TRANSCRIPT

 

Leah Litman [AD]

 

Melissa Murray Hey there is Strict Scrutiny, listeners. Before we get into today’s episode, we’ve got some breaking news in the case involving Kate Cox, a Texas woman who’s seeking to terminate a non-viable pregnancy, something that her doctors believe is necessary to preserve her health and future fertility. As we’ve discussed on the show, although Texas has one of the most restrictive abortion regimes in the country, it also purports to contain a medical exception, which, again, Kate Cox’s doctors believe should apply in this case. However, Texas officials have decided that they know better than doctors. We’ve invoked Gilead ad nauseum on this show in the past, but mostly we’ve been thinking about it prospectively. Look where we’re headed. But what’s happening now in Texas really does feel like it’s ripped out of the pages of The Handmaid’s Tale. Texas officials are literally doing everything in their power to force Kate Cox to remain pregnant against the advice of her doctors, against her wishes. And regardless of the consequences to her health and her family and her future, and it’s absolutely heartbreaking and completely enraging.

 

Kate Shaw So let’s give some brief background for our listeners. So Kate Cox is 31 years old. She has two small children. She is pregnant with a wanted pregnancy. But about two weeks ago, she was informed that her pregnancy has full Trisomy 18, a condition that causes multiple structural abnormalities and where the fetus has virtually no chance of survival. She has also made multiple trips to the emergency room in the last few weeks because of severe cramping and leaking. And her Ob-Gyn and maternal fetal medicine specialist have advised her that carrying this pregnancy to term could jeopardize her health and her future fertility. She has had two previous caesarean sections, so she’s at high risk of uterine rupture. And again, she has two young kids to care for. She says she wants to have more kids. And in light of all of this, her doctors believe that the best medical path forward for her is for her to terminate this non-viable pregnancy.

 

Melissa Murray As we covered on an earlier episode, the Texas Supreme Court is currently considering the scope and substance of Texas’s medical exception provisions. In a case that’s called Zurawski versus the state of Texas. However, due to the exigency of her circumstances, Kate Cox cannot wait for a decision in the Zurawski case. Accordingly, Cox and her husband, Justin, along with their physician, Dr. Damour Carson, have filed a request for a temporary restraining order in a Texas trial court. And in doing so, they were represented by the Center for Reproductive Rights and Molly Duane, who has been a guest on the show. Last Thursday, the trial court granted that request for a temporary restraining order, saying, quote, I am going to grant the temporary restraining order for the Cox’s and Dr. Carson. The idea that Ms. Cox wants so desperately to be a parent and this law may have her lose that ability is shocking and would be a genuine miscarriage of justice. So I will be signing the order and it will be processed and sent out today, unquote.

 

Kate Shaw So the order that the trial judge signed purported to both permit this abortion and to enjoin the enforcement of Texas’s abortion prohibitions against Dr. Carson and against anyone else involved in providing this, again, medically necessary abortion. But later, the same day that the Texas trial court issued the temporary restraining order, Texas Attorney General Ken Paxton sent honestly a genuinely deranged letter to the hospitals where Dr. Carson practices overtly threatening those hospitals and Dr. Carson with both prosecution and civil liability under the Texas Bounty hunter law SB eight. Here’s just a brief excerpt from that letter. Quote, The TRO granted by the Travis County district judge purporting to allow an abortion to proceed will not insulate hospitals, doctors or anyone else from civil and criminal liability for violating Texas’s abortion laws. The tiara will expire long before the statutes of limitations for violating Texas abortion laws expires. I’m going to channel Leah for a minute and just highlight the perverse ness of Ken Paxton threatening liability under SB eight when Cast your memory back. The Supreme Court said that state officials could not be sued under SB eight, since they had no role in enforcing it. And yet here Ken Paxton is using it, wielding it as a weapon. It is just maddening.

 

Melissa Murray Ken Paxton wasn’t content to just threaten doctors with criminal and civil liability. He then filed a mandamus petition in the Texas Supreme Court, together with an emergency motion for temporary relief, asking the Texas Supreme Court to stay the trial court order, arguing that the trial court abused its discretion in finding that Kate Cox should be able to receive her medically necessary abortion so that actually the abortion isn’t medically necessary at all, and that the state of Texas will be the one to suffer, quote, irreparable harm, the permanent loss. Of human life. If plaintiffs are permitted to obtain an unlawful abortion. Before an evidentiary hearing can be held, end quote.

 

Kate Shaw And at 9 p.m. on Friday night, the Texas Supreme Court issued an administrative stay of the trial court’s order, meaning the trial court’s order is currently not in effect. And to translate. The Texas Supreme Court ruled that she has to stay pregnant. She needs to terminate this pregnancy. Her doctors believe she needs to terminate this pregnancy. But the Texas state Supreme Court says she must remain pregnant, just like let that sink in.

 

Melissa Murray Not just historians.

 

Kate Shaw Also physicians write in the order Friday night, though, you must stay pregnant. Order. The court said it wasn’t actually ruling on the merits of either motion, but there has been radio silence since then, and we’re recording right now on Sunday afternoon. So we will see what this week brings. But Texas is asking for an evidentiary hearing. So there’s a specter of these judges like holding a hearing on whether in their infinite wisdom, these physicians, scientists, historians, all the things they think they are, they think this woman should be allowed to get this abortion as her condition continues to deteriorate. It just enraging.

 

Melissa Murray Honestly, I do not know how this does not prompt Texas women to head to the polls. I mean, Ken Paxton is very definitely going to run to be governor of Texas. And I don’t know how this doesn’t enrage any woman of voting age. I mean, yeah, whether you believe abortion is immoral or what. I mean, this is a medical decision. And Ken Paxton, in his infinite wisdom, has decided that he knows better than a physician, like he didn’t go to medical school. None of these people have gone to medical school except the actual physicians here. And it still doesn’t matter. Like, I mean, these exceptions are farcical at this point and you can’t get one. And this culture of life literally wants to keep her pregnant now, perhaps, and likely preventing her from becoming pregnant in the future, as she wishes to do.

 

Kate Shaw I know. Yeah. It is so galling. You know, in particular, as you just mentioned, Melissa, Right. This is the Paxton’s of the world and of our kind of political lives claim that they care about life, right? That that is motivating their behavior. But I honestly it.

 

Leah Litman Has to be.

 

Melissa Murray It’s control. It’s a culture of goodness.

 

Kate Shaw No one should credit for a second that this is about promoting life in light of the conduct on display in this case. Right. Literally, what this woman wants to do is not to die, to be able to care for her kids, maybe to have more kids. Right. That’s all about life. And these officials don’t seem to give a shit about any of that. And to care only about one thing which is elevating the fetus above all else. And to your point about the emptiness of these exceptions, Melissa, Americans really should be, I think, Texans, but Americans more broadly because this is not just.

 

Leah Litman Campaign know.

 

Kate Shaw It’s like yeah, he does stand in for a Republican party that does not seem interested in actually having abortion policy that contains meaningful exceptions. Like they say they believe in exceptions for medical emergencies and rape. Sometimes they do Not always, but many of them do. And that’s because they have to politically, because Americans overwhelmingly support those exceptions. But this is the most compelling possible case for an exception. And it’s not enough because they don’t actually believe in exceptions.

 

Leah Litman Well, maybe in the.

 

Melissa Murray Trauma that she’s experiencing, literally having to put her life and her family’s future in the hands of the Texas Supreme Court is just again, everyone should be pushing back on this whole idea that this is the party of life. This is a culture of life. This is not pro-life at all. I mean, if you were genuinely pro-life, you wouldn’t be doing this. If you’re genuinely pro-life, you would events, broad support for parental leave and other policies that support families. But you don’t. I mean, it’s just absolutely bonkers. Like, yeah, this whole culture of the pro-life movement is nested in this ethic of neo liberalism that it is essentially about like making families do everything by themselves without any government support. And that essentially means making women do everything. Like the whole point is controlling women and keeping them bound to the home and to the family and to this role as wife and mother. And that’s that’s what it’s about.

