In This Episode
Melissa, Leah, and Kate preview three Supreme Court cases up for argument this week. The cases focus on water rights on Indian reservations, the constitutionality of a federal law that prohibits people from encouraging unlawful immigration, and Jack Daniels (yes, the alcohol company) suing a dog toy company over a poop-related joke. Plus, a new venture from Leonard Leo provides some insight into what conservatives think liberals sit around doing all day.
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Leah Litman [AD]
Show Intro Mr. Chief Justice, may it please the court. It’s an old joke but when an argued man argues against two beautiful ladies like this. They’re going to have the last word. She spoke, not elegantly, but with unmistakable clarity. She said. I ask no favor for my sex. All I ask of our brethren is that they take their feet off our necks.
Melissa Murray Hello and welcome back to Strict Scrutiny, your award-winning podcast about the Supreme Court and the legal culture that surrounds it. We’re your hosts. I’m Melissa Murray.
Kate Shaw I’m Kate Shaw.
Leah Litman And I’m Leah Litman, and the band is back together once again to preview what the court has in store for us this month. But we add Strict Scrutiny, also has some special things in store for all of you.
Kate Shaw So first, one exciting nugget is that Strict Scrutiny is hitting the road for the next two weeks. We’ve got some special live shows set up for our next two shows. So stay tuned for those. And one of them,.
Melissa Murray Road trip.
Leah Litman Is it gonna be like Crossroads?
Kate Shaw Boats. Planes.
Melissa Murray Oh, my gosh, Who gets to be Britney? Who gets to be Britney? Who gets to be Zoe Saldana? I call Zoe Saldana.
Leah Litman Not Britney.
Kate Shaw I’m just gonna nod and smile and press on with the itinerary of our upcoming road trip. So the one that we’re going to mention right now is a live show that will happen on March 30th in Madison, Wisconsin, in advance of the huge, huge, huge state Supreme Court election that will be held that next week on April 4th. So, yeah, we are going to Badger Town. We’re going to break down the stakes of the election that will determine control of the Wisconsin Supreme Court. And, you know, along the way, it’s going to determine the future of things like reproductive rights and democracy in the state, among many other things.
Melissa Murray And before we go down to Badger Town, we have to prepare ourselves because Wisconsin is still cold, cold, cold in March. And so in order to get ready for that monumental Supreme Court race in that fantastic show we’re going to be doing in Madison, Wisconsin, we are first going to hit the road and actually get in an airplane and go to Hawaii. That’s right. Strict Scrutiny is going Hawaiian. We are going to be doing our next episode live from the University of Hawaii, Richardson School of Law. And we are going to be joined by some very special local guests. So you do not want to miss it. That’s next week. And then it’s on to Badger Town.
Leah Litman Aloha, bitches.
Melissa Murray Aloha, bitches. Exactly. In addition to those alohas, we also wanted to share with you that we’re going to be planning another special episode for the week after the court finishes hearing arguments in May. We are going to be doing our first strict scrutiny listener grab bag episode where you submit your questions to us and we will answer them live on the show. We will provide you with details about how and where you can submit your questions and any other material you’d like us to comment upon. And we are going to take all of it in and we’re going to answer those questions, maybe show and hear a little bit of the additional material that you might submit. And we will put that all together in a very special, listener focused episode. So again, stay tuned for all of those details.
Kate Shaw But for now, on to today’s show and before we turn to previewing the cases that the court will hear next week, I actually wanted to take a beat to add a quick addendum on the epic student loan arguments that we discussed in our February recap. So you may recall that during those arguments, several of the conservative justices with Chief Justice Roberts in the lead were really fixated on a hypothetical lawn care company entrepreneur who decided to forgo college, take out a bank loan instead of a student loan, and then not have that debt forgiven. In contrast to these presumably undeserving student borrowers, several astute listeners noted, both by email and on Twitter, that there were glaring problems with that comparison, even beyond those that we identified on the show. First, if the lawn company needed to file for bankruptcy, that debt is dischargeable. Student debt generally isn’t pretty significant distinction between the scenario and the actual situation of those affected by this debt relief plan.
Melissa Murray And in addition to the discharge ability of those loans and bankruptcy, other listeners noted that there was a lot of COVID relief that was actually targeted specifically toward small business owners. So ostensibly, the owner of said hypothetical lawn care business could have applied for and likely would have received targeted relief that included loans that were wait for it forgivable and if why? Some members of Congress also took advantage of some of these loans as well. So they were definitely available. So the predicate of all of these questions that the chief Justice was offering was that there was some kind of unfair favoritism in singling out student borrowers for relief. And again, this sort of elitism, strains were all over this. But again, as Kate points out, this hypothetical might be even more indefensible than even we acknowledge. And so we’re really appreciative to our listeners for adding those important highlights that round out that particular discussion.
Leah Litman Okay. So now on to the previews for what the court will be hearing in the March setting. The court is hearing some really interesting and important cases throughout the march sitting in. Including the first week. And they actually have a pretty full sitting for once this term. But we are just going to focus on previewing three cases from the first week. So up on the first week, the first case we wanted to talk about is United States versus Hansen. And that’s a case about the constitutionality of the federal law that prohibits people from encouraging or inducing unlawful immigration. Specifically, the question is whether the statute violates the First Amendment, which among other things, you know, safeguards the freedom of speech. And the challenge in this case is what’s called a facial challenge. That is, the defendant is arguing this statute can’t be enforced against anyone. And the defendant is arguing both that the statute can’t be enforced against anyone and that it violates the First Amendment because the statute is what’s called overbroad, meaning it criminalizes a substantial amount of speech that is actually protected under the First Amendment.
