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October 16, 2023
Strict Scrutiny
Big BROTUS Energy

In This Episode

Melissa, Kate, and Leah recap the oral arguments the Supreme Court heard last week, including a big one about voting rights and redistricting (Alexander v. South Carolina State Conference of the NAACP). Plus, an update on the shenanigans around the Wisconsin Supreme Court and the tomfoolery in the Fifth Circuit.

  • Read ProPublica’s reporting on  how U.S. Representative James Clyburn was involved in the South Carolina redistricting plan that’s now before the Supreme Court
  • Please consider donating the memorial fund for Maggie Rossman, a college classmate of Leah’s who recently died from complications in childbirth
  • Follow @CrookedMedia on Instagram for more original content, host takeovers and other community events.

TRANSCRIPT

 

Show Intro Mister Chief Justice, may it please the court. It’s an old joke, but when an argued man argues against two beautiful ladies like this, they’re going to have the last word. She spoke, not elegantly, but with unmistakable clarity. She said, I ask no favor for my sex. All I ask of our brethren is that they take their feet off our necks.

 

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

 

Melissa Murray I’m Melissa Murray.

 

Kate Shaw And I’m Kate Shaw. This week, we will be recapping the cases the court heard last week, and we will focus primarily on the big voting rights case. We will also end with some court culture.

 

Melissa Murray The first case we’re going to recap is one that’s near and dear to my heart, Murray versus UBS Securities. And as we noted, Strict Scrutiny super guest Eesha Anand made her SCOTUS debut in this case, and I think it’s fair to say she crushed.

 

Leah Litman Definitely there.

 

Melissa Murray Demolished it, broke the lectern, dropped the mic. The specific question in this case, which will sound technical, but where we’re going to break it down for you, the specific question is whether under the Sarbanes-Oxley Act, also known as SOX, whether a whistle blower, meaning someone who reports misconduct, must prove that their employer intended to retaliate against them for blowing the whistle, or whether instead the employer must prove a lack of retaliatory intent as an affirmative defense. And I’m just going to say every time we talk about blowing the whistle, all I think about are Oakland Raiders game. So if you’re with me, you’re with me and you’re my people. Thank you.

 

Leah Litman Is Travis Kelce on that team still?

 

Kate Shaw No.

 

Melissa Murray No, he does not play for that ball team.

 

Leah Litman Okay, Well, I thought I’d ask then.

 

Kate Shaw Then Leah doesn’t care.

 

Melissa Murray Has Taylor Swift elevated that team?

 

Leah Litman No.

 

Melissa Murray No, she has not.

 

Kate Shaw So moving on to whistleblowing, retaliation. So it does matter sort of who bears what burden. Right. So if the employer has to prove they didn’t intend to retaliate as part of an affirmative defense. So if that’s the employer’s burden, the employee, the one alleging retaliation, would still have to show that the firing was related to whistleblowing and specifically that the whistleblowing was a contributing factor in the unfavorable personnel action. But the burden would then be on the employer. Once the employee makes that threshold showing for the employer to show that they hadn’t taken the action at issue because of the whistleblowing, but instead for some other reason.

 

Leah Litman So the case is, as Kate is saying, about who bears the burden of proof, the employee or the employer on the question of whether the employer intended to retaliate against a whistleblower, someone who reported wrongdoing. So here Trevor Murray, no relation to Melissa Murray, claims that UBS fired him because he reported alleged fraud on shareholders.

 

Melissa Murray I’m just to say Trevor Murray sounds righteous and I, as a representative of Clan Murray, say we welcome him in our clan.

 

Kate Shaw He’s in the fold.

 

Melissa Murray There we are. He’s in the fold. Clan Murray.

 

Kate Shaw He also has a very good lawyer, which we’re going to elaborate. Yeah, we approve of his choice of counsel. Okay, So the dispute as a technical matter, is kind of about how to read the anti retaliation provision of the Sarbanes-Oxley Act or SOX. I’m just going to call it Sarbanes-Oxley. Sox just sounds weird to me. That definitely was bandied about in the original. Okay. Well.

 

Melissa Murray Bobby socks. Socks the cat.

 

Kate Shaw It’s light hearted in any event. So it’s about that provision in the Sarbanes-Oxley Act, Right. The anti retaliation provision and how to read it in light of another provision that says Sarbanes-Oxley claims are governed by the legal burdens of proof set forth in section 4212 B of Title 49, which is part of the Whistleblower Protection Act.

 

Melissa Murray Another statute And to be clear, the Whistleblower Protection Act says a whistleblowing employee meets her burden by showing that the protected activity was, quote, a contributing factor in the unfavorable personnel action, end quote, and that an employer will win only if the employer can demonstrate by clear and convincing evidence that the employer would have taken the same unfavorable personnel action in the absence of that behavior.

 

Leah Litman And so the employer, UBS, says, where, you know, the anti retaliation provision in Sarbanes-Oxley makes it illegal to discriminate against an employee who is a whistleblower. And the employer says that requires that use of the term discriminate requires the employee to show that the employer intended to retaliate against them because they’re a whistleblower. So Justice Thomas channeled this idea in his opening question, suggesting that the burden shifting framework of the affirmative defense would allow for liability in the absence of discrimination. Public Citizen had an amicus brief responding to this argument, basically saying that discriminate just means differential treatment and refers to circumstances where something like whistleblowing was a contributing factor in differential treatment and not necessarily some independent retaliatory motive.

 

Kate Shaw So the United States was in the case arguing on the side of the employee, Trevor Murray. But honestly, you know, it’s always helpful to have the Federal government on your side in a case where the Federal Government participates. But here Eesha really did such a great job for the employee. If anything, honestly, the federal government confused more than it illuminated. So this was the way.

 

Leah Litman The federal government lawyer should have stood up and said, I yield my time to issue.

 

Kate Shaw At one point in a clip that we’re going to play sort of said he kind of wanted not to be there, it seemed like. But yeah, she, I think, was so good, she actually didn’t need the backup.

 

Leah Litman Here’s just one. A clip of her exchange with Justice Kavanaugh, where it’s clear, just like how wonderful she did.

 

Clip In your brief. I think on 29, you said that knowledge by the employer of the protected activity plus temporal proximity would be good enough in this particular statute to show a contributing factor. Is that correct? Yes, Your Honor. So that’s actually in the text of the Whistleblower Protection Act, Right? It’s the first time Congress uses this contributing factor language. So they give an example of what would suffice, and they say knowledge plus temporal proximity. So, again, what you’ve got at that point is protected conduct. So someone had objectively reasonable evidence of securities fraud and recorded and reported it. You’ve got the fact that they were fired. You’ve got the employer’s knowledge and they were fired shortly after reporting objectively reasonable evidence of security. Yeah, that’s a sensible scheme, I think. I’m not sure it maps completely under the term contributing factor, but I understand where you’re getting that as a term of harm.

 

Melissa Murray And if Easha was on her game being a complete badass, someone else is also on his game. That’s right. Neil Gorsuch could not help himself from being a little too much or as we like to say, fantastico. Let’s hear it.

 

Clip The idea that there is a free standing, further intention or motivation requirement and say is simply discrimination, intent to discriminate. That’s all that’s required. Vacate remand. I think that’s right, Your Honor. It’s a contributing factor. It doesn’t require some sort of animus showing there’s no separate freestanding retaliatory intent element. And whether a contributing factor means period, period. Period be okay there that the okay there. Period would be okay with us. There are you probably need a little more. All right.

