Hey folks, pre here this week on cafe insider choice and I are joined by a special guest talk about the upcoming supreme court term, which started this past monday. Valueless wick, writes about the court, and the law for slate were she's a senior editor. She also hosts the award winning legal, podcast images, amis and she's the author of the new york times: bestseller lady justice, women, the law and the battle to save america as we gear up for yet another consequential term. Dahlia Joyce and I breakdown the guess cases before the high court today were sharing an excerpt from the episode with listeners of stay tuned. Before we get to that. However, a quick roma that statement is nominated for a signal award, it's very exciting, but we need your help to win had to cap. It all comes last signal to make your vote count and now onto our discussion about

supreme court, its case called united states. We were himmy, which is coloured by the fact that there was a prior case in recent times. You mentioned it a couple of times already brewing That has a holding that is causing judges around the country, to rethink various gun regulations and the matter- and we me relates to the statute. We talked about a lot on the show nine twenty two june nine twenty g relates to the possession of a firearm in certain circumstances that possession, in conjunction with some other attribute we're condition, makes it a felony to possess that fire. The one at issue now in this case that we are talking about today relates to possession of firearms by people who are subjected domestic violent restraining orders. Does that violate the second amendment or not to take the gun away from somebody

the domestic violence restraining order. It seems common sense would dictate that totally reasonable. What's klutz, why is it not for the supreme court? In all likelihood, I think to be. stand that there is an overarching, seem this term and it by the way, an overarching theme last term. I think the term of art is the fifth circuit. Court of appeals is absolutely bonkers right. That is the thing and a lot of the cases that we're gonna talk about come about, because there is one nutter judge on the fifth circuit, which is kind of known as the most conservative, federal circuit and huge number of donald trump appointees all trying to distinguish themselves and we have judges on the fifth circuit who are pushing she pushing from below and saying to the court because you did exe.

We are going to push you to expand and amplify x ray and that's a huge, ongoing theme and last term just very quickly. We saw the court devoting an immense amount of time till the kind of clean up on I'll for jurisprudence switch is like. No, you went too far I know you went too far. No, you went too far and kind of backing if its circuit on the nose rate. So this is, another one of those. This is a case, as you just said, where we have somebody who just horrible violent abuse of his domestic partner, the mother of his child, witnessed in a parking lot smashing her head against a dashboard. Possession of a gun, despite this research, in order, and the fifth circuit looks at that. you are, he means, as this is our poster boy for food. We want to expand the holding in brewing and what we want to say is that the the lodge

of brutal em, and that's the gun case. You just reference is that if there is not an analogous statue or right from either the time of you know the framing or the fourteenth amendment, then it must fall. Whatever this gun regulation is, it must fall and since domestic violence wasn't a thing in the nineteenth century in the eighteenth century, in fact, it was a privilege, it was very much a right to smash your partner legal, to be your wife in every state at the founding, in my correctly, so so, the theory goes under. That logic is there's no analogous statue than removing guns from felons who have beaten their partner has to be unfair institutional. So this is an effort to push from below to have a lower court, say to that. For now you have to expand bruin and the only listen? I want to say about this because it's important is we ve actually seem. Liberal judge is doing the same thing in the intervening.

I'm since bruin, we ve seen liberal, judges saying? Dude, I'm? No. Story in a thick of no freaking idea. But I set my luck: to work, and there is no analogous statute that says that you hence saw the serial number off again because there were no serial numbers on guns. So I guess I have to uphold this too. So it is happening from sites where judges who are faced with this ridiculous historical Analogy test, or making down all kinds of gun regulation so that really the only question pre, I think in rovaniemi, is whether, you're gonna get five justices in and then let's just say it out loud. You know the chance of being killed by your domestic partner. If they have a gun is exponent, billy higher than than not in domestic violence cases. So so the court Just gonna decide whether there five votes to stick to this historical test

that will invalidate most gun regulations that now exist. So the question I have for you, because I see I see this as being a case where, to use a tired phrase, you know the justices are sort of course upon their own petard. Right I mean they ve set problem up with their rule. in bruin? This is something that They certainly have to have foreseen, and my question for you is this Is there a narrow avenue that the justices can walk to save criminal gun laws without saying No, we made a big mistake in bruin and we need to walk it back. I think there is, I think, at one of the issues in this case, is it's a civil adjudication re that the domestic violence restraining order, and so there is a way I supposed to say: oh well, you know it would be different if there were a criminal adjudication of future, dangerousness as opposed to a civil one, and I think that is one

