TRANSCRIPT

 

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, they’re going to have the last word. She spoke, not elegantly, but with unmistakable clarity. She said. I ask no favor for my sex. All I ask of our brethren is that they take their feet off our necks.

 

Melissa Murray 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 Melissa Murray.

 

Leah Litman I’m Leah Litman.

 

Kate Shaw And I’m Kate Shaw. And on this episode, we’re going to recap the arguments the court heard last week before turning to some court culture, including the latest antics out of the Fifth Circuit, which truly can’t stop, won’t stop. We will also cover the oral arguments in the Trump immunity case from last week in the D.C. circuit, and then next week, we’re going to spend the lion’s share of our time recapping the arguments in the cases challenging Chevron.

 

Melissa Murray First up are the recaps. And as Kate said, we had oral argument this week in a number of cases, including FBI versus Fikre. This is the case about whether courts can continue to hear challenges to the no fly list when the government removes the plaintiff from the no fly list after the plaintiff filed suit challenging their inclusion on said no fly list. So recall, the plaintiff here says he was placed on the no fly list because of his connections to a mosque, and was told that the government would take him off of the no fly list if he became a government and form it. And I have to say, it’s not clear that the court is actually going to do what it normally does, which is totally messed something up here. It might actually maybe do the right thing.

 

Kate Shaw It might do okay. And that may well, because this is the Biden administration maintaining the no fly list, which in this case means that at least some of the Republican justices partizan impulses may happen to align with the interests of justice, which would mean a win for victory. But whatever the Republican appointees are going to do here, it’s really the Democratic appointees who are on fire. During this argument, Justice Sotomayor had a banger hypothetical that opened the argument and really captured the issues in this case and some of the key problems with the government’s position. So let’s play that clip here.

 

Clip Can I give you a hypothetical? He does a fundraiser for his mosque. He has no idea that the mosque is under suspicion. You put him on the no fly list. You now give him this declaration that says on the that we’re not going to put you on the no fly list for, um, anything that’s happened in the past. Tomorrow he holds another fundraiser. For the same mask. Can you put them back on the list? Under this declaration. So I. Again, I would want to know more about. Exactly. There’s nothing more. You put him on because he did a fundraiser. For this mosque. Will this declaration stop you tomorrow from putting him on the list for doing a fundraiser for that mosque?

 

Leah Litman I just think this hypothetical conveys the issue so clearly and so well, because it reveals why. We just don’t know whether the plaintiff will be placed on the no fly list. Again, if the government isn’t willing to say anything about why they put this person on the no fly list in the first place, and if the plaintiff says it’s because he attended a mosque, then we don’t know if they’ll put him back on the no fly list. If he does stuff that is perfectly, totally fine everyday. Stuff like going to a particular mosque. Justice Kagan reference Justice Sotomayor’s hypothetical, also underscoring its significance to the case in this way.

 

Clip I mean, Mr. Joshi, you’re arguing the merits of the case. You obviously think that you have good reasons for putting people on the list and, um, uh, uh, you know, on the other hand, the suits, the whole grab. And then of the complaint is that you were not using good reasons, and we can’t decide the merits of the case. I think that Justice Sotomayor’s hypothetical is an extremely important one, because it really asks, what is this declaration commit you to? The declaration clearly says that you can’t use any facts that you, uh, know of now. So any facts that have happened in the past cannot be used to, um, to read list. Um, Mr. Sacra, um, but the question that she’s asking is if he does the same kinds of things, if he meets with the same kinds of people, if he associates, uh, with the same kinds of organizations, can those same kinds of activities that put him on the list before put him on the list again? And I do think that you have to give a kind of yes or no answer to that question so that we can figure out what this declaration doesn’t, does not commit you to.

 

Kate Shaw And that intervention led to this response from the government, which really seemed to undermine the government’s argument that the case was moot and the plaintiff wouldn’t be placed on the no fly list again. So here it is.

 

Clip Yeah. So if you want a yes or no answer, my answer is yes, because. Yes what? Yes. If you want. Yes, you can put him back on for the same kinds of activities or the same kinds of yes.

 

Kate Shaw So just to make this clear, this undermines the government’s case because it implies the government might put him back on the list for the same reasons they put him on the list in the first place. Reasons the plaintiff says are unjustified and just regular activities like attending a mosque or hanging out with friends and associates.

 

Melissa Murray But even leaving aside that their ordinary events, the fact that the government cannot say conclusively that he will not be placed on the no fly list for doing these things, just seems to violate the very high bar that exists for the voluntary cessation doctrine.

 

Leah Litman Yeah. And, you know, as some of the justices made clear, the government can’t responsibly commit to saying we would never place someone on the no fly list in the future, depending on what they did, if circumstances change. But again, that just seems to take us right back to the high bar for voluntary cessation. And it seemed to me like there is this asymmetry to putting someone on or off the no fly list that I think this might be getting at. So the government took him off the list. And of course, people would think the government won’t take someone off the list if the government views them as a threat. That is, the government wouldn’t necessarily mute a case just because someone challenged the no fly list if they think that person is a threat, but that doesn’t mean the government won’t put someone on the list or back on the list. If there isn’t a good reason to put them on the list, that is, it’s not clear they wouldn’t put someone on the list for a court would say doesn’t present a threat or, you know, doesn’t belong on the terrorist watch list.

 

Melissa Murray This is all to say that this case presented what someone like Derek Bell might called interest convergence, which is to say that it provided the court’s conservatives with an opportunity to own the Biden administration, while also vendicating.

 

Leah Litman Is that what Derek Bell meant by interest conversions?

 

Melissa Murray Um, actually, yes, I think so.

 

Leah Litman Right.

 

Melissa Murray Um, I actually think so. Gives the court’s conservatives an opportunity to own the Biden administration while also providing the court’s liberals with a rare opportunity to vindicate the rights of an underrepresented minority. And because that interest convergence was happening, it seemed that, naturally, Justice Samuel Alito would get a little squirrely and try to suggest a different way for the plaintiff here to lose by suggesting wait for it that he doesn’t have standing. So Justice.

 

Leah Litman I have to say, this is, you know, I, I go through the different Alito nicknames, but this is an oldie but a goodie – Peak-lido proposing a different way for a plaintiff and under a civil rights plaintiff, underrepresented minority, or a criminal defendant to lose if it looks like the court is going to say they will win.

 

Kate Shaw Yeah, it’s not Troll- Alito. It’s not. It is just peak. It is him at his most Alito.

 

Leah Litman Peak-lito. Um, and Justice Jackson went at this suggestion that the plaintiff didn’t have standing. Hard in subsequent questioning. You know, it’s clear the plaintiff had standing when they filed the case when they were on the list. So she had this exchange with the federal government’s lawyer.

 

Clip All right. Let me ask you about the standing question real quick. Um, does the government dispute that Mr. Fikri had standing at the time that he filed his suit in 2013? No. All right, so he did. And don’t we ordinarily assess standing at the time the person brings the lawsuit?

 

Kate Shaw I do say that exchange made me think that, you know, taking some distance from colleagues over this winter holiday has not necessarily improved the Alito Jackson relations. No, no, just the sense I got. But.

 

Melissa Murray I don’t know Kate.

 

Kate Shaw Generally.

 

Melissa Murray I think they might be getting a summer share together at Long Beach Island. I think this bodes well.

