A Law Trapped In Amber

David Plotz
Hello and welcome to the Slate political Gabfest.

June 27, 2024. The A law trapped in Amber edition by David Plotz of Citycast in Washington, DC, joined by Emily Bazelon of Yale University Law School and New York Times Magazine. Hello, Emily. Hello. Hello.

And John is not here today, but that's okay because we've got a full slate of legal topics. And who better than Linda Greenhouse, the senior research scholar in law at Yale University Law School, too? And I would note that Linda is the senior scholar and Emily is the. Junior scholar in all ways. In all ways.

Emily Bazelon
And we should also say that Linda was the New York Times Supreme Court correspondent for so long and in such an amazing fashion. And we're so glad you're here to set us straight this morning. Happy to fill in. Finally, someone who can correct all the lies that Bazelon has been telling us all these years. I don't think so.

David Plotz
It is. It's Thursday morning, and we're doing a pre debate episode that perhaps you will get the chance to listen to before the big night tonight, the presidential debate tonight. On Friday morning, John will be back, and John and Emily and I will tape a rapid post debate episode that you should get at a reasonable hour on Friday. But for now, enjoy the treat of having Linda here and digging into a big Supreme Court week. This week on the Gabfest, we'll talk about the Idaho case, which at the moment has only been leaked, the Idaho case regarding the provision of emergency services to women, the federal law about that and whether it conflicts with Idaho's very draconian restrictions on abortion.

Then we will talk about the gun restriction that the Supreme Court can support. They finally found one they can support. We'll discuss the interesting eight to one ruling in the Rahimi case. And then Emily and I will talk about squad member Jamal Bowman's loss in his democratic primary to George Latimer and the most expensive house primary in history. Plus, we'll have cocktail chatter.

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Yep, you could say we're kind of a big deal here. Shop over 1600 stores nationwide and Fivebelow.com. Dot Emily, kick us off with this Idaho case, which leaked on the Supreme Court website. I would love to spend actually most of this time talking about the info security at the Supreme Court, which seems to be appallingly bad, but it leaked, giving us a hint at what the result may be, which we may, by the time you all are listening to this, you may have already heard the result. It may have already been made official on the Supreme Court website.

David Plotz
But what did we learn on Wednesday when it leaked briefly? Well, the court says they basically pushed publish by accident and that the official opinion would be released in due course. What they released was a pretty fascinating splintering of the court. The end result is that in this case they have dismissed Cert, which is their decision to accept the case as improvidently granted. That means they are punting.

Emily Bazelon
They are not actually going to decide the case on the merits at all. However, they got really mad at each other on the way to agreeing not to decide. And there's just a kind of real set of tensions here about the decision to delay because it has consequences for women in emergency circumstances late in pregnancy. And then also on the merits, this question about whether this federal emergency law both trumps or preempts and seriously conflicts with this Idaho state law. So let me see, I'm going to lay out basically three positions.

And Linda, you can correct me. Can you just give people background on what the case is as you do that? Yeah. So this is a case about Idaho's law says that you can only have an abortion in an emergency setting if a woman's life is directly at stake. In other words, it's either you have the abortion or you die.

And the Biden administration came in and challenged the law based on the federal emergency statute called eMtala. Emtala says that if you're in an emergency room, you have the right to medical treatment to prevent serious injury. Then in other words, the ER docs have a responsibility to stabilize your medical condition so that you don't have something like organ failure or some other serious consequence. And the Biden administration thinks in this case that includes preserving women's fertility, which can be an issue in an emergency situation in which an abortion would be medically indicated, but for a state ban. So there's a gap here in what the federal government thinks women are entitled to in emergencies.

And the very narrow cases Idaho would allow. And the Supreme Court allowed Idaho's law to go into effect for several months this year. And women were airlifted out of Idaho in emergency situations. So there are real people whose lives are very much at stake here. And then there's this division in the court.

So actually Linda, now I'm going to turn this over to you to describe. Yeah, I mean, this is one of the most in all my decades of watching the court, one of the most flabbergastingly amazing things that have ever happened. But assuming that the 22 page document that was briefly posted is the real document, I have no reason to think it isn't. This is a window into an amazing institutional failure. And what do I mean by that?

Linda Greenhouse
So back in January, the court grabbed hold of this case, this federal government challenge to the Idaho law. It had not reached final judgment in the district court. It had not been argued or presented on the merits to the 9th Circuit court of appeals. But the district court had issued an injunction stopping Idaho from enforcing its law. The 9th Circuit refused to lift that injunction.

The state came up to the supreme court on the shadow docket. In other words, not with full briefing, not with argument. The Idaho attorney general came to the court and said, we need your emergency help because the sovereign interests of the state of Idaho is going to be impaired. Because under the Biden administration's interpretation of the law that Emily described, hospitals in Idaho were going to be turned into abortion clinics. And the court grabbed hold of this case.

I mean, it hadn't been argued. It wasn't fully briefed. Not only did they grab hold of the case, they issued a stay of the injunction allowing the law to go back into effect. Five months later, they can't decide it. So what happened?

The question is, what happened? And we have a set of opinions that tries to persuade the public that what happened. Some of them tries to persuade the public that what happened was, well, you know, things had changed. The Idaho Supreme Court had reinterpreted the law and made it a little less harsh. And the federal government, at the oral argument, is argued by the solicitor general, made certain concessions that narrowed the gap between the state's position and the federal government's position.

