After diving deep on a wild story about Justice Alito palling around with a German princess, Melissa, Kate, and Leah take a look at pending SCOTUS cases, including some that could be affected by the outcome of the election. They also take a look at a crucial case in the 5th circuit about Deferred Action for Childhood Arrivals (DACA).

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. Where your host today. I’m Melissa Murray.

Leah Litman I’m Leah Litman.

Kate Shaw And I’m Kate Shaw. And we’ve got a big episode for you today. We’re going to begin this one with a court culture segment. And trust us when we say we are covering the good, the bad and the ugly.

Melissa Murray The first part of that court culture segment will include a discussion of our favorite fanboy, Sam Alito’s recent efforts to up the ante on Supreme Court benefactors. Apparently, it’s no longer enough to have an emotional support billionaire. Now the hip kids have emotional support royalty.

Leah Litman We will then bring you up to speed on the court’s latest interventions in the election, since they obviously weren’t going to let the Fifth Circuit have all the fun. And we’ll discuss the cases that might be affected by the outcome of the election given that Election Day is tomorrow. And that will include a discussion of the Fifth Circuit argument and the challenge to the Deferred Action for Childhood Arrivals program.

Kate Shaw And then we will get to previewing what’s on tap right now. It’s actually pretty light at the moment for the November sitting. And now let’s turn to court culture on Sam Alito and the German princess.

Leah Litman So there have been an unfortunately large number of occasions where the country has been confronted with Hitler references, Hitler analogies, echoes of Nazism. As of late as the Supreme Court podcast, we thought maybe, just maybe, we might be able to avoid this. And Sam Alito had other ideas, so maybe we should back up for a second. Godwin’s Law or Godwin’s Rule is short for Godwin’s law of Nazi analogies. It maintains that as online discussion grows longer, the probability of a comparison involving Nazis or Hitler approaches one. And it seems Godwin’s law has come to the Supreme Court kind of like it’s not comparisons to Nazis or Hitler. There’s been enough of that in the electoral political space. Instead, it’s just that given the endless stream of stories about Supreme Court justices and the utter bedlam they are unleashing on the country, what’s the probability that a story about a Supreme Court justice has some loose connections to Nazis or Hitler? Apparently not. Zero.

Kate Shaw Apparently not zero. So amidst the many intersections in recent weeks between Trumpworld and Naziism, including reports from former White House Chief of Staff John Kelly that Trump wanted his generals to be more like, quote, Hitler’s generals. And the deeply disturbing rally at Madison Square Garden, The New York Times and specifically reporter Abby Vansickle at the Times released a story about friend of the pod and noted feminist Sam Alito and some of the new friends he has made. Specifically, Samuel Alito is apparently now close personal friends with one princess, Gloria von Thurn and Taxas of Germany. Did I pronounce that properly, Melissa?

Melissa Murray Yes. This is literally my Roman empire. Waiting for this story in real life. So, listeners, if you don’t know and why would you? Princess Gloria is something of an interesting story for royal watchers. She used to be kind of a baddie in the 80s. She burst onto the scenes in the 1980s after marrying the much older Yohannes Prince of 13 tuxes. Vanity Fair christened her Princess TNT. It’s a play on third and taxes, but it was also a play on the fact that her personality was like explosive. She had all this hair. She was really into partying. She befriended Michael Jackson. She partied with Mick Jagger and Andy Warhol and rode Harley-Davidsons like she basically did all of the stuff.

Leah Litman She was brat.

Melissa Murray She was bright, like she really was. And now, though, her views have changed or shall we say, evolved. So like any good party girl from the 1980s who had such a great time in the 1980s, she’s now pulling up the ladder for every one else. She now counts herself as an admirer of Hungary’s Viktor Orban. She’s also notably a friend of one, Steve Bannon. So make what you will of those friendships. And she’s also embraced a pro nativist perspective. So she has full on forced childbirth. And that is perhaps the connection that drew her, obviously, to one Samuel Alito.

Kate Shaw So the time reports on the origin story of this now epic friendship. So Princess Gloria evidently met Samuel Alito at a Catholic conference in Rome, and she, quote, immediately liked him and especially his wife, Martha, and whom she described as, quote, very fun, bubbly. Do we think the princess might also be very fond of flying flags? The story depends on the flag. Really feel like it does, but it feels like she has big flag energy from this story.

Leah Litman Many red flags in it. So.

Kate Shaw Yes, specifically, though, Begonia Flag, Red Verona, Red Flag Energy. Yeah. So I think maybe for the follow up. But my suspicion is. Us Very much so.

Melissa Murray Well, the princess told The New York Times, quote, I have admiration and great respect for the judge and I have respect for his wife, who is the manager behind the man, end quote, which we already knew. But that’s fine. The princess, as a guest of Samuel Alito toward the Supreme Court, where she posed for a photograph with Justice Alito and America’s favorite father of daughters, noted feminist and basketball coach Brett Kavanaugh. And the princess, in return, invited the Alito’s to the annual music festival she throws each summer at her palace, as one does. And so the Alito’s attended this festival in the summer of 2023. And according to The Times, this exposure to royalty, quote, opened up a world of European nobility to the justice and helped the princess promote her causes and her festival, end quote. Because obviously that’s what true constitutionally permissible friendship is for quid pro quos. Don’t ask what your friends can do for you. Well, actually, do ask and find out.

