In This Episode
Sam Sankar of Earthjustice joins Leah and guest host Steven Mazie of The Economist to cover the Supreme Court’s opinion in Sackett v. EPA. Millions of acres of wetlands risk losing federal environmental protections– threatening the future of the nation’s clean water. And of course, Leah and Steve catch up on the latest Harlan Crow news.
Plus, Jessica Valenti gives an update on life after Dobbs.
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- Listen to this past episode about Sackett v. EPA with Sam Sankar
- In this episode, the hosts discussed the arguments for Tyler v. Hennepin County, another one of the opinions discussed.
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Show Intro Mr. Chief Justice, may it please the court. It’s an old joke but when an argued man argues against two beautiful ladies like this, they’re going to have the last word. She spoke, not elegantly, but with unmistakable clarity. She said. I ask no favor for my sex. All I ask of our brethren is that they take their feet off our necks.
Leah Litman Hello and welcome back to Strict Scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it. I’m your host today, Leah Litman. As we noted at the end of the last episode with a holiday weekend, we are a little short staffed. But I am super excited to have a great guest here today to co-host this episode with me. So with me today in the guest host seat is Steven Mazie, the Supreme Court correspondent at The Economist and a professor at Bard High School Early College. We’ve talked about his work on the show before but haven’t yet had a chance to have him on. Welcome to the show, Steve.
Steven Mazie Thank you. It’s an understatement to say that I’m excited to join you today. And I just want to note at the outset that I like you and the Michigan alum. So this is very much a go blue episode.
Leah Litman Go blue. Try to keep the water blue. Although the Supreme Court, it so happens, is going to get in the way of that. So first up, we are going to recap some opinions. Then we will cover the ever present news about the court segment. And at the end, we will have a continuing update on the post-op state of the world. So first up is the super big opinion we got last week, and that is Sackett versus EPA to help us with this very big environmental law case. We are delighted to be joined again by one of planet Earth lawyers, Sam Sankar, whose official title is senior vice president for programs at Earthjustice. Welcome back to the show, Sam.
Sam Sankar Thank you so much. Although I have to say that every time you invite me on the show to talk about the Supreme Court and the environment, it’s generally a bad day for the planet.
Leah Litman Yeah, I’ve got nothing in response to that.
Steven Mazie Well, Sackett is the case that was the very first case argued in the term. It’s the case about the reach, the scope of the Clean Water Act, the landmark law passed in 1972. And the specific issue in the case is which wetlands the EPA has the authority to regulate and protect. So just to sketch it out, the EPA relying on the Supreme Court’s previous opinion in respondents versus U.S. from 2006, specifically the Justice Kennedy opinion in that fraught 414 case said that it had the authority to regulate wetlands that have a significant nexus with traditional navigable waters like rivers.
Leah Litman And the Supreme Court, in this second opinion, rejected that significant nexus theory, instead holding that the EPA has authority to regulate only those wetlands that are continuous with navigable waters, that is wetlands that have a surface connection to those waters rather than some connection underground, that much more limited standard. And Justice Alito’s opinion is drawn from the four justice kind of dissenting opinion in response that was written by Justice Scalia and joined by Justices Alito and Thomas and the chief justice. So, Sam, did we kind of get those basics right?
Sam Sankar Yeah, it’s a little confusing, but you did a very good job. Thank you.
Steven Mazie So the opinion is nine zero for the circuits. Michael and Chantell Sackett, the couple from Idaho. But it’s effectively a 5 to 4 on the meaning of the Clean Water Act with Justice Alito writing for those five justices. And we’ll explain in just a second what the effectively five four means. But just a first question. Sam, how wild is this opinion legally? Like how out there is it continuous surface connection? The new test that Alito proposes appears nowhere in the Clean Water Act, but it does appear in that Scalia opinion in Rapanos, right?
Sam Sankar Sure. So I guess I would say it’s legally wild, but not legally surprising given the dissenting opinion in the Rapanos case. So anyone who’s a rational observer of this issue has been waiting for this shoe to drop for some period of time. But the shoe that is dropping is indeed quite wild, as Justice Kavanaugh himself points out. I mean, you’re going to hear me say this over and over again, just as Kavanaugh is pointing out that this is kind of crazy. And that’s significant to any observer who tends to sympathize with conservative readings of environmental laws.
Leah Litman Noted squish Brett Kavanaugh. So that’s the effectively four four that Steve was alluding to. So what happened is, you know, Justice Alito writing four or five Republican appointees, adopted the continuous surface connection test, and then Justice Kavanaugh, together with the three Democratic appointees, adopted a broader understanding of what wetlands EPA could regulate. But, you know, just to underscore, Sam, kind of what you were saying, like how legally out there and in saying this Alito opinion is right, his opinion, the Alito opinion would have invalidated the Trump EPA Department’s regulation as too environmentally friendly because the Trump administration maintained that long standing protections for wetlands separated by like manmade structures, those could be regulated by the EPA. So the bottom line of this Alito opinion is that Scott Pruitt, who literally spent his career as a lobbyist for big oil, is apparently too environmentally friendly as an EPA chief.
Steven Mazie Right. So maybe, Sam, can you sketch for us what the bottom line for the environment is likely to be? You mentioned the shoes are going to drop. What’s going to drop? What’s going to happen as a result of this one test going out and a new test coming in for the Clean Water Act?
Sam Sankar Sure. And let’s talk about this decision itself rather than the tea leaves that it casts or the doctrinal implications of some of the way it decided this decision. There’s over 100 million acres of wetlands in this country and those wetlands that are federally protected and that acreage stands to lose protection. It is entirely unclear exactly what the acreage is that will lose protections. And there are people in organizations like mine trying to figure that out right now because the court’s test is not a bright line test. It is its own squishy test. So what’s clear is that a lot of that wetland area is going to lose protection. And what does that mean? Well, what’s worth remembering is that the goal of the act was to protect the chemical, physical and biological integrity of the waters of the United States. And so that’s why wetlands are protected. You protect wetlands not just for their own sake, but to protect all the waters that we fish in, swim in, boat in and everything else and drink. So the bottom line for the environment is that wetlands are less protected and as a consequence, waters are threatened.
Leah Litman So on the last episode, you liken wetlands to like the Earth’s filtration system. And I think it’s important just to kind of walk through a little bit the science behind why wetlands that lack a continuous surface connection to navigable waters nonetheless affect the Earth’s water supply. I mean, you know, the reality is pollutants that are on wetlands that are not physically connected to other waters can still make their way into those waters. Like that is just called science. You think about, you know, small structures like dunes that are in the middle or manmade barriers, right. Like some sort of bridge or road. And that isn’t stopping what’s happening in the wetlands from affecting the water. And that’s why the four justices, or at least part of the reason why those four justices, Justice Kavanaugh on the three Democratic appointees, would have said that the EPA can regulate those wetlands that are in the vicinity of navigable waters, even though they’re not directly touching them, but are separated by structures like manmade dikes, dunes or whatnot. Okay. So, Sam, this seems like real bad, but I’m sure if they reach this catastrophic result for the earth filtration system, it must have been because the law required it. Right.
