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Kate, Melissa, and Leah preview the cases the Supreme Court will hear this week, explain the latest news in the Trump criminal cases, and survey the significant decisions happening in lower courts.

• Read Melissa and Kate’s article in the Harvard Law Review, “Dobbs & Democracy“
• Read Melissa’s article from the Houston Law Review, “Children of Men: The Roberts Court’s Jurisprudence of Masculinity“
• Pre-order The Trump Indictments: The Historic Charging Documents with Commentary, by Melissa Murray and Andrew Weissmann (code STRICT10 gets you 10% off at check-out!)

 

TRANSCRIPT

 

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Show Intro Mister 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.

 

Leah Litman Hello and welcome back to Strict Scrutiny, your podcast for the last few weeks about efforts to hold Donald Trump accountable via judicial processes. But more generally, we are your podcast about the Supreme Court and the legal culture that surrounds it. And we are still your hosts. I’m Leah Litman.

 

Kate Shaw I’m Kate Shaw.

 

Melissa Murray And I’m Melissa Murray. And today we have updates on several of the cases against Donald Trump. And once we’ve covered those. Give us a few moments. We will look ahead to the arguments that the court will hear this week and some of the big arguments that the court will hear the following week. And then after we’ve done that, we will have a healthy dose of court culture to get you up to speed on all of the things that have been happening in all of the other court. So buckle up, listeners. It’s going to be a fun and rollicking ride.

 

Kate Shaw And just for a little bit more detail on what we have in store, that court culture segment at the end of the episode is going to involve. First, the good, the bad, the ugly happening in state courts. We’re going to cover Pennsylvania, Hawaii, Florida and Wisconsin, some important LGBT rights cases percolating in the Sixth Circuit, the latest antics out of the Fifth Circuit on things like qualified immunity, federal sovereignty at the border, labor rights and more. And at the very end of this episode, we’re going to have a guest segment about some things you can do to get involved if you’re amped up about state courts in particular. But before we get to all of that, as Melissa just mentioned, we have some updates on some of the Trump cases. So let’s turn to those now.

 

Melissa Murray All right. So listeners, we have some updates related to Donald Trump’s suit for immunity in the DC federal court case. That’s related to January 6th. So you will recall that the District of Columbia Circuit unanimously rejected his claims of immunity in this case, after a very lengthy period in which we were writing a very long, methodical decision that took a long, long time. But they eventually came to the conclusion that Donald Trump was not entitled to immunity. And they reached that decision unanimously. Well. As we expected, Donald Trump filed his state application on Monday, February 12th. The state application is his request to put on hold that D.C. circuit decision, rejecting his immunity claims and allowing the district court to begin trial proceedings. And just so you’re clear on how absolutely ludicrous his arguments are. I would recommend to you our episode about that decision. We did a bonus episode where we canvased all of these arguments and we said, yeah, check out these are dumb arguments that Donald Trump floated and the D.C. circuit was absolutely correct to reject them out of hand.

 

Leah Litman Yeah. In brief, he’s kind of relying on double jeopardy principles rather than, say, the actual principle of double jeopardy clause. But anyways, consistent with form. True to form, Donald Trump’s request of the U.S. Supreme Court was also quite audacious. So he is seeking not just a stay pending him seeking certiorari in the U.S. Supreme Court, but a stay that would allow his team to first seek en banc review, i.e., review before the entire D.C. circuit, before he chooses to seek cert in the Supreme Court. So it’s not just stay in the D.C. circuit.

 

Melissa Murray That would take a lot of time.

 

Leah Litman Exactly, exactly. Might be the plan here. So, you know, he’s not just asking for a stay of the D.C. circuit mandate, but kind of modifying their decision and in a way that would allow him to prolong and push off a trial for potentially quite a long time. And his reasons for asking for this are kind of rather transparently to get some delay. So in his brief, he wrote, quote, he that is, Trump is the leading candidate for president in 2024. Footnote not exactly sure that’s true, but you know, put that to the side. Continue. Quote. Conducting a monthslong criminal trial of President Trump at the height of election season will radically disrupt President Trump’s ability to campaign against President Biden, which appears to be the whole point of the special counsel’s persistent demands for expedition. End quote, he’s saying, right, I would like delay. And he is imputing bad motives to special Counsel Jack Smith when this entire motion is a delay tactic.

 

Melissa Murray It’s almost like he never wants to get to a trial where a jury will get to weigh in on whether he committed crimes. Why would that be?

 

Leah Litman Hard. Hard to speculate. It’s almost like he thinks he is above the law and, you know, in that vein.

 

Melissa Murray Or that a jury might actually convict him.

 

Leah Litman Right. And since he.

 

Melissa Murray And that would be a real issue.

 

Kate Shaw All polling does seem to suggest that voters actually might care if someone’s been convicted.

 

Melissa Murray Yeah. Bad.

 

Leah Litman Yeah. So in this vein, he also writes, quote, without immunity from criminal prosecution, the presidency as we know it will cease to exist. End quote. An interesting observation, given that the president has never enjoyed immunity from criminal prosecution. It is really Trump’s arguments that would fundamentally change the presidency as we know it, and basically create a law free zone where anyone who holds the office of the president can kind of do whatever they want that has some tangential connection to their office and do some crimes in the process.

 

Kate Shaw Great. So that’s what he’s asking. And when it got Trump’s filing this stay application, the Supreme Court requested a response from special counsel Jack Smith by Tuesday, February 20th. So that was the deadline was like a little over a week following the initial state application. But Smith got his homework done very, very early. He filed his response just two days later on February 14th. So happy Valentine’s Day, Scotus. And as expected, that filing by Smith’s office and in particular by criminal law expert Michael Dreeben, who used to be in the AG’s office and then was in private practice and then has come back into government to join Smith’s team. So in his response, he urged the court to deny the state request. And the filing really did try to focus on, you know, what Leah and Melissa were just talking about, kind of like what’s really at stake here. So the filing reminds the court that at issue are alleged acts that, quote, strike at the heart of our democracy. That’s what is being charged. The filing also emphasized that on any fair application of the standards for granting a stay, the stay just has to be denied. Trump does not have a fair likelihood of succeeding in his novel immunity arguments. You’re only supposed to get a stay if you have a fair chance of succeeding on the merits of your argument. It is also the case that the public interest is clearly in having this trial happen, so that a jury can decide whether Trump is guilty of trying to overturn the results of a presidential election. And public interest is also an important factor in deciding whether to grant a requested stay first, the response says do not grant this day, but it also says if the court does decide that Trump’s arguments do need to be reviewed, that the court treat this filing as a petition so it not give him another opportunity to file a petition for surgery, know that it treat this application as a sought petition that it granted, and that it consider the case on a wildly expedited schedule. And specifically, the Smith filing says the government proposes a schedule that would permit argument in March of 2024, consistent with the court’s expedition of other cases meriting such treatment, including, I think, conspicuously, the 14th Amendment case, the court heard argued last week. Trump then filed his reply the day after. Smith filed his response. So at the stage the case is ready for decision and we could see some action, I think as early as today or later this week.

 

Melissa Murray We also got an update on one of the other cases in which Donald Trump is a defendant. Just to make clear, there are four other cases in which Donald Trump is a defendant.

 

Leah Litman For criminal cases.