 

Kate Shaw Well or spring break as sooner. Yeah. Who knows? Um, but you know, the way they talk to each other through advocate suggested to me that that is not that likely to happen. And kind of more generally, while it seemed like the case went well for the plaintiff, at one point, Justice Kavanaugh told the government that he was sympathetic to their argument, even though he actually didn’t sound like it during the questions he was posing. At other points, both Justice Kagan and Justice Gorsuch suggested that something like a skiff that is a sensitive compartmented information facility for looking at classified documents, might be a way for the court to see why the government put the plaintiff on the list, and when or under what circumstances they might do so again, to really assess the likelihood of occurrence. But the government, not surprisingly, resisted this suggestion. But in general, as we started with the Democratic appointees, and Justice Gorsuch did seem very much to be with the respondent. And I think the big question is, is there a fifth vote for the respondent? As Melissa suggested, the outset, it does feel to me like, yes, I’m just not totally sure of where that vote or votes are coming from.

 

Melissa Murray It comes from the free exercise crowd for sure, because this guy put on the list were very protective of religious freedom.

 

Leah Litman And discrimination against religious minorities.

 

Kate Shaw Yeah. For all.

 

Leah Litman For all, for all.

 

Melissa Murray This is going to be. Like when we start talking about it seems it’s only for Christian evangelicals to say, but what about Fikre? We’re gonna be like, you’re right, you’re you got us. You owned us,.

 

Leah Litman Owned. You owned us.

 

Melissa Murray Woo. The court also heard oral arguments in Sheetz versus County of El Dorado, which we previewed on our last episode. This is the case about whether permit exactions can be challenged as takings. So here, California law requires property developers to pay a fee that the legislature says represents the increased burdens on public roads from development projects.

 

Leah Litman And the court seems inclined to resolve only the narrowest possible version of this question, which is also now a question on which the parties agree. And that question is if these exactions can be challenged as takings when they are enacted by the legislature into law, both the.

 

Melissa Murray County and the plaintiffs lawyers agree that the exactions aren’t immune from challenge for the reason the court below said they were, namely because they were enacted into law. Justice Kagan and Justice Gorsuch both suggested that there was, quote, radical agreement on this issue, and the county’s lawyer conceded that there was. So let’s play that clip.

 

Clip Mr. Grant, I want to follow up on Justice Gorsuch, his idea of, um, radical agreement. And I want to give you, um, suggest what it is that there is radical agreement on and what it is that there’s not radical agreement on and see if you agree with me. So there is radical agreement on is that you don’t get a pass from unconstitutional conditions analysis just because you’ve passed generally applicable legislation. And that’s of course, true and unconstitutional conditions analysis generally. And so to what’s true of unconstitutional conditions analysis in the property area. Um, if there has been a taken and that taken is being leveraged in the permitting process by generally applicable legislation, there is no pass just because that’s the mechanism that’s being used. So first let me ask you if you agree with that I agree. Okay.

 

Kate Shaw But what there wasn’t radical agreement on were all of the other issues in the case, which Justice Gorsuch described at one point as a can of worms. And these issues are important to whether the permit action can be challenged, and they will matter to whether this permitting action is unconstitutional. We will lay out what those other issues are, but it actually seems like the court is not going to wade into those issues or resolve them. So one issue is whether this is a taking or is instead a tax or a use fee because of how it’s structured and what it’s for. Justice Gorsuch suggested that this was an interesting question, and Justice Jackson explained why it’s an important question.

 

Clip So that’s why I asked you, why is it unconstitutional for them to impose a fee, a user fee, a toll? What your argument is suggesting that every toll is, is a taking that every property taxes are taken.

 

Melissa Murray As Justice Jackson is suggesting. The plaintiff’s theory here could open up a broad swath of laws and regulations to some kind of reasonableness review in the federal courts. And maybe that’s undesirable, because the federal courts are not necessarily so reasonable right now. And I have to say, she’s one sharp cookie here. Like, this is definitely a good observation. And don’t just take my word for it. Listen to what this guy had to say.

 

Clip I made a commitment to you to nominate the first black woman, and Jim has already talked about it on the Supreme Court. And by the way, she’s smarter than the rest of these guys. Oh, and the aim is to calm you down, Jackson. But guess what? She knows what she’s doing.

 

Melissa Murray Accurate debt gift POTUS.

 

Kate Shaw He was not wrong. So another remaining issue is whether legislatively enacted schemes that lump people into broader categories get the same kind of proportionality analysis as individual ad hoc discretionary permit exactions. Here is Justice Kagan explaining that.

 

Clip Even if you assume that that unconstitutional analysis comes into play, it might look very different from what Nolan Dolan analysis looks like just because Nolan and Dolan were, um, uh, uh, focused on individual parcels, individual property owners. And this is a general scheme, and it would be very difficult to apply Nolan and Dolan analysis literally to a general scheme so that there might be ways in which Nolan Dolan analysis becomes something that, you know, really looks different in application. And I think Mr. Beard says, no, not really. And you say, yes, really? Is that correct? That’s also correct.

 

Leah Litman But it seems that the court might leave these cans of worms for another day, as Justice Gorsuch suggested here.

 

Clip I understand that, but that’s all. That’s the first can of worms, which we’re not getting. I mean, we could say that this is a tax and that’s a different. But this is a second can of worms that that we’re talking about now, which is legislation versus specific. And I guess I’m not sure where we draw that line.

 

Leah Litman It seems the justices are just too tired from deciding whether there will be accountability for January 6th, and whether hospitals can provide abortions necessary to stabilize pregnant women who are dying, and whether domestic abusers can be disarmed, and whether the administrative state continue to exist. And you get the picture.

 

Melissa Murray Leah, you sound so shrill. How about you cut them some slack? You should smile more.

 

Leah Litman I know they’re trying.

 

Kate Shaw They’re working very hard.

 

Leah Litman It’s it’s like Ryan Gosling saying in, I’m just can. I’m just can. And that’s enough. I’m great at doing stuff.

 

Melissa Murray Hey, man.

 

Kate Shaw Uh. All right. So we will see if they can muster the energy to say much of anything in this case. Um, as Leah just alluded to, they have.

 

Leah Litman Oh, please don’t, by the way, please don’t.

 

Kate Shaw Keep em close.

 

Melissa Murray Keep that can of worms taken on a private jet to Alaska. Catch some fish. Catch some salmon.

 

Kate Shaw Excellent callback. Melissa. As always. Okay, so let’s move on. Uh, to Arizona versus Smith. Another case the court heard argued last week. And that is the important confrontation clause about whether and when a witness for the state can rely on the testimony of another expert. Here, the petitioner, who, supported by the federal government, argues that the state’s witness relied on a non testifying expert’s testimony for what that expert testimony actually said. That is, they just essentially read it into evidence and acted as if the testimony was true, even though the person who authored the actual testimony was not on the stand and thus could not be cross-examined. So the court in Williams, as we mentioned in our last episode, had narrowly rejected the idea that the state could do this and just again have a witness like smuggle in the testimony of someone else. But the court said witnesses could rely on non testifying expert materials to form an expert opinion, but not to assert the non testifying experts materials were themselves true.