Sam Sankar Well, no. I mean, they would say it’s because the law required it. But as it turns out, and as anybody can read from the rest of the opinions, the law does nothing of the sort. And the principle legal reason is that or I would say the principal legal reason is that Congress wrote some laws along the way and refused to enact some laws along the way that very clearly show that adjacent wetlands and however you construct that term, are protected by the Clean Water Act. So in the immediate aftermath of the passage of the act, there was some question about whether wetlands were covered. And there was a concerted campaign to lobby Congress to say that it wasn’t. And in 1975, the Army Corps of Engineers passed some regulations to say, absolutely, we think wetlands are covered. And in 1977, Congress passed a law that says that adjacent wetlands are covered. And again, throughout that whole period, the industries that are affected by this rule were lobbying relentlessly to get that changed. And in fact, it went in the other direction. And ever since 1977, they haven’t let up. They’ve continued lobbying Congress this entire time. So as a result, what’s happened is that the court has done something judicially that Congress has refused to do. And the statutory text, again, protects adjacent wetlands, as Justice Kavanaugh points out.
Leah Litman So I just want to underscore a few things that you said. You know, you suggested that the industry has been lobbying Congress. Well, it turns out all they had to do was buy a building across the street from the Supreme Court and lobby them too. Right. And they would just go ahead and do it for em hashtag YOLO. And again, the language of the law says that adjacent wetlands fall within the EPA’s jurisdiction, and other sections in the relevant statute used the phrase adjoining right. But Congress didn’t do so here. Now an adjoining wetland would be right, something that has a surface connection or closer connection, but an adjacent one sweeps broader than that. So because the language right, the law doesn’t so much support the result here. Our boy, Sam Alito, came up with a math equation to get to this reactionary result. So, listeners, bear with me. I’m going to do some math here, but this is what Sam says. And the provision begins with the broad category the waters of the United States, which we may call Category A. The provision provides that states may permit discharges into these waters, but it then qualifies that states cannot permit discharges into a sub category of a traditional navigable waters parentheses Category B. Finally, it says that a third category parentheses Category C, consisting of wetlands adjacent to traditional navigable waters, is included within B. Thus, states may permit discharges into a minus B, which includes C if C were not part of A and therefore subject to regulation under the Clean Water Act, there would be no point in excluding them from that category. Sam, why doesn’t math resolve this right here? Just math, Planet Earth real hard?
Sam Sankar Well, he used three letters, A, B and C, and I like, you know, as always of this, the Justice Kagan beats me to the punch. So often her response to this was the majority can use every letter of the alphabet and graduate to quadratic equations and still not solve the essential problem. The problem with this, with this formulation is the statute, right? Congress said to Jason Waters are covered adjacent to navigable waters, and that’s the end of the story. You don’t have to do these rhetorical and legal gymnastics in order to get to. Well, the only way you do it is through rhetorical and legal gymnastics that I continue to read that that passage and just scratch my head and need to go drink more coffee in the middle of it to try to figure it out.
Leah Litman I mean, I think Sam wanted to really spread his interdisciplinary wings and expand his interdisciplinary horizon. He’s already mastered history. We know that from Dobbs. And he saw Matt Casimiro cosplaying a scientist. He saw Neil Gorsuch do the same in Amgen. And he’s like, I’m going to math. I’m fucking Isaac Newton, Albert Einstein. Alito And I’m a mathematician, too.
Sam Sankar The only thing I’d ask here is the references to Sam along the way here. Get me a little nervous.
Steven Mazie Two different sounds. We know there are two separate one.
Sam Sankar One is much less important for environmental law than the other. But they’re different.
Leah Litman One is good Sam, one is bad Sam.
Sam Sankar Oh, there you go.
Steven Mazie This was a section of his opinion that was crying out for a Venn diagram. Like, it would have been so helpful. Yes, With the ABCs, It made me think a little of the learned hand formula, the B and the P L for in torts. Right. So I was thinking maybe Alito wants to be remembered for his own algebraic formula.
Leah Litman When he recited that formula, I was like BP. BP, you’re right. This is this opinion, right? So. So it has that added parallel to it.
Steven Mazie That’s right. So whether it’s Isaac Newton, Albert Einstein, Alito, as you said, or learned hand-Alito We definitely have some new monikers for the justice. For the justice, Sam. Now, we’ve mentioned the opinion is effectively five for both Justice Kagan and Justice Kavanaugh, right? Opinions that are styled as concurrences in the judgment. That means they agree that the specific wetland at issue in the case is not covered, although one strange feature of both concurrences. It was strange to me. I wonder if it was to you, Sam. That is that neither explains why the wetland on the SAC, its property, is not covered by the Clean Water Act. There’s not a word from Kagan or Kavanaugh on that, which seems to me like a major omission. I read through both concurrences twice, and I couldn’t find anything about that. So to remind listeners, this Hackett’s property has wetlands in the backyard that are just 30 feet from a tributary leading to Priest Lake, which is itself just 300 feet away from their property. I looked at the joint appendix. I saw the photographs. It’s visible right there from their backyard. So why isn’t that adjacent in the eyes of Kagan and Kavanaugh? They don’t say. What do you think is happening there, Sam?
Sam Sankar Well, I think the very last paragraph of Justice Kavanaugh’s opinion is the closest we get to any explanation of that. But I agree it’s far from satisfactory and far from really analytical. I guess my best guess or my my most hopeful explanation is that Justice Kavanaugh and Justice Kagan were simply so blown away by the overall approach of the majority’s opinion that they decided to focus what they wanted, what they wrote on, on the bulk of the opinion rather than the circuits. And that’s a shame, because the story of the seconds property, if told more broadly, would certainly make people think, Wait a minute, now, hang on. These people say they shouldn’t be covered by the by the act. And indeed, many of us in the environmental community, when they saw this as the test case, we said they chose this as the test case. This is the one they want. This couple that owns an excavation company where the property had previously been described by the court as potentially covered by the act that decided to bring their companies, bulldozers and excavators in without asking for a permit. They’re the ones who are the the innocent landowners that the conservative movement is putting forward as the poor souls who were who were hit by unknowingly by the act.
Leah Litman So if it’s not law in a traditional sense or maybe even any sense at all that’s driving this decision, what is it? You know, I think the opening paragraph of the Alito opinion gives some clues. It says, quote, By all accounts, the act has been a great success and quote, apparently that means Sam Alito must end it. Justice Kagan, in her affectively dissent, says if you’ve lately swam in a lake, happily drank a glass of water straight from the tap or set down to a good fish dinner, you can appreciate what the law has accomplished. And part of me is concerned that because the harms from this decision are going to be more attenuated from the decision itself and a little bit more diffuse, this decision is not going to be met with the same type of response as, say, a decision like Dobbs Right. That had immediate, widespread and readily apparent effects where the connection between the court’s decision and what was happening in front of it was very clear. But we’re not as likely to see the effects from this decision until a little bit further down the road, at least in terms of immediate recognizable effects on drinking water species and whatnot.
Sam Sankar That’s where I start thinking about the implications of the way that the court decided this. And just as Justice Kagan points this out and says, look, the court is appointing itself, and she used, in her words, the national decision maker on environmental policy, because the statutory interpretation method that the court has adopted here is one that it can deploy in a fairly free standing way to simply say no to any environmental regulation that it dislikes and what the majority may have been doing. A little quietly, Justice Thomas is not shy about. And Justice Thomas’s opinion is just a shocker when well, it’s not a shocker because this is Justice Thomas hasn’t totally hidden his views on this stuff, but he is unusually unabashed in stating clearly that federal environmental law pushes the limits of even the court’s, quote, New Deal era Commerce Clause precedent. In other words, he’s saying the New Deal. I don’t believe in it. And because I don’t believe in that, environmental law’s down the tubes, too.
Leah Litman Yeah, we’ll get to that opinion in a little bit, but I’m going to stick with Sam Alito for just a little bit more.