Leah Litman And then demand it. So at said festival, the Alito’s quote stayed in palace rooms, decorated with original works of modern art and meals and lodging at the palace were covered by the princess. And quote, the princess told the Times, I think, quote, Of course I didn’t charge him any expenses. That’s rude and quote, because if anything is rude, it’s Supreme Court ethics. How rude.

Melissa Murray The princess explained her friendship with the Alito’s in more detail, saying, quote, I met him as a Catholic and I realize that he’s a judge who is pro-life, unquote. I was surprised by this because I was working under the assumption that justices aren’t really supposed to have political views, but stupid me. Like, why would I assume that.

Kate Shaw I did appreciate one thing about the princess? Because she was pretty unfiltered in this conversation. And so we learned some things.

Leah Litman Wait until we get to her political views.

Kate Shaw Okay. So the princess went on in this conversation with the Times reporter to describe her anti-abortion views, an openly pro Neda list and pretty J.D. Vance ask really creepy terms. So she said, quote, The only thing I care about in politics is that somebody is fighting abortion and helping reproductive rates go up close quote, because that’s what you understand Sam Alito to be doing. And it wasn’t just the princess’s palatial music festival the Alito’s attended during this vacay. No. And this is where Godwin’s Law, which Leah was alluding to earlier, kind of comes in. So while on this vacation, Justice Alito told fellow guest that he planned to attend the Bayreuth Festival celebrating the work of Richard Wagner.

Melissa Murray Tickets for the Bayreuth Festival cost about $500 for premium seats, so definitely not for the please. And in addition to being incredibly expensive, they’re also inaccessible. People wait for years to get a spot at the Bayreuth Festival. But when you know people and when you know Princess Gloria, you can find a way in. And indeed, the princess secured a spot at the festival for the elite chose to attend as her guests. And this is where Godwin’s Law comes in because listeners, do you know who attended the Bayreuth Festival every summer from 1933 until 1939? Yes. That’s right. Hitler. Hitler. Who held out the work of Richard Wagner as emblematic of the Nazi regime. Wagner engaged in openly racialist anti-Semitic writings and advocacy. Very pro Reich in his oeuvre. But Hitler loved this stuff, and he loved going to buy. Right. And it’s a great music festival, I guess. But if you were a sitting justice of the Supreme Court trying to avoid really unsavory associations, you might just get the tickets to Taylor Swift and skip by. Right? Right. Like maybe especially if they’re tickets that are available as largesse from a European princess. But what do I know? In any event, lest you think that Samuel Alito’s royalist bent is just a one off, let’s do another detour this time through some reporting that recently came out from New York magazine. According to New York magazine, back in 2017, Justice Alito was wait for it knighted by pledging an oath to the sacred military. Constantini in order of St George. The order is recognized by the Vatican, but the knighthoods are administered privately. And as part of this new knighthood, Justice Alito got a cape blue cape that is valued at almost $1,000, and that is made by the pope’s tailor. I personally would have held out for die workwear guy and his railing analysis.

Leah Litman I want his.

Melissa Murray I want his analysis on the cape.

Kate Shaw Yeah, well, I want Alito to wear it on the bench so that we can all form our own opinions.

Melissa Murray I mean, I think, depending on this election.

Leah Litman When Sam Alito comes to the bench wearing this robe that is going to be a sign of dark times to come.

Kate Shaw What about in an inauguration?

Leah Litman Oh God. Kate stop.

Melissa Murray Or the State of the Union, State of the Union.

Kate Shaw He doesn’t come to say the union that he won’t do. But inauguration to attend.

Melissa Murray He might come if you could ask. It depends. It all depends. In any event, other members of the sacred military constantly in order of St George, include Michael less of it her, the VP of the Catholic Media Association and the brother of Trump’s campaign manager and the knighthoods are administered privately by the Borbon to Sicily’s family, which, as New York Magazine reports, is the subject of a neo borbon monarchist revival movement in southern Italy that seeks to return this noble family to power over its ancestral kingdom. And interestingly, American neo bore witness have a blog that advocates for, quote, a return to traditional religious and aristocratic principles, end quote.

Kate Shaw This what counts like this is fabulous. I’m like, we are completely I don’t know what kind of fanfic it is, but it’s some kind of, like, weird as real as fanfic. But all we’re doing is describing the reporting. This is so insane.

Leah Litman We are describing the family that administers the knighthood that Sam Alito became part of. And we’re recording this episode on Halloween and it’s already creepy.

Melissa Murray So I just I just want to say. Meghan Markle and Elena Kagan have the opportunity to do the funniest thing ever. Meghan Markle, please send some of that American Riviera Orchard Jam dog biscuits, send them to the Liberal justices so we can talk about that too.

Kate Shaw They do some freelance knighting like she should do some. She’s interested in freelance knight the liberals  of the Supreme Court. Is that because evidently like anybody any or self-proclaimed order can I don’t know just like to decide.

