Melissa, Leah and Kate break down some excellent recent SCOTUS reporting and look ahead to what fresh hell the Roberts Court has in store for us in its new term. While much is unknown at this point, the Court will hear cases on gender-affirming care for trans kids, “ghost” guns, and further challenges to the Environmental Protection Agency. In other words, time to take a deep breath.

 

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, 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. We’re your hosts today. I’m Melissa Murray.

 

Leah Litman I’m Leah Litman.

 

Kate Shaw And I’m Kate Shaw. And it is time for another Supreme Court term. Well, we had something of a reprieve over the summer. That was pretty great, but it is over. So today we are going to look ahead to what the court might have in store for us this time around. And as we did in our last term preview, we’re going to situate this upcoming term in the context of some of the things we have learned since our term recap. Then we will look ahead to what we are anticipating on the docket in the upcoming term.

 

Leah Litman Before we get into any of that, though, maybe a call to our listeners or a question for our listeners, Should the Pod retain counsel? So as you might have heard, former president and current candidate Donald Trump recently called for those who criticize Supreme Court justices to be put in jail.

 

Clip They were very brave. The Supreme Court very brave, and they take a lot of hits because of it. It should be illegal. What happens? You know, you have these guys like playing the refs, like the great Bobby Knight, these people who should be put in jail the way they talk about our judges and our justices.

 

Kate Shaw We’re high on the list.

 

Leah Litman This adds a little, I don’t know, air of danger to our new season. And I feel like we have joked about how we might be on some kind of list in the event of a second Trump administration. And it just keeps getting more real. Like we have to start making jokes about what might happen because it all seems to materialize.

 

Melissa Murray I think Orange is definitely going to be the new black for us in a new Trump administration. But I say, ladies, let’s just test faith. Yes?

 

Leah Litman Oh yeah. Yolo

 

Kate Shaw What’s the alternative?

 

Melissa Murray Okay. Kate, you seemed a little reluctant at first. I’m going to need.

 

Kate Shaw There’s no alternative. We just have to press on and come what may.

 

Melissa Murray Speaking of pressing on, Joan Biskupic has what seems like an annual tradition of reporting behind the scenes tee on what was happening at the court in the previous term. And this year she has three pieces of cnn.com that gave us some insight into what happened with the EMTALA case, the immunity case. And my new favorite installment of the Hard headed Boys mystery series, Justice Alito and the mystery of the missing majority Opinions. And Joan wasn’t the only busy bee on the show to beat. We also got another set of blockbuster scoops on all of the Trump cases, this time from Jodi Kantor and Adam Liptak of The New York Times. So obviously, in order to get ourselves ready, ourselves, not ourselves, ourselves, we decided we would have to dig into all of this hot gas. Yes.

 

Leah Litman It’s like exo, exo, Kalia and Melissa.

 

Kate Shaw All right. A lot to cover. So first in terms of these scoops on Tower. So you recall that the Taylor case, Moyle versus the United States ended with something of a whimper. So after granting cert before the Ninth Circuit had even had an opportunity to weigh in and after hearing oral argument in that case, the court ultimately dismissed the case on the ground that Cert Ferrari had been improvidently granted, basically kind of a jurisprudential mulligan. I think that’s the best way to think about this dig.

 

Leah Litman And the case, of course, was about whether federal law required hospitals to be able to provide emergency medically necessary abortions when patients present at hospitals having an emergency medical crisis. Idaho had attempted to ban the abortions. The Biden administration took the position that no federal law prohibited them from enforcing that ban as applied to those few particular emergency medical cases. And Joan Biskupic reporting as a little more color to the court’s ultimate disposition of the case. So she reports that during the pre-cert stage, that is, while the justices are deciding whether to take up the case, while, quote, no recorded vote was made public and quote, all six Republican appointees voted to put on hold the lower court decision that had prior to the Supreme Court’s intervention ensured that emergency abortion care would be available to patients. John says the Republican justices later changed course because it became more clear that is obvious that the pregnant people in emergency circumstances were in dire straits in Idaho because of the lack of access to abortion care.

 

Melissa Murray That’s so weird. I mean, if only someone had warned them, like maybe if the Dobbs dissenters or the advocates in Dobbs had warned the court that curtailing abortion access throughout the country would actually put people in medical danger, maybe all of this could have been avoided. I wish someone had said that.

 

Kate Shaw There was no way to see it coming.

 

Melissa Murray No, no, absolutely. I think the.

 

Leah Litman Arguments can these justices hear them.

 

Melissa Murray If an argument falls?

 

Leah Litman I thought that was the original question. Right? Like we posed in like the trailer for our podcast. You know, if a few women talk about the Supreme Court, will it make a sound?

 

Melissa Murray And if you falls in a forest or something, you don’t hear it. Exactly. Anyway, back to Joan. Well, as Joan spills in her reporting, because Idaho’s exaggerated claims about what The federal law I’m taller required because those claims were ultimately proven groundless at oral argument and because of, quote, the larger national backdrop over agitation for reproductive rights and the politically charged presidential election season, end quote, The court massively punted on this case, preserving for now emergency abortion access in Idaho. But just wait, listeners, as we mentioned to you, at the end of the term, there’s a similar EMTALA challenge that is currently percolating in Texas. So it’s like the court’s going to have another chance to get at this and it’ll probably be conveniently.

 

Kate Shaw It won’t be before the election.

 

Melissa Murray How convenient.

 

Kate Shaw Yeah, yeah. It’s on a relatively slow track, so I don’t even think the Fifth Circuit is going to do anything crazy in the short term. And so, you know, I don’t think any of that is an accident.

 

Melissa Murray They’ve been put on ice for a while, for that issue at least.

 

Kate Shaw Right. I mean, they’re not really slowing the roll on anything else. But on this issue, probably going to take their time. Yep. And we had talked about how, you know, the political context, the upcoming election had likely influenced the court in this case. And there were opinions essentially suggesting that that was the case. But I do think that Jones, like very well-sourced confirmation, is still really important. And just to add a couple more details. She reports that there was actually a debate about whether to lift the court’s stay even after three Republican justices who had initially wanted to take the case and, you know, essentially put this federal law on hold, came to the realization that they had taken the case too early. And that’s kind of horrifying, right? It means that, you know, I think two things. One, they were considering maybe lifting the state earlier, realizing that they had granted it in error, but didn’t. Right. So they continued to allow women in Idaho to be put in horrifying danger as a direct result of their intervention. But it also seemed to suggest that the justices were entertaining the idea of allowing Idaho to continue to literally torture women, even after the court sent the case back to the Ninth Circuit. And, you know, that’s what they ultimately did in Texas, because by punting on this case, they allowed Texas to continue to deny emergency care because the court did not, you know, in a merits opinion, it did not affirm the continued protection of the federal law EMTALA.

