02]: Bring us up, [SPEAKER_04]: Not in another bad one. [SPEAKER_04]: This one's about the Department of Labor, the Sun Valley Orchards, Sun Valley Orchards. [SPEAKER_04]: decided to screw their workers, guest workers on visas and domestic workers alike just didn't pay them wages or didn't pay them enough.

[SPEAKER_04]: The Department of Labor had a whole administrative process found them in violation of the law and ordered them to pay back wages. [SPEAKER_04]: Sun Valley sued, and they said that the Department of Labor can't do this because this is adjudicative. [SPEAKER_04]: This is the realm of the judicial branch.

[SPEAKER_04]: It's not for Congress. [SPEAKER_04]: It's not for the executive. [SPEAKER_04]: It's certainly not for these hybrid legislative slash executive agencies. [SPEAKER_04]: There was a very similar case to this called SACV. [SPEAKER_04]: Jarkisi, just recently we covered that case. [SPEAKER_04]: where the conservative found that is unconstitutional for a non-article three court to take on these sorts of cases.

[SPEAKER_00]: They're trying to strip away the ability of administrative agencies to enforce the law. [SPEAKER_00]: Part of the enforcement apparatus is that these agencies have these basically little mini court systems where they can adjudicate certain things that are within their prerogative. [SPEAKER_00]: The conservatives have ideological objections to this.

[SPEAKER_00]: They don't want administrative agencies to have this type of power, but they've made this argument that this is, you know, is you're serving judicial power essentially. [SPEAKER_04]: and here the argument is that only an article three court with a jury can impose monetary remedies, which is what's at stake here.

[SPEAKER_04]: So concerning case and another attack on the administrative state, which almost always seems to go against the administrative agencies, the conservatives love stripping them of power. [SPEAKER_00]: Administrative agencies have no power, but the president who sits [SPEAKER_02]: is just as all the power.

[SPEAKER_02]: Extremely King Mike. [SPEAKER_02]: Super. [SPEAKER_02]: Yeah, it's crazy. [SPEAKER_02]: Going back like, okay, what the department of labor's power to adjudicate preceding seeking monetary remedies, remember what Michael just said about who is suing. [SPEAKER_02]: It is guest workers and domestic workers on farms.

[SPEAKER_02]: who are suing to get back wages. [SPEAKER_02]: They weren't paid for their work. [SPEAKER_02]: That's what they're suing about. [SPEAKER_02]: And so this question about, oh, well, does the Department of Labor have the power to adjudicate these claims when there's a monetary remedy? [SPEAKER_02]: Don't let the legalese disconnect from what they're actually deciding.

[SPEAKER_04]: This is a corporation that's screwed its workers. [SPEAKER_00]: Yeah. [SPEAKER_00]: A lot of these bad faith employers have a lot of these workers in like a hostage situation because of the Trump administration. [SPEAKER_02]: Yes. [SPEAKER_00]: Right. [SPEAKER_00]: Let's rip through the last few here.

[SPEAKER_02]: Yeah. [SPEAKER_00]: Crowd there will be Board of Regents of the University System of Georgia. [SPEAKER_00]: This is about Title IX, Title IX, of course, about sex discrimination in schools that receive federal [SPEAKER_00]: The question here is whether there's a private right of action in Title IX, whether someone can sue for being, for example, fired due to what they believe is sex discrimination, the same way that you could sue under Title VII.

[SPEAKER_00]: This particular case involves two people, [SPEAKER_00]: She was fired shortly after filing an internal complaint against Georgia Tech alleging sex discrimination. [SPEAKER_00]: So she's saying, hey, I have a title nine claim here, then you also have a men's rights situation. [SPEAKER_00]: a professor Thomas Crowther who sued for sex discrimination after he was alleged to have engaged in sexual harassment.

[SPEAKER_00]: This is at Augusta University. [SPEAKER_00]: There was an investigation found that he had violated the university's sexual harassment policy. [SPEAKER_00]: The university decided not to renew his contract and he said that the investigation was biased against him. [SPEAKER_00]: has a male.