Steven Mazie Yeah, a few more lines from Alito. He really agonizes over the burdens on landowners. And here is just some representative lines. What are landowners to do if they want to build on their property? Another line many landowners faced with this unappetizing menu of options would simply choose to build nothing. And then he writes, The Clean Water Act is a potent weapon. It imposes what have been described as crushing consequences, even for inadvertent violations.
Leah Litman In other words, like we need to save landowners and corporations from the big Earth lobby. And Justice Kagan, in separate writing, kind of describes how the court has done just that. She says today’s majority believes Congress went too far. Surely something has to be done and who else to do it but this court, it must rescue property owners from Congress is too ambitious program of pollution control. And so they shall the usual rules of interpretation.
Steven Mazie And then in order to save property owners up, pops up. You know, on page 23, near the end of the opinion, to save the day, a new clear statement rule. A rule says the court isn’t limited to what the law says unless it said extremely explicitly in cases affecting property rights. So, Sam, can you tell us how significant is this new apparently new clear statement rule? And what does it mean?
Sam Sankar This is actually the part of the opinion that terrifies me the most because it is a freestanding wrecking ball for environmental law. Last term’s decision in West Virginia versus EPA got a lot of attention because it was about climate. And one of the things that’s interesting to me is that many media outlets are not really paying as much attention to this case as to that. But the West Virginia decision included this major questions doctrine. And the major questions doctrine looks like a joke compared to this doctrine. If that was a dagger in the hands of polluters, this this is a machine gun. This is an incredibly potent doctrinal tool for attacking any regulation that affects private property. And guess what? That’s what regulations kind to do. They regulate private property for public benefit. Because if you pour goop in the water behind your house, that water comes down past my house. That is why we have regulations on private property. The court seems to think that this whole idea is just bonkers. I don’t know why we do this. They seem to be saying.
Steven Mazie Yeah, water does have a way of being watery and flowing at times, which is what the problem might be. But the the clear statement rule that Alito articulates, or I’m not sure if articulate is the right word that he proposes that he that he throws on to the page on page 23, he puts it in the context of the significant nexus test and says, well, the significant nexus test is not in the statute anywhere, as if the continuous surface connection test is in the Clean Water Act, which of course it isn’t. So here’s one more line from Justice Kagan. She says today’s pop up clear statement rule is explicable only as a reflexive response to Congress’s enactment of an ambitious scheme of environmental regulation. It is an effort to cabin the anti-pollution actions Congress thought appropriate. And then she likens it in the way that the media isn’t quite yet doing enough to what the court did last term in West Virginia versus EPA. The Clean Water Act and the Clean Air Act received similar treatment, although through different mechanisms with this court.
Leah Litman And her separate writing, I think, really makes clear how the Court’s reasoning and opinion is really limiting the legal tools at Congress’s disposal as well as at agency its disposal to address pollution. Right. She says the court is creating a thumb on the scale for property owners, no matter that the act is all about stopping property owners from polluting. And she says, like Justice Kavanaugh, I’d stick to the text, and here’s a theory. I’m just going to float it. I think Justice Sotomayor asked Justice Kavanaugh to do the initial assignment of the main effective dissent in this case to see if he could lure over another Republican appointee. And when that didn’t happen, Justice Kagan was like, Put me in coach and I will light these guys on fire. And I just kind of think that that happened.
Sam Sankar I think that’s that’s certainly possible. I do think it’s worth emphasizing. And we can’t emphasize enough how this doctrinal maneuver threatens environmental laws more broadly. It is tremendously relevant to climate regulation, to regulation of endangered species, to basically all of the laws that regulate our private conduct for environmental benefits. And that system, you know, many people seem to think like, oh, that’s crazy. But what they don’t appreciate is that this understanding and approach to environmental regulation is what underlies 50 years of progress in basically all of our environmental laws. So many of the things that even some of these Republican appointees seem to be taken for granted in their lives are the result of protections that they seem to be undermining. Those protections don’t just help the Indian tribes that were just as represented in this case. They help everyone. In fact, even the fat cat landowners who I think may be supporting some of the justices lifestyles.
Leah Litman Speaking of the justices lifestyles, I was at the court for the earlier iteration of the Sackett case in 2012, and I really think that this Sackett too, is just fulfilling Sam Alito’s like lifelong dreams of killing the Clean Water Act. I really do.
Steven Mazie Yeah. There is the moment in Sackett to the opinion we got yesterday where Alito cites Alito in Sackett one saying that the EPA’s standard is hopelessly indeterminate. So 11 years later he gets to forge a majority around that idea. I would just add one more note that whereas Kagan begins her opinion with the stakes, noting that prior to the enactment of the Clean Water Act, rivers were bursting into flames. Lakes were unfit for swimming in many places. You couldn’t drink the tap water before 1972, and showing that this law has been vital to cleaning up our water. In contrast, Alito makes hardly any mention of the stakes until the final page of his opinion, where he says basically that the, quote, ecological consequences, unquote, don’t matter. And it reminded me a bit of a passage near the end of his jobs opinion last year, where he admits that the political, the social consequences of reversing Roe might be significant. Who knows? Maybe they’ll something will happen as a result of this case. But then he wrote, Hey, you know, we got to be faithful to the law and let the chips fall where they may. So this kind of anti consequential ism consequences don’t matter. It just, you know, as we’ve been discussing, it doesn’t sit well with the idea that consequences do matter when a law burdens property owners whose wetlands might polluting a nearby waterway. When that happens, well, we have to get out our red pens and rewrite a landmark law to ease the staggering burden on those property owners.
Sam Sankar One notable difference, though, between this opinion and Dobbs is that Dobbs grappled with precedent and at least tried to say why the court was doing this thing that it did and what it meant to overrule that. One notable thing about Justice Alito’s opinion is that nowhere suggests that the court is doing something different here, even though the courts. Higher opinions in cases like Riverside, Bayview State in no uncertain terms, literally, that the Clean Water Act covers adjacent waters. And Justice Alito doesn’t even mention that. And another thing that’s important here is that the Clean Water Act is 50 years old. Eight consecutive presidential administrations, including the Reagan administration and the Trump administration, as you pointed out earlier, have interpreted this law in a way that is different than the Supreme Court has done here And those that a different way than the Supreme Court has interpreted since the beginning of the act. So this idea of destabilizing the law is just totally inconsequential to Justice Alito, in addition to the fact that he doesn’t care about the consequences.
Steven Mazie Well, there seems to be a general principle on this court that anything that the Supreme Court did in the 1970s or anything that Congress did in the 1970s is now unconstitutional or should be thrown out.
Leah Litman So the seventies are for suckers, stare decisis is for suckers, but statutes are actually for suckers, too. So, Sam, you already kind of alluded to one of the passages from Justice Kagan’s effective dissent that I wanted to come back to you now, and that’s the closing. So she says, I’ll conclude, sadly, by repeating what I wrote last year With the replacement of only a single word, the court substituted its own ideas about policymaking for Congress. The court will not allow the Clean Water Act to work as Congress instructed the court, rather than Congress will decide how much regulation is too much, because that is not how I think our government should work more, because it is not how the Constitution thinks our government should work. I respectfully concur in the judgment only. What I like about this passage is she’s calling out what the court is doing right, making clear to people that the court is depriving the elected branches of legal tools to address public problems and instituting itself, as you know, environmental policy maker. Sam Alito is basically the guy writing environmental policy now, right? Like to bad libs, although I think he’d probably say like Marjorie Taylor GREENE can also write environmental policy and solve, you know, unclean water with her space lasers, pew, pew, pew. Pew, pew, pew.
