2025-2026 Supreme Court Term Preview

Hey everyone, this is Leon from Prologue Projects.

On this episode of 5 to 4, Peter, Rhiannon, and Michael are looking ahead at what's on the docket for the upcoming Supreme Court term.

As you'll hear, justices are gearing up to rule on a grab bag of cases, some in the realm of culture war, others having to do with more long-term conservative projects on voting rights, criminal law, and the rights of police officers.

The justices will also get to flex their expertise on tariffs.

So, plenty to look forward to.

This is 5-4, a podcast about how much the Supreme Court sucks.

Welcome to 5-4, where we dissect and analyze the Supreme Court cases that have terminated our civil rights, like a journalist who tweeted about Charlie Kirk.

I'm Peter.

I'm here with Rhiannon.

Terminated.

Job gone.

And Michael.

You got like a a sort of

subject-verb agreement issue with your analogy today.

But otherwise, it's incredibly toothsome.

Right.

It's the civil rights that were terminated.

The cases terminate our civil rights

as if they were a journalist who tweeted about Charlie Kirk.

The civil rights are being terminated.

Right.

As if they were a journalist who...

Tweeted about Charlie Kirk.

I need to see a sentence tree.

It works.

I need to see the tree.

I'm not saying it's the most natural sentence in the world,

but I think it works.

And listen, we get it.

We understood.

Yeah, we understood.

And I believe our listeners will as well.

Thank you to Rihanna for saying we understood.

And

you're welcome for the constructive criticism.

And a lot of discontent with Michael for calling me out on a very coherent sentence.

And maybe there's nothing more to say about it because.

Well, because we don't want Leon to fire us.

There's nothing more.

Because we don't fight.

We don't want Leon to fire us.

I was about to say, Leon sent us a text beforehand being like, you better not.

Yeah.

You better not talk shit about Trump.

No, in all seriousness, been a sick week to be a journalist without a real job, folks.

That's right.

That's right.

Oh, y'all are calling yourselves journalists?

Yeah, that's what I told.

That's what I told the feds a couple years back when they asked me.

So

that's officially what I am.

some of my college friends were like yeah you're a pundit and i was like no i'm not but i do feel like we're in media no you guys are are pundits i am a journalist sound off in the chat what are we are we listeners

are we journalists are we

something else entirely super models yeah i i once reported to the government that I was a journalist, although it was like a drop-down menu situation.

Sure.

Yeah.

So I don't know if that's the most accurate thing.

All right.

Welcome to the 2025-26 term preview episode.

This is sort of like a fantasy draft for the rights that you're going to lose.

We're going to take a look at some of the big upcoming cases this year.

As usual, this will not be comprehensive in part because there are too many cases to cover, but also because the court adds cases to their docket as the year goes on.

So there will be more cases to come that we don't know about yet.

But for now we've put together an illustrative set, shall we say?

Yeah.

The court appears to be focused on a few broad issues, none of which are too surprising.

One is LGBT rights.

Another is elections and voting.

And then finally, you have criminal law.

And at the end of the episode, we'll also be talking about the case challenging Trump's tariffs,

which is not

something that usually makes it in front of the Supreme Court, but I'm sure that they will read up.

You know what I mean?

I'm sure that they'll be incredibly well-versed on tariffs by the time it crosses their desk.

All is that in their tariffs experts.

Yeah.

Yeah, it's it is quite the slate of cases.

Look, I think that we do a term preview episode just about every year.

It's important.

And maybe in years prior to this, the uniqueness of the Supreme Court term that's coming up is like really captured in some headline grabbing cases, stuff that is just, it's on its face, the legal issue that the justices are going to be deciding is so obviously, you know, hugely detrimental or really, really important to how everybody understands like their rights are or the Constitution.

Right.

And I think something that's like maybe a little bit different about this term, looking at this slate of cases, is like

it doesn't feel like it's these major headline grabbers.

It doesn't feel at this point that there are any on this list where it's like deep in the culture war, shit stirring, shit throwing.

Like, I think that there might be a sense of like some like rote banality here, but like these are important cases.

Yeah, I think to a degree in the second Trump administration, administration, especially, like in the same way that no headline can really catch your attention anymore

because everything feels so monumental and weird and crazy and bad.

And extreme.

No case can grab your attention in the same way.

And that might make you feel as though like a term preview is too like small stakes.

But I actually think if you want to keep your grip on reality, you need to

understand

where the rubber meets the road, right?

And like

what exactly they are doing and why.

And so, yeah, I think it's like you, you need to sort of like keep yourself in the present a little bit and like not let the feeling that this is rote set in in your brain.

Yeah, exactly.

Now, that's not to say that there aren't some headline grabbers.

I mean, we're starting here with starting big.

Something that's

starting big.

They're definitely up to some culture war bullshit.

So let's jump into the first case, trans people in sports.

Specifically, there are two cases at the Supreme Court this term about trans folks, young people in sports.

Got to be comprehensive, folks.

You can't let them get away with anything.

Give us all the cases.

Look, if we get one case per trans athlete, it's like

four cases.