 

Melissa Murray Yes. I’m sorry. Correct. Thank you. Leah. Wild times. Wild times and clarification is often needed. I am referring, of course, to the New York State case that involves the Manhattan DA’s office prosecution of Donald Trump for falsifying business records in conjunction with efforts to perpetrate election fraud or to violate campaign finance laws. The trial judge in that case, Justice Juan Merchan, announced that proceedings in the trial will begin on March 25th with jury selection, and that means that the New York case is likely to be the first of these four criminal cases to actually get to a trial. And again, I think that is really significant. One of these cases is going to go to trial, and this one going first is likely to wind up in an actual verdict. And this particular jury verdict, if it is a conviction, is one that Donald Trump, even if he is elected president, really can’t do much about. He cannot pardon himself because this is a state conviction, and he’s not going to be able to dispatch the Department of Justice to get rid of this prosecution or to interrupt it in any way. Now, that said, this particular case is not necessarily the most high stakes set of charges that Donald Trump is subject to. So, you know, this has been discussed a lot in the media. People sort of derisively call this case the hush money case, because essentially the falsification of business records was done in service of the payments of hush money to Michael Cohen to cover up Donald Trump’s alleged affair with Stormy Daniels. So it’s a little tawdry, it’s a little salacious, and it doesn’t seem to have the same heft as the January 6th indictment that deals with the election interference in that broader context. But I think it’s really interesting how Alvin Bragg has begun to talk about this case. So he very conspicuously is not calling this a hush money case, but rather is talking about this as a species of election interference, that the payments of hush money were really about defrauding the voting electorate. As to the nature of this relationship between Stormy Daniels and Donald Trump on the eve of an election, in order to make Donald Trump a more palatable political candidate. So I think that’s really important. Judge Marchant seems like he is ready to move. When it became clear that the January 6th trial is not going to start on March 4th, as predicted, he kind of slid in there and said, well, we’re ready to go. We can pick a jury and we can do this. So it seems that there’s some coordination going on, or at the very least, these judges are watching each other and the proceedings. There was also a request from Donald Trump’s lawyers to change the venue on the view that Donald Trump cannot get a fair trial in Manhattan where of every four voters, three is a Democrat and Justice Merchan and kind of beat that back very handily, saying, you know, this case is well known, it is a subject of national inquiry. So you might as well just stick to Manhattan. So that change of venue request was denied.

 

Leah Litman So if you would like greater insight into the different procedural decisions that paved the way for this case to proceed to trial first, as well as the nature of the New York charges and how they relate to election interference, then cannot recommend highly enough. Melissa Murray’s forthcoming book with Andrew Weissman, The Trump Indictments, The Historic Charging documents with commentary. It includes all of the indictments in one place, together with commentary explaining again the basis for the charges, the relevant state laws and federal laws and their context that will help you kind of understand the nature of all of these cases. And in some ways, it’s fitting that the New York case is going first, because as you talk about in the book, Melissa, like, this is criminal activity that kind of preceded the presidency and, you know, began right at the start of his holding the office. And so here we are.

 

Melissa Murray It’s like an amuse bush of crime.

 

Leah Litman Exactly.

 

Melissa Murray Really. Like, a sampling to get you started. Of course, the really meaty indictments that everyone is sort of really preoccupied with are these election interference indictments related to January 6th. And that, of course, is the Jack Smith federal indictment, but also the Fani Willis state level indictment in Georgia, where there are a number of different charges, including Georgia Rico charges. So like racketeering and corrupt organization influencing charges, there was a lot that went on in Georgia. Like the devil went down to Georgia this week and boy, did he have a time. So if you haven’t been following what’s going on in Georgia, friends, Michael Roman, who is one of the defendants in that 19 person criminal indictment that Fani Willis issued, he essentially. Launched the argument that Fani Willis is ethically compromised in her prosecution of Donald Trump and the other 18 defendants, on the ground that she improperly appointed Nathan Wade to be a special prosecutor on the case. And why that appointment was improper was because wait for it. He alleges that Fani Willis and Nathan Wade were engaged in a romantic relationship prior to the appointment, and after the appointment they continued in their romantic relationship, and Nathan Wade used the funding for his position to basically go on fancy trips to Belize and Aruba and all these places, and he took Fani Willis with him, and apparently they were so romantic in those places on the taxpayer dime. And so Fani Willis should be disqualified from prosecuting this case, and this should be turned over to an independent entity in Georgia to identify a new prosecutor, likely one that doesn’t have the same experience doing Georgia Rico trials that Fani Willis does. And then maybe this will all fall apart. That’s the whole thing. Also worth noting that even before Michael Roman launched this attack on Fani Willis, there were efforts to use state laws and state administrative processes to get her off of this case or to limit her prosecutorial authority in this case. So those failed. But now we have this. So, Leah, we should talk about what we’re down in Georgia. I mean, because I know it was like reality TV.

 

Leah Litman Yes, it was maybe first just kind of like a high level thing. I think on one hand, interpersonal relationships among the prosecutor’s office is not exactly the kind of thing that gives rise to conflicts of interest or disqualification, like when a partner on the same side. Exactly, exactly. The usual issue is when the prosecutor might have a relationship with defense counsel, judge, jury witness or something like that. That being said, I do think it reflects poor judgment to hire someone with whom you might be in a relationship, or to start a relationship with someone you have hired into the office. But again, I don’t think it gives rise to the mere optics. Of course. Of course we have talked about.

 

Melissa Murray You don’t dip your nib in the company ink.

 

Leah Litman Well, that, and we have talked so many times about how prosecutors have had to on the side of being perfect, right? And giving Trump every single benefit of the doubt, because they know there is this ecosystem in which their actions will be attacked over analyzed and anything will be used against them. And so they have to comport themselves in very reproachful ways. Exactly. And this wasn’t that.

 

Melissa Murray This was always going to be a hard slog for her. And they were always going to attack her, but she kind of knew they were always going to attack her so.

 

Leah Litman Exactly.

 

Kate Shaw This, this didn’t help.

 

Melissa Murray Did not help.

 

Kate Shaw This gave them something that they were. Yeah, that they were going to seize upon. And I think you’re right, they were always going to attack her no matter what. But this is, you know, conduct that they can definitely make political hay out of. And even if there are still, I think, open questions as of our recording on Friday, when did the relationship star.

 

Melissa Murray There was a friend who said it started in 2019. I mean, this is how it got to be like The Real Housewives of Fulton County.

 

Kate Shaw It was very salacious, for sure. And that means we’re talking about that. We’re not talking about Donald Trump’s alleged crimes.

 

Leah Litman We’re not talking about the fact that he is recorded. There is a recording of him telling people to find votes. Right. That’s what this case is about.

 

Melissa Murray I mean. That’s important too. I mean, like whatever happened with Fani Willis and Nathan Wade and whether they were having sexy time or whatever, the charges against Donald Trump and these 18 other defendants are still valid. They’re still proper. Like there’s nothing untoward about them. And I will say, Fani Willis took the stand and just sort of, you know, lay out her version of things. And I think she had to do it because Nathan Wade absolutely bungled this. So she took the stand, a very unusual move for a prosecutor. Her lawyers had been basically trying to get her not to take the stand. And finally she’s like, no, no, no, I’m going to come in and handle this. And she kind of did handle it in a way. So she really pushed back on a lot of the narratives that were being lofted. She did not benefit financially from this relationship, she says. Like she always paid him back. She paid him back in cash. There are some eyebrows raised about, you know, why do you always pay in cash? And she was like, I keep a lot of cash in my house. I’m not super surprised by that. Like black people have a very tenuous relationship with traditional financial institutions. Marissa Bergara and NYU law graduate law professor at UC Irvine has written a great book on this How the Other Half Banks. That didn’t surprise me. But, you know, there were some people on Twitter who was like, why do you have so much cash on hand? It’s like, you know, dude, this is sort of where, you know, different communities may have different norms around institutions that are common in society. But she really pushed back.

 

Leah Litman I also appreciated her noting that while one reason she takes this money when she is traveling with a man or on a date with a man is, you know, women know they might sometimes need an escape plan, right, if things go south. And so that’s why, you know, she had some of this cash on hand. You know, I don’t think I am usually like a prosecutor, Stan. But there were moments in her testimony that were absolutely iconic, like when she said, a man. Is not a plan. He is a companion. I mean, like, she did the thing.

 

Melissa Murray And she also said you were trying to make me a defender. You know who’s not a defendant here? Fani Willis. Fani Willis is not a defendant. Fani Willis is not subject to 91 criminal charges. Right? Yes. Right. I mean, you know, funny, Willis may have 91 problems, but a criminal charge ain’t one.

 

Leah Litman Yeah. While we were recording, we got an update on the Trump civil case. Or at least one of the Trump civil cases. And that is the one brought by Tish James that seeks various remedies from Donald Trump and people in a circle, the Trump Organization for.

 

Melissa Murray Did we conjure this because we did just say like we’re only talking about the criminal cases and then you said, but what about the civil cases? And I said, no, no, you’re right. We’re just talking about the criminal case. I think we made this happen.

