For its final sitting of 2023, the Supreme Court will hear cases on the Armed Career Criminal Act, double jeopardy, and whether the government is, well, constitutional. Leah, Melissa, and Kate preview those cases, and look into a hot mess of a voting rights case in the Eighth Circuit. Plus, US Representative Ro Khanna stops by to chat about SCOTUS ethics reform.

• Watch the Strict Scrutiny hosts on The Problem With Jon Stewart, previewing the horrors that await in Jarkesy v. SEC
• Read Justice Jackson’s powerful dissent from denial in the case of Michael Johnson, an Illinois inmate who was held in essentially complete isolation in a tiny, windowless cell, caked with human waste, for three years.

 

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.

 

Kate Shaw Welcome back to Strict Scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it. We’re your hosts. I’m Kate Shaw.

 

Leah Litman I’m Leah Litman.

 

Melissa Murray And I’m Melissa Murray. And today, we are going to be previewing the cases the court will be hearing this week. We’ll also note some big cases that the court will hear next week. But fair warning, we’re not going to spend as much time on those. We’ll come back to them. As we recap the sitting. But then after that, we’re going to have this very special court culture episode for which we are very thankful. And it will feature Representative Ro Khanna, who’s going to talk with us about ethics reform. But before we get to all of that, we have an update on one of our favorite recurring segments, America’s Worst Court of Appeals. And I know we haven’t had a lot of movement on this front since the Fifth Circuit pulled away and made clear that this title is theirs. But it seems like we have a little healthy competition brewing. That’s right. In response to the Fifth Circuit shenanigans with the CFPB, the SEC, mifepristone at all, the eighth Circuit said, Hold my beer. And then it slammed down a tater tot hot mess of a dish involving Section two of the Voting Rights Act.

 

Leah Litman As someone from the Midwest, I am kind of offended at your reference to tater tot hot dish.

 

Melissa Murray I’m sorry.

 

Kate Shaw This culture is not your costume.

 

Leah Litman Tay, tater tots hot dishes are good. So I object to the Eighth Circuit being described in that way.

 

Kate Shaw It’s a hot mess. How about it’s just a hot mess.

 

Melissa Murray It’s a hot mess, Not a hot dish mess. Fine. Fine.

 

Kate Shaw Okay. So a little context maybe before we go further. So most of our listeners will remember that in 2013, the court decided Shelby County versus Holder. In that case, a 5-4 majority of the court essentially invalidated a process known as preclearance under the Voting Rights Act. Under that preclearance process, states with a history of discriminatory voting practices were required to first pre-clear any changes in their voting practices and laws with DOJ or alternatively, with a federal court. The court threw out the pre-clearance formula on the view that it treated sovereign states differently, singling out only some states and subjecting them to this process. And in addition, it was no longer necessary since so many minorities were voting. The chief justice who wrote for the majority did not note that much of the uptick in minority voting came in 2008 and 2012, when many racial minorities were particularly exercised to vote for the first black president. The chief justice also did not note that the increase in minority participation may have had something to do with, well, the Voting Rights Act anyway. In the wake of Shelby County.

 

Melissa Murray Minor, minor, minor intervention.

 

Kate Shaw Footnote, right.

 

Leah Litman Causation correlation. Not his strength.

 

Kate Shaw Who can say, right?

 

Leah Litman Whatevs.

 

Kate Shaw So in the wake of Shelby County and the end of preclearance, there’s been a spate of states implementing voting practices and laws that in many instances do seem aimed at suppressing minority voter turnout.

 

Melissa Murray And to be very clear, this is all very predictable. And indeed it had been predicted in the run-up to Shelby County. However, in his opinion, for the majority, the chief justice insisted that dismantling preclearance was no big deal because Section Two of the Voting Rights Act remained a viable option for dealing with discriminatory voting practices and laws.

 

Leah Litman And then Sam Alito is like, Hold my beer.

 

Melissa Murray Here’s my hot dish mess.

 

Kate Shaw And then the Eighth Circuit was like, Oh, no, Sam, we will one up you.

 

Leah Litman Yeah.

 

Kate Shaw So the preclearance regime that was gutted in Shelby County operated to prevent discriminatory laws from ever going into effect. The problem with Section Two is that it is an after-the-fact remedy. So ordinarily a law has to be passed or actually go into effect and then be challenged by those with the resources to mount litigation and actually challenge it. So basically, using Section Two to vindicate the values of the Voting Rights Act was always going to be a mixed bag.

 

Leah Litman And as soon as the court succeeded in dismantling preclearance, the attacks on Section Two began in earnest. So we covered one of those challenges Brnovich versus Democratic National Committee, A63 decision from October term 2020 authored by Samuel Alito. They’re the new conservative supermajority, upheld Arizona election policies that allegedly made it harder for black, brown, and native communities to vote. And this decision not only upheld the Arizona laws at issue, it also made it much harder to challenge any voting practices as discriminatory under Section Two.

 

Kate Shaw But that is not all in Brnovich are most fantastico. Justice Neil Gorsuch decided that the Alito majority opinion just didn’t go far enough, so he decided to float a novel argument that because Section Two of the Voting Rights Act does not explicitly provide for private party enforcement, whether that existed at all remained an open question. This is even though the Supreme Court and the lower federal courts have decided literally hundreds of Section Two challenges brought by private parties. And even though the legislative history of the Voting Rights Act makes clear that Congress believed that beyond preclearance, the Act’s enforcement would fall to private parties, not just to the government, Neil Gorsuch decided to just put this out there.

 

Leah Litman He’s, quote, “just asking questions.”

 

Melissa Murray Just asking questions, like, playing devil’s advocate here. I wonder. He’s not the only troll in the box here. So not to be outdone in his dissent from the court’s decision in last year’s Allen versus Milligan. Justice Clarence Thomas decided to continue prosecuting the point that Neil Gorsuch made in his concurrence to Brnovich. So Justice Thomas decided that he was going to continue to tell this particular patch of right-wing grievance. Justice Thomas wrote that the majority opinion, quote, does not address whether Section Two contains a private right of action. And then he went on to suggest that the basic question of whether private individuals, rather than the government, can even go to court to enforce Section Two remains an open question.

 

Leah Litman And with not one but two invitations to take on this issue, it’s not surprising that some enterprising groups decided to find out whether private enforcement was, in fact, necessary to enforce the Voting Rights Act. One case was litigated in the Fifth Circuit, and even the Fifth Circuit decided that this extreme textualism was inconsistent with the Voting Rights Act like its entire being. As well as decades of precedent permitting private enforcement.

 

Melissa Murray So this is where the Eighth Circuit steps in to make a bid for America’s worst circuit court. The warm-up act here was U.S. District Court Judge Lee Radomski of the Eastern District of Arkansas. He’s a 2019 Trump appointee, and he has been a member of Phat Sock since 22. And the case that he was presiding over was called Arkansas State Conference of the NAACP versus Arkansas Board of Apportionment. And on its face, it was just a Section Two challenge to how the board of apportionment drew Arkansas’s voting districts. And at first, the parties did not actually raise the question of whether Section Two claims could be brought by private parties. That issue apparently was raised by Judge Radomski himself. And then the state included it in its arguments. And this is all cited by the appellants in their briefs at the Eighth Circuit. They note this sort of unusual provenance that the judge first brought this up and then the parties themselves incorporated it into their arguments. And not surprisingly, Judge Radomski relied on this argument that Section Two cannot be enforced by private parties to rule for the state here.