Kate Shaw Now, if the issue in this case sounds familiar, it should, at least for our listeners who’ve been with us since the first season of the pod. So way back in the 2019 term, the court took up the same issue in the United States versus Sineneng-Smith, but it ultimately decided not to resolve whether the statute was in conflict with the First Amendment because the court said the Court of Appeals had brought up that issue on its own rather than waiting for the parties to do so. And so the Supreme Court basically punted on the question of whether the statute was constitutional. The defendant in this case, Hansen, is supported by a pretty strikingly diverse range of amicus briefs. So those are the friend of the court briefs filed by people other than the parties to the case, but who have some interest or expertise they want to bring to the court’s attention. And those include briefs by the libertarian Cato Institute, the city and county of San Francisco, the Reporters Committee for Freedom of the Press, a group of religious organizations and others groups that are not always on the same side of a case. But in this instance, they are, you know, speaking with one voice in support of the position taken by Hansen that this law is unconstitutional.
Melissa Murray And a key issue in the case will be whether the court adopts what’s known as a narrowing construction of the statute. So basically, this is when the court says, yes, the words of the statute might suggest one meaning, but we’re going to say that the statute doesn’t cover a bunch of things, because if the statute did prohibit those things, then it would be unconstitutional. So on this account, the court might narrow the statute for the purpose of saving the statute from being unconstitutional. Now, the statute itself makes it a felony to, quote, encourage or induce an alien to come to enter or reside in the United States, knowing or in reckless disregard of the fact that such coming to entry or residence is or will be in violation of the law. And the government asked the court to interpret the statute to prohibit solicitation or facilitation, basically aiding and abetting violation. So where you are trying to encourage somebody to do something that specifically violates the law.
Leah Litman But the big question in the case will be whether it’s okay and the court thinks it’s appropriate for the court to read into the statute a bunch of limitations that aren’t explicitly or specifically mentioned in the words of the statute itself. When this issue was up at the court last time in Sineneng-Smith, the chief justice, joked about that aspect of the case, whether the court would be basically rewriting the statute rather than interpreting it here in this exchange with Mark Fleming of WilmerHale, who was representing the defendant in Sineneng-Smith.
Clip We interpret it as Congress picking up, in the government’s view, solicitation, the common definition of solicitation, not including the exceptions, etc., because this is a common kind of thing. You say something like that. That’s it. That’s the question, because that’s what’s floating around in my mind. I think, Your Honor, if you write that opinion, you’d have to add one more sentence, which is the judgment below is affirmed. But as you add that sentence, we would be fine with it, with one exception where we’re one question, which is the notion that there might be exceptions to the rule, that solicitation has to be limited to a solicitation of criminal conduct with specific intent on the part of the defendant, that the criminal conduct to be committed. If that would be outside, would we have to get that passed by the Senate and House and then signed by the president before we could put that that many changes to the statute? Absolutely. Mr. Chief Justice. And the fact that you would need to do that in order for it to be constitutional is a good indication that Congress did not mean for the statute to be read that way, which is why we think the easier opinion to write is an opinion that says we look at the text, we look at the context, and there’s nothing in this subsection four that suggests that Congress meant the kind of limited statute that Justice Breyer just took.
Kate Shaw Now, the last time this question was at the court in Sineneng-Smith The court was really interested in an amicus brief filed by UCLA law professor Eugene Volokh, who argued that the statute could not be upheld as a solicitation statute, because solicitation applies only where you’re aiding and abetting a crime and many kinds. Unauthorized emigration or unauthorized entry is not a crime. It is just subject to civil, but not criminal penalties. And here is our fellow Cassandra, Steve Breyer, invoking that brief from that last oral argument.
Clip I want to be sure you get an answer to this question, though. I slightly. You’ve read the briefs, obviously, and they have a long, long list of horribles of which this is just a few, you know, that you’ve heard this morning. But Professor Volokh’s brief gets rid of most of these horribles in a simple way. He lists the conditions under which the court traditionally has said a solicitation of a crime statute is constitutional. But the first condition, and most important, is that what you are soliciting is a crime. And it’s easy to read this when they use the word law. You mean in violation of criminal law? Okay. And that would get rid of most of them. And I think maybe all of them, I don’t know. But I know that sometimes an alien who enters the United States is committing a crime. All right. But I can’t think of any instance in which residing in the United States is a crime.
Melissa Murray Now, perhaps because they can take a hint, the defendant’s brief contains an entire section on how this statute prohibits encouraging civil violations, which is out of whack with how we usually think about solicitation statutes. So, again, basically enshrining this Volokh argument into their own briefs before the court.
Kate Shaw At the oral argument in Sineneng-Smith noted free speech enthusiast Sam Alito was not surprisingly skeptical of this position because, of course, he was. He brought up a hypothetical about someone who encourages another person to commit suicide, and committing suicide isn’t criminal. But he said the other person who does encourage the act could still be subject to prosecution.
Melissa Murray Justice Alito is likely to have something to say in this oral argument. Kel suprise. But also at the oral argument in Sineneng-Smith The court was very concerned about some specific applications of the statute. So here the chief Justice and Justice Sotomayor voicing some of these concerns.
Clip Well, there are reading, you know, a grandmother whose granddaughter is in the United States illegally tells her granddaughter, you know, I hope you will stay because, you know, I will miss you. Things will not get better if you go back. So I encourage you to stay that. That would be illegal under the statute, right. Mr. Pagan but it has been used, according to the Amnesty International brief, and DHS admitted that there was a watch list at the border in which these charitable organizations, people who were giving legal advice at the border, all sorts of individuals were being watched because they potentially violated this encouragement provision and inducement provision. So you’re saying there’s been no absolute there’s been no prosecution except Henrickson, which was a by a woman who hired a housekeeper who told you the absolute truth. If you go back, you’re not. If you go if you return to your country, you may not get back. Absolutely true statement. And she was prosecuted for that true statement as an encouragement and inducement for the housekeeper to stay here. But if you say this has no chilling effect, is that accurate?