Steven Mazie You know, that sadly stuck out to me. This is something of maybe a Kagan dissent or concurrence dissent trend in Rousseau, the gerrymandering case from a few years ago. She ended the dissent by writing with respect, but with deep sadness. And again, in the three justice dissent in Dobbs, that time it wasn’t sadness, but sorrow. With sorrow we dissent. So we have this kind of series of laments from Justice Kagan. I think it’ll be interesting to see if other justices start attaching emotional notes to their dissenting lines. And another word about the Thomas concurrence that you mentioned earlier, Sam. This was the concurrence joined by Justice Gorsuch. It’s an opinion, I think, that basically says, you know, wait, wait, wait, Yes, the Clean Water Act is narrower than you all thought, but it’s even narrower than Justice Alito and the five. To my left, you know, I think it’s even less of an authorization to protect clean water than Alito says it is. So he emphasizes these constitutional concerns. It’s federalism concerns with anything like a far reaching Clean water act. And I think he would say that even if Congress were to rewrite the statute somehow with an even clearer statement in line with what Alito demands, he and Gorsuch would say, well, even if you rewrite the statute that way, I would not allow this to happen under any circumstances.
Sam Sankar And just to emphasize how far reaching his reading is, he doesn’t think Priest Lake is covered by the Clean Water Act. I mean, he’s like, forget the wetland, the whole lake that all these people have built this development around. I’m not interested in that lake. Not protected.
Leah Litman Well, because you can’t fit Harlan Crow’s superyacht in it. As Elie Mystal noted on Twitter. So there you go. The only water that can be clean is the water that can be enjoyed by super yachts. Hashtag facts. Okay, So this opinion also underscores to me the importance of a63 court because the Democratic appointees can peel off a vote for sanity here. Justice Kavanaugh. And it just doesn’t matter. And I’m also concerned that some of the coverage of this case has minimized its importance because of the, you know, formal unanimity on the bottom line that has caused people to miss the very real and very consequential five four division on the scope of the Clean Water Act. So, Sam, I’m so glad we were able to have you clarify what exactly the stakes of this were. Thank you so much for joining us.
Sam Sankar Well, as always, I gild the lily because this this group does such a good job of explaining even the most complicated concepts in environmental law. So thank you for having me.
Leah Litman [AD].
Leah Litman So we are now going to quickly cover the other opinions we got last week. The first up is Tyler versus Hennepin County. This was a quick and short, unanimous opinion where the court revived a challenge to Hennepin County practice of selling homes to satisfy unpaid tax debts. Hennepin County here sold Geraldine Tyler’s home for $40,000 to satisfy Tyler’s $15,000 in unpaid taxes. Technically, it was $2,000 in unpaid taxes and 13,000 in interest and penalties. The court unanimously held that Hennepin County’s act of keeping that surplus of $25,000 for itself constituted a taking of property that is subject to the takings clause of the Constitution.
Steven Mazie As a reminder that takings clauses in the Fifth Amendment and it says nor shall private property be taken without just compensation. And the court held that the owner retained a property interest in that surplus. Chief Justice Roberts wrote that Geraldine Tyler had a, quote, pocketbook injury giving her standing, which might be literally true as she’s a 94 year old woman who probably does have an actual pocket book and calls it that. And Roberts being Roberts, he did not miss a chance for a history lesson, offering citations to the Magna Carta, to Blackstone’s commentaries, to statutes in ten states around the founding and war.
Leah Litman Always edifying the court’s look at history. So the court also distinguished one of its prior cases, Nelson on the ground that Justice Kagan had insisted that case could, in fact, be distinguished at the oral argument in Tyler. We actually played this exchange when we recapped the oral argument. So regarding Nelson, the chief justice, in his opinion, said, quote, Under the governing ordinance, that is, someone to Nelson, a property owner, had almost two months after the city filed for foreclosure to pay off the tax debt and an additional 20 days to ask for the surplus from any tax sale. Okay, so as I said, this is an exchange we played from the oral argument, but I’m going to replay it here since it basically made its way into the opinion.
Clip Are there any limits to that? I mean, $5,000 tax debt, $5 million house. Take the House. Don’t give back the rest.
Clip Well, I think this court’s decision in Nelson affirmed a scheme in which it was a $65 water bill. Justice Kagan And the House was sold for $7,000, and this court said that was absolutely permanent.
Clip Nelson had a very easy way for the property owner to get all the surplus value.
Clip AU contraire. It’s a much, much harder way. Justice Kagan and Nelson and Nelson, it was a 20 day presale period that you had to file and say, ask for the surplus. And this court said you only might get it back.
Clip I mean, in Nelson when the state sold the house, you had to file some paperwork and then you got all the money back here. When the state sells the house, there’s nothing you can file to get your money back. The state says, well, keep it. And my question is, are there any limits on that? Take a $5,000 tax debt and a $5 million house. And the state says, thanks, we’ll keep it.
Clip Justice Kagan I’d say you’d have to be pretty darn sure that this was a constitutional violation and not just your policy preferences at that point. When you have precedent like Nelson, which is approving $65 and $7,000, and you’ve said, you know.
Clip We definitely have a different view of Nelson. My view of Nelson is you can get your money back by filing a form.
Clip And we can then if that’s true, that’s just as true for Minnesota, indeed, even truer because it’s much easier to get your money back under this statutory scheme than the might you get your money back, which was the language of Nelson, and you only had 20 days to do it there. Here you’ve got about six years to do it.
Clip You had 20 days after the sale.
Steven Mazie So Leah, the only thing I’ll say about this is that on the list of things you might not want to say to Elena Kagan, maybe something near the top of that list would be the words. AU contraire. It’s not going to end well for you, even if you are a Supreme Court litigator who has argued 50 cases before the court.
Leah Litman Indeed.
Steven Mazie And just another note in this case, Gorsuch and Jackson have a concurrence. She joined his writing, which said there may also be an excessive fine claim here under the Eighth Amendment. The lower court had rejected that claim in addition to the takings claim, but the Supreme Court took up just the takings claim issue. So this continues to be a somewhat odd but interesting pairing. Neal and Ketanji Maybe something to watch.
Leah Litman Definitely. They seem to be united in almost like libertarian streak that brings the two of them together, but not any other justice, at least in some of these applications.
Steven Mazie Yeah, it’s fun to see some of the cross-cutting cleavages occasionally on what we normally just capture as a 6 to 3 court, and it is a 6 to 3 court. But there’s more to say about it.
Leah Litman So the other case we got was Dupree versus Younger. Another short, unanimous opinion, this one by Justice Barrett. And it’s about appellate procedure. The bottom line of the opinion is that if you move for what’s called summary judgment, asking a court to hold that you are entitled to judgment to win as a matter of law after some discovery. And discovery is just the evidence gathering that occurs before trial. Basically, if you make that motion, you don’t have to renew that motion after there has been a trial in a post-trial motion. If you are raising a purely legal claim, so here’s how that cashed out here. The plaintiff was suing some prison officials, and the defendant official argued that the plaintiff had not exhausted the administrative remedies available to him. And the court said, look, nobody disputes here that the State Department of Corrections had done some investigation and held that that investigation necessarily meant that the plaintiff’s claims were exhausted. And because that’s a purely legal question, whether the investigation rendered the claims exhausted. The defendant didn’t have to ask the court to hold the same thing at the end of the trial. But you still have to re raise factual questions after a trial, even if you raise them at summary judgment. Okay. So those are the opinions. And now onto some news you can use, which makes clear we’re all going to lose. Sorry, that’s my attempt at a holiday weekend rhyme. So we have another update in the Harlan Crow saga. No, we are not going to cover the following profile of Crow in The Atlantic. Instead, there’s been an additional exchange of letters between Crow’s lawyers and the Senate Judiciary Committee.