 

Leah Litman So as Gorsuch is questioned suggests, there was a debate or a discussion during the argument about whether the court should just say that the Second Circuit, the Court of Appeals here, made a mistake in requiring plaintiffs to show retaliatory intent and just stop there, or whether the court should instead try to say more and clarify some additional things about the relevant law. And that led to this humorous exchange with the federal government’s lawyer.

 

Clip It’s one thing to say that retaliatory, intense not required because, you know, retaliation is not required is not the same. You know, you don’t have to take this act to injure someone else. That’s one thing. And it solves the way that the Second Circuit decided the case, but it does not answer. Well, is discriminatory intent required? And what does that mean and what you know, how do you prove that? What is that? How does that relate to the contributing factor, burden shifting scheme? And so I think this that might forestall another need to address this issue, but it’s pretty minimalist. I don’t want to fight you if that’s where the court sits. I don’t want to fight you on that. But I think what that may mean is at some point in the future, we have to. Have this conversation all over again. Maybe just Gorsuch. I don’t think anybody wants to have this conversation. Oh, I certainly don’t.

 

Kate Shaw This is what I was alluding to before he was saying, I don’t want to be back. I don’t really even want to be here right now.

 

Leah Litman Right.

 

Melissa Murray I could have had a V8. But Easha was not the only advocate making a SCOTUS debut. And I have to say I really feel like we said Candyman three times and we made this happen. Right? So recall in our last episode, we joked about how some of the conservative justices were all jockeying to be the heir of Justice Scalia. Well, guess what, folks? Joke’s on us because Eugene Scalia, Justice Scalia’s actual son and one of his actual heirs stepped up to the lectern to give it a whirl. And he immediately got into this heated exchange with KBJ.. Let’s hear it.

 

Clip Where in the statute does it say causation? I’m sorry? You say it looks over. To pick up or reference causation. And I guess I’m trying to understand why you’re saying that, because it doesn’t seem to suggest or say that that’s what it’s doing. Justice Jackson I think it’s widely recognized by the practicing bar that this is a test of the causal role that’s played. I believe that is the petitioner’s position as well, but it’s the reduced causal test. Understood but how is that different than intent?

 

Leah Litman I have to say like this exchange was impressive in that it managed to be both insulting to Justice Jackson, like everybody in the organized bar knows this and also oddly revealing about textualism. Like somehow the organized bar’s understanding of the way things are is now the law. Like, it doesn’t really matter what the text is.

 

Melissa Murray No, no, that is the text.

 

Leah Litman Right. What’s the organization?

 

Melissa Murray Especially the tests.

 

Leah Litman They are the law.

 

Kate Shaw It sort of it sort of calls to mind that the way you decide whether to disclose, obviously disclose about largesse from your billionaire friends is not what the statute governing disclosure says, but what you were advised of by your buddies on the bench. It sort of sounds like that he had nothing responsive when she asked specifically for a textual answer. And I think she was sort of so taken aback by both the tone and the non-responsive ness that they kind of moved on. But but I really was like I wanted her to press him more on that.

 

Melissa Murray This is where the anger translator would have been very helpful. It’s like, Listen, Eugene like to see.

 

Kate Shaw This is a small point, but also Eugene Scalia at the lectern kept saying she or her when referring to his adversary, because, you know, he’s talking about Aesha and maybe she just looms so large in the room. But like actually the other party was, I think, a person named Trevor and Murray. Really odd. Yes. Yeah. But I think our big takeaway is that we are willing to hazard a prediction here, and that is that this will be a win for the employee and for Easha Anand, at least if there is justice in the world, which is an iffy proposition these days, but actually does feel like a justified prediction in this instance. Same.

 

Leah Litman Yes.

 

Melissa Murray Agreed. Agreed. Good job, Easha. Congratulations. SCOTUS also heard oral argument in Great Lakes Insurance versus Raider’s retreat, where it will decide whether a choice of law clause in a contract is enforceable under federal maritime law. On the respondent’s side of this case was a familiar face. Howard Bushman, who writes and runs the How Appealing Blog, which we all like very much. Notably, this was also Howard’s first time at the SCOTUS lecture. And so congratulations, Howard. Welcome to the mic.

 

Kate Shaw Although, of course Howard needs a true of Asia too, has done tons and tons of previous other appellate.

 

Melissa Murray This mic.

 

Kate Shaw Was based on this mic. That’s right.

 

Melissa Murray He got called up to the show.

 

Kate Shaw That’s right. And the case involved boats and maritime law, which is the law of the sea and applies when there are issues involving navigation or shipping and all the weird stuff that happens on high rises. Yeah, actually, yes. But it is honestly a really fun area. Well, not one that I know super well, but every time I encounter a maritime case, I’m like, Maybe I’m just going to give it all up and become a maritime law scholar. But probably that won’t happen. But there were some fun exchanges, but there were also some clips that seemed to kind of hit different in light of super yacht related SCOTUS news in recent months. So maybe let’s play a couple of those here.

 

Melissa Murray I’m just going to say these folks have been on a boat.

 

Kate Shaw And they’re talking, they’re thinking about going on more boats, possibly acquiring boats.

 

Melissa Murray They’re definitely boat adjacent, for sure.

 

Clip What about a yacht floating around in the Bahamas? We’re not talking about, you know, someone’s motor home or a floating houseboat.

 

Kate Shaw Okay. So that was Justice Gorsuch. But that was honestly kind of just a warm up for Justice Thomas, who posed this question.

 

Clip Just a short question. Mr. Batsmen satisfy my curiosity. Were they able to salvage those two in 1271?

 

Kate Shaw And that observation led to Jeff Wall when he returned to the lectern. Wall is a former acting solicitor general under President Donald Trump, also a former clerk to Justice Thomas, which is maybe why he felt emboldened to make this joke. But let’s play it now.

 

Clip Just a handful of points. Justice Thomas, to your central question. The boat is available for sale online if you have a half million dollars.

 

Melissa Murray So it’s funny because we know he doesn’t have $1,000,000, but we also know he has a billionaire sugar daddy who could slip him a cool half mil at any time. So that’s why it’s also very, very funny, eerie, funny.

 

Leah Litman It’s very, very funny to joke about. You know, Scott, it’s corruption. It’s just like super hilarious. Hardy Hahaha. More of this energy, not it just has this real like let them eat cake. Like, you know, people think there are real concerns with billionaires just bestowing largesse on the justices. But I think it’s hilarious. Yeah.

 

Melissa Murray No, this.

 

Kate Shaw Is like a real like effort to own the Libs kind of exchange, I think on both sides and they just are unashamed? Unchastened? I thought it was kind of shocking that they didn’t find it too soon to have that exchange.

 

Melissa Murray I mean, like when is too soon to talk about your super yacht experiences never?

 

Kate Shaw Never. Apparently.

 

Melissa Murray This is big brotus energy too. Yeah, I want to say.

 

Leah Litman Scrotus also.

 

Melissa Murray Scrotus. Correct. All right, so enough of that. No idea how that maritime law case is going to be decided. Any predictions?

 

Leah Litman I think it will be a presumption of enforceability for choice of law.

 

Melissa Murray The real winner here is the superyacht owner. To be very clear.

 

Melissa Murray All right, shifting gears, let’s move to the big case of this city. This was the big voting rights case, Alexander versus South Carolina State Conference of the NAACP. And this case is very reminiscent of a case that was heard last term, Allen versus Milligan. This case involves redistricting, how states draw their districts and divide up a jurisdiction into political districts, which was also an issue in Allen versus Milligan.

