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Brian Lehrer: It's The Brian Lehrer Show on WNYC. Good morning, everyone. Governor Hochul will join us on today's show with some details, we hope, of what she says is a conceptual agreement on the new state budget. This could have massive implications for affordable housing in New York State, including new rent controls. If you live in certain market-rate apartments, we'll see if those are actually in there. Also allowing more density in new construction for neighborhoods all over New York City.

What about mayoral control of schools? What about the bill to limit natural gas hookups and control both climate change and utility bills? Taxing the rich, housing migrants outside New York City, new measures on violent crime, retail theft, very much in the negotiations. We will see what we can learn when Governor Hochul joins us at 11:10 this morning, but first, it's becoming high season at the Supreme Court and high season for criminal trials involving Defendant Donald J. Trump.

Between now and June, the Supreme Court will decide on landmark cases, from the legal status of the abortion pill, Mifepristone, to whether presidents have immunity from prosecution, no matter their attempts at insurrection or any other crime. They'll decide on the limits of power of federal agencies to make rules based on acts of Congress. That could be the most important case you've never heard of, called Loper Bright Enterprises versus Raimondo, we'll discuss. They just decided on Monday that a ban on gender-affirming care for trans teenagers by the state of Idaho can mostly take effect. That ban left in place, at least for now, while the underlying case continues to be argued.

Yesterday, the justices heard oral arguments in a case that could throw out hundreds of January 6th-related convictions of people who invaded the Capitol, who juries found guilty of a law that makes it a crime to obstruct or impede an official proceeding, including a congressional proceeding. Justice Neil Gorsuch expressed skepticism of those convictions in this question about how serious an act has to be to be classified as obstruction.

Justice Neil Gorsuch: Would a sit-in that disrupts a trial or access to a federal courthouse qualify? Would a heckler in today's audience qualify or at the State of the Union address?

Brian Lehrer: We'll hear more excerpts from yesterday's hearing, including the response to Gorsuch's question there from United States Solicitor General Elizabeth Prelogar, who represented the Justice Department. Joining us for this is University of Pennsylvania law professor Kate Shaw. She is also co-host, as some of you know, of the Supreme Court-oriented podcast, Strict Scrutiny, with two other constitutional law professors, Leah Litman and Melissa Murray. Kate Shaw is a New York Times and ABC News contributor. Kate, always good to have you on. Welcome back to WNYC.

Kate Shaw: Thanks so much for having me, Brian.

Brian Lehrer: Let's dive right in on yesterday's hearing that could reverse about 350 January 6th-related convictions. Before we hear more excerpts, can you explain the law in question? A lot of people don't know what this is. I understand it's a relatively new law inspired by the Enron accounting fraud scandal of 2002. Yes?

Kate Shaw: That's exactly right. Maybe I'll just say a little bit about the defendant in the case, Joseph Fischer, and then talk about the statutory context under which the charge was brought. He was one of the January 6th defendants, a former police officer involved in storming the Capitol on January 6th, and the federal government amassed a great deal of evidence that seemed to suggest that he did intend to cause harm and to disrupt the proceedings of Congress.

He has text messages suggesting that it might get violent. That is the events, the protests on January 6th, the storming of the Capitol. He has a separate text message in which he says it's going to be historic, take Democratic Congress to the gallows, can't vote if they can't breathe. All of this evidence, the federal government said very clearly established that he went to the Capitol determined to interfere with, obstruct the official proceeding, which was, of course, the proceeding on January 6th to count and certify the final electoral vote for Joe Biden as president.

He was charged with a number of crimes, but among them was the crime that you just alluded to, Brian, 18 USC Section 1512(c)(2), I won't get too technical. Basically, it's a provision that prohibits obstructing an official proceeding. It carries a 15-year maximum sentence, but most of the January 6th defendants convicted under this provision have gotten more like one or two years, and on its face, the language just obstructing, influencing, or impeding any official proceeding does seem to clearly cover this kind of conduct, right? Storming the Capitol to prevent the certification of votes as part of an official proceeding.