 

Kate Shaw And it just this saga just lays all of that bare. So that sort of ideology and a lot of politics and.

 

Melissa Murray Maybe not all there because like, you mean, they want her to be a wife and mother, but on their terms. Not right. She wants to be a mother again. She wants to care for her kids. She might want to get pregnant again. They’re just like, no, you’re going to like you’re going to stay pregnant for as long as we told you to stay pregnant. And you know you have no say in any of this. I mean, yeah, that’s the part that’s jarring. It’s like. Like we’re going to impose this upon you, impose this status, this health consequence, all of it. On you and you don’t get to say anything about the culture of life. Yeah.

 

Kate Shaw Yeah.

 

Melissa Murray Bro life, not pro-life.

 

Kate Shaw So I think that it obviously is a case that really touches these much deeper themes in our law and our politics. And but maybe let’s just end on kind of like the human level, which is that no one should have to go through what Kate Cox is going through right now. And we hope that you are able to get the care that you need and soon.

 

Show Intro She spoke not elegantly, but with unmistakable clarity. She said. I ask no favor for my six. All I ask of our brethren is that they take their feet off our necks.

 

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

 

Leah Litman I’m Leah Litman, modeling the Time Person of the Year photoshoot.

 

Kate Shaw We should describe Leah’s attire for the audio listeners.

 

Melissa Murray So this is Melissa, and I just wanted you to know that this is partly my doing. I told Leah she should dress up like Taylor Swift on the Time magazine cover. And so right now, she has a stuffed cat draped around her neck and she’s wearing a black turtleneck leotard. And it’s giving Taylor.

 

Kate Shaw And some lipstick.

 

Leah Litman And a red lip, which I don’t usually do. And a large stuffed cat as well.

 

Leah Litman So we went all in.

 

Melissa Murray I think this is really where us being an audio medium really limits us.

 

Leah Litman Stay tuned for the new year listeners, we may have some treats in store for you.

 

Kate Shaw For all the senses. All of them.

 

Melissa Murray For all of your senses.

 

Leah Litman We are already unhinged and it’s not even two minutes in.

 

Melissa Murray But that’s not the only treat we have in store for you today, listeners, that audio delight of this visual feast that Leah is serving. We also have some recaps of the court’s oral arguments in the cases that they heard last week. And then we will get to some court culture and we’re going to be focused a lot on state Supreme Court. So grab a water bottle and get hydrated because we’re going to go deep. First up are the recaps and we’re going to begin with the big tax case more versus the United States or as some like to say, Mo moneyed interests versus the United States. Thank you. I’ll be here all week.

 

Kate Shaw There’s more to come. And stay tuned. So before we get into the actual case, we wanted to go back through some kind of useful context or background. In 2023, we’re just starting to take stock as the year draws to a close. And in that last year, as a result of some great reporting by ProPublica, along with The New York Times and others, we learned that at least some Supreme Court justices have a lot of billionaire friends who give the justices lots of stuff that only billionaires can offer personal jet trips, home renovation and tuition assistance for family members, luxury lodgings, what have you.

 

Melissa Murray As you do this.

 

Leah Litman As friends do.

 

Melissa Murray It’s not unconstitutional to have friends. Friendship is beautiful.

 

Leah Litman It is.

 

Melissa Murray And lucrative.

 

Leah Litman We also do know that the conservative legal movement and Republican Party more generally have benefited a ton from huge donations from the mega rich. More money, no problems like Leonard Leo’s billion dollar new fund that came about through a contribution from Barr said, or the sheer amount of money the Kochs have thrown into elections.

 

Melissa Murray Or the amount of money that Illinois billionaire Richard Uihlein, he’s the guy who owns Uline, which is that company that sells packaging materials. He’s contributed tons of money to the Restore America PAC and also to the effort to amend Ohio’s ballot initiative procedures to prevent Ohioans from voting to preserve abortion rights. So, I mean, the tldr of all of this is that this case really brings together the Republican Party’s principle passions in life appointing judges, limiting multiracial democracy, consolidating wealth and tax cuts, because here the party challenging the tax is essentially asking the court to give a pretty massive tax cut to those who have the flexibility and the liquidity to hold their wealth in unrealized pools of money.

 

Leah Litman This is also the case where one of the lawyers for the challengers is David Rifkin, who wore his journalist hat when Sam Alito gave him a several hours long interview off the record about the Supreme Court. Rifkin recently co-wrote a Wall Street Journal op ed arguing that the Supreme Court’s new ethics code is awesome and fixed everything. The title of that piece was, quote, The Justices ethics code rebukes their critics very unbiased opinion.

 

Melissa Murray Are you predicting are you predicting, is that a prediction.

 

Kate Shaw Did it fix everything or did it confirm that everything was already perfect and didn’t need to be fixed.

 

Leah Litman Both. It’s an alternative argument.

 

Kate Shaw Galaxy Brain. Okay. Okay. So that author Rivkin did not actually argue this case, but he was on the briefs and he is definitely one of the petitioners lawyers.

 

Melissa Murray That’s restraint, Kate.Credit where credit is due. He didn’t actually show up in court to argue this.

 

Kate Shaw Or just under reading the room just a tiny bit. Maybe this is one that would be better handled by someone else. Whatever the reason, that’s essentially the backdrop to the case. And as to this case, the theory in more is in many ways more important than the actual facts of more. So we’re going to introduce the theory as such and explain it with reference to the facts, although as we’ll get into there turns out to be some uncertainty about the facts, because of course there is because there is nothing this court loves more than deciding fake cases with fake facts, with very, very real implications for our constitutional system. But. To continue laying the groundwork. In their petition for certiorari, the petitioners asked the court to hear this case because they said their theory would prevent Congress from adopting a wealth tax in the future. The case itself, again, as we’ll explain, actually involves a relatively minor provision of a federal tax law enacted in 2017. But the petitioners were very explicit in framing the case as being fundamentally about the prospect of Congress enacting a wealth tax down the road. They basically argued that it was critical that the court take the case and side with them to prevent Congress from doing just that. So that’s all what we mean when we say the implications of this case and its theory of realized income could be really, really important way beyond the facts of this case.

 

Melissa Murray The question presented in this case is about the meaning of the 16th Amendment, which says that, quote, Congress shall have the power to lay and collect taxes on incomes from whatever source derived without apportionment among the several states and without regard to any census or enumeration, end quote. That amendment was a response to an 1895 court decision. Pollock versus Farmers Loan and Trust. And there the Court incidentally, the same court that later decided Plessy versus Ferguson struck down a provision of the Wilson Gorman Tariff Act that imposed an income tax, and they struck it down on the ground that such an income tax constituted an unsupported and direct tax in violation of Article one, Section two. Now, this is a pretty contested 5 to 4 decision with some vigorous dissents. And in 1913, Congress decided to take action. So this particular decision was actually superseded by the 16th Amendment, which then allowed Congress to levy income taxes without apportioning them among the states. And again, apportionment just means that each state pays according to its population.

 

Leah Litman And the petitioners, the challengers in this case say the question here is whether for purposes of the 16th Amendment, income that is taxable without apportionment includes unrealized wealth. And if that makes your eyes or ears gloss over, think about it this way. You know, let’s say hypothetically you are some person who owns a corporation, and when the corporation makes money, you put that money back into the corporation because you’re just so flush with money, I guess, you know, are those corporate profits part of your income that can be taxed even though you haven’t taken that money out for yourself just yet?

 

Kate Shaw And in a lot of cases, our tax laws actually don’t tax that as income. But there are exceptions in this case involves one of them. So the specific tax issue in the case is from Trump’s Tax Cuts and Jobs Act, passed back in 2017. That’s a one time tax that offsets other tax benefits that the law also includes. So the provision at issue here requires shareholders who own at least 10% of a U.S. taxpayer controlled but foreign corporation to pay a one time tax by including their pro rata share in the corporation as income for one year. And this can be paid all at once or in installments. And there are a bunch of possible deductions. So this is called the mandatory repatriation tax or MRP, and it reflects the fact that the law gave these companies benefits. It reduced corporate tax rates. It created a tax exemption for dividends from foreign corporations. But at the same time, it created this one time tax payment that was just part of the deal.