That is all a bunch of baloney, as Justice Ketanji Jackson points out in a powerful opinion in which she dissented. Now, Alito and Gorsuch and Thomas also dissented. But Justice Jackson's dissent was something very different. She said, we've got to decide this case, and we've got to decide it in favor of the federal government's interpretation. I mean, she didn't win any friends inside the court for this.

That is for sure, because she calls them all out. She calls out Justice Barrett, Amy Coney Barrett, who writes an opinion that's joined by the chief justice and Justice Kavanaugh explaining why things have changed. And Justice Barrett uses words like, well, there was a miscalculation when we granted the case. She certainly was one of the votes to Grant. So what was really happening here?

I think what was really happening is the conservatives on the court were really feeling their oats in the aftermath of Dobbs. They all think they did a great thing in DOBBS when they overturned Roe and erased the constitutional right to abortion. And here comes the first case that gives them a chance to push back against the claim that things are really bad under DOBBs. And we have all these emergencies, and this is terrible because a bunch of them, the alito crew, actually doesn't believe that any exception to an abortion ban is valid. So this was a target of opportunity to build on DobBs and to kind of shut down complaints about Dobbs, and they grabbed it.

I think Justice Barrett and Justice Kavanaugh and most particularly Chief Justice Roberts got cold feet. Some people say they punted because the election is pending. I actually don't credit that. I think because what they have done is so embarrassing, they wouldn't have done it if they could have decided it. But due to this really institutional failure of overreach, they just blinked and said, we got to get rid of this case.

The consequences are serious because although the women of Idaho get relief here for however long that will last, as the case goes back to litigation in the lower courts, where it should have stayed, these cases are popping up all over the country. And Justice Jackson made that clear in her dissent. I'm not willing to let go of the election. I mean, of course, we don't know that that was what was on their minds. But there is something very convenient about this.

Emily Bazelon
And I feel like, at least for me, when I think about the Supreme Court's awareness of its political role. Right. They want to imagine that what they do has nothing to do with american electoral politics. They're sailing above it. But of course, that's not true because Supreme Court decisions galvanize voters to some degree in one direction or another.

I always feel like it's easier to have a sense of that at the end of the term when you're looking at all of the cases together. But for now, I mean, it does seem awfully convenient for the court once they knew how bad the facts were, essentially for this abortion ban to just punt and not get in the middle of it. What I think did not happen, and I don't think you're suggesting it did happen, is that five or six of them woke up one morning and said, oh, my God, there's an election pending, and we really can't go this route. Right. They knew about the election when they took the case as well.

Yeah. The date of the election has not changed. It may be an example of, you know, kind of mediated reasoning that, you know, subconsciously they knew that and whatever. But I just think, had they had the courage of their initial convictions, whatever those convictions were, just go on and decide the case. But, but I think they saw it when they, Robert Barrett and Kavanaugh group, saw the actual consequences, they kind of froze, not because there's an election pending, which of course there is, but because is this what we want this supreme court to stand for?

Linda Greenhouse
If it was simply an election thing, they would have done what they usually do, almost invariably do when they decide to dig a case. Dig stands for dig dismissed as improbably granted. That happens a couple times a year, a couple times a term, and typically it's just a one sentence order. The petition for writ of certiorari is dismissed as improvidently granted. Period, end of order.

They don't explain. They don't feel moved to explain here. They explained at 22 pages. I want to talk a little bit about the 22 pages because one of the things that jumped out at me is Alito's interpretation of Emtala. So, EMtala, this federal statute, speaks in a few passages about medical emergencies involving the unborn child.

Emily Bazelon
And that was an amendment in 1989 from a statute passed earlier in the eighties. Justice Kagan, in her opinion, Kagan and Sotomayor voted in favor of dismissing the case. She says, well, when you look at those passages about unborn child, they're really about labor. They're about making sure that women who are pregnant get to also protect the rights of their fetuses. Alito, however, has a totally different interpretation.

His interpretation is that this is an unborn child who has equal rights to a mother in a healthcare emergency. And there's no concession on his part that the rights of the fetus are in any way subordinate. And I thought that was, like, a giant opportunity he was taking hold of with two votes to start putting fetal personhood into law. That really struck me. Yes.

Linda Greenhouse
In fact, his lengthy dissenting opinion reads to me like he wrote it to be a published opinion. I mean, I think it's a pretty short time since the court argued this case. The court argued it toward the end of April. But nonetheless, I'm quite sure opinions were circulating. And his, certainly he might have written it.

He might well have written it to be a majority opinion because I think he was the driving force in granting the case in the first place. What it says to me is he is willfully blind to the medical reality that drives pregnant women to an emergency room. The emergencies emerge because something's happened to the fetus that imperils the pregnancy and imperils the woman's life and health. That is to say, it's a pregnancy gone wrong. And they're almost all very wanted pregnancies later term.

Emily Bazelon
And we're talking about tragic situations almost always. Exactly. I mean, these aren't, you know, healthy women with healthy pregnancies that show up in the emergency room. And EMtala says to doctors, okay, pick the fetus over the woman. That's not what happens.