 

Melissa Murray We also noted that in Williams, Justice Thomas continued to press his, how shall I say it, idiosyncratic views on the confrontation Clause, which maintained at the Confrontation Clause, was not implicated by sufficiently informal statements. So the court’s existing Confrontation Clause jurisprudence says that evidence implicates the Confrontation Clause based on the primary purpose of the testimony in evidence. And because we were truly living in what seems to be the absolute worst of times, some justices seem to be saying, let’s just say that the law is what Justice Thomas says. It is so real Fifth Circuit energy here. And it all started with a clip from, you guessed it, Coach Kavanaugh.

 

Clip On the question of what is testimonial? Um, I guess one question I have, which goes back a ways, which is what test to apply. And so I just have a question. Why shouldn’t, uh, we adopt the test that Justice Thomas has been advocating, uh, in his opinions, uh, since white and under Justice Thomas’s test, under that test about formality and solemnity. Uh, why don’t you lose here?

 

Leah Litman It is quite interesting that they are also occupying this fantasy Scotus universe like the Fifth Circuit pretends the Supreme Court is Robert Bork and Clarence Thomas and Brett Kavanaugh is like, yeah, yeah, those guys are on to something.

 

Melissa Murray Um, I mean, the fantasy basketball team. Fantasy seems right.

 

Leah Litman Exactly. The other justices on the actual Supreme Court, the real one, not the fantasy one. They were not amused by this. So just a. Sotomayor suggested. Why change the law here? There’s no reason when the petitioner, that is, the defendant prevails under either approach. So here she is.

 

Clip This in this report. This is very close to ball coming, isn’t it? Our view not to Williams. Williams. Um, the report was not signed. Um wasn’t admitted into evidence. Nothing else. Correct. That’s correct here. Like in Bill coming, which Justice Thomas signed on to. Um, it was signed even though it wasn’t an affidavit in its traditional sense. The report was signed. That’s correct.

 

Leah Litman And then when the state’s lawyer got up, both Justice Sotomayor and Justice Kagan just went 911, we’d like to do a murder on him, hammering him on the fact that he hadn’t even made this argument to the courts below and therefore had forfeited it, and the Supreme Court should not review it. Here is Justice Sotomayor.

 

Clip Counsel, can I go back to one point and that was your argument that this is non testimonial. The government says that’s not unclear. And to be frank with you, I don’t see it argued anywhere below and anywhere a trial actually. Um you didn’t I don’t see it anywhere in your stage briefs. Um, in the courts below. I see it in your red brief and you argue it here, but you sort of have a footnote on that argument, and that’s all. I, I don’t know of any time that we’ve ever addressed the question that wasn’t raised in the CERT briefing. Our position here wasn’t raised for courts below. I was raised in a footnote, at best in the red brief. Isn’t the entire premise of the question before us that the information was testimonial?

 

Leah Litman And here is Justice Sotomayor tag teaming with Justice Kagan on the same.

 

Clip Have we ever had a case where a mere citation preserves such a consequential argument? Has overturning precedent? Where did you point out that this, uh, that all components of this report were not testimonial, testimonial?

 

Clip And candidly, Your Honor, we didn’t further develop the argument in the Arizona Court of Appeals. Oh, there was.

 

Clip So now come here or in the trial court, am I right?

 

Clip No. I mean, I don’t think that there was any reason to discuss it in the trial court, given that the the trial court’s ruling was what it was. On the other question. Yeah.

 

Clip And that I mean that on in both the Arizona courts and then also in your in, in, in your, um, the filing that you filed in the Arizona Supreme Court, although they never took the case, but in all these filings, everything. What’s about the truth of the matter asserted.

 

Kate Shaw That was really satisfying. I mean, this sort of like then there was a kind of pathetic attempt to just be like, well, there was a one citation in all the pages to the concurrence, and they’re like, I’m sorry. And that preserves this argument how it was. Yeah, it was um, that was they were they were just like, really on fire.

 

Melissa Murray I mean, it was so much girl power that seemed like even Justice Barrett was like, can I get it on this guy? So she did say to the lawyer, your state didn’t ask us to overrule our prior cases, which seemed like an important intervention to make.

 

Leah Litman Right. Right. Um, you know, some predictions. It seems like we are on course for a narrow win for the petitioner, who is the defendant. And that will say some of the stuff that the testifying expert relied on was testimonial, and the testifying expert used it impermissibly. That is just saying it was true. Some justices might write separately to suggest they’re open to revamping the court’s Confrontation Clause jurisprudence entirely, but might not do so in this actual case.

 

Melissa Murray But that’s actually a really good point, because, as you said, Leah, it seems like the petitioner defendant might win under either scenario. So maybe you don’t even have to take this case, but it does provide those who are interested in rewriting the confrontation tores jurisprudence with an opportunity to issue an invitation to those who would prefer a different orientation.

 

Leah Litman Indeed.

 

Leah Litman [AD]

 

Kate Shaw So we have a lot of court culture to cover. So we are just going to briefly mention a pair of cases the court will hear argued this week, because we do want them to remain very high on everyone’s radar. And the next week we’re going to spend a lot of time talking about the oral arguments. So those two cases are the two cases about the future of a 40 year old precedent, Chevron, that, in essence, gives agencies the lead role in interpreting ambiguous statutes. Toppling Chevron has been very high on the conservative legal movement’s wish list for a very long time, and they’re very close at this point to being able to check that item off the list, along with Reinstituting forced pregnancy and eviscerating firearms regulations. The conservative legal movement is very hostile to regulation, which means hostility to agencies and agency power, and Chevron has long been understood to give agencies power the power to fill in gaps when Congress legislates, as it often does in broad or general or ambiguous terms. But this effort to topple Chevron would strip that power from agencies and instead hand it to this hyper conservative Supreme Court, which would clearly mean less regulation, less robust regulation, less meaningful regulation for all of us to live under.

 

Leah Litman So we talked about this specific statutory scheme at issue over the summer after the court granted cert in one of the two cases that will be argued this week, Loper, bright versus Raimondo. The court subsequently added to its docket the chef’s kiss, perfectly named relentless versus Department of Commerce. Um.

 

Melissa Murray The Loving versus Virginia award goes to the parties behind relatively versus departmental.

 

Leah Litman Exactly. And they likely took relentless because Justice Jackson is recused in Loper bright since she was originally on the D.C. circuit panel that heard arguments in the case and relentless.

 

Kate Shaw Or did they take it because they wanted the name? Because they were like it doesn’t matter?

 

Leah Litman It’s a both and situation. Relentless is a case out of the First Circuit so the full court can participate in the case? Um, and the court will be hearing the cases separately, but will presumably decide them together, just as it did in the affirmative action cases last term out of Harvard and USC when Justice Jackson recused in the Harvard case.

 

Melissa Murray At the center of both cases is a statute authorizing a federal agency, the National Marine Fisheries Service, to require commercial fishing vessels to, quote, carry federal observers on board ships. And the question is who bears the cost of these observers? The statute doesn’t exactly say who should bear the cost of the observer, but the agency has said that in in some circumstances, the owner of the boat where the observer is traveling is the one to pay for the observer services. The plaintiffs have. Two asks here. The first, which is enormous, is that the court overrule Chevron. But the more narrow ask is that where there is a statutory scheme that grants some powers to the agency, what the petition calls, quote, controversial powers explicitly under some circumstances, that Grant would negate a finding of ambiguity about whether those same powers exists in other circumstances. So this narrower route would basically entail limiting the force of Chevron that is, limiting the circumstances in which Chevron would apply by limiting the circumstances in which the statute is quote unquote, ambiguous, but not actually overruling Chevron outright.