 

Leah Litman You know, it’s a very strong possibility.

 

Melissa Murray Maybe we are witches.

 

Leah Litman Well.

 

Kate Shaw Did you did you just didn’t think hard about 350 million.

 

Melissa Murray I declassified it with my mind first, and then I was like, I conjured it.

 

Kate Shaw And now everybody else gets to know about it. Yeah. Well.

 

Leah Litman Well. So that was really the starting point. So the decision by Justice Engoron, orders over $350 million in damages, but I think the figure will actually be even higher than that because it also orders the various defendants to pay interest on those funds dating back a few years, and that could push it to over $400 million. The decision did not actually give Attorney General James everything she asked for, but that’s still a huge amount of money. And when you add that to the Carroll verdict, I think we’re about to find out a lot about Donald Trump’s finances. Like, where is the money? Is he going to have it, where is it going to come from, etc.?

 

Melissa Murray I think we may also find out why campaigns are so important and fundraising is so important to him.

 

Leah Litman Yeah.

 

Kate Shaw And taking over the RNC is so important. That too.

 

Leah Litman Oh my gosh. Yeah. So the decision bars Donald Trump from leading his organization and serving as an officer for three years, but not forever. The decision also notably reversed the court’s earlier corporate death penalty. That is his order dissolving forcibly the Trump Organization. Other penalties were imposed on Trump’s two adult sons, Don Jr and Eric, as well as officers of the Trump Organization. The decision also noted that the Trump family is, quote, complete lack of contrition and remorse borders on pathological.

 

Melissa Murray Accurate.

 

Leah Litman Right? Probably have more to say about this ruling. But again, that was kind of breaking news during our recording.

 

Kate Shaw What are we going to conjure next week ladies?

 

Leah Litman A man is not a plan.

 

Leah Litman This man is definitely not a plan.

 

Leah Litman Let’s just anchor on Ken. Right?

 

Melissa Murray Roses are red, violets are blue. I have a judgment. How about you?

 

Leah Litman Do you have $350 million? Do you?

 

Melissa Murray [AD]

 

Leah Litman So that sums up kind of what we have, at least as of recording for the Trump cases. So now we can kind of go to the briefings.

 

Go back to our regularly scheduled programming.

 

Leah Litman Exactly, exactly.

 

Melissa Murray Correct. Okay. So what’s up at Scotus this week. So let’s preview some of the cases. The court will hear oral argument this week. The first case that I wanted to highlight is actually several consolidated cases that are about an Environmental Protection Agency program that’s designed to address pollution. And the principal case in the set of consolidated cases is called Ohio versus EPA, the court added. These cases, which are actually several emergency applications to its regular merits docket, and it will now hear arguments on all of these application. So it’s going to hear arguments on whether to stay the EPA’s rule, which is at issue here. And before we get into the merits of this request and the nature of the rule, we wanted to note how basically unorthodox this is. Right? So friend of the show, Steve Vladeck, has said that this is only the third time in 50 years that the court has heard arguments under circumstances like these. So this is a situation where no lower court has ruled that this EPA regulation is unlawful or illegal. So we heard the petitioners are asking the court in the first instance to block the challenged rule before there has actually been a judicial ruling on the regulations ultimate validity. This might raise some standing questions about injury and other things, but why let justiciability get in the way of a good time? And so again, while we think it is a good thing that the court is deigning to hear arguments on this quite audacious request and didn’t just grant the requested stay application without argument, we shouldn’t lose sight of the fact that this is still a really unorthodox and even audacious request here. Even with an argument, this is not how things are typically done. You don’t challenge a ruling before the ruling has been judged to be impermissible or permissible. So there we.

 

Leah Litman Are. Yeah. But on the merits, which it seems like the court is interested in diving into, the cases involve an EPA rule about smog and air pollution, and the rule is known as the good Neighbor rule. And it’s called that because the rule is about precautions that upwind states have to take in order to protect downwind states. I kind of wanted to call it the Pumba rule, you know, like, and it hurt that my friends never stood downwind. No, nothing.

 

Kate Shaw My kids would love that.

 

Leah Litman So the core issue is simple, you know, protecting us from breathing in pollution and also protecting the planet from the sort of pollution that is a huge contributor to the climate crisis. But this simple issue involves a really complicated regulatory backdrop and litigation history. So the regulatory backdrop is the Clean Air Act requires states to produce a state designed implementation plan. Sometimes that’s called a SIP. In order to meet the EPA’s goals, states submit their plans to the EPA for approval. If the state hasn’t submitted a satisfactory plan, the EPA can adopt a federal plan, and the state has to abide by that federal plan.

 

Kate Shaw Okay, so that’s what happened here. The EPA adopted a federal plan after it concluded that 23 states had failed to submit adequate plans to comply with the ozone standards. Now comes the procedural complexity. In this case, there was other litigation, not the litigation, that resulted in this case that challenged the EPA’s initial disapproval of several states plans, and that litigation arose as follows. So the EPA rejected certain state plans, and then the state sued in court, challenging the EPA’s disapproval of their plans. This litigation. So the case that’s before the Supreme Court now arises out of other states challenges to the EPA’s federal regulations. That is the federal plan. But the other litigation challenging the disapproval of the state plans is in the mix, right? It’s something that the challengers say is a relevant consideration to this litigation, which is, again, not about the original disapproval of the state plans, but a federal rule that the federal government adopted.

 

Melissa Murray So the plaintiffs here, states and industry groups are essentially challenging the federal plan on a number of different grounds. Some of their arguments against the federal plan relate to the challenges to the EPA’s disapproval of the state implementation plan. So specifically, they say that the fact that courts have invalidated the EPA’s disapproval of the state plans, i.e., the stuff that happened in the other litigation, means that the federal plan at issue in this litigation is invalid. Though the courts invalidated the EPA’s disapproval of those other state plans after the federal plan was created. But the EPA also concedes that it can’t apply its new federal rule to the states that successfully challenged the EPA’s rejections of their plans. Because the new rule depends on the EPA’s prior determination that the state plans were invalid. So if you’re catching the gist of this all to say that it’s kind of a. Us.

 

Kate Shaw So the messy part really is about the interaction between the earlier conclusions about state plans and how that litigation interacts with this litigation. But there are also a set of kind of cleaner, although bad, freestanding arguments, right? Independent challenges to the EPA’s federal rule that aren’t about the disapproval of state plans. So basically, these plaintiffs say that the EPA didn’t adequately consider a bunch of stuff costs or compliance timelines, the amount of permissible emissions regulation of both power plants and non electricity generating unit emissions, and basically that the EPA used a different and new methodology to evaluate plans. So we have a bunch of swirling, complicated arguments, a bunch of more familiar arguments that the usual plaintiffs always trot out every time the EPA tries to do any significant regulation, to protect our lungs and the planet. And in general, given the court’s recent track record on environmental regulation, it’s hard to feel super optimistic about this case. So think about cases like West Virginia versus EPA, which we’ve talked about. That’s the Clean Power Plan case, Sackett versus EPA, which is about the Clean Water Act, utility air regulation group. That’s a case that we haven’t really talked about, but another environmental case. So so I think that, like the one takeaway from recent litigation is that the single greatest threat to planet Earth right now is the conservative supermajority of the Supreme Court. So I guess, please, please prove us wrong, justices.

 

Melissa Murray Kate, again, your optimism is just so sweet.

 

Leah Litman Sam Alito’s like, burn it down.

 

Melissa Murray I mean, Kate, this case basically is like blank versus EPA. Like the EPA is going to lose.

 

Kate Shaw Like all the minutes we just spent explaining the like, the complex sort of background litigation, regulatory, totally unnecessary. All you need to know is the capture.

 

Melissa Murray Sam Alito is like, I got a blank space and I’ll write your name, Ohio.

 

Kate Shaw Yep.

