The Litigation Nation Podcast, hosted by Jack Sanker & Danessa Watkins, is a roundup of the most important and interesting legal developments happening right now, giving you an insider’s view to the legal system. If you haven't already, be sure to subscribe to Litigation Nation wherever you listen to podcasts, so you never miss an episode.
Welcome to Litigation Nation. I'm your host, Jack Sanker, along with Danessa Watkins. Remember, this is the show that where we get you up to date on the most important and interesting legal developments. You can find us at Apple Podcasts, Spotify, YouTube, wherever you get your shows. Danessa, what do we have this week?
Danessa Watkins:Alright, Jack. Well, first, I have a story out of New York where a jury just awarded a woman $30,000,000 against her ex boyfriend for violations of New York City's administrative code against revenge porn. And then we have a decision of the US Supreme Court or SCOTUS. It was which revealed that the opinion maybe was not unanimous to begin with.
Jack Sanker:And I'm gonna be covering a cyber attack in Fulton County, Georgia, which, threatens to release a lot of private sealed court documents that are being used in a number of different cases. But most importantly, the Trump election case which is ongoing, which is, of course, gonna have political ramifications, but, of course, could affect the trial itself. All of that and more, here's what you need to know.
Danessa Watkins:Alright. So starting with our revenge porn case in late February of 2024, we have a jury that awarded a SUNY, that's City University of New York, public health professor, $30,000,000 against her ex boyfriend. Now we use this term revenge porn, but it really means nonconsensual pornography. So the distribution of intimate images without a person's consent. And even though it's usually these revenge motivated cases that hit the news, that's the these nude images online.
Danessa Watkins:And as you know, once things are online, it's hard to get them down, and within seconds, they can be shared. So that's just kind of some background on what revenge porn is. Now looking back to our story, the plaintiff here is doctor Spring Chenoa Cooper. And for about a year, she dated a man, Ryan Bromes. He's a comedian from Brooklyn.
Danessa Watkins:And the couple split when doctor Spring allegedly learned that Bromes was actively engaging in affairs with other women. So she broke things off. She blocked her ex boyfriend on social media, and then soon after, Broms began posting nude photos of her online. Typically, he was using usernames that hid who who the publisher was, but it was pretty easy for doctor Spring to figure it out because she had only shared those images with her boyfriend at the time they were dating. Now she did try to get a protective order, and the and the restraining order that she had gotten.
Danessa Watkins:And he did this both on social media and on platforms where he was able to link to her work website, posting her name, her face, and all of her contact information. So as you can understand, this is certainly creating a dangerous situation for doctor Spring. She had 100 of men harassing her on social media. She also had to use security to get to and from work because people were tracking her down. So when the restraining order didn't work, she looked to both the state law and New York actually at the time and still does has an administrative code that was actually stronger back in 2018 than the state code for providing the type of relief she was seeking in civil court for revenge porn.
Danessa Watkins:Now at the same time, there was a criminal investigation and eventually a prosecution that was going on, and in 2021, Broms plead guilty to the misdemeanor of disclosure of intimate images. However, he didn't receive a jail sentence, and he was forced to attend a program for abusive partners. It ultimately didn't give doctor Spring the relief that she was looking for under the revenge porn statutes. So 6 years after she filed this initial lawsuit is when the case finally went to a jury. By that time, as I said, Broms had already plead guilty, so there really was no issue on liability.
Danessa Watkins:The judge found him liable, so the jury really only had to determine the amount of damages. This 30 $1,000,000 award was the greatest award that New York had seen under this statute, and doctor Cooper says she certainly doesn't expect to collect, but
Jack Sanker:Yeah. He's a comedian.
Danessa Watkins:Yeah. Exactly. But for her, it was more about sending this message of deterrence, and and showing that there is relief available for victims and hopefully, deterring these crazy ex boyfriends and probably ex girlfriends too from pursuing this type of action against their former partners.
Jack Sanker:Well, she will be able to, you know, garner those guys' wages for the foreseeable future several 1000 years probably. So, I mean, hopefully, she does get, some financial relief out of this. And Danessa, I think if I'm correct here, you have some exposure to this area kind of in your personal practice?