What Fischer is arguing is basically that the law doesn't apply to him, both because this part of the law that he was charged under has to be understood in light of the proceeding provision of law that's about document destruction, but also because of the context in which Congress passed the law. That's what you just mentioned, Brian. This law was passed in 2002. It was part of the Sarbanes-Oxley Act, and it was a response to Enron and Arthur Anderson and this accounting scandal which involved a lot of evidence destruction. He says that's really what the statute is about, like shredding documents, not storming a government building. For that reason, it was inappropriate to charge me under this statute.

Brian Lehrer: According to Nina Totenberg's report on this case on NPR, one part of the law makes it a crime to corruptly alter or destroy documents, you just referred to the documents provision, documents or records related to an official proceeding. The second part makes it a crime to otherwise obstruct or impede an official proceeding, including a congressional proceeding. As you say, this defendant was not accused or convicted of destroying documents per se.

Given the vagueness of that second part, if that's the actual language, otherwise obstruct or impede an official proceeding, I could see why theoretically Justice Gorsuch might have asked that question about where the line is. If the law makes it a crime in general language to obstruct or impede a proceeding, what constitutes obstructing or impeding? Is that part of the law unusually vague?

Kate Shaw: I actually don't think it is. Obstructing, influencing, or impeding any official proceeding just on its face does seem to suggest at the very minimum storming the seat of government and trying to block the official certification of electoral votes, which is both in the Constitution and in federal statute. I do think you're right that what Gorsuch and Alito in particular were pressing on was the potential breadth of the coverage of the statute.

Maybe if it's a crime, if the storming of the Capitol was a crime and this language is read literally, maybe that does suggest it could be a crime to interrupt arguments at the Supreme Court, to heckle the president during the State of the Union, to engage in protest outside of a district courthouse in a way that might make it difficult for proceedings to unfold in a normal way. They were a little bit probing the outer boundaries of the statute.

I thought the Solicitor General, I think, was quite effective in responding and suggesting what you need to have is a lot of evidence and the federal government will only charge if there is a lot of evidence that the individual intended to obstruct an official proceeding. Right? Protesting outside of a government building is not the kind of thing that's going to result in this massive evidence that you had in a case like this one and in a lot of the other January 6th cases. The outer boundaries of the statute does seem to be what the justices were concerned about.

It was a little bit hard to swallow, I think, that concern in that just I actually do think the text of the statute - obstructing, influencing, impeding any official proceeding - isn't vague. It might be broad, but the federal government had a lot of arguments about the way that the actual practice of prosecutions under the law really narrows the broad language. I think it's actually pretty straightforward. I do think that it's plain that it applies to the kind of conduct that was charged here.

Brian Lehrer: Here are a couple of more clips from the oral arguments yesterday that go to that argument. You mentioned Samuel Alito. Here's another version of that same question that we heard from Gorsuch posed this time by Justice Alito.

Justice Alito: Let's say that today, while you're arguing, five people get up and they shout, either keep the January 6th insurrectionists in jail or free the January 6th patriots. Our police officers have to remove them forcibly.

Brian Lehrer: Here's part of the answer by Solicitor General Prelogar about the standard the Justice Department used for actually prosecuting January 6th obstruction of an official proceeding cases.

Solicitor General Prelogar: We have focused on things like preparation for violence, bringing tactical gear or paramilitary equipment to the Capitol.

Brian Lehrer: That goes to the point that you were making, Kate. Is the Solicitor General there trying to make a distinction between merely, say, protesting an official proceeding and attempting to violently stop it from taking place?

Kate Shaw: Absolutely. I do think that you've now played clips from Justice Gorsuch, Justice Alito, actually Justice Thomas's very first question suggested that. I think what Thomas said was, "Has the government applied this provision to other protests in the past?" Trying to characterize January 6th, or at least the question seemed to posit that January 6th might be understood as an incident of protest. I think what the Solicitor General was suggesting very strongly in response was that the federal government does not charge individuals engaged in ordinary and peaceful protests with violation of this statute. By its terms, they couldn't. She did say later in the argument if, in fact, the conduct at issue was political speech, then the First Amendment protects that speech. In the event that the federal government brought such a charge, which it's clear they never have, there would be a very viable First Amendment defense to that charge. I think that takes care of many of the scenarios that the justices like Thomas, and Alito, and Gorsuch were positing as hypotheticals.