Melissa Murray Lets do it. The sacred order of Strict Scrutiny. Knight some people right and left. Commanders one and all.

Kate Shaw That’s right. So there is more. We cannot cover all of it, but there is a little more, I think I can’t resist sharing from this New York magazine business. So apparently supporters of this bourbon to Sicily’s.

Melissa Murray Bourbon.

Kate Shaw Bourbon, these are monarchists. Some of them have a history of links to the American right. Going back to the literal Confederacy. Some of their supporters fought for the South in the Civil War. Some of them actually still fly and adorn themselves with Confederate flags. Yeah. So I’m going to get as.

Leah Litman Fringe printed on the inside of that.

Kate Shaw Karl Rove. Good question. Right? Yes. Yes. Yeah. So as fringy and insane as this all sounds, this evidently, according to at least a historian who is quoted in the article, this constant Indian order and its religio politics are actually pretty important to some people in southern Italy and individuals in their kind of diaspora of southern Italian descent, as is Justice Alito. So this I’m not saying it’s not fringy, but this is actually like an outfit with some cultural power. And anyway, this is the order into which Justice Alito has recently been. Well, I feel.

Leah Litman As if every time every time we try to explore the dark recesses of Sam Alito’s mind and say, like, here is the kind of next level bedlam that. Lies in there. Something crazier emerges.

Kate Shaw I do not contemplate what we do not yet know. I know.

Leah Litman I know.

Melissa Murray But eyes wide shut. That’s all I’ve seen. Eyes wide shut.

Leah Litman So back to the first Royals scandal of this cycle. The Princess 21. As The New York Times reports, the princess apparently hasn’t spoken with the Alito’s recently, although she told The Times, as the Times reports, quote, She would love to see them the next time she is on the East Coast and quote, perhaps because of this loneliness, the princess is apparently in the market for other friends. And guess who’s on her list? Quote. Justice Thomas, because he looks so nice, end quote.

Melissa Murray Stares in Anita Hill look so nice.

Kate Shaw Speaking of nice, you’re going to.

Leah Litman Meet with Harlan Crow. That’s all I got to say.

Melissa Murray I mean.

Kate Shaw Does he have a palace, though, Like her palace?

Melissa Murray I don’t think.

Kate Shaw Hobbit. That was the Adirondacks ranch. But that’s a good point. Home. Sometimes you want to mix it up. Yeah. So I would imagine that an invitation will issue, and I can’t imagine. Justice Thomas.

Melissa Murray Can you just be there? Can you drive his lamp out there?

Leah Litman He does love those regular folk. I hear.

Leah Litman [AD]

Kate Shaw All right. So back to our agenda. We promised the good, the bad and the ugly. And we are now going to turn to the court and the election. Several emergency applications related to the election have already made their way to the court. There will no doubt be more, but those that have already come to the court, we wanted to bring you up to speed on now. So some of you may recall the court has already acted on an application out of Arizona. The court allowed Arizona to enforce its proof of citizenship requirement for people who sought to register to vote using state forms. Since that application and response, other applications have made their way to the court. So one out of Michigan, another out of Wisconsin. Those two have been resolved, but also a third out of Virginia also resolved. That’s where, you know, we come to the ugly, which we will describe in a minute. And there is a fourth case out of Pennsylvania.

Melissa Murray I’m still trying to think was the good part of the good, bad and the ugly princess glory. Is that where we floreana a time.

Leah Litman In the 80s that.

Kate Shaw We briefly forayed into? Good. That’s it.

Melissa Murray Okay. All right. The Michigan and Wisconsin cases that Kate mentioned relate to Robert f Kennedy Jr and his many efforts to take his name off of the ballot. Once he decided that he no longer wanted to run for president, when it became clear that his campaign was actually hurting the electoral prospects of one Donald Trump. So Robert f Kennedy Jr asked for his name to be removed from the ballot in various ways in several states and some state courts granted these requests, like North Carolina, for example, in a decision that shortened the window for early voting in order to accommodate this. But other courts denied his request, including those in Michigan and Wisconsin. And he then asked the United States Supreme Court to intervene.

Leah Litman On those applications. The court denied the Michigan application over a dissent by Justice Gorsuch. Makes me wonder whether the brain worms have come for Neil. Maybe we’ll be monitoring that situation. The court denied the Wisconsin application over no noted dissents. The Pennsylvania and Virginia applications present different issues. The application out of Virginia related to the state’s attempt to purge its voter rolls. So at the initiative of Republican Governor Glenn Youngkin, Virginia, removed people from the voter rolls, where the state says it determined that the state didn’t have adequate information corroborating their citizenship from DMV, Department of Motor Vehicle records.

Kate Shaw So the federal government and some civil rights groups sued Virginia, saying that these purges violated a federal statute called the National Voter Registration Act of 1993, which imposes a very clear 90 day period prior to an election during which states are not supposed to be pushing people off a voter rolls. And the reason for this period is so that any eligible voters who are wrongfully eliminated have a chance to correct that and can still do that in order to participate in the election that is pending. So states are certainly able to clean and maintain their voting rolls, but they’re not supposed to do it in the 90 days preceding an election. So a federal judge ruled on this challenge, ordering Virginia to restore some voters. The number was about 1600 who had been removed and to stop the process of removing voters from the rolls in light of the approaching election.