Danessa Watkins:Yeah. So my my practice group here, here, we have had a few of these, cyberbullying, revenge porn type cases. One of our more recent ones actually, we we brought alternative claims to to revenge porn. We also filed under defamation, false light invasion of privacy, torturous interference with business expectancy. This was kind of a crazy case where we had a client who his ex girlfriend, was sending nude photos to his place of work.
Danessa Watkins:So it it kinda took it to another level for him and that, his job and his clients, they were getting targeted with these images of him that obviously didn't paint him in the best light.
Jack Sanker:Yeah.
Danessa Watkins:And she was also accusing him of rape. So, yeah, and it was the same thing. By the time it got to trial level, she had already been prosecuted criminally and been extradited back to her home state, so it was really just an issue of damages. But the important thing that you can get from from that case is that, there are ways to pursue an action for this type of revenge porn even if your state doesn't have a statute specific to it or if the statute does not allow for a civil lawsuit. There are these type of, you know, emotional distress or invasion of privacy claims that you can bring.
Danessa Watkins:But currently, 48 states have some form of a revenge porn statute, the 2 holdouts being Massachusetts. I did look up though that the house actually just unanimously passed, pending legislation. So hopefully, Massachusetts Massachusetts will be passing something soon, but South Carolina is the other holdout, and I did not see anything currently on their books, of them trying to pass something. But the other available avenue potentially is at the federal level. There is the Violence Against Women Act Reauthorization Act of 2022, that was passed in March of 2022.
Danessa Watkins:So
Jack Sanker:So I I do not practice in this area. So I'm gonna throw something out there and you tell me how right or wrong I have this. My understanding is that these, the at the state level and now at the federal level, the legislation that is dealing with, you know, what we're calling revenge porn, but broadly a lot of other things, are relatively new because of the kind of gray area that this stuff may have fallen in beforehand and and not great in a moral or ethical sense, but as to what who has rights to, a photo or video, under certain circumstances and then their rights to distribute it accordingly. So for example, there was a point in time of which say, the subject of a photo, at the time the photo was taken, consented to that and then also knowingly and willingly shared that photo with their, you know, intimate partner. The question for some time and in certain jurisdictions was, well, if that partner then shares that photo, and and everything else have to stop them from doing that.
Jack Sanker:And these, as far as I understand, the state legislation, in particular in the 48 states that you mentioned and maybe at the federal level is just saying no matter what, that's not gonna be okay.
Danessa Watkins:Yeah. It definitely depends on, a it's a state by state basis. So there are states that have different thresholds, even to the extent of, you know, describing what type of body parts are shown and and what the images depict. But typically, there is some sort of intent involved, some kind of a men's rea where the person sharing the image either had the intent to harm, or if they didn't have that intent, they knew that this this wasn't an image that was meant to be shared with others.
Jack Sanker:Okay. That makes a lot of sense. Mhmm.
Danessa Watkins:And just to put a finer point on it, I'm sure that there have been more studies that have come out in the last 5 years, but I did find one from, 2017, and this was through the cyber civil rights initiative. It found at that time, 1 in 8 adult social media users reported being a victim of revenge porn.
Jack Sanker:1 in 8?
Danessa Watkins:1 in 8. So, you can only imagine. Unfortunately, that number has probably increased, but this is the kind of also the purpose of this legislation. Now that almost every state and the federal at the federal level, you have these protections, the hope is that there will be deterrents, and certainly we're getting better at tracking down IP addresses and and finding out who is behind these these images. Now deep fake pornography is something we'll have to cover on a different show because I think we could spend a whole hour on that, but that presents a whole new problem for, you know, what are the rights of these people where it looks like them, but it's not really them.
Danessa Watkins:I mean, we just saw that
Jack Sanker:with Taylor Swift. Say Taylor Swift is is actually leading the charge on on that
Danessa Watkins:as as she so often does. Right? On all things. Yes. Some more on that.