 

Melissa Murray So while the court is essentially making it unsafe for climate justice and environmental safety, it may actually turn a corner and make things a little better for consumer and civil plaintiffs. Right. So there’s another case on tap for the city. And it’s called Bissonette versus Le Page Bakeries Park. And the issue in this case is who exactly is exempt from the Federal Arbitration Act. And for those of you who don’t know, the Federal Arbitration Act is a law that makes it very difficult for individuals to challenge arbitration agreements. So and again, we’re all subject to arbitration agreements, whether we know it or not. Sometimes when you click through for Apple or whatever or any number of different consumer kind of contracts, you are actually subjecting yourself to arbitration as the method of adjudication for any claims that might later arise. And it’s very difficult for individuals to challenge the nature of those arbitration agreements. Under the FAA, contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce are not subject to the Federal Arbitration Act.

 

Kate Shaw And there has been a ton of litigation about what the any other class of workers language means. In this case, the Second Circuit said that in order to be a class of workers engaged in foreign or interstate commerce, the workers had to be in what the Second Circuit called the transportation industry. That’s in addition to being, you know, involved in foreign or interstate commerce. The plaintiffs here are commercial truck drivers who haul goods for Flowers Foods, which manufactures wonder bread. And the Second Circuit said, no, they’re in the food industry, not the transportation.

 

Melissa Murray This was quite a white bread interpretation. I have to say.

 

Leah Litman So while the Supreme Court has been pretty into expansive readings of the Federal Arbitration Act, what the Second Circuit did here seems more than a little inconsistent with the Supreme Court’s prior cases on this exemption. So we could be headed for another rare win for plaintiffs in a federal Arbitration Act case. And we should note that the lawyer arguing for the plaintiffs in this case, Jennifer Bennett at Gupta Wessler, is the lawyer behind several of those other recent wins as well. So we’ll kind of set the stage for this. The Supreme Court’s earliest decision on this exemption, known as Circuit City, the court said the exemption applied to, quote, employment of transportation workers and, quote, not to workers in a particular industry. Then one of the more recent cases in New Prime versus Oliviera, which is one of Jennifer Bennetts wins the court in a unanimous opinion by Justice Gorsuch, said the exemption applies to independent contractors as well as employees. And we wanted to play some clips of Bennett’s stellar argument in New Prime that helped secure this win. So here’s one illustrating her mastery of the history and context of the Federal Arbitration Act, showing she really knows how to speak the justices language.

 

Clip And again, we know that these statutes, in fact, were applied functionally. The historian’s brief describes dozens of cases in which the Transportation Act was applied to independent contractors or people working for independent contractors. And the second goal of the statute, as Circuit City explains. Beyond these specific conflicts is that Congress was concerned generally with transportation workers role in the free flow of goods. The FAA was enacted in the wake of years of labor unrest in the transportation industry that had repeatedly shut down commerce. And I want to note that this labor unrest, Prime says that it was only common law employees of the railroads. That is, in fact, not true. The sharp strike, which happened just before the FAA was passed, was caused in large part by workers who were not common law servants of the railroads that they were striking against.

 

Melissa Murray And in another one of Bennett’s wins, Southwest Airlines versus Saxon, she seems to have gotten the court to really lay the groundwork for the theory in this case. Bissonette, which is that there’s no freestanding requirement that workers be in the transportation industry as opposed to a group or class of workers who are engaged in transportation. Saxon, which was a unanimous opinion by Justice Thomas, said that the exemption applied to workers who load and unload cargo from airplanes.

 

Kate Shaw And in and the court seemed to say that the availability of the exemption depends on the actual work done by plaintiffs or the class of workers to which the plaintiff belongs. Not like generally what an employer does. And the court defined class of workers as those who load and unload cargo on and off of airplanes. Here’s a clip from that argument where Bennett lays out her theory of what the exemption means, which makes it clear, I think, that it would be available to this case as well. In addition to the airline workers that she was representing in Saxon.

 

Clip And what’s the narrower test if she decides to go that route? Sure. So the narrower test would simply be, a class of workers that is engaged would be understood to be engaged in foreign or interstate commerce, which at the very least would be people who handle goods while they’re in commerce. So anybody who handles goods while they’re in transportation from the start of the transportation, when they’re given to the carrier to the end.

 

Leah Litman So we look forward to hearing Jennifer Bennett’s argument. In this case, we should note that what’s especially impressive about her wins in the case is we just talked about New Prime and Saxon is that she won both cases as the respondent, that is, as the person who had already won in the lower courts. That’s additionally impressive, because the Supreme Court often takes cases, in part because they think the lower court messed up. So when your respondent, that is, you are defending a win below, it’s sometimes an uphill battle. But she pulled it off in both of those cases.

 

Kate Shaw Another case we wanted to briefly mention that’s on deck for this week is Corner Post, Inc. versus Board of Governors of the fed. This is kind of a sleeper case involving when challenges have to be brought under the Administrative Procedure Act. So here a business brought a lawsuit challenging a regulation regarding credit card swipe fees. But the regulation went into effect a long time ago and well before the company was in business. So here the lower court said no, an EPA challenge has to be brought within six years of the publication of the rule that you’re challenging. But the company is arguing that, no, the statute of limitations actually doesn’t start running until the impacted party hear them is affected by the rule, even if that’s like way, way, way, years, decades after publication of the rule. So again, they lost below. But if they were successful in this argument, it might open the possibility of just tons of challenges being brought to old regulations. So I think not so much because of this particular credit card regulation, but more broadly for the ability to challenge regulations writ large. We’re going to keep a close eye on this argument. And then ultimately the opinion in this case.

 

Leah Litman So the court is also going to be hearing two big cases next week. And we will talk about these cases in depth when we recap the arguments. But we did want to put them on your radar because they are both really huge. And one is a significant gun case, though it is not a Second Amendment case about a federal restriction on what are called bump stocks. So this case is Garland versus Cargill. And it involves a challenge to the Bureau of Alcohol, Tobacco and Firearms interpretation of federal law that restricts machine guns. And ATF said that machine guns include bump stocks, which are devices that convert a semiautomatic rifle into something that can fire many, many, many, many, many more bullets more quickly. And bump stocks were used. And the mass shooting in Las Vegas, which is today the deadliest mass shooting event in the United States. And so this case is about whether the federal government, under federal law, has the authority to restrict the use of bump stocks. So again, we’ll come back to this case more in depth. But it’s super important.

 

Melissa Murray The ATF promulgated this rule in the wake of Las Vegas. So it’s directly responsive to that mass shooting. And you know just going to say I’m not really sure what the court is going to do about this, because this kind of layers on two pet issues of the conservative supermajority, the real enthusiasm for an expansive Second Amendment, although this is not a Second Amendment case per se, but it will certainly. To be talked about in those terms. Plus, the antipathy for the administrative state and the idea of the ATF, the sort of politically appointed body, but with unelected, unaccountable bureaucrats staffing it, making these kinds of regulations about people’s real rights, like the Second Amendment.

 

Kate Shaw Although although there might be a cross-cutting issue here, because this was the Trump administration that did this bump stock role so that could potentially cut across, you know, it cut their hostility is obviously disproportionate.

 

Melissa Murray This is going to be an interesting argument I think. Yeah.

 

Kate Shaw But and then just quickly it’s not a Second Amendment case. It’s really just about whether the ATF had the power to interpret this ban on machine guns, to include bump stocks, which functionally convert guns that aren’t otherwise machine guns into prohibited machine guns. And so the on the ground consequence is really important. The interpretive consequence is really important.

 

Leah Litman So the court is also going to be hearing a big pair of cases that are captioned under net choice. And these cases are challenges to Texas and Florida laws that really are attempted takeovers, government takeovers of social media. So both laws purported to have the government tell social media companies that they had to post certain content and that they could not restrict certain content, even though the social media companies wanted to. So the cases are about whether such laws violate the social media company’s First Amendment rights. The court had previously stayed a lower court decision that had allowed one of these laws to go into effect. I think that’s a pretty good indication that the court is likely to find these laws invalid. should also note that pairing up in the cases challenging these laws, we have both Solicitor General Elizabeth Perry, lawyer, as well as Paul Clement, arguing that these laws violate the First Amendment. So that combined with the court’s previous ruling, I think the court will end up ruling against these laws. But again, we will turn to the arguments about them once the argument actually happens in the cases.