We can knock them all out in 10 years.

Matt.

We're only a few cases away from having more cases about trans athletes pending at the Supreme Court than there are NCAA trans athletes.

Right, right.

Yeah.

So look, this is ridiculous.

It's dangerous in so many ways and shows yet again, we've said this many times before, shows that the Supreme Court controlling their own docket, controlling the cases that they take, it is incredibly revelatory about where the politics are at the Supreme Court right now.

So,

this past term, we already know in the term wrap-up that we did over the summer and in the episode we had on the case, we already know that the court last term upheld Tennessee's ban on hormone therapy for trans children.

This term got this other culture war lightning rod regarding trans people in sports now.

So, two laws at issue, two different states banning trans women and girls from participating in women's and girls' sports.

Idaho, actually, Idaho was one of the first states to enact such a ban.

Back in 2020, the state of Idaho passed this law, and then Attorney General Raul Labrador said, quote, female athletes have become bystanders in their own sports as male athletes who identify as female have taken the place of their female competitors on the field and on the winner's podium.

Yeah.

When's the last time you heard of a cis woman winning a competition in the NCAA?

You probably can't even name a single time.

Wait, a cis woman?

I don't get it.

Yeah, it's all trans women now.

That is the.

Oh, oh, right, right.

Yeah.

There's three trans women and they are dominating across every

sport, every competition.

It's ridiculous.

Yeah.

We joked about this a moment ago, but for the record, the head of the NCAA said that there are fewer than 10

transgender athletes in the NCAA.

College sports right now.

So not sure, female, male, what the breakdown is there, but again, what we're talking about is a maximum of nine.

Maximum of nine, right?

Let's get the Supreme Court on this.

Right, exactly.

Now, the other case is actually about younger children and their participation in sports.

The state of West Virginia passed the Save Women's Sports Act, which is a law that bans boys, assigned male at birth, from participating in girls' sports.

And so what does that mean?

That means cis boys can't participate in girls' sports, but it also means trans girls can't participate in girls' sports.

And it also mandates that sports in schools be classified as like a boys team, a girls' team, or co-ed.

Any sports offered at West Virginia schools, and this is K through high school, have to identify those teams or those children's participation as based on sex assigned at birth.

Now, to be clear, the sole purpose of this law, the sole purpose of this law, it is stated, it's explicit, lawmakers say this, is to prevent trans girls from participating in girls.

sports.

So the question for both of these cases, there's a constitutional question and also a federal statutory question.

The constitutional question, you've heard it before, folks, it's the 14th Amendment, that equal protection clause.

It's real, real, real pesky.

If you're a conservative, it just...

Fucking sucks that the Constitution says

that the government can't infringe on anybody's equal protection of the laws,

that the laws have to be applied equally.

God, that sucks, you know?

And so there is this question about whether these these sex-based discrimination in the law, in the law in Idaho, in the law in West Virginia violate the Constitution, the 14th Amendment.

There's also a Title IX issue.

Title IX is the federal law, of course, enacted back in 1972.

It mandates, among other things, equal treatment in all athletic programs receiving federal funds, equal treatment on the basis of sex, that, you know, girls and women's sports need to get equal funding, equal attention, these kinds of things as boys and men's sports.

And so, there's a question here about whether these two laws, and it would imply, of course, other states enacting similar laws,

about whether these laws violate this federal law, violate Title IX, which also bans sex discrimination in athletic programs in schools.

I oh, go ahead.

You were gonna tell us which side you're on here.

I

My side is you'd be surprised.

No, I think that

as a former athlete.

No, actually, what I was about to say.

Yeah, that's right.

You played soccer, right?

I played soccer very seriously.

I played soccer so fucking seriously, you guys.

I was on an Olympic development team.

Really?

Yeah.

I didn't know that.

It was crazy.

That's

awesome.

That was too much, actually.

Anyways,

it was too much, actually, and I resent my parents for it.

Fair enough.

You know what?

Take girls out of sports.

It is fucking damaging.

We'll start with keeping trans girls out, and then we can move on to all girls.

Right.

Let's go ahead and get the cis girls out, too.

I was just going to say, actually, we definitely don't need to spend a lot of time predicting where the justices are going to go on this.

No.

I think the question will be about level of scrutiny applied, right?

Generally, sex-based discrimination for the 14th Amendment requires intermediate scrutiny, but the conservative justices like to get a little, a little kooky crazy on

these scrutiny questions in order, of course, to justify their holdings, upholding, of course, sex discrimination.

Yeah.

And just in case anyone's wondering why

the result here isn't functionally obviated by the case from last year, Scrametti, that was about gender-affirming care for minors.

And the court sort of hung its hat on like, well, this is really discrimination based on medical diagnosis.

And so

this is different, right?

I think the outcome will be the same, but this is sort of theoretically different.

Right.

Seems likely that they,

or at least least possible that they'll reach this outcome by saying, look, trans people don't get any special consideration under protection and this is rational basis and there's a rational reason for this and that's the end.

In which case, you know, red states and whoever can go hog wild on discriminating against trans people.

Right.