Linda Greenhouse
One thing about Amy Barrett's physician, anti abortion to the core, though, I'm sure she is, she's given birth to five children, something Sam Alito has actually not managed to do. And she, I'm sure, understands that pregnancy is a perilous medical journey for a woman in any case. And Alito is not only blind to that, but gives every evidence of not caring a bit about that fact. Well, I was talking to a colleague of mine who was a nurse in Idaho, a nurse in Boise, in fact, and she was noting, as been noted in some of the media reports, it's not simply that women are being airlifted, it's that health professionals are fleeing Idaho, that there are quarter fewer ob gyns in Idaho than there were a year ago. Actually, probably more than that.

David Plotz
That's a number from a few months ago. And clinics are closing. Women are having to drive enormous distances just to get basic care for pregnancy, not to seek an abortion. That's a whole other question, but just to get basic care. As for their health issues, and that's a completely imposed crisis on Idaho.

And I think we can expect if the court ends up holding up these laws and allowing in Texas and Idaho and other places these lack of exceptions for emergency to hold, that there will be medical deserts in the way that we have deserts of food deserts in this country. There will be places where people simply cannot get the care that they need for their basic health, not for abortions. I mean, what's crazy about that is there is a remedy. It's called our democracy. If you don't want to live in a state like that, you don't have to vote into power the legislators who pass these laws.

Emily Bazelon
On the other hand, obviously people think about a lot of things when they go to the ballot booth. And the number of people who are affected is never going to be the majority of the whole state just because that's a majority of people are not pregnant women. Can I ask Emtala question? Is EMtAla one of those laws which is a federal law which is conditioned on you get federal money and therefore you can't do this? Yeah, and that's part of this case.

It implicates the spending clause. So why can't the Supreme Court simply say, you do have an option here, you can just decline to take federal money? You can, you, Idaho, all your hospitals can continue to abide by this law, but they just won't get access to Medicare or anything like that, Medicaid, any of the funding that the federal government. Provides, because the court in previous decisions has said that the federal government cannot always impose that condition, that there are circumstances in which if the federal government is saying, you have to do x or you can't do x in order to get our federal money, that that can go too far. And so that line of cases is implicated here.

And it's also lurking in these opinions as an unresolved issue. No hospital can refuse to take Medicaid and Medicare because they would collapse. But the question of whether a law enacting, enacted under Congress's spending power as this law can preempt a state law that makes whatever it is a crime, that's an open question. And what Justice Barrett says in her concurring opinion here is that question came up for the first time at this court in this case. In other words, it wasn't presented in the district court or the 9th Circuit.

Linda Greenhouse
It's not brief, just kind of came up on an oral argument, I think, in some amicus briefs. And we can't decide it. We don't know enough. We haven't thought about it. So that's another underlying issue that led to the dig, I think.

David Plotz
I just want to note that the Supreme Court is, it's incredible, the tech problems and their inability to control what they're releasing and how. There's, of course, the famous Dobbs leak they released in the Trump ballot case. They released all these documents that were revealed, metadata about the history of the opinions and what had been in them before they were released. Here you have something released on a website at least a day before it was supposed to be released, and one presumes it's the correct material. But who even knows?

And I just think if I were a chinese hacker, I would think this was the ripest target of opportunity. They clearly have incompetent people running technology at the court. And I would be like, I bet I can get access to everyone's email. I bet I can get. You could cause huge amounts of mayhem by just revealing the internal workings of the court electronic working to the court if you could get access to it.

And I bet it is. I bet they are very vulnerable. And, you know, there are hackers who could get after it. It's just shocking. This is the third such example of this in a year and a half.

Linda Greenhouse
Oh, yeah. I mean, the court, shall we say, has not been an early adapter of. Technology they were faxing until really recently. Maybe some of them still faxing would. Be safer than what they're doing.

David Plotz
Faxing would be better. I remember when they first had a website on which they posted opinions. It was really clunky and really slow because they called it Project Mercury. So mercury was the greek God with the little wings on his feet. So what they did was they physically took the CD ROM from the court central server on which an opinion resided, and they physically walked it to a different computer on a different server to put it up to the public because they were really afraid and they didn't know how to handle it otherwise.

Linda Greenhouse
And I guess over time that kind of got outdated and it became just a matter of pushing a button. But given the history, I think this was a failure waiting to happen. And what they're going to do about it, I have no idea. I want to give a huge thank you to our slate plus members. You have kept us doing this show for so long, and you get lots of excellent things for your subscriptions.

David Plotz
You get bonus segments on every gabfest episode. You get bonus episodes of other Slate podcasts. You get discounts on live shows. You never hit the paywall on the slate site. And this week for our slate plus segment, Linda and Emily and I are going to talk about another interesting Supreme Court case involving whether and how the federal government can encourage social media companies to take down misleading posts.

So if you are a member, again, thank you. Enjoy it. If you're not a member, go to slate.com gabfestplus to become a member today. It'S hard to imagine a world where we leave future generations with fewer rights and freedoms. The Supreme Court has stolen the constitutional right to control our bodies.

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Visit plannedparenthood.org. Future decisions made in Washington affect your portfolio every day. But what policy changes should investors be watching? Listen to Washington Wise, an original podcast for investors from Charles Schwab, to hear the stories making news right now. Host Mike Townsend, Charles Schwab's managing director for legislative and regulatory affairs, takes a nonpartisan look at the stories that matter most to investors, including the policy initiatives for retirement, savings, taxes and trade, inflation fears, the Federal Reserve, and how regulatory developments can affect companies, sectors, and even the entire market.