Leah Litman And there’s no question that some of the people Virginia removed from the rolls are citizens. You know, some of them are lifelong Virginians. And Virginia asked the Supreme Court to pause that lower court ruling. And then today, the Supreme Court did so by an apparent vote of 6 to 3 with all of the Republican justices in the majority and the three Democratic justices dissenting. And we should.

Melissa Murray Virginia is not for democracy loving.

Leah Litman Virginia, not for democracy, apparently. And the justices did this, notwithstanding the text of the federal law, which, you know, alluded to, it requires that, quote, any program, the purpose of which is to systematically remove the names of ineligible voters, be, quote, complete quote, not later than 90 days prior to the date of a primary or general election for federal office, end quote. So it seems like the Supreme Court took a page from the Fifth Circuit, which recall last week said that while dictionaries, a.k.a. textualism, are ordinarily useful to the project of determining the meaning of federal laws, that’s apparently not always the case, such as where dictionaries, words and textualism allow people to vote.

Melissa Murray So can I ask a question? I know that we’ve talked a lot about Purcell and the way that courts intervene at a point in time when an election is imminent or even ongoing. How does that impact this? Because, you know, on the one hand, maybe it seems like the court is actually following Purcell, but it doesn’t seem like it’s following it in a way that would reflect the spirit of Purcell, which is about protecting the integrity of the electoral process from official action.

Kate Shaw I would say two things. One, we have no idea what the Supreme Court was thinking when it reversed these lower court put on hold these lower court orders because it didn’t for King Tell us. Right. It has an unreasoned order with no explanation. In the face of these reasoned lower court opinions. That said, the statute is clear this violates it. But I have to imagine that the only justification that could at least facially supply a reason that the court could have done what it did here is they do think that some version of Purcell applies because what the federal courts did was to change what was happening close to an election. But that is just an insane way to understand Purcell if in fact that’s the understanding they’re operating under for. You know, I think a couple reasons. One, the statute here like has its own version of a no, you can’t interfere prior to an election rule. That’s what the 90 day period is. And to it would just like seem to give cover to any state official that wanted to mess with elections if they were doing it close enough to an election because any federal court seeking to block that action would run into the wall of Purcell and the Supreme Court saying like, no, no, you can’t because it’s too close to an election, like it would just eviscerate meaningful. I mean, is that is that how you understand the case law to.

Leah Litman Yeah, Well, it’s weird because you have this statute that, as you say, kind of channels this Purcell idea of states shouldn’t be doing things too close to the lead up to an election in order to disturb, you know, conduct of the election and confuse voters. But then, you know, you have a state doing this thing, ostensibly violating the statute. And to the extent the Supreme Court is invoking Purcell, they’re basically giving states a green light to act illegally, to violate federal law, maybe the federal constitution. In the lead up to an election, so long as they do it sufficiently close to the election that a court wouldn’t intervene. And that just seems nonsensical to me.

Kate Shaw But again, we’re just like purely speculating, which is one of the many enraging things about what the court did here, because it didn’t tell us. But the predicate for what Virginia at least did is clearly about this fearmongering, about non-citizens voting, which is a claim that Trump and many allies have been pressing despite the complete absence that this happens with any kind of frequency. This is definitely more of a vibe, but it’s a vibe that is essentially the new justification that they are going to use it to, you know, implement various kinds of restrictions on voting. We should note that as I think egregious as this Supreme Court decision is and as the decision by the Virginia officials to try to do this in the first place, in the face of this clear federal statute in Virginia, they have same day voter registration. So if you have been erroneously removed through this purge, which 1600 people were removed, many or most of them, clearly erroneously, you can still register and vote same day. So this should not be a deterrent to voting. But of course, that’s not a complete answer because this would increase the time that it takes to vote. And so to say like, no harm, no foul, you can always just register same day is pretty willfully blind to the burdens that that might impose on voters for whom it could be difficult anyway to make the time to vote. But all that said, what the court did here in Virginia is probably not going to affect the outcome of at least the presidential election. I don’t know. Virginia has had some very close state legislative races. Remember a few cycles ago there was a coin toss to determine the winner of a seat that ended up determining control of one of the chambers of the Virginia legislature. So 1600 votes is not nothing when it comes to these smaller races. And so I don’t know what effect in the final analysis it’s going to have, even if it doesn’t affect the presidential election. So finally, there’s an application arising out of Pennsylvania, which is a challenge to a decision by the Pennsylvania Supreme Court, finding that voters need to be allowed to cast a provisional ballot in person If their ballot, the absentee ballot they have completed is thrown out because they made an error in casting that ballot. Pennsylvania has notoriously and actually really confusing practices for absentee ballot voting. There are two separate envelopes. If you do not return your absentee ballot with the two separate envelopes separate and apart from the issue of dating the outside of the envelope, if you send make an error and don’t have both of those envelopes, in particular the inside envelope which is known as the secrecy sleeve, that vote will not be counted. So most counties in Pennsylvania were already allowing people to cast provisional ballots and to have those ballots counted if they made an error in their absentee ballot. And that’s what this litigation was about. And the Pennsylvania Supreme Court, in a divided decision, held that all voters in Pennsylvania need to be permitted to vote by provisional ballot if they make an error that results in the disqualification of their absentee ballot. It’s not a disruptive decision because, again, it basically aligns with what the Pennsylvania local authorities were doing anyway in most places. But of course, the RNC has now run to the Supreme Court and asked them on basically two different grounds. One, that this is a personnel problem. Right. We were just talking about this, that idea in Virginia that Purcell means the Pennsylvania Supreme Court could not clarify the rules in the way it did here, which I think, as I said in the Virginia example, just can’t be. Right. Right. Colleague Rick Pildes had a really good post about this on the election law blog. But like it, states will get tons of legal questions in the next few days and on Election Day in particular. And it can’t be that they can’t ever answer those. Jones When there is an ambiguity or inconsistent practice that needs to be resolved in state law. So I just. The Purcell argument seems to me complete nonstarter. And they’re also making the argument that essentially the state Supreme Court issued an interpretation of the Pennsylvania statute and, you know, informed by the Pennsylvania constitution that was so improper that it implicated this independent state legislature. Doctrine, I guess we now have to call it after Moore versus Harper and not theory, but the idea that, you know, there are limits on how state courts can interpret state laws having to do with federal elections and that the Supreme Court gets to enforce those limits.