 

Melissa Murray Now, we earlier mentioned that this case is perhaps a little less sexy fact adjacent than your typical case or controversy arising under Article three should be because it seems like here one of the petitioners, Mr. Moore, wasn’t just a minority shareholder who never received any earnings but was nonetheless hit by the tax bill. And Marimow and Julia while of the Washington Post report that the Moore is actually have closer ties to the company than their lawyers and their filings suggest, The Post’s reporting builds on a Tax Notes article by Mindy Herzfeld, who’s a professor of practice at the University of Florida’s graduate tax program. Professor Hirschfeld’s research indicates that Mr. Moore was actually a director of the company and he made a contribution to the company that was treated like a loan and for which he earned interest. He later received reimbursements for travel expenses as a director of a company, and he invested an additional $100,000 in the company. So this idea that he’s kind of an arm’s length investor is not quite as clear based on these facts as the facts in the brief suggest. But what are facts when there is a tax cut to be obtained? I mean, let’s not let facts get in the way of a good tax cut and consolidating wealth.

 

Leah Litman Indeed. So despite Republicans love for tax cuts, not all Republicans are in favor of this judicial theory of tax cuts. Former House Speaker and Mitt Romney’s former running mate and noted liberal squish Paul Ryan, who shepherded the Tax Cuts and Jobs Act into law, told Nina Totenberg of NPR, quote, I’m not for a wealth tax, but I think if you use this as an argument to spike a wealth tax, you’re going to basically get rid of a third of the tax code.

 

Melissa Murray That’s a big tax cut if you get rid of a third of the tax code.

 

Leah Litman And Sam Alito is jamming out, I’m the taxman. Yeah. Yeah, I’m the taxman.

 

Kate Shaw Okay, so back to the basic structure of the challenger’s argument. It’s really about realization. That is, they say that this is a tax on unrealized income. And they say that under the 16th Amendment, the federal government only has the authority to tax actual income, which they say is income that is realized. Assuming that the realization issue is the question in this case. And the question the court will answer, petitioners theory could definitely cause a good deal of chaos in the tax code, as we just mentioned. Speaker Former Speaker Ryan suggests. And that’s because there are a lot of taxes that actually don’t have realization requirements. Justice Kagan had a question to Petitioner’s lawyer near the end of the argument, but laid out a few different kinds of taxes that could be threatened by their interpretation because those taxes don’t clearly apply to just realized income, as the petitioners seem to define it. So let’s play that clip here.

 

Clip So at the risk of a little bit repeating some of the discussion, it seems to me that there are four principal. There may be others, but there are four principle kinds of taxation that Congress has repeatedly countenanced and that this court certainly has done nothing to get in the way of that. You have to distinguish here, and I just want to make sure I understand your distinctions and whether there’s a single distinction that sort of covers all of these or whether each one has a different explanation. So here are my four. It’s subpart F, it’s as corporations, it’s partnerships and it’s taxing on an accrual basis. So give me why it is that you think we can decide for you without putting any of those kinds of very established taxation schemes at risk. At a 10,000 foot level, Your Honor. They all hew to the realization line as it’s been developed in the Court’s cases and by historical precedent. See, I would have thought that none of them, you know, the realization line. I think that I mean, that’s why that this is my question I guess.

 

Melissa Murray And Justice Sotomayor also asked a question of petitioners lawyer that underscored that this realization requirement theory could have really enormous consequences throughout the entire tax code. So let’s play her.

 

Clip You’re asking us to just announce what realization is out of context. And for the last hundred years, we’ve been studiously avoiding doing that because we recognize that it’s dangerous to do that. So to say a word like realization, we then have to come up with a working definition that applies to every piece of property and every way in which people. Gain wealth. It doesn’t seem logical to me.

 

Leah Litman The federal government’s brief arguing against this whack a doodle theory had invoked a long history of taxation that seemingly was inconsistent with petitioners theory, As the federal government explained as early as 1864, You know, three years after the first federal income tax, Congress enacted on a portion income taxes, reaching individuals pro rata shares of undistributed corporate earnings. The court upheld that law in Collector versus Hubbard. The brief also noted that Congress can tax partners on undistributed partnership income and that Congress’s 1913 income tax law included undistributed corporate earnings within certain shareholders taxable income as well.

 

Melissa Murray Ellen, April and Donald Tobin submitted a terrific amicus brief that echoed that same theme, as did another amicus brief submitted by Rubin Avi Yonah Lee, his colleague at Michigan, and Clinton Wallace and Brett Wells. And in that brief, they explained how, quote, non realization rules are essential to prevent tax sheltering and to create a level playing field for all tax, end quote. And the American Tax Policy Institute also weighed in to echo that same argument. So these are some real lightweight. They don’t really know a whole lot about tax, but they are coming in to endorse the government’s position that crediting the petitioners realization requirement theory would have broad consequences for tax law writ large, even if it would have great consequences for billionaires with offshore corporate tax interests.

 

Leah Litman And as ever, there is very big two important or whatever slosh running away from your argument energy in this case on the side of the petitioners, the challengers. So during the oral arguments, some justices as well as the United States at both the argument and their briefing, you know, said that the petitioner was just coming up with nonsensical distinctions with other taxes on unrealized income in order to avert the true implications of their theory. You know, another great amicus brief by the Tax Law Center and NYU and professors Ari Glogower, David Cayman, Rebecca Kaiser and Darian Chatzky gets at this idea.

 

Kate Shaw But it is actually possible the court just isn’t going to answer whether the 16th Amendment has a realization requirement. And that’s because, as the government pointed out, there’s no dispute here that there was income realization, it was just to the corporation. So the real question is whether Congress can agree. Tribute, that realization to these 10% shareholders and the court’s cases, if those matter any more big, if.

 

Melissa Murray Big if.

 

Kate Shaw If they do, though, they do seem to make clear that you can make that kind of attribution.

 

Melissa Murray And Justice Alito asked Solicitor general, pray longer what limits there were on Congress’s ability to attribute realizations by one entity or person to another, leading to this exchange, which we just had to highlight.

 

Clip Just a part. Generally, your answer is that there need not be realization by the taxpayer. It’s sufficient. If there’s a realization by some other entity. Correct, under the 16th Amendment. That’s correct. Although there is a due process. Question in that context about the limits on Congress’s ability to attribute income that was realized by one taxpayer to another taxpayer. All right. That the due process Question And that’s a question of substantive due process. That’s how this court has analyzed it in cases like Barnett versus Wells, where it was looking at the limits on Congress’s ability to make that kind of attribution decision.

 

Leah Litman I think Sam is learning not to worry and love substantive due process, don’t you? Right. This is going to be it.

 

Melissa Murray It grows on you. You just start loving that liberty. And you just want more of it.

 

Leah Litman Did we would be remiss if we didn’t play. Solicitor general pre Lugar is fantastic explanation about why the U.S. taxpayers are the natural people to pay these taxes on the realization by foreign corporation. So here is what she said there.

 

Clip I think the m r t like many pass through taxes, is equally constitutional here. The income has never been taxed at the entity level and there are real complications with trying to tax foreign corporations directly. So in many respects, these large U.S. shareholders who by definition together collectively have a majority stake in a closely held corporation, are in many senses, the most suitable person or entity to tax. My friend himself suggest that in thinking about these issues, the court should focus on the potential for tax avoidance or tax abuse. And I think that that concession just underscores the point that when you are using a foreign corporation, it provides a ready vehicle to shelter funds offshore, keep them out of the reach of U.S. taxing authorities, and thus complicate efforts to access those funds, even when they have a really significant connection, as they do here, because these companies are majority owned by U.S. taxpayers. And it’s important to recognize, too, that this case is not the paradigmatic case of how the m. R t applies. The overwhelming majority of taxpayers subject to this are domestic corporations, often parent companies of wholly owned foreign subsidiaries who have arranged their affairs to be able to keep this money offshore to a period of long tax deferral.