 

Kate Shaw So, again, as we have already said, we’re going to save most of our commentary on the case for after the arguments. But I just wanted to flag one thing now, which is even if Paul Clement and Ramon Martinez or whoever, I’m actually not sure who’s arguing. Relentless, although he is on the brief. But the parties arguing against Chevron may make a persuasive case that this regulation is unjust or even a bad idea. Um, that’s actually not what’s at stake here. This case is about much, much more than this regulation. It is about everything from food and drug safety and efficacy to how overtime pay gets calculated to the safe storage of literal nuclear waste. And I think it’s really important to not lose sight of that as we go into the arguments this week.

 

Melissa Murray All of this is true. But again, most of this is going to be filtered through a libertarian lens of my freedom. Right? Like my freedom to take my boat out and fish the eff out of all of the water. I mean, like, this is a case that’s about sustainability as much as it is about regulation. Like the reason why the observer is on board is to prevent overfishing in sensitive areas where populations of fish could be susceptible to being overly depleted. And that’s why they have the monitors. But instead, it’s all being presented as this assault on family fisheries when you know, it’s actually an assault on big commercial fisheries. Um, so there’s a lot of Lochner Energy here. I mean, Lochner, too, was about big baking greats like Nabisco, but instead it was sort of filtered through the lens of Joseph Lochner in his Utica bakery.

 

Kate Shaw Absolutely.

 

Leah Litman And you made the predictions about the like, liberty vibe that is going to be present in the argument. I want to suggest two kind of predictions. One is you remember the major questions argument where the chief justice and Sam Alito insisted on the solicitor general answering the question about whether. Student debt relief was fair. I just feel like we are veering toward some sort of weird temper tantrum by one of the Republican appointees, demanding to know why it is fair to do this to small businessmen and fisheries, and invoking Coda esque facts like, I feel like that’s going to happen. And then second is, you know, the limitation that these groups are proposing on Chevron is, to my mind, just like a real articulation of the major questions doctrine. You know, this idea that you can’t do something controversial, aka something that Republicans don’t like. That means it is presumptively illegal, is just nuts. But again, like once you open that door in the major questions case, like why not just go the full however many yards? I know football since I teach at the school that won national championships. That was my efforts too.

 

Kate Shaw I can’t believe it took you like half the show to work that in there.

 

Melissa Murray It took a long time to get to that. I was expecting it a lot earlier. That’s why I was late.

 

Kate Shaw That was great. When we. We had a text exchange on Monday night and I was like, Leah usually go to bed early and it was 11:00. And Leah wrote back immediately and I was like, wait, what?

 

Melissa Murray Oh yeah, Michigan was out there winning.

 

Kate Shaw Quite a night.

 

Melissa Murray We were actually very happy for you in our household. Leah. We’re glad for Michigan. Thank you. I was going to say that there’s a really good article published by two professors at the University of Michigan that talks about how the major Questions doctrine basically allows conservatives and the conservative wing of the court to gin up controversies so that they can call things major questions like, do you know that your colleagues who wrote that letter anyway?

 

Leah Litman Uh, so it was me.

 

Melissa Murray Oh. It’s you. Hi. It’s me. Hi.

 

Leah Litman Yeah. It’s. Yeah, yeah. It’s me. Hi. I’m the problem. It’s me. Uh, in the Virginia Law review with with Dan Dick and the new major questions doctrine. If listeners would like to check it out.

 

Kate Shaw It is indeed an excellent article, and I don’t know if there is a follow on in the works, but what you were just saying, Leah made me think, you know, there’s no plausible way to suggest that this little fishing regulation is a major question, as they have defined it. So instead they have sort of pivoted to not the bigness but the controversial ness, which is one of the things, I’m sure that you guys identify in that article as being part of major. But also they say it’s, you know, the price tag is high and things like that. And those are very hard to defend in the context of this very small regulation. So they may be just recasting it in a way that allows them to use the same energy with respect to every single regulation. Yeah. Excellent. What could go wrong?

 

Melissa Murray I like your use of recasting. That was like good fishing. Fishing parlance. Yeah. She do that on purpose.

 

Kate Shaw Thanks I actually did. And and you know what I have to say I Justice Ginsburg, does that a lot, use a lot of fishing puns in her Yates opinion, the undersized grouper, you know, document destruction case. And I don’t love it there. So I feel like one has to be careful with one’s nautical and fishing puns.

 

Melissa Murray Nautical, but nice.

 

Kate Shaw In this context.

 

Melissa Murray Yeah. Okay. We have a real time.

 

Kate Shaw You can just do it much better than I can. So yeah, we got the. They do. The court does love that. So I’m a little I’m a little worried that we’re going to have a lot of I depending on who has what opinions in this case. We may see more of that here although with way way higher stakes.

 

Melissa Murray All right. Let’s shift gears from nautical by nature to actual naughty by nature. The DC circuit heard oral argument in the case where Donald Trump is arguing that he is immune from criminal prosecution and uh, you know where to start, where to start. So first of all, this case arises out of January 6th. Former President Trump is arguing that he is immune from prosecution for the events arising out of January 6th because either a the president of the United States cannot be prosecuted for stuff he does in office or stuff that he does pursuant to his official duties, or unless he is actually been impeached and convicted for doing those things. So these are some of the various arguments being bandied about in the DC circuit during the January 9th oral argument. The really big, explosive moment, if you can call something explosive at the very decorous D.C. circuit was this exchange between Judge Florence Pan and Donald Trump’s lawyer, where the lawyer appeared to concede that, well, you know what? I’m not going to spoil it for you. Let’s just hear it.

 

Clip I asked you a yes, no, yes or no question. Could a president who ordered Seal Team Six to assassinate a political rival who was not impeached? He’d be subject to criminal prosecution.

 

Clip If he were impeached and convicted first.

 

Melissa Murray Yes, that is Donald Trump’s actual factual lawyer saying that Donald Trump would be immune from prosecution if he used the military Seal Team Six to assassinate a political rival. Unless, of course, he had been impeached in the House and convicted in the Senate for doing so. That’s the only way in which he might be subject to prosecution for using military forces to assassinate a political rival.

 

Leah Litman And I have to say, like if he is using military forces to assassinate political rivals, do you think the House and Senate is going to impeach and convict him? Like there might arguably be a little bit of a deterrent there, um, for that particular mechanism. But anyways, when you think about it like this claim by his lawyer is actually not so far removed from what Trump himself had floated a few years back.

 

Clip They say I have the most loyal people. Did you ever see that? Where I could stand in the middle of Fifth Avenue and shoot somebody, and I wouldn’t lose any voters, okay. It’s like, incredible.

 

Kate Shaw And actually, you know, it wasn’t just the Trump clip. It was that same clip basically appeared in the argument in the Second Circuit. And I remember being in the overflow room in the Trump versus Vance case, the case about access to the financial records of Donald Trump in the possession of his financial accounting firm. And Will Consequay,  who was doing the argument in the Second Circuit, basically said something not so different from the argument in this case, which was, you know, there it was a question. There were questions about prosecuting a sitting president, which wasn’t at issue anyway, but those were what the questions were sort of trying to probe. And he basically said, yeah, there’s just nothing one can do. Even if the president shoots someone on Fifth Avenue, because that was what was in the hypo. So that, you know, at least they have been consistent.