Jack Sanker:A hacking group called LockBit apparently has hacked the Fulton County, this is in Georgia, court website and made copies of sensitive sealed court documents related to the criminal case against former president Donald Trump. I think among in other cases as well. It's threatening the court system to release those documents unless it gets paid a ransom. And I'm gonna quote from a Business Insider article on the hack, quote, in a message posted online Saturday, this was 3 weeks ago, in both English and Russian, the hacking group called LockBit 3.0 said, the stolen documents contain a lot of interesting things in Donald Trump's court cases that could affect the upcoming US election. Initially, LockBit 3 point o set a Saturday, March 2nd deadline for payment according to the cyber security reporter, Christopher Krebs.
Jack Sanker:It has since moved that deadline to 8:49 AM on Thursday, February 29th. LockBit 3 point o's restored website now shows, unquote. And I'm covering the story because Fulton County did not pay the ransom as of February 29th. And and then the deadline was again moved back another week and they still didn't pay. We'll talk about that in a moment though.
Jack Sanker:So this is part of me speculating here, but this is a criminal case. And wouldn't the unauthorized and, you know, illegal disclosure of, these types of documents which are filed under seal and and are heavily redacted and all those things, if they were leaked, I mean, wouldn't that seriously infringe on the criminal defendant's due process rights and really make it difficult to try them given our procedural rules around that kind of thing? I I think it's potentially grounds for, you know, a mistrial, for example. If I was on the defense, I certainly would be considering that. And to my knowledge, this is the first time that a court systems document processing saving, server, whatever you wanna call it, process has been hacked.
Jack Sanker:And it just makes me think of like the amount of sensitive information those things. Oftentimes, my people who don't file them under seal and just those things. Oftentimes, my people who don't file them under seal just aren't expecting anyone to go look at them.
Danessa Watkins:Right.
Jack Sanker:But if they actually did, you know, it would be could be potentially damaging. But everything from financial statements to, you know, medical records, personal identifying information, all those things. A a court system, online system is gonna con I mean, it's gonna be, like, potentially a treasure trove of of sensitive documentation information. And seeing this now being targeted by these ransomware, hacker groups, I mean, it just makes a lot of sense from their perspective. And it's a bit scary from my perspective.
Jack Sanker:I think the implications for this hack broadly are pretty scary. But on the kind of Trump criminal case alone, which, you know, we're not gonna get into the details of that, but I think it could seriously affect prosecute him. If I mean, imagine something that should wasn't was gonna be filed, with the intention of jury, all of a sudden he gets exposed to the jury pool. It's gonna raise an endless amount of challenges to who gets impaled on those juries and whether, you know, mister Trump gets a fair trial and all those things. I do wanna talk about the most recent update on this story.
Jack Sanker:This was as of about 2 weeks ago. As I mentioned earlier, Fulton County has refused to pay the ransom. And I'm relying now on a write up from an outlet called State Scoop, which is actually a pretty cool website that tracks data security, AI, data analytics stories, things like that. And according to that, as of the I think it was early March, and I and I've looked and I haven't seen any updates since this, the Board of Commissions of Fulton County has refused to pay the ransom. And quoting from the piece, and this is the chair of the board of commissions, his name is Rob Pitt speaking.
Jack Sanker:Quote, they could still release whatever data they have at any time. Today, tomorrow, sometime in the future. We simply have no control over that, Pitt said in a news briefing, which was live streamed on the county's YouTube page, 4 PM local time. We are monitoring the situation closely and will continue to work with law enforcement. Krebs on security reported that on February 13th, locked at 3.0 posted samples of sensitive data from Fulton County in a new entry on its victim shaming blog in an effort to force payment.
Jack Sanker:Quote, we will demonstrate how local structures negligently handled information protection, the hacking group wrote on its blog post. We will reveal lists of individuals responsible for confidentiality. Documents marked as confidential will be made publicly available. We will show documents related to access to the state citizen's personal data. We aim to give maximum publicity to the situation.