 

Kate Shaw So the case was then appealed to a panel of the Eighth Circuit, which affirmed the Radomski judgment and its reasoning. It really does read like Judge Straus, who is a Trump appointee and writes the majority opinion, is auditioning for something that I can’t quite put my finger on.

 

Melissa Murray What could it be?

 

Kate Shaw Hard to say. So the majority opinion does a very I mean, it tries to be very extreme textualist reading of the statute. It is bad textualism, it is bad everything. But it kind of crucially emphasizes that it is at least unclear whether Congress intended to authorize private parties to bring suit under Section two. And while Straus acknowledges the legislative history clearly shows that both chambers of Congress definitely declared explicitly that they intended Section two to permit private lawsuits, he deems this evidence irrelevant to resolving the ambiguity he purports to identify. There is like this almost kind of conservative Mad Libs quality. I found the majority opinion where he’s just sort of intoning text in history like it’s a mantra and then saying these writing these lines. It could have been, you know, written in like A1L paper about the problems of intentional ism or purpose of ism. Legislative history is unreliable. And, you know, then there’s sort of these asides about dicta and previous Supreme Court opinions. To the extent there’s any grappling with Supreme Court precedent, most of it is that’s unhelpful, is dismissed as dicta. So it’s just like this kind of stitched together set of arguments that could have almost appeared anywhere. But lo and behold, ends up with this no private enforcement of Section two outcome.

 

Leah Litman Well, he’s playing fantasy Scotus, right? Clarence Thomas and Neil Gorsuch are the one true Supreme Court.

 

Kate Shaw Yeah. And that’s any said just together their views of how to do legal interpretation and then just send us out into the world. Happy Thanksgiving.

 

Melissa Murray Well, he doesn’t stop there, though, Kate. So Judge Straus also waves away some of the practicalities that the enacting Congress would have understood, specifically the enacting Congress understood that partisanship would play a really big role in how the Voting Rights Act was enforced. And so under Democratic administrations, there likely would be more enforcement and maybe less under Republican administrations. But even when the Democrats were in control, the Department of Justice would not have the resources and the manpower to chase down every discriminatory voting policy that the states would try to put out. And so this is part of why preclearance existed. It was to focus resources on the period before the laws went into effect and limit the need for resource-consumptive litigation. But litigation was supposed to be a backstop for what preclearance didn’t catch. And it was understood that it would require a cooperative effort with private parties and the government for enforcement, but never just the government by itself. So just as a practical matter, the sort of partisan alignment around voters. Rights entailed the necessity of having private parties enforce parts of the statute.

 

Leah Litman Also, can I just say like the legal test for whether you have that is private citizens have a private right of action is partially or at least has been articulated in some cases as whether a statute creates rights, in particular individuals. This law is literally called the Voting Rights Act. You Udot It’s not the voting rights in the beneficence of Democratic administrations. Law like this is the ultimate like new necessary to enforce the Voting Rights Act joke like no private enforcement is necessary to enforce the Voting Rights Act. And the interpretation, as you were suggesting, would just be disastrous. You know, if private parties couldn’t bring suits to enforce Section two, you know, in addition to knowing like Republican administrations aren’t going to enforce the law, Democratic administrations don’t have the time and resources to investigate and litigate all possible violations of the law. That’s why most of the Supreme Court cases involving the Voting Rights Act and lower court wins on this have private plaintiffs, as Chief Judge Smith noted in his dissent. Over the past 40 years, there have been at least 182 successful Section two cases. Of those 182 cases, only 15 were brought by the United States.

 

Melissa Murray So this is a 2 to 1 decision. And there’s a vehement dissent from Chief Judge Levinsky Smith, a George W Bush appointee, and the Eighth Circuit’s only active black judge. And Judge Smith emphasized the decades of precedent that the majority literally blew up. And the judge writes. Admittedly, the Supreme Court has never directly addressed the existence of a private right of action under Section Two. However, it has repeatedly considered such cases and held that private rights of action exist under other sections of the era and concluded in other VRA cases that a private right of action exists. So. Tldr Judge Smith seems to be saying here my colleagues are absolutely making shit up. And so with the Fifth Circuit concluding that Section Two does permit private enforcement and the Eighth Circuit concluding that it does not, we have a circuit split, which means that this will certainly be reviewed by our favorite 63 conservative super majority of a court. So it’s been great knowing you. Voting Rights Act Section two.

 

Kate Shaw Yeah, I mean, let’s drill down a little bit and count the votes. Gorsuch and Thomas clearly in the bag for the Eighth Circuit’s position. They ceded it. The chief never saw a voting rights claim he didn’t want to nail to the wall. He is likely a third. Justice Alito, I am quite sure, is salivating at the prospect of kneecapping this landmark statute further. Or, you know, once and for all, which leaves all hopes for the Voting Rights Act and the prospect of a multiracial democracy in the capable hands of Brett and Amy and Congress, obviously the.

 

Melissa Murray World’s worst acapella duo.

 

Speaker 3 Right now.

 

Kate Shaw So but either one works. But Congress, obviously, if they could get it together, could enact legislation making all of this clear just as they could have post-Shelby County attempted to cure what the court identified as wrong with the pre-clearance formula, didn’t do anything then aren’t going to do anything now. But Congress could moot this whole mishegoss if it wanted to.

 

Leah Litman I should note that, you know, it is possible that the court rejects this argument, but even if the court does that, they’re going to get a huge pass. And so many plaudits for being so institutionalist and moderate all while they continue the Brnovich project of weakening the substantive protections of Section Two and are basically lying in wait post-Milligan to do something similar potentially with redistricting. You know, as Brett Kavanaugh telegraphed he was open to doing in a future case. I do want to note one caveat, which is it is possible that even if the court says the Voting Rights Act does not have a private right of action allowing individuals to sue, it’s possible litigants could bring suits to enforce the Voting Rights Act by relying on the right of action created by another federal statute, the general civil rights statute, 1983. Remember, as we talked about, Justice Jackson wrote that awesome majority opinion into Lusk that we were so excited about that preserved private parties’ ability to use 1983 to enforce other federal laws. And this case underscores one reason why that was such a huge win.

 

Kate Shaw All right. Well, that was bleak.

 

Melissa Murray There was a glimmer of hope maybe.

 

Kate Shaw At the end. That’s true. Thank you for letting us end it on a slightly upbeat note. Overall, though, bleak. So let’s lighten it up further with some previews of this week’s cases.

 

Leah Litman [AD]

 

Leah Litman The first case the court is going to hear this week is SEC versus Jarkesy. So this is an important administrative law case that is part of our term theme. We identified at the beginning of whether government as we know it is constitutional and whether effective government is constitutional.