 

Leah Litman So on the immunity opinion, Joan Biskupic reports that, quote, There was an immediate and clear 6 to 3 that is ideological split and, quote, after the argument and that the chief quote made no serious effort to entice the three liberal justices for even a modicum of cross ideological agreement. And quote, as we talked about on our term recap, please stop referring to the chief justice as an institutionalist is not an odd and an institutionalist. You know, he is a politician and maybe a slightly more savvy one than, say, some of his other Republican colleagues.

 

Melissa Murray The bar is low, Leah. The bar is very low.

 

Leah Litman Indeed, we are reminded of that constantly and on the community opinion. Here is where Jodi Kantor and Adam Liptak story comes in. So they reported on behind the scenes deliberations on basically all of the Trump cases and January 6th cases. That includes a memo they report that the chief justice sent out in February detailing the chief justice’s problems with the D.C. Circuit opinion that rejected Donald Trump’s claims of immunity in the January 6th election interference case. Please note that it would still take the court until July to issue an opinion because a pre-election trial on election interference charges obviously would have killed the vibe. And of course, none other than the chief’s biggest fan boy Brett pick me. Kavanaugh responded the next day, saying he agreed with the chief’s memo.

 

Kate Shaw And not only do we know about that sequence of events, Kantor and Liptak even report on the contents of the memo, like what it specifically said, which I’m sure John Roberts is thrilled about. But given that the Republican justices seemed to indicate how they were going to rule to the other justices in February, that really does, I think, sort of give new meaning to a passage from the Democratic appointees dissent or, you know, dissenting concurrence in the Colorado disqualification case, in which, as we said, they basically told us that the Republican justices were in the bag for Donald Trump. So that’s this line. Quote, They, meaning the Republican justices, decide novel constitutional questions to insulate this court and petitioner. And to be clear, petitioner in both cases was Donald Trump from future controversy. So we thought that’s what they were telling us back in February. This is just confirmation.

 

Melissa Murray And in terms of the unjustified delay in deciding the immunity case, can’t. And Liptak confirmed that it wasn’t because the chief was diligently trying to broker some kind of narrow decision that would have yielded a unanimous decision. Like some of us me thought in our naivete. How stupid were we? In fact, it was exactly the opposite. Kantor and Liptak report that some Republican justices wanted to issue a ruling that would have guaranteed that there was no pre-election trial. So there was never about getting to unanimity. They were basically fighting over whether to kill the case entirely. So let’s just name names in there. Both Justices Thomas and Gorsuch wanted the court to defer hearing the immunity case until this term. That is October term 2024. That means the court likely would not have heard an appeal at all in this case until after the election. And even better, according to The New York Times, the reason Justice Thomas wanted to defer this until this term is because, quote, he did not want to see the court dragged into political battles, end quote. L.O.L. My guy. What? Like what say you?

 

Leah Litman In some ways I like this because we know Justice Thomas likes to troll the broader public and progressives outside the court. But here this was a discussion internal to the court.

 

Melissa Murray So it’s clear he also.

 

Leah Litman Just likes to troll his colleagues. Like, what are you going to do about it, ladies?

 

Melissa Murray It’s almost like the court and those adjacent to it were not discussed in conjunction with the January 6th special committee because somebody’s wife had to testify before the committee. How’s that for a political battle? Almost. Almost, anyway.

 

Leah Litman So the Kantor and Liptak piece also gives us some details about the Fisher case, which was another January 6th case the court heard. That case was about whether rank and file January 6th participants could be convicted under a federal law that prohibited obstructing an official proceeding. They report that in April, this opinion was assigned to none other than strict scrutiny superfan Sam Alito. He of the upside down American flag. Stop the steal infamy.

 

Kate Shaw And they report several days after the Times reported that the Alito had displayed that upside down flag at their home, a literal symbol of the Stop the Steal movement. The chief justice took the case over. So we don’t know exactly how this played out. Did Roberts say. Did he yank it back? Did he broach the subject and ask Sam nicely? Did Sam come say, no? This looks bad, Chief.

 

Melissa Murray That’s not what happened.

 

Kate Shaw I don’t think so. I just want to air all of the past because that would require a modicum of self-awareness, which we’ve seen no evidence of from Samuel Alito.

 

Leah Litman Well also that would be very counter to Troll-lito. He would love to have that January 6th case and just be like, Watch me do it, libs.

 

Kate Shaw So that, I think, suggests that maybe he didn’t even go along with it, that Roberts just literally had to yank it by force.

 

Leah Litman What does seem clear, though, is that no matter the mechanism by which the chief ended up with this opinion, it seems as though for the chief institutional wisdom is all about superficial appearances. It’s not substantive. That is, he wanted the court and the court’s opinions to have this patina of legitimacy that wouldn’t be sullied by the fact that Justice Alito’s house, Alito, had displayed some affinity for an insurrectionist movement that attempted a coup to interfere with the peaceful transition of power, but rather was like, Well, let’s not make it look too bad that we’re letting the insurrectionists off the hook. Well.

 

Melissa Murray Letting someone who seems insurrectionist adjacent because of this flag write the opinion, letting the insurrectionists off the hook. So let me take another beat on that. This is so fishy and cowardly because at the end of the term, when the flag situation was brought to light, people were outright calling for Alito to recuse himself in all of the cases related to January 6th. And they were calling on the chief justice to raise the issue. Specifically, Durbin and Whitehouse, in that letter asked the chief justice to intervene, to do something about Alito and to have him recuse. And the chief justice would not do so, at least not publicly. Which means that if Cantor and Liptak are right, and I have no reason to believe that they’re not, if the chief was so concerned about the optics that he somehow, whether by force or accepted like a kind of resignation, regardless of how it happened, if he stripped Alito of his majority opinion in Fisher, isn’t that just a tacit acknowledgment that the optics were so terrible that, in fact, a recusal might have been warranted?

 

Kate Shaw 100%? So even though Fisher is six three, the immunity decision actually was five four on on the reasoning. Barrett agrees with the outcome but says the majority went way too far. So if Roberts had had the courage of his convictions and basically said you cannot participate in any of these cases, not just the one where it would look really bad if you wrote the majority opinion and it was released close in time to this reporting that actually would have changed something, you know, would have changed the reasoning in the opinion. They would have had to do something to get Barrett on board. Yeah. I mean, so maybe actually Barrett’s become the majority opinion.

 

Leah Litman It would have eliminated evidenciary priviledge aspect of it .

 

Kate Shaw Majority opinion. Totally.

 

Melissa Murray Maybe that’s why we had to do this veneer optics move because the chief justice seemed according to Cantor and Liptak to be really wedded to this approach for the immunity decision.

 

Kate Shaw Yeah. Yeah. So back to Fisher itself, though. Recall that the opinion that became the chief justice’s that had originally been Alito’s, although we don’t know how different it was when Alito was drafting it. But the final opinion written by Roberts.

 

Melissa Murray About time, actually, that, you know, it was like a whole decision pardon me about.

 

Leah Litman My morning. Justice Alito written the opinion. It would have ended with stop the steal exclamation mark a free the January 6th Patriots. You know it, I know it.

 

Kate Shaw Fair enough.

 

Melissa Murray I think we would have had the first Article three pardon situation going on that. By judicial fiat, I grant you.