 

Leah Litman But unlike the case from last term, Allen versus Milligan, Alexander involves a different type of claim or challenge to redistricting. So one claim in Alexander, which didn’t get the most airtime and wasn’t the most relevant, is a claim of intentional racial gerrymandering. That’s an allegation that the legislature intentionally draw districts in order to, you know, depress the voting power of racial minorities. Last term’s case and Allen versus Milligan was a claim of vote dilution. But there the claim was that the effect of the districts was to dilute the voting power of racial minorities. And that’s sometimes colloquially known as cracking and packing. But the Milligan claim arose under the Voting Rights Act, and it was not a claim of intentional vote dilution. The other claim at issue in Alexander, aside from intentional vote dilution, is a racial gerrymandering claim that is specifically known as a Shaw claim no relation.

 

Kate Shaw No relation.

 

Leah Litman To Kate Shaw. So this racial gerrymandering shot claim is where the appearance of a district gives rise to an appearance or inference that race was the predominant reason for drawing districts in a particular way. Both of these types of claims At issue in Alexander are ways of challenging redistricting that differ from the vote dilution challenge. At issue an Allen versus Milligan last term.

 

Kate Shaw And we might colloquially refer to all of this as gerrymandering or vote dilution, since it refers to how districts are drawn in order to weight certain votes and voters and how they lead to certain results. But there are distinct legal claims with different legal tests embedded within that heading.

 

Leah Litman So the big question in this case, Alexander, is what does it take to establish that race predominated in district?

 

Melissa Murray And the short answer is you can never, ever establish that race predominated because we are a very much not racist country. The end period.

 

Leah Litman That does appear to be where we are headed, a post-racial United States. 11 years after Shelby County dismantled Section five preclearance, declaring that.

 

Melissa Murray We elected a black president. Leah, just like get it right.

 

Leah Litman Yeah, well, here South Carolina has a black representative in Congress, which they are going to use to establish that we are in a post-racial society.

 

Melissa Murray And a black senator.

 

Leah Litman Yeah.

 

Kate Shaw Stepping back, we wanted to give a couple of key pieces of context here. And this is, you know, embedded in what Lee and Melissa were just saying. And one is that it is worth reminding people of the Supreme Court’s history and recent history, in particular with the Voting Rights Act, although this case doesn’t actually concern the Voting Rights Act, it’s all really relevant background. So we’re going to play a clip from Justice Kagan from the oral argument last term in Allen versus Milligan. That’s the Voting Rights Act case we were just talking about. Before we get to the particulars of this case, since the court’s recent interventions in voting will inform our thinking about this case. So here’s what Kagan had to say at the oral argument in Allen versus Milligan last term.

 

Clip Now, in recent years, the statute has fared not well in this court. Shelby County looks at Section five and it says no, Section five. We don’t need that anymore. And one of the things it says is we have Section two and then Brnovich comes along, and that’s a Section two case. And the court says, you know what, Section two, they’re really dilution claims. You know, this is a denial claim. And and so we can construe that very narrowly. But, of course, there’s just all these cases that are dilution claims. That’s really what Section two is about. And now here we are. Section two is a dilution claim. This, you know, the CLASS Act, Section two dilution claim. And you’re asking us essentially to cut back substantially on our 40 years of precedent and to make this too extremely difficult to prevail on. So what’s left?

 

Kate Shaw So, again, this case is not a Voting Rights Act case. It is an equal protection clause 14th Amendment case, but is broadly about the permissibility of drawing legislative districts in ways that turn on certain characteristics. And specifically here, race and how the use of race in certain ways and drawing legislative districts may have the effect of reducing the representativeness of our democracy. So broadly speaking, it implicates all the same deep questions of the Court’s recent Voting Rights Act cases.

 

Leah Litman And the other huge context for this case. Alexander is the Supreme Court’s 2019 decision in Rucho versus Common Cause, which held that partizan gerrymandering, which is where legislatures draw districts to favor one political party over another, was a non justiciable political question that could not be addressed in the federal courts. So Justice Kagan brought this background up in her exchange with the lawyer for the federal government.

 

Clip Was planned. It’s a funny case because it’s our first post-truth showcase of this kind. So before Rucho, you could understand completely why it was that mapmakers started doing race in order to achieve partizan gerrymanders because they couldn’t do Partizan gerrymanders directly. They were afraid that that was going to be found unlawful. But now that Rucho has come about and and all of these partizan gerrymandering claims have been held to be non justiciable, you know, some people might sort of say, well, I don’t get it. Like, why do people keep using race when they can just do it directly just to use the election data. Do the partizan gerrymandering, you know, doesn’t the fact that they can do it directly suggests that they’re not? Why would you need race as a proxy? So that’s my question to you. Why would mapmakers in general and in this case use race as a proxy to do partizan gerrymandering now that you could just like do partizan gerrymandering?

 

Melissa Murray We should also note that Justice Kagan wrote a stinging dissent in Rucho. So that’s also informing this question.

 

Leah Litman And we will come back to the question that she’s posing. You know, why would legislatures rely on race when they can gerrymander? For partizan reasons. But first, just about the bigger question we are teeing up, which is like how does or why does Russia and Partizan gerrymandering matter to a claim like the one at issue in Alexander? While the legislature can walk into federal court and say we draw districts based on partizanship and if they do that, there is nothing the federal court can do because challenges to partizan gerrymandering are non justiciable and cannot be heard in federal court. But if the legislature says we drew districts based on race. That is a legal bracketing, a narrow subset of complies with the Voting Rights Act that we’re not going to mention. But you know, what do you think the legislatures will do if those are the relevant rules?

 

Kate Shaw Well, according to Justice Alito, they will absolutely just say we drew districts based on race. If they drew their districts based on race, but if they didn’t say that, then they didn’t do that. QED, Right. That’s essentially the analysis.

 

Melissa Murray Believe Black legislatures. I mean.

 

Kate Shaw You’re channeling Sam Alito, Melissa.

 

Melissa Murray Wait. This isn’t a Black legislature. I’m sorry.

 

Kate Shaw Nope, it sure isn’t.

 

Melissa Murray Just believe the legislature.

 

Leah Litman Believe Republicans legislatures.

 

Melissa Murray Thank you, that’s what I meant.

 

Kate Shaw That that’s Alito’s mantra.

 

Melissa Murray Right.

 

Kate Shaw But as Leah’s description, I think. Made clear, the incentive to characterize something as partizan, Gerrymandering now exists and is very strong, both because legislatures, you know, for the first time post, Russo can comfortably rest assured that if they are able to convince a court that what they’ve done is just partizan gerrymandering, the court can’t touch it. And also the incentive to characterize something as partizan gerrymandering exists because there is a very high correlation between race and politics. Flash partizan affiliation. So now the South Carolina legislature is like, well, sure, the district seemed to have a lot to do with race. We moved all kinds of voters into certain districts and out of other districts based on race, but that’s not why we did it. The only reason it looks bad is because race correlates with Partizanship and Partizanship was our real goal.

 

Melissa Murray Yeah, that’s the ticket. I mean, this is so Jon Lovett, Saturday Night Live from the 1980s. It also has this weird sort of tinge of like blaming black voters. Like the reason you’re in this mess is because you vote Democratic. If you had a little more mixed up here or a little more variation, this wouldn’t look quite so stark.

 

Leah Litman Yeah, And it’s also just weird to me that like a big defense to being undemocratic and attempting to draw districts in ways that, you know, dilute the voting power of racial minorities, like your big defense is, oh, we’re just being undemocratic and anti-democratic in other ways by trying to, like, lock in our own power and make the legislature not actually representative and reflect the will of the people. Like, come on.