I do think that the tenor of those questions, and some of the questions from Justice Kavanaugh as well did suggest that there's real concern on the part of some of the justices about whether these charges were proper, whether the convictions that were already secured under them could be sustained. What's at stake here is not just this charge against this January 6th defendant, but several hundred charges against other January 6th defendants.

Now with Fischer, I should say, again, given the extensive evidence of planning and violent intent and actions, there's some videotape of some of his activities on January 6th, he was actually charged with violating a number of federal statutes. This was just one of them, but this is the only question that's before the court whether this charge can be sustained.

Brian Lehrer: It makes it a weird case to my mind because this particular individual if I'm understanding it correctly, was charged with and convicted of more serious things like assault in addition to obstructing an official proceeding. He's not going to get off just by winning this case at the Supreme Court. Am I understanding that correctly?

Kate Shaw: I think as to him, there are other charges. The federal government does think it's really important that the court not embrace this challenge. In part because there were something like 330 defendants charged under this particular statute of the 1,200, 1,300 total that were arrested for playing some part in the attack on the Capitol. For many of the individuals, not Mr. Fischer, the only other charge was a trespassing charge, which is often a misdemeanor charge. This is the only serious offense with which they are charged.

If this is wiped away, then people who engaged in, I think, very serious misconduct in the views of the federal government trying to disrupt something that goes to the very heart of democracy, the peaceful transfer of power, and a misdemeanor trespassing charge doesn't seem to capture the gravity of the conduct, but this obstruction charge, which can carry a heavy penalty although, again, there's a 15-year statutory maximum, but there's no statutory minimum, and so the sentences have been far, far below that 15 years, even though it sounds really long in the abstract. I do think that the stakes are high as to many of these January 6th defendants in the eyes of the federal government.

Brian Lehrer: Here's one more clip that I think is pertinent to what you were just saying. This is an exchange between Justice Kavanaugh, who you just mentioned and we haven't heard from yet, and again, Solicitor General Prelogar, representing the US Justice Department, who brought the charges against these January 6th defendants. Justice Kavanaugh noted that the January 6th convict, in this case, Fischer, had also been charged with six other crimes, including what he considers more clearly applicable ones like civil disorder and assault. Here's Kavanaugh and Prelogar.

Justice Kavanaugh: Why aren't those six counts good enough just from the Justice Department's perspective, given that they don't have any of the hurdles?

Solicitor General Prelogar: Because those counts don't fully reflect the culpability of petitioner's conduct on January 6th. He had said in advance of January 6th that he was prepared to storm the Capitol, prepared to use violence. He wanted to intimidate Congress. He said they can't vote if they can't breathe, and then he went to the Capitol with that intent in mind and took action, including assaulting a law enforcement officer.

Brian Lehrer: Where was the line as you understand that answer or the case in general, Kate, as to where the Justice Department considered- when the Justice Department I guess would be the right way to ask it, considered somebody merely protesting and actually trying to obstruct the certification of the election. Because in that answer, the Solicitor General was referring to all kinds of preparations that this particular defendant made. He had said in advance of January 6th that he was prepared to storm the Capitol, prepared to use violence. He wanted to intimidate Congress. "They can't vote if they can't breathe," with a quote. How close to that, all of that, any of that would any of these 350 obstruction convicts have to have come in order to be prosecuted that way?

Kate Shaw: I don't know the body of evidence underlying each of those charges. I do think that many more of the individuals who participated in the storming of the Capitol were not charged for violating the statute, so this particular obstruction or impeding an official proceeding statute, many were just charged with trespassing. I think that individuals who entered the Capitol and didn't engage in the kind of violent activity that Mr. Fischer is alleged to have engaged in. Again, he was charged with violating several other federal statutes.

I think that individuals who talked about wanting maybe to enter the Capitol, who entered the Capitol but didn't engage in the overt activity that Fischer engaged in, I think for the most part, were not charged with violating the statute. What came across in Prelogar's presentation, and I think is borne out by the history here, is that the Justice Department took a very careful look at, again, well over a thousand people. Almost 1,300 people arrested after January 6th. Many were not charged at all. Many were charged with just trespassing and misdemeanor typically doesn't carry any jail time for people without any criminal history, which some did not have.