[SPEAKER_00]: So he says, hey, title nine, discrimination case. [SPEAKER_00]: And the question here isn't where these two discriminated against, it's can use Sue as an individual who is discriminated against under title nine. [SPEAKER_00]: The men's rights thing is interesting here, but you have to imagine that the court's goal and granting cert here is to squash these types of claims, right?

[SPEAKER_02]: Yeah, they don't want the private right of action for discrimination. [SPEAKER_04]: Yeah, and we're certainly why these groups are coming out and pushing men's rights issues, right, to sort of ideologically cross-pressure the justices. [SPEAKER_00]: Yeah, a lot of the times you'll see like activist organizations, target cases where you have a case brought by a woman, [SPEAKER_00]: a case prop I am and that way there's no like built in ideological headline but yeah I mean this is I think just another way for them to flick away liability yeah and then they can they can do it in the case where they're like and by the way we also ruled against a man yeah yeah I'm not sure the men's rights aspect of this is gonna be convincing enough for that right it's too big it is funny to get accused of sexual harassment and be like well you're just doing this

[SPEAKER_02]: It's like sportive, and that's against the lot. [SPEAKER_00]: You're right, it's gendered in a way. [SPEAKER_02]: Yeah, yeah, okay, flying through another one that's just kind of like interesting. [SPEAKER_02]: A lot of people are saying this is kind of easily predictable. [SPEAKER_02]: I'm not so, so sure, but anyways, we should mention it.

[SPEAKER_02]: Keon V. Florida. [SPEAKER_02]: This is a question in front of the court this term about the size of a criminal jury. [SPEAKER_02]: 12 members. [SPEAKER_02]: So this man, Kian, was tried for serious felonies, convicted of serious felonies in Florida and Florida law allows even on felony cases for the jury to be six people.

[SPEAKER_02]: And so Keyon sued immediately, said, wait a minute, my right to a jury, which is guaranteed by the constitution. [SPEAKER_02]: Of course, gives me the right to a 12-person jury, not a six-person jury. [SPEAKER_02]: Now, there's some precedent on this that actually does allow a jury that is fewer than 12 people.

[SPEAKER_02]: That's a case called Williams from 1970 that allows this and allows it specifically in Florida. [SPEAKER_02]: Like this has been challenged in Florida before. [SPEAKER_02]: Back then, Justice Thurgood Marshall descended and said, no, a jury of 12 is required, and since then a bunch of professors, a lot of legal scholarship has said the same, talking about when the Constitution when the Bill of Rights were drafted, the draftors understood a jury to mean 12 people.

[SPEAKER_02]: When they say a right to a trial by jury, they're talking about a 12 person panel there. [SPEAKER_02]: And so a lot of folks have said this, gorsage has said this in 2020, when talking about another jury issue where Louisiana was allowing non-unanimous, jury verdicts that law in Louisiana was overturned and gorsage kind of alluded to.

[SPEAKER_02]: And also, you know, this is because [SPEAKER_02]: 12 people are required on a jury, so I think a lot of people think that like this one is kind of open and shut that like there's even Conservatives who agree here that it's a 12-person jury. [SPEAKER_02]: A Lito definitely does not though.

[SPEAKER_02]: So you wonder about where Thomas is You just wonder then about where Amy Coney Barrett is and like what that group in the end is gonna end Yeah, what's the big deal? [SPEAKER_02]: Yeah, exactly [SPEAKER_00]: If it comes out like six to three, then you can imagine that by the year 2150 we're down to just like a jury's one dude.

[SPEAKER_00]: Yeah, exactly exactly. [SPEAKER_00]: Exactly. [SPEAKER_00]: Yeah. [SPEAKER_00]: You pick one guy and he decides. [SPEAKER_04]: So let's end actually on a fun note. [SPEAKER_04]: This is a fun one. [SPEAKER_00]: Okay. [SPEAKER_00]: Yeah, this is a gaggier pun or is this real? [SPEAKER_04]: This is real and it might even be a good outcome.