 

Melissa Murray We said this when we talked about Rucho. I show essentially gives the whole question of how to deal with partizan gerrymandering back to state legislatures, sometimes state courts and again, like allowing the burglar to investigate the burglary like, dum dum dum. One interesting wrinkle here is that adverting to partizan gerrymandering and claiming that what they were doing was actually about partizanship was not actually what the South Carolina legislature did when it first drew the districts. That is, it did not initially assert an interest in securing a partizan advantage. And even early in the litigation, South Carolina did not defend its maps by saying these maps are purely for partizan advantage. They just said that they abided by traditional districting principles and brought about the least change. So these are all kind of post-hoc justifications, justifications that they kind of later dreamt up. And I think these are supposed to be suspect. Under the law, like the doctrine suggests that these post-hoc justifications are suspect.

 

Kate Shaw Believe Republican legislatures, even if they make up their story like mid-trial. That actually is the principle that resolves this case.

 

Melissa Murray Exactly. And there are, I think, some reasons that explain why the legislature here did, in fact, rely on race more than actual partizanship.

 

Kate Shaw Okay. So maybe let’s describe the districts and then get into some of the evidence about what happened in the case. So the case initially arises when South Carolina has to redraw its legislative districts to comply with the one person, one vote principle. That’s the principle that the court set forth in a series of cases, starting with Baker versus Carr and then Reynolds versus Sims that require that legislative districts have equal populations. I’ll bracket that. I have no idea or a lot of suspicion that this court would not actually, if it were writing on a blank slate, even announce or endorse the one person, one vote principle. But at this point, it is deeply embedded in the law. So whatever else legislatures may or may not be permitted to do, it is very well-settled that they do. After a decennial census and population shifts have to change the districts so at least the populations are equal across districts, and that’s both state and federal.

 

Melissa Murray Don’t I predict that Reynolds versus Sims will be declared The remnant of an abandoned docket before too long.

 

Kate Shaw It’s just like too that is just too depressing, even contemplate. But it is not a crazy idea.

 

Melissa Murray You heard it here first.

 

Kate Shaw Not in this case, though. So that’s essentially the background. And the case here focuses specifically on Congressional District one or CD one, which is a swing district that has elected a Democrat and a Republican, and also CD six, which is Jim Clyburn’s district. Clyburn is a former House majority whip and a very powerful black Democrat in Congress.

 

Leah Litman And we should note that CD1 Congressional District one is currently the district of Nancy Mace, so that we do not give her, as she would say, the Scarlet Letter by omitting her. Let’s play that clip here.

 

Clip I’m wearing the Scarlet letter after the week that I just had last week. Being a woman up here and being demonized for my vote and for my voice. I’m here to let the rest of the world know in the country. Now I’m on the side of the people. I’m not on the side of the establishment, and I’m going to do the right thing every single time, no matter the consequences, because I don’t answer to anybody in D.C., I don’t answer anyone in Washington. I only answer to the people.

 

Leah Litman This is, of course, Nancy Mace saying she is like Hester Prynne because she is being criticized for supporting in the race for Speaker Jim Jordan, who is accused of, you know, not responding to complaints of sexual assault by a coach at Ohio State University. But this is the new Scarlet letter.

 

Melissa Murray I mean, I really think what this shows is that Nancy Mace has never read The Scarlet Letter because this is not Hester Prynne energy.

 

Leah Litman Read a book challenge. Read a book.

 

Melissa Murray Anyway, rather than just moving CD1 voters into CD6, because CD6 was underpopulated and CD1 was overpopulated. Based on the census, the South Carolina legislature instead moved some residents out of CD6 into CD1 and then moved many more voters out of CD1 and into CD6, which changed a lot of the CD1 Boundaries. Even though the state says that its redistricting criteria was to adopt the least change to its previous districts, or at least it said that right.

 

Kate Shaw That was the initial argument. And it, of course, shifted to this kind of partizanship frame. But initially it was just saying like, we’re doing this in order to minimize the change, which is just, I think.

 

Melissa Murray Completely indefensible because there was a lot of change, not really minimal at all. In any event, the district court here found that the mapmaker saw racial data after drafting each version of the map and included a racial breakdown of the maps when sharing them with legislators. And that seems to be pretty potent evidence that race might have gone into drawing some of these districts. But just wait. The final map kept the percentage of black voters the same as the percentage included in the benchmark plan to ensure that CD1 remained a Republican leaning district. So if you heard the argument, the justices referred to the percent b vap black voting age population. And again, that’s what they’re looking at here, that B vap will be a critical component of whether or not the district remained Republican leaning or tilted to the Democrats. And the district court concluded that all of this evidence, taken together, make clear that this was a racial gerrymander. So this was a successfully proven short claim based on all of this evidence, that race played a very strong role in how these districts were drawn.

 

Kate Shaw But as we were just saying, the legislature now maintains that this was a partizan gerrymander and that race did not predominate and the legislature was represented before the court by John Gaw, who was assistant attorney general for civil rights in the Trump administration, also a pretty major player in the efforts to add a citizenship question to the 2020 census.

 

Leah Litman He’s very passionate about voting rights, Kate. Very, very passionate.

 

Kate Shaw So right so.

 

Melissa Murray Racial gerrymandering is necessary to enforce the Voting Rights Act?

 

Kate Shaw Yeah, that’s or the 14th Amendment or both was actually the result of the Voting Rights Act rationale of the addition of that or the other two out of the citizenship question, we don’t know. But this is not completely unfamiliar terrain for him anyway. And so he is now, of course, not in government, but at Jones Day, because of course he is.

 

Melissa Murray Of course. Kel surprise

 

Leah Litman Where you go to enforce voting rights.

 

Melissa Murray Always. Always. Maybe. Now, let’s turn back to the Kagan question that we briefly referenced earlier. So the question that Justice Kagan posed was why didn’t the legislature just use Partizanship as the model here? Why didn’t they just say initially that what they were doing was exploiting partizanship? Why would a legislature ever use race as one of the considerations if what they really wanted to do was effect a partizan gerrymandering? It’s a really good question, Justice Kagan. One reason the Legislature may have relied on race here is that the district court said that there was limited partizanship data. Basically what was available was data from the 2020 presidential election. So just one election, which was perhaps not representative and a presidential election might not necessarily provide the kind of data or data trends that you would want to take into consideration in drawing congressional races. So that’s one reason, perhaps why the legislature might have relied on race here. But again, a very good question that Justice Kagan posed.

 

Kate Shaw Another reason is the legislature might think race is the best evidence of partizanship or especially probative in a way that registration, data or data about a particular presidential election, your vote might not be. This idea came out in some of Justice Kagan’s earlier questions. So let’s play a clip here.

 

Clip Everybody can tell you that if you really want to draw a stable partizan gerrymander, you do not rely on a single presidential year election data. I mean, they had not only the opportunity, it was sitting there on their computers, but the clear incentive to be looking at this race data, which is certainly more predictive of future voting behavior than a single presidential year election in which President Trump was the candidate, which further distorts voting behavior.

 

Kate Shaw And she continued on this note. So let’s play another clip here.

 

Clip You know, to the contrary, a presidential election is what doesn’t measure turnout in a non-presidential year correctly. I mean, I’ll just ask you this. There are two maps. Let’s let’s say you have before you that that where the election data says these districts favored President Trump. One has a 20% B Vap and the other has a 17% B Vap. Now, doesn’t any mapmaker look and say, you know, I would rather have the 17% B Vap in order to make sure that going forward, this continues to be a Republican district.