Now, if you thought that that was grotesque,

Wait till you hear about Chiles v.

Salazar.

This is a case about conversion therapy.

Many states have laws limiting or forbidding what's called conversion therapy for minors.

Conversion therapy is a crank, pseudoscientific therapy given to LGBT children almost always forcibly by their parents with the intent of turning them straight.

This is a practice that has, of course, no meaningful basis in science.

It lacks evidence-based standards.

It often results in long-term psychological harm to the patient, if you can call them patients.

Right.

Now, conversion therapy can take many different forms.

Historically, it could be very, very severe, including lobotomies, castration.

After that went out of fashion a bit, it moved on to aversion therapy, which includes things like shock therapy.

Now, those practices are not particularly common.

What you're more likely to see is therapy built around the idea that homosexuality stems from underlying trauma or some other type of disordered thinking that you can sort of work past with the therapist, right?

Now, because this is a fake crank science that harms children, many states wanted to limit the practice.

Colorado and 21 other states passed laws that prohibit state-licensed mental health professionals from attempting to change a minor's sexual orientation.

Note that this only applies to licensed professionals.

Unlicensed religious counselors are still allowed to do this because there's like a freedom of religion thing, right?

Yeah.

Now,

one of those licensed professionals sued the state of Colorado, arguing that this infringed on her right to free speech.

It's her speech right.

She wants to say, don't be gay to the kid.

It's her speech right to abuse children.

And this law,

I want to say the therapy words that I want to say, and the government can't tell me, no, right?

She lost in the court below and has appealed to the Supreme Court.

Less than a year and a half ago, the Supreme Court declined to hear a similar case.

Thomas, Alito, and Kavanaugh all dissented from that decision and said that the court should weigh in.

It seems like they got a fourth justice on board now because you need four to hear the case.

So

I think it was fucking Amy.

I wouldn't be surprised if it was Amy.

I wouldn't be surprised if it was

basically anyone.

I don't have any hope for any of these little demons.

Right.

There's a combination of issues here.

This is a little, it's a little bit weird because when we say a licensed mental health professional, who gives the license?

Generally, the state, right?

So the state can put certain requirements on those licenses.

And there is sort of a underlying question here.

What are they allowed to require of licensed counselors in terms of like the content of the counseling, right?

And then there's also the idea of fraud.

A lot of states sort of treat this as if it is fraud because we know this stuff doesn't work and it's not really evidence-based.

A lot of states have basically analyzed this as if it were fraud and you can't sort of commit fraud.

You can't tell your patients that this works when we know that it doesn't work.

It's fraud, right?

And I think that's sort of like what the push and pull is, at least theoretically.

On one hand, you have the right of this lady to say what she wants to a child.

Okay.

And then on the other, you have the fact that generally speaking, it is illegal to commit fraud.

And so

you have on one hand the interest of

an actual human child,

and also perhaps the interest of the body politic in not endorsing fraud or child abuse or or child abuse

and then on the other hand this lady wants to say whatever she feels like to a child the interest of this fucking lady you have to put those things on the scale and you have to weigh it out and we'll see where they land

all right on to voting Yeah,

on to lighter topics.

The death of the voting rights act.

Act.

It really is a slate, y'all.

It really is a slate this year.

Let's transition this.

You might say, hey,

I don't like conversion therapy.

I would love to elect people who are opposed to it, right?

But to do that, the Supreme Court's gotcha.

You'll need to vote, right?

Nice.

Nice segue.

Oh, Rhee, I need your help with this.

John Roberts pronounces this at oral argument last year as as Calais.

It looks more like Calais to me.

What do you think?

You speak French.

If this is French, it's Cahier.

Cahier.

Yeah, but for sure it's.

It's Louisiana.

Probably Calais.

Yeah.

Calais.

All right.

So

Louisiana v.

Calais.

Is this about section two of the Voting Rights Act?

This is a separate part of the Voting Rights Act than what we covered in Shelby County.

If the Voting Rights Act is a building, this is the only pillar remaining.

It's just like a completely decimated building and this one crumbling pillar stands.

Yeah.

And John Roberts has a sledgehammer and he's walking up to it.

That's right.

So this part of the Voting Rights Act bars processes and requirements that result in abridgment of the right to vote on account of race.

That phrase result in is important because it allows for disparate impact claims.

So it's the idea that like, hey, you know, I'm still technically able to vote, but my voting power is diluted by, say, how this district is drawn.

And that this has a disparate impact on black people because it turns out, oh, it's black people who are all being shoved into one district to reduce their overall voting power.

Right.

A literacy test to vote, right, would be an example.

Yeah.

Yeah.

So after 2020, Louisiana redrew their maps like everybody else in light of the new census.

And even though black voters were a third of the state population, they were what's in redistricting terms called cracked and packed, such that black voters could only really influence elections in one out of Louisiana's six districts.

In 2022, a district court ordered that a new map be drawn to increase the voting power of Louisiana's black population.

Louisiana draws the map with two majority-minority districts, or two districts where black voters get to choose the representatives, and then white voters sue, saying that violated the 14th Amendment, the Equal Protection Clause.