 

Kate Shaw I now really want the follow up reporting from Liptak and Kantor to involve that draft. I mean, I do. And I don’t I’m scared, but I kind of.

 

Melissa Murray Want to lean into it. So anyway, into the fear.

 

Kate Shaw But in terms of what the final opinion looked like, it held out the possibility that prosecutors might be able to sustain convictions by showing that defendants had interfered with documents and evidence, maybe including in the form of electoral certificates. So that actually is quite important in that it doesn’t totally foreclose the possibility of convictions predicated on a lot of the conduct that January 6th defendants engaged in. And what this reporting tells us is that that part of the opinion turns out to have been entirely the work of Justice Jackson, who joined the majority. And so she indicated that she agreed with the majority, that prosecutors interpreted the law too broadly, but that it went too far by reversing the lower court and tossing the conviction rather than remanding the case to the lower court and allowing them to determine whether that conviction could stand.

 

Melissa Murray Now, there’s more.

 

Leah Litman On the chief from this piece. So Kantor and Liptak say, quote, In his writings on the immunity case, the chief justice seemed confident that his arguments would soar above politics, persuade the public and stand the test of time.

 

Melissa Murray Stairs in Roger Tani writing Dred Scott confident that he is staving off a sectional crisis.

 

Leah Litman We have indeed drawn parallels between Chief Justice Roberts and Tony before, and this seems to be another because I’m sorry. How to do you have to be to think that he is obviously high on his own supply and he was aided in his delusions of grandeur by none other than Brett Kavanaugh, who immediately slobbered all over the chief’s draft, praising it as, quote, an extraordinary opinion and thanking the chief quote for your exceptional work. And quote, This guy has all the subtlety of a bear who was high on cocaine.

 

Melissa Murray And yet I’d still pick the bear, Leah. Still pick the bear.

 

Leah Litman Me too. Me, too. Old ladies always pick the bear. And of course, Neal “pick me” Gorsuch could not be left out of this tongue bath. He chimed in, quote, I join Brett in thanking you for your remarkable work and quote, It gives me such happiness that the chief justice won over the Georgetown Prep squad, though he failed to persuade the public.

 

Kate Shaw God, it all makes my skin crawl. But honestly, I do take some comfort in just how roundly condemned pretty much across the ideological spectrum that opinion has been. So even if in this tiny little echo chamber, Roberts decided, like he had written an incredible opinion, that was stand the test of time. It’s pretty clear that no one but Brett and Neil and maybe not Neil actually thought that. And that is some tiny, small comfort. But that is not all that Joan had for us because she also published a third piece that confirms, as we had speculated, that Justice Alito had originally been assigned the opinions in two cases, Gonzales versus Trevino on retaliatory arrests and the net choice cases on government regulation of social media platforms, but that he lost the opinions because he is a strident and lawless hack, which are not exactly the words that George Jones, but that’s the tldr.

 

Melissa Murray That’s what she meant.

 

Kate Shaw Honestly, that’s that’s what the reporting suggests, that his work on these cases, the opinions he was drafting, was so extreme and unhinged that the other justices were like, No, not we’re not going. No. And so he lost those opinions.

 

Leah Litman So Joan also offered this tantalizing nugget quote on June 20th, when the chief justice announced the opinion in Gonzales versus Trevino Alito’s chair, the bench was empty. Alito missed that day as a total of four opinions were handed down. And the next June 21st, when the justices released five other opinions, end quote. Which makes you wonder, did Sam Alito stay home and pout and skip opinion announcement days out of protest? Like he could have just appeared on the bench upside down as a symbol of a court in distress or something greater like turned his robe inside out. But between these two cases and Fisher, it appears Sam Alito lost not one, not two, but three opinions this term. Congratulations on your three peat.

 

Melissa Murray I read how unhinged these writings have to be for the other conservatives to be like Jonah Hill at the Oscars. Like, ya know, dude, I can’t. I’m out. It’s too much.

 

Leah Litman And yet they sometimes go along with him, like when they effectively neutered racial gerrymandering claims by saying Republicans have such an entitlement to partizan gerrymander, we’re not going to restrict racial gerrymandering. Or when he watered down sections of the Voting Rights Act like he is the movement conservative warrior. And that is just his role.

 

Melissa Murray Was he though? Because I would argue that at. Eastern, the immunity case. John Roberts wrote such an unhinged and conservative opinion that maybe they were just like we gave it at the office. And we we have nothing left for you, Sam.

 

Leah Litman It’s a possibility.

 

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Melissa Murray Let’s pivot and look forward, not really to the upcoming term, the October term, 2024. So first thing, listeners, we really need to just issue a caveat before we start. The court’s docket is really dynamic. And just to give you a sense of what we mean by that. Consider this. Last year when we did our term preview, the court had not yet granted certiorari or taken up any of the following cases FDA versus Hippocratic Alliance for Medicine, the medication abortion case, the Tyler case, the Trump immunity case, the Trump disqualification case, the bump stock case. Fisher Grants passed the homelessness case. Snyder which was the public corruption case on whether or not you can tip your mayor sorry, Eric Adams Apparently it’s fine, but we’ll see. Anyway, none of those cases were actually on the docket when we did the term preview last year. So I say all of this to make clear that it is very likely that October term 2024 will continue to evolve and take shape even after the term formally starts on the first Monday of October. So we don’t really know all of the big issues the court will wade into this year. And we should note it is an election year and that means we can’t even predict what these chaos monkeys might have in store for us. So the tldr is basically, buckle up, bitch is going to be a bumpy ride.

 

Kate Shaw No question. And we wanted to highlight some of the possibilities for the upcoming term and you know, in particular the election kind of related issues that Melissa just alluded to. So as the presidential election and the other elections get underway, there will be challenges, no question. Two state and local election policies. As election administrators finalize election policies. There will also be challenges to newly enacted or implemented laws and policies. We are already seeing some of this, as we’ll talk about. But just as a general point, it is possible that at least some of this will make its way to Scotus, which is a truly chilling prospect, right? Given past practice, the court is extremely hostile to voting rights and therefore is likely to be inclined to allow states and localities to do things that make it harder to vote or that result in people’s votes not being counted.

 

Leah Litman And this is part of why we have said that the goal in this election should not just be a win or a victory, but a litigation proof victory where the margins are large enough that even this court wouldn’t try to throw the election to Donald Trump. And while we’re talking about the election, we did want to give a shout out to LFGV, Let’s Fricking Go Volunteer, which offers multiple ways for you to get involved in fighting for our democracy, like pushing back against voter suppression and connecting you to nonpartisan poll working opportunities. You can learn more about that at Fair fight.com. Forward slash L. F. G. V. Okay. Now some voting rights matters have already made their way to the Supreme Court on the shadow docket. The five male Republican appointees, a.k.a. the ones we’d substitute with theirs. They granted Arizona a stay that allowed Arizona to enforce a law requiring documentary proof of citizenship in order to register to vote using Arizona specific voter registration forms rather than the federal registration form where voters don’t have to provide proof of documentary citizenship. And the Three Horsemen, Justices Thomas, Alito and Gorsuch also would have allowed Arizona to enforce other parts of the law, including provisions requiring documentary proof of citizenship while voting or voting by mail. The three Democratic appointees, together with Justice Barrett, would have denied the stay as to all of the provisions and not allowed Arizona to enforce the documentary proof of citizenship requirement for voters using state registration forms.