it might get an extra vote we're too so that problem. is the way to narrow it. But I think on this law, larger issue of what did the court unleash in brew em and just as cavenaugh who loves to write these conferences. That say, By no means would we allow for something crazy right that was his concurrence in dobbs and then the neck. de the crazy thing happens. So I think in some sense, your eggs We re that this is kind of the court like living in the reality that it created, but I think that there is a other theme here that super important and may be the best example of that, if not where he me as you know, alabama refusing to draw up new maps earlier this month. You know after the court explicitly in Allen. Vs milligan says a second district re to reflect population of your state and

alabama saying now, I don't think so. So the theme I want to We hear that scares me a little bit is that this big nullification, this choice to look at what the supreme it says and ignore it, whether it's coming from a district court judge or the fifth circuit or us a legislature, goliath set on my show a few weeks ago, and it showed me to the bone Joyce. He said the lawlessness and the refusal to abide by the Supreme court's orders in a sense, becoming a currency of its own and isn't there True, I mean I see that same thing, that the supreme court is willing to fritter away some of its own power in the sake of advance in Israel, logical agenda and maybe that's an unduly cynical point of view. I mean I am an appellate lawyer at heart. I am used to having deep respect for the courts in this country, but especially for this, import, and so I find it to be almost painful to be in this,

position. But the alabama case is, I think, a good example. When hopes the supreme court will alabama. We we said what we said. We meant it, you must follow our rulings, but here in blue, and I think one risk is that if they want to preserve the criminal aspects of what's a very serious issue in this country, then do so at the expense of some of their own legitimacy in the earlier ruling in bruin, which, in my judgment, a bad ruling. Something pretend I have talked a lot about, something that you touch on here: but it is nonetheless their decision to the extent that John robber, has regained control of his court and I- and I do think that is the overarching story of last term. I think, he is sensitive to that and probably justices bear it and cavanaugh are sensitive. To that, too, the fact that they absolutely squandered

earned political capital in one term and I think that the reason the core and I dont want to say it swung back to moderate last term, because I just think no, the minute, you accept the independent state legislature. Theory case right. The minute you accept the affirming action case right after it has already been decided. You know everything on the dock at last. Herman. This term is a deliberate said, choices to continue. My lab experiment analogy to have these seven test tubes right as the thing that everybody's gonna pour over, so they have absolute. discretion over their dogs. They grant crazy cases and then, when they say, oh actually, you know the state of north north carolina cannot argue that judge can't oversea election.

Protocols right, that's the independent state, legislature, theory: the country is like a sigh of relief right, they didn't burn it all down, but I just want to keep saying- and I think you've just said it- the choice, is to not burn it. All down, isn't a win for moderation. It's a win for the optics, moderation. Does your question this test that we talk about in this particular context were talking about it with respect to the second amendment that in for there to be a certain kind of regulation, there has some analog to it back at the founding and in this case is particularly bizarre. Given that you take my domestic violence prevention. and it was your women can vote when this nation began and it was illegal, beat your wife in every state in the union when the station began, but this tradition and president test extend beyond the second member. How else is going to affect court cases going for well, I mean we're, certainly seeing it first of all,

seed and dobbs re? This is the analysis that justice Alito uses to overturn row right and we're going to to the extent that clarence thomas in his concurrence, he famously Ro said I'm just gonna spell it all out there in appears what I'm coming for next and its A gazelle rate. Marriage, equality and its birth troll I mean, I think that we know what happens if you apply this strict tests in history tat s too. Any kind of of the modern, mores and values and rights that have evolved over the centuries. So I think there's no my mind. If you look at you know efforts in the state. it's two further cabin, whether its birth control, whether its rules regulating you know how transgender kids can access medical, sir, mrs, whether its ivy ass or what

However, it is, I think, there's a whole host of issues that the courts are for using this test, I mean the other key is what we should talk about, or all of these efforts to end the administrative stay right. There's three major cases on the dock, at one of which was heard this morning. That would do away with the csp be annulled lot of that dips into this notion of tax in history, and this is how you could finance a federal agent, see you know, because it's not done through appropriations is done through the federal reserve, its clearly unconstitutional. So I think you can continue to use these argue hence about text in history and the original meaning blah blah blah too pretty much. do away not just with you know. I think what alina kagan has disk. I d like most of government, which is really what I think is in the crosshairs this term, but I think

You can certainly say that if you can applying these rigid historical analogy tests. You can get rid of systematically that whole laundry list of of rights that justice thomas set forth in his concurrence in Dobbs yeah, look at steve, Bannon's dream come true right: deconstruction of the administrative state being accomplished through donald trump's, three choices for the supreme court right, and this was done again speak trade. This was done again, white house councils, famous speech where he said there is a coherent plan here were actually the traditional selection. rate and a deregulatory effort are really the flip side of the same pointed deregulatory agenda. Getting rid of federal agencies is directly connected thanks for listening to hear the full episode and access all exclusive insider content. Consider becoming a member at the cafe dot com, slash insider to try out the membership for just one dollar. For one month,

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