[SPEAKER_04]: This case is Jopi Vielaska. [SPEAKER_04]: This is about someone who's plain was taken via criminal forfeiture for illegally transporting a six pack of beer. [SPEAKER_04]: So [SPEAKER_04]: We've talked about civil forfeiture before on the podcast, criminal forfeiture is very similar. [SPEAKER_04]: You may have seen it in popular media before, you know, in the wolf of the Wall Street, and FBI agent meets with Leonardo DiCaprio on his boat, and it's like, this boat's really beautiful.

[SPEAKER_04]: I'm going to be the most popular guy in the FBI when I see it. [SPEAKER_02]: Yeah, you know, the stuff you have that is related to the crimes you allegedly commit can be taken by the government. [SPEAKER_04]: Right. [SPEAKER_04]: That's that's the general idea. [SPEAKER_04]: Yeah. [SPEAKER_04]: There is a question, though, whether criminal forfeiture can amount to an excessive fine under the eighth amendment.

[SPEAKER_04]: Now, interestingly enough, the controlling precedent on this was written by Clarence Thomas in 1998, citing with the Liberals and United States v. Baja Cachian, where he found like a $350,000 fine excessive [SPEAKER_04]: for a currency reporting failure. [SPEAKER_04]: He's also, we've talked about this before, signaled skepticism of civil asset forfeiture.

[SPEAKER_04]: This is an issue that he sort of is skeptical of in general. [SPEAKER_00]: Like what, just so if you do human trafficking on a yacht, you can take the whole yacht. [SPEAKER_00]: Just just spitballing hypotheticals here. [SPEAKER_04]: a gorsuch just as gorsuch is also at times been sort of seen as sort of libertarian a little bit or citing for the little guy versus the government he wrote a book about how there are too many laws coming out of Washington you know federal laws as the case may be sure your mouth by the way you know you're a justice of the Supreme Court he's like there's too many laws just do your fucking job [SPEAKER_00]: I do relate to that though, you're job is interpreting a lot and you're like, you know what?

[SPEAKER_04]: There's just too much of, yeah, really need to simplify this. [SPEAKER_00]: It's like me, just like just two weeks of pre-incorce cases, dude. [SPEAKER_00]: What if there was just a few? [SPEAKER_02]: But you do wonder about how much they care on these facts on these funny facts, right?

[SPEAKER_02]: My career you said, like, this is about this happens in Alaska, the guy is transporting a six pack of beer in the morning, yeah, it's very funny to describe. [SPEAKER_00]: But like this, yeah, you had a six pack. [SPEAKER_02]: Right, he just has a six pack of beer with him on his plane as he's flying around Alaska.

[SPEAKER_02]: He's criminally charged for it because I guess, you know, there's municipalities in Alaska that are dry, whatever. [SPEAKER_00]: You're not allowed to be cool in Alaska. [SPEAKER_02]: They're flourishing his mellow in Alaska. [SPEAKER_02]: And then the law enforcement also took the plane.

[SPEAKER_04]: Right, yeah, they're like, that's ours, that's ours now. [SPEAKER_02]: And so you do wonder, but to the extent these, some of the conservative justices have the libertarian streak, right, like, how much they're going to care over, like, yeah, and I'll say this. [SPEAKER_00]: Right, I mean, if I, if I lived in Alaska, give me a plane at a six back, I'm just going to be circling, just, it's all like you, if I'm in Alaska.

[SPEAKER_04]: Before we finish, I should mention what the actual Constitutional question is here. [SPEAKER_04]: Clarence Thomas is rule in that 98 decision was that a fine is excessive if it's grossly disproportional to the gravity of a defendant's offense and this is created in actual circuit split.

[SPEAKER_04]: The question is, is it the specific offense like transporting a six pack of beer or is it the [SPEAKER_04]: transporting alcohol or controlled substances across, you know, municipal borders, right, which sounds a lot more serious. [SPEAKER_00]: Yeah, what dumbass circuit said it was the category.