David Plotz
Mike and his guests offer their perspective on how policy changes could affect what you do with your portfolio. Download the latest episode and follow@schwab.com. washingtonwise or wherever you listen. This episode of the Gabfest is sponsored by SAP. First, the bad news.

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And indeed, the court this week or last week, maybe eight to one, held that Zack Ibrahimi is not allowed to have guns. And maybe the court has come back closer towards common sense on guns. So, Linda, what was the Rahimi case? What is the Rahimi case, and how is it in conversation with the big gun case of a couple of years ago? So the Rahimi case is the first case since the big gun case a couple of years ago, a case called Bruin, in which the court held by vote of 63 that the only legitimate way to interpret the second amendment was to look back at the 18th century and no regulation was going to be valid.

Linda Greenhouse
Every regulation is presumptively unconstitutional except those that are either identical to or have a bear. A close analogy with a regulation that was in existence when the constitution was adopted. So the question was how that's going to apply to this 1994 federal law that takes guns away from individuals who are under a court protective order for domestic violence. And the Fifth Circuit said, look at Bruin. There's no such analog in the 18th century, and consequently, this law is unconstitutional.

So the question was, what does Bruin mean? Does Bruin really mean this? And if Bruin really means this, what's the court going to do? Is the court going to really, really, you know, undo this regime of protecting women from domestic violence? So what the court held in an eight to one opinion by Chief Justice Roberts is, well, Bruin didn't quite mean this.

We still stick with Bruin, but the Fifth Circuit, in striking down this law, just didn't quite get it. It's not a coherent opinion because the last thing this majority wants to do is disavow Bruin. They're sticking with Bruin, but they're kind of fuzzing up ruin a little bit. So what's really interesting is that five of the justices who sign on to the Robert's opinion, everybody fully concurs, but felt motivated to express somewhat different views of the matter. It's obvious that as an institutional matter, the court felt impelled not to affirm.

The Fifth Circuit impelled to preserve this law. They really couldn't quite agree on how Bruin was going to govern that outcome. They all signed onto the chief justice's opinion for convenience. But if you look at the separate opinions, the personality of each of the justices really shines. It's as if it was a sort of a well made, you know, parlor theater piece from 19th century England, you know, where each character is like an.

Emily Bazelon
Agatha Christie novel, a mystery. What did Bruin really mean? What does history and tradition mean? Hmm. Let's stroke our chins.

I mean, I took from this. Well, first of all, I latched onto the, like first sentence in the summary of Roberts opinion, which says, when an individual has been found by a court to pose a credible threat to the physical safety of another, that individual may be temporarily disarmed, consistent with the second amendment. I mean, I look at credible threat to the physical safety of another, and I think, okay, the vibe here is that if you're a bad guy, you don't get to have your gun. I mean, the court has lots more interpreting to do in the lower courts, too. What about felons in possession?

You know, there are lots of people who get convicted of other crimes, especially drug crimes, and then their penalties ratchet up with felon in possession statutes. That's just one of many gun regulations that are, you know, the fates are still unclear, but I just feel like if you're an unsubdant plaintiff like Zaki Raheem, you're not going to get to keep your gun. Was this case a troll by the left to get the court to affirm a law? I mean, I feel like if I were a left, if I were a gun rights advocate, I would be going and looking for some truly unattractive people who have guns and try to get the court to address their cases. I mean, it's really a troll by the super conservative Fifth Circuit, because what happened was the fifth Circuit was like, no, Zack Rahemi gets his gun back.

Like, they interpreted Bruin very literally. And if you interpret Bruin literally and, you know, God bless him, just as Thomas is on this train, he's like, no, no, no. It's not a train. There was no train during the founding. He was on the steamship.

David Plotz
Yeah, he's not even a steamship. No sail. He was sailing anyway. He's like, no, I meant it. I meant that there had to be an 18th century law like this one, and there isn't such a law.

Emily Bazelon
So. No, and everyone else is like, well, history and tradition. We got to interpret it at a higher level of generality. Linda, you should talk about that, because going forward, to me, the big kind of underlying methodological question here is, does history and tradition mean anything other than what the court decides that it wants it to mean when it wakes up in the morning, or is there some actual consistent methodology going on? I'm skeptical.

Linda Greenhouse
Yeah, you're right. And Justice Barrett alludes to this in her separate opinion in Rahimi, that really where the battle is going to be fought is on the question of what's the level of generality with which you approach the historical inquiry. And the chief justice invokes a bunch of sort of english common law principles, security laws. I had to go google that. He uses the word principle.

Now, that's anathema to Justice Thomas. Justice Thomas isn't interested in principles. He's interested in specific analogs. That's the major difference. And that's the difference in the level of generality.

And that, you know, since the court's gone down this history and tradition route, that's really the money question. What level are they going to apply? And you talked about some other types of gun regulation issues that are now in place. So one thing that's going to be really interesting, there's about a half a dozen petitions pending before the Supreme Court right this minute. Cases that have come in while Rahimi was pending.