 

Melissa Murray Either Arizona, in case you did not know or you probably did. Arizona is a battleground state in this election, so all of this means that the court’s intervention here will likely have real consequences. It will probably generate some confusion and may even impede some people from getting out and voting. So, again, maybe it’s already starting. Also in Arizona, the Arizona Supreme Court recently issued a decision in another case that allows almost 100,000 people that the state had earlier mischaracterized due to a clerical error allows them to vote in both state and federal elections. And we’re not going to go into the details of this particular voting challenge. But the point here is that there is a lot happening in the space and in the courts right now as it relates to the election. So lots going on and lots of opportunities for this court to get involved, not necessarily to get out the vote, but to get involved.

 

Kate Shaw Whatever the opposite of that is.

 

Melissa Murray Whatever the opposite.

 

Leah Litman To throw out the votes.

 

Kate Shaw Yeah. Yeah. Right, right. That’s there is also a pretty scary pending challenge to Mississippi’s law that allows for the receipt of mail ballots after Election Day. And that’s a law that Mississippi and many other states have versions of. So they’re arguing. Right? The challengers literally arguing that a legislature cannot authorize the. Counting of ballots received after Election Day. Let’s play a clip from the oral argument in the Fifth Circuit. That is basically their claim in a nutshell.

 

Clip The original public meaning of Election Day is the day that ballots are received by election officials in Mississippi. It means the day for post marking a ballot. In other states like Nevada and New Jersey, you don’t even need a postmark. That’s not how courts interpret statutes. The meaning of Election Day is not up to the subjective views of each state.

 

Melissa Murray Basically, that was the originalist slash textualist case for completely upending the United States electoral system. So the founding fathers would have loved it. Check. There’s even more. They had a weird way of describing the theory in the case. They said it was about, quote unquote, picking the consummation date. Let’s roll the tape.

 

Clip We’re fighting over what’s the consummation date? Correct. And when does consummation need to end? Really, to be honest. When does. When does the act of consummation need to end?

 

Melissa Murray So I don’t know what to make of the consummation date other than it seems that the anti-abortion movement’s lawlessness is being grafted onto voting rights now, and it’s being done in even more explicit and unhinged ways. So I guess this is conservative legal movement, cross fertilization and action.

 

Leah Litman They are very pro fertilization.

 

Melissa Murray They are pro-fertilization. Not in a lab, but in the courts. Yes. Yes. No. IVF, But yes. Exodus f y I. This case is currently in the fifth Circuit, where the panel is. Wait for it. Jim Ho boom. Stuart Kyle Duncan. Boom. And Andy Oldham. I think this augurs well for democracy. What do you think?

 

Kate Shaw It was a scary panel upon seeing it. Yeah.

 

Leah Litman I agree.

 

Melissa Murray The bear. Pick the bear.

 

Leah Litman Exactly. Exactly.

 

Melissa Murray Pick the bear

 

Leah Litman Exactly. Having listened to the argument. It did seem like even this panel isn’t going to go for it. You know, for the last few years, we’ve been hearing all about how it’s got to be state legislatures. That must set the rules regarding elections. And now all of a sudden, the argument is, let’s not do that here. Judge Duncan at one point asked the lawyer, So how about Purcell? You know, the principle that nominally restricts courts ability to change election rules to close to an election? And so I at least don’t think there is a majority on this panel to adopt that argument.

 

Melissa Murray Do you think he could go en banc?

 

Leah Litman God I mean, if judges don’t adopt it, I don’t see a majority of the  en banc Fifth Circuit adopting it, I think.

 

Kate Shaw I mean, can you imagine them trying to reason around Purcell like in at end of October and just throwing out all of the ballots in all of the many dozen plus states?

 

Leah Litman Yeah, that’s that’s the terrifying part.

 

Kate Shaw Kate, after the immunity decision, all bets are off like we were. So I agree with that.

 

Kate Shaw Yeah, but if Leah’s cynical ear actually thinks that there are not three votes.

 

Leah Litman If my accurate ear is how I describe it.

 

Kate Shaw Accurate your your correctly adjusted.

 

Melissa Murray Your accurately cynical ear.

 

Leah Litman My perceptive ear.

 

Kate Shaw I’m just saying I take comfort in your read of that oral argument. So hopefully whatever the death blow to democracy is this cycle it’s not likely to be in that Mississippi case.

 

Melissa Murray Okay, Kate. Just gonna note how many times Kate has been right when she’s optimistic. In any event, this Mississippi challenge is still a really big deal, even if the claims are too unhinged For Ho, Duncan, and Oldam. There are 17 other states and the District of Columbia, all of which have laws allowing postmarked mail ballots to be counted if they arrive some number of days after Election Day. And that includes California, which has a whole lot of electoral votes. So just to say this case is part of a wave of challenges, all trying to restrict vote counting. The Republican National Committee filed a case in Pennsylvania trying to prohibit that state from allowing voters to correct errors on their mail in ballot. So these are pure challenges, essentially, and they’re gaining steam around the country.

 

Leah Litman And in the theme of looking beyond the US Supreme Court, the North Carolina Supreme Court issued a harsh opinion cutting into the early voting window because they ordered the state to reprint ballots without RFK Jr’s name on them, a.k.a. the guy who tries to kill the bear that we should all be picking. But that raises the very real possibility that a lot of voters, including members of the military stationed overseas, wouldn’t get their ballots on the timeline required by federal law. And that’s a consequence of the North Carolina Supreme Court’s decision there.

 

Kate Shaw Although although there’s a North Carolina absolutely. That the North Carolina Supreme Court issued a decision that created that very real possibility. My understanding is that the North Carolina officials have moved fast enough that they are blunting the potential. Really, really maximal impact of that decision. It doesn’t at all like excuse the Court but I do think that the ballots, you know, going out on time.

 

Leah Litman That’s right. But like it still restricts the early voting window and shorten totally. You know. So right now, the Wisconsin Supreme Court, by contrast, rejected RFK Jr’s request to have his name taken off the ballot there. He had specifically requested to have his name taken off the ballot by getting the state to put a sticker over his name on ballots. And that could have jammed voting machines and delayed counting in the state, thereby possibly teeing up an effort to throw out the votes and have the, you know, legislature just throw the election to Donald Trump. It’s it’s horrifying.

 

Kate Shaw Just such echoes of like butterfly shaped stickers jamming the machines like Florida in 2000, like.

 

Leah Litman Let’s do Bush versus Gore again.