 

Kate Shaw And big question mark, we really don’t know. So here’s what’s at issue in the case. The case involves three different and distinct challenges to the Securities and Exchange Commission, the SEC, that’s the key agency that protects investors and regulates securities markets. Part of the agency’s business is to oversee enforcement proceedings within the agency. That is, the SEC might accuse a company of violating some securities law and seek a civil fine. And when it does that, it could choose to bring that case inside the SEC where it would be decided, at least initially, by administrative law judges. When the SEC does pursue that route. The determinations reached inside the agency can subsequently be challenged in federal court. So the agency proceedings are not the last word on the question. We actually did a full episode of Jon Stewart’s former show, The Problem with Jon Stewart on this topic and actually on Jarkesy more broadly. So you can always go back and listen to that episode if you want an even deeper dive into the specifics and the stakes of this case than we’re giving you now.

 

Melissa Murray That was such a flex, Kate. You’re just like, if you really want a deeper dive, you can go and listen to our very dear friend Jon Stewart’s podcast.

 

Kate Shaw That was a great time. And I.

 

Melissa Murray For one of.

 

Kate Shaw Our listeners who may have be more recent converts to the pod may be unaware of it. So just bringing it to their attention.

 

Melissa Murray Once upon a time, we did hang out with Jon Stewart, FYI.

 

Kate Shaw Twice.

 

Melissa Murray Twice.

 

Leah Litman On our computers.

 

Melissa Murray On our computers like, yes, okay. Anyway, the question in the Jarkesy case is whether all of this gesticulating wildly is unconstitutional. So before we get into the various theories at play here, I think we should maybe get a little primer on how these administrative proceedings work and why they operate in this way. So first and foremost, there are a lot of laws and regulations, and many of them are very complicated. And federal courts, as a general matter, don’t have docket capacity in order to hear them all, which is to say federal courts don’t have the time or the resources to adjudicate every single thing that might come up in the context of agency administration and to allow all of those particular matters to go before a jury for a jury trial. So you’ll remember we talked about this before. There was a district court judge in Austin who had literally over a thousand cases per year. And so the idea that you would add tens of thousands more matters to a district court’s docket by allowing agency actions to proceed through federal courts is just unfathomable. I mean absolutely get real. This isn’t how this is going to work. So that’s one issue. Just the practicability of adjudicating all of these matters in federal court. The second question is that a lot of these agency administrative matters involve complicated practices. So in the context of the SEC, it involves complicated financial practices on which agency adjudicators have actually become quite expert and therefore quite efficient at dealing with. So the question for us again, is one of efficiency. Do you want a federal judge to have to get tacked up on crypto practices, for example, in order to adjudicate a case? You do you need for them to sort of get up to speed on blockchain in order to deal this, when in fact there are agency administrators who already know how all of this work and are familiar with these practices, whether it’s investment packages or mortgage companies and their practices in order to adjudicate these matters. So the point of all of this is to say that there may actually be circumstances where it is more efficient and a better use of resources to have an expert body oversee and adjudicate these matters.

 

Kate Shaw But there are people trying to blow all of this up, and they argue that the SEC, or at least this aspect of SEC enforcement is unconstitutional for not one, not two, but three distinct reasons. So first, they say the law that allows the SEC to choose whether to bring these cases in the SEC or in a federal court in the first instance is an unconstitutional delegation of authority to the SEC. That is, it gives the agency too much unfettered power to decide, you know, where to bring the case in the agency or in a court. The theory is truly insane and makes no sense. Just putting aside how bonkers the non delegation doctrine, broadly speaking, is, we’ll explain why, but it’s especially bonkers in its application in this case.

 

Leah Litman So the non delegation doctrine that Kate was just referring to is the idea that Congress cannot delegate aspects of its legislative power, basically its power to make rules to administrative agencies which are housed in the executive branch, authorizing the agencies to take certain actions. And typically, the non delegation doctrine is cast as the idea that Congress can’t allow agencies to decide whether to impose certain rules about private citizens conduct, like an agency can’t decide whether to impose a vaccination requirement. Even stated that way. The non delegation doctrine has no historical or textual basis. You know, we did a summer episode a while back with my colleagues Nick Bagley and Julian Mortenson, about how they have debunked the historical basis of the non delegation doctrine. And since then there’s been even more work that they have done, as well as Nick Perillo at Yale have done, you know, debunking this doctrine, but bracket that for a second. In this case, the challenge isn’t to the agency imposing rules about how private parties live their lives or what private businesses can do. It is literally challenging the agency’s ability to choose whether to enforce the rules that Congress made for. Securities law in federal court or instead within. The Securities and Exchange Commission, the agency. And that kind of enforcement discretion has never been viewed as raising non delegation concerns. And it’s pretty wild but very on brand that the Fifth Circuit suggested otherwise. But though that is kind of like the crux of this case, we doubt it will be the primary focus of oral argument that is this particular non delegation challenge.

 

Melissa Murray That’s the first theory for why agency adjudication is bad, bad, bad and we would prefer a less efficient model of adjudication. The second theory that the challengers advance is that it is unconstitutional for administrative agencies to hear these cases because the Seventh Amendment requires a jury trial whenever civil penalties are in play. And this theory implicates the line of cases about when Congress can assign adjudications to agencies without violating Article three. In those cases, the court has said that it is unconstitutional for Congress to allow agencies to hear cases when the cases involve, quote unquote, private rights. So again, in keeping with the non delegation doctrine. But it is fine for Congress to assign public rights cases to agencies. So what has the court said counts as a public rights case versus what counts as a private rights case? Well, public rights cases are cases that involve the government. And I will again point our listeners to the caption of this case, SEC versus Jarkesy, which means that this case involves a government actor, the SEC, So that should be fine. Admittedly, however, this argument is unlikely to get a lot of traction at oral argument, in large part because the court’s seventh Amendment and Article three cases are kind of a mash and a mess and they are not really harmonize. So I don’t think there’s going to be a lot of fodder to sort of dig in here.

 

Kate Shaw And then there’s a third challenge, which might be the one that gets the most traction in this argument. And that challenge says that it is unconstitutional for Congress to insulate administrative law judges from political influence by saying these judges, ALJs, can be removed only for cause, not for just no reason at all. The court refashion the law about removal of executive branch officers. That is, you know which officers have to be removable at will by the president in sailor law which held that the head of the CFPB had to be removable by the president at will rather than only for cause as the statute provided. So it’s really about how much control the president has over subordinate officials inside the executive branch and whether the pockets inside the executive branch, where there’s a degree of insulation from political control and political influence, can be reconciled with Article two and the power conferred on the president in that article. Okay. So the question here is whether that line of cases, that refashioning of the law of removal will extend to administrative law judges.

 

Melissa Murray And there are good reasons, I think, for administrative law judges to be treated differently in this context. So there are really good reasons for adjudicators to actually be more neutral and not be subject to removal by the executive branch at the executive branch as well. And, you know, those reasons should be obvious. We don’t want judges overseeing cases that are heavily politicized where they feel like they could be removed for cause, and civil service protections exist for this very reason to ensure neutral adjudications within the administrative branches. And all of this bumps up against this court’s insistence that Article two of the Constitution requires the President to have almost unfettered power to remove executive officers so that the President can control how the executive officers do their jobs and how the agencies do their jobs.