 

Melissa Murray So there’s lots going on at the court this week and next week. Of course, we did not go into everything. We will make sure to come back to some of these really important cases when we recap the oral argument, but for now, that’s enough of an amuse bouche to set you up for your Supreme Court listening for the next week or so.

 

Leah Litman [AD]

 

Melissa Murray Leah, do you want to introduce our next segment?

 

Leah Litman We have our lengthy court culture segment where we are going to try to catch you up on everything, or at least some of the things that have been happening in other courts.

 

Melissa Murray So this is the good, the bad and the ugly of state courts. But first up, the good news. Don’t worry, we will have plenty of time to get into the bad news. First up, some of the really good decisions. I think the kids are calling these baddies bops, if you will. So let’s talk a little bit about the Pennsylvania Supreme Court. So the Pennsylvania Supreme Court issued an important decision on abortion and reproductive rights. The case involved the state’s ban on Medicaid funds to cover abortion. Medicaid is the federal program that provides health care to indigent individuals, and at the federal level, Medicaid funds cannot be used to fund abortions, and a number of states have followed by also limiting the use of their state Medicaid funds for abortion and other reproductive services. The Pennsylvania Supreme Court did not invalidate that ban, but they did issue an important ruling that will shape how courts assess the challenge to the Medicaid restriction. The Pennsylvania Supreme Court said that the legal challenge to the Medicaid restrictions on abortion were governed by a very demanding standard of review, one that requires the state to come forward with a really important reason for restricting the use of state funds for abortion, and to show that other methods of achieving its goals would not suffice.

 

Kate Shaw So the justices on the court offered different reasons for why courts have to look closely at the Medicaid restriction and essentially require the state to really prove that the restriction is valid and necessary. So a plurality held, and this is really important, that abortion is a fundamental right under the state constitutions right to privacy. But it was a plurality, not a majority. So there are five justices, actually only five justices on the court now. But when the case comes back, depending on how the Pennsylvania state Supreme Court elections go, that plurality opinion could become a holding of the court. This is one of the many reasons to double down on state and local elections, including for courts. You can make an enormous difference and very, very quickly.

 

Leah Litman In 2025, three Pennsylvania Supreme Court justices will each be on the ballot for an up or down retention vote. And that is in addition to the vacant seats to which additional justices will be appointed.

 

Melissa Murray So by the time this gets back to the Pennsylvania Supreme Court, if the elections go in a direction that those favoring reproductive rights would like, there may be more justices on this court who will be poised to make what is now a plurality ruling, a ruling of an actual majority.

 

Kate Shaw And when the case comes back, a majority of the court could also maybe hold that abortion bans discriminate on the basis of sex under the state constitutions Equal Rights Amendment. That was also reasoning offered in this case. And that amendment prohibits discrimination on the basis of sex. And in that portion of the opinion, the court cited our own Melissa murray’s work, so that too could become an opinion of the court. Depending on what happens in.

 

Leah Litman This should be the campaign slogan make Melissa Murray’s work and views the law, right?

 

Melissa Murray I love that!

 

Leah Litman Everyone can get around that. Everyone can get around that.

 

Kate Shaw It will turn them out.

 

Leah Litman Exactly.

 

Kate Shaw Yep.

 

Melissa Murray Make the law great again.

 

Leah Litman Yes, exactly. So we assume that this Pennsylvania decision simply follows Ineluctably from Sam Alito suggestion in Dobbs that we return this issue to the States. You can hear Melissa’s giggle because, of course, Pennsylvania came back with cool. Abortion is a fundamental right, and abortion restrictions discriminate on the basis of sex, to which we can only imagine Sam Alito saying, not like that. We wanted to, give a tip of the hat to a listener for suggesting this imagined dialog, though in our minds, it’s very real. Between Sam Alito and the state of Pennsylvania.

 

Melissa Murray Pennsylvania’s gotten too woke for its own good according to Sam Alito. We also wanted to highlight this not just because these developments in Pennsylvania are cool, but because many of you have asked us in emails sliding into our DMs, whatever about the impact of the Equal Rights Amendment. So some of you have asked if we passed the Equal Rights Amendment, would that be a way of limiting draconian abortion bans? And, you know, we’ve been a little equivocal on this because, you know, we noted that the 14th amendment, for example, was really limited by a conservative Supreme Court. And we posited that if the Equal Rights Amendment was to be ratified in May, part of the Constitution, there are open questions about the ratification process at this point. You know, this Supreme Court might not be the most amenable to a broad interpretation of an era, but we’ve also noted that the federal government in the federal Constitution isn’t the only entity that can think about equal rights and amending a charter to include more robust protections for equal rights. And indeed, many state constitutions have their. Own eras and many more are incorporating eras into their constitutional text. And here’s the real output. We’re seeing this at the state level, and it’s really important. And again, a real way to preserve abortion rights in a landscape where abortion is becoming increasingly inaccessible.

 

Kate Shaw But only if you have the right composition of state high courts. Right. Like that is the big takeaway.

 

Leah Litman Yeah. Just to bring this home. Right. This makes the upcoming Pennsylvania state Supreme Court elections all the more important. Last year’s race for a vacancy on the court saw $20 million in spending. So the race in 2025 is probably going to be even bigger. And now is the time to start getting involved.

 

Kate Shaw And speaking of big important and in this case, really, really good state high court decisions. We wanted to highlight a decision that’s really notable and really important from the Hawaii Supreme Court.

 

Leah Litman The Aloha State, and it’s full of aloha, full of aloha.

 

Kate Shaw We are just plotting our return and have been really since we left. Here is another reason to be really excited about what is happening in Hawaii, and that is that Justice Eddins issued an opinion and concluding that under the Hawai’i Constitution and specifically the Second Amendment to the Hawai’i Constitution, there’s no state constitutional right to carry firearms in public. And a lot of the reasoning in the opinion is about the history and traditions of Hawai’i, including the fact that its constitution was ratified against a backdrop of a clear legal landscape where the Second Amendment did not provide rights to carry firearms in public. But it also focuses on the state’s unique history and traditions, including law that protects all people, great and humble, and especially the vulnerable. And here I’m quoting from the opinion the law imagines free movement without fear, living without need to carry a deadly weapon for self-defense. So just the the kind of crediting of countervailing constitutional values in debates about gun regulation that has been so absent from the Supreme Court, and a lot of federal courts grappling with questions of gun rights, like all of it, on glorious display in this Eddins opinion.

 

Leah Litman Yeah. And it’s especially, I think, meaningful to be recognizing this history in the wake of yet another mass shooting event in the country, you know, at the Kansas City Super Bowl parade commemorating the Kansas City Chiefs. And this opinion by Justice at Ends also quotes former Chief Justice Warren Burger statement, which we have played before on this podcast, that the very idea that the Second amendment protects an individual right is, quote, one of the greatest pieces of fraud. I repeat the word fraud on the American public by special interest groups that I’ve ever seen in my lifetime. And, quote, justice Eddins also quotes another piece by Melissa Murray, her keynote lecture that appears in the Houston Law Review, Children of Men The Roberts Court’s Jurisprudence of Masculinity. So, once again, state courts people make Melissa murray’s views. The law make the law great again. I don’t think.

 

Melissa Murray I’ve ever been cited next to Warren Burger. It’s it feels illicit and thrilling honestly.

 

Leah Litman This is the aloha spirit.

 

Melissa Murray Aloha. Yes.

 

Leah Litman If you and Warren Burger are on the same page, like, what does that make the current U.S. Supreme Court?

 

Melissa Murray Good question. These are these are the questions. All right. So that’s all the good slash baddie states that we have to talk about. Now let’s really get into the bad news. The bad news Bears states. And first up is the Sunshine State. Flori-duh. Florida, as you know, is one of the states that may consider a ballot initiative that would protect reproductive freedom in state law and in the state constitution in the wake of Dobbs. And this is especially important because Florida has been an access point and a haven for reproductive rights and access to abortion in a geographic region that has very quickly become a reproductive rights desert. In the wake of Dobbs.