Steven Mazie It’s really not a holiday weekend unless we have something from Harlan Crow. So recall that the last.
Leah Litman I heard about July 4th is you just going to declare himself and Justice Thomas, like independent from law.
Steven Mazie Oh, you have the independence state legislature theory was was were. So recall that the last letter was from Crow’s lawyers to the Senate Finance Committee after Finance chair Senator Ron Wyden, and asked Crow for an accounting of all the gifts that he’s lavished upon Supreme Court justices, the lawyers told Senate Finance to pound sand, and they’ve decided to tell the judiciary to go ahead and do the same in the same kind of style, defending not just Harlan Crow, but the very separation of powers that makes America tick and that clearly Senate Democrats are trying to crush in their bare hands.
Leah Litman Yeah. So the TLDR of this latest Harlan Crow letter is basically like, get the fuck out of here. Congress, like the separation of powers means the justices and their friends can do whatever they want, and you, Congress can’t do shit about that. Like that’s the separation of powers that the Democrats are trying to crush with their bare hands.
Steven Mazie And that’s what Montesquieu had in mind. Yeah, right.
Leah Litman Exactly. And apparently the separation of powers also means that the justices friends are cloaked with immunity of the kind that the justices enjoy as well. Maybe this is how we should understand. Like Harlan Crow can gift his personal jets and hospitality to justices and justices can gift their judicial immunity. So that’s maybe one way of understanding it. So just some highlights of the choice lines of the letter. Here’s one quote. It is clear that the committee’s investigation is part of a larger campaign to target and intimidate Justice Thomas and unearth what the committee apparently believes will be embarrassing details of the justices personal life. It’s like let the man grift and be corrupt in peace and private Congress. Like, why don’t you get it.
Steven Mazie To remind ourselves at this point that Gibson Dunn is representing Harlan Crow and definitely not at all in any way. Clarence Thomas.
Leah Litman No. And this possible distinction between Harlan Crow and Justice Thomas also becomes relevant because this letter states, quote, After careful consideration, we do not believe the committee has authority to investigate Crow’s personal friendship with Justice Clarence Thomas. Congress does not have the constitutional power to impose ethics rules and standards on the Supreme Court. So let’s just pause a little bit over the implications here. You know, I think the position in this letter would mean, you know, the ethics and government laws are unconstitutional if applied to the court. Maybe the recusal statute is unconstitutional as well. You know, the letter says Congress can fund or decide funding questions about the court, though a little unclear why. Right. They can do that, but not this. And, of course, the Constitution also gives Congress the power to decide the court’s appellate jurisdiction at a minimum. So, you know, this letter adopts, let’s say, a quite striking vision of what the separation of powers is.
Steven Mazie Some of the proposals in Congress don’t include Congress dictating to the Supreme Court whether ethics code should be, but just indicating that the Supreme Court needs to write its. Own ethics code. And so there’s you know, there’s no responsiveness to actual legislation that’s in the works. It’s just a general blanket statement that there is no way that Congress can legitimately or constitutionally say anything about ethics in the court, which seems preposterously wrong.
Leah Litman Does not, let’s say, hit for me.
Steven Mazie Well, maybe this will. Leo, We have another update about a case that represents a new frontier, likely the next frontier at the Supreme Court in terms of the equal protection clause and litigation over school admissions. The case is called Coalition for T.J. versus Fairfax County School Board, and it challenges the admissions policy of Thomas Jefferson High School for Science and Technology, which is a super selective magnet school in Alexandria, Virginia. It’s one of the best public schools in the U.S. In 2021, Thomas Jefferson adopted a new admissions policy that is a holistic review of applicants from each public middle school. It’s a pretty rigorous process. Each public middle school gets to send just about 1.5% of their students to TJ, and prospective students are evaluated on on many bases the basis of their GPA. A problem solving essay, a portrait sheet that describes their academic skills and some experience factors, including whether they’re eligible for special ed, if they’re eligible for free and reduced meals, if they might be an English language learner, and if they’ve attended an historically underrepresented public middle school, a school that has not traditionally sent students to T.J..
Leah Litman If you listen to that list and you’re wondering, hmm, what’s not on it, you know, what is not considered among the factors is an applicant’s race. That is, the admissions policy does not do. The one thing that the Supreme Court has suggested is what justifies courts conducting a more rigorous searching review of an admissions policy. It does not explicitly take into account applicants race. That is what the court has previously described as a race neutral plan, and it’s therefore similar to the kinds of race neutral programs that the court has suggested would be perfectly fine and preferable to affirmative action. Things like admitting the top 10% of a graduating class plan that would consider socioeconomic status and whatnot.
Steven Mazie All right. We’ve just assumed that all those alternatives are perfectly constitutionally legit. Traditionally, the court cases have distinguished between means. That is how a school tries to achieve racial diversity and the end, which is, you know, what the school is trying to do, build a more diverse class. So if the means are race neutral, typically, as you said, that’s fine. And in Justice Kennedy’s controlling concurrence in the parents involved decision in 2007, he emphasized this. He said that communities, schools need to find a way to achieve that compelling interests in diversity, including racial diversity, without resorting to widespread governmental allocation of benefits and burdens on the basis of racial classifications. So the implication is if the means do classify by race, that would trigger heightened scrutiny. But if the policy like Thomas Jefferson’s was adopted out of a desire for more diversity while being not just race neutral but race blind, that should be perfectly fine.
Leah Litman And yet that did not stop this group of plaintiffs from challenging the program. So this group of plaintiffs sued, arguing the admissions policy violates the equal protection clause because it amounted to unconstitutional discrimination on the basis of race. And it’s actually kind of a little hard as the Court of Appeals decision we’re about to discuss in a second noted. It’s hard to pin down the precise reason why the plaintiffs say this program is race discrimination or should trigger heightened review. So the majority in the Fourth Circuit opinion says, well, it seems the plaintiffs are arguing that the program was designed to reduce the percentage of Asian-American students at Thomas Jefferson. But the majority rate concludes based on all the facts. That pretty obviously was not the purpose of the program. That is, even though this new admissions policy did reduce the percentage of students who were Asian-American relative to the previous admissions policy. Asian-American applicants still do better under this new admissions policy than any other group. And also there’s considerable evidence about what the legitimate purposes of this policy were, increasing the diversity of the student body, as we were just alluding to. And that’s where the other possible maybe like secret argument comes in. So the majority says the plaintiffs waived this argument and yet the dissent kind of embraces it. And that argument is that the policy is somehow unconstitutional because its goal is to increase the number of black or Hispanic students. And when we discuss the affirmative action argument, you know that the court heard last fall, you know, I said there were shades of anti-blackness in that argument here. And to me, like, the same thing is true in this implicit argument that the plaintiffs are maybe making, because it’s as if they’re saying, you know, well, policies that result in more black and Hispanic students have to be unconstitutional and can’t be merit based like that seems to be a premise of their challenge here.