 

Kate Shaw And maybe another reason is that the legislature just didn’t want to say partizan gerrymander. So Partizan, gerrymandering is not exactly popular with voters, even if it is legal in the sense that it can’t be challenged in court. That just may not be something that the legislature at an earlier stage wanted to embrace engaging in.

 

Melissa Murray You would think they would also be reluctant to embrace actually doing a racial gerrymander as well. But here we are.

 

Leah Litman But see the 2016 election.

 

Melissa Murray As we predicted in our preview episode, Representative Clyburn’s alleged involvement in the mapmaking process and the fact that he represents one of the affected districts, District six did come up in the argument. Although we may have gotten it a little wrong, we predicted that Justice Alito would be the one to exploit this particular association. But in fact, Coach Kavanaugh jumped in to take this free throw. And ProPublica had some reporting about how Clyburn’s office was involved in the redistricting process. And the implication was that he perhaps may have made a deal to keep his own district safer, even though the cost was making CD1 less competitive for Democrats. Clyburn filed an amicus brief in support of the map challengers saying that he was not substantively involved in the 2022 congressional reapportionment plan. So that is his bottom line. But Kavanaugh And then later, Alito did invoke the fact that all of this may have happened because they wanted to keep Clyburn in Clyburn’s district and make a Republican district in the same county. And that was the basis for how these maps were drawn. So we got it mostly right, I think.

 

Leah Litman Yeah. So I listened to the arguments. You know, this is a super important case, of course, listened remotely, and I thought I’d-I’d like several times over after hearing what Justice Kagan did to the Legislature’s lawyer and also to Justice Alito, like, I felt my intestines liquefy. And I think everyone who listened to that argument or. Certainly who was in the courtroom or even might listen to it after the fact, like they were in the blast radius for this kill. So let’s play her opening salvo with the legislature’s lawyer.

 

Clip Okay. I’m going to butt in and I’m sure you can sort of start there. The alternative map requirement, I mean, doesn’t exist. You know, sometimes this court, I think, holds things. And then I go back to the opinion and I think, well, maybe we weren’t as clear as we might have been. Not here. I’m just going to read from from Cooper. A plaintiffs task is simply to persuade the trial court without any special evidentiary prerequisite that race, not politics, was the predominant consideration and no area of our equal protection. Nor have we forced the plaintiffs to submit one particular form of proof to prevail. Nor would it make sense to do so here. An alternative map is merely an evidentiary tool. Neither its presence nor its absence can itself resolve a racial gerrymandering claim. I don’t know how to more clearly say that there is no alternative map requirement in these kinds of cases.

 

Clip Cooper was directed it was addressing a case where there was direct evidence of racial predominance. It also said on page 322, in the majority opinion, in a case like Cromarty two, that is one in which the plaintiffs had meager direct evidence of a racial gerrymander and needed to rely on evidence of foregone alternatives. Only maps of that kind could carry that.

 

Clip All we were saying there, Mr. Gore, is that in a case with no other evidence. You needed some evidence. So that is not this case. Cromarty, too, was making a very case specific point. Look at this case. There’s not none of this kind of evidence. There’s none of that kind of evidence. That’s none of the other kind of evidence. So, my gosh, in that case, you needed a map. But this is a case by case. All we were saying is that when you have no other evidence, you better present a map. But that’s not to say that there’s anything like an alternative map requirement. If you make your case some other way, that’s good enough.

 

Kate Shaw Yeah. I mean, you had just so much.

 

Melissa Murray Judicial diuretic. Yeah.

 

Leah Litman Adding in to the knifing is the fact that Justice Kagan wrote the opinion in Cooper so she would know, bitch, is the message.

 

Kate Shaw And you have both the that energy from the author of Cooper but also the energy of the author of the dissent in Rucho and also Burnovich, which again, is a Voting Rights Act case, but also just takes aim at the court’s seemingly evident hostility to meaningful enforcement of anti-discrimination provisions of law, whether in the Constitution or in federal statute, and its seeming desire to torpedo any realistic chance of genuine, representative, multiracial democracy. And so that was all on display in many of her questions.

 

Leah Litman Yeah, and like if your guts didn’t liquefy in response to that question, she had another one. Only this one was directed at Justice Alito. So let’s play that one.

 

Clip Well, Mr. Gore, I thought your argument was that at least as a practical matter, in a case in which there is no direct evidence or virtually no direct evidence, there is no way in which a plaintiff can disentangle race and politics except by providing an alternative map. I thought that was your legal argument. That is.

 

Clip And that’s exactly what Cooper says is not the case.

 

Clip Well, one may read Cooper a different way.

 

Kate Shaw It’s rare they really talk to each other.

 

Melissa Murray He thinks they’re not hanging out.

 

Kate Shaw Seems unlikely.

 

Leah Litman You don’t think she’s going to be invited on that next Alaskan fishing trip, even if there is an unoccupied seat on the private jet.

 

Kate Shaw And it’s a bummer because I bet she would be fun to go salmon fishing with.

 

Leah Litman Oh she’s hunting some ducks. She says she’s hunting some ducks. And those ducks are John Born and Sam Alito.

 

Kate Shaw They’re the salmon.

 

Melissa Murray Sitting ducks.

 

Leah Litman Exactly. Exactly.

 

Melissa Murray No, no, She’s super sporty. She could hang with them, but she doesn’t want to. These are not the bros she’s making friendship bracelets for.

 

Kate Shaw I think that’s right.

 

Melissa Murray No. Not at all.

 

Leah Litman Yeah. And she went to Justice Alito again over another point, which is how to characterize the Legislature’s arguments and their defenses.

 

Clip Mr. Court, is there anything suspicious about the fact that a map drawer knows the racial demographics of the state or has available the racial demographics of the state? Haven’t we spoken about that? Yes, many times. This court has said that mere awareness or consideration of race doesn’t prove racial predominance. And that would be particularly true in a state like South Carolina.

 

Clip Fence is not something along the lines of we looked at the racial data, but it still we it didn’t rise to the level of predominance. Actually your defense was we didn’t. Look to the racial data for this purpose. And what the court said was, I don’t believe that made a credibility judgment. You know, basically said your your map maker gets up on the stand and knows this racial data like the back of his hand. And the court says, I just don’t believe that they were not looking at the racial data that was right there in front of them for the purpose of making their gerrymander more secure.

 

Kate Shaw You might think, okay, so surely, she’s done at this point. But no, no, she was not done. So here she is.

 

Leah Litman He might be dead. He might be dead, but he’s not dead. Dead, dead.

 

Melissa Murray Dead dead dead

 

Kate Shaw So. So she’s going to keep going. So here she is characterizing the legislature’s case versus the plaintiff’s case.

 

Clip You know, every regression analysis has things that you can pull calls. But you didn’t give anything in response to that. It’s not like you said, we have a better regression analysis. We’ve controlled for more things. And we can show you that the that the effect disappears. You saying that it was clear error to credit the plaintiff’s experts dealing with the exact question under review and finding statistically significant results. To credit those experts over your nothing.

 

Kate Shaw I too Leah when she said over your your nothing. I too felt my insides liquify. I could I could not believe what I was hearing.

 

Leah Litman That’s going on his tombstone.

 

Melissa Murray Yes. It’s like she gave him a colonoscopy, like right there in the room like, wooo, anyway, so she was also not buying what the South Carolina legislature was selling. So here’s a clip of her, again, eviscerating Mr. Gore.