 

Melissa Murray Well it had real Frost / Nixon energy. I mean, like it was in that interview with Frost where Richard Nixon said, it’s not illegal if the president does it. And basically Donald Trump has taken that to the bank. I mean, Richard Nixon walked so Donald Trump could run.

 

Leah Litman This is now his lawyers litigating position. And Judge Pan reiterated it again, just because it is so outlandish.

 

Clip I’ve asked you a series of hypotheticals about criminal actions that could be taken by a president and could be considered official acts. And I’ve asked you, would such a president be subject to criminal prosecution if he’s not impeached? And your answer, a yes or no answer is no.

 

Clip I believe I said qualified yes. If he’s impeached, convicted. First time we didn’t.

 

Clip Say question was okay, so he’s not impeached or conviction convicted. Let’s put that aside. You’re saying a president could sell pardons, could sell military secrets, could border seal Team Six to assassinate a political rival?

 

Kate Shaw So this kind of needs to be understood both in the specific context of this case, which, of course, involves attempts to interfere with the peaceful transfer of power, including threatening harm to political officials who participated in the peaceful transition of power. That was what the calls to hang Mike pence were about. And it should also be understood in light of reporting about the rising levels of political violence. On the last episode, we mentioned the swatting of Judge Chutkan in and the Maine Secretary of State, as well as the man firing on the Colorado Supreme Court and taking a guard hostage. Since we recorded, we have learned that Jack Smith himself was the victim of a swatting attempt back in December. And just last week, there was also reporting about a bomb threat called into the home of Judge Engoron , who’s presiding over the civil fraud trial in New York City. So none of this is abstract. It’s all real.

 

Melissa Murray The Washington Post also did a story detailing rising threats against political officials, including against the Wisconsin Supreme Court. After that, court rejected efforts to overturn the results of the 2020 election in Wisconsin. And the piece quotes Justice Jill Karofsky as saying, quote, I believe people when they say that they want to hurt us or kill us, I don’t think they’re idle threats, end quote. And again, these threats have continued since that. And so this is not hyperbolic or hypothetical. This is actually happening.

 

Kate Shaw Okay. So back to the Trump arguments in the DC circuit on the specific legal arguments. Judge Pan made clear that since Trump was conceding the president’s can be impeached in some circumstances, the only issue in this case is whether there can be prosecution before impeachment and conviction. So let’s play that clip here.

 

Clip Given that you’re conceding that presidents can be criminally prosecuted under certain circumstances, doesn’t that narrow the issues before us? To. Can a president be impeached? Um. I’m sorry. Can a president be prosecuted without first being impeached? Um, and convicted of all of your other arguments seem to fall away. Your separation of powers, arguments fall away. Your policy arguments fall away. If you concede that a president can be criminally prosecuted under some circumstances.

 

Leah Litman And you know, once again, just to underscore the big explosive, if you will, news out of this argument was the shocking concession by Donald Trump’s lawyer. It was so shocking the government lawyer came back to it. You know, at the end of the case.

 

Clip And frankly, as I think Judge Pence hypothetical described, I mean, what kind of world are we living in? If, as I understand my friend on the other side to say here, a president orders his Seal team to assassinate a political rival and resigns, for example, before an impeachment, not a criminal act president sells a pardon, resigns, or is not impeached. Not a crime. I think that is extraordinarily frightening future.

 

Kate Shaw I want to just take a minute to talk about this kind of question of impeachment. There was, I thought, a real and significant shift in the arguments made by the Trump team. They initially were just making these really broad, absolutist arguments. A former president can never be criminally prosecuted for things he did while president. So long as they were related in some fashion to official duties. So an enormously broad argument, basically, the civil immunity that has been found with respect to former presidents should apply full force in the criminal context, not something a court has ever accepted, and a very aggressive argument. But actually, the argument did shift to suggest, actually it is possible to criminally prosecuted former president for things they did as president. They just have to have been impeached and convicted first. And the basis for that argument is what’s known as the impeachment judgment clause in the Constitution. And briefly, what that clause says is judgment in cases of impeachment shall not extend further than to removal from office and disqualification to hold and enjoy any office under the United States. But the party convicted shall nevertheless be liable and subject to indictment, trial, judgment and punishment according to law. Basically, the clause is about limiting the potential punishments that impeachment can carry. So all impeachment can do to you on its own is remove you from office and disqualify you from future office holding. And the reason this is in the Constitution, history is pretty clear, is that in England, all kinds of horrible punishments, including literal death, could attach to impeachment and conviction. And in the United States, we were taking a more humane approach. So limited punishment can attach to impeachment. But the Constitution makes clear you can still be subject to ordinary criminal punishment. But Trump somehow sees in this language the negative inference that not only is it okay to prosecute someone after they’ve been impeached and convicted, it is only okay to prosecute someone after they’ve been impeached and convicted. That argument is a textual.

 

Leah Litman That’s because text is for losers. Kate. Right. He’s thinking like big thoughts. Big thoughts.

 

Melissa Murray Conceptual thoughts

 

Kate Shaw This is Galaxy stuff.

 

Leah Litman Yeah.

 

Kate Shaw It is in. In addition to the text in history like as obstacles there is a I think an enormous practical problem, which is that presumably would mean that not just presidents, but all officers who can be, you know, subject to impeachment can be prosecuted. I mean, because they’re all subject to the same impeachment judgment clause, like all the can happen to them as they get fired, but then they can be criminally prosecuted if they did crimes. And there have been over the years, many, many federal officials who have been prosecuted for various kinds of offenses, corruption, bribery, things like that. Most of them were not impeached first. Does Trump think that all of those convictions were unlawful because they weren’t impeached first? I mean, I guess so, but that’s not an argument I don’t think has ever been made or entertained. Seriously. And if that’s what they’re going to go to the Supreme Court with, I actually feel pretty good about Jack Smith’s chances.

 

Leah Litman Well, yeah. I mean, I felt good about Jack Smith’s chances because rejecting these insane immunity arguments buys the court capital to do all of the other insane things they’re going to do this term. And so there was no and it was that’s just kind of I thought about that. And it seems like at least this D.C. circuit panel seems like it was headed for a, I think, likely unanimous ruling against Trump. We’ll see how quickly it manages to do that.

 

Melissa Murray So I agree with you that if this got to the Supreme Court, there would definitely be a ruling in which the court gets to don democracy drag so that it can later go on and issue a bunch of opinions that make democracy even harder. So I think that’s right. Democracy drag to drag democracy. But I do think the fact that we are already having this oral argument in the DC circuit is a tactical victory for Donald Trump, because there are only a couple of roots going forward. Like, you know, this was a delay. So, you know, we will we have this argument on January 9th. I don’t know when we’ll get a decision. I assume it will be relatively quickly, but the decisions could go in a number of different directions. And one option that they seemed to be bandying about was remanding this back to Judge Chutkan to make a decision about whether or not these acts were within the scope or the orbit. The president’s official duties or not, because that’s not something that she decided in the first instance in her ruling below. So that could be remanded.

 

Kate Shaw But you do you think just Judge Henderson was interested in that, too. Did you hear a second?