 

Leah Litman This case, to me is just kind of a deregulatory shit show waiting to happen. You know, the amicus briefs supporting the challenge to the SEC here read kind of like a Who’s who list of deregulatory dark money. It’s actually quite impressive.

 

Melissa Murray You know, that I actually make an amazing baby onesie deregulatory shit show. That would be a great. Wouldn’t that be good.

 

Kate Shaw Let’s get the Crooked folks on that.

 

Melissa Murray Crooked team, get on that. Um. Well. So Leah, yes, I think it’s all very, very bad. I think it’s bad, though, for a couple of reasons, not just because of the flood of deregulatory, dark money, that is. Interested in this case and would love to see the SEC hobbled as a force for regulation of corporate industries. I also think it’s a part of this broader plan to hobble or dismantle the administrative state and make it harder for the government to regulate all kinds of industries more generally. I also think specifically in the context of the enforcement of securities laws, it’s really bad because if Jarkesy wins, it will make it harder to enforce security laws because the SEC will sort of be faced with this issue where everything has to go through the district courts and the district courts can’t handle everything. So there’s going to be this huge long lag in getting things dealt with through the courts, and they’re likely to feel real pressure to really focus on the massive cases as opposed to even sort of incremental cases that are smaller, less high stakes. And so that’s where you’re going to see the agency action.

 

Leah Litman It really feels like these cases, or at least this sitting or this term is like the what sparks joy list among Republican Party because we’ll get to the tax case, you know, more later, which is basically like tax cuts in the form of judicial rulings. This is basically, you know, make it harder to enforce white collar crime, you know, criminal laws, you know, in hobbling the SEC and protecting consumers. You know, obviously, they tried to do that with dismantling the CFPB. And so much of that is just part of the same project.

 

Kate Shaw And they’re still trying to do that with the CFPB, right? Like it’s not an accident that it is the financial regulatory agencies that are the most in the crosshairs. So the civil law case we talked about was about the CFPB. The agency survived even though there was this aspect of it that the court found unconstitutional. But they’re back with an existential challenge to now the funding structure of the CFPB. So, you know, not coincidence that these financial regulatory agencies are the ones that they’re just throwing constitutional arguments at and hoping something sticks. And if they throw enough arguments and they have a receptive court, like they might succeed in one of them. And, you know, I don’t know whether any of these Jarkesy arguments will succeed. I do think that the one the last one, the one about presidential control, maybe the most likely and also the one that could have the most profound implications depending on if the argument is successful, depending on how the opinion kind of shakes out. But for sure, the reasoning in the case could have implications for Melissa. You mentioned the civil service a couple of minutes ago, but you know, there are pockets of independence inside the executive branch. Some of these for cause removal protections, positions that by design are supposed to be somewhat insulated from politics. But that’s also a description of the civil service writ large. Right. So several million employees who work for the federal government inside the executive branch are protected from summary removal by the president. Right. There is a web of statutes and regulations and constitutional principles that have made the civil service part of our constitutional order for 150 years. And I think there’s a chance the court is interested in unraveling that web. And I think it’s going to happen in this opinion. But it’s something that both Trump on the campaign trail. Others, like Vivek Ramaswamy, have talked about like dismantling the civil service. And this is one way that the court could really give them an enormous assist in doing that.

 

Leah Litman This is basically like the judicial realization of drain the swamp, right? Like they have just like taken that mantra and made it into a proposed doctrine. And this is what they’re trying to do with it, as always. Yeah. So as listeners can probably tell, I have a cold. My voice sounds funny and still I was not going to let my called stand in the way of doing an in-depth preview of the upcoming cases concerning the Armed Career Criminal Act. So that is what we are going to turn to next. So the court will be hearing arguments in Brown versus United States, which is actually a pair of cases, Brown and Jackson, about the Armed Career criminal act, aka, as we have noted many times. But Melissa, your camera went off. I can’t tell whether that is my riverside acting up or just your sub tweeting me. But again, as we have noted many times, but clearly not enough is a federal law that imposes additional penalties on certain persons who are convicted of firearm offenses. Specifically, the law imposes certain mandatory minimum sentences on individuals. If those individuals have multiple prior convictions for violent felonies or controlled substance offenses. And the question in this case is how or really when do you determine whether something is a controlled substance offense to impose those mandatory minimums?

 

Kate Shaw The federal government regulates controlled substances through schedules. So classifying certain substances as schedule one or schedule two drugs, for example, and how a drug is classified on the schedule determines what penalties are associated with possessing the drug and what limitations exist on possessing or distributing the drug. So the question in Jackson, which is one of the two companion cases, is whether ACCA’s definition of controlled substance offenses incorporates the federal drug schedules at the time of the federal offense. So let’s say you’re convicted of a state drug offense involving margarine?.

 

Leah Litman That was the hypo I came up with. Look, I liked it, okay? Just. Just run with it. I’m a midwesterner.

 

Kate Shaw So let’s say you’re convicted of a state drug offense involving margarine at time one, and then you’re convicted of a federal firearm events at time two. But by the time of time, two federal law no longer classifies margarine as a controlled substance. Do you have a prior controlled substance offense? If the thing that was at the heart of the state offense is no longer federally criminalized by the time of your firearm offense?

 

Melissa Murray I love this. Guns and butter kind of reference.

 

Leah Litman Thank you.

 

Melissa Murray This is great.

 

Leah Litman Thank you.

 

Kate Shaw This is all Leah.

 

Melissa Murray The question. I mean, all of the ACCA stuff is Leah.

 

Leah Litman I grew up in Minnesota. We literally carved like the beauty pageants queens into large chunks of butter. Princess K of the Milky Way. Butter is my life.

 

Kate Shaw So is margarine functionally. Is margarine functionally criminalized in Minnesota?

 

Leah Litman No.

 

Kate Shaw Okay. Just curious.

 

Melissa Murray The question in the companion case, Brown, is whether ACCA is definition of controlled substance offenses incorporates the federal drug schedules that existed at the time the offender was sentenced. So let’s say you were convicted of a state drug offense involving margarine at Time one and then at time two, you’re convicted of a federal firearm offense and then at time three, when you’re about to be sentenced on that firearm offense. Federal law no longer classifies margarine as a controlled substance. Do you still have a prior controlled substance offense for purposes of ACCA so many questions? And one of the weird things about this case is that in Brown, the federal government argued for a time of offense rule, i.e. the rule that the petitioner in Jackson is now asking for rather than a time of prior conviction rule, which is what the government is now seeking. The government says that if something was a controlled substance offense under federal law when you were convicted of the offense under state law, while it’s a controlled substance offense, even if the federal government later changes the drug schedule and it’s no longer a controlled substance.

 

Leah Litman Cohosts privilege of talking even more about federal sentencing, it’s going to be smooth like butter. So I think the case. Should go.

 

Melissa Murray BTS army BTS army.