 

Clip That’s a legal error? Is that they didn’t correctly weigh the evidence?

 

Clip They didn’t correctly conduct the inquiry.

 

Clip Sounds like a factual error to me. I mean, your brief basically, you know, says we have legal errors and then it says, well, the evidence didn’t show. Those are factual errors. That’s subject to the clear error standard.

 

Melissa Murray And here she is jumping in to make a point with the lawyer who argued on behalf of the South Carolina voters, Leah Aden of LDF.

 

Clip And in fact. I mean, you know, the the the record better than I do. But is it a particular surprise that people do not brag about the fact that they were doing a partizan gerrymander? And the court acknowledged that in its opinion. Is it a surprise that instead they disclaimed that they were doing a partizan gerrymander until it got to the point where they thought we better make a case.

 

Leah Litman So as we were saying, basically, you know, the South Carolina legislature’s lawyer and Justice Alito dead right after this argument, although they will come back to haunt us, you know, in the eventual opinion that emerges from this horror show. Did also want to note that a listener wrote in with a suggestion that Justice Kagan’s dead dead dead comment, which we were just referencing, and she made it originally in the tester standing case that the court previously heard where she was describing, you know, that’s not an actual live case, but it is dead and moot and done many times over that she might have been channeling Henry James because In the Wings of the Dove, Henry James describes a woman’s reaction to a painting of a dead woman that resembles her. And he writes of the woman, the protagonist, Milly Theale, thinking of the painting quote. And she was dead. Dead, dead.

 

Melissa Murray We stan a literary queen.

 

Leah Litman Yes.

 

Melissa Murray Keep reading, Elena. Keep reading.

 

Leah Litman Elena reads books.

 

Melissa Murray Nancy Mace, start reading. Start reading. That is how you do a literary reference.

 

Leah Litman Exactly.

 

Melissa Murray Anyway, another major theme in the oral argument was the standard of review that the court should use in reviewing the lower court’s determination, and particularly the lower court’s weighing of expert testimony relating to whether there’s evidence that race predominated in the drawing of the maps. And at various points, it seemed like some of the conservative justices could not figure out what lane they were in. Like, were they in an appellate lane? Were they in a fact finder lane? Were they a district court? Because quite often it felt like they were trying to conduct some kind of bootleg Daubert hearing to assess whether the expert, the district court found most persuasive was actually persuasive. And so it was left to Justice Sotomayor, an actual district court judge, to remind them of what the clear error standard actually means for appellate judges. Here she is.

 

Clip I think you end up in a very poor starting point under clear error, arguing the substance of believability of one expert over another, because credibility findings under clear standard must be deferred to to the district court.

 

Melissa Murray Now meaningfully not to be unchallenged. Sam Alito stepped in to suggest that the deference that is typically owed the fact finder at the district court should be relaxed in circumstances where, as here the district court’s decision is appealed directly to SCOTUS and there is no. Intermediate appellate review. So here’s Justice Alito making this novel standard of review claim.

 

Clip Well, the clear error standard is that’s the standard that we are required to apply is a very demanding standard. But it is not an impossible standard. And it doesn’t mean that we simply rubber stamp findings by a district court, particularly in a case like this, where we are the only court that is going to be reviewing those findings.

 

Melissa Murray And to be clear, no one, not even Justice Alito, has ever heard of this version of the standard of review before. But.

 

Kate Shaw I am so happy to hear you say that.

 

Melissa Murray Points for creativity.

 

Kate Shaw Because I, during the oral argument, was like, oh, I somehow have been completely ignorant of the fact that we do things a little bit differently when we’re on these cases. There are a handful of cases, a lot of voting cases in particular where there’s a three judge court that issues the initial opinion and then the Supreme Court hears the direct appeal as opposed to going through an intermediate appellate court. And that changed the standard. No, but it really doesn’t. So he just made this up and said it like it’s a thing.

 

Melissa Murray I don’t know if he was like actually promulgating a standard, but he was just suggesting that.

 

Leah Litman There is a deference

 

Melissa Murray Deference. Yeah. Like there’s no intermediate appellate court, no other court reviewed this. So we have to be more searching and maybe literally act like a district court.

 

Leah Litman It’s just that the Supreme Court is too important or whatever to abide by the normal clear error standard. Because like, just to unpack like the insanity behind this claim, the clear air standard is the standard that every appellate court uses. Every court of appeals uses when they are reviewing fact findings in the district court. And in over 90% of cases, the Court of Appeals is going to be the only court that could review those fact findings. And yet they still, even though they are the only courts to review those fact findings, apply the clear error standard. And now Justice Alito comes along and he’s like, again, we are just too important or whatever for that standard. I would like to use a different one.

 

Kate Shaw Yes.

 

Melissa Murray To be clear, the reason why there is so much deference to the district court and why the standard is clear error on appeal is because the district court is the court that’s closest to the actual litigation. They hear the expert present the evidence. They’re able to listen to cross-examination. They can interject and kick the tires themselves.

 

Leah Litman Also, they’re the one that saw South Carolina changing out of its arguments. Right? As the case was developing.

 

Kate Shaw There was a trial here, like there was a trial with evidence, with witnesses who testified. So but what does that to stand in the way of a completely made up standard that Justice Alito.

 

Melissa Murray Why not let the Supreme Court just do some fact finding, like, let’s like, let’s while we’re changing list.

 

Leah Litman No facts, just vibes.

 

Melissa Murray Original. Just vibes, I’ve got vibes about my new original jurisdiction, got facts about how I can fact finding vibes about. I mean, it’s the whole thing was bonkers.

 

Kate Shaw It was. Yeah. Yeah. And you know who thought it was bonkers and not just us? Yeah. Justice Jackson. So she was not going to let this made up standard of review go totally unremarked upon. She, like Justice Sotomayor, is a former district court judge, and she stepped in to finish what I thought Justice Sotomayor started in the clip we played a couple of minutes ago and.

 

Leah Litman Finish him finish him.

 

Kate Shaw This is what you, Melissa, mentioned our last episode, which is that she is able to do this kind of cleanup because she goes last in the final questioning and she certainly does not waste that opportunity. So let’s play that clip here.

 

Clip I guess I’m still struggling with this clear era standard and the application in this context. Justice Alito asked a number of questions about the reasons that the district court highlighted for why it did not credit Mr. Roberts testimony. And I guess consistent with what I understood, the clear error standard to require of us. I didn’t know that we were to evaluate whether we agreed or disagreed with each of their findings, whether we would have found you had a different take away from the fact that, you know, his testimony the district court said it rang hollow. If we thought it didn’t ring ring hollow, would that be a basis for clear error? Do I not understand what the clear error standard is?

 

Kate Shaw I like how she names him here, too. You know, like there is an instinct to say. Some of my colleagues have suggested that and she doesn’t bother with such niceties.

 

Melissa Murray That crackerjack, Justice Alito. Yeah, right.

 

Leah Litman Yeah. Yeah. So despite their best efforts, despite the way laws are supposed to work, despite all of the evidence about what was happening in the South Carolina legislature, it did seem to me after the argument that the six Republican appointees were inclined to reverse and we were going to get a63 decision to that effect. I don’t know.

 

Melissa Murray Very moderate. Very moderate.

 

Kate Shaw I just didn’t know where best. And Kavanaugh were honestly like the chief and Alito and Thomas. I just don’t know where the two of them are. So I’m not I’m not giving I’m not giving up on this.

 

Leah Litman No.

 

Kate Shaw Neil Gorsuch, I guess I thought I’m not positive where he was either. But I almost never hold out hope for Gorsuch and a case like this.