 

Melissa Murray I mean, but it could happen. It could be a very clean. I mean, it’s you don’t know. Not impossible. It’s not impossible. It could go back to Judge Chutkan again, and then it could go up to the DC circuit again. Any decision of the D.C. circuit might be one that could be then revamped for an en banc hearing by the entire D.C. circuit, and from there could go to the court, which then would have to spend some time deciding if they wanted to review it. So either way, this is a lot of time being eaten up, and there is a March 4th start time for this trial, and it just feels like we’re getting farther and farther away from that March 4th deadline. And that’s a victory for Donald Trump. Full stop.

 

Leah Litman Agreed.

 

Leah Litman [AD]

 

Melissa Murray At the end of last year, several courts of appeals were making what we said was a strong play to be America’s worst court of appeals, at least for voting rights. But the Fifth Circuit did not take these upstart efforts too lightly. They decided to take one final stand, and I think this final stand really sealed the Fifth Circuit’s victory. It is truly America’s worst court of appeals, especially for voting rights. So we wanted to acknowledge this, quote unquote, victory. So this race was sealed when in an en banc decision, the full Fifth Circuit stayed a panel opinion of the Fifth Circuit and halted a redistricting remedy for Galveston, Texas. So why did the court say that the panel decision was no good? Well, because the full court wants to revisit its precedents allowing, quote, majority coalition district claims to give rise to majority minority districts under the Voting Rights Act. Majority coalition districts are where groups of different racial minorities say their collective political power has been diluted, and that the state can and should put them into a single district so that they can elect the candidate of their choice in a majority minority district.

 

Leah Litman And the Fifth Circuit needs to change that law in order to make it harder to protect voting rights. And they want to do so so badly. They are going to allow Texas to use a map that is illegal under current law. That is what the U.S. Supreme Court also did in Allen versus Milligan. And it is what the Fifth Circuit did at the end of the year in Galveston, Texas.

 

Melissa Murray Well, there’s a shadow decision on Allen versus Miller. Not there later. You know, Wolk decision on Allen versus Milligan, just to be clear.

 

Leah Litman Exactly. Um, the US Supreme Court declined to do anything about that en banc Fifth Circuit decision. Justice Kagan wrote a dissent for the three Democratic appointees, saying, quote, in imposing a different map acknowledged to violate current law on the theory that the circuit might someday change that law, the Court of Appeals went far beyond its proper authority and, quote.

 

Kate Shaw The Fifth Circuit further clinched its title as First Court of Appeals in America in light of a separate writing by Judge Ho in a hostile work environment case, Judge Ho concurred in order ostensibly to quote, just ask a question.

 

Melissa Murray Just asking questions here. There are no dumb questions.

 

Kate Shaw Wait for the question. Well, just wait, because the question he wanted to pose is, is the very term diversity itself discrimination?

 

Melissa Murray I think I know the answer. No, folks, that’s actually not a joke. Judge Ho said, quote, I write separately to highlight plaintiff’s contention that the use of the term diversity may be evidence of his employer’s discriminatory intent. Cases like these reflect the growing concern that diversity has increasingly become a codeword for discrimination. End quote. And to raise this question. Judge Ho cited fellow thought leaders Barry Weiss and Andrew Sullivan. And I’ll just sort of put out there this is surely going to go into a Justice Clarence Thomas opinion related to the Thomas Jefferson High School case that is pending, about whether or not merely thinking about diversity and how you structure your admissions protocols is, in fact, a violation of either the Constitution or Title six.

 

Leah Litman Or it’s going to go into a separate writing and Muldrow versus City of Saint Louis about employment transfers or, you know, whether a separate showing of adversity is required in title seven claims. So, you know, a lot of possibilities here. Why not both? Why not both?

 

Melissa Murray You don’t have to choose. You’re asking dumb questions. Again, Leah, why choose. Just do them both.

 

Leah Litman My b.

 

Melissa Murray Separate question like is Judge Ho auditioning for anything?

 

Leah Litman You know, I think he’s thinking about if in 2024, Donald Trump were to win the presidency. I think there is a pretty good chance either or both Justice Thomas and Justice Alito potentially resign. I think in the next Republican administration, there’s a good chance both of them would choose to retire and allow a Republican to fill their seat, in which case there is no doubt that the next Republican president would appoint the craziest, youngest, most Matthew Kacsmaryk-esque judge that they can find who is out to do nothing more than own the libs for the next 30 years and create a majority and supermajority to do that for the next 30 years.

 

Melissa Murray I also think in the event that there is a Republican president, and I think the fact that we’re not talking about the upcoming presidential election as another moment to reshape this court is absolutely bonkers and batshit to me, but it is an opportunity to reshape the court and make this conservative supermajority last even longer. I think if there is a Republican president, both Justices Alito and Thomas will step down. And for Justice Thomas’s seat. In particular, there will be enormous pressure to continue the project of, quote unquote, diversifying the court by adding an Asian-American justice. And I think this is why Justice Jim Ho ah! Oh, God, did I speak that? Oh, fuck.

 

Leah Litman Melissa, stop manifesting. Stop manifesting.

 

Melissa Murray Oh God. Candyman Candyman Candyman I think that is why Judge Jim Ho is literally auditioning.

 

Kate Shaw Will discussions of diversity around his potential nomination, make his head explode.

 

Leah Litman They will be illegal evidence of discrimination.

 

Melissa Murray I mean, it’s weird. It’s weird. Like he.

 

Kate Shaw He’ll have to arrest himself.

 

Leah Litman And the Republican president who’s trying to a point, I mean, citizen’s arrest.

 

Melissa Murray I think it’ll all be fine as long as Donald Trump doesn’t go off and say I’m. It is my goal to nominate the first Asian American justice to the court. Like, I think if you just do it and you know, that will be fine and Ilya Shapiro will be okay with it.

 

Kate Shaw Well, that’s what matters.

 

Leah Litman Right? Uh, the Fifth Circuit truly can’t stop, won’t stop. They came out with another banger this week, setting aside the Biden administration’s rules regarding dishwashers and clothes washers by saying that more energy efficient machines just don’t work. That is actually the court’s key reasoning. Quote, DOE’s efficiency standards likely do the opposite. They make Americans use more energy and more water. This suit was brought by. Who else? Some Republican led states, including Texas, Louisiana and Alabama, who said their employees didn’t want to use energy efficient machines.

 

Kate Shaw Are regulated. Industry group had asked the Trump administration to exempt them from energy regulations. The Trump administration did that. But then the Biden administration attempted to subject the regulated industries, including dishwashers and washing machines, with a cycle under one hour to the energy regulations. And here the Fifth Circuit said they just couldn’t. And then to pivot, we actually had a surprisingly sane opinion from the 11th circuit, siding with a progressive prosecutor in Florida who had been suspended by Ron DeSantis because of some of his statements, including that seemed to suggest skepticism of the state’s abortion, prohibition and support for abortion. Now, this was an elected prosecutor, and so it was never clear to me how DeSantis had the authority to suspend him in the first place. Um, and the 11th Circuit basically said, yeah, the First Amendment does protect or at least plausibly protects some of these statements, and the prosecutor does get to proceed with his challenge. So it was a, again, long opinion. I haven’t read the whole thing, but surprisingly sane outcome.

