The stories about federal judges doing shady things just keep coming. Gabe Roth, executive director of Fix the Court, joins Melissa, Kate, and Leah to discuss proposals for making the judiciary more transparent and accountable. Plus, the hosts recap oral arguments– including one on whether the government can take your money and keep the change.

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TRANSCRIPT

 

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Show Intro Mr. Chief Justice, may it please the court. It’s an old joke, but when an argued, man argues against two beautiful ladies like this, she’s going to have the last word. She spoke not elegantly. But with unmistakable clarity. She said. I ask no favor for my six. All I ask of our brethren is that they take their feet off our necks.

 

Leah Litman Hello and welcome back to Strict Scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it where your hosts. I’m Leah Litman.

 

Kate Shaw I’m Kate Shaw.

 

Melissa Murray And I’m Melissa Murray. And this was the last week for the court to hear scheduled oral arguments. But don’t worry, the court got up to plenty of things. So there’s lots of news we have to talk about. So we’ll be covering that news up top once again and again. It does help to provide a sense of the actual court and the actual justices who are going to be deciding cases. So we think this is incredibly relevant to our discussion of the oral arguments. After we discuss this breaking news, we’ll move on to recapping the cases that the court actually heard during the second week of this April sitting.

 

Leah Litman To cover part of the news segment, the stuff about judicial ethics, or as certain justices might say, Schmethics or unconstitutional restrictions on their ability to use public office to extract wealth and favor. We are delighted to be joined by Gabe Roth, the executive director of Fix the Court. Welcome to the show, Gabe.

 

Gabe Roth Thanks for having me, everyone.

 

Kate Shaw So we are going to walk through some of the news that has broken since our last episode and then we will discuss with you, Gabe, how this is all very cool and very legal and not at all problematic. So if we’re all on the same page, let’s get to it. And first up, we have some Harlan Crow corruption updates together with a new participant in the one first Street game of Quid Pro. I don’t know. Maybe. So let’s start with some of the stuff involving the best supervillain name in the biz, Harlan Crow. Crow, Just as a reminder, is the Republican Mega-donor who became friends with Clarence Thomas after Crow offered Thomas a ride on his private jet after the two met at an event sponsored by a conservative anti-regulation think tank, as one does. But don’t worry, it’s all fine, because Crow told us that all relationships have some reciprocity in them.

 

Melissa Murray Hmm. Anyways, back when the initial ProPublica story broke about Harlan Crow lavishing free transportation and lodging on Clarence Thomas, Justice Thomas issued a statement that said he was advised that he didn’t have to disclose all of these things because, among other things, Crow, quote, did not have business before the court end quote.

 

Kate Shaw Dunnn dunn dunnn

 

Leah Litman And it turns out he fucked. That’s f-u-c-t up. Get it?

 

Melissa Murray We’re a family show.

 

Leah Litman Think about it just for a second because whoopsy daisy. Turns out that statement wasn’t quite right. Bloomberg News reporter Zoe Tillman broke the story that Crow did, in fact, have some business before the court. And this is in addition to all of the cases that the American Enterprise Institute participated in, Crow is on the AEI board of trustees.

 

Melissa Murray Tillman reports that the Supreme Court declined to hear a copyright case involving Trammell Crow residential company Trammell Crow won the case in the Court of Appeals, and the Supreme Court declined to review the matter after the party that lost asked them to review the case. Hmm. The Crow family had a non-controlling interest in the company at the time, and specifically Crow Holdings held less than a 50% stake in the company, and Harlan Crow was wait for it, the CEO and chair of the Crow Holdings Board. Now, it is not clear whether Justice Thomas would have known from the name Trammell Crow Residential Company that Harlan Crow had a connection to the case or to the company. But as we have repeatedly said, that’s not the point. The point is the optics of this and what it means for the court’s legitimacy.

 

Kate Shaw And, Gabe, let’s bring you in on this latest development. So how do you respond to people basically saying, look, this is not a big deal, It is a non-controlling share in a company in a case where it is not even clear that Thomas knew that Crow had a stake. And therefore, all of this is much ado about nothing.

 

Gabe Roth I mean, that’s not how it works, right? You, first of all.

 

Melissa Murray Listen, I don’t know Gabe, I think it might be how it works for some people.

 

Leah Litman I was just about to say they’re trying to make it happen.

 

Gabe Roth Right. The well, you know, under federal law, it’s as if your impartiality might reasonably be questioned. Then it is your duty under federal law to recuse. And in 2005, when that case reached SCOTUS, we had already seen examples, several examples, and I might have even found a few more that you’ll be hearing about in the coming days of Harlan Crow giving some private jet travel to Clarence and Ginni Thomas and spending that much money on a single justice. As we all know, private planes, while we don’t know all personally,.

 

Melissa Murray We don’t know actually.

 

Gabe Roth I don’t.

 

Melissa Murray Nobody knows.

 

Leah Litman But we have learned through this recording.

 

Gabe Roth You know and we can imagine that the private planes cost a lot of money. So Crow is spending a lot of money on Thomas. So anything with that last name should be on Justice Thomas’s conflict seat, right? Every chambers especially we’re talking 2005, the software system that the judiciary and some of the justices started using was only implemented in 2007. So in 2005, it doesn’t. They would have been a sheet of paper. Harlan Crow, Trammell Crow. I think that’s his brother’s name. Maybe. Everyone else Crow related should have been on that sheet and a clerk. And it’s really Thomas’s own responsibility. But a clerk in Thomas, someone should have figured that out. And there should have been a recusal. Not. Not. Not too hard.

 

Melissa Murray Okay, This is just wyles me. Also, I noted that you said, like, if we could reasonably expect this to raise questions about impartiality, then the justice has a duty to recuse it. And that seems to be a pivotal thing here, because the right is just all agog right now, basically saying anyone who’s raising this as an issue is being unreasonable. And that’s sort of the entire line. Like we’re all weird harpies who are harping on much ado about nothing. And so what is going to happen here? Gabe, Like we’ve heard from Senator Dick Durbin, who’s the chair of the Judiciary Committee. He’s requested that the chief justice or some other justice appear at a hearing that the Senate is going to conduct on ethics and the Supreme Court. But interestingly, when Senator Durbin requested the chief justice, he could have asked for specifically Justice Thomas, the guy accepting free superyacht trips from a Republican megadonor. But Senator Durbin said that he didn’t. And here’s his explanation as to why.

 

Clip I think I know what would happen to that invitation. It would be ignored.

 

Melissa Murray Gabe, what do you make of that? Like, I mean, is this again, like bringing a butter knife to a gunfight? Like, so what if you didn’t expect him to say yes to your invitation? Why wouldn’t you extend it? In any event.

 

Gabe Roth Let’s take a few steps back. The Democrats are in the majority of the Senate, Right? So theoretically, that’s news to them. The Senate. Right. A majority on the Senate Judiciary Committee. But right now, because of shingles, they do not have a majority in the Senate Judiciary Committee. You got to exercise the right to your majority when you have it because it is fleeting. And frankly, given the way that the United States is set up, the Democrats will probably not have a majority in the Senate for, I don’t know, the next 20 years. So it’s my view that, you know, Senator Feinstein should obviously step aside and they should find someone to replace her who can actually vote on things. And so, you know, that’s sort of a weak excuse that Democrats are using. But if they don’t want to use their majority, you might as well give a Georgia Senate seat to Kelly Loeffler. Oh God

 

Leah Litman The best advice I give to students is if you don’t think you will succeed, just give up and don’t even try to fight. That’s what we try to teach young minds.