 

Leah Litman I think the case should go at least one of the defendant’s ways and reject the federal government’s time of prior conviction rule. And that’s partially because there’s a strong presumption that courts apply the federal statutory penalties that are in place at the time of an offense for which your sentence at the time of your federal firearm offense. Not at the time of your state controlled substance offense. And the federal government even concedes as a general principle that even concede that that principle applies to ACCA. It just says the principle either doesn’t apply to the controlled substance portion of ACCA, which doesn’t make a ton of sense because then half of ACCA would contain a time of offense rule and half of it wouldn’t. Or the Federal Government says its definition of controlled substance doesn’t actually incorporate the federal drug schedules, which is not actually how the statute is written, because it defines a controlled substance offense as an offense under state law involving a controlled substance as defined in 21 USC 802 and then 802 actually incorporates the drug schedules. Also the neighboring provisions of ACCA like 920 4G3 define separate firearms offenses and they use the controlled substance offense definition. And because those provisions define new offenses, i.e. distinct crimes, the government concedes that they have to include the drug schedules at the time of the federal offense, not at the time of your prior conduct that might have violated state law.

 

Melissa Murray Okay. The government is relying on analogies to other areas of law and just other things more generally that don’t really strike me as being completely apt here. So not directly on point. So, for example, the government points to McNeil, which involved amendments to state drug offenses and so on. That logic, say your convicted of a marijuana offense, but the state subsequently legalizes marijuana but doesn’t extinguish your conviction. You would still have a controlled substance offense. But that fact doesn’t seem to shed light one way or another on the questions that are at issue in Brown and Jackson. So not quite sure why the federal government relies so heavily on it. The government is also relying on federal immigration law, which doesn’t really contain the same principles about time of offense rules as does ACCA. So that seems weird as well.

 

Kate Shaw Now, Congress did elsewhere in rely on a time of prior conviction rule. So that’s for prior convictions referred to in 922 G But the thinking there seems to be one that the statute uses different words, conviction versus an offense. And two, that’s just different because right now all of the prior offenses that would trigger ACCA are listed in 922 G, whereas drug schedules aren’t listed in federal law. So locating prior drug schedules raises some administer ability problems and notice problems that don’t apply here. So we will see what happens.

 

Melissa Murray The court is also going to hear in this upcoming sitting McIlrath versus Georgia. And this is a double jeopardy case and just. As a reminder, the double jeopardy clause of the United States Constitution says that you cannot twice be put in jeopardy for the same offense unless big caveat the same conduct is subject to prosecution by two separate sovereigns. And that was the separate sovereign proviso that was discussed in Gamble back in 2019. In any event, the court has said that the double jeopardy clause means that if you are acquitted for an offense, you cannot be retried for that offense. But let’s say there’s a certain kind of issue at trial, like what if you have a mistrial or if you have a hung jury? If that happens, well, then you could be tried again and there would be no double jeopardy problem. So whether the double jeopardy clause applies depends on what happened in the first proceedings and what courts can infer from those proceedings.

 

Kate Shaw So here the jury returned a verdict on two different charges. On one charge, the jury acquitted, on the other, the jury convicted. The problem is that the charges arose from the same set of facts and the Georgia Supreme Court concluded that it was logically and legally impossible for the defendant to be guilty on one of the charges and innocent of the other. So the court vacated both of the verdicts. And the question is whether the defendant can now be retried after that.

 

Melissa Murray And the facts here are truly grotesque. They involve murder charges against the defendant, Damien Michael Rath, who is said to have murdered his mother. He is charged with malice murder, felony murder and aggravated assault, all under Georgia law. And he raised insanity defenses to all of these charges. Under Georgia law, a defendant is entitled to a not guilty by reason of insanity verdict if he shows he lacked the mental capacity to distinguish right from wrong or that a mental delusion overpowered his will, or that he lacked the criminal intent to commit the act. Here, the jury found that McIlrath was not guilty by reason of insanity on the malice murder charge, But they found him guilty but mentally ill on the felony murder and aggravated assault charges in his case, said the Georgia Supreme Court said it is not possible to be simultaneously insane and not insane during a single criminal episode. So it vacated both verdicts and subsequently held that McIlrath could be prosecuted a second time on those charges. And that, of course, is what prompts the question about whether the double jeopardy clause of the Fifth Amendment would prohibit that second prosecution for a crime of which McIlrath was previously acquitted, at least as to one charge.

 

Leah Litman And here, you know, at least to me, it seems like the Supreme Court’s prior case says, you know, support the defendant. There are cases saying a defendant can’t be retried on an acquitted charge, even if the acquittal is inconsistent with the defendant’s conviction on related charges. There are also cases saying an acquittal bars subsequent prosecutions, even if the jury hangs on a related charge and the acquittal seems inconsistent with a hung jury. And it feels like the Georgia Supreme Court here tried to make an exception to those cases for instances where the verdicts aren’t just inconsistent, but irreconcilable. And that’s just a really tough line to police. So there are also cases saying retrial, you know, would be part of a court directed an acquittal. But that was mistaken. And I think all of those kind of generally support the defendant.

 

Kate Shaw So in terms of what the state is trying to argue here, it’s basically saying that whether something is an acquittal depends on state law and that Georgia law, as defined by the Georgia Supreme Court, says there is no acquittal when an acquittal is logically irreconcilable with a conviction. But if you think about it for a minute, it can’t just be state law that defines this. Right. Or the double jeopardy clause wouldn’t mean much of anything, since if that’s the rule, states could just say nothing really amounts to an acquittal and they thereby avoid the Federal Constitution’s double jeopardy provision altogether. And also, other cases don’t seem to have turned on how a state defined an acquittal. So, Evans concluded, a legally erroneous court directed acquittal was still an acquittal for purposes of the double jeopardy clause, even though that was presumably consistent with state law.

 

Melissa Murray So that’s McIlrath. And again, I think that’ll be a really interesting case. For those of you who are not super checked up on the double jeopardy clause, I highly recommend the Ashley Judd movie called Double Jeopardy, which will spell everything out for you and also is a very good movie. But let’s go on to.

 

Leah Litman I love that movie. Whenever it’s available on flights. I always watch it.

 

Melissa Murray It’s so good. It’s just so good.

 

Kate Shaw And last case was mentioned briefly. Wilkinson versus Garland is a case about whether certain agency determinations in immigration proceedings, specifically whether there is an exceptional and extremely unusual hardship, are reviewable in court proceedings, challenging the immigration determination because they’re mixed questions of law and fact, or rather, are discretionary judgments that are just unreviewable.

 

Melissa Murray This week is a really big sitting, but it gets even better because next week the court is going to be hearing another monster block of cases and we’re going to focus more on those cases when we do the recap. But we wanted to just give you a little sketch of some of the big cases the court will be hearing the following week. So first up is Harrington versus Purdue Pharma, which. Involves Purdue Pharma, the manufacturer of OxyContin. And here this is all taking place in the context of the Purdue Pharma bankruptcy deal. And the court will consider whether the bankruptcy code permits nonconsensual releases of third party direct claims against non debtors. And I think this is really actually fascinating because the Purdue bankruptcy deal has effectively been stayed by this court and the deal would give billions to victims of the opioid epidemic and municipalities who’ve been affected by the opioid epidemic in exchange for shielding members of the Sackler family who own Purdue Pharma from future opioid litigation. And so here all of the parties to this deal are very much in favor of this deal going through. But and there’s a huge but the federal government has some concerns. So the Biden administration, through the DOJ’s U.S. trustee program, presented the deal to the Supreme Court and requested the court’s review. And in the government’s petition, it argued that if this bankruptcy plan were approved, it would, quote, leave in place a roadmap for wealthy corporations and individuals to misuse the bankruptcy system to avoid mass tort liability, end quote. So, yes, great deal for all of the people involved, but the government says this is basically a roadmap for everyone who does wrongdoing to get out of tort liability going forward by simply settling their cases and declaring bankruptcy. Purdue, of course, predictably, contends that any delay in implementing the settlement will cause, quote unquote, grievous harm to thousands of people who have been affected by the opioid epidemic. So if you’ve been following Dopesick on TV or reading Empire of Pain. This is what this is all about. You’ll find all of this very interesting even if bankruptcy is often very technical and maybe a little inaccessible, I think this might be a little more accessible.