[SPEAKER_02]: Yeah. [SPEAKER_00]: That rule sucks. [SPEAKER_00]: I don't even understand it as a principle. [SPEAKER_00]: Like, yeah, it was a six pack of beer. [SPEAKER_00]: But what if it was 25 pounds of heroin? [SPEAKER_00]: It's like, wow, it's a great point. [SPEAKER_00]: I think that's it. [SPEAKER_00]: Exactly.

[SPEAKER_00]: That fucking six circuit is like, oh, I've never thought of it like that. [SPEAKER_04]: So that's the question. [SPEAKER_04]: And this is a very funny case to be bringing that question. [SPEAKER_04]: And I do think there's a chance for what we would consider. [SPEAKER_04]: I think a good outcome here.

[SPEAKER_04]: So a good note to end on. [SPEAKER_02]: Yeah, this guy, jupy is flying. [SPEAKER_04]: You can, uh, give him his plane back. [SPEAKER_02]: Yeah, it's giving me his plane back. [SPEAKER_02]: But the vibes coming off of this guy, we need to find an interview or something, right? [SPEAKER_02]: His wife is like, oh my god, he's so fucking annoying.

[SPEAKER_02]: He's like, I'm taking my case. [SPEAKER_02]: So this is the Supreme Court, baby. [SPEAKER_02]: Yeah. [SPEAKER_02]: They can't do this. [SPEAKER_02]: They gotta give me black my plane. [SPEAKER_02]: And I have a right to be here. [SPEAKER_02]: Anyway, you know? [SPEAKER_00]: Yeah, he's asking for a like a 30 rack his restitution, you know, I mean like no no attorney's fees just give me that 30 give me a 30 a netty like I'm headed up higher than ever [SPEAKER_00]: All right, well, those are the horrors to come, folks.

[SPEAKER_00]: Bring me hit not at least five of these cases. [SPEAKER_00]: Could be more. [SPEAKER_00]: Could be more. [SPEAKER_00]: And of course, there are, as we mentioned, cases that will pop up over the course of the term, they'll, they'll grant certain on new cases. [SPEAKER_00]: But this is, this is the shit as we see it.

[SPEAKER_00]: I mean, the big sort of wild card these days is like, what's Trump going to do? [SPEAKER_00]: That's going to just find its way up to the Supreme Court very quickly. [SPEAKER_00]: be assured that that'll happen three or four times in the next year on major issues. [SPEAKER_02]: Yeah, that's going to be sprinkled in for sure.

[SPEAKER_00]: Yeah, in the meantime, they're on their sort of regular bullshit, right? [SPEAKER_00]: AR15s discriminating against gay people, doing climate change, taking guys' planes. [SPEAKER_00]: It's just all the usual stuff. [SPEAKER_02]: Yeah. [SPEAKER_00]: Alright, folks, next week, we're taking a week off, but as an apology, we're going to, in two days, drop a little bonus free episode for you, an interview with Nico, Louis, and Defna, or non about their new books, premacy.

[SPEAKER_00]: Pretty good discussion. [SPEAKER_00]: We had with them. [SPEAKER_00]: And then we'll be back with our Seminal Award-winning Scotus at 250 series where we discussed the history and state of the Supreme Court in broad terms. [SPEAKER_00]: Looking back on 250 years of America, the only people doing analysis of this level.

[SPEAKER_00]: Hence the awards. [SPEAKER_02]: in my head. [SPEAKER_02]: If you're worried to me, head. [SPEAKER_02]: Yeah. [SPEAKER_04]: Five to four is presented by prologue projects. [SPEAKER_04]: This episode was produced by Allison Rogers. [SPEAKER_04]: The on-nafoc provides them in toys. [SPEAKER_04]: Our website was designed by Peter Murphy.

[SPEAKER_04]: Our artwork is by Teddy Blanks at Chips and Y. [SPEAKER_04]: And our theme song is by Spatial Relations. [SPEAKER_03]: But the whole thing inches around that sips back a bit or I'm not doing this for me personally now, I'm doing it for the country.

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