 

Gabe Roth And look, I understand Senator Durbin is stuck and behind the scenes. We don’t know what he’s doing. But, you know, I think there needs to be a little bit more resources to bear on the get a actual majority in the Senate Judiciary Committee. And then we can talk about subpoenas, because currently it’s ten at 10 to 10, ten Republicans, ten Democrats and one shingles. And when it’s 10 to 10, you can’t subpoena anybody. So that’s that’s what’s holding it up.

 

Kate Shaw That’s right. So you can’t subpoena anyone right now. And actually, so what Durbin decided to do was to issue an invitation. Now, of course, he could have issued an invitation to Justice Thomas, but having decided that such an effort would be doomed from the start, he didn’t even undertake it, instead issued the invitation to Chief Justice Roberts. And despite Durbin evidently assessing his chances as better with the chief, the chief like how to put this, declined the invitation. I’m not sure that’s the right way to describe the chief’s response. I mean, the citation.

 

Melissa Murray I believe the legal term is dueces. See you when I see it. Right? I mean, it was just big “I don’t care. Do you?” Energy. I mean.

 

Kate Shaw I think that’s a very good TLDR of the chief’s response to the invitation from Durbin to show up to talk to the committee about Supreme Court ethics. So we should talk about this letter from the Chief Justice because it really was a pretty epic brush off, right? So it cites judicial independence, it cites the separation of powers, but can barely be bothered to elaborate on how exactly those values would be compromised by the chief justice participating in some sort of hearing. Right. Jamelle Bouie had a great column about this with the headline referencing the kind of polite disdain of the letter, which I think well captured its overall tone. But basically. TLDR the chief the chief says, No, I will not be participating in your little hearing.

 

Melissa Murray The better TLDR is like from Sex and the City, that post-it note that Burger leaves to Carrie. “I’m sorry, I can’t.” I’m sorry.

 

Leah Litman Just “I’m sorry.”.

 

Melissa Murray I’m sorry. I can’t.

 

Leah Litman So, you know, it is worth, I think, skimming the letter in full because of the dripping disdain it shows toward the prospect of congressional oversight. You know, the entitled hand-waving that masquerades as reasoning. You know, another tldr is just like I am king and you don’t ask the king to testify. More seriously, it’s like, well, you know, there were only two instances of Chief Justice’s testifying to the Senate, and I’m just going to declare that those were about unimportant routine matters. And slight footnote, I’m not even sure that’s an accurate characterization. But what’s little history between friends and the letter continues like. Chiefs appear on the House and similarly mundane issues like the appearance of a coin. And it weighs around, as Kate, you’re saying, like the separation of powers and judicial independence, as if they were like spirit fingers, you know, saying like testimony of chiefs is rare because of the separation of powers and judicial independence concerns they raised. It’s just. Ugh

 

Kate Shaw Yeah, it is pretty typical in the context of congressional requests to actors in other branches like the executive branch, where I spent some time for an exchange of letters to occur. So somebody gets an invitation to appear and there is a resistance on the part of the invited party to doing so. And there’s often a letter that basically explains the reason for declining at least an initial invitation. But what is so wild about the way that she wrote this letter was that, as you just said, Leah, it lists instances in which other chiefs had appeared before congressional committees, and it sort of suggests that those were on trivial matters. But then it doesn’t actually do the next part of the kind of ritual, which is to explain why these are different circumstances and therefore no appearance will be forthcoming. It like doesn’t say this is different. It doesn’t even bother to construct an argument that this is more trivial than those matters, that this is different in a relevant way from those matters. It’s just like a kind of, you know, Here’s some other examples of chiefs. Yes. Showing up and Bye-Bye. And then the other thing that is, I think so dismissive about the letter is that there is often in these exchanges some sort of offer to get some information to Congress in another way, like I’m not going to show up, but maybe I’ll answer some written questions or something. Staff member And there’s nothing along those lines, right? There’s like this weird statement signed by all nine justices, which we should discuss, and then a pretty clear sense that this is the chief’s last statement on the topic. It was a wild letter.

 

Melissa Murray Well, it reminds me a lot of what we saw in the subpoenas of the executive branch officials during the Trump administration, where everyone talked about like how historically there had been this sort of give and take between the branches. And indeed, the chief justice. Talks about this negotiation that historically has happened when there’s intra branch conflict. He talks about this and either Trump versus Vance or.

 

Kate Shaw In the Mazars case.

 

Melissa Murray Trump versus Mazars. Exactly. And there’s none of that here. Like there’s just no effort to sort of compromise like, know, you want information. I can’t show up, but I can offer you acts like it’s just like, you know, it’s not you, it’s me. And I’m not doing this.

 

Leah Litman So I want to get back to the chief’s letter. But, Gabe, I want to hear what you think of the appended joint statement by all nine justices that I kind of took to say we’re very ethical. We promise we’re being ethical. And we’re all doing ethical things according to our secret ethical guidelines. Is that? Did I miss something.

 

Melissa Murray Gabe, When you read that, were you just wanting to say, Elena, Sonia, Ketanji, what’s the safe word?

 

Gabe Roth Yeah, there is definitely some arm twisting among the justices to get the nine to sign that. I think from from multiple ends from some of the justices that probably wanted to be a little bit more forthcoming with their ethics, rules, responsibilities and maybe some new regulations. And then from some justices who probably believe the Ethics and government Act to be unconstitutional. Right. The the 1978 post-Watergate law that the Supreme Court, by the way, upheld in 1981, when they’re asked to rule on it, they denied cert. And when the lower court had upheld the law, that law, which requires financial disclosure, gift disclosure, reimbursement disclosure, talks about personal hospitality. I think they would just believe that that law is unconstitutional facially. And so they don’t even need to send out a pointless three page ethics missive. So, you know, I’ve said this before. I think that letter was was worse than nothing. I mean, with nothing, at least we could have maybe convinced ourselves that something was coming off, something good was coming out, some statement saying, hey, members of Congress can’t accept gifts. We’re also going to stop accepting gifts. Or when a close friend wants to give us a gift, over $250, we’re going to ask an ethics officer or someone else the judicial conference, if we can accept it. Because when members of Congress have close friends that offer them gifts greater in value than $250, they have to ask someone if it’s if it’s ethically kosher. So to me, it was it was just worse than nothing and really sets us up for a further escalation between Congress and the courts in terms of what Congress is going to try. Well, these Democrats in Congress, I’m hopeful for Republicans we can talk about that. But you know what Congress is going to do to try to rein in some of the more corrupt behavior by the justices.

 

Leah Litman The end of the joint statement also seemed to close by reminding people that justices face security threats, which I wasn’t sure were they implying that considering ethical guidelines or other such things was like a threat to the justices? It was it reminded me of that statement in the chief justice’s year end report that we discussed when that came out.

 

Gabe Roth They’ve gotten. All this money for for security. That’s incredibly important. What’s frustrating to me is having sent open records requests to the U.S. Marshals Service about threats against the justices just in their in their travel. And having learned that Justice Sotomayor had a credible threat against her. Justice Ginsburg and Justice Thomas all had credible threats against them six, seven years ago. And there wasn’t sort of this ethics push back then. Now that there’s this ethics push, we’re talking about a little bit more about security. And Republicans have sort of used that as a bludgeon to say why they don’t want more transparency. Oh, we’re going to you know, Democrats are trying to take away security funding when they’re threatening to hold up some of the Supreme Court’s funding because that’s another way to do it. Right. We could actually just tell the Supreme Court, sorry, guys, you get no more clerks or you get no more funding for clerks until you come to the table on ethics. But that’s really a false equivalence. Like the justices have tens of millions of dollars every year that they use for travel and equipment and clerks. And Congress has every right to hold that up. If the justices are going to be so thick headed on improving their ethical responsibilities.