 

Leah Litman So there is also the hugely important tax cut where sorry.

 

Melissa Murray It’s not a tax cut except for billionaires.

 

Kate Shaw No the law was a part of the tax cut case. Yes.

 

Leah Litman Yeah. Okay. So the case is Moore versus United States. And it’s about whether the 16th Amendment allows the government to tax unrealized income. And that theory could limit the federal government’s ability to adopt a wealth tax or billionaire tax, since the mega-rich often have their wealth and holdings that aren’t technically realized just yet.

 

Melissa Murray So just that we’ve heard, we don’t actually know because we are not the mega-rich and we don’t.

 

Leah Litman Know and they haven’t invited us on their private jets to like, explain how it was exactly.

 

Melissa Murray No, not.

 

Leah Litman But this is a case where one of the lawyers challenging the tax is David Rifkin, who’s representing Leonard Leo in the investigation by the D.C. attorney general into Leo’s financial networks. Rifkin was one of the Wall Street Journal reporters on the hour long interview with Justice Samuel Alito. And we will be spending a lot of time on this case during the recap. So please fear not witness that you did you want to say.

 

Melissa Murray I’m just I’m just amazed. He’s such a multi-hyphenate. He is both a lawyer and a journalist. What else are we going to find out?

 

Leah Litman Well, sometimes he wears one hat and sometimes he wears the other.

 

Melissa Murray Well, I mean, hats are important. Sometimes you take them off and you can do things and you put them back on and do other things.

 

Leah Litman Speaking of his lawyer hat, I did want to note that what can only be described as like life imitating art. The lawyers for the tax challengers filed a reply brief. And what was interesting to me about the reply brief is that it seems to try and evade the word limits of reply briefs by smushing together and consolidating some abbreviations like Pat, Period. No Space B R period, no space 27. So the lawyers who have devoted themselves to helping people dodge taxes and get around taxes are surprised. Finding ways to innovate and dodge and get around word limits as well. Just very on brand.

 

Kate Shaw Checks out.

 

Melissa Murray That’s what’s known as a word shelter. I don’t think you knew that. It’s a word shelter. Yeah.

 

Kate Shaw Or loop hole, it could be that, too.

 

Leah Litman Is that in the Supreme Court’s ethics code or the Internal Revenue Code or neither? Or not?

 

Melissa Murray It should be. It should be. The code of misconduct. It should definitely be there.

 

Leah Litman Mm hmm. Yeah. You know, it seems like there’s a pretty interesting lawyering happening for the petitioner. As the federal government pointed out, some of this in their brief. So there’s this one sentence that says they you know, that is the petitioner’s quote, the reporter’s paraphrase of the appellant’s losing argument in, you know, this Supreme Court case. And then they note in a parenthetical quoting 55 US at 591, though, the court’s opinion begins at 602. You know, for lawyers who, like don’t follow this, they’re literally just quoting, you know, some secondary sources summary of the arguments in the case, not anything the court said. It’s just it’s kind of funny.

 

Kate Shaw I think if it’s if you’re not like deeply immersed in the folkways of like, you know, appellate lawyering and stuff, it’s like it does not seem like a big deal. This is a very, very intense burn and also a weird mistep. They have.

 

Leah Litman Yes.

 

Kate Shaw This is an error that I am sure every law student who’s like researching is a pretty court case, or at least I always made and say, I remember doing this the first summer I spent doing legal research and citing something that was in the actual summary that’s prepared by the reporter of decisions as opposed to that as part of the Supreme Court opinion. And it’s kind of embarrassing when it happens. And it’s not a big deal if you are representing parties before the United States Supreme Court and filing briefs in that body. This is not an error that it’s okay to make like at all. And I love that the Estes office was just like, we’re going to Padley point this out like it’s petty. I think it’s petty to point it out, but I really admire it.

 

Leah Litman Supremely petty and I love  it.

 

Kate Shaw Yes.

 

Melissa Murray I mean, let’s just be fair. He probably wasn’t wearing his Supreme Court advocate hat when he was writing this brief.

 

Leah Litman Exactly. He’s wearing his summer associate hat.

 

Melissa Murray He’s wearing his 1L law Student. First semester, one L hat.

 

Leah Litman Yeah.

 

Kate Shaw Yeah. And so that is fine. So nevermind. I withdraw any criticism.

 

Melissa Murray I mean, maybe, maybe the SG’s office shouldn’t have been Petty LaBelle on this anyway. The court will also hear an important employment law case Muldrow versus the city of St Louis. And that case involves Jatonya Muldrow, who a sergeant in the St Louis Police Department. She was transferred to another department and she claims that the transfer was animated by her supervisor’s view that women should not work in that particular department. The work was too dangerous for women, so Muldrow sued, arguing that the transfer to a different department constituted prohibited sex discrimination under Title seven. However, the eighth Circuit concluded that because her pay had been unaffected and she had not actually been demoted, the transfer decision did not constitute an adverse employment action sufficient to provide relief under Title seven. And here’s the interesting part For purposes of this case in the Supreme Court, the Eighth Circuit’s disposition of this question differs from the way that the D.C. Circuit held there. The D.C. Circuit held that discriminatory job transfers are actionable under Title seven, and employees don’t have to prove some additional harm over and above the fact of a discriminatory job decision in order to establish a title seven claim. So this is a big case that will have lots of implications for public employees. And so we’re really watching it for that. Question. It’s also one of the cases that Leah mentioned in our term preview that like Pulsifer could be an opportunity for the statutes, text and structure to lead the justices to the right outcome here if they will just let it.

 

Kate Shaw Just a couple of recent shadow docket developments that we wanted to highlight. The first of which is a little over a week ago, the court denied Florida’s request to allow Florida to enforce its anti-drug law while the challenge to that law proceeded. So here a district court had found that the law was likely unconstitutional and had enjoined it. This was a challenge that was brought to the constitutionality of this drag ban by Hamburger Mary’s, which says it hosts family friendly drag shows which sound awesome. The 11th Circuit.

 

Leah Litman I love it. I want to go to Hamburger Mary’s.