A three-judge panel, which is how these cases are usually heard, says, yeah, you're right, white people.

This is an equal protection violation.

And that goes straight to SCOTUS.

It skips the circuit courts of appeals.

This was actually argued back in March on some technical questions about whether race predominated and blah, blah, blah, whether this survived strict scrutiny.

But the Supreme Court didn't issue an opinion last term and instead relisted the case for re-argument this term with a new question presented that SCOTUS wrote itself, which is whether the state's intentional creation of a second majority-minority congressional district violates the 14th or 15th amendments to the United States Constitution.

Nice.

Let's go.

Let's go, whites.

You know,

don't let yourself get disenfranchised down in Louisiana.

I'm sure it's been a real struggle to make yourselves heard.

Yeah, that's right.

That's right.

So, obviously, there's a lot of reason to be concerned here.

There are a lot of different approaches the court can take.

Look, usually, when the court takes a case

to be reheard, it's to overturn the case that they took.

That's like it happens like 65, 70% of the time.

So

that would be good here.

So that's the only good indicator amongst the sea of bad indicators.

I don't think you can rely on those historical percentages at this point.

I'm going to be honest.

No, the bad indicators are myriad, right?

The relisting for argument, asking this question, they seem to be teeing up the idea that considering race at all in redistricting might be an equal protection violation or you know otherwise there are sort of halfway approaches they could take we don't really need to get into them but i think the the important thing to know is what's at stake here what's at risk the entire ongoing significance of the Voting Rights Act is at risk.

And even beyond that, if they take their maximal approach and crush what I mentioned, disparate impact claims, Title VII is at risk.

The Fair Housing Act is at risk.

Like there are other statutes that specifically ensconce disparate impact claims into them that would be at risk.

So yeah,

it's a big, scary moment.

There's another case about the Section 2 that's also worth mentioning.

The court hasn't accepted, granted cert on this yet, but it's called Turtle Mountain Band of Chippewa Indians v.

Howe.

And

in this case, the Eighth Circuit said that actually everybody's been getting this wrong for 50 years.

Wouldn't you know it?

Private parties can't bring Section 2 claims.

Only the government can.

This ruling has been stayed by the Supreme Court to give the Chippewa Indians a chance to apply for cert, which they have indicated that they will in briefing.

So I think there's a pretty good chance that this gets taken this term.

But, you know, we'll see.

Aaron Powell, Jr.: And disparate impact, just so our listeners know, is the idea that a certain policy disproportionately affects a certain demographic, a certain race in this case.

Aaron Trevor Barrett, yeah, regardless of the intent or regardless if the law actually explicitly states a discriminatory purpose.

Aaron Powell, right.

So you generally have challenges where you're saying, hey, this is discriminating on purpose.

This is like, you know, overtly discriminating against us.

And then you have cases that are like, maybe this isn't discriminating on purpose, but the functional effect is discrimination, and that's disparate impact.

Yeah.

You know, we probably have a lot of new listeners since the last time we said this, but I think it's worth mentioning every time we talk about the Supreme Court's attack on the Voting Rights Act, John Roberts is kind of his signature way back when he worked in the Reagan administration, long before he was a Supreme Court justice.

He was special assistant to the Attorney General.

He was also associate counsel to the president and just a prolific writer at the time about how the Voting Rights Act should be held unconstitutional.

Right.

And that, by the way, was in the early 80s when the position that racism was not a problem or whatever was even less defensible than it is today.

Yeah.

Pretty wild stuff coming out of John Roberts, but it's his lifelong mission.

That's right.

Dude was in his 20s.

Imagine a 20-year-old, 20-something.

Right.

You're like going on first dates, and they're like, so what are you interested in?

He's like,

I don't think that the Voting Rights Act is constitutional.

Losers.

Why can't white people simply draw the districts that they want to draw?

All right, also having to do with voting election law, BOST v.

Illinois State Board of Elections is coming up this term.

This is a case about mail-in voting.

And actually, this is one of those cases I was kind of referring to up top with, you know, this one might not be like a headline grabbing case.

And the actual issue here is pretty narrow, kind of technical.

I think it's part of a bigger picture that our listeners will want to be keeping track of.

So really quickly, Illinois allows vote by mail and allows votes that are submitted.

by mail to be counted as long as they're postmarked correctly, allows those votes to be counted up to 14 days after election day.

Now, this case, how does it come to the Supreme Court?

Elected officials in Illinois, one federal congressman and two presidential electors, are suing, saying that this policy, this mail-in voting policy that allows votes to be counted if received up to 14 days after election day, that it's harmful to them.

It's harmful to these electeds because

oh, they have to do things like spending money to make sure that the procedures are done correctly and that these mail-in votes are counted correctly.

And also they're alleging maybe mail-in voting where the votes can be counted after election day, maybe that's unconstitutional because the Constitution says Congress can set when election day is.

And Congress said that election day is a special day in November, not fucking 14 days later.

So

now,

This case is like percolating up and down the federal court system.