Steven Mazie Right. I think the plaintiffs arguments are kind of the textbook example of privilege hoarding. Right. We have a we have a certain standard and we don’t want to give up any of that. And so any change to the admissions policy that changes the status quo is going to be unconstitutional. And the Fourth Circuit looked at those arguments and rejected them. They upheld the challenged admissions policy at Thomas Jefferson. This was a 2 to 1 opinion with two Democratic appointees. Judge King and judge heightens in the majority. And a Trump appointee judge rushing in dissent. And this is very likely headed to the Supreme Court. A year ago, the plaintiffs challenged the fourth Circuit’s stay of the district court order on the shadow docket, and three justices noted they would have blocked Thomas Jefferson’s admissions policy before the Fourth Circuit even heard the case. And you might be able to guess at the identity of those justices, Justices Alito, Thomas and Gorsuch would have made that move. So the only question now is whether those three might have a fourth vote to grant cert to hear a challenge to a. Again, race neutral race blind admissions policy, a policy that’s designed to increase diversity after the Supreme Court, likely six justices are going to most likely scrap race conscious admissions policies in the two affirmative action cases that were waiting for involving the University of North Carolina and Harvard. That should be coming in the next few weeks.
Leah Litman This really is the next frontier of admissions litigation. So much of the oral argument in the affirmative action cases was about, you know, well, what’s going to happen and what is allowed in a post affirmative action world. And this case raises the question like are formerly race neutral race blind measures that are designed to increase diversity? Are those allowed? So one of the Democratic appointees in the Fourth Circuit majority that you noted that heightens had a notable concurrence. I just wanted to highlight two things from that here. One is, he said, as we noted earlier, the policy this challenge here bears more than a passing resemblance to one proposed by a dissenting justice who objected to the race conscious policy upheld in Fisher. And he is, you know, citing Justice Alito’s dissent. The thing I would say there is the Fisher majority in responding to the dissenting opinions actually said, well, look, yeah, those measures are formally race neutral, right? Like the top 10% plan or a race blind holistic review. But in substance, they’re actually race conscious since they are designed to achieve racial diversity. And I am personally very worried about Justice Alito or some of his colleagues seizing on that language and using it to invalidate race neutral race blind measures that are designed to achieve racial diversity. In the same way, they basically contorted Justice Ginsburg’s critiques of the reasoning in Roe versus Wade to justify overruling that decision as well. Do you think that that’s too conspiratorial of me?
Steven Mazie I don’t, but it will be interesting to see. It will be interesting to see if this goes the way we fear how the conservative justices come around to embracing a disparate impact or what seems like would be something like a disparate impact view of the 14th Amendment that says that the results of a policy should be considered rather than just the structure of the policy and the actual words used in it. So moving from racial classifications are unconstitutional. To any thought of racial diversity in your mind when you create a race neutral plan might be unconstitutional. We’ll see if the justices go that far.
Leah Litman As Judge Hayden said in his concurrence like that would be quite the judicial bait and switch to say that race neutral efforts are also presumptively unconstitutional. But, you know, they have done some judicial baits and switches before.
Steven Mazie You might say, and actually that judicial debates and switches are now deeply rooted in the nation’s history and tradition. So they’d be inconsistent.
Leah Litman With their.
Steven Mazie Bait and switch us.
Leah Litman Definitely deeply rooted in the Roberts court. So speaking of the future of the Supreme Court, we also wanted to draw attention to a Washington Post piece about now presidential candidate Ron DeSantis. So you all are probably aware that Florida Governor Ron DeSantis launched his presidential campaign in what can only be described as a plot that was rejected as too dumb for both Veep and succession. But before he officially launched that campaign, he offered some thoughts about the Supreme Court and. Because at least I think the federal courts are under-discussed in the context of presidential elections and elections generally. We wanted to highlight some of what he said.
Steven Mazie So what did the center say? He said the next president would have the ability to push the Supreme Court further to the right, quote, calling for new justices in the mold of Clarence Thomas and improvements. I love that word, improvements. Two others, such as the chief justice. I assume by improvements, he doesn’t mean some sort of prosthetic radicalizing device or fed suck A.I. chips put in their brains. Now, in what way does the chief justice need improvement in a conservative direction? This is the justice who wrote the opinion in 2013 dismantling, neutering sections four and five of the Voting Rights Act, and you probably will be writing another opinion this term dismantling or further weakening Section two of the Voting Rights Act. Well, he apparently is no longer conservative enough. DeSantis said that Thomas, who is 74 years old and just a few years away from being the longest serving Supreme Court justice ever, and Justice Alito, who’s 73, they could retire comfortably if there is a Republican president in the White House. I don’t think he added that they might need a Republican Senate also. But he also speculated that over the next two terms, Sonia Sotomayor and the chief justice might need replacing, too. Now, both Sotomayor and Roberts are 68 years old. And I guess by the end of a second DeSantis term, they’d be in their late seventies. So the vision that DeSantis is offering to primary voters is a 7 to 2 conservative majority that would last, as he says, a quarter century.
Leah Litman I think it is important to remember that things can always get worse. And to keep this in mind when preparing for the next however many elections, just think about who the next GOP presidents might be appointing to the Supreme Court. And lest you think any of this speculation is ridiculous, remember that in 2017, Trump speculated that he would be able to fill three or maybe four Supreme Court vacancies and people didn’t pay attention then, and they should have.
Steven Mazie Well, you know, he didn’t feel for at least it was only three.
Leah Litman Again, people need to start thinking about 2024 and what that might mean.
Steven Mazie Okay, fair enough. Fair enough. Okay. I think we have one more piece of news, which is the annual American Law Institute conference. This was held last week. And at this year’s conference, the chief justice was awarded with the Henry Friendly Medal. The chief clerked for Judge Friendly when he was on the Second Circuit. He also shared during his acceptance speech that he keeps judge friendly robes in his chambers. Justice Kagan was there and gave a very lovely introduction. She called John Roberts her great good friend and seemed quite genuine about that. Now, Roberts joked later that he had made a deal with Kagan and he wasn’t going to tell us what the deal was, but, quote, You shouldn’t look for any Justice Kagan or opinions for a couple of years, unquote.
Leah Litman Hardy har. Har har. So the chief’s acceptance speech provides a window into the chief’s worldview and also kind of how the legal profession treats him that just wanted to take a bet on. So during the acceptance speech, the chief said the great Henry Friendly would be disappointed with some of the things that are happening today. With what would he be disappointed, you ask. What are the great challenges of the legal profession today? Cancel culture, basically like the woke mob that is law students. So let’s play that clip here.
Clip But if he were alive today, the contrast between his efforts and things going on outside his chamber would be this deeply disappointing to him and would feed certainly any depression. There’s much in the legal arena that he would find abhorrent. Judge heckled and shouted down at law school protesters outside the homes of justices to the extent that marshal protection is needed. 24 seven.
Leah Litman The chief justice also reflected on what the most difficult decision he has made has been.
Clip In 18 years. I asked what was the hardest thing? What was the hardest decision I had to make in 18 years? Was it this First Amendment case? Was it that death penalty case? Was it some major separation of powers case? None of those. The hardest decision I had to make was whether to erect fences and barricades around the Supreme Court.
Leah Litman But don’t worry, he says, there is reason for optimism.
Clip But inside the court, there’s cause for optimism. I am happy that I can continue to say that there has never been a voice raised in anger in our conference room. Our court consists of nine appointees by four presidents. We deal with some of the most controversial issues before the country. Yet we maintain collegial relations with each other. When I wander down the halls and see a colleague, I am always happy to have the chance to chat. Not to be fair, there are many days where I don’t feel like walking down the halls. So you may have to discount that a little bit. And on a final issue of concern inside the court, I want to assure people that I am committed to making certain that we as a court, adhere to the highest standards of conduct. We are continuing to look at things we can do to give practical effect to that commitment. And I am confident there are ways to do that that are consistent with our status as an independent branch of government under the Constitution’s separation of powers.