Then there were a handful of people who both through their own words, it was clear did intend to do what the federal government thinks the statute was exactly designed to punish, the deliberate and corrupt intentional disruption of an official proceeding, and only if all of those criteria are satisfied. Here you also had the violence, it's not a statutory element but I do think that it goes to the federal government's view of the severity of the misconduct. When you have all of that, the government brought this charge, at least in this case, and in many other January 6th cases with less extensive factual records and less culpable conduct, the government didn't.

If Fischer prevails here, it's possible he could prevail on some narrow theory. One possibility that was seemed to be floated prior to the argument was that the timing of his entry into the Capitol, notwithstanding the extensive kind of planning and conversation that preceded it, but he entered after Congress had already recessed, and so the obstruction piece of it maybe was less obvious in his case than in the case of individuals who entered earlier in the day when Congress was still trying to count votes and certify the votes.

I don't think there was much interest in drawing such a line. It's not impossible to imagine the court concluding that Fischer prevails here, but that maybe other individuals could still be subject to charge under the statute. Coming out of the argument, I didn't think there was a huge likelihood of that happening.

Brian Lehrer: Interesting. Listeners who has a question for University of Pennsylvania law professor Kate Shaw on the January 6th obstruction cases, on the presidential immunity arguments coming next week which we'll get to, on the Idaho Gender affirming care ban case, which they issued a preliminary ruling on Monday at the Supreme Court or anything else related, 212-433-WNYC, 212-433-9692. I see we have a call coming in that's not immediately related in the sense of the Supreme Court about to rule on something, but I think it really is in the bigger scheme of things. Janet in Brooklyn, you're on WNYC with law professor Kate Shaw. Thank you so much for calling.

Janet: Good Morning. I know that we all saw what happened on January 6, but what I'm saying is, these same people who are on trial would've told the police, they would've been angry if Black people and brown people or their allies had done the same thing. Now when it's them, "Oh, no, no, no. No, no, no, no." I just recently heard I think on MSNBC that Tom Cotton was advocating that they beat up peaceful protesters.

We know that on both sides people have done things wrong. We know that if it had been Black, brown, and allies, they would've been treated very, very differently. Most of America would've said, "Yes, they deserve to be treated that way." That's what's infuriating. Then to hear Cotton now saying beat up peaceful protesters who are just sitting in the street, yes, it's an inconvenience, yes, it's wrong. That's what I have to say.

Brian Lehrer: Thank you, Janet. Let me explain that Tom Cotton story a little bit more to our listeners. I think I probably saw the same report on MSNBC that you did. From my understanding of that and hearing an actual Tom Cotton quote and Professor Shaw, this is not a legal argument before the Supreme Court right now, which is your specialty, but I think it does raise relevant legal questions.

Cotton apparently referred to pro-Palestinian protesters holding the sit-ins that blocked traffic and said-- Because that could be a threat to people trying to take their kids to school or to emergency services vehicles, trying to get through if those protesters block a bridge or an important roadway or something like that, Cotton said, "Individuals should take matters into their own hands and get out of their cars and physically drag those protesters off the road." The clip I heard of Cotton, he called the pro-Palestinian sit-in protesters vigilantes. He didn't call the people who he was suggesting use physical force to drag peaceful protesters off the road. He didn't call them vigilantes. I wonder if you've seen that story at all.

Kate Shaw: Yes. I think people were appropriately disturbed by the suggestion by besetting senator that individuals use extra legal violence to respond to peaceful protests, and yet back to the Prelogar argument, that advocacy if again understood as encouraging violence would still be squarely within the bounds of the First Amendment. The First Amendment protects a great deal so long as you're not crossing the line into actually inciting, engaging in speech that you expect to and is likely to actually cause imminent lawless action. It's a very high bar. People may find the speech vile but the First Amendment will protect it.

I'm not sure what specific protest he had in mind when he made that statement, but I think the point is that there's a great deal of political protest that is well within the bounds of the First Amendment, but overt action, again, with a great deal of planning and an intent to obstruct or interfere with a specific official proceeding may under some limited circumstances be deemed to cross the line into criminality at least in the view of the federal government.