Leah Litman The Supreme Court denied the Republican National Committee’s request to stay the Pennsylvania Supreme Court decision that allowed voters to cast provisional ballots. But and there’s always about Justice Alito, joined by Justices Thomas and Gorsuch, wrote separately to say that we shouldn’t read too much into that decision. That is, we shouldn’t rule out the possibility that the court might without the independent state legislature theory slosh doctrine in another case involving this election, perhaps even out of Pennsylvania. So Alito’s writing noted that the Pennsylvania Supreme Court’s opinion. Technically concerned just two votes that were cast in the long completed primary election. So staying that decision would not grant the RNC the relief they wanted, which is to prevent Pennsylvania election officials from allowing provisional ballots in the ongoing underway election. And Alito took pains to say he and the other justices were not rejecting the RNC’s independent state legislature theory claim on the merits. Indeed, he called the Pennsylvania Supreme Court opinion, quote, controversial. So the tldr is the Supreme Court isn’t going to say now that Pennsylvania officials can’t allow voters to cast provisional ballots. But it’s unclear if the Republican justices or at least some of them are kind of lying in wait to see whether the margins in this election are litigation proof before they potentially step in.

Melissa Murray But why might the court be so exercised to intervene in these matters? All this seems like a good time to talk about what’s really at stake in this upcoming election. And again, the stakes have been made even more clear over the last couple of weeks. So we had a news story from ProPublica about even more women who have died because an abortion ban delayed their access to needed medical care. The latest story focuses on Jocelyn Bonica, a young woman who suffered a miscarriage at 17 weeks of pregnancy in Texas. And the hospital, because of Texas’s abortion restrictions, had to wait before the medical professionals there could perform any kind of abortion procedure. And again, in the case of miscarriage, it is standard operating practice to perform what is known as a D and C or some other abortion procedure to remove the remains of the fetus and any other fetal tissue from the uterus in order to prevent sepsis and also to allow the woman to preserve her fertility going forward. But in this case, Jocelyn Barnett had to wait 40 hours in order to receive miscarriage care, and that delay proved fatal. She suffered a hideous infection because of the accumulated fetal tissue in her body, and that infection spread throughout her body. And she died three days later when she died. She is survived by a daughter who at the time was not even two years old.

Kate Shaw And we should note that these events Melissa was just talking about were actually in 2021. So this is before Dobbs But it was after Texas had nullified Evo versus Wade in that state through SB eight, the Texas Bounty Hunter law. And actually, the date of this miscarriage was September 3rd, 2021, which was just two days after the Supreme Court allowed SB eight to go into effect. Right. Its fatal consequences were that swift.

Leah Litman And as the ProPublica story notes, you know, they are looking back on medical records from 2021 because State Maternal Health Commission’s, their review is so delayed, you know, we probably won’t know about and won’t hear about many of the stories that have been happening under Dobbs for a while. And so ProPublica is trying to look into some of these cases and medical records to tell us like what is happening in the aftermath of Dobbs in the absence of abortion protections. So the piece draws a comparison between deaths in the United States that have resulted from abortion bans and deaths in other countries that resulted from abortion bans, because in other countries, those deaths spurred the countries to reform their abortion laws so as to prevent women from dying because they were denied medical care. The piece drew parallels between Bonica story and an Irish woman’s view to Halappanavar, who died from sepsis after being denied an abortion when she experienced a miscarriage at 17 weeks. And the country was so horrified by what happened, they revised their strict abortion laws.