 

Kate Shaw Yeah. Yeah. So also making its way through the courts is a challenge to an Alabama law that limits the people who can assist voters with voting. So this is a law that was enacted last year. The ACLU and LDF sued to challenge it, basically saying it cannot be enforced to restrict the ability of people with disabilities, people who are blind or low literacy voters who should be able to choose who assist them with voting. A district court agreed with that challenge and enjoined the law. But of course, the state attorney general has already noticed the appeal in that case. Another possible aspect of election related litigation comes from some recent reporting from the Lever, which reports that there is a team of lawyers linked to Leonard Leo that is spearheading court cases aiming to purge voters from voter rolls in swing states. The piece reported that behind the Arizona voter purge case is a lawyer at a small firm that has received millions from a nonprofit linked to Leo and a trustee of Leo’s Marble Freedom Trust, and also that other groups tied to Leo have filed briefs in support of voter purge cases in Arizona and in Georgia. And one dark money supported Republican legal organization America First Policy Institute, which is Stephen Miller’s org, asked Judge Matthew Kaczmarek, because, of course he did a to block a 2021 Biden executive order promoting voter registration. So, Wolf, that’s a long list and it doesn’t even actually cover everything, but hopefully conveys just how many fronts these fights are already being fought on and what the next six weeks are likely to hold.

 

Melissa Murray Can I just intervene here to say all of that sounds really terrible and all of it may sound to prospective voters like it really won’t matter if you get out and vote because there are all of these dark money forces aligning to keep your vote from counting. No, no, no. That’s what they want you to think. Like we literally have to overwhelm the system. Like there’s already distortion because of gerrymandering or whatever, and this stuff is all piled on. You have to overwhelm it, like, so get your friends, get your friends, friends. Like that’s the only way to beat them, to like actually overwhelm the system to ensure a litigation proof victory. So just putting that out there, do not get dissuaded.

 

Leah Litman This is also why we say make a plan to vote. You know, you need to make sure that you are not on the list of people who have been removed from the rolls. You need to make sure that your vote isn’t going to be challenge or they’re not going to try to throw out your vote because of some new legal theory or election rule. So figure out how you are going to be voting now and if voting early is a possibility, you know, maybe you take advantage of that.

 

Kate Shaw And voting early in person if you can. Right. So obviously, voting by mail if you if that’s how you’re going to vote like you, it’s infinitely better than not participating at all. But if you are able to go in, if you’re in a state that lets you go the weekend before or two weekends before weekdays, before Election Day, it’s often possible to avoid long lines and kind of get in and out quickly. That is how I typically vote and I highly endorse it.

 

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Melissa Murray Let’s keep going. This is the season has already just. This sucks. I’m just going to another. Our sixth season is already starting with a bang. All right. In addition to these electoral matters, we also expect that there are going to be other shadow docket matters, perhaps involving Biden administration regulatory policies like environmental regulations or student debt relief policies. Listeners, you’ll recall that some lower courts have invalidated the Biden administration’s newer additional student debt relief programs. These were the policies that the administration made after the Supreme Court nuked the initial one. In that case, Biden versus Nebraska. And importantly, the Supreme Court refused to grant the administration a stay of those decisions. That is to say, it prevented the administration from carrying out the programs and providing individuals with debt relief. While the litigation is pending. And it’s quite possible that once a court of appeals issues a decision not on a stay request, but on whether a court was right to enjoin or vacate the debt relief initiative, it will make its way back to the Supreme Court. So, again, the court is a big player and all of these policy decisions simply by the way these things are being litigated.

 

Leah Litman This provides a great occasion to look back on one of the moments from the presidential debate between Vice President Harris and Donald Trump. Astute listeners or viewers may recall that when Vice President Harris was saying Trump would enact or enforce a national abortion ban and that he was responsible for ending Rowe versus Wade and unleashing all of the horrific consequences of these abortion bans on the country. Trump tried to pivot and respond with this.

 

Clip You know what it reminds me of when they said they’re going to get student loans terminated and it ended up being a total catastrophe. The student loans and then her I think probably her boss, if you call him a boss, he spends all his time on the beach. But look, her boss went out and said, we’ll do it again. We’ll do it a different way. He went out, got rejected again by the Supreme Court. It’s the same way that they talked about that, that they talk about abortion.

 

Leah Litman I just felt in this moment, sir, these are two things ending Grover’s Wade and ending student debt relief that your Supreme Court nominees did. You are responsible for this. It is the Supreme Court that is responsible for this, not the Biden administration.

 

Melissa Murray You a president that didn’t even have the popular vote, who got to appoint three people to the Supreme Court, did this with your three nominees?

 

Leah Litman I wanted her to say, it’s not me, it’s you.

 

Kate Shaw And in a debate in which I thought she was incredibly effective, I don’t know if you guys were also standing up and shouting, you’re toxic, literally, to like, just say that you did it. Your Justices did this. And she did. And so it was one of the rare missed opportunities again, in an otherwise extremely effective.

 

Melissa Murray I mean, it was a great debate. She walked him like a dog. But I would have loved to see her keep walking him like a dog and say that.

 

Leah Litman That is an insult to dogs.

 

Melissa Murray It is an insult to dogs.

 

Kate Shaw So we should spend at least a few minutes talking about the upcoming term. So let’s do that now. And let’s start with some term themes. And one really clear emerging theme is the court’s role as a warrior and maybe like a general actually in Republicans ongoing culture wars. So the court is hearing a challenge to one of the recently enacted bans on gender affirming care for trans kids. That’s the Scream case out of Tennessee. And it is no secret that the Republican Party and surrounding movement have tried to use trans kids as political punching bags and to demonize them for what they assess will be political advantage. And this case is essentially the culmination of that.

 

Leah Litman And the trans panic has different facets to it. But now the Supreme Court is going to weigh in on whether it is unconstitutional for a state to prohibit gender affirming care for minors. And just speaking for myself, I can’t say I am optimistic about where the court is going to go on that.

 

Melissa Murray So when this case came out of the sixth Circuit, there were two issues that the Sixth Circuit had decided. One was a substantive due process issue. And remember, the court has basically shit all over substantive due process in. Dobbs So this would have been another opportunity to continue sitting on substantive due process. There was also an equal protection claim. Interestingly, the United States government asked the court to only grant special worry as to the equal protection claim, and we speculate it’s likely because they did not want the court to go even further down the road of killing substantive due process. So the court has granted sorcery only on the equal protection claim. But I’ll just note this will be the Court’s first real opportunity to take up an equal protection claim in the context of gender since Justice Ginsburg. Are passed away? Yes, there was a brief mention of equal protection in Justice Alito’s opinion in Dobbs, but he mentioned it only to say it didn’t really exist in the context of abortion. So maybe this is an opportunity to chip away at equal protection in the context of gender. And I think the absence of Justice Ginsburg’s voice on this issue will be keenly felt here. It’s also an opportunity for the court to continue refining its approach to equal protection, which it began doing in Students for Fair Admissions versus Harvard in the context of race. So I think this is a really big case. Lots going on here and lots to be scared about.