Jack Sanker:The documents will be of interest to many. Conscientious residents will bring order, unquote. I mean, seems to me like the hackers aren't getting the juice, from the squeeze that they expected here and I think that's a good thing. And now they're kind of reframing this as being, you know, white hat hackers that they're, you know, they're hacking to demonstrate the vulnerabilities rather than to just squeeze out a ransom which is b s as we know. But good on Fulton County for not paying.
Jack Sanker:It seems like seemingly ransom as far as I can tell. And for example, I'll go back to 2021. So it's a little bit outdated, but I think still relevant. Forbes reported that around 15% of all law firms globally, showed signs of compromised networks.
Danessa Watkins:That's the Chase. Yeah.
Jack Sanker:That's the terminology they use. I think even worse, in October of 2020, the ABA published something saying that a whopping 29 percent of law firms reported a security breach with more than 1 in 5 saying they weren't sure if they'd even been compromised. So hopefully, American firms have made progress in this regard in the 4 years since that data was published and collected. Going back to that state scoop piece. I'm gonna quote again.
Jack Sanker:Quote the cybersecurity and infrastructure security agency advises against fulfilling ransomware payments as they do not guarantee that data obtained by hackers will no longer be compromised or lead to a restoration of services and data. Any ransom payment sent to a foreign hacker may also violate sanctions set up by the Office of Foreign Assets Control, according to a 2021 report by the US Treasury Department, unquote. That last bit is kind of interesting especially in light of the Russian Ukraine war and the fact that I think a lot of these hacking groups are at least affiliated with or associated with, nation states and, actors based in Russia, I think. So, you know, cutting them a check for whatever the ransom might in fact actually get you in trouble, something to think about. So if you're listening to this, take whatever steps you need to take.
Jack Sanker:I don't know because I'm not one of these lawyers and I'm not exactly, the most tech savvy person, but that's why we rely on experts to do that and I would suggest that anyone at home who is hearing this and, you know, maybe feeling concerned do the same. One last thing, kind of the nature of these hacks targeting firms and now court systems, I touched on it before but the level of sensitivity alternative target to, like, I don't know, say a bank or a healthcare system where they do alternative target to, like, I don't know, say a bank or a healthcare system where they do have, probably more robust cybersecurity infrastructure just based on the tighter regulatory controls. I mean, you know, the health care system has been dealing with HIPAA, for example, for decades. Right? Law firms, you know, we have ethical obligations and we and we we do our best, but I think anyone who's been around this has seen, you know, solo litigation attorney attaching unredacted medical records to a motion, for example.
Jack Sanker:And then that gets filed and the whole world can go read them if they want. I I'll say that the delta of, you know, best practices is wider, for maybe law firms than they are for, like, banks or healthcare, providers. So I it's another kinda tightens up.
Danessa Watkins:So the issue of the jury pool being tainted is an interesting one and and definitely something that in first amendment law, we deal with a lot because, of course, I'm probably more on the other side of it where we want to have open access to documents. You know, we want, the public to know, for example, this comes up a lot with body camera footage. Oh, yeah. You know? So, even though there is a chance that a jury pool could be tainted by by some of this stuff, you know, you you have to do that balancing act of making sure someone has a fair shake at a criminal trial, but also the right for the public to have to have the information and and to have that oversight over its government.
Danessa Watkins:And it sounds like in this case that these are government documents, a lot of them, or or generated by government. So,
Jack Sanker:Yeah. But I mean, they're, you know, they're already filed under seal or via redaction or, you know, were sent for in camera reviews. So, like, ostensibly, if there was an objection to it being sealed, that's already been litigated and adjudicated. Or oftentimes as we know, the parties just agree. They'll say, hey.
Jack Sanker:You know, we're not going to put, for example, anything that has your client's social Security number into a public publicly filed document. Right? That's, like, a pretty easy one. So you'll redact that.
Danessa Watkins:Right.
Jack Sanker:Or, you know, hey. We have to file these financial documents because the court needs to see them. The court can review them in camera, but we both understand that the public shouldn't see these things because that's not what this lawsuit is about, for example. Right.