Kate Shaw But will that happen in the United States? That is part of what voters are deciding in this election and will decide tomorrow. If you haven’t voted before today or tomorrow, vote tomorrow in person. In a recent interview, the president of the Texas Medical Board, Dr. Sharif Zafran, said, quote, There’s nothing we can do to stop a prosecutor from filing charges against physicians. And ProPublica reports that when asked what he would tell Texas patients who are miscarrying and unable to get treatment, that they should get a second opinion and that they should vote with their feet and go and seek guidance from somebody else. So the question is, is that the country that we’re going to live in and might that general state of affairs obtain nationwide, not just in a subset of the states like those are the stakes of this election.

Melissa Murray And indeed, perhaps to stave off an election where voters could actually express their desire to live in a country where women are not dying because state laws prohibit doctors from offering them lifesaving medical treatment. A new ish political action committee has been running ads that obscure what a potential second Trump presidency would mean on the question of abortion. So this new PAC calls itself the r, b G PAC, and that is actually ghoulish because, you know, the RB gs him they are referring. In any event, the RB G PAC is running ads that misleadingly suggest that Donald Trump does not support an abortion ban, even though he has one never vowed to veto an abortion ban or two. He has never disclaimed the prospect of enforcing the Comstock Act as an abortion ban. And again, that would not require congressional action at all. There would not have to be a new law. All you would need is a new attorney general willing to enforce that long dormant law from 1873. Number three, Trump has never disclaimed any interest in having the FDA reverse its approval of Presto and one of the drugs in the current two drug medication abortion protocol. So these are all very real possibilities in a second Trump presidency, an abortion ban that he doesn’t veto the enforcement of the Con Stock Act and a reversal of the FDA’s rules around its approval of Presto. And of course, at a minimum, a Trump presidency means that the federal government will not do anything to stop states from enforcing their abortion bans that are literally killing women, including enforcing the terms of that federal law and tala that says that states have to provide the stabilizing treatment, even if it is an abortion in these life threatening circumstances.

Kate Shaw And as a reminder, there is still litigation happening in federal court over the meaning of an tala in states like Texas and Idaho that have laws that conflict with the guarantees of an tala. So there is litigation happening in the ninth Circuit after the Supreme Court basically took an off ramp in that case. There’s also litigation that is going to kick off in Idaho state court that is quite similar to these Iraqi litigation in Texas that we’ve covered extensively. So women who were denied abortions that were medically necessary are suing the state, seeking clarification that there is a meaningful medical exception in the state law. So we’re going to keep a close eye on that case as a proceed.

Leah Litman So we have talked about how the election could affect the Supreme Court, including possibly its personnel. Justices Alito and Thomas seem to us, you know, likely to step down in the event Trump wins a second term, allowing Trump to replace them with 40 year old forced childbirth enthusiasts who like securing a hyper conservative Supreme Court for decades, moving the needle closer to fetal personhood. You know, the theory that would have the courts ban abortion nationwide and some of the cases the court is currently hearing could themselves change with the election? One is committee scheduled to be argued in December. That’s the case challenging the ban on gender affirming care for minors. And this case could be affected because it was actually the United States that sought certiorari. The Supreme Court review in the case. It was the U.S. under the Biden administration that asked the Supreme Court to review the lower court’s determination that the ban on gender affirming care for minors was likely constitutional.

Melissa Murray It’s really difficult to imagine a Trump administration continuing in the current posture that the federal government has adopted vis a vis for many. So that’s a major change. I think if there were a Trump presidency, I just don’t think we’d have the federal government taking the same approach in a similar vein. It’s also likely that the Ghost Guns case might also be one of those cases where the federal government’s position would be changed because of a change in the administration. As you know, the Biden administration regulation classifies ghost guns and ghost gun kits as firearms for purposes of federal law. It’s possible that under a Trump administration, if that happens in the election, a Trump administration could change that position and agree with the lower court that the regulation is invalid. So there’s another possibility of real and meaningful change that would happen just because of the election.

Leah Litman And of course, there are some lower court cases that could be effect. Voted by the election as well, including the currently ongoing challenge to the Deferred Action for Childhood Arrivals program, which we’re now going to cover. So in early October, the Fifth Circuit heard argument in the ongoing challenge to Dhaka, which is the program begun under President Obama. That program announced the administration’s plans to forbear immigration enforcement. That is not to remove certain people who came to the U.S. as children and also allowed Dhaka recipients to apply to obtain work authorization. So this case has a really complicated procedural history. It has been already up at the fifth Circuit. It went back down to the district court. But the short of it is, the district court has once again attempted to declare Dhaka illegal, although they stayed that decision as to current Dhaka recipients. But the issue that’s now up at the fifth Circuit is whether the Dhaka program is unlawful and whether the court is going to force the administration to end it. So that is the oral argument that the Fifth Circuit heard early in October. And the case has really bad, scary vibes. You know, the one slightly positive note is that Texas appeared to agree that the stay and the case should remain in place while the case is being litigated. That is, unless and until the Supreme Court takes up the issue, Dhaka recipients will be able to remain in the program.