 

Leah Litman So you mentioned that Dobbs had shed all over substantive due process. But, you know, as you also just noted, Dobbs kind of shed all over equal protection, at least with respect to sex and gender claims. And I think one question in this case is whether Alito’s messy and dismissive take on equal protection sex discrimination claims will move beyond abortion rights to extend to other domains of sex discrimination. You know, one of the claims in the case is that these laws single out and mistreat trans kids because of animus or lack of care toward that group. Obviously, that claim is persuasive. But a second claim is also the accurate characterization that these laws distinguish between individuals on the basis of sex and therefore trigger heightened scrutiny because they determine whether you can receive certain care based on your sex assigned at birth. And so the case has the real potential to cut back on sex discrimination protections more generally because this is a sex based classification in order to determine whether medical treatment is permissible, it depends on you need to know an individual sex assigned at birth. But the courts below were kind of like, this seems fine to us, or the state has good reason. So who cares whether it’s a sex classification, which again could undermine all sorts of constitutional principles that generally restrict sex classifications.

 

Kate Shaw Yeah, the lower court didn’t even grant that some kind of heightened scrutiny was required here. And it just seems so obvious. Like it doesn’t prohibit all care. That is like gender care. If it’s if a boy needs masculine eyes and care or a girl needs like feminizing care. The law allows it. So obviously it’s a sex classification. I don’t really understand how there’s a serious argument against it. But the Sixth Circuit, again, as you just said, essentially dismissed it. There’s an amicus brief that I think makes this point really effectively. It’s a philosopher’s brief filed by Icicle or Houseman and Amanda Shane or and a few others that I think really spells out, just like how unanswerable the kind of the claim that it’s a sex classification is. So I would be I mean I never meant no predictions. The court I think just like has to at least take seriously that claim. But I agree with your pessimistic note at the outset, Leah, that like, this is a scary case for this court.

 

Melissa Murray So all of this really has the makings of the court essentially greenlighting state’s efforts to continue to bash trans kids. And that’s really scary. And the only question I think here is just how crappy this opinion is going to be when it’s finally issued.

 

Kate Shaw Another culture war issue that is on the court’s docket, and that is that the court may be continuing on its quest to make dangerous firearms accessible to all. So the court here is hearing a challenge to ETFs regulation of ghost guns that is privately made, firearms that are unsterilized and untraceable and typically assembled from components or kits that are bought online so these kids can be bought without background checks or vetting. So people prohibited from buying guns under federal law can circumvent those prohibitions and purchase them. And all the ATF regs at issue require is that ghost guns be subject to the same rules on vetting and prohibited purchases as other gun. So this is not any kind of ban on ghost guns. It is just subjecting them to the regular, ordinary regulatory apparatus. But of course, a district court in Texas nonetheless invalidated the rule in a nationwide injunction. And the Fifth Circuit, to no one’s surprise, also invalidated the regulation. The Supreme Court actually put that ruling on hold initially. And that ruling would have invalidated the rule everywhere. And the Biden Justice Department went to the Supreme Court and made a very forceful argument that that was just wildly dangerous for the court to allow this, you know, nationwide injunction of this rule that they said was actively saving lives. And so anyway, the court actually did put that ruling on hold. So naturally, the Fifth Circuit came back and invalidated the regulation as applied to the plaintiff in this case. And Scotus actually put that ruling on hold, too. So there are at least some encouraging signs from the Supreme Court, at least in terms of the kind of shadow docket activity.

 

Melissa Murray Just to dim your ardor a little bit, Kate. There were four justices of the court who would have allowed the invalidation of the rule to stand even while the litigation was pending. So if that’s an indication of where we might end up here.

 

Kate Shaw I’m not like predicting I’m not predicting unanimity here. I just think maybe you can count to five for justice prevailing in this case. But I’m far from confident of that.

 

Melissa Murray Again, I thought the U.S. federal government’s analogy here was really right on. Solicitor General Elizabeth Prelogar said, you know, it’s basically like buying furniture at Ikea. You wouldn’t just say because you get a flat pack of a desk, a mom desk, that it’s not furniture like. Same thing with a ghost gun. Great analogy. In any event, the Fifth Circuit, after a full review of the district court decision, agreed that the rule was unlawful, would have sent the case back down to the District Court to reinstate its original remedy, vacating the rule in its entirety in a nationwide injunction. But then the government stepped in and asked the Supreme Court to take this case. So now the court will actually determine whether the ATF regulation is lawful. And if all of this sounds like the cargo case from last term, the bump stock case, you would be right. This is basically a kind of redux, different kind of issue, but the same question of whether or not the ATF is permitted to interpret federal statutes regulating firearms in this way.

 

Leah Litman On one hand, it’s encouraging, as we’ve said, that the Supreme Court stayed both decisions invalidating the regulation. On the other hand, we know that’s not always predictive of what the Supreme Court ultimately does in a case. So in the Voting Rights Act case, for example, although the court put on hold lower court decisions, they ultimately affirmed them. This also happened in some immigration matters. So it’s still possible we will end up with an opinion like Garland versus cargo that was basically gun porn masquerading as textualism. And we just don’t know. And it’s very scary.

 

Kate Shaw It’s the same kind of methodological divide. And obviously, Garland versus cargo came down invalidating the bump stock rule. And so if that’s predictive, I think is very good reason to be nervous. And people in the gun safety world are really, really scared about what it would mean to, again, allow these totally unregulated ghost guns because things are going so well even with.

 

Leah Litman This on the books that the regulation is in effect and we know it has lowered the number of ghost guns that are available and recovered in violent crimes. So to then allow this lower court injunction to go back into effect enjoining a rule that has had these very salutary effects is scary.

 

Kate Shaw But obviously something you cannot rule out with this court. Okay. Moving on. Another thing we wanted to flag is the court’s continued war on the administrative state and environmental regulation in particular. The court already has on its docket several cases that seek to limit agency authority or that seek to second guess agency determinations, which we know the court loves to do, especially if the agency is the EPA. One of those cases is city and county of San Francisco versus EPA about the requirements imposed by the Clean Water Act. The challengers say that the EPA and authorized states have imposed basically generic prohibitions in permits that result in penalties for violating water quality standards without identifying exactly what the permissible limits and impermissible limits are for the discharges of certain chemicals.

 

Melissa Murray So the court continues to stay consistent on its effort to completely dismantle. Told the administrative state there’s another case. This one is called Seven County Infrastructure Coalition versus Eagle County, Colorado. This case asks whether the National Environmental Policy Act, which requires agencies to consider the effects of agency decisions on the environment, will require agencies to consider and study effects, quote, beyond the proximate effects of the action, unquote. And that could include perhaps whether or not the agency’s actions have effects on climate change. Although the federal government characterizes the issue slightly differently, knowing probably that any mention of climate change will just make some of these conservative justices salivate and kill the agency altogether.

 

Leah Litman It’s a hoax.

 

Melissa Murray Obviously.

 

Leah Litman There are a least three votes for that.

 

Melissa Murray See tropical storm Helene, and its devastating consequences. Just a hoax.