 

Melissa Murray Despite this incredibly sane opinion from the 11th circuit, there are some other courts who, despite being ineligible to be America’s worst circuit court, still want to get in on the worst court shenanigans. So a three judge district court in Michigan invalidated Michigan’s legislative maps, specifically 13 House and Senate districts, on the view that these maps violated the Equal Protection Clause. Because, I don’t know, black voters got to vote, had too much power. Like all of the above, the court said that the districts were drawn in ways that kept the percentage of black voters in several districts at a number that allowed black voters to elect their preferred representatives in more districts than if black voters had been put into fewer districts and comprised a majority in fewer districts. So yeah.

 

Leah Litman Yeah. And, you know, this case is an interesting, interesting pairing with the Supreme Court’s forthcoming decision in Alexandria versus the NAACP chapter of South Carolina, where the court seems poised to say that South Carolina did not discriminate by keeping the black voting age population in several districts sufficiently low that the districts would remain safe, Republican seats and black voters wouldn’t be able to elect the candidate of their choice. That is, the only real racial discrimination seems to be where districting gives black voters more political power. Which makes you think.

 

Kate Shaw That’s what discrimination means.

 

Melissa Murray I mean, we know this diversity is discrimination. And so any time diverse groups get to do things that they might want to do, it’s discrimination against someone.

 

Leah Litman Yeah. And it’s possible that this case is headed to the Supreme Court, since there have been reports that the Michigan Independent Redistricting Commission, you know, would like to take this case to the Supreme Court.

 

Kate Shaw Well, I’m sure only good things will happen there. So that’s just great news.

 

Melissa Murray I mean. Black voters matter. Not in a good way, though.

 

Leah Litman All voters matter.

 

Melissa Murray Right. Better, better.

 

Kate Shaw All right, so let’s pivot to some court culture. And the first thing that we wanted to highlight is that it turns out we learned in recent weeks that Scotus has their own Melody Rowell, I want to meet her now.

 

Melissa Murray What if it is Melody Rowell?  What if Melody is moonlighting and she.

 

Kate Shaw She has a side gig.

 

Leah Litman So we wanted to highlight some curious audio editing of the oral argument in Moore versus United States, which was the big tax case the court heard last year. So at the end of the arguments, when the chief normally says, quote, the case is submitted. Chief Justice Roberts instead started to say court. The case is dismissed for catching right before catching and correcting himself. But here’s that clip.

 

Clip Thank you, counsel general. The cases is dismissed ugh submitted.

 

Melissa Murray This slip up, however, does not actually appear in the official audio file that has been uploaded on the Supreme Court’s website. Here’s the edit.

 

Clip Thank you. Counsel general. The case is ugh submitted.

 

Melissa Murray Obviously, the court cleans up transcripts at least somewhat, but editing audio recording seems a little odd, especially when there’s no acknowledgment that there has been an edit, especially one that is significant. This one. I mean, I think it’s pretty significant. Like, I would have left it in I like to they’re human. I’d like to see these human moments. Hear them.

 

Leah Litman No. They’re infallible. Right.

 

Melissa Murray So you can’t hear.

 

Leah Litman They’re not just final, they’re infallible. That’s the quote,.

 

Kate Shaw Right? That’s the. That is the quote.

 

Leah Litman Yeah.

 

Kate Shaw Wait this episode made me think of two things. One, remember, the court was on the sly editing in sometimes pretty substantial ways. The initial slip opinions and released that differed, sometimes again significantly from the final version of the opinion that got published in the U.S. reports. You know, five years later, until recently. Now they’ve really shortened that time. And then Harvard law professor Richard Lazarus wrote a long piece essentially exposing this practice. And the court was like, oh, yeah, okay, well, we’ll tell you when we’re going to, like, fundamentally change an opinion we’ve already put out into the world or at all change in opinion. So now they actually do upload PDFs that do show changes when they revise the original slip opinion. So great pro transparency move. I don’t exactly know what the analog for that with the audio files is, but they should let us know if they’re going to change the audio, especially in a world where we are all listening live. And so, I mean, it would be great if they did it always, but.

 

Melissa Murray Well Kate, I think they’re going to be like, no more live stream for you, Kate.

 

Leah Litman Like exactly. That’s  the punishment.

 

Kate Shaw That’s what we get. That’s totally  possible. But the other thing that this made me think of was this episode during the Obergefell oral argument. And I remember because I was in the courtroom for it, and there was a lot of reporting about it, but I remember hearing it in real time, which is there’s a protester who interrupted and he was screaming about gay marriage and hell and damnation, and he was pulled out of the courtroom. And it was like a fairly lengthy and dramatic, you know, couple of minutes and then Justice Scalia made some joke about it being refreshing. Um, anyway, the court’s audio recording is like it’s gone. Anyway, I have no idea. And I don’t know exactly. You know, how an enterprising scholar would sort of figure this out. But I’m sure over the years the court has done this a lot of times, and I am glad that we are now in a position to call them out on it when they do.

 

Leah Litman This just perfectly encapsulates reflex captures the court’s approach to history. It’s like they’re editing it real time, and then they also do so when engaging with it. In hindsight, it’s just incredible.

 

Melissa Murray Just smoothing things out, smoothing things out.

 

Leah Litman Exactly.

 

Melissa Murray Taking out, you know, inappropriate interruptions like reconstruction.

 

Kate Shaw Convenient.

 

Melissa Murray Yeah. I think also women’s reproductive freedom.

 

Leah Litman That also didn’t exist. Um, no. Yeah. So we also wanted to call attention to the senator from Cancun, Ted Cruz, um, who engaged in some truly abhorrent behavior. So the senator behaved abominably at a judicial confirmation hearing, which is not exactly surprising or irregular, but I think sunk to a new low. So Senator Cruz asked the possibly first Muslim article three Court of Appeals judge, if the nominee supports or celebrates 911 and if he condemns Hamas, the nominee handled it the best he could. But we wanted to play the clips just so listeners would have a sense for what is happening in the Senate Judiciary Committee.

 

Clip Do you condemn the atrocities of the Hamas terrorist? Yes. That’s what I was about to address, Senator. And if any justification, is there any justification for those atrocities? Senator, I’ll repeat myself the events of October 7th. Were a horror involving the deaths of innocent civilians. That is contrary. The question again, is there any justification for those atrocities? That was going to be my next sentence, Senator. Which is I have no patience, none for any attempts to justify or defend those events. Are you willing to condemn? They’re inviting a supporter of their. To attack America and to support the reasons for the September 11th attacks. Senator, I don’t think anyone can feel more strongly about what happened on nine over 11 than someone who was there, who saw with their own eyes, smoke billowing from. You won’t condemn this. I’ll let him complete his answer, would you? He’s filibustering and not answering questions. So I’m going to ask him to answer the question I ask instead of giving a speech on a different topic. And Mr. Chairman, you do this all the time. When a question is going badly for a Democrat witness, you jump in and try to save the witness. He knows how to answer a question when I ask a question. He gives a speech on a different topic because he doesn’t want to answer it. My question is simple. Do you condemn this event that was celebrating Palestinian Islamic Jihad? Yes or no? You should not bully the witnesses nor try to bully members of the committee. Asking a question is not bullying. Complete your answer, please. Thank you, chair Durbin. I’ll answer your question very directly, Senator Cruz. I will condemn without equivocation any terrorism, any terrorist or any act of terrorism, or any defense of any act of terrorism. I do not know this event. I do not know anything about this event or who these people are. I’ve never heard of any of them. If someone on there is a terrorist, I condemn them.