Brian Lehrer: Well, I guess it raises a question about the limits of free speech under the First Amendment, both for the protesters and for Tom Cotton himself. For the protesters, let's say it's a sit-in that blocks the Brooklyn Bridge just to take an example or the Golden Gate Bridge or pick your bridge and traffic can't get through. Would that not be defined as nonviolent civil disobedience in the style of Martin Luther King let's say or Gandhi that would leave the people subject to arrest?

Yes, because when you engage in nonviolent civil disobedience, if it's really civil disobedience you're in many cases purposely breaking the law to make your point and you'll get arrested on a minor charge. Does that part of it strike you as vigilantism as Cotton called it or something closer to nonviolent civil disobedience in the civil rights era mode?

Kate Shaw: Well, again I need to know the specifics, but very much well within the tradition of nonviolent civil disobedience. There was actually a hypo along these lines that came up during the Fischer oral argument which was, well, what about if there's some peaceful protest but it blocks a bridge and that prevents members of Congress from getting to the capitol to cast a vote. Again, in the views of some of the skeptical justices who were concerned about the really expansive scope of the statute and potentially it being abused by federal prosecutors, they suggested, well, would that mean that those protesters would actually be potentially subject to prosecution under this obstruction statute?

Prelogar backed away from that. Again, averting to the many limitations that the federal government both reads in the text of the statute and are reflected in their charging history under the statute. I think it's pretty clear that in the eyes of the federal government and in my view as well that those kinds of acts of even mass protest, even really disruptive or inconvenient from the perspective of individuals who need to cross the bridge to do things are well within the American political tradition. As you say it might result in arrests, but certainly wouldn't violate a federal criminal statute like the one that we are talking about, and certainly would not justify the vigilante response that Cotton seemed to be suggesting.

Brian Lehrer: He was calling them vigilantes. Of course, I'm sure listeners understand this conversation in the context. This is not about whether you're for the cause of the pro-Palestinian protesters, or if it was a group of pro-Israel protesters, the same standard that we're discussing should apply in any direction. Of course, it's probably because they were pro-Palestinian protesters that they got under Tom Cotton's skin like that.

When he is calling for what many people would see as vigilante action telling people to get out of their cars as private citizens, not members of law enforcement, and start dragging these peaceful protesters off the road, is that protected as free speech under the First Amendment, or is that in a certain respect incitement to violence?

Kate Shaw: Well, the bar for incitement is high, so even calling for violence is not enough standing alone to constitute a chargeable act of incitement. It really needs to be that the speech that incites violence even if it seeks to incite violence has to both be intended to incite, again not just violence, but imminent lawless action, and it also has to be likely to produce that.

If it's possible to show that an individual who made such a statement wanted to not express some general disapproval, but actually wanted to cause people to act in a violent way, and knew that it was likely and that it was likely to result in that violent response. Then and only then can incitement cross the line from constitutionally protected speech, even odious speech into a chargeable crime which is incitement.

It is a very high bar and deliberately so meant to be very protective of speech. Again, even really odious speech but only crosses the line outside of protection if it's trying to and likely to lead to violence and imminent. Not lead to violence at some unspecified future date, like imminent violence.

Brian Lehrer: More with University of Pennsylvania law professor Kate Shaw, including on some other cases that I mentioned in the intro, including the Supreme Court decision on Monday that at least for now a ban on transgender-affirming care for teenagers in Idaho that the ban can take effect. A little on presidential immunity too, and more of your call. Stay with us.

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Brian Lehrer: Brian Lehrer on WNYC and on that segment coming up tomorrow, maybe the Supreme Court will be asked to rule on no Mifepristone. I know that's abortion and no birth control for rats, but we'll see if it ever gets to that. We continue with University of Pennsylvania law professor Kate Shaw, who is also co-host of the Supreme Court-focused podcast, Strict Scrutiny. She's also a New York Times op-ed contributor and an ABC News contributor.