 

Kate Shaw Maybe because Justice Alito is a glutton for punishment or maybe because he always thinks he’s going to get the better of anyone and sometimes fails. He tried to play gotcha with Solicitor General pre Lugar, and he did that in some revealing clips that we wanted to play before commenting.

 

Clip Well, one of your arguments that you press most strongly and certainly it has resonated a lot in the coverage of this case is that the adoption of the petitioners arguments would have far reaching consequences. Isn’t that correct?

 

Clip That’s correct.

 

Kate Shaw I mean, in case anyone is skeptical that media coverage of the court matters or actually believes the court when they say they don’t pay attention to media coverage, Sam makes very clear that absolutely they do. He sure does. But I think they all do. And I think that’s a reason that it matters a great deal that we all keep on them because, you know, he’s reading this stuff.

 

Melissa Murray Oh, my God. He has a Google alert for Samuel Alito for sure.

 

Leah Litman He makes his clerks come into chambers every morning and he reads the Internet with them. I mean, that is definitely part of the job, as far as I can tell. Or maybe they clip.

 

Melissa Murray Out all the clippings for him and present them to him right on a weekly dossier that he reviews.

 

Leah Litman As they assemble his burn book. Yeah, for sure. A bit more on this kind of along the lines of what you were saying. You know, The Wall Street Journal opinion pages had an absolutely unhinged, hysterical editorial accusing progressives of turning more into a tax Armageddon by warning of the consequences the Morris theory would have for the tax code. And the Journal goes on to say, you know, but the justices aren’t going to adopt the theory. So you all were just being, you know, the boys and really the girls. Cassandra’s crying wolf. And, of course, they simultaneously urged the court to adopt the theory that could spell doom for the tax code. But never mind that. But the thing I wanted to say is, if the court upholds this tax, it does not mean people were wrong to warn about the consequences of this theory or the challenge. You know, for one thing, it’s possible the court just won’t answer whether there is a realization requirement in this case leaving tax Armageddon for another day. But you know, for another, if the court adopts a sensible construction of the tax code, whether in this case or a later one, there’s no doubt in my mind that’s partially going to be because people were warning about the utter bedlam that endorsing the Morris theory would portend. So it’s another example of how checking this court requires people to put themselves on the line to stick their necks out, to warn of the consequences and. If or when those consequences don’t materialize, those people are still kind of the heroes, not the people saying there was nothing to worry about.

 

Kate Shaw They are the heroes. And it’s important that they not take the lesson that, oh, well, I guess I was too spun up about something and shouldn’t have been. And next time I hold my fire, like, that’s the wrong lesson.

 

Melissa Murray Keep firing.

 

Kate Shaw Yeah. And it’s also and also. Just on the journal like this is some like hysterical liberal fever dream that this case would have these far reaching consequences. The petitioners own cert petition, which we just talked about, really belies that characterization. They were like, take the case because it’s so wide reaching and consequential. So it’s pretty revisionist to say it’s just liberal commentators who take that view.

 

Melissa Murray There’s so much laziness in this Wall Street Journal editorial. I mean, first of all, tax Armageddon when there is the perfectly acceptable portmanteau taxageddon available to you. Laziness. Absolute laziness. And then blaming this on liberals?

 

Leah Litman Are you volunteering to be the Journal’s public editor, Melissa?

 

Melissa Murray I’m just saying you need an Ombud’s person. I have done this before. And I mean, you could have done more. Like you’re resting on your conservative laurels, like you could have been a little more creative. That’s all I’m going to say.

 

Kate Shaw Among many critiques of that op ed that that is that is correct. Okay. So back to Alito and pre logger and that exchange. So after getting pre logger to concede that yes of course consequences are relevant, Alito proceeded as if he thought, aha, I’ve got you because you’re talking about the implications of the Morse theory. So now I can ask you about the implications of your theory and whether it would allow Congress to enact all these horrible taxes that, as we have already made clear, aren’t currently law more probably never materialized, but Sam Alito is nevertheless going to speculate about. So let’s play.

 

Melissa Murray Black Santa.

 

Leah Litman Tis the season.

 

Clip So do you think it is fair, then to explore what the consequences of your argument would be?

 

Clip I’m happy to talk about the consequences of our argument, although I want to say at the outset, I think that the court could resolve this case quite narrowly.

 

Melissa Murray Narrator voice. Justice Alito did not, in fact, get Solicitor General Preloger, and in fact, he never gets Solicitor General Preloger I mean, he’s.

 

Kate Shaw There’s a real Charlie Brown football. This time I will. No. Not going to happen.

 

Melissa Murray She’s always Lucy.

 

Leah Litman Neil also decided to be fantastico, just as he was last week, insisting that the federal government had not, in fact, made an argument that they certainly did seem to make. So here is this exchange.

 

Clip But that argument that this taxpayer had that kind of enjoyment isn’t in the briefs before us. And I’m just wondering, what do I do about that?

 

Clip Well, I think we did make that argument because we made the point that to the extent the court goes down the road of recognizing some theory of constructive realization, then the MBti would fit within that same framework because petitioners haven’t identified any actual distinction between how those other tax contacts operate and how the market operates.

 

Clip Let’s let’s just say I don’t see that argument. Then what do you want me to do? Am I supposed to vacate and remand if for for consideration of that question? Is it waived? You know, what would you have me do?

 

Clip I certainly think that in our brief, we argued that here the taxpayer can properly be held accountable for the corporation’s income and that. The Court I got that.

 

Clip I got that argument.

 

Kate Shaw I mean, Neil, if you can’t find it in the briefs, how about we help? Should we do something which we aren’t pointing toward the proper excerpts. Let’s do that.

 

Leah Litman It’s the giving season, right? Time and time to be charitable here. Here’s a little gift under under your tree, Neil.

 

Kate Shaw Mm hmm. All right. So in that spirit, page 41, quote As petitioners do not dispute the mighty targets income that the CFC itself has plainly earned. And when a CFC has earned income, its 10%, shareholders have earned a corresponding accession to wealth and economic gain.

 

Melissa Murray And not to be outdone, there’s more under your tree deal on page 42. Quote. Far from being unreasonable or arbitrary, the market fits comfortably within Congress’s consistent practice of taxing individuals on their shares of undistributed business earnings. The mighty like Subpart F applies to U.S. owners of 10% or more of a CFC shares under the Miti and subpart F alike. Those persons are taxed on undistributed corporate income, irrespective of whether they have the power to force the corporation to make a distribution, end quote. Happy holidays.

 

Leah Litman Happy holidays. One other note on Neil’s participation in this argument. He also tried to play gotcha with Solicitor General pre Lugar. It went about as well as it did when Sam tried to play this game, because when Solicitor General Lugar would say but there was realization here he would follow up with, Aha. So you’re saying realization is necessary? And she’d patiently explain. O’Neil I’m saying it’s not necessary for you to decide whether realization is required. Since realization exists here, realization is sufficient. Not necessary is called logic. Look it up. Real Dad’s Bras and Chaz energy from Sam and Neil. During this case, I thought.

 

Kate Shaw Here’s where I confess I still haven’t read the Taylor profile. I think that’s that that was that reference.

 

Leah Litman It is good catch. So other thoughts on the argument, It seemed to me like Justice Kagan is readying herself to launch a comedy tour that and she is willing to pointedly call back to some of her colleagues more outlandish questions to draw out the obvious answers to them. So we’ll play some clips of that here. Here’s one.

 

Clip Justice Gorsuch said you were asking us to overrule 100 years of our precedent. Sounds bad. Are you?

 

Clip I am not asking the court to overrule any precedent in this case. I’m asking the court to follow its precedent that post dates in a coma and makes clear that the discussion in that case was limited to the particular type of stock dividend at issue there.