The question question in front of the Supreme Court, in this case, this term, is actually about whether these elected officials even have standing to sue.

Did the Illinois mail-in voting policy actually harm these electeds?

By the way, these electeds won.

their elections.

But the mail-in voting policy did not like somehow harm them.

And again, this brings us to, this isn't a headline-grabbing case.

You kind of think, oh, it's just about standing, right?

It's just about a procedural issue, a technical issue about whether or not these people can sue about this question.

But we should see this case in the broader context, which is the right.

in this country is attacking more expansive, more accessible voting policies like mail-in voting in a variety of ways, whether it's elected officials filing the lawsuits, whether it's citizens, whatever, non-electeds.

And if the decision at the Supreme Court is that these guys do have standing, then that means that they are attacking mail-in voting in general and going to be furthering their argument later on down the line, saying that mail-in voting itself should not be allowed and is maybe unconstitutional.

Yeah, yeah.

I think in the greater milieu of this, it's sort of concerning, right?

Like you can imagine next election cycle if candidates have standing to challenge mail-in voting laws every losing republican candidate challenging

every mail-in ballot which especially in the context of like ice is out in force right now the national guard is being deployed in several blue cities what if there are ICE agents at polling stations in some districts.

People might turn to mail-in voting to avoid uncomfortable confrontations with, you know, thugs.

Like, that's a very, it's a very plausible way the next year plays out.

So, what happens when they're challenging all those mail-in votes in court, right?

Like,

it's just another avenue for attacking voting.

It's, it's, it's very bad.

Yeah.

They're also attacking campaign finance.

Again, this isn't a huge one.

It's another, it's just chipping away.

This is the NRSC, the National Republican Senate Committee, versus the FEC, the Federal Election Committee.

They are challenging the spending limits on party campaign committees when they spend in coordination with candidates.

And so what this is, is when you get a fundraising text from the DCCC or whatever, right, from the Democratic Party in general, if you give money to them, that goes into a chest that they can use to help candidates get elected.

But

they can only do so much spending in coordination with those candidates.

Because if you are coordinating with the candidates, that's less like an expenditure on your behalf and more like a donation to the candidate.

It's like you're paying for their advertising.

And

they're saying, well, we don't want.

to have any limits on that.

We shouldn't have any limits on that.

The whole point of being a political party is to help your candidates get elected.

So we should be able to coordinate with our candidates.

This just opens up another avenue for people to give money to political campaigns.

It's one more chip away.

I don't want to sound like

this case is already decided, but it is pretty much already decided.

It's decided.

Yeah.

We can say it.

Yeah.

There's a handful in here that are...

a stone-cold lock, and this might be the luckiest.

Yeah.

The FEC is controlled by Trump.

They're not contesting this.

If you look at the

Miki, it's like all right-wing groups, and nobody's even bothering so far, at least, to like file a token

opposite to the position.

I think the Democratic Party probably is like,

this is great.

We have our dark money too.

You know,

we'll do fine with this.

So they're not opposing it.

Yeah.

I mean, from a practical perspective, it's not just about money and politics per se.

It centralizes control in the parties because it's an end run around

campaign donation limits, right?

You can only donate X amount to a certain federal candidate, right, as an individual person, but you can donate to the party directly, and then the party can allocate those funds to the candidate it likes.

And so it ends up being a sort of source of party control.

Right.

This will be almost certainly, at least, overturning a case that's not that old, right?

Good stuff.

Good for them.

All right, let's move on to the criminal law cases.

That's where everything's going to be great.

Yeah.

Well, I will say it is a little more hit or miss with criminal law because it tends to be a little ticky-tack.

But criminal law is like a guarantee.

Like some of this stuff is sort of culture war-y.

LGBT rights cases, they sort of manifest in a way that reflects the culture war.

Voting rights cases, longer-term project, but they sort of like reflect the posture of the Republican Party to some degree.

And then just every year there's a grab bag of like, which criminal rights are we going to eat away at?

Yeah.

And that happens regardless of the political culture.

So first you have Barrett v.

United States.

This is a case about double jeopardy.

This case stems from an armed robbery.

A man who served as the getaway driver, Dwayne Barrett, was convicted of aiding and abetting two separate federal crimes in relation to this robbery where someone was shot and killed, not by him, but by one of the accomplices, right?

One of the crimes he's charged with aiding is using or carrying a firearm in furtherance of a violent crime.

The other is causing the death of another person with a firearm in furtherance of a violent crime.

So he looked at those and was like, well, that's the same.

Using a firearm in furtherance of a violent crime, causing the death of another person with a firearm in furtherance of a violent crime.

These are basically the same thing, right?

And the Constitution forbids double jeopardy.

It says no person shall be subject for the same offense to be put in jeopardy of life or limb.

So he's like, hey, this is the same crime.

It's really just one crime.

One subsumes the other.

And that's what double jeopardy is, right?

And I think people imagine double jeopardy is like you have a trial for murder and then you win and then the state's like, we're going to do it again.

Ha ha ha.

And you're like, no, double jeopardy.

But actually, most double jeopardy cases are about the fact that there are tons of different crimes and a ton of them are very similar to one another, right?