So the court put them on hold and hasn't acted. A couple of felon in possession laws, an assault weapons ban question, a question about the extent to which guns carry, open carry or closed carry, I guess, can be limited in, quote, sensitive places. These are all pending cases. So typically, once a case is decided, the author of that opinion, the chief justice in this case, will write a memo to the other justices saying, here's the cases on hold. Here's what we've decided, and here's what we should do with these cases on hold.

Those orders will come down probably the day after the term ends. Will the court grant any of those cases, or will the court send them back to the lower courts that they came from with instructions to reconsider or consider in light of Rahimi? And that's really interesting. I'm also interested in this history and tradition test. The court used it in Dobbs.

Emily Bazelon
It came up in a free religion case, the one about the praying high school football coach. And I'm also just interested in this tension. If you're Justice Thomas and you really want to look for a law in the 18th century that matches up with the law in the 21st century, then you're looking for something very specific, and history really dictates the answer and becomes a straightjacket. It also, it's clear what the test is and what function is, whereas this much loosey goosey like, oh, we're looking for a principle. It just becomes like history is a grab bag, and you can always find some principle there.

And then it just seems to me like a kind of exercise in faux originalism that doesn't really mean anything. And Barrett did have this interesting point, which is that the Thomas view assumes that legislatures in the 18th century were maximalist. They did every possible thing that they ever could have wanted to do. Those are the only laws we need to look at. They passed every law they could have ever wanted, and so there's no need to look any further than that.

David Plotz
Which, and I thought that was a good point, that, of course, those legislatures never considered a lot of questions because they didn't need to, or they were blind to why that might matter, or. They come from another time and lived in a different world, which is why it's so insane that they should be governing us. I mean, this is my question, I guess, Linda, to you as a kind of intellectual matter, how do the conservative justices get around the fact that, and so many, they're looking back to this moment when the people making the rules were people who condoned, supported slavery, who did not allow women to vote. Even if you consider what happened in the post civil war constitutional amendments, you still have another 60 years where women are not part of the political process, where marital rape is legal, where they didn't have electricity or machine guns or even Instagram. How intellectually do conservatives deal with the fact that they say that this must be the guide to everything, and yet it was a narrow set of people who held appalling beliefs on other matters that they're willing to discard, and yet we still have to hold to them.

Linda Greenhouse
Well, I mean, look at doves. So Alito and doves invokes history and tradition, and there's no history and there's no tradition of legal abortion. And consequently, abortion cannot be a constitutional right. I mean, there's so much wrong with his reading of history. And he had to know that because there were many briefs from highly legitimate historical authorities explaining why actually abortion was quite common at the founding of the country.

And, of course, women weren't part of the political system that could express any views on this. And you ask how conservatives deal with it. They just run right through it. It's history as a crutch. If you look at the Kavanaugh separate opinion in Rahimi, he says, well, we use history because if we didn't use history, we'd just be using policy.

And policy would just be any old thing that a justice or judge wanted. And Amy Barrett takes that on in her opinion in Rahimi. And she says, excuse me, the choice of what kind of history to look at is just as much a policy decision as a plain old policy decision. I mean, she calls him that, which. Was such a fascinating concession, actually.

Emily Bazelon
Like she's being quite candid in her opinion with, wrestling with these intellectual tensions. I was taken with that. Well, she's so interesting this term. I mean, she's kind of come into her own, whatever her own is. And, you know, she's obviously got her own policy preferences driven by religion or whatever, but she's smart and she, she understands the consequences of the debates that have been carried on in academia that haven't necessarily surfaced in the pages of the Supreme Court opinions, but they are now coming fully to light.

Right. And she's willing to air them. She's willing to have these intellectual debates out loud, even though from the kind of purely political conservative point of view, be better to just paper them over. Yeah. I mean, remember when during her confirmation hearing, she said to one of the senators, one of the democratic senators if I'm confirmed, you're not going to get Justice Scalia.

Linda Greenhouse
You're going to get Justice Barrett. And now we're seeing what Justice Barrett who and what she is. And it's very interesting. We're going to take a short break. We'll be right back.

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Remember to head to zbiotics.com gabfest and use the code GabfeSt at checkout for 15% off. Decisions made in Washington affect your portfolio every day. But what policy changes should investors be watching? Listen to Washington Wise, an original podcast for investors from Charles Schwab, to hear the stories making news. Right now, host Mike Townsend, Charles Schwab's managing director for legislative and regulatory affairs, takes a nonpartisan look at the stories that matter most to investors, including the policy initiatives for retirement, savings, taxes and trade, inflation fears, the Federal Reserve, and how regulatory developments can affect companies, sectors, and even the entire market.

Mike and his guests offer their perspective on how policy changes could affect what you do with your portfolio. Download the latest episode and follow@schwab.com. washingtonwise or wherever you listen, Linda has stepped out for a second. She's not going to join us for the third topic, but she'll be back for cocktail chatter and slate. Plus, George Latimer crushed incumbent House member Jamal Bowman in the democratic primary on Tuesday night in New York.

It was the most dramatic result on a night that also saw Maggie darling Lauren Boebert easily win her primary in Colorado. The Latimer Bowman race Washington, the most expensive house primary ever, $18 million spent, the vast majority of it dumped by AIPAC into the race to defeat Bowman, a black, progressive member of the squad. Everyone who listens to the Gabfest knows what the squad is. And one of the most visible critics, vocal critics of the Gaza war and of America's relationship with Israel, especially America's relationship with Israel as it relates to how that war is being conducted. It wasn't really a surprising results.