Kate Shaw And once again, no surprise, these concerns featured prominently in Hansen’s brief, which opens with as a second sentence. And I’m going to read this at length because I think it’s worth people hearing. This statute makes it a crime for a grandmother to say she doesn’t want her undocumented grandchild to leave her a doctor to advise her patient with an expiring student visa that the patient needs medical treatment provided in the United States. A priest to inform a non-citizen parishioner whose employment authorization is ending about church, child care and pantry resources that would support her remaining and a lawyer to counsel an out of status non-citizen that she has the ability to become a lawful permanent resident if she does not leave the country. And those descriptions, I think, make really clear the important on the ground implications of this case as well.
Melissa Murray And in keeping with that, be the Henderson case that Justice Sotomayor alluded to in that colloquy with Eric Pagan involved someone who gave advice to her undocumented housekeeper about how if she stayed in the United States without authorization, she might have problems getting authorization to stay or later to return. So, again, we have seen a lot of these issues play out in front of the court before, but without an actual decision in Sineneng-Smith. So this will be a second go around with a very differently constituted court. But we wanted to give you a sense of some of the issues that have been in play and that will be in play, and we will see how this newly constituted, young and restless court will respond to them.
Leah Litman So the next case we are going to preview from the first week of the march sitting is Arizona versus Navajo Nation, which is a very important federal Indian law case about the Navajo Nation’s ability to access water and their ability to enforce the federal government’s obligation to provide them with access to water. So specifically, the nation is asking the Department of the Interior to determine whether the little Colorado River, which runs through the Navajo Reservation, is sufficient to meet the nation’s water needs. And if it is not sufficient, the nation says the federal government has to develop a plan to supply the nation with water from other sources.
Kate Shaw The case presents two questions, one of which sounds pretty technical, so we’re going to try to unpack them here. One issue is whether the federal government, under a series of treaties with the Navajo Nation, as well as the federal government’s constitutional relationship with the nation, owes the nation a duty to address the nation’s needs for water and whether any such duty can be enforced in court. The federal government argues that the government has only those duties that it has expressly accepted. The nation points out that the treaties between the federal government and the nation contemplate the provision of water to the nation. That is, it’s hard to have a reservation, a place where you can live and work and meaningfully under the treaties. The reservations were supposed to support farming without water. Several amicus briefs focused on the established history of the federal government undertaking a duty to provide water to native tribes under a line of cases stemming from the 1908 decision in winters versus United States. And in winters, the court considered the riparian a fancy word for water rights of tribes and held, among other things, that when reservations were created by the United States government, they were created with the intention of allowing indigenous settlements to become self-reliant and self-sufficient. And because reservations need water to support, for example, agricultural self-sufficiency. The court concluded that riparian rights were reserved for tribes as an implication of the treaties that created the reservations.
Leah Litman And in some ways, the issue in this case relates to a broader theme of this term and previous ones, and that is whether the court is going to narrow the availability of remedies in ways that could really jeopardize the existence and substance of certain rights and effectively make those rights unenforceable. Because here, you know, if you say the United States has a duty to preserve tribal water rights, but not to say secure or enforce those rights, you know, the duty to preserve water rights isn’t all that meaningful. Likewise, if tribes can’t actually enforce the. United States duty to preserve water rights. You know, that also makes that duty and any accompanying right much less meaningful.
Melissa Murray Another issue in this case is assuming that there is a duty or even if there is a duty, whether the district court and the Court of Appeals have the authority to resolve the case in the way that they did in light of the Supreme Court’s order. In another case, Arizona versus California. This was a long running, original jurisdiction case about water rights in the lower basin of the Colorado River. And for those of you who might not remember original jurisdiction cases or cases that are filed at the Supreme Court as a trial court, there usually cases between states, for example, here, Arizona, in California, and that’s why they’re filed in the U.S. Supreme Court as a trial court, basically in Arizona versus California. The court said that Congress apportioned the mainstream of the Colorado River and left to the different states, the tributaries and the lower basin. And the federal government and the states allege that the relief in Arizona versus Navajo Nation would effectively require the federal government to do something with the mainstream waters that the court prohibited from doing in Arizona versus California. So there’s that separate issue as well. I’ll just take a beat on this and say, I think this is going to really vex Neil Gorsuch because of his commitment to textualism. And there isn’t, I think, an explicit right to water. It’s an implied kind of right under Winters. And then he’s the guy who really cares about Native American tribal rights. And that’s the big conflict here. And so I’m going to be really interested to see what he does unless oral argument or if his head is just going to actually explode.
Leah Litman I feel like another consideration is right, the importance of historical practice and precedent, which I also think supports the tribes. Those are similarly like not considerations that Neil Gorsuch is exactly known for caring about. But, you know, we will see how the different interpretive moves and like underlying substantive considerations here that, you know, I think are partially traceable to like the constitutional relationship between native nations or tribes and the federal government, you know, also kind of cut in favor of the tribe. So, yeah, I just I have no idea how this is going.
Kate Shaw And I actually I’m not even sure he’s going to be that cross pressured here, because I do think that his otherwise pretty categorical commitment to the text and nothing but the text is actually subject to something of an exception in these cases where I do think he’s willing to concede that we’re talking about treaty interpretation like long settled practice and embedded understandings that sort of flow from the relationship between tribes in the federal government actually are significant and bear legal weight even if they’re not in the text of treaties themselves. And so here I actually if I were going in, I would feel, you know, relatively confident that I had a good chance of getting Gorsuch if I were representing the nation in this case. So I don’t think this is necessarily a head exploding case for him. But obviously to be seen.