It's about piling charges on people.

Right.

Right.

It's about charging people with multiple things that maybe are called different things, but actually you're alleging the same elements across multiple crimes.

Right.

And these two are side by side in the same law, in the same statute.

So what's happening here is that there's a sort of trickiness.

in a world with so many different crimes that are so similar.

And the reason those crimes exist is often so that, A, prosecutors have something to charge, but if you're going to look at it this in like really good faith, the reason that there are so many crimes is so that prosecutors can be exhaustive.

So someone doesn't like get away with a crime because they didn't like do X, Y, and Z with the gun or whatever, right?

So this is why the lawmakers will write statutes with so many different crimes so similar to one another to make sure that no one gets away with anything.

But The double jeopardy clause is rendered meaningless if the government can just like layer functionally identical crimes on top of one another.

It's the same thing as charging you twice for the same crime.

And so

in the big picture, this might be relatively minor.

We're talking about whether these two crimes in one federal statute are basically overlapping.

But double jeopardy stuff is always sort of important.

And you never know what rule the

court is going to come out with that makes it easier to just sort of like layer functionally identical crimes on top of one another.

All right.

Another case in the world of criminal procedure, this time the Fourth Amendment.

This time warrants and warrantless entry into your home.

What kind of power do police have to enter your house?

Now, there's a general rule, of course, that police need a warrant to go into your house.

Your house, probably the most protected thing.

from government intrusion, at least in the Fourth Amendment here and in case law on the Fourth Amendment.

But there is an exception, which is if police believe there is an emergency happening inside the house for which they need to render aid, they can go into a house without a warrant.

Examples, maybe police see smoke billowing out of a house's window.

They hear cries for help from inside.

This would be an exigent circumstance, an emergency circumstance where police believe that somebody is in dire need of emergency aid, they could enter that house without a warrant.

There are a couple of cases that establish this rule that kind of contours around this emergency aid necessity for as an exception to the warrant requirement.

There's a case called Brigham City from 2009 where officers through the window of a house or a front window, they saw a fight with multiple people happening, including adults and juveniles, like children.

They see a physical fight happening.

happening.

They see somebody get punched, their face is bloody, right?

The Supreme Court rules in the cops' favor in that case that the cops did not violate the Fourth Amendment by entering that house to break up that fight and to deliver aid.

There's another case from the same year, actually 2009, the same term.

It's called Fisher, where officers saw like a truck.

truck in front of a house with blood on the hood.

The windows of the house had been broken.

Somebody had called and said, it seems like somebody is going crazy in that house.

And the officers observe a person inside the house throwing things and bleeding, appearing to be bleeding.

The Supreme Court again says, yeah, this is an emergency.

This could be perceived reasonably by the officers as a reason that somebody needed emergency aid inside a house.

The officers don't have to go and get a warrant in order to legally enter, right?

Okay, but let's talk about the case here.

Was it really an emergency?

And what standard, what quantum of evidence do police need to have to actually legally be able to say we thought that was an emergency and we could enter without a warrant?

In this case, Mr.

Case, this is actually the criminal defendant in this case, his named case.

Mr.

Case, his girlfriend at the time, calls police and says, I'm really afraid that my boyfriend is about to commit suicide.

Now, police know Mr.

Case as someone who has previously expressed the desire to commit suicide by cop, which is to say to call the cops and maybe instigate the cops into opening fire so that Mr.

Case does die in effect by suicide via the police shooting him.

So police get to Mr.

Case's house.

So they went.

And

they go to the house and they're outside the house talking.

I'm sorry to interrupt, but it doesn't seem like a natural conclusion that they should go.

Well, when she says they're suicidal and they are aware that he wants to commit suicide by cop, or at least has in the past.

This is cop logic.

They're like, send us in.

Well, if you're, I mean, look, I'm never going to like read the cops' actions in good faith, but like if cops respond to emergency situations and somebody says, my boyfriend, he just threatened that he's going to commit suicide and he has guns at home, you know, then

some sort of emergency services should show up.

But let's talk about it.

Did the cops really think that was an emergency?

Because they got to Mr.

Case's house and they know that Mr.

Case has this history with

mental illness and suicidal ideation.

And they stand outside the house for over 45 minutes talking.

And they talk about the risk and they talk openly.

And this is all on body camera and is evidence in the case.

They talk

Mr.

Case is just trying to get us inside.

I bet he's going to open fire on us.

Do we really need to go inside?

And he's not going to do anything.

He doesn't really have the balls.

They say this.

And they're just standing around for a while.

Question: Do they think it's an emergency if they wait that long to go inside?

Right?

Right?

I got to say, sometimes in crim law, you get some good law school shit.

I was going to say, this feels like

an exam hypo, right?

Right, right, absolutely.

So they do go inside.

They find Mr.

Case.

An officer alleges later that he saw a dark object in Mr.

Case's hand.

That officer does shoot Mr.

Case.

Mr.

Case doesn't die.

Mr.

Case is hospitalized and arrested for assault on an officer.

Yeah.