 

Kate Shaw I think there are a few. I think it’s like a little maybe chain, but I don’t know if this one. Yeah. Anyway, so the 11th Circuit declined to issue a stay. Florida went running to the Supreme Court to ask it to stay this district court order, but it fell short. Only Justices Thomas and Alito and Gorsuch would have granted the application for a stay, but they didn’t write to explain why. But you did have a separate writing from close allies Kavanaugh and Barrett, who concurred that they didn’t think the stay should be granted. Meaning, you know, the law should stay on hold. And they wrote separately to explain that, actually, because Florida had focused on the scope of the relief as opposed to the substantive First Amendment issue in its state application. The court wasn’t likely to grant cert on just that issue. And so denial was appropriate here. But for now, importantly, that ban is not in force and effect. And Hamburger Mary’s can hold its, I guess, drag brunches.

 

Leah Litman Three additional addenda on that. First, I’d just like to pause to note that libertarian hero Neil Gorsuch would have allowed Florida to ban drag shows. You know, so just keep that in mind.

 

Melissa Murray Small government. Small government.

 

Leah Litman Exactly. Exactly. I wanted to pour a little bit of cold water on the fact that Kavanaugh and Barrett didn’t allow Florida to enforce this law because, as he noted, it wasn’t because they concluded the law was likely unconstitutional. It was instead because they suggested it didn’t. Actually, that is the case didn’t actually cleanly present that question. Given the filings, you know, to date. And so that’s like a little bit unclear how to read what they might do in a future case where the issue directly before them. And then finally, while Barrett joined Kavanaugh’s concurrence, she didn’t join One footnote that just kind of contained an aside on the propriety of universal injunctions and setting aside agency rules, even though those weren’t actually at issue in the case. And it was just super bizarre.

 

Kate Shaw I actually thought her not joining was like, I’m not sure this makes any sense. Brett So I just wasn’t going to disagree with anything. I’m not even know exactly. But okay, so that was how you read the withholding of the join too?

 

Leah Litman Yes. Yeah. Typical Brett Kavanaugh concurrence. Just kind of like an irrelevant, confused and confusing aside.

 

Melissa Murray Kav-currence. Kav-currence.

 

Kate Shaw True to form.

 

Leah Litman Indeed. Indeed. One other note on the shadow docket. You know, around the same time the court denied Sirshirary over a dissent by Justice Jackson, joined by Justices Sotomayor and Kagan in the case of Michael Johnson, an Illinois inmate who was held in essentially complete isolation in a tiny cell, even denied time to exercise outside for three years. It’s an extremely powerful dissent that is well worth a read.

 

Kate Shaw Yeah, it’s unbelievably egregious fact. Solitary confinement is an abomination no matter what. But this is like out for an hour to shower once a week. No 20 minutes maybe to shower once a week. Literally zero. Time to exercise, you know, filthy cell. Nothing to clean with except if he spent money on soap at the commissary like men. You know, most of them are fine with that. So that’s the court we have. Perfect.

 

Leah Litman So we do have some exciting news about one of us. Kate is going to be starting a new job in the new year and we are all very excited about that. And listeners are very excited as well. But.

 

Kate Shaw I’m not, wait, I’m not joining a new podcast.

 

Leah Litman She’s not leaving the podcast.

 

Kate Shaw Nor my new job.

 

Leah Litman People were seriously expressing concern when when the news broke on Twitter.

 

Kate Shaw I’m not joining a new podcast.

 

Melissa Murray People think that going to a new law school means that you’re going to leave us.

 

Kate Shaw Yeah. No, I am not leaving you guys. No, I’m moving to Penn Law School, which is bittersweet because I’ve had an amazing decade plus at Cardozo, which is an amazing institution. And it’s normal to change institutions, right? Melissa you were Berkeley for years, Leah. You were at Irvine before Michigan. So this is something that does happen. So, you know, it doesn’t in any way suggest I didn’t love Cardozo, which I really did. But Penn is amazing. I was there last semester. I had a really great experience and I’m excited. And I’ll be commuting between Brooklyn and Philly and I’ll have a microphone and some headphones in my office there. So nothing will change in terms of the podcast and your ear holes.

 

Melissa Murray Wow. I mean.

 

Leah Litman I’m looking forward to our next show at Penn, but I really want them to line up Gritty as a guest for the next one.

 

Melissa Murray And cheesesteaks. I want a cheesesteak.

 

Kate Shaw I feel like. Yeah, yeah, these are these are requests that I probably should have put in, you know, my negotiation.

 

Melissa Murray Oh, you know what else we want to know? I want us all steaks. And we also want to be filmed running up the library steps where we’re going to go like this at the top. And we’re like, Rocky, Kate make that happen. So.

 

Kate Shaw Sophia Lee is an amazing dean and could make anything happen. So I feel like this should be a no brainer anyway. Yeah. So we’ll do another live show in Philly at some point. Excited about that But yeah, that’s the news.

 

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Kate Shaw And now for the previewed special Court culture segment, we are delighted to be joined by Representative Ro Khanna, who has represented California’s 17th District in Congress since 2017. Welcome to the show, Representative Khanna.

 

Representative Ro Khanna Thanks, I’m excited to be on.

 

Kate Shaw So in a previous career, you were a practicing lawyer. You also taught at law school. So this should all be familiar terrain to be surrounded by law professors. And also, it is nice for us to know that we law professors can grow up to live our dreams as well. So this is, you know, very intimidating.

 

Representative Ro Khanna I thought I was wondering I was reminded of like moot court back in law school. So take it easy on me.

 

Kate Shaw We’ll get real Socratic with you. How’s that?

 

Leah Litman So I’m going to start out with a tough question, and it’s this We arranged this interview a while back and had planned to discuss your political and anti-corruption reforms, but then the Supreme Court adopted an ethics code. So why didn’t that fix everything? Why are we still here?

 

Representative Ro Khanna Well, I did look at the ethics code and then they basically say, well, we adopt the ethics code of what the judicial conference always says. So I said, okay, what does the judicial conference say? And it turns out that there’s no disclosure requirements. I mean, there’s no requirement for enforcement. It just says if you feel that something’s a conflict, then you shouldn’t do it. I can’t imagine that there is a institution with lower ethics standards than the United States Congress, but it makes me feel like a chump that I had to file a disclosure for almost everything I do. And so, you know, the first step could just be disclosure forms for the Supreme Court.

 

Kate Shaw So obviously, there’s a problem. So I think to shift to remedies. So one is the justices could actually adopt a code of ethics that actually has real teeth, maybe has some actual prohibitions on these kinds of gifts and largesse from billionaires, maybe has some kind of enforcement mechanism, maybe has mandatory language. They did none of those things in this particular code of ethics. So is it possible that there’s another institution that might be better situated to actually address the question of Supreme Court ethics and Representative Khana? What institution might that be?

 

Representative Ro Khanna Well, look, I think Congress has to do the basics, and that is pass what the American people want for a code of ethics for the Supreme Court. The other thing is, in history, politicians have been much more willing to call out Supreme Court justices when they’re totally out of touch with the facts of American life. I mean, Lincoln ran against an illegitimate court. FDR ran against an illegitimate court decisions. And I think our political leaders should be less intimidated to call out Supreme Court justices and point out why they’re not doing democracy’s work.

 

Melissa Murray So I think that’s a great place to kind of focus on. Here’s a question, though. It seems like your colleagues in Congress are a little scattered right now. I’m specially on the Republican side. Is this body too polarized at this moment to actually be able to take up the challenge of imposing real limits on the Supreme Court? Is this something the Senate should focus on? Should Senator Durbin continue with the effort to subpoena Harlan Crow and Leonard Leo? Or is this horse out of the barn? And there’s very little that Congress can do under the current leadership to rein this in.