Leah Litman I wanted to take just like one bit on a correction, he says. There are nine appointees from four presidents, but there are actually five presidents Bush, one Bush, two Biden, Obama and Trump who have appointed justices to the court. But more seriously, you know, just to take a step back, you know, DeSantis, the press often depict the chief as some kind of moderate, right? Not only was he to the right of Brett Kavanaugh on environmental opinion just this week, but here right in this speech, he’s laundering the kind of cancel culture warrior attitude and the idea that the justices are somehow above the law and that there’s nothing you, the people or Congress can or should do about it that we’ve heard coming from like Kyle Duncan, Sam Alito, Clarence Thomas, Harlan Crow’s lawyers, he’s saying and doing the same stuff just like a bit more quietly and eloquently. And so he gets depicted as the reasonable guy in the room. And it really reminds me of this line from the great writer Moira Donegan, you know, that says the chief isn’t really that different from the other Republican appointees and Republican politicians. He just likes his violence in suits.
Steven Mazie Hmm. Well, maybe there is a tiny bit of cause for optimism. One little tiny piece of news on the orders list. Last week, Justice Kagan noted that she was recusing herself from the case and she explained why. And this is something we haven’t seen. Is that, do you think, Lia, a tiny cause for optimism that the court is making baby steps toward adhering to higher standards of conduct?
Leah Litman I mean, it’s better than what it was. On the other hand, Elena Kagan, or as we called her Elena bagel, was not really the problem here. This was the woman who refused a gift from high school classmates of bagels and lox, because that would have created an appearance of impropriety. And with the justices still being the ones.
Steven Mazie Bagels, that would have been okay. The LOX put it over, probably the the limit.
Leah Litman Raising the price.
Steven Mazie Whitefish, lox it read Russ and Daughters. It’s it’s quite expensive. I’m sorry I interrupted, you.
Leah Litman Know, but, you know, I am not comforted by a world in which the justices are still policing themselves and still ascertaining whether they are in compliance with their own self-imposed rules, just because we know how that system has worked out with some of the justices on the court. So I just don’t think that that’s good enough in light of what we’ve learned.
Steven Mazie Right. And I guess it’s hard. To tell if this was just a one off, if Justice Kagan is just committing herself to this idea or if her fellow justices are going to commit themselves to the same principle of noting when they recuse themselves and why. So it’s not mysterious.
Leah Litman Exactly. Thank you so much, Steve, for jumping into the co-host seat. We really appreciate it. And listeners, you can find Steve on Twitter at The Economist. His writings have appeared elsewhere. We’ve highlighted Atlantic pieces you’ve done. You’re also on Blue Sky. Any other platforms, I should be saying?
Steven Mazie That’s about it. I’m on blue sky, but I haven’t done anything there. Maybe I’ll start.
Leah Litman Okay, well, I’m there as well. Still not exactly sure what it is or like how it’s working, but yeah, we’re all we’re all trying people. So. So thank you so much, Steve, again.
Steven Mazie Thanks so much for having me. Leah. It was a lot of fun.
Leah Litman And for a final segment today, I am delighted to be joined by another returning guest who is doing such incredible, important work. And that is Jessica Valenti, the author who, among other things, but most relevant for what we’re going to talk about now runs the Abortion Every Day substack that is an invaluable resource about the aftermath of Dobbs and what the decision has meant for people’s lives and for our democracy. If you’re not already subscribing, you should be. Thank you again for joining us, Jessica.
Jessica Valenti Thank you for having me on again. I’m really glad to be here.
Leah Litman So it feels absurd to try and break down everything that has happened since you were last on in February.
Jessica Valenti There’s a lot. Yeah.
Leah Litman Right. It would not actually be possible to do this. And why you should be subscribing to abortion every day. But I did want to ask you about a few kind of big picture things that have emerged over the last few months. And one is a development that I think is related to something that came up in the mifepristone litigation, including an A in the Fifth Circuit oral argument we discussed last week. And that’s false. Or if you are a Fifth Circuit judge who can’t handle truth in language, I guess I’d have to say inaccurate but false or inaccurate statistics about complications from abortion. So, Jessica, could you explain kind of what is happening on this score?
Jessica Valenti Sure. There’s a lot I’ve been seeing an incredible, incredible renewed focus on fake data and science. As you know, they don’t have the science and the evidence on their side. Right. Abortion is incredibly safe myth. A person is incredibly safe, but they’re desperate to prove otherwise. And, you know, as we’ve seen in the myth for some case, they’re using sort of the either fake statistics from anti-choice groups or they’re misinterpreting data from credible sources. So because they know they need more science, more data that they can try to convince people is credible, they’re essentially finding ways to make it up. And one of the ways they’re doing that is through abortion complication reporting laws. And the the piece I did recently was about Texas. But multiple states have similar laws where essentially they force doctors into making false abortion complication reports under threat of losing their license. And the example I gave in the piece and I think it’s because it’s such a complicated thing and this is sort of an easy way to explain it. When I gave birth to my daughter 12 years ago and that she was three months premature, I had something called pre-eclampsia. If I was to give birth in Texas tomorrow to my daughter and early again preeclampsia. And I happened to mention to my doctor that a few years earlier I had an abortion. My doctor would be required by law to report my daughter’s birth as an abortion complication. What? And yeah.
Leah Litman Oh, yeah.
Jessica Valenti Because in because Texas law says if someone shows up with one of these things on a list and premature birth is one of them and they happen to have had an abortion at any point in their life, not like in the last week, nor does it at any point in their life. You are required by law to count that as an abortion complication. And not only that, any doctor I spoke to that day or at the hospital would also be required to report it, which means by the end of this hospital stay without my knowledge or consent, my daughter’s birth would be used to, you know, for maybe three, four or five abortion complication reports that the state of Texas would then put in their annual doubt other annual abortion complication report to to say, look, look how dangerous abortion is. And one of the I mean, it’s so absurd because there’s all this you know, it’s not real. Just start and it’s then it’s they have duplicate reports of this not real complication. And what is so upsetting to the doctors I’ve spoken to is they’re using doctors credibility to back up this lie because they can say, hey, look, this is not coming from an anti-choice organization. This is coming from doctors on the ground who are treating patients. It’s insane.
Leah Litman Yeah. So it is underscoring that they both refuse to accept science and they refuse to accept math because it’s multiple accounting of bad science. And this relates to the Fifth Circuit litigation that I was noting, because in that case, remember the court of appeals that would have allowed, you know, some additional restrictions on if a person to be imposed by judicial order basically said, well, if you read the warning label form, if a priest down there are complications, and then it conflated those complications with emergency room visits and it use that to again, justify additional restrictions on abortion. So this is something that is mattering to litigation happening right now. And it’s a matter before as well. I mean, the problem you were just describing about lack of causation and maybe some correlation. Right. Came up in some eighth Circuit litigation where there was a. A law that required doctors to tell their patients that people who have abortions have higher rates of dying by suicide. And there was zero, right. Zero causation. Right. And the correlation, if there was any. Partially because of abortion. Shame. Partially because, you know, the factors that put someone at greater likelihood of having an abortion also put them at greater likelihood. Right. Like socioeconomic status and all of those other factors. Right. Of potentially like die by suicide. And the law just absolutely obscured all of those differences and charged ahead again in the name of just leveraging air quotes, science and air quote, math to just do what they wanted.