 

Leah Litman It’s almost as if she’s saying, like O’Neill now you don’t like overruling precedent and you’re concerned with it. But also they’re not even asking us to overrule precedent, you dolt. I liked it. I like zero fucks.

 

Kate Shaw Elena Kagan And there is more. So she did basically the same thing with an Alito question. So there was that was the line of questions that we actually just talked about, where he tried to play Gotcha with Solicitor General Pilger and exploring the implications of the government’s theories. And Kagan has something to say about that, too.

 

Clip And then with respect to the furthest the implications of the furthest reaches of your argument that Justice Alito was asking about, and you said with respect to a number of taxes, which will probably never see in our lifetimes, but you said if we did see them, you would probably defend them. And when you say that, that’s your job, right?

 

Clip Yes. We generally defended the constitutionality of statutes.

 

Clip Yeah. So so how should we think about that set of possibilities?

 

Clip So I think the important starting point is to recognize that those are hypotheticals, as you mentioned, that are unlikely to ever come to pass. There’s a really good reason that Congress frequently chooses to tax based on realization, and it’s the administrative practicalities of the situation.

 

Melissa Murray Otherwise, it’s so that’s more money. Many problems for Sam and Neil, who were very sad that they weren’t going to be able to take a hatchet to the tax code, or at least not the kind of hatchet job they would like to do to make the world safe for billionaire interests.

 

Kate Shaw Maybe just them, right?

 

Leah Litman It did seem that way.

 

Melissa Murray Other people coming back a little more circumspect. Well, I mean, could he really talk about this? Let’s be clear. He kept a pretty low profile. But it does seem like he.

 

Kate Shaw There was a slightly awkward moment, the beginning where this realization kind of discussion, definitional discussion, and there was sort of a mention of forgiven loans sort of hung it sort of hung in the room. I thought maybe that’s why he sort of kept a low profile in this argument.

 

Melissa Murray I think he sort of slunk to the edges, chastened a little. But yeah, it yeah, they’ve got 99 problems, but a tax cut ain’t one. Yeah. So there we are.

 

Leah Litman [AD]

 

Melissa Murray Back to Billionaire’s Week at the court. In addition to more money, no problems. The court also heard Harrington versus Purdue Pharma, which, as we’ve mentioned before, also involved hella rich people.

 

Leah Litman I’m sensing a theme in the Supreme Court’s docket.

 

Melissa Murray I told you, it’s Billionaire’s Week. It’s like Shark Week.

 

Leah Litman Right? So this case is a federal government’s challenge to the bankruptcy settlement between Purdue Pharma and the many individuals and entities with claims against Purdue related to produce, distribution and marketing of OxyContin and the resulting opioid crisis.

 

Kate Shaw So this case arose as follows By now, people are probably familiar with Sackler, the Sackler family and their company, Purdue Pharma, and its aggressive and misleading marketing of the painkiller OxyContin. The human stakes here are just kind of beyond comprehension, as the federal government’s brief makes clear, between 1999 and 2019, nearly 250,000 people died of opioid overdoses. And that and the many of the related effects of this epidemic have given rise to many tens of thousands of lawsuits. So by 2007, Purdue and several top executives had agreed to pay over $500 million in fines for misleading marketing, which they continued to do. And also between 2008 and 2017, the Sacklers withdrew over $10 billion from Purdue, paying something like 40% of that in taxes.

 

Leah Litman And with a bunch of lawsuits against Purdue. There are over 3000 claims against Purdue at issue in this case, Purdue filed for bankruptcy and sought restructuring in 2019. The bankruptcy court approved a settlement and restructuring deal. The Sackler family agreed to contribute $6 billion to that settlement.

 

Melissa Murray The $6 billion came after the family withdrew $10 billion from the company.

 

Leah Litman Indeed.

 

Melissa Murray Just right.

 

Leah Litman Yes.

 

Melissa Murray Okay. Just checking. Notably, the individual members of the Sackler family are not parties to the bankruptcy proceedings in the sense that they themselves have not filed for bankruptcy. Still, a condition for the bankruptcy plan is that they are to be personally released from any liability related to OxyContin, which means that their personal wealth is protected. And again, ostensibly, some of this personal wealth might be derived from some of the funds that were withdrawn from the company between 2008 and 2017. Yes?

 

Leah Litman Perhaps.

 

Melissa Murray Anyway, leaving that to the side for the moment, the bankruptcy settlement plan is actually incredibly popular. A majority of the claimants voted in favor of the plan, which would distribute millions of dollars to victims of the opioid epidemic, as well as municipalities and states to deal with the after effects of the opioid epidemic in those jurisdictions. And it was approved by both the District Court and the Court of Appeals, which relied on a provision in the bankruptcy code that says a plan may include any other appropriate provision not inconsistent with the applicable provisions of Chapter 11.

 

Kate Shaw But the federal government, and in particular an entity within the Department of Justice known as the bankruptcy trustee, basically a watchdog for bankruptcy proceedings, who is appointed by the attorney general, then intervened and said the court didn’t have authority to release claims against the Sacklers who were not themselves declaring bankruptcy. The federal government warned that basically this whole agreement could pave the way for massive end runs around tort liability as rich individuals would escape liability by taking money out of a company, the company would then go bankrupt. The individuals could escape without having to pay out claims by basically holding payouts hostage, contingent on a court releasing individuals from liability. Justice Jackson really brought this out at oral argument. So let’s play that here.

 

Clip But you define necessary, as I understand it, as anything the sacklers require.

 

Clip Oh, not at all.

 

Clip No. No. So what is necessary mean, in your view?

 

Clip Well, in this case, what the bankruptcy court found was that without the releases, without the settlement that came in, the company would liquidate and victims would receive.

 

Clip Money because the sacklers wouldn’t give the money back. Right. Under those circumstances, they are they are conditioning their willingness to fund this estate on the releases.

 

Clip That’s correct, Your Honor.

 

Leah Litman Plus, the individual members of the Sackler family got a release for certain claims like fraud that they couldn’t have gotten released just by virtue if they had filed for bankruptcy. And several justices also brought that up.

 

Melissa Murray So the question that the court is answering is whether the bankruptcy code gave the bankruptcy judge authority to approve this plan, extinguishing the Sacklers personal liability. And here’s a rough cut overview of the argument, or at least some parts of the argument, because we’re not going to include clips for all of this. But the chief justice wanted to know why the federal government wasn’t invoking the court’s major questions doctrine.

 

Leah Litman I don’t know, Jon, because this case doesn’t involve an administrative agency making rules. And also that doctrine is totally made up and bullshit. You know, the major questions doctrine does not stand for the proposition that a party do, just like waving around whatever they say someone is doing. No, it does. This is the new major, major doctrines.

 

Melissa Murray Doctrine is basically like a little black dress. You can pull that out and wear that shit everywhere. It works in every occasion.

 

Kate Shaw Can I say something in seriousness? Is John Roberts. Okay? That question was so weird. It was and it was arguing for the federal government just kind of took it in stride and was like, well, no, we just going to do normal interpretation here. He didn’t say. Are you out of your mind? Like, well, talking about like you could have brought. What about federalism? What about sovereign immunity? It’s literally a completely unrelated and irrelevant doctrine. And Roberts just threw it in as though it were relevant. And I was, for a moment worried about it.

 

Melissa Murray I actually thought this is kind of a mean girls moment, like you like Gretchen Wiener or like, stop trying to make the major questions. Yeah, I agree. It’s not going to happen. I was like, I think I think it could happen. And he was pretty committed.

 

Leah Litman And Curtis Cannon was like no, bitch, stop. It’s not it’s never going to happen.

 

Melissa Murray It’s never going to happen Gretchen.

 

Leah Litman Yeah. But it wasn’t just the chief because Justice Kavanaugh also asked about the major questions doctrine. And Greg Garre, who was representing Purdue Pharma, was like, Go touch grass, Brad. It’s not relevant here. Like, what are you thinking?