 

Representative Ro Khanna I think Senator Durbin should continue to focus on it. And the House Democrats should do what we can. The Republicans aren’t going to go along with it. I mean, the reality is, if you mentioned ethics in the Supreme Court, the Republicans balk because they’ve gotten some of the decisions that they wanted out of this court, most prominently, obviously, the overturning of Rove versus White. And they want this court to relook at Chevron deference and undermine the administrative state so they don’t care about the the ethics issues. But the president, in my view, and House Democrats and and Senate Democrats should run on this and 2024 that we are going to hold the Supreme Court accountable to some basic ethics.

 

Kate Shaw So you’ve made the point politically, right? So that there absolutely has been. And I think we totally agree with this, a neglect of the bully pulpit, both from the White House and from a lot of quarters in Congress, that the public actually does care about the Supreme Court right now. And the public is pretty unhappy with the Supreme Court and more attention focused on some of the shortcomings of the Supreme Court actually maybe could both be constructive and maybe politically advantageous. So so I think we totally agree with all of that in terms of kind of brass tacks. So I think you actually have some specific proposals of legislatively in addition to rhetorically what Congress ought to do. And I think some of it sweeps in Congress, right? Ethics in Congress as well as ethics in the court. So could you tell us a little bit about the specifics of what you’d like to see done?

 

Representative Ro Khanna So most of mine is focused on Congressmen ban PAC money, ban lobbyist money, don’t hit members of Congress, become lobbyists. I mean, you could have the same applied to justices if they leave the court, don’t have them become lobbyists, banned stock trading and with that, members and justices and have some term limits. And the term limits, I believe four Supreme Court justices should be 18 years. They can go on to an appellate court. They can go on to a district court. They just don’t have to be on the Supreme Court. And the president’s commission looked at this and the way I read the report, they said that that was constitutional. You still have a judge, someone being a judge for life, just not on the Supreme Court for life.

 

Leah Litman And we know that these guys love to find facts as if they were district judges. So really write like this or just be allowing them to fulfill their inner passion for fact finding.

 

Representative Ro Khanna That’s pretty good.

 

Leah Litman So representative, kind of you’ve already alluded to at least one case that the court will be hearing this year. But I guess, you know, in light of this package of reforms that it’s designed to help the court save the court from itself, I guess, like what is the case that you think the court is set to hear this term, that there are now serious questions about the justices partiality or neutrality in light of the lack of ethics rules around the court right now?

 

Representative Ro Khanna Well, I do think it’s the court case on December 5th, which you’re going to hear on the wealth tax. I mean, you’ve got the American people who are so angry and frustrated at the wealth disparity. You’ve got three of the richest Americans alone, more than the bottom 50%. You’ve got my district in Silicon Valley, $10 trillion of wealth, a new millionaire billionaire almost every day. And most Americans can’t afford housing, can’t afford child care, can’t afford rent. And so now you have the Supreme Court saying, can we have a tax on these wealthiest Americans or not? Can we tax wealth? And you’re going to have these these justices decide that case while they’re flying, being flown around in private planes and given fancy vacations? I mean, you don’t have to be a constitutional law professor to know that that doesn’t pass the smell test. It doesn’t it doesn’t sit right with people as it is. They think you have to be an elite to get the Congress or the Supreme Court. This just furthers that. And so that’s something that I think an ethics good could help mitigate the perception issue.

 

Melissa Murray So we are coming up on the holidays. And Representative Khanna, I just have some questions for you about what’s on your list. So what’s on your wish list for and from the justices?

 

Representative Ro Khanna Well, retirement would be great for some of them.

 

Melissa Murray It’s free. You don’t have to disclose it.

 

Representative Ro Khanna It’s not it’s not even shameful. Like I said, retired. Don’t even resign. You know, just just retire. Move out of the way, because that’s the that’s the real thing. It’s it’s it’s it’s that they’re so out of touch with how people live with what’s happening on college campuses. They’re out there like taking away people’s reproductive rights. They’re out there taking away the way people live ordinary lives. They’re just out of touch. They’re in a different generation. They just need to get off the stage. That’s that’s my ask.

 

Leah Litman Well, I think that would be a gift to you and a gift to the court. Right. Since they can go be district judges and fulfill their wildest dreams.

 

Representative Ro Khanna You know, they can go become billionaires. You know.

 

Melissa Murray That’s a win/win for everybody.

 

Kate Shaw There is a way if what you really crave is a life of luxury like you, what you have to do is just leave the court and go, you know, find a way to make I mean, I don’t think it’d be hard. So yeah, so if in fact it became so difficult for them to actually live in the way that they have become accustomed to living off billionaire friends, it’s not impossible that that actually would impel some of them to accelerate retirement plan so that they actually could self-fund such a you.

 

Representative Ro Khanna Know, one of my favorite stories is of Harry Truman after the president wins World War two, he retires and someone invites him to give a speech in Washington, D.C. And he writes this letter saying, you know, I’m happy to come to give this speech, but I’m a little embarrassed to say I can’t afford the train ride to go make the speech. That’s a president who literally set up Natal and won World War Two. It used to be used to do public service, not to get wealthy, not to get rich. And you knew that it was a sacrifice. And we’ve lost some of that in this country and we’ve got to get back to that. If we were going to have any shot of restoring public trust.

 

Melissa Murray Here. Here.

 

Leah Litman Yeah, maybe we should end there on that hopeful note about what we should be aspiring to and moving toward. Thank you so much, Representative Khanna, for taking the time to join us. We really appreciate it.

 

Representative Ro Khanna Thank you for having me. I enjoyed it.

 

Melissa Murray And before we leave Strict Scrutiny, listeners, we want to give a big shout out to the Michigan State University debate team. We heard from their coach that they are big, strict scrutiny fans and we love that for them. So we wanted to congratulate the team on their year so far. Apparently they’ve had a winning season and we wish them all the best for the upcoming spring semester. Some of us on the podcast were debaters once upon a time, and we know how much hard work goes into being a successful debater. So we just want to tell you, we’re really proud of you and we know your coach is really proud of you and we know Michigan State is really proud of you. So go Spartans. Sorry, Leah, and good luck in the next semester.

 

Kate Shaw A reminder that tomorrow is the last day to get your favorite Crooked items on sale. Everything in the Crooked store is 20% off just through tomorrow. And that includes your favorite strict scrutiny merch. So do yourself a favor. Head to crooked e-comm slash store to shop now.

 

Leah Litman Strict Scrutiny is a Crooked Media production hosted and executive produced by me, Leah Litman, Melissa Murray and Kate Shaw, produced and edited by Melody Rowell. Our associate producer is Ashley Mizuho. Audio support from Kyle Seglin and Charlotte Landes. Music by Eddie Cooper. Production support from Madeline Heringer and Ari Schwartz. Be sure to subscribe to Strict Scrutiny in your favorite podcast app so you never miss an episode. If you want to help other people find the show, please rate and reviews. It really helps.

 

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