 

Kate Shaw Yeah, the point is, though, no one is suggesting that the justices shouldn’t have security. And it is just specious to equate critiques of ethics with somehow aligning oneself with a position that the justices should not be protected, like, of course they should like full stop.

 

Melissa Murray Speaking of the exchange of ideas and communications between the different branches, Senator Durbin put out a statement in response to the chief justice’s letter, and that statement essentially said it’s time to impose a code of ethics for the Supreme Court. To which we say yes, correct, sir. What did you make of the statement, Gabe? Too much. Too little.

 

Gabe Roth I think code of ethics. Yes. The Supreme Court needs a code of ethics. The House has won, the Senate has won, the executive branch has won in the lower courts have won. A code of ethics is important, but it’s not a panacea. It’s almost more like a like a heuristic shortcut to sort of say, like everyone else has this, but SCOTUS does it. But as a code of ethics, if there was just a code of ethics that would not cut it, that almost that also I think would also be worse than nothing, because the code of ethics itself is just basically five vague sentences and a little commentary that says the justices should be impartial, the justices shouldn’t participate in political activities. The justices should treat everyone that comes into their courtroom with respect, like it’s very.

 

Leah Litman One might be hard for Sam, but yeah.

 

Gabe Roth That yeah, I mean, I’ve filed complaints against lower court judges for not respecting certain attorneys and that are still ongoing. But anyway, the larger issue is that we want there to be a code of conduct, but we also want there to be some enforcement mechanisms or transparency and accountability mechanisms that are either part of the code of conduct or part of the ethics process of the court. So just to give an example, both all the bills that have been thankfully and this is different from past years, all the ethics bills that have been introduced in Congress this year. So there’s the new one from Angus King and Lisa murkowski, bipartisan. There’s one from Chris Murphy, which is a little bit different from the one he’s introduced every odd numbered year since 2011. And then there’s one from Senator Whitehouse, which is similar to one he released last year that would have some enforcement mechanisms. The basically the way that would work is there would be an inbox and I know Senator Whitehouse has gone on this podcast and talked about it, but this is in all three of these bills there would be a way to file a complaint against a justice to, at least in some corner of the court, say this justice acted unethically in this way. And then at the end of the year, after an investigation and the three bills sort of different in terms of how an investigation would happen. But at the end of the year, an ethics officer in the court would have to release to the public what sorts of investigations occurred, just like the Senate Ethics Committee does. I was reading the report earlier today, just like the House Ethics Committee does. And look, no one’s going to say that anything at least I’m not going to say that anything that Clarence Thomas did or any of the other justices did, because all all nine of them have had ethics, ethics lapses that you can go to fix the courts and look at. None of this behavior is impeachable. But at the same time, we can’t have trust in our top legal officials if we don’t have an understanding of where they are in terms of their ethical responsibilities. So I think having a reporting, having an inbox, having a reporting mechanisms creates a little bit of accountability through transparency, because currently under the system, all we have is impeachment and removal. And that’s never going to happen given the makeup of Congress.

 

Leah Litman So let’s talk about some of those ethical lapses by other justices, because this week, Politico also broke the story of a real estate transaction involving one, Neil Gorsuch. And the story goes something like this Neil Gorsuch and two of his buddies formed an LLC, Walden Group LLC, and they bought some property in Colorado with that LLC because, as we all know, Neil Gorsuch is not a regular coastal elite. He’s a cool coastal elite and a man of the people from the Colorado heartland and all those regular guys in Colorado Form LLC with their buddies and buy millions of dollars in property, specifically 40 acres of.

 

Melissa Murray It, an LLC, if you can keep it. Apparently at some point these guys became bored of their property holding and they put it up for sale. In 2015. But here’s the thing. Nobody wanted to buy it. So it sat on the market for about two years. It was originally listed in 2015 for 2.4, $2.5 million. And apparently they struggled so much to find a buyer over those two years that they eventually were forced to sell it for 1.8 million in 2017. And interestingly, that sale took place wait for it nine days after Gorsuch was confirmed to the court. Hmm.

 

Gabe Roth Wow.

 

Kate Shaw So who was the lucky buyer? Turns out it was the chief executive of Greenberg Traurig, one of the biggest law firms in the country and one that practices regularly before the Supreme Court. Politico reports that Greenberg, the law firm, has participated in at least 22 cases since the purchase. Although we should say there’s no indication that the actual buyer, the chief executive of Greenberg, participated in any of those cases. But notably in one case before the Supreme Court, a Greenberg lawyer represented North Dakota in last term’s West Virginia versus EPA, which invalidated the Clean Power Plan and announced really the modern major questions doctrine. The CEO that purchased the property turns out apparently to be a major Democratic donor.

 

Leah Litman Now, Gorsuch did not disclose the identity of the purchaser on his financial forms. The sale was reported, the LLC was listed. But the identity of the purchaser, which there is a field for on the form, was left blank.

 

Melissa Murray The Greenberg CEO says he didn’t know it was Gorsuch, his property, when he entered a contract to purchase at nine days after Gorsuch was confirmed to the court and that he doesn’t know and has never met Neil Gorsuch. That’s something.

 

Leah Litman Yeah. And I am also hoping for another thing that Gorsuch had financial dealings with other DC law firms just to level the playing field for fairness and due process.

 

Kate Shaw Okay, Gabe, we are once again dealing with an onslaught of no one thinks this guy actually bought any votes kinds of takes. Should that assuage our fears or concerns about this transaction.

 

Melissa Murray We’re also dealing with like people getting on Twitter, talking about how law professors don’t understand how LLC work. We totally do. But that’s not really the point of all of this, right?

 

Gabe Roth There’s several issues here. One is, if you just look at his financial disclosure report, it says Walden Group, LLC, was sold in 2017 or was sold off in 2017. And that’s really all it says. We only know that Walden Group LLC is an LLC that owned a mountain home in Colorado due to investigative reporting. And I think that also stands in contrast to Chief Justice Roberts, who owns an eighth of a cottage in southern Ireland, and his property actually converted to the Irish equivalent of an LLC last year. But he actually lists Caribbean Partners one eighth cottage in County Limerick. So he lists the whole thing. Yeah. He doesn’t just list that Karen partners, as he probably could under the instruction. So this to me is we need greater instructions, We need greater detail. The financial disclosures that the justices have are both under the law and the regulations are missing. A lot of details that I think are very important. And then Justice Gorsuch left the game code blank. So some outlets have misreported that. He made 250 to $500000. No, he received 250 to $500000 for selling his stake. But it looks like he probably broke even or potentially lost money because the instructions say if you lost money, just leave it blank. So if you lost if you sold something at a loss, it’s almost worse than breaking even. So, again, it’s a lack of exactness in the financial disclosure law, in the financial disclosure instructions that make your mind sort of go to these places that imply a lack of ethics.

 

Kate Shaw Do you feel like this moment is different in the context of the degree of public attention and press attention on the justices, on the ethics of the justices? Could we actually see enough sustained attention on this issue that something gives that something changes?