Danessa Watkins:Yeah. So I guess what I'm saying is there are you know, these issues come up a lot, and so, the court does have systems in place to ensure that I mean, even just, you know, making sure that the Right. That the there are gonna be jurors out there who have no idea about this story. You know? I've never read this issue and and known that it that it's even come up.
Danessa Watkins:So, even if documents were leaked, you know, there are gonna be people who haven't seen them. But I guess what I'm getting at is that I'm glad that the court didn't play pay the ransom just for the sake of keeping these documents, withheld or redacted or or censured, however they were.
Jack Sanker:Yeah. I mean, good point for them. They're like, look, they can release it whenever they want whether we pay them or not. I mean, you are negotiating with criminals who just stole something. So, you know, no honor amongst thieves.
Jack Sanker:If you cut them a check, you're just crossing your fingers and hope that they don't come back to the well and they could anytime. So yeah. I I think just kind of standing up to them and and is the right thing here and so be it if if these documents come out and it affects the, you know, the prosecution's ability to to get this to trial or whatever. I mean Right. What can you do?
Danessa Watkins:Right. Well, and it's it could certainly set a dangerous precedent if you have courts starting to give into this because I mean, you think about all the high profile cases across the country. Hackers could do this, you know, in any number of situations. You've got cases against big corporations, Pfizer, Johnson and Johnson. I mean, I'm sure.
Jack Sanker:What about, like, the so let's say these documents get dumped into the public sphere. The defense, successfully argues argues for I don't know. Maybe maybe the documents get released mid trial. They get a mistrial. Or or they make a procedural argument one way or the other.
Jack Sanker:Basically, wouldn't that create an interesting precedent for politically motivated hackers or privately funded hackers to just meddle with criminal proceedings so that prosecution under our procedural rules becomes impossible in a given case, you know, whether it's Trump or anyone else. You could see a scenario where it's like, hey. Let's let's cause so much mayhem, in this system that this person who is being tried for x y z crime cannot be tried.
Danessa Watkins:Yeah.
Jack Sanker:That's that's an maybe I shouldn't have said that.
Danessa Watkins:I was gonna say, anyone listening at earmarks Don't do that. Yeah. Oh, yeah. No. That that is scary.
Danessa Watkins:And I just sitting here listening to this story scares me because I think as lawyers, you know, we we do the best we can. We protect documents. We trust in the court system that things are gonna remain sealed. So now it's like, oh, shoot. Should I be asking for in camera inspection on certain things?
Danessa Watkins:Yeah.
Jack Sanker:Yeah.
Danessa Watkins:Instead Instead of, actually trusting that the the court will, you know, maintain these things in a in a sealed fashion. And, like, let's assume that, like, Fulton County here is
Jack Sanker:a that, like, Fulton County here is a 100% acting in good faith and and, like, took what what we would anyone would call reasonable precautions and still was hacked. You know? I I I don't I'm not implying that they weren't Oh, sure. That secures I'm sure I'm sure they probably were were. Right?
Jack Sanker:I mean, that's Yeah. Everyone says that they are until they get hacked.
Danessa Watkins:Right.
Jack Sanker:So, yeah, it's, I think the broader implications of it are interesting. I think kind of on on this one off issue of what's gonna happen in the Trump prosecution. That's just, you know, kind of interesting and concerning for me, just as to what it says about private actors' ability to disrupt, prosecution, of anyone if they wanted to. And I just think that that's something that is, I don't even it actually, by the way, it doesn't even seem like from the words and actions of the hackers here, lock bit 3 point o, that they've grasped than, you know, what they're claiming, which is, probably the bigger issue here
Danessa Watkins:Right.
Jack Sanker:Than, you know, what they're claiming, which is, to expose the public servants who, you know, didn't encrypt their files enough or whatever, which no one cares
Danessa Watkins:about. Very interesting. Alright. Now, kind of on the same topic of Trump, but moving it to a recent US Supreme Court decision. They heard an expedited fashion arguments regarding the state's ability to remove presidential candidates from state ballots.