 

Kate Shaw Yeah. Third administrative law case, although not on the environmental side, is FDA versus wages and white line investments, which is a case that asks the court to set aside the FDA’s denial of authorization to market a new e-cigarette. I’m sure there will also be more. So these are the only these are the big admin law cases now. But as we said at the outset, the court will absolutely take up a bunch more cases. So I expect this theme to even further develop.

 

Leah Litman Right, including likely involving some Biden regulatory programs. So those are themes. Wanted to flag a few additional cases. One is Glossip versus Oklahoma. We will talk about this case in depth next week and the week after. So won’t spend a ton of time on it now. But it’s about whether the state courts were wrong to decline to hear claims that the state put up false testimony and concealed exculpatory evidence in a capital case where the Oklahoma attorney general concedes there should be relief. So even though the Oklahoma attorney general concedes there was an error, the state court said we’re not really going to consider the claim. And to the extent we do, the claims just lack merit. So this is another testament to the failed death penalty in the United States that another one of the Supreme Court’s now foundational Eighth Amendment death penalty decisions from Glossip versus Gross, which established the legal rules about how to challenge methods of execution, could involve someone who is quite likely innocent of the crime for which they have been sentenced to death.

 

Kate Shaw And in which Oklahoma and Glossip are on the same side of this case. And the Supreme Court has and I think, if I’m not mistaken, I think Paul Clement is on Oklahoma’s brief. This is not often the case that you have an individual sentenced to death. And a state like Oklahoma basically asking the court not to force this execution to go forward because there had been this error below. And there’s a real chance that Glossip is innocent. And yet the court has invited someone to make the argument that basically nothing to be done here and this execution has to proceed like it is ghastly. And it is especially ghastly to contemplate in the context of the fact that the court disturbingly last week turned away a request for a stay of execution in another death penalty case where the prosecutor’s office conceded that there needed to be some further inquiry into the case. That was the case of Marcellus Williams, who was convicted of murder and sentenced to death.

 

Melissa Murray So in the Marcellus Williams case, the top prosecutor for the office that handled Williams’s prosecution joined with Williams’s lawyers to ask the state courts to send Williams’s case back for hearings on the conviction and sentence. And basically, Williams lawyers wanted DNA testing of the murder weapon, which they said could exonerate Williams at the time of his conviction. That kind of testing wasn’t available. But then there was testimony from a prosecutor that indicated that the evidence that might have exonerated him had actually been contaminated because of how it had been handled or mishandled the trial. Prosecutor’s fingerprints and handprints were on the weapon, and that meant it couldn’t be tested to exonerate Williams. So in other words, because of the state’s errors here, Williams didn’t have access to the evidence that could have exonerated him.

 

Leah Litman And somehow that’s not all. So a prosecutor involved in Williams trial also testified that prosecutors had illegally removed a black juror from serving on the jury because of the jurors race. So they admitted there was a constitutional violation at Williams trial. That would and should require a retrial, like if a prosecutor removes a juror on the basis of race, that requires a new trial period. But the state attorney general’s office opposed further inquiry into the case and the Supreme Court by a 6 to 3 vote, with only the Democratic appointees noting their dissent denied a stay, and the state executed Mr. Williams on September 24th because the Supreme Court refused to pass the case and consider whether there needed to be an additional inquiry or new trial given the mishandling of the evidence and a conceded constitutional violation. So this case is not exactly on all fours with Glossip, because in Glossip, the state attorneys general office is confessing error as well. Whereas here if the prosecutor. His office that handled the case that conceded air. But the state attorneys general office was opposing any effort to look into the case. But, you know, you do here have prosecutors who are involved in the case conceding air. The lead prosecutor for the office who handled the prosecution, saying the case needed further examination. And yet still the Supreme Court says go ahead, you can execute him state. No reason for pause. It is, as Kate was saying, ghastly. I wanted to highlight one other pair of cases that will be heard later, Hewitt and Duffy, which involve the First Step Act. These cases reflect a debate between Judge Bibas, who’s on the Third Circuit and Judge Barrett when she was on the Court of Appeals about whether the First Step Act sentencing reduction provisions apply to defendants who were originally sentenced before the act was passed when their sentences are judicially vacated and they have to be resentenced after the law was enacted. And this is divided the lower courts. And again, because of how significant the First Step act is, you know, this could have pretty severe consequences for individuals who might be eligible for re sentencing. Okay. Lightning round of court culture. Other things to flag. I am going to be watching the justices reactions to the election. And I think we need an Alito flag watch around November and in January.

 

Kate Shaw I think that’s right. Assorted other court culture. One thing to flag, to flag.

 

Melissa Murray We’ve got to stop saying flag. He’s ruined it.

 

Kate Shaw Enough vaccinology for this part of the episode. But we’re not I’m not promising it won’t come back in future episodes. So no flag so far that we know of over the home of Aileen Cannon. But she has made an appearance in ProPublica which reported that Judge Cannon failed to disclose her attendance at a May 2023 banquet honoring Justice Scalia at George Mason University. This was not her first such omission. She had previously failed to disclose some trips to Sage Lodge in Montana for Legal Colloquium sponsored by George Mason. She seems to be taking a page from Clarence Thomas on the appointments clause and illegality of Trump indictments. And so she may also be taking a page from the playbook of Justice Thomas on receiving largesse and not disclosing it.

 

Melissa Murray Speaking of unreported largesse, remember last year when the justices adopted a nonbinding guidance document that they tried to present to the public as an ethics code, the one we labeled a code of misconduct? Well, guess what? Those chaos monkeys decided that existing ethics rules were just a little too demanding on the justices and other federal judges. So the US Judicial Conferences Committee on Financial Disclosure issued an amended policy that says judges do not have to publicly disclose when they dine or stay at someone’s personal residence, even a personal residence owned by a business entity. Note that all of this would appear to make all of those PGA trips vacations at Harlan Crowe’s personal Adirondack retreat non disclosable. Remember, Justice Thomas had previously argued that he didn’t have to disclose any of this because it was all personal hospitality and the rules and policies were briefly amended to clarify that. He did have to disclose some of this, specifically the trips on a private jets. Well, now it’s been amended to say there’s no need to disclose those stays at your emotional support billionaire’s private Adirondack retreat because that stuff is private. The justices have unenumerated rights to privacy in their personal lives, unlike the rest of us. Losers or maybe just us loser women. But I’m glad that privacy is making a comeback, even if you have to have an emotional support billionaire to enjoy it.

 

Kate Shaw I mean, can you imagine, like surveying the landscape and deciding that what we need right now is a rule that makes clear that disclosure is not required? Like what?

 

Melissa Murray But I also think no one’s really picking this up. Like, I haven’t heard lots about it in the press. So I’m really glad that we are flagging the return of privacy right here.

 

Leah Litman We’re back at it.

 

Kate Shaw Can’t stop. Won’t stop.

 

Melissa Murray Cancel.