 

Gabe Roth I think there is definitely more attention being paid to this than ever before. More people are waking up to the fact that they’re you know, just to use my example, that their sister, who works at an eye clinic for a VA hospital in Little Rock has stronger ethics, gift and disclosure rules than the justices of the Supreme Court of the United States. We know when we launched to fix the court, we had an ad on cable and Fox and MSNBC and CNN that said the Supreme Court, the most powerful, least accountable. And now I think people finally in a half years believe that. Right? I think they’ve sort of come to the realization that what I’ve been harping about for for, you know, since 2014 and sadly, especially on the most powerful part, has come to fruition. And now we’re seeing sort of the least accountable part jump into the bloodstream as well in terms of changes. That remains to be seen. Last year we passed a law that made it so the justices disclosures have to be put online before them. You got them in a thumb drive, sometimes months or years after the fact. Now they have to put their financial transactions like Fox sales online, like members of Congress have to do, and there’s live streaming for oral arguments. So there have been some, you know, pretty monumental changes in the last few years at the margins. But I think this would be just a wholesale change, what we’re asking for now. And how the justices really view and act on their ethical requirements. So, you know, I’m hopeful we’re getting there. And stories like we’ve been hearing about Justice Thomas will get us there. But because people like to go to their partizan priors when they hear a name like Justice Thomas, I think it still remains an uphill battle.

 

Kate Shaw All right. Well, we know you’re going to keep fighting it. Gabe Roth, executive director of Fix the Court, thank you so much for the work you do and for taking the time to be on Strict Scrutiny this week.

 

Gabe Roth Thanks for having me.

 

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Melissa Murray We also have some news about Bill Nye The Science. Wait, I’m sorry. I read that wrong. Scratch that. Matthew Kacsmaryk. Oh, I meant to say.

 

Kate Shaw This is so unfair to Bill Nye. Oh.

 

Melissa Murray I know. He’s a great guy. It’s like. I’m sorry, I didn’t see it. All right, so we actually have some news about Matthew Kacsmaryk, not a science guy, but a district court judge in Texas who authored, as we know, the opinion, revoking the FDA’s approval of mifepristone that would have designated mifepristone an unauthorized drug. Now, we have obviously focused a lot of attention on that opinion. And let’s just say it was a drama filled, turgid work of fiction where Matthew Kacsmaryk cosplays being a scientist who knows more about health and safety and drugs than the FDA does about mifepristone. But it turns out that that little turn in Alliance for Hippocratic Medicine versus FDA is not the only screenwriting fiction credit that Matthew has on his resume. He has other works in his repertoire, things that perhaps he has been just too modest to take credit for. And the story really begins back in early 2017, before Judge Kacsmaryk was even nominated to be a judge when he was just, as we say in the biz, Mattie from the BLOCK, he submitted an article to the Texas Journal of Law and Public Policy. And this is where things get interesting.

 

Kate Shaw That’s right. So the draft article criticized Obama era protections for transgender individuals and individuals seeking abortions. Let’s just give you a couple of samples from the piece. So the draft accused the Obama administration of unfairly treating religious physicians who, quote, cannot use their scalpels to make female what God created. Male. Close quote and again, open quote cannot use their pens to prescribe or dispense abortifacient drugs designed to kill unborn children. Close quote. Now, if that last phrase sounded familiar, it should. Since it is basically verbatim how Judge Kacsmaryk described mifepristone in the opinion that Melissa was just describing. And as The Washington Post reported, this draft article was first submitted to the Law Review with only Matthew Kacsmaryk name on it. At the time, Kacsmaryk was a lawyer at the group First Liberty Institute. Then a few months later, Kacsmaryk wrote to the student editor he was working with and said, for, quote, reasons I may discuss at a later date, close quote, The name of the author on the piece would no longer be Matthew Cosmetic, but instead two of his colleagues at the first Liberty Institute. By this point, we know, Kacsmaryk had already been interviewed for a judgeship by the Texas senators and was awaiting a White House interview with him. So that, you know, the timing might not have been pure coincidence.

 

Leah Litman For reasons he was sure to disclose later.

 

Kate Shaw And when he was eventually nominated to the district court, Kacsmaryk did not disclose this article. And you are required to list all your publications when you are nominated for a Senate confirmable position, but evidently concluding that this wasn’t a publication under his name because he had done this kind of bait and switch after submission. He didn’t listed in his Senate paperwork.

 

Melissa Murray Kate, that suggests that there’s something nefarious afoot, and I refuse to believe that of Judge Matthew Kacsmaryk. I think there is probably a very normal, rational explanation for this. And in fact, when asked First Liberty Institute through a spokesperson said that, in fact, Judge Kacsmaryk’s name had merely been, quote, a placeholder, unquote, and that Kacsmaryk did not provide a substantive contribution to the article. And I know that I am now relieved, like, this seems like a very plausible explanation. And of course, this is much ado about nothing Psych. Let’s look at the evidence.

 

Leah Litman Well, first, can we just, like, pause for a second on the concept of a placeholder option? Because we all submit to law reviews.

 

Melissa Murray Oh my God. When I submit to law reviews, I always put like Barack Obama or Ruth Bader Ginsburg as a placeholder.

 

Kate Shaw We are have.

 

Melissa Murray Just kidding. It’s Melissa Murray.

 

Kate Shaw We have our nom de plumes, which are submission names, and then we swap in our real names once the editing process is well underway, super normal.

 

Leah Litman Once the editing process is underway, which it was by the time he pulled this bait and switch, you have signed a contract and which you remember.

 

Melissa Murray You are still the place holder, Leah. I mean.

 

Leah Litman Is your own. I guess all of these contracts merely recognize me as a placeholder author?

 

Melissa Murray I don’t really play contracts? Placeholder? I mean, when Kate and I submitted our piece, we put it under our assumed pen names, Charlotte Bronte and Emily Bronte, and it was accepted. And then we were like, Before we sign this contract, we should tell you it’s.

 

Kate Shaw No, no, we signed. We signed as the Bronte’s, and then we subsequently told them who we really were.

 

Kate Shaw Another, and they were like, We should be getting Jane Err and Weathering Heights. And instead its Dobbs and Democracy instead, It’s better. It’s actually better.

 

Melissa Murray It’s actually pretty good.

 

Kate Shaw They’re very good. They’re very good.

 

Kate Shaw There’s nothing normal about this.

 

Leah Litman Yeah, this is not a real thing. And in addition to that, you have this other evidence, which is before he asked to remove his name, like he was the only person listed as the author. He had exchanged emails with the editor, including a draft with the file titled MJ K First draft. Guess who’s initials? MJK.

 

Melissa Murray No, no, no. No. That’s just stands for Matt’s just kidding.

 

Leah Litman Exactly.

 

Melissa Murray Thats all that stands for.

 

Leah Litman Exactly. Neither of the people’s names appeared on the draft. These are the people who were later identified as authors. Neither of them are cited at footnotes. The final version is almost identical to the one Kacsmaryk submitted. The editor who received the request asked the Law Review editor in chief why Kacsmaryk was making the request, and the Post reports that the editor in chief smiled and said, quote, You’ll see.

 

Kate Shaw A little postscript, that editor in chief now works in the Texas Attorney General’s office, defending, among other things, that office’s ability to choose to file cases in Amarillo, Texas, and in so doing to select Kacsmaryk as a judge for their case. What a tiny little world it is.

 

Melissa Murray I mean. I’m just like, how many hairless cats can you stroke down there? Like peak villan stuff. Anyway, in addition to some undisclosed lava articles, Judge Kacsmaryk also seems to have done some undisclosed interviews on wait for IT contraception and LGBTQ equality. So CNN has reported that in an undisclosed radio interview, Matthew Kacsmaryk referred to being gay as a quote unquote lifestyle and expressed a religious liberty concerns about new norms such as, quote, people who experience same sex attraction and, quote, no fault divorce and, quote, permissive policies on contraception. Let’s just make the Victorian era happen again. Like no fault divorce. Like, what the fuck? Are you serious?