One more question about this obstruction January 6th case that they heard yesterday. How do I ask? I think this all raises the question, again, of whether justices on the Supreme Court on either side are really there to interpret the law, or if they're really there to advance partisan agendas. Because if we saw all these Republican appointees skeptical in the questioning clips we played of whether obstruction applies to the January 6th rioters who were convicted of that, and if the Democratic-appointed justices think, "Yes, this clearly applies," it almost makes it seem like you're either on Trump's side of January 6th, or you're on Biden's side of January 6th, or the law side of January 6th, or the Democrat side of January 6th. It just divides up so neatly that way that it raises at least a question about the justices on both sides, and whether they're pursuing partisan agendas rather than they just happen to interpret the Constitution differently or the law.

Kate Shaw: Yes, I do think the evidence of just pursuing partisan agendas is a better explanation for the justice's votes continues to amass. I don't think it was always thus. I think there has always been a heavy dose of both ideology and politics in judging but tempered by a real commitment to the judicial draft and the rule of law. I'm not sure it feels like the balance is pretty out of whack right now. It's actually a relatively recent development that you even have all of the justices on the Supreme Court aligning with the substantive views of the party of the President who appointed them.

We had the end of an era when Brett Kavanaugh replaced Anthony Kennedy, but Kennedy was a Republican appointee who was very liberal on many issues. He wrote the big gay rights decisions the Supreme Court issued, Lawrence v Texas ruling a case that had upheld criminal bans on same-sex intimacy, Obergefell, the same sex marriage, the marriage equality decision. He wrote those cases as a Republican appointee and often voted with the Democratic appointees.

We've had lots of examples historically of justices voting in cross-ideological ways routinely, and we just don't have that on the current court. There really is a near-perfect alignment on many issues and maybe most issues of the party of the appointing president and the justice. It's I think both disheartening and correctly eroding America's faith in the institution as standing in some sense outside of politics. You did have that on display in this case.

Now, I don't know exactly how the votes will ultimately shake out. I think that Prelogar did an incredibly effective job deflecting some of these concerns. I don't think it's out of the question that there will be some crossover votes that will uphold this charging decision, both as to Fischer and to other January 6th defendants and there still are the occasional surprising results than coalitions, but it happens relatively infrequently.

As we approach the end of the term, I think there's a good chance we're going to see incredibly predictable partisan alignments on many, many issues. Although I hasten to say I actually do think the immunity issue is not one where at least on the merits, you're going to have all the Republican appointees side with Donald Trump. That does not seem like a likely outcome to me, but that's the exception that maybe proves the rule.

Brian Lehrer: Robert, in Yonkers, you're on WNYC. Hi, Robert.

Robert: How are you? Good morning. I have a question or actually two questions for Professor Shaw if I may.

Brian Lehrer: Please.

Robert: Professor, I was just wondering what are your thoughts on the fact that it appears that yesterday, the originalists or textualists, as they like to be called, that they seem to have difficulty leaning into the apparently plain language of the statute, as it related to disrupting or impeding. They seem to have great difficulty with that, despite calling themselves originalists and textualists. The other question I have for you is, what are your thoughts on the fact that Justice Thomas was sitting there yesterday? Thank you.

Brian Lehrer: Thank you, Robert. Kate?

Kate Shaw: Yes, sure. As to the first, yes, I found it really striking as well. These are justices. Each of the Republican appointees on the court-- I mean, Alito a little bit less so, and the Chief Justice, a little bit less so but all of the others are very proud self-proclaimed textualists. They say the words of the statute are the most important, and sometimes the only thing that matters in deciding what a statute means.

Here you had maybe this statute has to be understood in light of this preceding provision of law. Maybe we should focus on the fact that it was an accounting scandal that gave rise to the statute, much, much less focused on the words of the statute, than you would expect self-identified textualist justices to be engaging in. That a little bit goes back to our early conversation, Brian, what's really driving the justices.

As to Justice Thomas's presence on the bench, I do think that it's-- I'm glad that you brought [unintelligible 00:32:35], Robert, and I think it's an important point to continue to make, which is that there was a serious argument that Justice Thomas ought to have recused in participating in this case, in the upcoming immunity case involving former President Trump given his wife Ginni Thomas's involvement in not present at the Capitol on January 6th, but involvement in the events leading up to January 6th. She testified before the January 6th committee and was clearly involved in discussions about what then became the January 6th attack on the Capitol.