Leah Litman And I feel like just on this score, there’s a really fascinating forthcoming paper by Professor Greg Ablavsky at Stanford Law School, who’s been a previous guest on the show, and a student at Stanford Law, Tanner Allread, about the interpretation of the Constitution and including, you know, how native peoples debated and interpreted the Constitution around the time of the founding, which I think, you know, supports incorporating a broader corpus of materials like, you know, embedded understandings, historical practice in order to incorporate those perspectives. So that could become relevant as well.
Kate Shaw Good timing on that paper. Definitely. So pivoting to the next case that we wanted to talk about, a very different kind of case from the first week of the March sitting, and that is Jack Daniel’s Properties versus VIP Products LLC, a trademark case. And the case is about whether the humorous use of another entity’s trademark can be subject to a trademark infringement claim and whether humorous use of a trademark received some heightened First Amendment protection or is instead subject to just the usual standard for trademark infringement, which just asks whether consumers are likely to be confused by the mark.
Melissa Murray Now, that all may sound very complicated, so the facts here are really going to be clarifying. And again, most listeners are likely familiar with Jack Daniel’s, which produces whiskey. We are more familiar with it, but less well-known than Jack Daniel’s is the dog toy known as Bad Spaniels. So this is a dog toy in the shape of a whiskey bottle that has some similar markings to a Jack Daniel’s bottle. Whereas Jack Daniel’s says old number seven brand, the dog toy says old number two on your Tennessee carpet. Get why it’s funny. Okay. And while the whiskey bottle says it’s 40% alcohol by volume, the toy says that they are 43% poo by volume and 100% smelly. Again, see why it’s funny? This is all shaping up to be the most chaotic oral argument of the term. I use too many poo references and scatological humor to escape not having utter chaos.
Kate Shaw I’m not sure if topping them all is possible. I mean, in terms of chaotic arguments, it’s going to be really. It’s very different kind of chaos.
Melissa Murray I’m not saying its in Black Santa. I mean, when Black Santa smashed the conveyor belt, to coin a term from Prince Harry, but this is approaching conveyor belt quality. It’s going to be chaos.
Leah Litman Yeah. So we’ll get into some of the things that the briefs say that I think suggest this argument could be a roaring good time. But as Melissa suggested, you know, we are a little familiar with the bad Spaniels toy concept, and I feel somewhat personally invested in this case as a dog owner. You know, my dog, Steve, has a dog toy that is a chew lu lemon bag that has some adorable I think so, you know, similar coloring and font as a Lululemon bag. She also has some of these alcohol related dog toys. You know, I’m a Moscato fan. She has a dog toy that says pup cake Moscato. That’s a dog toy shaped like a wine bottle inspired by Cupcake Moscato.
Melissa Murray But are you confused about whether or not you could drink from that dog toy? No
Leah Litman So it turns out.
Melissa Murray You’re not.
Leah Litman I am not confused. I have never tried to either take Stevie’s chew lu lemon toy or, you know, chewy vuitton bag out to function as a purse. Nor have I attempted to consume her pupcake moscato bottle for whatever it’s worth.
Melissa Murray You know, it’s a parody. You know it’s a parody. And you are not confused, right?
Leah Litman No
Kate Shaw Okay, just sidebar. Your dogs can like they take and they don’t destroy these really cute sounding toys. Like Shadow is a beast. People sometimes give her dog toys. And in 90 seconds, like, there’s fluff all over my carpet and they just they die. She just murders them immediately. No?
Leah Litman Stevie will tear apart rope toys. She’ll like, tear apart the threads, but basically she doesn’t destroy other toys.
Kate Shaw I think we just need, like, some sturdier toys.
Leah Litman Like one of those Kong knot toys. Those are really good.
Melissa Murray Yeah.
Kate Shaw Yeah, she really I think she’s ripped those up, too. Anyway, sorry. The gist of this is the toy maker say these are humorous parodies that get First Amendment protection. The Ninth Circuit agreed with this. Jack Daniels obviously does not.
Melissa Murray Okay, Can I just stop here? And like an alcohol company, literally with all the alcohol at their disposal, not having a sense of humor about yhis, you really like have a drink and then contemplate.
Leah Litman That while they write. Jack Daniels maintains they do have a sense of humor. And Jack Daniels is represented by Lisa Blatt. And, you know, continuing on with our predictions about what might happen in this argument, I think there will be poop jokes and poop references. So just to take this passage from the brief, which I am now going to quote and I quote, Jack Daniels loves dogs and appreciates a good joke. That one’s for you, Melissa. But the brief continues. Jack Daniels likes its customers even more and doesn’t want them confused or associating its fine whiskey with dog poop. Poop humor has its time and place, particularly for toddlers and young children.
Melissa Murray Are they drinking Jack Daniels? Like, what the fuck is this brief?
Leah Litman Well, this brief does include an extended poop section, so maybe, maybe I’ll. I’ll read some of this. So, quote, The poop emoji delights many of us, as do poop related books for children, e.g. Professor Poopy McDougal Do the kids book of poop. But poo poo humor is not for everyone. And in the wrong setting, it can kill the mood.
Melissa Murray I’m sorry you cannot put a passage like this and disclaim that you are not above a good poo joke and then file this lawsuit. I’m sorry, but like you’re. You protect your mark. But then don’t say like you. Listen, we love a good joke and we think this is funny, but it really crosses the line here. And our customers literally can’t tell the difference between a dog toy and the possibility of poop and fine whiskey. I this is insane.
Leah Litman I mean.
Melissa Murray And who was the associate that had to go research.
Leah Litman All of the poop .
Melissa Murray Professor Poopy McDoodoo? I know.
Leah Litman Poop books.
Melissa Murray I mean, the person’s like, I cannot believe I went to law school and I can’t even discharge my student debt. And now I’m doing this, like, amazing.