Jessica Valenti Yeah. And the thing about the warnings of suicide, I have to say, is like particular salt in the wound to me, because when you look at so many of the abortion bans that we have that are being passed, that are being proposed, there is specific language in there in the so-called exceptions for medical emergencies that say explicitly mental health does not count as a medical emergency. And even if a doctor diagnoses a woman as suicidal as a result of being forced to carry a pregnancy against her will, that’s not a medical emergency. And so they are anticipating that women will become suicidal as a result of these bans. And they are putting that in the law that, you know what, we don’t care. And so this sort of feigning caring about women, caring about women’s health, it’s just so infuriating to me because they know they know the harm that these laws are going to cause. And the thing that the other thing that’s happening at the same time as they are trying to drum up, fabricate data about the dangers of abortion, is that they’re trying to sow distrust in the actual credible data around maternal mortality. I’ve seen it so many times over the last couple of months in various policy papers, various quotes here and there. Oh, well, you can’t trust the CDC, you know, reports of maternal mortality. You can’t trust the state reports. They also know that people are going to be dying as a result of these bans and they want to hide that fact.
Leah Litman So you just mentioned ignoring the harm that comes from these abortion bans. And this is also something that has come up in the framing and really reframing around certain types of abortion ban, specifically the 12 week bans that were recently passed in North Carolina, among other places. And at least I have seen some handful of times where the media is describing these measures as moderate or compromises, as if the Republican Party is softening their stance. So why has this become a way of describing these kinds of bans and what is there to do about it?
Jessica Valenti Yeah, Republicans have been working overtime really, really hard on this particular messaging tactic of calling, if you look for the word reasonable or common sense in the last year and some of the quotes about these bans, you will be blown away. And they want to call the reasonable they want to call them common sense. They want to call them middle of the road, largely because they know Americans so overwhelmingly oppose abortion bans. And so if they can make it seem as if they have lost something, as if they’ve conceded something, they’re hoping that voters won’t be as pissed off. But of course, there is nothing reasonable about these laws at all. And at the same time they’re doing this, they’re really trying to redefine what the middle is. And a lot of politicians have come out recently to say, well, you know, we can all agree on birth control access. We can, you know, we can meet in the middle on that. There’s nothing at all about birth control. What and that terrifies me. Like them acting as if they’re giving up something by allowing women to take birth control slowly, truly chills me. And and worse.
Leah Litman I mean, they’re also allowing no fault divorce to continue. So should be. That is a compromised position, too.
Jessica Valenti It’s so it’s so exhausting. And they’re going to do the same thing. I just started writing about this this week. They’re going to do the same thing with the way that they’re talking about a federal ban. Right. And they don’t want to use the word ban anymore. You’ll notice they’re not going to say ban. They’re calling it a national consensus. They’re going to set national compromise. They’re saying, oh, well, most Americans can agree on some restriction. This we’re pushing for a national consensus. We’re pushing for a national agreements. They don’t want to call it a ban because they know how unpopular bans are.
Leah Litman And there’s a reason why bans are unpopular. And the reason why bans are unpopular is also why, like these bands are not actually compromise positions. Think about some of the stories that you have recounted that we are familiar with now. Amanda Swarovski She experienced pre membrane ruptures at. 18 weeks. That is after the 12 week ban or Carolyn Kitchener as Washington Post story about the two Florida women, one of whom came close to death on your cook and Sean Smith Cunningham. That was a ban at 15 weeks. Michelle Goldberg. A recent New York Times story is about, you know, someone who experienced complications at 19 weeks, the life threatening diagnosis of fetuses that are not compatible with life. That happened after 15 weeks. The Washington Post story. I’m just going to say I’m going to recount some graphic details, but you need to read that story about Deborah Daubert. She was required to give birth to a fetus that was not going to be able to live because it didn’t have kidneys. And that is what these laws are going to do. And the reality is like pregnancy and health care do not fit into the types of boxes that legislators who want to ban abortion and want to experience no accountability or electoral consequences for doing so are trying to fit them in. And you can’t reframe that as a compromise.
Jessica Valenti Exactly. The thing I say a lot is that pregnancy is too complicated to legislate, period. Exactly. As you said, so many of the the really horrific stories and there’s so many of them that we’re seeing happen later in pregnancy because that’s when a lot of complications in pregnancies happen. And so the idea that that these laws that it’s somehow a compromise to, you know, only ban abortion at 12 weeks. And also, by the way, those are not even really 12 week bans. Right. You can’t really access abortion before then. And in North Carolina, for example, it’s actually a ten week ban because most of the abortions in North Carolina are done using medication and medication and the bill is banned at ten weeks. Most of those complications happen later in pregnancy. And so any restriction later in pregnancy will mean that we will see more and more of these really, really horrible, tragic cases. And honestly, that is one of the things I’m seeing most. Doing this work and writing about this every day is just the incredible amount of suffering. There’s so much suffering happening as a result of these bans, not just for the people who are pregnant, but for the their families, their friends, the community members, doctors who are suffering, trying to figure out how they can best treat them. And that’s why we’re seeing doctors leave these states. It’s so much worse than I think people realize.
Leah Litman Yeah. So speaking of the suffering of doctors, one final topic I wanted to discuss with you, which is late Thursday night, Indiana’s medical licensing board decided to discipline a doctor who had made headlines for performing an abortion for a ten year old rape victim who had traveled to the state from Ohio. The board decided to give the doctor a letter of reprimand and ordered her to pay a $3,000 fine. And to my mind, this is one part of the anti-democratic response to Dobbs. They are trying to keep the suffering and cruelty that you have been documenting that was unleashed by Dobbs in secret. Because if it remains secret, then they will not experience electoral consequences or political pushback for doing what they’re doing. They want the suffering to happen silently. And I mean, again, like, what responses are there? Like, what can be done?
Jessica Valenti It’s so difficult. Exactly. As you said, it’s about keeping the stuff under wraps and also punishing anyone who comes forward and really trying to create this chilling effect for other doctors so that any other doctors who are watching this think, well, Jesus, like, I don’t want to have to go through that. If I if I come forward about the horrible case that that I have. Right. And so, honestly, like, I was so glad to see so much coverage of this hearing. Yeah. Just being able to talk about it and shining a light on the fact that this is happening and framing it for what it is, which is punishment. It’s a politician, a state leader, using the power of their office to punish doctors for coming forward and really making sure that we are talking about it in that way in an accurate way that demonstrates just how far they’re willing to go. Yeah. To to keep this from the American people.
Leah Litman Well, in order to ensure that you remain posted on what is happening, subscribe to Jessica’s Substack “Abortion Every Day.” And thank you so much, Jessica, for the work you are doing and for again, taking time to join the podcast.
Jessica Valenti Thank you.
Leah Litman So that is all we have time for. The band will be back together next week and if you are a new listener to the show, just so you know how we are going to run things in June. You know, the Supreme Court is steadily releasing opinions. We don’t know which opinions are going to be released and when. We will still have our regular episodes on Mondays, you know, throughout June and the end of the Supreme Court term. But in addition to those regular Monday episodes, we may also have some additional bonus emergency episodes for when the Supreme Court unleashes or drops one of those diss tracks and major opinions. So stay tuned for those as well. Don’t forget to follow us at Crooked Media on Instagram and Twitter for more original content, host takeovers, and other community events. And if you’re as opinionated as we are, or maybe even as opinionated as Sam Alito, consider dropping us a review. 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. Ashley Mizuho is our Associate producer. Audio Support from Kyle Seglin. Music by Eddie Cooper, Production support from Michael Martinez and Ari Schwartz, and digital support from Amelia Montooth.