Danessa Watkins:So quick background on this case. This was out of Colorado. There was a group of voters there, which interestingly were 4 registered republicans and then 2 that were unaffiliated. They filed a petition against former president Trump and the Colorado secretary of state claiming that Trump was constitutionally ineligible to serve as president again and should be removed from the ballot. These voters, they relied on section 3 of the 14th amendment, which provides in pertinent part that no person shall be an elector of president under the United States who having previously taken an oath as an officer of the United States to support the Constitution of the United States shall have engaged in insurrection or rebellion against the same or given aid or comfort to the enemies thereof.
Danessa Watkins:So their argument was that essentially Trump's participation in the January 6th insurrection disqualified him from holding office of the president again. Now the Supreme Court of Colorado agreed with this and ordered that Trump be removed from ballot, but that decision was stayed pending resolution at the US Supreme Court level. Now they took us up pretty quickly, because obviously we're entering election season, so they had to render a decision because I we actually saw here in Cook County that, wasn't Trump removed from
Jack Sanker:I believe it was from
Danessa Watkins:the ballot initially. From the Illinois ballot. Yeah. Yep. So other states were taking similar action.
Danessa Watkins:And, so the supreme court jumped right on this issue. The decision that was published March 4, 2024, was unanimous. So all justices agreed that Trump should remain on the ballot. While the states may disqualify people from holding office in the state, they don't have any power under the constitution to enforce section 3 with respect to federal offices. And, I mean, this is just from a practical standpoint.
Danessa Watkins:It's pretty easy to see how state resolution on the qualification of a presidential candidate can lead to inconsistent results. You could have some states that are banning a certain candidate from their ballots while other states don't, and ultimately the president represents the the voters in the nation. So this is really an issue of federal law and oversight. Now what's interesting about this case is that 4 of the justices expressed that the majority went too far in the decision that was published. So again, the issue before the court was whether a presidential candidate can be taken off the ballot by a state under section 3 of the 14th amendment.
Danessa Watkins:The resounding answer was no, but the majority opinion delved into other issues that weren't really before the court, and this was namely whether federal actors can enforce section 3 and how they must do so. Now conservative justice Amy Coney Barrett, she was one of the justices that wrote a separate concurrence. However, hers was fairly short, and the other concurrence was drafted jointly by the liberal justices. So that's Sotomayor, Kagan, and Jackson, and this one was a little bit more aggressive in tone. Now when that when the decision was published, that concurrence by the liberal justices, the metadata was not wiped from that document.
Danessa Watkins:And what the metadata actually revealed was that justice Sotomayor was initially a partial dissenter, yet the opinion was published as a unanimous decision. So this led to a host of conspiracy theories. Why did SCOTUS put out this opinion as as unanimous on this very hot button issue when it seems like potentially one of the justices disagreed and and felt that maybe states could remove someone from a ballot. Now an article from the American Bar Association explains that one way to see the metadata was as simple as taking the the top top portion of that concurrence, copy and pasting it, putting it into Word, and when you do that, it shows up that Sotomayor concurred in part and dissented in part. Apparently that same metadata showed up when you searched for the word dissent.
Danessa Watkins:So the question is what happened? Certainly this decision was rendered quickly by SCOTUS standards, so the failure to scrub this data was likely just an oversight in the rush to publish. But I guess the bigger question is how did this lone dissenter transform into a concurrence and then become authored by all 3 of the liberal justices. So we have Paul Schiff Berman, who is a professor at George Washington University of Law, weighing in on this. And it was his opinion that Sotomayor's opinion may have become a concurrence just in an attempt to emphasize that the justices were all on the same page on this very important issue.
Danessa Watkins:And this certainly makes sense because as justice Barrett noted in her concurrence, quote, the court has settled a politically charged issue in the volatile season of a presidential election. Particularly in this circumstance, court should turn the national temperature down, not up. For present purposes, our differences are far less important than our unanimity. All 9 justices agree on the outcome of this case and that is the message that Americans should take home, unquote. Now an article by Slate offered further speculation as to why justice Sotomayor may have changed her decision.