Busting.

Now

so fucked.

So Mr.

Case in fighting the charge against him, assault on an officer, says officers entered my house without a warrant, and they shouldn't be allowed to use any evidence against me of this crime.

And officers here, the state of Montana, saying, well, no, there was an emergency and

officers didn't need a warrant to enter your house.

The question before the Supreme Court, very specific, right?

What is the standard?

Do police officers need probable cause,

a probable belief that an emergency is happening, that somebody needs, you know, sort of life-saving aid at the time?

Or do they just need kind of a general suspicion of this existence of an emergency or life-threatening injury?

That's the question at the Supreme Court.

That's kind of it.

I think you can argue on this question either way, and you probably have good arguments, right?

Police need probable cause because they shouldn't just be allowed to go into your house on an inkling.

or no police should be required less than probable cause because police should be able to respond to emergencies.

I think it's fine to have those arguments about the law, but that's also quite divorced from like real life context where in many, many situations where police are entering your house without a warrant, they are going to allege after the fact.

that there was some emergency that required them to do so.

And so they didn't need a warrant.

And they're going to allege after the fact, after they've shot somebody inside their home, they're going to allege after the fact, right?

That entering the home without a warrant was so necessary because they needed to respond to an emergency.

It's a problem we've talked about before where the court is like very insistent on granting

cops the benefit of the doubt on their good faith, on whether they are operating in good faith, whether they are lying, whether they are willing to lie.

And we've said before that like standards that don't take into account the fact that cops lie very consistently are going to be inadequate in practice.

I don't think the court is going to require probable cause.

I don't think the court is going to say police have to have probable cause that there's an emergency happening for them to enter.

But I also don't think that requiring probable cause would fix this issue.

Right.

Because police aren't acting in good faith, right?

And they're not acting in good faith when they say that they have probable cause either.

Emergency, this home is flying an appeal to heaven flag outside.

Woo, woo, wee, woo, woo, woo.

Get over there.

We're going to need to breach.

So our last criminal case is Ham v.

Smith.

This is about the death penalty and executing possibly intellectually disabled.

OG, Supreme Court stuff.

They've been doing this forever.

Yeah.

Yeah.

So there's this case, Atkins, which says that some people are too intellectually disabled to be executed.

Clarence Thomas was on the court for this.

He dissented, of course.

Just

a little bit of history for you there.

Atkins had a footnote that said, typically,

someone with an IQ of approximately 70 or lower would be considered intellectually disabled.

Sure.

So the guy here, Smith, is convicted of murder.

He's sentenced to death.

And then on a habeas review, is found to be intellectually disabled under Atkins.

Now, Smith has been administered five IQ tests and scored between 72 and 78.

on all five of them.

But there's a standard error with IQ tests.

And so

those scores give you a range of his quote-unquote true IQ as low as 69.

His true IQ, the IQ that God gave him.

That's right.

That's right.

Now, the Circuit Court of Appeals agrees with the habeas court that...

Thank you for that delayed left break.

It hit me a little bit late.

I'm sorry.

Go ahead, Michael.

Yeah.

The Circuit Court of Appeal agrees with the habeas court that he's too intellectually disabled to be executed.

It gets appealed up to the Supreme Court, which sends it back asking the appeals court basically, was this based on just the standard error?

Or was this based on some like all the circumstances, expert testimony, blah, blah, blah.

And the circuit says, no, the totality of circumstances.

It's not just the standard error.

It's not just the IQ tests.

It gets brought back up to the Supreme Court, where it is being now reviewed on the question.

Again, this is one the court wrote itself, whether and how courts may consider the cumulative effect of multiple IQ scores in assessing an Atkins claim.

So.

All right, look, let's stop talking about substance and start.

How many pages is the Thomas concurrence?

It's, it's, well, I think more interesting is how many times does he cite his own concurrences and dissents?

I say 23 pages.

23?

I'm going to go a little lower.

I'm going to say 18 pages on the concurrence.

It might be a short one.

It might be a short one.

Shortly Thomas.

Yeah.

But it's all C.

Thomas.

C.

Thomas.

Right.

I feel like Michael just hit us with

the prices right, and he might have done the correct thing.

Yeah, I think so.

But

that was the number that came into my mind's eye.

Yeah.

I mean, I'll say this.

If we get a Thomas majority,

oh boy.

Oh, boy.

That's going to be rough.

My instinct is that he will find his way to the right of whatever majority opinion gets established here.

Yes.

Even if it's quite horrific.

Trevor Burrus, Jr.: Whatever Thomas writes, it's going to start with the horrific nature of the underlying murder here, right?

The murder that this intellectually disabled person was convicted of doing.

see if he writes something 10 plus pages i agree but i could see i could see if he's keeping it under seven

i could see the majority correctly applies our precedent but we should revisit our precedent which those things always start very brief can be quick

yeah it depends how far the majority goes yeah if the majority makes a mistake in his mind this could get real long all right folks let's wrap this up tariffs Tariffs, baby.

Learning resources v.

Trump.

One of the hot topics of this year.