Leah Litman You know, if you think the brief kind of kills the mood and, you know, goes a little far in focusing on dog poop, brief side note slash preview, you know, we will talk at the end of the show about Fifth Circuit Judge Kyle Duncan’s temper tantrum and extended conservative victimization tour. But one of the things that esteemed member of Article three did was to say in an interview after the fact that the Stanford Law student protesters behaved like, quote, dog shit. So maybe this is like a dog shit themed episode. I don’t know.
Melissa Murray I think everyone needed a drink, right? Everyone needed an old fashioned. Okay. So again, in keeping with this defense of the mark, the brief also rattles off some fun hypotheticals and examples of other parodies that. But are not that funny. For example, the fact that there are knockoffs like UGH boots. As in u-g-h. Like ugh. Or Adios sportswear, unlike Adidas. That may be funny, but may also confuse people. And of course, there are marijuana infused candies or foods like the marijuana infused double stuff, Stoney O’s cookies that may also confuse those who consume Oreos.
Leah Litman The brief also lists the following examples of parodies that have been enjoined by courts. One is a white powder candy that supposedly resembles cocaine packaged in a plastic container resembling a Coca-Cola bottle. Melissa’s laughing. I mean, you know. And then there are pornographic.
Melissa Murray I mean I see why those might be enjoying it.
Leah Litman Well, I haven’t even gotten to the porn because there is apparently porn that imitates Ben and Jerry’s trademarks. And it’s.
Melissa Murray Like, what Leah?
Leah Litman Okay.
Melissa Murray What are these porn flavors?
Leah Litman Obviously, I was going to be made to read this. Um.
Kate Shaw But wait do we need to give listeners with kids in the room, just like fast forward 30, 60 seconds. Little warning.
Melissa Murray FYI this is an earmuffs moment.
Leah Litman Earmuffs children.
Melissa Murray We didn’t give an earmuffs warning for Kyle Duncan and the dog shit comment, but we are going to give you for this. So. Okay.
Leah Litman So. There’s Hairy Garcia, Late Night Snatch. New York Super Fat and Chunky, Peanut Butter D Cups and more. So, you know, this argument is trending.
Melissa Murray Boston Cream Thigh. Boston Cream Thigh may be the best.
Leah Litman This argument may be trending toward the NC 17, but you know that’s that’s also in the brief.
Melissa Murray Again, pour out some Jack Daniels for the associate that had to identify all of these and then document it in this brief.
Kate Shaw I mean I think that the combination of the subject matter or some of the briefing choices and the identity. Lisa Blatt, the lawyer arguing the case means there’s going to be a wild ride. And since we’re on a little bit of a nostalgia tour in this episode, I thought about during our first year of doing the podcast, we talked about Lisa Blatz argument in the very first case that the court heard remotely when COVID shut things down and that case was PTO versus Booking.com. Lisa was arguing that Booking.com could be trademarked, even though dot com is obviously a commonly used and generic phrase when used independently. And in that case she had this example that we will play here.
Clip I just want to say one thing about the. Government’s making fun of the Cheesecake Factory. Crab house is not a literal house where crabs live. They’re actually dead when you eat them. And the government thought crap house was generic. So if you go down this road of thinking that certain words are off limits, I just think you’re creating a real mess that’s very unstable unprincipled and unworkable and unclear.
Kate Shaw That was good. That was funny. We are hoping for some funnies this go round, too. But again, the question in this case is whether these humorous parodies are entitled to First Amendment protection and whether it is harder to establish trademark infringement when you were dealing with a parody like this.
Melissa Murray So Jack Daniels is arguing that limiting the Lanham Act would infringe its First Amendment rights to expression since the company’s name and the design of its bottle conveys messages as well. Now the case turns in part on how the court reads its previous decisions in Campbell versus Acuff-rose Music Inc, a 1994 case which considered whether to live cruise parody of Roy Orbison Pretty Woman, was fair use. The court said it could be fair use and that it might be easier to establish that it was fair use and not trademark infringement since it was a parody. But via the Foundation for Individual Rights and Education had a really good amicus brief supporting the dog toy company that emphasizes the importance and frequency of parodies on college university campuses. And so interestingly, they argue that maybe this is a big part of sort of university First Amendment culture that cannot be stifled and should not be stifled. In contrast, the federal government is supporting Jack Daniels.
Leah Litman [AD].
Melissa Murray Pour one out, as it were, for the March sitting. That’s going to be really fun. I do think it is the perfect sitting for a drinking game. Like how many OG references to Sineneng-Smith you can hear in a single argument and how many references to dog poop. I think it’s just going to be amazing. But you know what’s really amazing, Kate?
Kate Shaw What? Is it that we’re going to be in Hawaii? And we can actually do some drinking while some of these cases are being argued because that’s pretty amazing.
Melissa Murray I think that’s going to be amazing to truly be in Hawaii. It’s probably going be like five in the morning, three in the morning when we’re listening to these. And I think we definitely have to drink during that.
Kate Shaw Agreed.
Melissa Murray So that’s going to be amazing. But what’s also amazing is that we have so much court culture to catch up on. So it’s time. It’s time for that.
Kate Shaw It’s time. So some of this is a little bit like we’re catching up on things that happened a little while ago because there just been so much breaking news. But we did want to mention that we are finally getting opinions out of the court. The court waited a very long time before beginning to issue its first actual merits, opinions of the term, but they are now coming. And we wanted to briefly mentioned that Justice Jackson had her first opinion for the court a few weeks back. That was a unanimous opinion in Delaware versus Pennsylvania, a case we briefly previewed about what should happen to abandoned property where the property is intangible and multiple states have plausible claims to it. The property here consisted of prepaid money orders which were sent, but which nobody ever picked up. And Justice Jackson’s again unanimous. That’s pretty common that a new justice will get as their first assignment a relatively straightforward, unanimous opinion that happened here. And her opinion concluded that a federal statute called the Federal Disposition Act governed. And so the abandoned proceeds should go to the state where the products were purchased. And there’s the one thing I wanted to flag about the opinion was that I said it was unanimous and it was except for part four B, which was a part of the opinion which talked about legislative history and which pressumably.