Latimer is a Westchester executive. He's the county executive in Westchester. The vast majority of the district is in Westchester. Bowman had opposed the infrastructure bill, which was not a good look for him in that area. Biden's infrastructure bill.

Biden's infrastructure bill. He had also embarrassed himself egregiously and gotten himself convicted of a misdemeanor here in DC by pulling a fire alarm to try to block a House vote.

And certainly it's also the case that most of the money that AIPAC put into the race, in fact, almost all the money AIPAC put into the race, was not about Israel. It was about other. It was attacking Bowman on other fronts. But Bowman lost big time. And I wonder, Emily, how much do you think this is a repudiation of progressive politics broadly and a sort of return to the center?

Latimer is a much more of a centrist candidate than Bowman is? Or how much of this is the pro Israel forces in american politics declaring that you can't have this position and survive as a prominent legislator? Well, let's take the first question. I mean, I think that they're related to each other, but I think the first issue in my mind is more important. I mean, one thing that struck me about this race is that Bowman got partly redistricted and he ended up with more Westchester and much less Bronx.

Emily Bazelon
And then it doesn't seem like he did anything to kind of address that change in the vote. Like, he got elected in 2020 by a different constituency in part than the one he was running with now. And that just seems like a real problem. And Latimer was almost like another incumbent because he was so familiar. And in reading about the race, it just seemed like there were lots of local committee folks and just like the library people knew him well and were used to him as someone who had kind of doled out money and who they trusted over the years.

And so that context of Westchester made Bowman's decision to be, I think, very principled, but also very progressive in his appeal, seem kind of like a mismatch with the actual voters. I went back and read Michelle Goldberg, a New York Times columnist, wrote or thought a really good long piece about Bowman and some of his jewish constituents back in the fall. And I went and reread it, and I was struck by a kind of pathos that Bowman was trying to make it clear that he was hearing people on their concerns about the way he talks about Israel, and they just didn't really feel like his. And compassion extended to Israelis, that he was able to see the complexity of the situation. And I think Michelle, in grappling with it, gave him a lot of credit for going to Israel with J Street, which is a liberal jewish group, and seeing in Hebron the really stark segregation that Israel has imposed, and then bringing that home, relating it to racial justice here.

And then, at the same time, I think the way he talked about this issue was really off putting and for some jewish voters in his district, kind of heartbreaking. So it just felt like there were a lot of missed connections here for him. And then a very safe choice in Latimer, who then wins by a lot. Yeah, I mean, it is sort of sad when you think of all the number of people, all the number of legislators who've gone on these AIPAC tours of Israel. And, Emily, you and I went on indirectly AIPAC funded tour way back in the day, but long before you were at the New York Times, I would.

Notice long before the New York Times. And those are blinkered tours, and they pretend that Israel is sort of just beaches and high tech and dance clubs and then terrorists threatening that. That's kind of the view that AIPAC presents, and it doesn't. It is quite narrow from that. It's totally narrow.

Absolutely. And I applaud the idea that somebody would go and see the complexity of Israel and of the West bank in particular, where this occupation is just evil and the settlements are evil. And Bowman went and saw it and didn't.

David Plotz
Probably hundreds of legislators have gone on the APAC tours and a few have gone on the J Street tours. And it is. It's kind of sad that one of the very few that has gone and spoken out against what they've seen up there loses their seat. But again, I agree with you. I don't think it's kind of unsurprising that he lost his seat, given that he didn't seem to do much constituent maintenance.

There was this point that everyone who covered this race made, which is he had a final rally, huge rally with AOC and Bernie Sanders. And it was this big rally to try to save the election a few days before the vote. And it wasn't even in the district. It was in the Bronx, which is part of the district, but it was 7 miles away from where the district actually began in the Bronx. And he was super angry.

Emily Bazelon
And that footage felt really infused with rage. Yeah. Yeah. I mean, there's another test of the squad coming up. In August, there was a primary in Missouri, in St.

Louis, between Corey Bush, who is another, you know, very progressive member of Congress. Black, also black. Black. And. But she's running against another black candidate, Wesley Bell, who is the quite pot, has been the quite popular district attorney in St.

Louis, and he is running with, I think, some AIPAC money behind him. If it starts to be not just one person getting knocked off, but more than one, there will be this, you know, sense of more of a lesson to draw. I do think there is a real question about whether AIPAC coming in with these millions of dollars to take down progressive Democrats is really healing the underlying rift going on in the Democratic Party about Israel. I mean, you can throw all the money you want at these races, but the footage from Gaza, the basic questions that people are wrestling with in terms of America's relationship with Israel, those are not going to go away. Whether Jamal Moman and Corey Bush are in Congress or not.

David Plotz
No, for sure. And it does feel like, man, if Biden has to run with Gaza as a real top issue, if that is top of mind for people he is in huge trouble with because there's so many Democrats who just do not want to turn out and vote to support policies that are supporting Israel, no matter that a Trump presidency would be far more supportive of the Netanyahu government. It is. You know, Biden has found himself associated with this in a way that is just troublesome for him. And the more it's talked about, the worse it is for him and the more fractured his coalition is.