 

Melissa Murray You’re holding out hope for Barrett and Kavanaugh.

 

Kate Shaw I am.

 

Melissa Murray Like, that’s really where we are right now. I need to think about i.

 

Leah Litman That it’s bleak. I still think.

 

Melissa Murray I’m with you, Leah. 6 to 3 reverse. And again, I dare someone to find me the moderation in this.

 

Kate Shaw I mean, just think how we felt out of coming out of Amazon.

 

Leah Litman I agree. But like the efforts by the chief justice in particular to characterize what the plaintiffs were seeking as unique or different, I think that that is going to bring over Barrett and Kavanaugh, and that is going to be how they are going to write this opinion, because I think they have purchased enough goodwill and institutional credibility and stature from the decision last term in Allen versus Milligan, which was ten years after Shelby County, as well as the independent state legislature case, which generated all of this coverage about a moderate institutionalist court and how Brett Kavanaugh was like a moderating influence on this court. Come on. But I do think that that is what is going to happen. You know, I recognize that we were similarly or not as similarly, but also pessimistic about Michigan last year. But I just think that.

 

Kate Shaw That that precedent actually maybe changes the dynamic here. It’s just like for all the points that Justice Sotomayor and Justice Jackson were making, like, does Jackson really is like we’re talking you’re talking about doing de novo review. And how are you going to explain why you are going to review in the first instance as though no other court has previously looked at fact finding only in cases where a lower court finds an impermissible racial gerrymander like it’s going to be hard to explain that.

 

Melissa Murray Well, it’s going to be hard to explain that to lawyers. But most of the people who are going to be hearing about this case are not necessarily lawyers like it’s such a technical and kind of wonky thing that it’s not going to be easily explained in mainstream media. Most laypeople aren’t going to understand that this was a complete departure from established protocols. No one’s going to get that. I mean, it’s not like Dobbs where you overrule something and everyone kind of understands what that means. It’s such a wonky and kind of technical area like this negative review that, yeah, I think people aren’t going to get it unless they listen to this podcast.

 

Leah Litman It’s not just the standard of review, but I also worry that like some of the stories I saw coming out of the argument were predictions about how, you know, the court was not going to give Democrats like another district in South Carolina. But that’s fundamentally like the wrong depiction about how to think about this case, Right. Is about whether the congressional districts in South Carolina actually reflect where the voters are. And that’s how you get a district like Nancy Mace’s, right, that has been engineered to be super safe Republican so that they can elect someone who hasn’t read The Scarlet Letter and just like a totally like a mis describes it. And it’s just a joke. I mean, come on. Right. Like in that house.

 

Melissa Murray You sound like such a coastal elite, Leah. Such a coastal elite.

 

Leah Litman Because I’ve read a book? You know, this has repercussions for the rest of the country because they are in Congress. They are determining who is going to be the speaker of the House. They are going to determine whether all of this banana stuff continues. And it’s very disturbing.

 

Melissa Murray Basically, our prediction is six votes for Nancy Mace, three votes for Hester Prynne. The real Hester Prynne

 

Leah Litman While we’re on this topic, I did want to give a best advocate award for this argument to Justice Kagan, not only because she is allowed to cut off Justice Alito and tell him to fuck off in ways that advocates generally cannot except for maybe like Lisa Blatt. But I enjoyed that energy. But I did also want to say, like Lisa Aden from LDF, terrific job.

 

Melissa Murray HU, you know, a Howard University law grad.

 

Kate Shaw And this is her first at the court as well. Is that right?

 

Leah Litman Yes, yup

 

Melissa Murray Yeah. her first time.

 

Kate Shaw She did great.

 

Melissa Murray She’s a seasoned voting rights litigator. But this is her first argument before the court. So. Yeah, Doing Howard University proud.

 

Leah Litman Yes. And the lawyer for the solicitor general, the federal government supporting the voter is Carolyn Flynn. Go Blue, a michigan law alum, was similarly terrific.

 

Kate Shaw She was very, very good.

 

Leah Litman Now for some court culture. First and most importantly, happy belated Eras Tour movie opening weekend to those who celebrate.

 

Melissa Murray In addition to Taylor and this new cinematic experience, we have a new clothing merchandizing experience for you from Crooked because it’s spooky season and we have a new crooked T-shirt that’s perfect for horror fans. And at this point, if you are listening to those podcasts and following SCOTUS news like we are, then you are in fact a fan of horror films. So this new T-shirt is a Jaws inspired creation. Except in this version it’s not Jaws, but laws. See what we did there? And on the back it says, This is the part I love. We’re going to need a bigger court. They could have just said a bigger boat and it still would have worked.

 

Leah Litman Exactly, a bigger boat ie. A super yacht.

 

Kate Shaw Superyacht with no federal monitors on board. Billing billing the poor billionaire for the oversight.

 

Leah Litman Paid for by a billionaire.

 

Melissa Murray Yeah. Yes, Yes. I mean, there are a lot of ways in which this is just like of the moment.

 

Kate Shaw Nautical maritime metaphors. Yes. Yes.

 

Melissa Murray So this is very a currant tee . So it features a graphic of six sharks in judicial robes. I’m not going to speculate as to which shark has the biggest head and the biggest teeth. But if it sounds scary to you, I can say it’s at least a little less scary than the prospect of six conservative justices wreaking havoc on the standard of review and voting rights more generally. And the best part of this new Laws merchandise is that it’s coming to the Crookedt store near you specifically crooked dot com forward slash store. So get over there and snag this new favorite spooky season T-shirt before they’re gone.

 

Leah Litman Before the billionaires buy them all up.

 

Kate Shaw Okay. So we’re going to transition to some breaking news. And the first thing we wanted to highlight was that the Sixth Circuit came out with its opinion in the case challenging Kentucky and Tennessee’s ban on gender affirming care for minors. So this past summer, the Sixth Circuit became the first federal court to allow laws like these to go into effect to be enforced when it stayed a district court decision and joining the law as lots of other district courts had done. The Sixth Circuit has now issued its final opinion, reversing the district court because the Court of Appeal said the plaintiffs had not established that the law is likely unconstitutional. Cases challenging laws like these are unfolding all across the country. At some point, I think the Supreme Court will inevitably be called upon to decide them. I think our view is that that’s not likely to happen until a court of appeals actually strikes down one of these laws. Again, district courts have done so. This court of appeals opinion upheld the laws, and that’s just because of the way the math in terms of when the Supreme Court can take up a case works. So the Democratic appointees of whom there are only three, don’t have the votes to grant. So there need to be four votes to actually take a case up. It’s also not clear you want a grant given the Supreme Court, right. Like I would be terrified of having one of these cases up in the Supreme Court. Although if a federal appeals court upholds these laws and you’re representing clients who are actively injured by them as a matter of ethics, you may need to at least take the chance that you could try to secure the five votes at the Supreme Court. So but again, I think that this case is probably not the one that’s going to go up again because the lower court upheld the law. Unless the Republican appointees are really, really eager to take one of these cases up now. So I guess it’s a little hard to say.

 

Melissa Murray Yeah, you just need four.

 

Kate Shaw You just need four to take it up. Yeah.