Danessa Watkins:One of the broader theories that they put out is that this could have been a bargain between the justices. So if they issued a unanimous opinion that Trump should stay on the ballot, then possibly they would to take up Trump's separate dispute that he was immune from criminal prosecution. So in other words, they would allow Trump to run-in all 50 states, but then he would also have to contend with a criminal trial prior to election day. Now we know as of the date of this airing that that bargain, if it ever in fact existed, it didn't come to fruition because SCOTUS has granted certiorari, and we'll hear argument in April on this issue of whether Trump is immune from criminal prosecution. But maybe that actually was the bargain.
Danessa Watkins:So it's possible that the court could have pushed that argument on Trump's immunity to the fall term, which definitely would have guaranteed that the election would proceed before a decision was rendered. But perhaps in exchange for a unanimous opinion on this issue, they decided to hear argument in April. Just another theory being thrown out.
Jack Sanker:Yeah. I mean, the I I think that the past couple years in particular, to anyone who's paid attention and we're not this is not a court watching podcast, and neither one of us is practicing in front of the Supreme Court, but is people who are aware of our surroundings and and pay attention to this type of thing. The idea of the supreme court justices as, as justice Roberts, I think put it, umpires calling balls and strikes, you know, nonpartisan, nonpolitical actors, I think it's really taken a hit. I mean, there's this of course which seems in some way I don't know if it was quid pro quo, you know, we're going to take this case and not the other. But there was certainly some type of political calculus involved so that they could get a 9 to 0 opinion and I think protect the, legitimacy of the court which has, I think, been under popular scrutiny for the past couple years.
Jack Sanker:And to tell the public, like, look at us. We're actually not divided. We're united on this important issue and, you know, that's why we're 9 to 0. And so to arrive at that conclusion would require someone who intended to dissent to be persuaded to change their mind. And that's just part of it.
Jack Sanker:And I think anyone who has looked into, like, the inner dealings of the court and all that stuff, I think Jeffrey Toobin's books on this stuff are are decently good, notwithstanding all the other stuff Jeffrey Toobin has gotten involved in. But, there is some element of horse trading and political negotiation among the justices. And I think that really that that idea that they are nonpartisan actors, nonpolitical, I think is I'd say it but kinda somewhat naive, these days. I mean, remember the Dobbs leak. Right?
Jack Sanker:Like, that was huge. And by the way, they never resolved that. That's another thing that's just out there.
Danessa Watkins:Yeah.
Jack Sanker:You just don't know who did it or for what reason or to one end. I mean so I think this, I think reaching a 9 to 0 conclusion or, decision rather on this is, like, more important than the substance of the decision. And and there is, a pretty, wide variety of reasoning offered among the 9 justices for their decision. And we could talk about that if if in a moment, I think it's probably worth getting into. But ultimately, I think the goal here was, like, folks, we need to put on a united front here for the benefit of the public, not necessarily for the administration of justice even though but I don't think that's the reason why it's 9 to 0.
Jack Sanker:And I think if you, you know, if you took 9 people off the street and asked them about this, I don't think you would get, you you know, a unanimous decision from 9 people. I don't know why you would expect anything different from the justices, for example. So I think it's more of that. Ultimately, if you're paying attention, I think it I think it further serves to hurt the legitimacy of the court when you have this type of thing leaked. Also, let me put on my Tinfoil hat here.
Jack Sanker:The metadata being included in the I mean, what if it's the same person who leaked the Dobbs thing? Like, it's it's some clerk there who's just putting out drafts and getting everyone in trouble. Right?
Danessa Watkins:I think I think clerks are limited to what? A 2 year term at the supreme court level?
Jack Sanker:I have no idea to,
Danessa Watkins:I may have just pulled that out of nowhere, but that that was, like, deep in the memory bank from somewhere. Sure. So we'll go with that.
Jack Sanker:You know, someone is screwing up at, like, a document management level up there and it and it just so happens to be on, like, 2 of the most important things that the public is worried about for the past couple years. I don't know, man. Maybe that maybe the mole is still active.