Melissa Murray If the court takes up the issue, the first question it will have to address is the question of standing. And Judge Higginson, who was nominated to the Fifth Circuit by President Obama, focused on how the state’s theory of standing and injury really fell apart insofar as it seemed to presume that Dhaka recipients would leave the United States if the program ended. Essentially, he asked in so many words, Where are the F? Is there any evidence that Dhaka recipients would leave the country? The only home that they have actually known is the United States. So why would they leave if Dhaka ended? So there we are on the injury question.

Kate Shaw He also deployed the Supreme Court’s recent decision in another case. Also caption United States versus Texas. That’s the case that involved Texas’s challenge to President Biden’s immigration enforcement priorities. And in that case, an eight one decision by Justice Kavanaugh found that Texas did not have standing to challenge those enforcement priorities. And here is how Judge Higginson invoked that case.

Clip My listening to the government, my concern is that IP. Change is a huge sea change in three ways. So I’ll just ask you about these three questions first. I mean, most obviously, Justice Kavanaugh is rebuking our court with eight justices to one, saying that hereafter states cannot use district courts to usurp federal immigration policy.

Leah Litman So he also tried to impart a little history and tradition into the analysis, trying to hold Texas to the standard that abortion providers were held to in order to prevail in their case.

Clip So my question to you is, what case would what would you point to as the history and tradition that allows states to go to a district judge to stop nationwide foreign policy and then immigration?

Leah Litman And in response to this question, the Advocate brought up the 2015 case challenging Dapa, the Deferred Action for Parents of American Citizens Program. And Judge Higginson responded, No. Asked for some real history and tradition, bro.

Melissa Murray That was a paraphrase.

Leah Litman Yes, that was.

Kate Shaw So as Leah suggested, when she was enjoying this case, it’s a really frightening case, you know, very frightening possible outcome. This is a program that is now the result of notice and comment rulemaking, the kind of legal infirmities that the Fifth Circuit found with the related program Dapa had to do with how the program was constituted. That argument no longer applies here. And yet both Texas and, you know, the district court have just engaged in this kind of Whac-A-Mole game where whatever the administration does, they’re so deeply hostile to Dhaka that they will find a legal theory that they can latch on to to invalidate it. And it just does feel like that’s what the Fifth Circuit was looking for, too. And about ten minutes ish into the argument, one of the Republican appointees on the court, Judge Clement, seemed to signal that that is where the Fifth Circuit might be headed in this case. So let’s play that clip.

Clip I have a question about the potential injunction. If we’re inclined to uphold the district court’s injunction, should we limit it to Texas only? And if so, is that really feasible to limit it just to one state?

Kate Shaw So if that’s what happens in the Fifth Circuit, we could see a frontal challenge to Dhaka at the Supreme Court sometime soon, although it’s also possible that if there is a Trump administration, they might actually go through the process of trying to rescind using notice and comment rule making Dhaka and maybe put the litigation on hold. But very, very scary prospect.

Leah Litman [AD]

Melissa Murray All right. Now, with all of that taken care of, let’s get down to our other business previewing what the court will hear in its upcoming November sitting.

Kate Shaw And I’m not going to lie with the election looming. It is very difficult to focus on this sitting, but we will just give you a brief overview of the cases. First of them is EMD. Sayles versus Pereira, a case about the burden of proof to establish an exemption from the Fair Labor Standards Act. So, you know, the Fair Labor Standards Act sets forth certain wage and hour requirements, and an exemption means that employees who are exempt wouldn’t be entitled to those protections. And the question in this case is whether the burden of proof for employers is a preponderance of evidence or clear and convincing evidence, which would be a higher burden. So the case could make it easier for employers to establish that the FLSA, which guarantees again, overtime pay and wages, doesn’t apply to particular categories of exempt employees.

Melissa Murray Okay. Next up is Velasquez versus Garland. And this is an immigration case about how to calculate the time period or deadline for voluntary departures. Voluntary departure is when an individual removes themselves rather than being deported from the United States. It’s a remedy or process that’s offered to some people in immigration proceedings, but not to others. And if it’s granted, you have 60 days to voluntarily depart or file a motion to reopen your case. But there are stiff penalties for failing to depart within the allotted time period, including fines and ineligibility, to obtain a bunch of important forms of immigration relief. The question here is when the voluntary departure period ends on a weekend or a public holiday, are you then in violation of the voluntary departure rules? If you file a motion to reopen your case on the next business day? If you file a motion to reopen, you are essentially asking immigration authorities to reopen your case such that you don’t have to voluntarily depart while the motion is being adjudicated.

Leah Litman Now, the general default rule is that legal deadlines falling on weekends or public holidays carry over to the next business day. It’s in the civil rules and the Supreme Court’s rules. So the question is whether that default system applies to immigration law.

Melissa Murray Next up is delegate versus United States, which is about whether a crime that requires proof of bodily injury or death, but can nonetheless be committed by failing to take some kind of action, has as an element the use or attempted use or threatened use of physical force such that it qualifies as a violent felony under aka the Armed Career Criminal Act, aka imposes enhanced penalties on certain people who are convicted of unlawful firearm possession. Those with three or more prior convictions for violent felonies and Acca defines violent felonies as, among other things, crimes that have as an element the use, attempted use or threatened use of physical force.