 

Kate Shaw And Florida’s potential consideration of this reproductive rights, ballot initiative is part of a pattern of using state law and state constitutions to protect abortion rights. In the wake of Dobbs, we’ve already seen this successfully happen in Michigan and Ohio and Kansas and elsewhere. And it may be we still have to see how signatures are gathered, but there may be similar ballot initiatives on the ballot in up to 14 states this coming November. So this is an effort that is happening in many, many states, not every state, because not every state allows it. But in most states where this is possible, there are people on the ground gathering signatures and trying to make it happen. But what’s happening in Florida is this really troubling development that mirrors a troubling pattern we have seen emerge elsewhere, as voters have tried to use real democracy to add protections for reproductive freedoms to state constitutions, and that is efforts to resist even putting these questions to the people in the first place.

 

Leah Litman So Melissa and Kate wrote about this very dynamic in their recent Harvard Law Review article, Dobbs and Democracy. And the Florida Supreme Court heard a case that is about whether this ballot initiative will be allowed to actually get on the ballot. So some people are arguing that the language in the ballot initiative is allegedly misleading, or that it violates other state rules about permissible ballot initiatives. And a Florida Supreme Court justice, the chief justice decided that this is an opportunity to go all in. In on fetal personhood.

 

Melissa Murray And fetal personhood. If you’re not fetal personhood forward is just the idea that fetuses are for purposes of constitutional law and statutory law, individuals entitled to rights. And on that logic, constitutions would therefore require abortion restrictions and prohibitions because they’re essentially like homicide prohibitions or restrictions. So if we were to be fetal personhood forward, it would mean that legislatures couldn’t actually protect abortion rights, regardless of ballot initiatives, regardless of measures that state legislatures take. Because fetuses are persons imbued with certain rights that cannot be restricted by the state through the provision of certain services that are actually forms of homicide to the fetus. And so in this particular situation, the concept of fetal personhood is being used to potentially bar voters from enshrining abortion protections into the Florida state constitution. And we’ll play the clips in a second. But the chief justice’s point here is that the ballot initiatives have to disclose whether they would alter other provisions in the state constitution. And as the chief justice says, who is to say whether fetuses are in the state constitution? And you haven’t made it clear that this amendment might alter the status of fetuses in the state constitution, which, just so that we’re all really clear, does not currently exist in the Florida Constitution. So let’s roll those clips.

 

Clip Does the state have a position on whether, an unborn child at any stage of pregnancy is covered by, article one, section two, the basic rights provision. And the reason I’m asking is we have a lot of precedent from the court saying that, one of the things that a summary has to do is identify the effect of any proposal on other constitutional provisions. And it seems like it’s kind of self-evident that the proposal gives people notice that it’s going to affect legislative power. But it seems like the issue of whether the unborn have any rights under article one, section two, independently of whatever is a matter of grace the legislature might want to do, or as an exercise of legislative authority. It seems like this this proposal kind of assumes that the Constitution is currently silent on that issue. And if that assumption is wrong, then it seems like it might have implications for what we need to do here. Right? We just haven’t taken a position on on that here. On if, if sort of the bare minimum is that people need to be on notice as to what is the Constitution do now and what are you proposing to change? Can we evaluate that without taking a position on whether the current constitution legally, not morally or politically or whatever, but legally speaks to this issue of, any kind of rights for the unborn under this Declaration of Rights provision? Let me ask you about this personhood issue. It kind of assumes that the Constitution, as it exists right now, is silent as to as to any rights of the unborn. And I don’t know if that assumption is correct. And so, I guess, I mean, maybe a more direct question for you would be, can we say, as a matter of law that the term all natural persons excludes unborn children?

 

Kate Shaw All right. So as those clips make clear, this was really the thrust of his points during the argument. He wanted to press repeatedly this idea. Fetuses are or at least the state has to take a position on whether fetuses are rights bearing entities under the Florida Constitution. And we have highlighted rhetoric in this vein before, but it’s approaching the two year mark. Post. Dobbs, we may be in for the first judicial writing to explicitly endorse fetal personhood. That does seem possible. And yet I don’t want to overplay the importance of this rhetoric. I do think the people on the ground in Florida fighting for this initiative, including a former justice of the Florida Supreme Court, Barbara Perry, who I was on a panel with last week, do think that notwithstanding this rhetoric from the oral arguments, this will make it onto the ballot come November. There’s still a high threshold to make it over. Like Florida law requires that an initiative like this command a 60%, not a simple majority vote in order to go in to the Florida Constitution. So that is a high hurdle. But there’s at least a degree of optimism that notwithstanding this rhetoric, the Florida court is not going to stand in the way of the Floridians actually deciding whether these protection should be in their constitution. Melissa said we were turning to the bad news, but this is actually I have we’re zigzagging a little bit because I have like a little bit of mixed news out of Wisconsin, and I just wanted to highlight something. We often highlight oral arguments and opinions, but of course, a lot of things happen in the wake of opinions and in legislatures and lower courts. And I just wanted to highlight some developments in Wisconsin since the Wisconsin Supreme Court struck down the state legislative maps as violating the state constitutions requirement of contiguity. Okay, so maps are no good. And now there are a bunch of proposed maps out there. So the Wisconsin legislature, after threatening to impeach Justice Janet and then backing down from that impeachment threat, has now passed into law, the Democratic governors map. And now the governor has to decide whether to sign that map into law or to veto it. And if he vetoes it, that likely means that the Wisconsin Supreme Court would be in the position of choosing the state’s legislative map. And there are, as I said, a bunch of competing maps out there. There is one, the so-called right map rigged that actually seems like it has a chance of turning Wisconsin into a genuinely functioning democracy, which it has not been in recent cycles. Right. That is a state that translates majority will to election outcomes. If the governor signs this map, I am sure Wisconsin Republicans are going to challenge the map that the legislature just passed. And if that happens, a three judge court, a federal court with two members appointed by the conservative Seventh Circuit Judge Diane Sykes, will decide about the legality of the map. But if the governor vetoes the legislatively passed map, there’s a chance that the Wisconsin Supreme Court could adopt the right map and that it would go into effect. So I know this is like a little bit in the weeds and whatever way this goes, I expect the Wisconsin GOP is kind of scorched earth. Litigation tactics will continue, and they’re going to try to get a court to strike down whatever the new map ends up being. But there is just a very technical but very high stakes fight happening on the ground in Wisconsin about the map right now. And the results might really impact the face of democracy in November and going forward. And so thanks for indulging something that is not really about like a big court decision, but is about what happens after a big court decision and what could happen that might lead to another set of challenges and court decisions. So I think we have to continue to keep our eye on Wisconsin.

 

Melissa Murray Speaking of that good news or mixed news in Kate’s case, let’s move on to talk about what is happening in the federal courts of appeal. So first up, some questions about qualified immunity. And these questions come from one of the circuit courts that is a traditional favorite in this segment court culture. And that of course is the Fifth Circuit.

 

Kate Shaw Wait, one of or the favorite? Wow.

 

Melissa Murray I mean, I can’t imagine there’s any other comes up a lot. Don’t know that it’s a favorite.

 

Kate Shaw It is the most frequent guest in this portion of the show, the Fifth Circuit, I think.

 

Leah Litman I think that’s definitely right.

 

Melissa Murray Definitely, but not necessarily a friend of the pod.

 

Kate Shaw No. Fav favorite was probably the wrong word.

 

Leah Litman Hasn’t reached that status just yet. So a few weeks ago, the Fifth Circuit issued an en banc decision, meaning all active judges participated in Villareal versus City of Laredo. The case involves the apparently very difficult legal question of can the police arrest you for posting nonpublic, emotionally damaging information online?

 

Kate Shaw Okay, so here are the facts, Villareal posted on Facebook. The name and occupation of a U.S. Border Patrol employee who jumped off a public overpass and reported this as a suicide, which she corroborated with a local police officer. She also posted video feed of a fatal traffic accident, including the name of the deceased person. She had also corroborated that information with a local police officer, and then she ended up arrested under a state law that made it a crime to solicit information not yet officially made public for some benefit.

 

Melissa Murray She later sued the officer, saying that her arrest was unconstitutional because it penalizes her for speech, and the Fifth Circuit said that the officers were entitled to qualified immunity, which is to say they cannot be sued for damages because it was not clear whether the Constitution allows police officers to arrest you for posting something that’s not public online.