 

Melissa Murray We have mentioned repeatedly that we are following the Wisconsin Republicans threats to impeach Justice Janet Protasiewicz what’s for the high crime and misdemeanor of winning an election while also having progressive values. And to be very clear, Justice Janet’s election swung the ideological balance on the Wisconsin Supreme Court from conservative to progressive, and that has now prompted some Republicans to call for her impeachment. And specifically in calling for her impeachment, they have referred to the fact that during the campaign she correctly described gerrymandered maps in Wisconsin as quote unquote, rigged facts facts on facts. But now, Justice Janet, it has officially and correctly rejected calls for her to recuse herself in a partizan gerrymandering case in a 47 page opinion such statement that is accompanied by an appendix. We will also note that the Republican legislature has asked for some individuals to step in to advise them on whether to move forward with the proposed impeachment. And the individual advisors who have been consulted include the former Wisconsin Supreme Court Justice Prosser, who is the conservative justice who allegedly assaulted another justice on Wisconsin Supreme Court. I’m very interested in what he might have to say on this.

 

Kate Shaw So in one turn, in this saga that I had not anticipated, this former Republican supported Wisconsin Supreme Court Justice Prosser, whose history Melissa just alluded to, actually advised the GOP controlled legislature that they should not impeach newly elected Justice Janet over her participation in the gerrymandering case. And but actually for winning an election, like he said, not to impeach her. There’s another former Supreme Court justice advising the legislature. That’s Justice John Wilcox. He also said the same basically that impeachment is not warranted. The AP story that broke this news also reported that among the other people who the Republican legislature have asked to advise them on impeachment is the former chief justice of the Wisconsin Supreme Court, Chief Justice Pat Roggensack, who was mandatory retirement, created the vacancy that Justice Janet’s election caused her to fill. She’s not currently on the court. So it’s not quite like asking a current justice for advice. But she was just there and she was a vocal supporter of Justice Janet’s opponent in the general election. And I was kind of shocked, although I shouldn’t have been to see that she had been retained to advise the legislature.

 

Melissa Murray This sounds totally neutral. Like, I don’t know what you’re saying Kate its like, very neutral, very judicious.

 

Leah Litman Yeah. And I mean, gosh knows what he is even thinking. Justice Rebecca Bradley is dreaming up doing right when Justice Janet actually sits on these cases. So he’s like, we got to we got to let that crazy run free. You know, and no, no impeaching.

 

Melissa Murray Liberties. Liberties

 

Leah Litman Exactly. Yeah. In other news, question is, did the Nobel Prize Committee snub tweet the Supreme Court or at least Justice Thomas and Judge Matthew Kacsmaryk? So the Nobel Prize Committee, when announcing that the Prize for Economic Sciences went to Claudia Golden wrote as follows, quote, During the 20th century, women’s education levels continuously increased, and in most high income countries, they are now substantially higher than for men. Claudia Golden, awarded the 2023 prize in Economic Sciences, demonstrated that access to the contraceptive pill played an important role in accelerating this revolutionary change by offering new opportunities for career planning.

 

Melissa Murray How’s that for a speculative, inchoate reliance and trust fellows? Dr. Claudia Golden has receipts and also now a Nobel Prize. So suck on that, fellows. Congrats to Dr. Golden.

 

Leah Litman But Sam Alito is going to take those pot shots at this expert in this bootleg Daubert hearing. And he’s got some questions. So he’s pretty sure that’s just the national psyche and not a reliance interest.

 

Melissa Murray Definitely not real data. Anyway. And just in time to tease our episode for next week, we have new reporting that a Fifth Circuit judge decided to wait for it, release a fake majority opinion in a death penalty case. Amazing. Sounds very, very normal. So by a 2 to 1 vote, the Fifth Circuit declined to lift a stay of execution that had been granted to Jedidiah Murphy because of questions about Murphy’s post-conviction proceedings, including access to DNA evidence. Basically, the panel in Murphy’s case said that we have a pending case challenging Texas’s limits on testing of evidence, and so this stay of execution will hold until that issue is decided by the panel. Well.

 

Kate Shaw Well, so Judge Jerry Smith dissented, but his dissent read as follows: In the interest of time, instead of penning a long dissent pointing to the panel majority’s and district court’s myriad mistakes, I attach the Fifth Circuit panel opinion that should have been issued. This is similar to how Judge Van Dyke issued a fake opinion. This was a concurring opinion to his own majority opinion that included an alternative draft of an opinion. He expected the full ninth Circuit to reach en banc that would reverse his opinion. But this Jerry Smith, you know, dissent dressed up as a majority opinion was truly an insane thing to do. It was it looked it had the caption of a real opinion, like to all the world. That’s what it appeared to be.

 

Melissa Murray This is like the judicial version of a diss track and say what you want about Jerry Smith. This was legendary. Like, this is going to go down in history like, you know, bad behavior for sure. But legend.

 

Leah Litman Diss tracks maybe not especially judicious. Not especially judicious is a significant understatement here. Not especially judicious legends. I mean, the Constitution does say for good behavior and this strikes me as bad.

 

Melissa Murray But liberty, impeachment, liberty. Let’s not go there. Liberate.

 

Leah Litman Yeah.

 

Melissa Murray This is basically judicial opinion as performance art.

 

Leah Litman Yes.

 

Melissa Murray Yeah. Very hard to believe that the Fifth Circuit continues to do law after stunts like this.

 

Kate Shaw And if you and if this whets your appetite we have a whole episode on just that point coming your way in one week.

 

Melissa Murray On the whole stunt queen fifth Circuit.

 

Leah Litman Yeah. To that point, like, do you think the Fifth Circuit is doing law? I think one very important thing to keep hammering on is the Supreme Court is not punishing the Fifth Circuit for departing from judicious behavior. Your legal reasoning laws. I mean, it’s true, right? The Supreme Court occasionally reverses the Fifth Circuit, but they don’t get called out in the same way that, like the court of appeals for the ninth Circuit did. Right. When it upheld some COVID regulations or when other courts of appeals do, when they deny a defense of qualified immunity or when they grant a habeas petition, like you don’t have a solid majority on this court to reign in the Fifth Circuit. And here in this case involving Murphy, the U.S. Supreme Court lifted the stay of execution over noted dissents from the three Democratic appointees. This was the first grant of emergency relief in this new term, leading to Texas executing Murphy. And it’s horrific.

 

Kate Shaw It’s a stunt. And it’s a stunt in a case where the highest possible stakes and it is just so not just judicious, it’s so disrespectful, it’s so egregious. And the court, you know, essentially seems to have blessed the conduct. They’ve said, yeah, that’s fine.

 

Melissa Murray Do more further, faster, higher.

 

Leah Litman Right. That the harshest penalty the Fifth Circuit gets is like an occasional 5 to 4 or 6 to 3 vacate with like a narrow majority identifying some small thing they did but never actually confronting the conduct that lacks any antidrug of decorum. They’re just like affronts to law or anything else. So, you know, the antics will continue. So one final note, which kind of relates to our continuing coverage of Dobbs in my mind is that a few weeks ago, a college classmate of mine died from childbirth complications leaving behind her newborn son and husband. Some classmates have established a fund in her name, the Maggie Rosman Memorial Fund, to help support her newborn and husband. We will include a link in the show notes, but wanted to mention this as I was suggesting, since maternal health care in this country is appalling and people are dying and suffering because of it.

 

Kate Shaw So we’ll put the link to the Go Fund Me in the show notes and the folks can support if they can. Strict Scrutiny is a Crooked Media production. Hosted and executive produced by Leah Litman. Melissa Murray, and me, Kate Shaw. Produced and edited by Melody Rowell. Ashley Mizuho is our associate producer. Audio Engineering by Kyle Seglin, Music by Eddie Cooper. Production Support from Michael Martinez and Ari Schwartz.

 

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