Leah Litman And the kinds of prior convictions at issue in Delgado involve second degree murder or manslaughter, where someone might have acted recklessly or with what the law calls a depraved heart. And one of the ways the statutes can be violated is by failing to take an action. And that failure results in the death of another. The defendant argues that if someone fails to take action, say, by not providing medical care, the bodily injury or death, that result isn’t from force, but instead from some biological process that caused the individual’s death. And as the federal public defenders argue in their amicus brief and it’s worth keeping in mind, even if these crimes don’t constitute crimes of violence, triggering ACA’s mandatory minimum, courts can obviously still take them into account at sentencing and sentence the defended toward the applicable statutory maximum.

Kate Shaw Okay. Another group of cases to briefly briefly note first, Wisconsin Bell versus United States ex Todd Heath, which is about whether reimbursement requests submitted to the FCC’s E-Rate program are claims under the False Claims Act. Second advocate Christ Medical Center versus Becerra, which is a case about whether the phrase entitled to benefits includes everyone who meets basic program eligibility criteria, whether or not benefits are actually received. And this is a question that affects reimbursement rates under Medicare. A case from, I think, two terms ago, Basara versus Empire Health had said that the phrase entitled to Medicare Part E benefits included all people qualifying for Medicare. This case involves a question left open by that case, which is whether entitled to SSI benefits includes all who qualify for benefits, including those who may not receive them.

Melissa Murray The court will also hear next week Facebook versus Amalgamated Bank, which is about whether risk disclosures are false or misleading when they don’t disclose a risk that materialized in the past. In addition to the Facebook case, the court will also hear Nvidia Corp versus E, Orman, J or Fonder AB, which is about whether plaintiffs alleging scienter, which is a mental state, a guilty mind under the Private Securities Litigation Reform Act based on allegations about internal company documents, must plead with particularity the contents of the documents, and also how to satisfy the falsity requirement. Whether that can be done by a varying an expert opinion.

Leah Litman So we wanted to end by sharing an additional extra clip from the oral argument in Royal Canon versus Walsh Schlager. The case on federal jurisdiction argued in October, and this clip came to us on a recommendation from some students at Maryland law who listened to the argument as part of their Civil Procedure study group. And so we wanted to play the clip they were amused by. So you can enjoy it as well.

Clip You think that the courts of appeals read our decisions differently than we may? You know, on the Court of Appeals for 15 years, if I saw a strong dictum in a Supreme Court decision, I would very likely just salute and move on. But here we have more of an obligation. It depends. Justice Sotomayor.

Leah Litman Once again, this seems to underscore that absence did not make anyone’s heart grow fonder of Sam Alito and his penchant to destroy precedent in the name of whatever game he is playing. Maybe to preserve aristocratic rule, I don’t know. And obviously, this is a delightful clip. Sometimes we’re not able to highlight absolutely everything from an argument, but we appreciate your notes calling our attention to certain clips.

Kate Shaw All right. Let’s talk about election coverage. Crooked’s Daley, part of what a day will be fresh in your feeds with Jane coaston breaking down. What you need to know in 20 minutes. Positive America will be releasing new episodes starting next week with in-depth analysis of the latest news every morning until the race is called. And in case the Trump campaign is feeling loose with their legal challenges, we will be stopping by shows across the network to unpack breaking news. Plus, we will be dropping bonus episodes on the feed for those who want more. You can find all of this on your favorite podcast platform and on YouTube.

Leah Litman Also about the election. Did you know that when voters cast a ballot by mail, if a requirement isn’t met like a missing signature, it gets rejected. And if a voter doesn’t take action to cure or fix their rejected ballot, their vote doesn’t get counted. During big elections, thousands of mail in ballots are often thrown out. And right now, thousands of voters ballots are facing these issues and a ton of them may not even be aware of those errors or the deadline to cure them. And that’s why we need your help reaching these folks, because this election is going to come down to a tiny margin in a lot of these key battleground states. The ballots we can cure right now could be the tipping point in taking back the House or stopping a Donald Trump presidency. Take action right now and help cure ballots at Vote Save America dot com forward slash cure. This message has been paid for by Vote Save America. You can learn more at Vote Save America dot com. This ad has not been authorized by any candidate or candidate’s committee.

Melissa Murray Strict Scrutiny is a Crooked Media production hosted and executive produced by Leah Litman, Me, Melissa Murray and Kate Shaw. Produced and edited by Melody Rowell. Michael Goldsmith is our associate producer. We get audio support from Kyle Seglin and Charlotte Landes. Our music is by Edie Cooper. Production support comes from Madelyn Herringer and Ari Schwartz. Matt DeGroot is our head of production and we are grateful for our digital team. Phoebe Bradford and Joe Mataskey. Subscribe to Strict Scrutiny on YouTube to catch full episodes and find us at YouTube.com. Slash at Strict Scrutiny Podcast. 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 review us. It really helps.