 

Kate Shaw So there were those. And then, of course, Senator Josh Hawley was like, I want to get in on this action and ask the nominee in what seemed like a designed to be gotcha kind of way to condemn the Holocaust. Thanks, Hawley.

 

Melissa Murray So on our New Year’s episode, Kate made an actual substantive resolution for the article three judiciary. And that was she suggested that they resolve, if they were in a position and eligible to do so, to retire or take senior status. And we wanted to highlight some of the judges who heard Kate and said, bet. So Judge Wynn, on the Fourth Circuit from North Carolina, just announced that he’s going to be taking senior status and he just became eligible. So he’s really on it. So thank you, Judge Wynn. That allows President Biden to nominate someone to the Fourth Circuit from North Carolina. And again, the Fourth Circuit is one of those circuits that has a number of racial and ethnic minorities, but has a relatively homogenous or at least in the past, has been a relatively homogenous bench. So this is an opportunity to diversify that bench.

 

Leah Litman And we also wanted to draw attention to an interview that was done at the end of last year with Judge Paul Watt for the former ninth circuit judge, who was nominated by President Obama and stepped down last year. So Judge Watford gave an interview to the National Law Journal that had some pretty remarkable candor about his decision to step down and how the Supreme Court factored into that. We’ll just note two excerpts. Um, one is, you know, when asked what led to his decision to resign, this is what Judge Watford said, quote, part of it had to do with the Supreme Court’s direction. And then, you know, he listed the court’s decisions in Dobbs and Bruen and he said, quote, that caused me to think, is this what I want to do for the rest of my legal career? I was disheartened when Bruen and Dobbs were decided. I struggled with what does this mean in terms of where the Supreme Court is headed? End quote. And while that didn’t lead him to step down immediately, it did after he talked to his friend, District Judge Gary Norman, who had decided to step down and Judge Watford said, quote, hearing the concerns that led him to make that decision and the questions he asked himself, I started asking myself the same questions. I realize I can do something different and something I’ll enjoy more than remaining on the bench.

 

Melissa Murray See, this is when asking questions is actually quite productive.

 

Leah Litman Right?

 

Kate Shaw Friends can help friends realize they don’t need to sit on the bench forever. If they can make space for somebody who will be able to protect their legacy as opposed to completely dismantle it. So I hope others give this some thought. The anecdote was particularly revealing in that Judge Wofford is quite moderate, and for him to say this stuff did feel like a huge warning sign. That’s very much true of Judge Fineman as well. And while I think it’s it’s natural to react to this with something along the lines of like, well, don’t we want people who aren’t quite sure about what Scotus is doing on the bench to stay on the bench? The decision to step down now allowed Biden to confirm new and younger nominees. So they’re making space was not in any way in conflict with a project to actually resist some of the Supreme Court’s wild overreach.

 

Leah Litman Yes. And judge what for a judge. Federman, if you would like to come talk about your feelings about the Supreme Court and work through them with some people trying to do the same, open invitation to join the podcast.

 

Melissa Murray It doesn’t even have to be about feelings. I mean, you could just come and ask questions like, are they facilitating autocracy? Are they seeing the dismantling of democracy? These are good questions to be asked.

 

Kate Shaw They can pose the questions. We can just give our thoughts.

 

Melissa Murray I mean, right.

 

Leah Litman So we wanted to highlight something that is likely to make its way soon into a court culture segment and possibly eventually the Supreme Court. And that is the fact that Texas enacted an extremely draconian anti-immigrant law that seems designed to basically relitigate the governing framework about when and to what extent states can restrict immigration and adopt anti-immigration laws. So the Supreme Court decided the case in 2012, Arizona versus United States, that limited states ability to do so. And the federal government has filed suit challenging Texas law, saying that the law violates the Arizona framework. But, you know, with the change in personnel of the Supreme Court, it’s possible that framework will be changed.

 

Kate Shaw Another development relying on the court’s enormously expansive gun rights case, Bruen, a district court invalidated California’s so-called sensitive places law. This is a law that barred guns in hospitals and playgrounds and banks and zoos and libraries and the parking lots of airports and police stations and nuclear sites. Guess what? The district court in this case said that the Second Amendment, as construed in Bruen, invalidated that law, that sensitive places prohibition and struck it down.

 

Melissa Murray We’ve received a number of questions about the prospect of disqualification from office, and we will address many of those questions in a future episode, and particularly when we preview and recap the oral argument about disqualification. But we wanted to touch on one of those questions now. So some listeners have asked, what about the provision that says that Congress can remove the disqualification by a two thirds vote? How does this affect whether the provision this is section three of the 14th amendment is self-executing or. Whether it’s a political question.

 

Leah Litman So I’m happy just to, you know, talk about it a little. You know, I think that the inclusion of Congress has a role in removing the disqualification might imply that Congress does not have an exclusive or determinative role in imposing the disqualification in the first instance. Again, because the default rule is that provisions in the Constitution have effect, right, and are self-executing even without enabling legislation.

 

Kate Shaw I would go further and say it doesn’t just I don’t think it sort of maybe suggests that. I think it’s very strong evidence that an argument that some enabling legislation is required is just totally wrong. It’s not consistent with this provision, which says the effects of engaging in insurrection and tells Congress how to remove the effects of engaging in insurrection feels like a slam dunk argument to me.

 

Melissa Murray I guess it won’t be, though. Okayed somewhere. That’s going to be made.

 

Kate Shaw As we’ve previously discussed. Almost certainly not.

 

Melissa Murray Right. But I like I like that energy, Kate.

 

Kate Shaw You like that energy. Thank you.

 

Leah Litman Um, so other listener has pointed out that it seems that certain justices will not be recusing themselves from a case about whether efforts to overturn the election were part of an insurrection that prevents participants in said scheme from holding office in the future, even though some of their significant others arguably were part of efforts urging lawfully cast votes to be thrown out. Yes, we are talking about Justice Thomas. Um, the court’s order in the Colorado case did not note that Thomas was recused or didn’t participate, which seems to indicate he is participating and will be participating. We wanted to highlight, at the suggestion of a listener, um, and give a tip of the hat to one of the people who has raised concerns about the possible effect that Justice Thomas’s participation in the case will have to perceptions of the court’s legitimacy. And that is Judge Kevin Burke, a trial judge who served on the Hennepin District Court in my home state of Minnesota and who was really devoted his career to advocating principles of procedural fairness. So Judge Burke received the William H. Rehnquist Award from the National Center for State Courts in 2003, and served as president of the American Judges Association and has publicly said, you know, that Justice Thomas’s participation in the case is a stain on the court’s legitimacy.

 

Melissa Murray [AD]

 

Kate Shaw Strict Scrutiny as a Crooked Media production. Hosted and executive produced by Leah Litman, Melissa Murray and me, Kate Shaw. Produced and edited by Melody Rowell. Audio support from Kyle Seglin and Charlotte Landes. Music by Eddie Cooper. Production support from Madeline Herringer and Ari Schwartz. If you haven’t already, be sure to subscribe to Strict Scrutiny in your favorite podcast app so you never miss an episode. And if you want to help other people find the show, please do rate and reviews. It really helps.