and blue justices, it s more complicated than that there s different ways of interpreting the statutes, of looking at the law. that s a prime example of a that. in another case the justices split 3, 3, 3 and there was a third case where you had justice ginsburg on the left and justice gorsuch on the left teaming up to descent from the decision. there s a whole mix of outcomes this week. paul: on the double jeopardy decision, gorsuch read the original constitution to say only one trial, one time, no matter the jurisdiction. and the other justices did not. clarence thomas said, well, took issue with the reliance on 170170 years of precedent. he said the precedent wasn t clearly erroneous and there are probably good arguments both sides, based on english common law in both sides and i support neil gorsuch for jettisoning
same offense. they came down in the minority. they ve been the minority in more cases than any of the liberals. paul: dan, what do you think? it s interesting, the cross issue is fascinating, it wasn t 5-4. some people thought it would be. justice alito s opinion managed to bring along kagan and bryor, 7-2, a pretty strong majority. justice s gorsuch s concurrence, he talked about something called the offended observer, the cross is that is in the middle of the road in maryland, people drive by, saying i m offended by it, violates my sense of religious independence. gorsuch raises the question about how can you file a supreme court lawsuit simply because you re offended by something. have you to have some standing to sue. why didn t the court, he said, go all the way and simply say that explicitly. paul: that s an interesting question. maybe because they didn t have
i want to add something to what daniel said. this very question of the limits on presidential privilege or executive privilege. this was litigated. this came before the supreme court in 1974. that president. it happened to be richard nixon, made the same argument. i can deny you. i don t have to respond to a subpoena. that was over the tapes. over 64 tapes and the supreme court said we know presidents can make the argument that for national security. they know they can make the argument for separation of powers and know they can make the argument that high level communications have to be protected, but there is a limit to executive privilege, and when criminal issues are at stake and free trial the access to a free trial is at stake, you have to give the materials, so this was litigated. it is settled law, and by the way, it s not a narrow precedent. it wasn t 5-4. it was a unanimous decision by