 

Melissa Murray Justice Thomas suggested the fact that the parties could agree to a release of these claims against the Sacklers suggested that the bankruptcy court did have the authority to release the Sacklers without consent. And Justice Kavanaugh sort of piggybacked on the suggesting that bankruptcy courts have been doing this for decades. And indeed, there are a lot of big law lawyers who I think would agree that this is just how restructuring works in the context of mass tort litigation. People take money out of the company, reducing the rads and then getting released from liability on a personal level. And the bankruptcy just is the way that you handle mass liability for mass torts.

 

Kate Shaw Alito wondered what would happen to the Sacklers individual money was untouchable or unreachable, and whether this kind of agreement might be the only way to get that money to help pay claimants.

 

Leah Litman And that seemed to be gesturing at like the equities and practicalities of the case, which Justice Kagan repeatedly referred to rather explicitly. And these clips will play here.

 

Clip It’s overwhelming the support for this deal. And among people who have no love for the sacklers, among people who think that the Sacklers are pretty much the worst people on earth, they’ve negotiated a deal which they think is the best that they can get. Your position rests on a lot of sort of highfalutin principles of bankruptcy law. But another highfalutin principle of bankruptcy law is you’re supposed to maximize the estate and you’re supposed to do things that will effectuate successful reorganizations. And it seems as though the federal government is standing in the way of that as against the huge, huge, huge majority of claimants who have decided that if this provision goes under, they’re going to end up with nothing.

 

Leah Litman And as those clips and, you know, Justice Alito’s question, and I think Justice Jackson’s question earlier as well, suggested like these arguments had an odd feel to them in that the justices really all of them were quite focused on and willing to talk explicitly about the equities in the case.

 

Melissa Murray We kind of noted that that would likely be the case when we talked about this case in our term preview that, you know, the equities, the whole idea of fairness for those who had been wronged in this entire opioid epidemic would be something that would concern the justices. And Justice Jackson floated something that suggested that maybe the release of non parties would be allowed in some cases, but not necessarily in this one, given that the assets that the Sacklers hold privately are assets that actually came from the company. And this was the whole point I was making earlier about them withdrawing some of the funds from the company before it proceeded to bankruptcy. And so let’s play her here.

 

Clip But even if they could be authorized, Mr. Gary, as you said at the beginning, why would this be an appropriate situation to allow it? So Justice Kagan says they’re not putting all of their assets on the table. But my understanding is that not only are they not doing that, but most of the assets we’re talking about were originally in the company and that they actually took the assets from the company, which started the circle set of circumstances in which the company now doesn’t have enough money to pay the creditors. So even if there was a world in which categorically we would we wouldn’t say, you can never do these kinds of releases, why wouldn’t this be a clear situation in which we would not allow it?

 

Leah Litman So if those justices wanted to think about the equities of this case, Neil Gorsuch had a different idea for how to resolve it. So here is how Neil Gorsuch wanted to resolve this case.

 

Clip What was that case from the 16? Notification, except for that’s where the Court of Chancery enjoined third parties suits against third parties.

 

Leah Litman Quite fantastic. So I’m. I’m going to try to pod explain something to you, Neil. If you want to know whether the Modern Bankruptcy Code authorizes a particular kind of settlement in this massive tort litigation that involved a quarter million people dying and. Massive, fraudulent, aggressive marketing of a deadly drug. I’m just not sure that invoking the Tiffin case from the 1600s and the Court of Chancery is the way to do that. I don’t know.

 

Kate Shaw You’re missing the deep point he’s making, Leah.

 

Leah Litman I see. I see.

 

Melissa Murray This was an odd aside from our favorite textual healer. I mean, like, I would think the bankruptcy code would get him super excited, like, you know, parsing the bankruptcy code. Instead, we’re taking all the way back to the Star chamber.

 

Leah Litman He can’t remember when he should be applying textualism or originalism like he knows it’s wine, but it’s difficult for him to like, keep the true. Kind of sorted into their proper categories.

 

Kate Shaw I do think that whether because of the tavern case or not, Gorsuch is leaning against approving this plan. Right. He’s leaning, I think, toward siding with the federal government. Maybe Jackson too.

 

Leah Litman Maybe, yeah.

 

Kate Shaw But I think probably the rest of them approve the plan under these circumstances, even if they’re worried, broadly speaking, about immunizing some private parties. I think that this is a unique enough set of facts, partly because of the most of the factual grain is that you’ve been bringing out that they could Cabinet and approve this settlement here. So I think that’s my sort of soft prediction.

 

Leah Litman Yeah, same. So one other argument the court heard this week in Muldrow versus City of St Louis about how to establish unlawful employment discrimination under Title seven. The plaintiff employee in the case was transferred, she says, because of her sex. The Court of Appeals said that transfers don’t necessarily establish employment discrimination unless you show the transfer imposed some adversity on you like less pay or less convenient working conditions. The plaintiff says that’s not required since she didn’t want the transfer. She says a new position is less prestigious, even though it has the same rank and pay.

 

Melissa Murray This case is sort of unusual because I think there are two very different coalitions pulling for the petitioner here. Jatonya Muldrow So the obvious group behind Jatonya Muldrow are civil rights lawyers who have focused on the case because valid workplace discrimination are often dismissed in court because of the requirement that plaintiffs have to prove that they were actually injured or harmed by the employer’s action. So Jatonya Muldrow, who is supported by the Biden administration, maintains that Congress never intended to impose such a requirement regarding job transfers in Title seven. And so civil rights lawyers are all over this and supporting her for that reason. But interestingly, also supporting Jatonya Muldrow, or at least deeply interested in her prevailing here are those who are opposed to workplace DEI efforts. And as they explain a broad ruling that employees need not establish that they were injured or harmed by their employers actions could open the door to a lot of challenges to workplace DEI initiatives like mentoring programs or training programs for underrepresented groups. And they note that so-called reverse discrimination complaints, which have become more common since the Supreme Court overturned race conscious college admissions in SFAA versus Harvard. These could all be channeled through a wider window if Title seven is interpreted to no longer require the plaintiff to show injury or harm. So suddenly all of these kinds of claims could come through. And so given that this case provides an opportunity to build on students for fair admissions versus Harvard and to dismantle diversity in the workplace, it was perhaps unsurprising that the court’s discussion quickly devolved into a debate about affirmative action in the workplace.

 

Kate Shaw And here’s how that came out at argument. So right off the bat, Justice Kagan seemed to express some concern that petitioner and the federal government’s theory would be used to support such claims and that they were top of mind and of real concern to her. So let’s play that clip here.

 

Clip Are you saying that all discrimination is stigmatic injury? I mean, because you started with, you know, making people worse. I mean, there are differences and distinctions that people can make on the on the basis of protected characteristics that make people better off. Right. I mean, if I decide one day that, you know, every woman in my workplace should get a raise, I mean, that makes women better off and.

 

Clip That is correct.

 

Leah Litman And then Justice Jackson echoed that concern as well.

 

Clip And I guess I’m inviting you to think about discriminate against, as Justice Kagan was positing it. You know, she’s she’s highlighted a distinction between discrimination against someone that injures them versus discrimination that might not injure them.

 

Melissa Murray And it seems that both Justice Jackson and Kagan were right to be concerned because there is a whole 6 to 3 conservative supermajority that is apparently foaming at the mouth to allow Title seven to be used to take down DEI efforts. So first up was Amy Coney Barrett.

 

Clip But are you saying then if the employer wants to increase diversity in the workplace and so promotes, say, some black employees and they get better jobs, then that’s discrimination that poses.

 

Clip I want to answer that question, but I also want to say that that is is not posed by this case.

 

Clip I understand that. But it seems to me the answer you just.

 

Clip Gave Justice Kagan would logically apply.

 

Clip To that. Well.