Danessa Watkins:Sounds like another conspiracy theory, Jack. I
Jack Sanker:for a minute, can you indulge me on section 3 of the 14th Amendment? Yeah.
Danessa Watkins:Of course.
Jack Sanker:Okay. And my ongoing threat to pull the rug out from under the show and turn it into a civil war podcast, I I have to, again, make clear to the listeners that I'm gonna do it one of these days. And the what's I I think ultimately the decision here that and it practically makes a ton of sense. You can't have different states saying, you know, this person can be on, this person can't be on. Like, it it really just screws with the federal election in a way that makes it unworkable.
Jack Sanker:So figure out a way to make sure that doesn't happen. I will say though, that the the reasoning, given by some of the conservative justice, I don't think necessarily addresses some of the, arguments that were made at the Colorado, Supreme Court level and which ultimately the Colorado justices in this case relied on. I don't necessarily think they're persuasive, but I think they're worth mentioning. Example, you know, this idea of the federal government is the final say on whether you can be listed on a state, a state, election form or whatever. There are a lot of instances where states are intervening and adjudicating federal requirements for candidacy on the ballot.
Danessa Watkins:For federal candidates?
Jack Sanker:Yeah. So for example, if you're not 35 years old, right, you can't be president. Yeah. So state courts deal with that often all over the country. So, you know, if you wanna put in and file the paperwork to run for president when you're 12 years old, a state court will tell you no, or can tell you no.
Jack Sanker:And there's, like, plenty of examples of that. That's, you know, that's a constitutional requirement on the 14th amendment but, you know, the rule for nationalized citizens also gets adjudicated at the state level. So hard and fast rule that only federal courts can adjudicate these issues, which is not exactly what they said in the the supreme court opinion, but it's that's what I think people have taken away from it. It's just not the case. Right?
Jack Sanker:Civil or, state courts are adjudicating eligibility requirements for the office of presidency, for example. It was specific to this, section 3 of the 14th Amendment, you know, the part that deals with, quote, unquote insurrections, which is not defined by the 14th Amendment
Danessa Watkins:Right.
Jack Sanker:Or this subsection, and was passed in the wake of the civil war where everyone sort of knew what they meant. And I think that, it's a little tedious when the originalists on the court pretend like they have no clue what this word means, in certain circumstances. And, you know, shy away from going, oh, well, what you know, we don't know. It's not in there. So how can we possibly interpret it?
Jack Sanker:When they do that for everything else. So that's my my 2¢ on on that. I think the collective, playing dumb on on some of these opinions when it comes to the civil war amendments and, versus we know exactly what Thomas Jefferson was thinking when he wrote the bill of rights, does just kind of annoy me.
Danessa Watkins:Yeah. So just for the for the listeners, what the Supreme Court says about this section 3 and when it was passed, quote, it was designed to help ensure an enduring union by preventing former Confederates from returning to power in the aftermath of the Civil War. So that was their intent behind this, this section 3 of the amendment.
Jack Sanker:Sure. And and they they shy away from actually deciding the issue of, like, was this or was this not an insurrection on the grounds of, well, it's not in the amendment so we have to look to later constitutional or sorry, later congressional acts which define it in different contexts. So I think, I I wanna say that the first loosely called insurrection act was was passed in the 18 seventies. But there are interim periods where the president of the United States could unilaterally declare the an insurrection and invoke, think, proponents of, I think proponents of, President Trump's arguments on the at the Colorado Supreme Court level, forgot or did not mention or shied away from. And I just, I I would I would like to give the framers of the, post civil war amendments, the respect they deserve.
Jack Sanker:I'll put it that way.
Danessa Watkins:That's fair. Well, certainly, either way, this intermingling of politics in our current supreme court is equally interesting and terrifying. So I'm sure we'll be covering more on this subject. That is our show for today. Definitely join us in 2 weeks when we come out with our next show.
Danessa Watkins:You can follow us on Apple, Spotify, think of the think of the show, any questions you may have, topics you wanna hear in the future, and that's
Jack Sanker:it for now. Thanks everyone.