 

Leah Litman That’s on the list. And also the last time I have heard the phrase people who experience same sex attraction in the nineties and 2000s would like their homophobia back.

 

Kate Shaw Yep. And taking a cue from those guys at one first street, Judge Kacsmaryk also seems to have filed some pretty vague financial disclosures. So federal law allows a judge to conceal information if, for example, the information would expose a judge or entity to threats. So in 2020 and 2021 annual disclosures, Judge Kacsmaryk wrote that he held somewhere between 5,000,025 million in common stock of a company whose name would be withheld. Just because I didn’t tell CNN. I know what at the mind does wonder.

 

Melissa Murray What company. I know, like, start thinking about what company it is.

 

Kate Shaw Yeah, but evidently in this instance, Judge Kacsmaryk actually sought and received from the administrative office of the United States approval for the redaction after some review of the relevant rules that under some circumstances allow those kinds of redactions. So, you know, Kacsmaryk evidently did a little diligence before filing that report.

 

Melissa Murray Good for him.

 

Kate Shaw I know. See, no one can say we never say a nice thing about Matt Kacsmaryk because we just kinda did.

 

Melissa Murray I applaud him for being transparent in that regard. And I’m genuinely sorry for this company that would make him the subject of threats.

 

Kate Shaw So we had a little bit more news we wanted to touch on. Now we obviously cover opinions when they come down and when an opinion is first issued. Contemplating the effects of that opinion always involves some prognostication. Over the last year, we have tried to kind of stay on top of the fallout from decisions in particular like Dobbs and the gun case Bruin. And we have a bit more to say on those topics and also to kind of follow up from another decision as well. So first, post Dobbs News. So CNN reports that House Republicans may be abandoning their push to include in the 2024 presidential platform a promise to pass a federal abortion ban. So, ladies, does this mean a federal abortion ban is no longer a real possibility in the event the GOP retakes the White House and the Senate? What do you think?

 

Melissa Murray Do not believe it. Do not believe it.

 

Leah Litman Yeah. I mean.

 

Melissa Murray Hypervigilant. Hypervigilant.

 

Leah Litman Right. It just means they no longer want to admit it. This is like after they have been promising to appoint justices who would overrule Roe versus Wade. And then Amy Coney Barrett is nominated to replace Ruth Bader Ginsburg, and all of a sudden the Republican senators are like, What are you talking about?

 

Kate Shaw We have no idea. Nooooo.

 

Leah Litman Never heard of her, no. Yeah, not going to happen. And on top of that, there are things like reinvigorating or attempting to enforce the Comstock Act in the works that wouldn’t actually require them to pass a federal law in order to restrict abortion on a nationwide basis.

 

Melissa Murray So yeah, don’t get comfortable again. Seriously. We also wanted to cover some of the fallout from another case that we covered toward the end of the term last year. And that, of course, is. Kennedy versus Bremerton School District. If you don’t remember what that case is about, it’s basically the praying coach case. So Coach Kennedy, with an assist from Coach Gorsuch and Coach Kavanaugh, won his case with the court, saying that he could pray openly on a school football field after a school football game, even though student football players allege that they felt pressured to join despite their own misgivings. When the case came out, we predicted that one of the next dominoes to fall would be the whole question of prayer in school, which the court had earlier addressed in cases like Engle versus Vitale, but which the court has said in those cases is not permitted. But again, we suggested that maybe the tide was turning on this. And others also warned that this might be the case, including folks like UVA’s Michael Schwartzman and Cornell’s Nelson Tebbe, who were on our podcast last summer. Guess what, folks? Your Cassandras are once again right. Texas officials have taken a look at the Kennedy opinion and have said like, hey, you know what? You know, it’s not that far from a football field, classrooms. But you know what could also be a private space if a public man is praying in a classroom.

 

Kate Shaw So to make this concrete, the Republican controlled Texas Senate has passed several bills that seem to not just allow but require public schools to promote religion. So one bill directs the public schools display in a conspicuous place a durable poster or framed copy of the Ten Commandments. And the bill’s author cited the court’s decision in Kennedy as support for the bill. Another bill would allow public schools to require time for students to pray and read the Bible in schools. There, too. The bill’s author told The Washington Post that the Supreme Court, in the Kennedy opinion, debunked the false doctrine of the separation of church and state. And the Texas lieutenant governor said in a news release that bringing the Ten Commandments and prayer back to our public schools will enable our students to become better Texans. So, you know, the court is just a fire hose of kind of chaos right now. But we are going to try to keep our eye on the impact on the ground of these decisions, because we did think that Kennedy had the potential to destabilize a ton of longstanding norms of religion in public spaces, including public schools. And it really does seem like that’s happening very, very swiftly. Should we mention Biden’s reelection campaign announcement video which dropped since our last episode? Two things that I noticed. Abortion is health care. In a sign in the second, I think, frame of the video, this was, I thought, really significant. There were quite a few bands off our bodies signs in the video and a few seconds and only about a two minute long video of Justice Jackson walking with President Biden. And I was I was glad to see both abortion and the court figure relatively prominently since, as we have talked about, this president has been, I think, conspicuously disinterested in messaging and talking about the Supreme Court.

 

Leah Litman I would have liked to have heard the words abortion, Supreme Court or federal courts, but I guess it is some progress. One last piece of news is hot off the presses. As we sat down to record on Friday, the North Carolina Supreme Court with a newly constituted Republican majority, has now officially overruled the decision. Under review in the independent state legislature is case more versus Harper. The North Carolina Supreme Court now says that Partizan gerrymandering is not justiciable under the North Carolina Constitution and now seems likely that the Supreme Court will now not decide Moore versus Harper. So independent state legislature ideas will just be out there like a loaded gun.

 

Kate Shaw Perfect.

 

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Kate Shaw Let’s move on to argument recaps.

 

Leah Litman So the court heard oral arguments in Tyler versus Hennepin County. The question in the case is whether taking and selling a home, a government doing that to satisfy a debt to the government and keeping the surplus value potentially constitutes a taking and violates the takings clause. And then there’s the second question, which the court may not get to, and that’s whether the forfeiture of property worth far more than needed to satisfy a debt plus interest penalties and costs is a fine within the meaning of the Eighth Amendment.

 

Melissa Murray From the argument, it seemed like Hennepin County is going to lose probably 19 zero and that the justices were going to say keeping the surplus value from selling a home to satisfy a debt to the government is in fact a taking here. The home was sold for $40,000 when the homeowner, a grandmother, only owed $15,000 in taxes and costs. So why do we think the bottom line is so clear here? Well, it seemed to be where the justices sympathies and intuitions were during oral arguments. And again, there is a very sympathetic grandmother homeowner here, which I think is a big part of it. The difference between what she owed in taxes and what the home was ultimately sold for is significant. But we did want to play a few excerpts that highlight different justices and their takes on this particular point. So here’s a little clip from property sales enthusiast Neil Gorsuch, who knows about selling at a loss or a gain.

 

Clip Statute of Gloucester. 12? 12-92 Is that right, Mr. Castle? 12- 70 if I recall. 72 All right. Well, you know, a funny thing happened after that and was called the Magna Carta.

 

Kate Shaw Okay. A few points on this excerpt. First, Gorsuch, just like peak smug and condescending Gorsuch in this quote, but also kind of peak Gorsuch, which is it turns out he’s kind of wrong about the deeds in the timeline. So as Katyal sort of says, without really saying a couple of lines later, the Magna Carta, which Gorsuch, Performatively says comes after the statute that was 1272 Magna Carta is actually 1215. So it’s like definitely earlier.