Leah Litman The horror. Wow.
Melissa Murray This’ll be interesting for Navajo nations.
Kate Shaw Yeah. If there well. If there’s legislative history, I’m not even sure if there is, but I think as a going forward signal. So just to say what happened. Justice Thomas, Justice Alito, Justice Gorsuch and Justice Barrett, very performatively did not join that part of the opinion. So the beginning of the opinion says they join all but part four B. Nobody wrote separate.
Melissa Murray Legislative history. I don’t even know.
Kate Shaw Exactly. And, you know, they didn’t say that was why they weren’t joining, but presumably that’s why they didn’t join. You know, they didn’t write separately to explain. But this is a very classic Justice Scalia move. He would often withhold his agreement from some subset of an opinion, sometimes from like a single sentence or a footnote in an opinion. But actually, since he left the court, there hasn’t been that much of it. But this made me think that practice may be coming back.
Leah Litman We also got an opinion in Bitner versus United States, which was about the kinds of penalties that the federal government can impose on people who fail to report information about foreign bank accounts that they maintain. And it was a weird line up. But by a 5-4 vote, the court held that the penalty is attached based on, you know, the failure to file a form. So even if the form didn’t include information about several bank accounts, the penalty is attach on like a per report or per form basis rather than a per account. You didn’t mention basis and it was a 5-4 opinion, but a pretty odd lineup. So Justice Gorsuch wrote the majority opinion with Justice Jackson joining the opinion in full and the Chief justice, Justice Alito and Justice Kavanaugh joining except for one part. And Justice Barrett wrote the dissent that was joined by Justices Thomas Sotomayor and Kagan and the part of the opinion that only Justice Jackson joined in the majority is a really interesting and important section that suggests an interpretive principle known as the rule of law, which I’ll explain in a little bit applies to statutes that impose penalties. And the rule of Leonetti basically says if a statute could be interpreted no two ways, the court should adopt the approach that is not favorable to the government and is favorable to the criminal defendant or civil defendant, you know, reflecting some approach of leniency. And only Justice Jackson joined that portion of the opinion. And I think that that’s just, you know, an interesting point as far as, you know, the trajectory and some of the shared views that she and Justice Gorsuch might have going forward.
Melissa Murray I just want to highlight, we did kind of call this particular coupling when she first won on the bench, like people were talking about, like what she just sort of slot in to Breyer’s old spot, what would be the new allegiances? And we said that there could be some real opportunities for some strange bedfellows coalitions with her and Gorsuch, who also has a sort of libertarian streak in the criminal justice area. We also thought Sotomayor might be with her on some of these. So, you know, maybe we missed the ball on this one with her, but this is not surprising. I think we again were Cassandras on. This one. And now for some court culture. First of all, we want to draw your attention to a recently posted social science paper entitled Let me Just Interrupt you. The paper is authored by Erica Kai and Keith Gupta, Kathryn Keith, Brendan O’Connor and Douglas Reiss. And it is a longitudinal study of Supreme Court arguments that span over four decades, where the researchers found that on the court, female advocates are interrupted more frequently than male advocates and that the gender effect dwarfs other influences on interruptions like perhaps ideological alignments. Very surprising to learn that on the court, women get interrupted more than their male counterparts. Actually, not surprising. It’s actually entirely consistent with other studies that we’ve highlighted on the podcast, including the study by Tonya Jacoby and Dylan Schwitters that also talked about the interruptions on the bench by male justices of their female colleagues.
Kate Shaw And this particular study uses as its opening example, an exchange that we previously highlighted on the show, and it involves Sam Alito being a complete jerk to solicitor general lager in the United States versus Texas case argued last term not the one but the same name argued this term. This was the United States versus Texas SB eight case. So why don’t we play that clip here?
Clip Well, I certainly acknowledge, Justice Alito, that an injunction that would bind state court judges is extremely rare. It’s not unheard of. And I think in the unprecedented facts of this case, it’s appropriate relief for judges.
Clip Of the new age. Let me just interrupt you. Judges have been enjoined from performing unlawful acts.
Melissa Murray We’ll post the paper in our show notes online. So if you want to take a look at it, you can do that. But the second thing I wanted to call attention to in court culture is a New York Times story a couple of weeks ago on educational homogeneity at SCOTUS and particularly among the ranks of the clerks. As the Gray Lady noted, it’s not just that the justices hail from only a handful of law schools or that their clerks hail from only a handful of law schools, and Harvard and Yale are usually predominant among those law schools. It’s also that attending an Ivy League university for undergraduate and Harvard, Yale and Princeton stand out here, is especially predictive of one’s future employment as a Supreme Court clerk. So the ranks of the clerks already quite rarified, not only reflect a kind of homogeneity, an educational institution in terms of law schools, but also in terms of undergraduate institutions. And this prompts a couple of questions. So, one, this is gross, but not entirely unexpected. It is, I think, this underlying sense that going to an Ivy League college and specific Ivy League colleges is some kind of Wonka golden ticket that will just open all kinds of doors for you. But I think it is that sense that it is a golden ticket that is really animating a lot of the grievances around affirmative action and have fueled the antipathy for affirmative action. So it’s not that folks are losing their minds or not entirely, that folks are losing their minds because black kids are going to some random state university. It’s always been this lingering anxiety that the best opportunities, the most important opportunities are being redistributed ostensibly to the undeserving and not to people who should have them, as it were. So that piece was in The New York Times February 6th, 2023.