Emily Bazelon
I mean, I do want to point out in that context that when voters are asked to rank issues by importance, Israel and Gaza are low on the list. These are american voters. They don't know very much also about the region necessarily. But you're right, if it ends up having higher salience, then it does fracture the Democratic Party. And I think whatever happens at the November election there's a medium to long term reckoning going on that's coming.

And the views that AIPAC has been trying to impose in lockstep on american politics, it's just really hard to imagine that continuing. I'm sure when you poll any of these issues right now, none of them look good for Biden. So if you poll economy, not good for Biden, immigration, not good for Biden. Apparently, abortion and reproductive rights, good for Biden. That's good for Biden.

David Plotz
It's like they want, they want the whole election to just be about abortion, reproductive rights, which, unfortunately, it is not. Did you see that incredible poll which I sent? I hope you saw it because I sent it to you. That poll data which shows that voters are concerned about democracy and they trust Trump in swing states, they trust trump more than they trust Biden to protect american democracy. Yes.

Emily Bazelon
Those polls are difficult for me, and they make me want to understand more about what people are thinking about when they answer that question in that way. I'm going to say one final point, which is just a matter of principle. I know very little about Jamal Bowman or George Latimer. I know nothing about George Latimer and I know little about Jamal Bowman. I am, however, on principle, always happy when an incumbent member of the House loses, and I'm always happy when they lose to someone who's more centrist than they are.

David Plotz
I want, broadly, for the House of representatives to be more towards the middle. I prefer, of course, more of the far right members of Congress to lose to more centrist Republicans. You weren't super excited that Lauren Boebert was keeping her seat? Well, she was running against people who were just as crazy as she was, honestly. So it was six of one, half dozen of the other.

But losing Bowman for a sort of centrist, a tedious centrist seems fine to me. How boring and bland of you. But okay, I guess. Let's go to cocktail chatter. Emily Bazelon, you live right near West Chester, Westchester, where Jamal Bowman and George Latimer just battled it out.

And I'm sure there are lots of Westchester cocktails that you are constantly having. What are you going to be chattering about as you have a Westchester style cocktail? I do live near West Chester, and I swear I have almost never been there. It's just funny how that is. I don't really have an explanation for that.

Emily Bazelon
So I'm not sure what the special Westchester cocktail is, but I am happy to have. Hoping to have some new Haven Margarita this weekend. I have two chatters. One is about a new book that is out this month. It's a kind of primer about readings related to crime and policing in courts.

It's called dismantling mass incarceration. It's by premal Daria, edited by Premildaria and James Foreman, junior, a colleague of Linda and mine at Yale Law School, and Maria Hawillo. And it's just an amazing collection of readings, short readings from lots of different writers, about this problem of mass incarceration and how to think about it. So I especially recommend it to students and teachers who are looking for readings for courses. And my other chatter is about this crazy lawsuit in the west that I read about in the Washington Post.

David Plotz
That was my chatter. Oh, no, no. Do it. No, keep going. Keep going.

Emily Bazelon
That is so funny. Oh, my God. It's crazy, though. It's crazy. So the writer of the post story is Karen Brugliard, and it's about this problem in the west, where in the 19th century, the federal government gave land grants that were, like, intersecting patchworks, like squares, and some of them were privately owned.

And some of them were publicly owned. The result of this is that in order to get to the public lands, you have to somehow cross or hopscotch across the private lands, and it winds up just blocking millions of acres of publicly owned land. And so somebody built a stepladder to get over the corner, the place where it touched the public and private to get to the public land. And the private landowner sued. And so there's just this amazing lawsuit about whether someone can build a stepladder and kind of jump over the little tiny corner of your land to get to the public acres.

David Plotz
It's absolutely fucking outrageous. What this private landowner, who is a rich dude who's bought up a whole bunch of hunting land, this is in Wyoming. So according to the article, there are 27,000 such corners in the west, and more than 16 million acres of public land are fully surrounded by private property. 16 million acres. And basically this dude is saying, you can't.

You. The public. Here's a huge swath of public land that exists. It is publicly owned land, but nobody. Nobody is allowed to get to that publicly owned land by any means, because to do it, you will have to cross a corner of my land.

There's a point, literally a point. It's a point, literally a point where. Where you would have to cross my land. And it's completely outrageous. And if the courts do not find there is public access to public lands.

Emily Bazelon
There is no hope for any of us right now. This case is in front of the 10th Circuit, which is the federal appeals court that has jurisdiction over Wyoming and lots of western states like Colorado. It's such a great story. Well, what's interesting actually, is also the plaintiffs are hunters. And I do feel like hunters are the kind hunters.

David Plotz
It's not environmental for the 10th circuit hunters. It's people who want to go kill some elk on Elk Mountain. I mean, this is an important part of, like, american wilderness protection is fishing and game. Right. That interest has helped preserve a lot of wilderness, but in this case, it's about whether you can actually even get to the land.

Linda, what is your chatter? So I wonder if people have seen this amazing movie called Thelma, the surprise hit of the summer. It's now number eight of all the movies that are out in circulation right now. It was an independent film, very low budget film. It was a hit at Sundance.