There were calls for him to recuse and they fell on deaf ears. Again, moments past, justices have recused for, I think, far less compelling reasons, just because they didn't want the appearance of impropriety. It was I think especially striking because Thomas was actually off the bench on Monday. He didn't sit and participate in two other arguments. There was no explanation so we don't know why. Not recusals, but we really don't know.

Of course, he returned, and he returned and was very active asking the first question in this case. I think for many people that feels scandalous. It feels as though if there's a suggestion, if there's an appearance, if people might think he has a developed view and his personal connection or spousal connection to the events might impair his judgment, he ought to err on the side of caution and recuse, and clearly, he's not decided to do that.

Brian Lehrer: What's the single standard when it comes to the actions of your relatives as opposed to you? I don't know your marital status, but if you had a spouse, who was involved politically, in some way, and you were a judge, maybe you would bristle at the idea of you having to recuse yourself because of something your spouse did. We see the case in New York right now, where Trump keeps disparaging the judge in that hush-money case because of political activity of his daughter, or his clerk. Okay, forget the clerk. The daughter is a blood relative. I think a lot of people would say, "No, he shouldn't have to recuse himself because of that."

Kate Shaw: I think it's a good and important question. I actually do think that family members and even spouses and their activities should ordinarily be off-limits in politics and shouldn't necessarily give rise to a conflict or an appearance of a conflict. Yet there are provisions of law that seem to take a different position. Your spouse's income is included in your financial filings for purposes of disclosure and conflict of interest rules. Actually, the federal law in a lot of places basically does impute your spouse's finances and other activities to you. That doesn't necessarily control in the context of a recusal decision, but I think it's relevant background.

Here I think there is no smoking gun evidence that Ginni Thomas and Justice Thomas discussed January 6th, but there are suggestions and allusions in some of the materials that she was required to produce in the January 6th investigation. There's a reference in a text message to having talked it over. This is the talking she's texting with White House Chief of Staff Mark Meadows about the election. She was quite involved in pushing the notion that there was widespread fraud, irregularity, et cetera, in the election. She mentioned having talked it over with my best friend. Many, many people have suggested that the Thomases refer to one another as their best friend.

There's at least a suggestion in a text message in the public record that she was talking about this with her spouse. Again, we don't know for sure that she was but at least is out there to create the impression for some, and that-- Again, many people think that should be enough to result in a discretionary decision, even if not a required decision to recuse in the interest of the appearance of Justice and the integrity of the court as an institution.

Brian Lehrer: We had the earlier caller, who related this case to the adjacent case of what Republican Senator Tom Cotton has said recently. Here's a caller, Caroline in Port Washington, who wants to relate it to something that a Democratic member of Congress from New York did recently. Caroline, you're on WNYC. Hello.

Caroline: Oh, good morning. Thank you so much for this conversation. It's very interesting. I was wondering what Professor Shaw, how she would relate the obstruction statute to the House member, I can't remember his name, who pulled the fire alarm which disrupted the proceedings that were going on at that time. Even though it's not violent, when you look at any of these cases, whether it'd be the bridge situation or the pulling of the fire alarm, any situation where you're obstructing could lead to harm whether it's somebody hears the fire alarm and trample someone accidentally or on the bridge, somebody has a heart attack and is then killed. I think actually luck plays a lot in whether a situation becomes harmful or just free speech.

Brian Lehrer: Caroline, thank you. That's Congressman Jamaal Bowman from the Bronx in Westchester who pulled the fire alarm, by most descriptions, to delay a vote on something that he didn't want to get voted on right at that moment. He says it was an accident, but he was held liable for that in some respect. Are you familiar with that case, Kate?

Kate Shaw: Yes. It was definitely representative Bowman from the Bronx. I think there's some uncertainty still about whether this was just an accident, or a deliberate intent to interfere. I don't think we know. I do think that the statute and I think that that's the episode that Gorsuch had in mind when he referenced a fire alarm and the intent to obstruct a proceeding. There is the corruptly intending to obstruct an official proceeding requirement in the law.