Leah Litman And we should say the piece was actually reporting on the findings of a study that was done by three law professors, Tracy George at Vanderbilt, Albert Yoon at Toronto, and Mehta Gulati at the University of Virginia.
Melissa Murray Wahoowa. Our third snippet of court culture involves one of our favorite justices. Ketanji Brown Jackson was recently inducted into the Miami Palmetto Senior High School Hall of Fame, and it was reported on Twitter by Katie Phang, who is a host of her own show on MSNBC. And she got to take a picture with Justice Jackson at the ceremony. And it’s like just super cute. Like her high school is so proud of her. Of course they are. Should be. And we are proud of her, too. So congratulations, Justice Jackson, for making it into the Miami Palmetto Senior High School Hall of Fame.
Kate Shaw There have been a lot of developments in the last couple of weeks in this sort of post-debate landscape, new lawsuits, new oral arguments around questions of abortion regulation. We are going to put a pin in those for this episode and go deep on them in our next episode, Live from Hawaii with a special guest. So we are not at all neglecting this important topic. We are just preserving it for next week when we’re going to have more time and we’re going to go deep.
Melissa Murray Can we say that the special guest is Justice Alito.
I don’t know I don’t know if we want to spoil the surprise.
Melissa Murray All right. All right. All right. I’m like, What if it doesn’t happen? What if the last minute. You’re right, You’re right. I think we shouldn’t say it. Okay.
Kate Shaw Don’t get hopes up.
Melissa Murray Mum’s the word.
Leah Litman [AD]
Melissa Murray We also, relatedly, got an update on LL’s new project. No, I’m not talking about L.L. Cool J or even Leah Litman, but the other L.L.. Leonard Leo. He has a new project which was described by Andy Kroll, Andrea Bernstein of ProPublica and Mixergy in an article in Documented. The article explains that Leonard Leo has plans to, quote unquote, crush liberal dominance across American life. And it describes Leo’s new organization, Teneo, which is an effort to build a network of conservatives that can roll back liberal influence in Wall Street, Silicon Valley, and among authors and academics with pro athletes and Hollywood producers. The article describes it as a quote unquote, federalist society for everything.
Kate Shaw This is terrifying. It’s also a little odd that the name is Teneo. There there’s already, I think, like a consulting organization called Teneo. In any event, that’s the name of Leo’s new Enterprise. And it’s a now.
Melissa Murray I wonder if he’s running it out of one of his main houses or both of his main houses.
Leah Litman Or whether it’s from the building across the Supreme Court. I know that was a that was a different place.
Melissa Murray That’s a good place. That’s a good place. It’s a good place.
Leah Litman Lobbying efforts directed at the court. But I don’t know. Yeah. Hard to say.
Kate Shaw Who can say. Um
Leah Litman Hey, the Supreme Court Historical Society. Why not use that one too.
Melissa Murray Oh, my gosh. That was a great. Like.
Kate Shaw Perfect, perfect.
Melissa Murray Put it all in one building. Put it in the Supreme Court.
Kate Shaw Cut out all the middlemen. Right. That’s a good idea. So there’s a video that announces the creation of this Teneo, and it’s not Leo In the video, it’s co-founder Evan Bayer. But the video contains this, like, wild description that’s kind of a pinnacle of projection that I will verbatim provide you with. So here’s what it says. Imagine a group of four people sitting at the Harvard Club for lunch in midtown Manhattan, a billionaire hedge funder, a film producer, a Harvard professor, and a New York Times writer. The billionaire says, Wouldn’t it be cool if middle school kids had free access to sex change therapy paid for by the federal government? Well, the filmmaker says I’d love to do a documentary on that. It will be a major motion film. The Harvard professor says we can do studies on that to say that’s absolutely biologically sound and safe. I’m sorry. I can’t read this with a straight face.
Melissa Murray I love that it’s a Harvard Professor and the Harvard Club. Of course.
Kate Shaw The New York Times person says, I will profile people who feel trapped in the wrong gender. From this, he imagines that liberals can put different kinds of capital together and go out into the world and basically wreck shop. Look, I was laughing because it is such a preposterous caricature of what I gather these people think liberals sit around doing and plotting. But clearly, I think the trans phobia that seems to be at the heart of that anecdote is not remotely funny. I was just laughing at the kind of ridiculousness of the kind of twisted imagination of Leonard, Leo and his co travelers in this endeavor.
Melissa Murray I was laughing at the New York Times as a pro trans rights media outlet. Like that’s kind of amazing.
Leah Litman The Onion had a very nice, let’s say, description of The New York Times approach to trans rights that I would recommend to our listeners. But just to give you again, more of a sense of this organization, you know among the founders or members or backers are not just Leonard Leo, also Peter Thiel, the Charles Koch Foundation, the Bradley Foundation, the Davos family. Josh Hawley is apparently a co-founder. Members have included or maybe include, I’m not totally sure, Ben SHAPIRO, Elise Stefanik, Catherine Maisel, who’s the judge that struck down the mask mandate at airports. So this is yeah, they’re new shtick.
Melissa Murray I just love that this is what they think liberals are doing. I know I wish liberals did this. I mean, it would kind of be great if liberals were this coordinated. But alas, yeah.
Leah Litman And, you know, maybe transitioning to what feels like an actually coordinated media campaign. Cross-cutting, right. A few different kinds of individuals and entities. We come now to the dog shit portion of the court culture segment. So by this point, many of our listeners have probably read about or otherwise heard about the incident at Stanford Law School involving student protesters, Fifth Circuit Court of Appeals Judge Kyle Duncan and Stanford law administrators. You know, it is difficult to describe or just like, say, what happened, you know, without kind of prompting some reactions. But we’re going to try to summarize it anyway.