 

Kate Shaw I mean, it is a judicial conference. Like it’s not like the stuff of A-1 reporting, but it’s just really surprising to me because I do think that was some folks had lodged some hope in the judicial conference as at least maybe playing like a shaming function. But it does not seem as though maybe for those who cannot be shamed, there is just nothing in it for them. All right. Moving along. A couple of weeks ago, Melissa had a wide ranging conversation with Justice Kagan at NYU’s Birnbaum Women’s Leadership Network that touched on, among other things, an ethics code for the justices. What did Justice Kagan say for those who were not able to attend the conversation, Melissa?

 

Melissa Murray Well, let’s back up. Like, can we just explain, like the whole scenario how this went down? Listeners, we had this event with her and I. Not quite sure how she got my phone number, but one morning when Kate and I were in Austin, Texas, getting ready to record an episode with Jamie Raskin, I was stepping out of the shower and my phone rings and I thought it was like one of Raskin staffers saying that he was late or something. So I pick up and I’m all very agitated just out of the shower. I’m like, Hello, it’s Melissa. She’s like, Melissa, it’s Justice Kagan, girl. My jaw hit the floor. I was like, What? What? And then she’s like, Do you have a moment? And what did I say to her, Kate? As you know, I said, I’m sorry. I’m just getting out of the shower. Can I call you back? So I kind of told Justice Kagan, like I was like in a robe. And she was like, she’s very gracious about it. She’s like, that’s fine. We can do this any time. I’m like, No, no, no. I’ll call you in five minutes after I blow dry my hair. Like, that’s what I said to her. Like it just kept getting worse and worse. In any event, she was incredibly gracious and this conversation was fantastic. But she talked about and basically reprised some things that she had said earlier this summer at the Ninth Circuit Judicial Conference, where she called for an enforcement mechanism of the courts ethics code, whereby the chief justice would appoint respected lower court judges to apply the code to the justices. And again, not clear how the lower court judges would be pegged, what the criteria would be. But she said it was sort of a modest step, and I think that’s right. Interestingly, this very modest proposal from one Elena Kagan earned some real brickbats from the conservative legal movement. So Kelly Shackleford, who is a prominent conservative activist, called Justice Kagan, quote unquote, somewhat treasonous for helping to drive the efforts to make the court be ethical, although he apparently apologized for doing so. But this is the whole quote quote, that is incredibly, somewhat treasonous. What Kagan did, Mr. Shackelford said, You’ve got Kagan from the inside really being somewhat disloyal and somewhat treasonous in what she’s doing. And quote, and the best line of the whole interview was when Justice Kagan’s remarking briefly on the somewhat treasonous point, noted that she wasn’t going to say more about it, but that being somewhat treasonous was a little bit like being somewhat pregnant. And I was like, Is that some job snark? I think it might be maybe a little EMTALA snark.

 

Leah Litman Get a girl. Get it.

 

Melissa Murray I mean. Zero fucks Elena Kagan at NYU.

 

Leah Litman Exactly.

 

Kate Shaw We want more.

 

Leah Litman If you need to vent. You know, you can probably find my cell phone somewhere. Putting that out there. So a few additional things to note. Kate and Melissa talked with Amanda’s are off ski at the Texas live show. And during that she mentioned the films are Ascii versus Texas that had been made documenting her experience and the case challenging the Texas abortion restrictions. That film is now being shown in several places. And we had a listener write in sharing with us that the film is going to be shown in Tacoma, Washington, at Grand Cinema October 12th and 15th. So if you are in Tacoma and you want to check it out, you can go to Grand Cinemas website for the viewing details. On a somewhat related topic, but more sober and just got in, we wanted to make sure our listeners were aware of reporting by ProPublica that documents what I think are the first reported publicly reported instances of women dying because of state abortion bans. I remember when we had Jessica Valenti on the show earlier in a Dobbs retrospective. She said, We are just waiting basically for this to happen. We know it’s going to happen. And it did so in one case. ProPublica reports that Amber Nicole Thurman, a 28 year old mother, died from complications related to sepsis after a Georgia hospital delayed too long, providing her the procedural abortion she needed to remove fetal tissue that became infected when it remained in her body because she experienced an incomplete miscarriage. Thurman was planning on going to nursing school. She is survived by her six year old son and her mother. That is. Amber Thurman’s mother told ProPublica that as her daughter, Amber, was being wheeled into surgery because she was at that point on the brink of death. She said, quote, Promise me you’ll take care of my son. End quote. The facts are beyond tragic. Thurman had an appointment for a procedural abortion, but traffic delays caused her to miss it. And so she wasn’t able to have a procedural abortion. And Thurman died two weeks after attorneys for the state of Georgia had accused lawyers challenging Georgia’s draconian abortion ban of doing nothing more than, quote, hyperbolic fear mongering and, quote, a state medical board concluded Thurman’s death was preventable and that. A failure to provide her a timely procedural abortion had a large impact on her death. So at the event Vice President Harris did with Oprah Winfrey in Michigan, Thurman’s mother and family attended and spoke, and we wanted to play her remarks here.

 

Clip Initially, I did not want the public to know my pain and want it to go through in silence, but I realized that it was selfish. I want you all to know Amber was not a statistic. She was loved by a family, a strong family. And we would have done whatever to get my baby. Our baby. The help that she needed. When ProPublica. Came to my home. I pushed them away. No, no, no. But Kavita. She kept. She was persistent. She said it was something that you needed to know. You have to hear me. Women around the world, people around the world need to know that this was preventable. Two years later. After speaking with my daughters because I lost it, I lost hope. You’re looking at a mother that is broke. It’s the worst pain ever that a mother that a parent could ever feel for her father and myself and the family. You’re looking at it.

 

Melissa Murray Those are the very real life and death stakes of the decisions coming out of this out of control Rogue Maverick Court. So welcome to season six. We are going to be with you every step of the way. Pour yourself a Ginny Tonic or a Martha Rita. It’s going to be a long season. Are you ready to watch Minnesota governor, former football coach and iconic dad Tampon Tim Walz take on cat lady hating, birth rate obsessed, just plain weirdo Senator J.D. Vance. That’s right, folks. The vice presidential debate is finally upon us. And you listeners can join the Crooked Discord server on October 1st at 6 p.m. Pacific time, 9 p.m. Eastern time for a subscriber live chat. So join all the fun as it all unfolds. You can watch the debate, live, chat with fellow cricket listeners and laugh in real time. And as JD Vance says, keep those cat means coming. Are you not yet a friend of the pod? Well, you can change that. Sign up right now at cricket.com/friends and have access to all the fun on debate night.

 

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Kate Shaw Strict Scrutiny is a Crooked Media production hosted and executive produced by Leah Litman, Melissa Murray and me, Kate Shaw produced and edited by Melody Rowell. Michael Goldsmith is our associate producer. Audio Support from Kyle Seglin and Charlotte Landes. Music by Eddie Cooper. Production support from Madeline Herringer and Ari Schwartz. Matt DeGroot is our head of production. Thanks to our digital team Phoebe Bradford and Joe Matusky. Subscribe to Strict Scrutiny on YouTube to catch full episodes. Find us at YouTube.com slash Strict Scrutiny podcast. And 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 rate and reviews. It really helps.

 

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