 

Melissa Murray Oops, history and traditions, all all historians on this court.

 

Kate Shaw It’s history-ish. But there’s also the fact that Gorsuch is dismissiveness of the relevance of this ancient history was in light of his ardor for history elsewhere, a little hard to swallow. So I especially found that true in this excerpt here.

 

Clip There’s one line in the reply brief that I thought summarized the point pretty well. Tyler was not a vassal owing fealty to her Lord, but a modern day fee. Simple owner of real property and the Statute of Gloucester was about lands owned by the feudal lord. And what happens when a vassal fails to provide enough wheat to his Lord? And can his lands, which really belonged to the Lord, escaped to the Lord. And I just don’t understand what on earth any of that history has to do with this case.

 

Melissa Murray I’m just staring in Dobbs and Brown right now. So I’m going to say, like I said. Historians every single one.

 

Kate Shaw For thee, but not for me. Yeah, No, really. Mm.

 

Melissa Murray There is also another moment involving Lady Safe Haven, a.k.a. Justice Barrett, about the court’s history and traditions analysis, and that also seems worth exploring. So let’s hear it.

 

Clip What about Justice Alito’s question about the car? So Justice Kagan is asking you, is the bank account different? What about the hypothetical of, you know, like $20 of parking tickets? Can the state just take your whole car?

 

Clip Again, I don’t think that there’s a that would be a reasonable condition on ownership because there is no tradition that goes back that could be look.

 

Clip Well, there weren’t.

 

Clip Cars, buggies, whatever, you know, your buggy or whatever.

 

Leah Litman And that exchange followed a Kagan knifing of the history and traditions approach. More broadly.

 

Clip If you had a $10,000 income tax bill due and the government came in and took the your $100,000 bank account and didn’t give you the $90,000 back taken takings. Yeah. So what’s the difference if the mind rebels of the notion that the government can see as your $100,000 bank account and not give you back the $90,000 that you don’t know if the mind rebels at that you know why should whether it’s but was going on in 1200 or what was going on in 1776 change anything. Well just.

 

Leah Litman And because it’s nearing the end of the term, things are scary and the ethics shit show is dispiriting. In case you need an extended pick me up, here is Elena Kagan schooling Neal Katyal about the meaning of the court’s precedent.

 

Clip Are there any limits today? I mean, $5,000 tax debt, $5 million house, Take the House, don’t give back the rest.

 

Clip Well, I think this court’s decision and Nelson affirmed a scheme in which it was a $65 water bill. Justice Kagan And the House was sold for $7,000. And this court said that was about.

 

Clip Sally permit. Nelson had a very easy way for the property owner to get all the surplus value.

 

Clip AU contraire. It’s a much, much harder way. Justice Kagan and Nelson and Nelson. It was a 20 day presale period that you had to file and say, ask for the surplus. And this court said you only might get it back.

 

Clip I mean, in Nelson when the state sold the house, you had to file some paperwork and then you got all the money back here. When the state sells the house, there’s nothing you can file to get your money back. The state says, well, keep it. And my question is, are there any limits on that?

 

Clip Justice Kagan I’d say you’d have to be pretty darn sure that this was a constitutional violation and not just your policy preferences at that point. When you have precedent like Nelson, which is approving $65 and $7,000, and you’ve said, you know.

 

Clip We definitely have a different view of Nelson. My view of Nelson is you can get your money back by filing a form.

 

Melissa Murray This is what I consider self care. This was Neal Katyal’s 50th argument before the court. So it’s kind of unfortunate that he kind of got schooled in this way. But.

 

Kate Shaw And he’s probably going to lose.

 

Melissa Murray In different ways. He’s also going to lose 9-0.

 

Kate Shaw I think that’s pretty clear. Yup. But but.

 

Melissa Murray But, I mean, it’s a milestone.

 

Kate Shaw Thems are the breaks.

 

Melissa Murray Congratulate you.

 

Kate Shaw That’s right.

 

Melissa Murray Although the bottom line in Hennepin County may have been clear, the justices voiced some questions or concerns that may come up in light of this holding in future cases. So one set of questions seem to concern whether or how the government could just describe any surplus or at least some part of the surplus as a penalty extracted for failure to pay and to keep it under that theory. So basically, what amount can they actually keep as a penalty? So here’s an exchange between Justice Kagan and one of the lawyers about that over.

 

Clip I know everything, but what I’m trying to say is how about less than everything? How about 50%? How about 10%?

 

Clip I think it’s probably still an issue if they’re tying the value to the estate. But I think it gets harder. The line drawing gets harder if they’re being clever the way that you’re being quote. I mean, that’s a clever idea.

 

Clip It sort of seems like a kind of obvious idea, but okay.

 

Clip Nobody’s doing it as far as I know.

 

Kate Shaw Another set of questions is how to determine the value of the taking that is the surplus. If the county or the government never sells the property. Similarly, should the value be determined at the time the county asserts possession of the property rather than when it sells it, which could matter? And this came up a couple of times in the oral argument. If there’s a significant delay between those two events and there is like a stock market crash or something after the property is transferred. Bottom line, though, I think, is that Miss Tyler wins and all of these questions are likely for another day.

 

Melissa Murray The court also heard oral argument in Lakota Flambeau Band versus Kaplan. And the question in that case is whether the bankruptcy code expresses unequivocally Congress’s intent to abrogate the sovereign immunity of Indian tribes. Native American tribes, as you know, enjoy sovereign immunity. And generally they cannot be sued without their consent. But Congress has the authority to eliminate that immunity, to abrogate it, and to authorize suits against the tribes, even if the tribes or in this case, a nation of Native Americans, doesn’t consent to being sued.

 

Kate Shaw Specifically at issue here is whether Congress authorized suits against tribes under a provision of the bankruptcy code that abrogates immunity as to governmental units under several different bankruptcy code provisions. And the law defines a governmental unit to mean the United States, states, Commonwealth districts, territories, municipalities, foreign states, and then kind of departments and instrumentalities of all of those entities. And then there is a clause at the end of the definition section that says or other foreign or domestic government. So the question is, you know, the words tribe and native nation don’t appear on the list. So are tribes and native nations encompassed within the clause that refers to other foreign or domestic governments. And in previous cases, we should just underscore the court has said that to eliminate tribal immunity, Congress has to provide a very clear statement. Doing so.

 

Leah Litman We can kind of loosely sketch the gist of the argument. There were two no one’s surprise questions about what kind of language is necessary to authorize suits against tribes. So Justice Thomas wanted to know whether the statute had to say tribe, the chief and others wanted to know, you know, would just every government do the trick? And as Justice Kagan and others said, the court has resisted the idea that there are a set of magic words or certain words that Congress has to use to abrogate immunity. So there were also questions about how to understand the legal backdrop to the statute, you know, the background rules against which Congress wrote the statute, like when they mean tribes do they just say tribes? And also what to do about the fact that there is a list here and tribes aren’t named on that list?