 

Leah Litman Every blog in the country would like a word, but okay.

 

Kate Shaw This is what the Fifth Circuit said. We need not speculate whether section 39.06 allegedly violates the First Amendment, as applied to citizen journalists who solicit and receive nonpublic information. No controlling precedent gave the defendants fair notice that their conduct or this statute violates the Constitution facially or as applied to Villareal. So the Fifth Circuit, just like to distill this, is so pro free speech. Remember, some judges announced they wouldn’t hire law clerks from schools they considered insufficiently protective of speech. They are so pro free speech that they will allow you to be arrested for your speech.

 

Leah Litman Good times.

 

Melissa Murray And. Again in that Can’t stop, won’t stop vibe that the Fifth Circuit is known for, it continues on its hustle elsewhere. We have previously covered the Supreme Court’s stay of the Fifth Circuit decision that allowed Texas to obstruct federal immigration officers who are attempting to do federal enforcement at the border. But that’s not the only case in which at least a few judges on the Fifth Circuit are, shall we say, playing footsie with the idea that Texas can be kind of secession, curious, secession forward and interfere with federal sovereignty at the border. So the Fifth Circuit initially voted en banc, 13 to 5, to temporarily halt a judge’s plans for trial in the US suit against Texas over border boys in the Rio Grande River. Texas had put in border markers. But it’s not allowed to do that. It’s that it’s not allowed to set up obstacles in federal waters at the border. Or maybe they are, says the Fifth Circuit. Oral arguments in this case are expected in May 2024, but ultimately, the Fifth Circuit voted on Bog to allow this trial to proceed while they hear this case on bank.

 

Leah Litman And five Fifth Circuit judges dissented from that ruling, allowing the case to proceed to trial, and in that dissent, they embraced Texas’s theory that Texas is facing a, quote, invasion at the border of unauthorized migrants and that Texas can therefore take over the border from the federal government. So the judges who joined this ruling were judges Joe Smith, angle, Hart, Duncan and Oldham. And they wrote, quote, this case is about the fundamental right of self-defense.

 

Melissa Murray But is it enumerated? Is it in the text of the Constitution? I would like to know.

 

Leah Litman No. It’s implicit in the concept of ordered liberty.

 

Melissa Murray And history and tradition.

 

Leah Litman That Texas can nullify the federal government and federal officers, enforcement of federal law.

 

Kate Shaw So the Fifth Circuit, you know, we’re not done. We’re not even close to done with the Fifth Circuit. So in a previous episode, we talked about the space X, challenged basically to the entirety of the edifice of labor law that the NLRB, the federal agency that enforces the labor law that SpaceX filed in Texas district court. Since we last updated, you, Amazon and also Trader Joe’s have joined SpaceX in its existential challenge to all labor law. And the case has been transferred to a California district court. So the Fifth Circuit has this ad, because it no longer gets to potentially invalidate all of labor law. So it had to find another case to get back on its bus. And we do again, this is a little bit like Wisconsin. Some of this stuff is in the weeds, but it’s really, really important to be aware of what’s happening in the lower federal courts, not just because that affects what happens at the Supreme Court, but the lower courts and in particular, the Fifth Circuit. Right now, this is the legal milieu that’s now part of American life. And they’re doing crazy, crazy stuff. Okay, so the case arises out of a labor dispute. During negotiations with the union, the employer made a last, best and final offer, and one of the terms of that last, best and final offer gave the employer the authority to make certain layoffs. Now, according to the NLRB, the employer made the layoffs after presenting the layoffs as a fait accompli under the terms of the last, best and final offer, even as the employer ostensibly resumed negotiations. And the NLRB basically said this is an unfair labor practice under federal labor law.

 

Melissa Murray And here are the Fifth Circuit. It’s pretty sure that all of this is the union’s fault, in that the union left the employer no choice. Here’s one judge of the Fifth Circuit expressing that view. The judge refers to the last, best and final offer as the LFBO.

 

Clip I don’t understand how we can even even if we wanted to entertain any of this stuff. It strikes me that we are bound to say there is no evidence of any fruitful negotiations prior to the implementation of article 30 in the elbow, and so the entire case hinges on whether they complied with article 30 of the LBFO.

 

Melissa Murray In plain English, this is a judge essentially saying that negotiations weren’t going anywhere. So the employer could just do what the employer declared it wanted to do and its offer. So, yeah. And the judges were really giving the NLRB lawyer a hard time. So here’s another clip.

 

Clip It did not notify the union at all. It waited till this 30 day deadline. Well, you know, when you keep losing money at that rate, I mean, everybody ought to be preparing their bailout, but. Well. Fair enough. Even side common sense. They did get 30 days notice. The union got 30 days notice and it didn’t do anything. Well, that’s not true, Your Honor. Basically not. On August 20th.

 

Melissa Murray So the Fifth Circuit’s version of truthiness is apparently just basically true. That basically true is the standard. It’s good enough for government work, I guess, and it’s especially fine when you’re placing the blame on unions and workers. So nothing to see here, folks.

 

Leah Litman Indeed, now that I am in the safe space that is California, I thought we could talk some. About my home circuit in the Sixth Circuit. That’s the Court of Appeals that covers the area where I live, Michigan, as well as Ohio, Tennessee and Kentucky. And it is not a court of appeals to sleep on. So the Sixth Circuit recently heard several big LGBTQ rights cases that could make their way to the U.S. Supreme Court pretty soon. One of those cases involves a challenge to one of the rash of state laws trying to ban drag performances. This one out of Tennessee.

 

Kate Shaw So the Tennessee law at issue here bans a bunch of drag performances. A district court and specifically a judge appointed by Donald Trump invalidated the law, finding it overbroad, which it clearly is. And the state appealed that ruling. The state here is saying the drag performers don’t have standing to challenge the law. It’s kind of a confusing argument, but they seem to be saying that maybe the law wouldn’t apply to these drag performances, or the law somehow is inexplicably just limited to locations where children would be allowed to see the performances, even though that is not in the law itself. But in addition to the standing argument, they are also saying that the law is constitutional, maybe with some court added limitations to solve different problems with the law.

 

Melissa Murray We wanted to highlight a quick summary of some of the problems with the law that emerged in the oral argument where Melissa Stuart, a recent law school graduate and one of the lawyers representing the drag performers, explained why all of this is such a blunderbuss effort and kind of sweeps a lot of protected speech under the table and is therefore unconstitutional. So here’s a clip.

 

Clip Your Honor, even if this court were to adopt every single one of the state’s narrowing constructions, this law would still run afoul of the First Amendment.

 

Melissa Murray The panel here is two Republican appointees and a Democratic appointee. So it’s hard to say where this will shake out and how they will lean. But we will definitely be monitoring for any decision in this case and also what might happen next.

 

Kate Shaw Okay, so sticking with the Sixth Circuit, the court also heard a big case involving a challenge to a school district’s anti-bullying policy, because that’s where things have come to. This is another potentially significant First Amendment and LGBTQ rights case.

 

Melissa Murray A group is challenging an Ohio school district’s anti-bullying policy that the group says violates their free speech rights because it might require students in the school to refer to transgender and non-binary classmates by their correct pronouns. So here’s a clip from the school district lawyer defending the policy.

 

Clip What I believe that, you know, plaintiff is seeking is essentially a carve out where, all students are protected from harassment under that policy, except for transgender students who are harassed because they are transgender. That in itself would be a viewpoint discrimination, perspective if the district protected everyone but transgender students. But again, this policy is designed specifically to protect all students.

 

Melissa Murray Apparently, some parents are now pushing a theory that under the First Amendment, bullying is actually good, at least when you’re bullying trans kids. However, the panel seemed really skeptical of the challenge. And so we’re going to be again watching for a decision here. And it seems really like this is the next wave of LGBTQ rights cases. It’s really, you know, a set of cases that I think very soon will be at the court’s door. And that actually is really, really scary.