I suppose in theory if there's corrupt, so meaning wrongful, and I think that's a heightened state of mind requirement so essentially, knowing that it's illegal is one maybe way to shorthand to understand corruptly, but intending to obstruct an official proceeding. If all of those requirements were satisfied, in theory, I think it could come within the reach of the statute. Again, I hasten to say, I do not believe that there's evidence to that effect with the representative Bowman episode, but I think that under some circumstances, I suppose it's not impossible.

If one of the January 6th writers had done something along those lines to attempt to interfere with an official proceeding, meaning here the final certification of electoral votes for Joe Biden, at least that's a theoretical possibility. There are relatively expansive scenarios in which you could imagine a prosecution like this being brought. I guess for a member of Congress, you would also have, I guess, I don't know if speech or debate protection or constitutional protections for things that members of Congress do in conjunction with actually debating legislation. I don't know whether you'd have an argument under speech or debate if, in fact, you could say that pulling a fire alarm was expressive and thus, protected by that constitutional provision. There would potentially be other arguments.

It's not wrong that, in theory, it's a broad statute. Again, I return to something I've now said a few times, which is that I think there are sufficient limitations built into the statute that I'm not too worried about it wildly, chilling speech were being deployed to respond to what we should understand as instances of legitimate protest.

Brian Lehrer: Yes. Bowman did plead guilty to a misdemeanor in conjunction with pulling that fire alarm, and he was censured by a vote in the house. We just have a few minutes left. Let's go on to the decision the justices made on Monday regarding the gender-affirming care for teenagers ban in Idaho. That's puberty blockers, hormone therapy, surgical procedures, even with the parent's approval banned in Idaho. Can you explain briefly the basics of that one?

Kate Shaw: Sure. This is a preliminary rulings. The court has not on the merits actually considered the constitutionality of this law. Basically, this is an Idaho law bans gender-affirming care for minors. The families of two transgender youth in Idaho filed a constitutional challenge to that law, trial court blocked the law, court of appeals agreed that the law was likely unconstitutional. It violated equal protection and the liberty of parents to make decisions about their children's medical needs.

The state of Idaho ran to the Supreme Court, and on Monday night, in a divided opinion, the court said that Idaho could enforce this law while the challenge was litigated, but actually as to everyone, except for the plaintiffs who challenged the law. The two transgender children, their families still get the benefit of the ruling in their favor and so the law cannot be constitutionally applied to them. Otherwise, it goes into effect, again, even though the two courts that took a close look at this law concluded that it was likely an unconstitutional law.

This is another instance of something we have seen with increasing frequency, which is that the Supreme Court is issuing many, many consequential rulings on what's known as the shadow docket. This is this emergency docket. People file requests, and there is an accelerated briefing schedule that results in some ruling by the court. Again, it used to be very sparingly used, this power to decide cases on the shadow docket, but it is much more frequently used today. This is a very consequential instance of it.

Brian Lehrer: In our last minute, I just want to give you a chance to put on people's radar the case that we'll hear a ruling on by the end of June that you've said is so important called Loper Bright Enterprises v. Raimondo. People are listening and thinking what Loper? What's Bright and who's Raimondo? Prepare us for what's at stake by the end of June with that.

Kate Shaw: Sure. There's two cases consolidated. One is called Relentless. Maybe that's an easier one to remember. You can think of it as the Relentless case maybe. They're really fundamentally about the power of federal agencies. Because most of what government does happens through agencies, [unintelligible 00:43:05] the federal government to meaningfully act to regulate and protect our health and safety in all ways.

Here it's a regulation about fishing. Who pays for a monitor on board fishing boats to prevent overfishing? The court here may overrule a 1984 decision that for 40 years has basically given agencies power in the first instance to decide what ambiguous statutes mean. That has to do with everything from food safety to the storage of nuclear waste and everything in between. This decision could, I think, really disable agencies from being able to meaningfully exercise that regulatory power and instead shift an enormous amount of power to courts and to this Supreme Court in particular. It's a case with incredibly high stakes, well beyond this narrow question of overfishing and monitors on board boats.

Brian Lehrer: University of Pennsylvania law professor Kate Shaw, also co-host of the Supreme Court-oriented podcast, Strict Scrutiny. Thank you so much for all this.

Kate Shaw: Thank you, Brian.

 

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