 

Melissa Murray To be very fair here, Brian Wolfman, who teaches an appellate emersion clinic at Georgetown University Law Center and who is arguing on behalf of the petitioner, really did not seem to want to be the one to present the vehicle for challenging workplace g.I. Measure. So he really urged the justices, as you heard, to stick to the four corners of this case. But what are four corners when you could just blow through them and eviscerate DEI measures? So with that in mind, our favorite woke warriors, Justice Alito and Justice Thomas, also wanted to make sure that everyone knew that they to stand for workplace equality and against diversity, equity and inclusion. Here they are.

 

Clip I would say that all disparate treatment based on race, sex, etc. is. Wrong. How can you have discrimination that is perceived by someone? Who is it? You say that this is law enforcement and we need in this particular precinct more black or Hispanic officers. And so you are moved or transferred because of race.

 

Kate Shaw So glad they cleared up where they stood on that. Really?

 

Melissa Murray Like we did not know. I know. Like we were so confused about where Justice Thomas was on workplace DEI. All the edge of our seats.

 

Kate Shaw So there were also a couple of points in the argument when the justices started talking about separate bathroom requirements and grooming requirements, and I was having so much bostock oral argument PTSD. I don’t know about the two of you.

 

Leah Litman Yeah. Yeah, for sure. Melissa, kind of along the lines of what you were saying, it felt like during this argument, the justices like maybe Sam, Neil and Clarence were so mad they weren’t going to get to blow up the tax code and give their sugar daddies a tax break for the holidays that they were like, but please let me blow up some DEI efforts.

 

Melissa Murray Here’s a stocking stuffer. You no longer have to have women or people of color in the workplace.

 

Leah Litman Exactly. Exactly. They’re like, let’s let’s compromise, right? Like we’re into compromises now. This is mine.

 

Kate Shaw What a moderate court.

 

Leah Litman I know.

 

[AD]

 

Melissa Murray We need a palate refresher. A palate cleanser. Let’s. Let’s do some court culture. It was a really billionaire’s week. Was very traumatizing.

 

Leah Litman Yeah.

 

Melissa Murray It really was.

 

Kate Shaw It was a lot.

 

Leah Litman It was.

 

Melissa Murray Unless you were a billionaire, then it was exhilarating and amazing. But if you were not a billionaire, it was very alarming. So let’s do some court culture and be traumatized on a different valence. Okay? All right. So first up, I would love for us to talk about some of the developments in the state courts, which is where all good things seem to be happening these days, or at least again, good things is a very there.

 

Kate Shaw Is some weird shit happening in the state courts.

 

Melissa Murray Okay. You did not let me finish. I think I was going to clarify that. What I say good things. It is on a relative scale like compared to the Michigan is going on in the federal courts, what is happening in the state courts is comparatively better. So quote unquote good things.

 

Kate Shaw If there are good things, it’s happening in the state courts, but there’s lots of crazy stuff happening too.

 

Melissa Murray Of good things exist. It’s definitely not in federal courts, probably somewhere else anyway. So last week, the Indiana Court of Appeals heard oral argument in a case called individual members of the licensing board versus anonymous one. And this is a religious liberty challenge to Indiana’s abortion restriction. And we wanted to highlight it because we’ve had a lot of our listeners write in to ask whether an expansive jurisprudence of religious liberty, like the kind the court has been developing under the free exercise clause, could provide a way to challenge abortion restriction. So if, for example, someone was required to carry a pregnancy to term, could they then challenge that requirement by saying that doing so is inconsistent with their religious beliefs? I don’t think any of us really believe that this United States Supreme Court would apply its free exercise jurisprudence in a way that would provide individuals with a way to defend against or challenge abortion restrictions. But interestingly, some state courts have interpreted their free exercise and religious liberty jurisprudence to do just that.

 

Kate Shaw So one specifically, a trial court in Indiana held that Indiana’s abortion ban violated the state’s Religious Freedom Restoration Act since the act provided for abortions. In some cases, that is, in cases of rape or incest or IVF or for selective reductions, but not where abortion was required by an individual’s religious beliefs.

 

Leah Litman So an organization and several individual plaintiffs challenge the abortion ban. One of the plaintiffs had previously had an abortion because of a fetal anomaly and had also previously had an extremely difficult pregnancy. And she says she wants to have another child but doesn’t want to get pregnant so long as the state’s abortion ban could prevent her from getting an abortion, where her religion would counsel her to have one like where there is a fetal fetal diagnosis or where her life and health would be in danger.

 

Melissa Murray And the trial court’s ruling is on appeal to the Indiana Court of Appeals. And it sounded like the Indiana Court of Appeals might agree with the trial court’s ruling that the state’s abortion ban required exceptions under the state’s Religious Freedom Restoration Act. So here’s one clip where the judge seems to be questioning the state’s interests prior to viability. And that’s the period of time when a fetus could not survive outside of the womb. And the judge seems to be suggesting that by requiring an individual to carry a pregnancy to term, during that time, the state was requiring the individual to abide by a religious philosophical belief about life. And that didn’t count as a compelling interest the state could pursue in order to burden the individual’s religious beliefs.

 

Clip Where does the state derive its compelling interest in a fertilized egg?

 

Clip So, Your Honor, the state has a compelling interest in protecting that unborn child, Cheney called it even at the heart.

 

Clip Of how do we get to a fertilized egg being an unborn child if we don’t look to the Christian faith?

 

Clip Your Honor, this protections for unborn children have nothing to do with any particular religious significance. I think our.

 

Clip Science doesn’t call a fertilized egg an unborn child. Science has different ways of describing things as they move through development. Right? So we have a fertilized egg. Then you have a zygote at one week, then you have a blastocyst at two weeks and you have an embryo at 3 to 8 weeks. Then you have a fetus at nine weeks. Do you have a viable fetus at 23 weeks? So the state seems to be making a leap in calling a fertilized egg an unborn child.

 

Kate Shaw Here is another clip along basically the same lines.

 

Clip Is it possible to get to a compelling interest for a fertilized egg without reaching to religion?

 

Clip It is difficult, Your Honor. The the trial court found, based on the evidence before it, that the. When a human being comes into existence is not a factual question. It’s a question of religion or philosophy.

 

Clip And until viability, we can all agree it. Viability? Yes, sure. When the child can survive outside the womb.

 

Leah Litman And here’s a clip with one judge suggesting that maybe the U.S. Supreme Court says federal law doesn’t care about women’s health, but Indiana law might actually care about that.

 

Clip Look, let’s talk.

 

Clip About Cheney a little bit, though. You’re relying on a case from 1972 that allowed little protection for women until they were near death. Would you agree that society and mores have changed in regard to rights for women in the last 51 years?

 

Clip There there are always changes with regards to society’s mores. But I think the as Planned Parenthood observed at page 963, the U.S. Supreme Court has in fact embraced the views of our predecessors in Cheney that the compelling interest in this in protecting.

 

Clip That our Supreme Court didn’t in the June case that the Supreme Court left open the fact that our Constitution does protect women’s health.

 

Leah Litman I feel weird saying this, but go Hoosiers. I mean, like this was like really a stunning argument to listen to. And of course, you never know whether the judges are actually going to rule in this way. But having listened to it, it did seem like this is where they were leaning.

 

Kate Shaw With an evenhanded application of jurisprudence.

 

Leah Litman Exactly. exactly. Don’t know her. Wouldn’t you know her? I focus on the US Supreme Court.

 

Melissa Murray Yeah, that’s. There’s a little bit of shade there. Like, maybe they don’t believe in women, but Indiana does. Ladies, bring yourselves to the Hoosier State. Actually, don’t.

 

Kate Shaw I mean. Yeah, just a couple. A couple of these. And judges. I don’t know if that’s enough to do more into mass influx.

 

Melissa Murray The bar is in hell, Kate. The bar is in hell.