 

Kate Shaw There were also questions about why Congress would have left tribes off the list of governments and entities who can be sued. That is, entities whose sovereign immunity Congress has. Eliminated. And the lawyer for the tribe, Pratiksha, offered a few potential explanations. And I thought he was quite persuasive here, actually. But it wasn’t clear to me how persuasive the court thought these explanations were. And I thought the justices interested in this question, like, why did Congress leave tribes off the list was really revealing in that the court says that they are all textualist, but they are all also interested in purpose. Like, why would Congress have done X? This is something Anita Krishnakumar has written a lot about, and I thought it was really on display here. So she said, you know, here’s a few possibilities. One, under previous versions of the law, you couldn’t sue tribes. And so that kind of carried over here, though we didn’t totally explain why Congress would have capped that rule, too. He said, you know, look, this law was passed around the same time as other laws seeking to empower tribes and give them economic independence. So maybe that’s an explanation. And third, he said let’s go back to the founding tribes were not invited to the bargaining table of the Constitutional Convention or allowed to participate in the same way that states were. And so the Constitution just doesn’t give Congress the same authority to abrogate tribes immunity as it does give Congress the power to abrogate states immunity. When it comes to tribal immunity, the Constitution requires Congress to do something more. And the lawyer for the federal government, which is supporting the plaintiff here and arguing that Congress did abrogate tribal immunity, said, well, Congress was listing the entities that it thought were most likely to be implicated in a bankruptcy proceeding. And then it added this catchall to encompass everybody else. And maybe Congress just didn’t think to include tribes in the list because this law predates a lot of significant tribal economic revitalization and booms. And so Congress just didn’t think about tribes when it was drafting this language.

 

Leah Litman In addition to the question of why, you know, Congress might have done one thing or the other, I think it’s also important and sane to think about kind of the political economy and context of the case and the legal issue. So I’ve said it before, and I’ll just reiterate it again here, sovereign immunity, I’m just not a huge fan. You know, it’s the doctrine that allows states and the federal government to evade a lot of accountability because they just say, yeah, we did something wrong or violated the law. So what? Nanny, nanny booboo, you can’t sue us. And it’s been invoked in just a bunch of horrific cases like where state run hospitals deny needed care to patients, costing them their lives and health. You know, so left my own devices, I’d kind of level down the whole sovereign immunity thing. Congress can freely abrogate immunity and suits for violations of federal law. So that’s probably coloring part of how I see the case.

 

Melissa Murray But even aside from all of that, there are actual questions about what immunity would do here and what the longer term consequences of that would be. And as Justice Sotomayor pointed out, tribal immunity could also possibly bar suits or claims to undue fraudulent transfers. So instances where a bankrupt party, for example, just fraudulently gives their property to an entity that’s immune in order to prevent the asset from being distributed to creditors. And with that in mind and with that reasoning in mind, but also I think for other reasons, Justice Gorsuch asked this question.

 

Clip I think the gist of some of the questions is while prevailing here, would advantage the tribe, obviously in terms of monetary claims against it, that they would also mean that you lose certain benefits for tribes. And on a net basis, could Congress have been concerned that, you know, the rule you’re asking for will hurt rather than help tribes?

 

Kate Shaw I think what Gorsuch may have been getting at might come from the facts of this case itself, which involves a private citizen challenging predatory lending practices, practices that are actually prohibited by state law. So here are the bands that have a chain of corporations that includes Internet payday lenders that make small loans to borrowers of limited means and then charges them, as do basically all payday lenders. Huge interest. The plaintiff in this case says the loans leading to this case had an effective annual interest rate of like over 100%. He took out a loan in 2019 for 1100 dollars. By the end of the year, that loan had increased to 1600 dollars. So, you know, these are really pretty abusive sounding lending practices. There’s an amicus by Public Citizen that highlights others. They’ve offered a $400 loans at like a 700 800% annual percentage rate through a trade name entity. And the same amicus brief highlights testimony about how these practices have really disadvantaged Native American communities. And the terms of the loan would be forbidden under state law. The tribe says they’re not subject to suit, though, Right? That’s the point of this immunity, although I think suggested that this really is about damages actions against the band and not about questions of compliance with the law more broadly.

 

Melissa Murray And all of this ended up coming to a head after the plaintiff who took out these loans, Brian Coffman, filed for bankruptcy. Then, in violation of the bankruptcy code, the payday lender called the plaintiff and harassed him to collect the loan. And the plaintiff alleges that these collection attempts and threats caused him to attempt suicide and to be hospitalized. He claims that he suffers from clinical depression. And so Coffman essentially filed suit against the tribe to recover for his medical bills and other actual damages. The bankruptcy code authorizes an action against governmental units who take acts to collect assets or recover claims against a debtor after they filed.

 

Leah Litman And this is part of why I just think like I don’t have a ton of sympathy for any entity like don’t care what kind of government they. Ah, that’s engaged in these practices. I did want to highlight one. What’s a questionable exchange? Or one that caught my eye between Justice Alito in the lawyer for the Tribes? That we’ll explain after we play it.

 

Clip Mr. Shaw, just out of curiosity, could I ask you a few questions about the relationship between the tribe and lend green loans? Yes. Who actually operates?

 

Clip The tribe does Your Honor, this is not a rent a tribe situation. The other side has never alleged it.

 

Leah Litman So what was this referring to? You know, the phrase Rent a tribe is a pretty dismissive and questionable term that’s used to describe instances where an entity that does not possess sovereign immunity, affiliates with an entity that does possess sovereign immunity here, tribes to insulate themselves, you know, the private entity from lawsuits. And again, this is the case as a lawyer for the tribe indicated here. But to describe the practices this refers to, which could be some relevant context for thinking about what Congress did or didn’t do in this law here. This would be like if some totally private company, that database of Internet payday lending that violated state law and they didn’t want to be subject to lawsuits and they wanted to be able to violate the bankruptcy code provision, preventing them from trying to collect on debts from people who filed for bankruptcy. And so they make an arrangement with the tribe whereby they could say it’s the tribe that holds the debts and we’ll be trying to collect on that. But the private entity would still be kind of the primary entity involved.

 

Melissa Murray An amicus brief by Public Citizen touches on this as part of their overall argument. Around this case, they highlight one case where the private entity received 95% of the loan profits and the tribe received just 4% as part of one agreement where the private entity was affiliated with a tribe and the tribe agreed to assert sovereign immunity. Justice Scalia wrote about this in dissent in a previous case called Bay Mills. Now, it’s possible that these practices could be dealt with separately and independently in the event the court says the tribes are immune under the bankruptcy code, but it would generate difficult cases about when it’s really a tribe versus really a private entity operating the business. And when it’s an agreement structured to affiliate with a tribe in order to avoid immunity.

 

Kate Shaw One other note about the argument. The lawyer for the tribes and some of the justices kept referring to the big four governments as the ones listed in the bankruptcy code as governments that could be sued. So foreign governments, state governments, federal and tribes. And Justice Sotomayor at one point piped up to make it clear that she thought there was an important omission in this formulation of the Big four.

 

Clip I would call it the big five territories territories. Fair enough. Thank you.

 

Kate Shaw So just Sotomayor reminding us that territories are often erased from our conception of governmental status. There is a question in a case involving the Puerto Rico oversight board involving territorial sovereign immunity pending before the court, but she just wanted to make clear that territories were being pretty erased from this entire discussion.

 

Melissa Murray All right. We’re not going to cover or discuss the case of Dupre versus younger. Whenever I hear that case, I just think of you, me and Dupre, which is that horrible music anyway. Anyway, Dupre versus Younger is a case which involves a procedural question about how to appeal something decided at a stage of the case known as summary judgment. But we did want to highlight this one exchange that has us, I don’t know, a little bit worried, anxious about what the court might have in store for us.

 

Clip Kessler We used to live in a world of trials. Now nobody wants to try to everybody wants to do everything on the papers.

 

Clip I go to trial, Your Honor.