 

Kate Shaw It is genuinely scary. So outside of the courts of appeals, we had an update relevant to district courts and specifically the country’s chief scientist, who also happens to be a district court judge in Texas. Side hustle. You know, we were talking about Matthew Cashmere. Okay. So this development pertains to mifepristone and specifically to a study that Matt Cashmere cited in support of his decision purporting to suspend the FDA’s approval of mifepristone. Guess what? A scientific publisher has retracted, actually, two studies that says Merrick relied upon in his decision purporting to suspend the FDA’s approval of mifepristone. I mean, I mean, it is a big deal for a scientific study, let alone two scientific studies to be retracted. It happens just in time for Scotus to hear the medication abortion challenge next month, and it does seem like a quite relevant development.

 

Melissa Murray In other relevant developments. We’ve got word that one of our favorite justices was on the road in the Golden State. So Justice Sonia Sotomayor appeared at the University of California at Berkeley, and she made a few notable comments that we wanted to highlight. So let’s roll the tape.

 

Clip I live in frustration. And as you heard, every loss truly traumatizes me in my stomach and in my heart. But I have to get up the next morning and keep on fighting.

 

Melissa Murray Yes, Sonia . We too live in frustration and we also are truly traumatized. So let’s, you know, we can get together and talk about. I have a sister circle, but Justice Sotomayor refuses to be rooted in that despair. So she actually issued a call to action to the Berkeley students and audience. So here’s that call.

 

Clip How can you look at the heroes like Thurgood Marshall? Like a freedom fighters who went to lunch counters and got beat up. To men like John Lewis, who marched over a bridge and had his head busted open. How can you look at those people? And say that you’re entitled to despair. You’re not. I’m not. Change never happens on its own. Change happens because people care. About moving the arc of the universe towards justice. And it can take time. And it can take frustration.

 

Kate Shaw I love this like despair is not an option. Like you have to get up and keep doing. And she does. And so we do. And all our listeners need to as.

 

Leah Litman Well, instead of like what you do with a hand your doubts. Right. And like, yeah, you got a shitty hand, but that’s the hand you’ve got. So finally this is a little bit insider, but we are excited to share that we are continuing our partnership with Crooked Media. Right. That means more content and a lot of other fun things too. So be on the lookout for some events, video content, and more. We’re very appreciative of the team at Crooked and of course, of all of you for showing up and caring and really making this possible. So as part of our continued partnership with Crooked, we’re also going to have an opportunity to do some crossover content with Vote Save America. To that end, we’re excited to welcome to the show Shaniqua McClendon, crooked vice president of political strategy. Hi, Shaniqua.

 

Shaniqua McClendon Hi. Thank you for having me.

 

Kate Shaw Well we’re excited to have you. And for our listeners, it is only February. But November is going to be here before we know it. So Shaniqua is here to fill us in on everything Vote Save America is doing to help you all get ready for the election. First, Shaniqua. I think it’s no secret that political fatigue is at an all time high. So can you talk about what Vote Save America is doing to inspire and mobilize people to take action in this critical election?

 

Shaniqua McClendon Yes, we just launched Vote Save America relaunched it a few weeks ago. And, we have an action finder on the site, which we’re really excited about. And literally it’s whatever you want to do. You check a few boxes to say, I want to sit on my couch and volunteer, or I’m willing to go outside. I’m willing to, you know, call people. And then you say where you want to go or where you live. And so it’s like, you know, maybe you live in California or New York, and we take all of that information and serve the best options for you to volunteer. And there’s actually a lot to do already. On Tuesday, there was a New York three election to replace, the seat that George Santos vacated. And our volunteers filled about 200 volunteer shifts for that. And so there’s a lot of, as you know, abortion ballot measures that are either on the ballot, or advocacy groups are working to get them on the ballot. And so they need help with collecting signatures and doing all those kinds of things. And then there’s lots of primaries. So there’s a lot to do. And you can go to the site, and find that.

 

Melissa Murray Shaniqua, I like how you’re so politic in your mention of George Santos that the seat vacated as opposed to being unceremoniously uprooted from.

 

Shaniqua McClendon You’re right

 

Leah Litman Diva down.

 

Shaniqua McClendon That is very true.

 

Melissa Murray But, yes, I appreciate your generous spirit in recounting the George Santos debacle, but here’s a question. We’ve heard that a lot of young voters are really motivated by state Supreme Court races, to which we say, yes, Queen, exactly. Be super motivated by state Supreme Court races. And this is something we are covering a lot on strict scrutiny this year. Can you explain to us how Vote Save America is capitalizing on this attention boom, and really talking about state Supreme Court races?

 

Shaniqua McClendon Yeah. We’ve always, you know, made it a point to tell people that these were important races. But this year we’re really prioritizing them as something that we’re focused on. I think often people don’t pay enough attention to the elections that are happening down the ballot, but now they are. And, yeah, young people. I’m not going to say for whatever reason, it’s important reasons. State supreme courts control a lot of things and make a lot of decisions on important policy, but have been really interested in these races. And I think we really saw that in Wisconsin last year with the state Supreme Court race helping to get Janet pro to say what’s elected out there. And Pennsylvania as well. A lot of young people showed up for those state Supreme Court races. And so there’s more in Ohio and Michigan this year. And we think it’s another thing we can point to for people to get excited about, if they’re not excited about other people who are on the ballot. And when thinking about abortion and how mobilizing that’s been like state supreme courts play, you know our role there state start pack.

 

Melissa Murray A huge role.

 

Shaniqua McClendon Yes, yes. As states start passing these crazy laws you know and so that’s why we’re focused on it. And I mean, just generally people should focus on like the courts are important and they been dictating a lot of, what’s happening in our lives. And that’s why conservatives, you know, pack them.

 

Melissa Murray So another question, Shaniqua, just a follow up. So you’re super energized. You’re a young person, you love state supreme courts. You’re all in for these state Supreme Court races. Is there anything you can do besides getting your butt to the polls and voting in a state Supreme Court race? How else can we support Vote Save America?

 

Shaniqua McClendon So something else that we’re doing, we, launched, a program called the Anxiety Relief Program. And pretty much we launched this is a recurring donation program. We launched it so that one, we could take anxiety out of the mat wall, as much as we can out of our grassroots partners. Oftentimes fundraising in general comes in really close to elections, which does not give people enough time to plan an entire election cycle so they can do the work that they need to do. So taking that stress off of our partners by, having our audience members donate to this anxiety relief fund. And so it’s pretty simple. You can just go to our website and you pick the amount that feels good for you to donate every month and every month, we send an email to the people who have signed up for that program, telling them where the money is going and what it’s for. And I’m just I’m really excited about this. These are a lot of small organizations who just need resources to help scale their work. So that is another way that you can get involved.

 

Melissa Murray It’s like a crock pot, right? Basically you just set it and forget it.

 

Shaniqua McClendon Yeah.

 

Melissa Murray You just set an amount that you’re going to donate on a monthly basis and you just let it ride.

 

Shaniqua McClendon Yeah.

 

Melissa Murray And then democracy is saved.

 

Shaniqua McClendon Exactly. You wake up after Election Day and you know what you did.

 

Leah Litman And it really is a huge help to enable that kind of like long term planning. I know that kind of strategy is part of what made a huge difference in shifting the composition in the Wisconsin Supreme Court is encouraging people to get involved early, to allow the party and candidates to plan, you know, over the long run, how they were going to do what they ended up doing. So, yeah. Yeah. Shaniqua, thank you so much for joining us and letting listeners know how they can get involved this year.

 

Shaniqua McClendon Thank you. Thank you for having me.

 

Leah Litman Just to emphasize what Shaniqua just said, Vote Save America just launched a new initiative to help streamline your political giving for the year. That’s the anxiety relief program. Just donate what you can each month and vote. Save America will take care of distributing 100% of your dollars where they’re needed the most. So far, over 500 requiring donors have joined the program and trusted Vote Save America to make their dollar go further. But there’s still a long way to go. So head to VoteSaveAmerica.com to sign up now. This was paid for by Vote Save America, VoteSaveAmerica.com not 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. It’s produced and edited by Melody Rowell, with audio support from Kyle Seglin and Charlotte Landes, and music by Eddie Cooper. We get production support from Madeline Herringer and Ari Schwartz, 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 review us. It really helps.

 

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