Tariffs, of course, are taxes on goods imported from other countries.

That's important to note because no Republican knows that.

Donald Trump doesn't know what tariffs are, and that's an important part of this case, all right?

Donald Trump has instituted various tariffs on other countries, and he did so by executive order.

These tariffs fall into two very broad categories.

One, there are tariffs on Canada, Mexico, and China, which Trump claims are because those countries have not done enough to halt the flow of fentanyl into the United States.

China.

Then, yeah.

China's not putting up a wall in the Pacific Ocean.

So, you know,

have some respect.

That's our president.

All right.

And

he's the commander-in-chief.

China.

All right.

Then you have what are generally being called reciprocal tariffs on almost every other country, ranging from 10 to about 50%.

Trump claims that those tariffs are in response to us being ripped off by those countries, which is because he doesn't know what trade deficits are.

So when he sees a trade deficit, he's like, we're getting ripped off.

But really, a trade deficit just means imports and exports are out of balance, which, you know, like you have a trade deficit with Walmart, right?

It's not 50-50.

Yeah.

Right.

For some reason, no advisor has been able to get this through it to him, right?

Like this is like a thing that he has just never learned.

He imposed these reciprocal tariffs.

So the question is whether either or both of these categories of tariffs can be implemented by the president unilaterally.

There is a statute called the International Emergency Economic Powers Act, which gives the president the power to deal with any unusual and extraordinary threat, which has its source in whole or substantial part outside the United States to the national security, foreign policy, or economy of the United States if he declares

a national emergency with respect to such threat.

Now,

this law does not reference tariffs.

So, like the big question here is actually whether that means the power conferred by the statute doesn't include tariffs or

whether he can impose tariffs because he just thinks that there's an extraordinary threat, right?

And he's declared a national emergency.

Now,

the sort of like doctrinal thing here is that the court just spent four years under Biden putting limitations on the ability of Joe Biden to interpret statutes aggressively, right?

And consistently was like, well, if the statute doesn't expressly say that you can do this thing, then we can't assume that you can do this thing, right?

So

I guess the question is: are they willing to be hypocrites in order to serve the interests of Donald Trump?

Oh boy, that's a real head scratcher.

Who knows?

You know,

are they willing to violate the rules that they've created?

I don't know.

And I'm excited to find out.

Oh, I'm waiting for Sam Alito to tell me.

As I said last week, my

only concern is the stock market

because I feel like if I play

the podcast game right,

maybe I can just put it in the stock market and then like get rich through that.

Wait, our podcast can be stocks?

I can't do this.

The money you make from the podcast, you can trade the podcast money in stocks.

You buy the stocks with the money you make from the podcast.

I was like, well, does this mean like some sort of like, oh, we're publicly owned now or whatever?

You're all listening to Rhiannon find out that we're paid for this podcast.

The podcast can be stocks.

Unbelievable.

The podcast can be stocks.

Unbelievable.

She's like, are you guys paid in equity?

You guys have like shares or something in this?

The publicly traded podcast 5-4.

Wow.

You really threw me off there.

All right.

The other thing I will say before we wrap up is that like we've seen the court operating on the shadow docket with these like emergency application cases that come to the court very quickly and they often rule on very quickly.

We will likely see more of that in the year to come because because it's fun for them they enjoy it yeah and they don't have to do a lot of work you know last year like every year pretty much there's a big case that they haven't even accepted at this point casa the uh birthright citizenship case you know wasn't in our term preview because it was it didn't even exist same with the student loan case wasn't in our term preview so you can expect at least one big case to materialize and make its way to the supreme court in the next few months yeah and yeah the shadow docket stuff, the firing of the Fed governor, Lisa Cook, seems like it's poised to be the next big shadow docket case.

That'll probably be already on the docket by the time this episode is released.

Yeah, with things being so unstable and the way, right, like Trump runs shit, it's just like, you know, everybody, all listeners know, right?

It's a different dumpster fire every day.

Yep.

Yeah, and the sort of day-to-day functioning of the court has sort of changed pretty markedly to the point where like

the cases they put in their docket at the beginning of the term don't seem as important as they were three or four years ago because they're using the shadow docket so aggressively and because Trump is using like executive action so aggressively and just generally operating outside of the law so frequently that you see these legal challenges rise up and very quickly move to the Supreme Court.

So you still have these major cases that like the court puts on its docket and they're like, we'll handle this sometime this winter, right?

Right.

But they end up sort of being a much smaller percentage of the big cases than they used to be.

Yep.

All right, folks.

Next week we're going to take the week off and then we're coming back with a premium episode about free speech, perhaps.

About,

I don't know, maybe like a little Jimmy Kimmel, a little journalist at the Washington Post and MSNBC getting fired.

That sort of thing.

A little, am I allowed to say I don't like a guy?

Yeah.

Can you say that a guy wasn't good?

Can I say?

Not a fan of that guy?

Yeah.

We want to have a discussion about like these weird gray areas in free speech with the Trump administration sort of showing its willingness to lean on private entities.

I want to talk about the legality of that and

the sort of manufacturing of widespread consent in the media.

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