Linda Greenhouse
It's now playing on, I think, a thousand screens, which is amazing. It's the story of Thelma, who is a hundred year old woman, a very spicy woman who gets scammed by one of these telephone scams and decides to take her revenge. And the writer and director of this movie is a young man named Josh Margolin. And it's really, although it's fictionalized, it's about his actual grandmother, whose name is Thelma Post. She's about to turn 104.

And it's just a hilarious, touching, just really sweet movie that, the kind of movie that these days with all the blockbusters and action films you think would get just kind of buried and ignored. Instead, the public has embraced it basically through word of mouth and social media. There's no, you know, you don't see billboards for it. And, you know, I just wanted to call it to people's attention. And while it's out there, don't miss it.

David Plotz
Sounds awesome. I just added it to my list. Yeah, I hadn't heard of it. Thank you. My chatter, well, I had two chatters teed up, so I'm going to do my second one.

And it says pure log rolling, which is a new project that I am working on. I don't know if you know, Hark, which is harkaudio.com dot Hark, has solved one of the biggest problems in podcasting. I think those of us who love podcasts know that one of the problems in podcasts is that there's too many of them. It's hard to keep track. And Hark is an app and a website that finds the smartest bits from podcasts around a particular topic and curates them for you into a very easy listens, just the quick snippet that you need to hear, maybe from the Gabfest, from some podcast that really hits on a topic that you care about, but you just want to know what was a really good two minutes from it.

And so they curate it and they make it around a particular topic. And it's an amazing idea. It's wonderfully executed. I'm proud to be helping them out because I am part of their new project around the campaign. So they're doing this around the 2024 presidential campaign, where we are curating great moments from podcasts that cover politics, that are covering the presidential campaign.

And you can listen to those great moments@harqaudio.com. campaigntrail and I'm the narrator for it, so I'm the person who is introducing and describing the segments. And it's going to run between now and election day. So check it out@harqaudio.com. campaigntrail listeners, you have chatters.

You have sent them to us@gabfestlate.com. dot we got a note this week from a listener. It thrilled me. I'm not going to say who it was from, but it was from one of my own personal heroes. Turned out to listen to the gabfest and wrote us a note about something we had been talking about.

It was awesome. I'm hoping to get this personal hero on the gabfest one of these days. At this point, maybe we'll reveal their. Identity with yes, we will. If they show up, we'll reveal it.

But you, you are also my personal hero. If you email us a chatterabfestlate.com and our chatter this week comes from William Wagner of Green Bay, Wisconsin. My chatter this week is titled Walnut and me by Sam Anderson with illustrations by Gaia Alevi. I found it as a multimedia story on the New York Times app, but it's also a great podcast. I recommend the multimedia version because illustrations are delightful.

William Wagner
It's a story about the life of our furry friends and how they enhanced our lives so much. But it's also about death and how devastating it can be for us. In the end, though, it reminded me that love is not a scarce resource, that we have an infinite ability to love and to be loved. For all those pet lovers out there, it'll almost certainly be a tearjerker. But it's worth it.

Cheers.

David Plotz
That's our show for today. The Gap Fest is produced by Shana Roth, our researchers Julie Hugin, our theme music is by they might be giants. Ben Richmond is senior director for podcast operations. Alicia Montgomery is vp of audio for Slate. Emily Bazelon and the delightful Linda Greenhouse.

What a great guest. I'm David Plotz. Thanks for listening. And remember, we'll be back with you on Friday with a discussion of the debate. Gosh, I'm nervous about that.

Emily Bazelon
And then we'll discuss or the event. I'm not so nervous about the discussion. I am nervous about the event. And we'll talk to you next week.

David Plotz
Hi, Slate plus, how are you? Are you on social media right now? Are you Vivek Murthy, the surgeon general, who's having such a big month? That guy, he's calling for warning labels on social media. He declared gun violence a public health crisis.

Now the Supreme Court has ruled in his favor in Murthy versus Missouri. And actually, I actually have a little, literally have a technical question about this. So in Murthy versus Missouri, which is a case of that the Supreme Court heard about how much jawboning the government can do of social media companies. Vivek Murthy is the plaintiff. Does he get to sign off on the briefs, given that he's, do they have to call him and be like, hey, this is what we're gonna say?

And does he get to be in the room when they're talking about everything? And does he get to be at the Supreme Court argument? His name is there. So does he literally get approval of what they're doing? That's a good question.

Linda Greenhouse
I never thought of it. I think as a matter of courtesy, they probably ran things by him. But this would have been, he was one of many defendants in the lawsuit that was brought on the claim that the Biden administration was violating the First Amendment by coercing these social media platforms to take down certain kinds of content. His name was just first on a list. I think there were a dozen or more federal officials who were sued in this litigation.

So the case was handled in the solicitor general's office, and I'm sure they ran it by the White House counsel because it really was a case challenging the Biden administration, a very politically driven piece of litigation by these states that claimed they had the right to bring this lawsuit. And, of course, what the case holds in an opinion by Justice Barrett is that they had no standing. You know, what was the case to them? Nothing. So it was the court pushing back, as it did in the medication approval case, claims of standing that evaporated.

David Plotz
That was just a snippet from our slate plus conversation. If you want to hear the whole conversation, go to slate.com gabfestplus to become a member today.

A Law Trapped In Amber

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