 

Kate Shaw Um. But actually that is a, you know, the sort of the drawing comparisons to the US Supreme Court is actually that is a good segway to an aloha that we wanted to extend to one of our live show destinations from last year, Hawaii. And that is because Justice Adams on the Hawaii Supreme Court, who we were lucky enough to see when we were in town for our live show released on honestly, pretty stunning concurrence, just excoriating originalism. And it was so powerful that we need to read some excerpts from it for you. So let’s do that now. I’ll start. Quote, Enduring law is imperiled. Emerging law is stunted. A justice’s personal values and ideas about the very old days suddenly control the lives of present and future generations. Recently, the Supreme Court erased a constitutional right. It recalled autonomy and empowered states to force birth for one reason and one reason only. Because the composition of this court has changed. The day before, the court cherry picked history to veto public safety legislation. Disturb the tranquility of public places and increase homicide. The same week it promoted a conjured idea hostile to judicial restraint. The major questions Doctrine. Whoo!

 

Melissa Murray Okay. So, Melody, just a little like maybe production tip. I think you should overlay ether that knots track on that. I think that would be amazing. Can we do that?

 

Leah Litman I don’t think so. But listeners, imagine it in your mind. That needs a soundtrack.

 

Melissa Murray I have one too, because this was a diss track for the ages. Like, I don’t know what they’re serving up in Hawaii. What is in that poke? Because they are killing it right down. So here’s another another banger. Quote, When justices solicit cases to test their way against durable personal jurisdiction principles, a state occupying one of the world’s most geographically isolated land masses pays attention. Time traveling to 1868 would unravel Hawaii’s long arm statute. Now settled law easily unsettles some justices feel precedent is advisory. Before the court’s hubristic originalist arrived, everyone got it wrong. Well, mostly everyone see Dred Scott versus Stanford enslaving human beings and denying citizenship based on race because the Supreme Court must interpret the Constitution, quote, according to its true intent and meaning. What? It was adopted. Closed parenthetical. All others Hall of Fame jurists to one else held egregiously wrongheaded views. Only public meaning at inception counts. Traditional methods to interpret the constitutional are unacceptable. Damn.

 

Leah Litman 911. I’d like to report a murder. Oh, and it somehow ends like on a more hopeful, optimistic note. So it concludes with, in Hawaii the aloha spirit inspires constitutional interpretation. And then the justice quotes Hawai’i proverb that says Hesitant walks the humble hearted. And he continues, A humble person walks carefully so they will not hurt others. The United States Supreme Court could use a little aloha.

 

Melissa Murray I said what I said bitch.

 

Leah Litman I know. I know.

 

Melissa Murray Wow. Wow. Justice Eddins Oh, my gosh. Woooh

 

Kate Shaw Justices on state high courts. But judges and justices on all state courts. Just take heed, right? Like there is no need for you to pretend that there is anything legitimate about the methodology this insane Supreme Court is using. And you can call it out, right? Like you not only can break from what they’re doing, but you’re certainly able to criticize them. But I’m not sure I’ve ever read anything quite that quite like that from the pages of a state court.

 

Leah Litman Justice Dalit, you know, in the Wisconsin Supreme Court had a long opinion, also criticizing originalism. That’s well worth a read. But the register in which this one is written is definitely on another level, I would say.

 

Kate Shaw But that’s right. Somebody needs to put together a compilation of the groups. And that’s right. So Dallas opinion and this one would be the first two entries, but I feel like there’s room for plenty more.

 

Melissa Murray I feel like let’s not leave out some of our favorite federal court jurors because Carlton Reeves.

 

Leah Litman Yes. Carlton Reeves

 

Melissa Murray His Dobbs District Court opinion has some diss tracks too.

 

Leah Litman Also in his post Bruin opinion.

 

Melissa Murray Yes.

 

Leah Litman So both of those should go in there as well.

 

Melissa Murray He’s an MVP on the best tracks for sure. I have to say, though, hubristic originalist, I’m honestly fed socks. If you’re not going to make a shirt out of that, you’re missing an opportunity. Now, for some Scotus carte culture, we actually got our first opinion of the term and it was an opinion and Atchison Hotels versus Laufer, that was the Tester standing case that we talked about on an earlier episode. And I think we predicted this. We said that there would be an off ramp here and there was. The court dismissed this case as moot, noting that Laufer withdrew her complaints after her lawyer was sanctioned. In other cases. Justice Thomas, however, would have gone further. He wrote separately to say he did not think that Laufer had standing to begin with anyway. And Justice Jackson wrote separately to say that she had doubts about the court’s practice of vacating, essentially undoing lower court opinions after a case had become moot, but that she would follow the court’s current practice in light of precedent.

 

Leah Litman Imagine that, a justice following precedent.

 

Melissa Murray Amazing.

 

Leah Litman Very notable.

 

Melissa Murray And Leah, you had some developments in that Jarkesy case.

 

Leah Litman Yes. So we did want to note that. Mr. Jarkesy.

 

Melissa Murray No, no, no.

 

Leah Litman No. Mr. Jarkesy’s lawyer, S Michael McCulloch, has updated his website. Now, we are happy to admit when we’re wrong. Everyone makes mistakes. In our recap of Jarkesy, we joked that Michael McCulloch, Jarkesy’s lawyer, his most significant contribution to the oral argument, was providing us with the correct pronunciation of Jarkesy. Apparently we missed the moment when Associate Justice Elena Kagan awarded Mr. McCullagh a gold star for his, quote sheer chutzpah in an oral argument on behalf of his clients.

 

Melissa Murray Don’t worry. If you had forgotten about that Gold Star moment, Mr. McCulloch’s PR team did not. It immediately went into overdrive, breathlessly touting on the firm’s website that Justice Kagan had acknowledged publicly Mr. McCulloch’s Chutzpah on behalf of his clients. And because we want to provide truth in advertising, we thought we would, for the record, just give you a replay of exactly what she said when she credited his chutzpah.

 

Clip What have been thought the hard cases Northern Pipeline? Sure. Grand Financiera Stern Oil states. These are all private people on both sides of the V. And nonetheless, we’ve held that public rights might be involved because their disputes are embedded in federal statutory schemes. So those are the hard cases. But we’ve never suggested that in a case where Congress has given an agency the power to enforce something and the agency is is bringing the charge, if you will, that that that, you know, that that’s just not it’s that’s settled.

 

Clip Well, it’s settled only to the extent no one’s brought it up in force. This issue since Atlas Roofing in this context.

 

Clip Nobody has had the you know chutzpah. To quote my people, to bring it up since Atlas Roofing this website.

 

Leah Litman Addition is what we call, in the words of my people, Hotspur squared.

 

Melissa Murray Cubed.

 

Leah Litman To infinity.

 

Melissa Murray I love a man who sees the glass as half full. Like he could have gone home with his tail between his legs, but he’s like, You know what? Elena Kagan said, I have chutzpah and I’m going to run with it. And I. Good for him.

 

Kate Shaw Congratulations to this man.

 

Leah Litman Yes. Next week we are going to have our annual Favorite Things episode. So we wanted to highlight that for our listeners after that. That is next week’s favorite things. We will be off for a week and then we are going to have a very, very special New Year’s Day episode in store for you.

 

Melissa Murray So before we go, I just wanted to remind you that last week on Pod Save America, our sister pod cast, I joined the fellas to talk about the latest in Trump trial update. So if you haven’t heard that episode, definitely download it while it’s hot. And we also looked ahead in that episode and the guys also looked ahead in that episode to what Trump’s second term might look like. So if you’re definitely into Doomscrolling, that sounds amazing. So check that out. And they also talk about the latest chaos to crack Congress. And I believe that chaos is known as George Santo. So it’s a really good episode, really rollicking. So check it out.

 

Leah Litman Diva down. Strict Scrutiny is a Crooked Media production hosted and executive produced by me, Leah Litman, Melissa Murray and Kate Shaw, produced and edited by Melody Rowell. Our associate producer is Ashley Mizuho. Audio support from Kyle Seglin and Charlotte Landes. Music by Eddie Cooper. Production Support from Madeline Heringer and Ari Schwartz. If you haven’t already, be sure to subscribe to strict scrutiny in your favorite podcast app so you never miss an episode. And if you want to help other people find the show, please rate and review us. It really does help.