 

Clip I miss it, too. It’s a lot of fun, isn’t it?

 

Clip It sure is.

 

Clip Yeah.

 

Clip More fun than here.

 

Clip I expect you had fun here today, too, though. There’s.

 

Clip There’s only one judge at trial. Yeah. Touché.

 

Melissa Murray And along similar lines, we wanted to draw attention to this statistic from friend of the Pod, Steve Vladeck, SCOTUS newsletter, One First Street, which you should subscribe to if you are not already subscribe. So Steve notes that the 13 signed decisions and argued cases so far this term have come from six authors. Kavanaugh, who authored for Sotomayor, Gorsuch, Barrett and Jackson, who have authored two a piece, and Justice Kagan, who’s authored one. Those are the six junior most justices by seniority. We have had no opinions yet from the chief justice. Justice Thomas or Justice Alito, who likely received at least the original majority assignments in the lion’s share of the bigger and more divisive rulings that are coming. So, yikes. Buckle up, buttercups. It’s about to get real. Ooof.

 

Leah Litman We will talk about our plan for covering whatever it is the court has in store for us at the end of this episode.

 

Melissa Murray We also got a really big grant for cases that the court will hear next term about when, if ever, there might be a First Amendment violation for a public official who blocks users on social media and hmmm.What to say.

 

Leah Litman I think this could be a one. Full oral argument. I’m extremely excited to hear from reply guy Sam Alito, whose writings reveal he is extremely online since I know he will have some thoughts about this one.

 

Kate Shaw This is a fascinating series of questions that arose in a case filed against Donald Trump that got decided in the district court in the Second Circuit, but never in the Supreme Court. And we have obviously much lower level officials who have blocked individuals on social media in this case. But I, too am very excited about this oral argument and the case in general.

 

Leah Litman Do you quote tweet and sub tweet?

 

Melissa Murray I mean, they’re going to get such an education and.

 

Kate Shaw There will be some good questions. There really will.

 

Melissa Murray They’re so good.

 

Kate Shaw In actually good news, which is so rare. We learned last week that the Oklahoma attorney general is going to recommend clemency for death row inmate Richard Glossip. He’s a death row inmate whose case we’ve covered at various junctures on the show. He was before we want the show, he was the petitioner in Glossip versus Gros, a 2015 case about methods of execution. There have long been questions about his potential innocence, and it now sounds as though the attorney general of the state, after having taken a careful look, is recommending clemency. We don’t know if that will actually result, but it is a very significant development.

 

Leah Litman We also wanted to chat about the plan for the remainder of this season of the podcast as the court finishes up the term. So next week we will have our first ever listener grab big episode during which we will answer questions such as Does Leah know she has vocal fry? And have you ever considered not referring to justices by their first names or as Coach Kavanaugh, which is extremely disrespectful. So stay tuned for that and more.

 

Melissa Murray The short answer is no.

 

Leah Litman No, we’ve considered it, we’ve just rejected. But so you said you should definitely still tune in. That was just a teaser.

 

Melissa Murray After the grab bag episode, we did want to explain the plan for the podcast, since we know we’ve gotten some new listeners since last season. So we want to just let you all know what’s going to happen. So going forward, our episodes aren’t going to be tied to the court’s calendar because they don’t have a calendar anymore. They’re not hearing oral arguments. And so we’ll be covering instead decisions as the court issues them. But here’s the thing. We have no idea when they will issue decision. So depending on what happens, there may be some occasions for the fun and exciting emergency pod drop. So it will be four really big decisions. We may do some emergency podcasting and drop some emergency episodes on you on top of our regular Monday ones. So this is the part of the year where you just get like a double dose of strict scrutiny sometimes.

 

Kate Shaw So there may be some double dose weeks, but depending on the pace of opinions, we may also release some deep dive episodes that are kind of interspersed in there. So if the court spends a couple of weeks between now and the end of June without issuing a lot of opinions, we may release some episodes that we’ve got recorded with some incredible guests that are basically in-depth conversations about books related to the Federalist Society, the religious rights efforts to take over the courts, the shadow docket, the civil rights struggle, struggle for black freedom and equality in the lead up to the Civil War and so much more. So again, we’re going to see what the court gives us and we will in turn give you content that is responsive to what the court is giving and the periods when the court is a little bit more quiet.

 

Melissa Murray And this is the part of the episode where we’re going to do a couple of shout outs. So we have some really great listeners and we’ve been on the road to lots of different places. You know, we went to Hawaii, we’re still thinking about Hawaii, Aloha Friends in Hawaii, but there are also friends of the pod elsewhere and we wanted to give them some shout out. So we wanted to offer a very special, strict scrutiny. Congratulations to Miss Helper’s senior class at Trinity in New York City. They are avid listeners of the POD and we just want to wish them well as they get ready to graduate from high school and to make their way in the world. They’ve had a terrific teacher in Rachel Halper and we really appreciate her efforts to make sure that her students know about the court and all the stuff that they’re doing.

 

Leah Litman Also wanted to give a shout out to George Trekkie, who listens to the show and whose daughter is a student, an economics student, at the University of Michigan.

 

Melissa Murray Before we go, we also have a big announcement from our friends at Crooked Crooked Media is venturing across the pond with a brand new podcast, and I’m so excited about it. Pod Save The UK. This hilarious and insightful new podcast is going to be your go to source besides me for everything concerning the UK and its politics. The podcast will be hosted by comedian Nish Kumar and journalist Coco Khan, and it’s everything you love about Crooked podcasts except with a little British twist. It’s going to be fantastic. So from strikes to scandals, they are going to cover all of the topics that matter, and it’s from the minds of Crooked Media and our friends at Reduce Listening. So you will not want to miss a single episode of Pod Save the UK. So subscribe now wherever you get your podcasts.

 

Kate Shaw And Melissa, you’ll let us know when you have your first guest appearance on that pod. Right?

 

Melissa Murray I mean, like I don’t understand why no one has called me about the coronation. I’m so ready. I’m like.

 

Kate Shaw Bookers. Get on this.

 

Melissa Murray On it. I’m here. I’m ready.

 

Kate Shaw Podcast, television, radio. Melissa will take YOUR CALLS.

 

Melissa Murray I can do history. Like I remember the 1953 coronation. Not that I was there, but I’ve studied it in depth.

 

Kate Shaw This is not a drill. Seriously, Melissa Murray needs to be on your airwaves about the coronation.

 

Melissa Murray Put me in Coach Kennedy. Put me in coach Kavanaugh. I’m ready to play.

 

Kate Shaw She was born ready. And with that, don’t forget to follow us at Crooked Media on Instagram and Twitter for more original content hosts takeovers and other community events. And if you are as opinionated as we are, consider dropping us a review. Guys, there are some mean reviews You need to drown out the voices of the haters.

 

Leah Litman We may also be covering some of these during our listener grab bag episode.

 

Kate Shaw So there’s value in mean reviews. But I’m just saying if you have listened this far, you are a listener and you could write a review that helps right the ship of our reviews because there are some crazies in there and.

 

Leah Litman There are.

 

Kate Shaw And we need to we need to right the balance in our reviews.

 

Melissa Murray Bret you don’t have to write a review.

 

Leah Litman Or Sam. Strict Scrutiny as a Crooked Media production hosted and executive produced by me, Leah Litman, Melissa Murray and Kate Shaw, produced and edited by Melody Rowell. Audio Engineering by Kyle Seglin. Music by Eddie Cooper. Production support from Ashley Mizuo, Michael Martinez and Ari Schwartz and digital support from Amelia Montooth.