Melissa Murray Who cares? Let’s do it. Let’s just do it.
Leah Litman Obviously, I really care what some people think about what I say. But, you know, okay.
Kate Shaw Let’s set the scene. Here’s how. How this event started. The Stanford Federalist Society chapter hosted an event on campus at which Judge Duncan, again, a judge on the Fifth Circuit, was invited to speak. Judge Duncan is a Trump appointee. We have talked about him on this show before. Just let me take through a couple of the reasons that we have talked about him. One, he authored an opinion in a case that used the wrong name for a transgender litigant, essentially dead. Naming this litigant refused to order courts to use the litigants correct pronouns. He joined the opinion upholding Governor Abbott’s prohibition on abortions in the early period of the COVID pandemic. He joined the opinion ordering the Biden administration to deploy a Navy sailor who refused the COVID vaccine. The Supreme Court? Yes. This Supreme Court later overruled that order.
Melissa Murray Kyle, you’ve gone too far.
Kate Shaw Right? And he joined an opinion rejecting challenges to voting restrictions that were set to disproportionately burden voters of color.
Melissa Murray So apparently someone decided that the young minds at Stanford Law School have a lot to learn from Kyle Duncan. And in advance of this event, some Stanford students decided to exercise their free speech rights by putting up posters on campus criticizing Judge Duncan for his rulings and criticizing the Federalist Society for inviting him.
Leah Litman You call that free speech? Kind of sounds like cancel culture to me, Melissa.
Melissa Murray It does sound like cancel culture. Yeah, I mean, that’s definitely cancel culture.
Leah Litman Sounds like dog shit. Sounds like dog shit. Cancel culture.
Melissa Murray So there we go. And then the event itself happened and Judge Duncan was introduced to speak. And when he went to the dais, there were students who were making noises and interjecting comments and doing some heckling while he began his remarks. And they brought with them signs that also criticized Judge Duncan. This then devolved into the judge being unable to give his prepared remarks in the way that he planned. And so he then requested a Stanford Law School administrator and an administrator in the room. This is Stanford’s Dean of Diversity, Equity and Inclusion, Tyrion Steinbach, who then stood up and gave some lengthy remarks about how she understood the students feelings about Duncan and how Duncan’s words and actions as a sitting judge had caused harm to communities that she valued and to students that she cared a lot about. But she also said that the students should allow him to speak, even though events like these raised questions about the soundness of campus speech policies. But she also posed questions to Duncan, including whether his decisions on the bench were really what he wanted to sort of reflect his legacy. And I think she said a couple of times, you know, is the juice worth the squeeze? So here’s a clip of her remarks. This comes from Jay Willis’s Twitter account, which documented it.
Clip In its place in this space that people learn and again, live. I really do wholeheartedly welcome because we have many people in this administration do absolutely believe in free speech. We believe it is necessary. We believe that the way to address speech that feels unwarranted, that feels harmful, that literally denies the humanity of people, that one way to do that is with more seats and not less, and not to shut them down or censor you or censor the student group that invited you here. That is words that is uncomfortable. And that is a policy and a principle that I think is worthy of defending, Even in this time. Even in this time.
Melissa Murray After this exchange, Judge Duncan chose to end his remarks and immediately go into the Q&A portion of the session.
Leah Litman And during that Q&A portion of the session, students asked some very pointed and, you know, hostile questions of the judge. And Judge Duncan punched back. You know, that’s what you do, apparently as the adult in the room and the federal official befitting your judicial role.
Melissa Murray So that seems like judicial restraint.
Leah Litman Oh, yeah, that’s judicial. When they say judges hear cases and controversies, they mean judges will cause some controversies and stir shit up. So here, too, we’re gonna.
Melissa Murray When they go low.
Leah Litman We go lower, right? Like we kneecap them and threaten their professional livelihood as we’ll get to in a second. So here, too, we’re going to play some clips just so you have a sense of some of these exchanges. These clips are also from Jay Willis’s Twitter feed, as well as Chris Geithner’s Twitter feed. Chris runs law talk news for interested listeners. So again, we’re just going to play some exchanges between Judge Duncan and some of the students.
Clip I’m going to pull down on and I’m going to quadruple down your willfully misunderstanding. I really like your question. Great. So I know it’s a loaded question. Yes. Thank you. Which I do, too. I think there’s too many that I. You do you think that considering the ethical implications of a decision is outside the scope of your work? Do you mean I. To understand in question. Do you mean.
Clip The giving the rules of judicial.
Clip Ethics? I mean within the rules of the formula as well as the court. Way different interests all the time. And they all the time consider like fairness among a range of different require consideration. How does that factor into your ethical considerations as a judge?
Clip So so let me let me see if I can unpack this. Judges are ruled by rules of ethics. There are codes of ethics. Do we consider them.
Clip For you that we don’t mean that you. Oh, you don’t mean that you mean to us sit back and sort of say, Well, what is fair? What is fair? What do I think is fair? The answer is judges are supposed to.
Clip Engage in some sort of cosmic fairness balancing because when having.
Clip A lectern officials.
Clip To do such.
Clip Things, a lot of little play have you don’t respect the inside if this question a what you’re calling it. Well, look, thanks. Thanks to the federal side for inviting me as far as the rescue people. Yeah, whatever.
Leah Litman You know where to start. I have like, a jumble of different thoughts.
Melissa Murray Can we start About what? The one where he calls the student an appalling idiot.
Leah Litman You know, I think that would be a fine place to start, But so, too, is the one where he basically says thank you to the Federalist Society and fuck you to everyone else.
Melissa Murray Because he just said, Whatever, let’s be fair. Later he said, Whatever.
Leah Litman Again, that is like a very good sign of neutrality and open mindedness for an Article three official. Thank you to one ideological group. And as to the rest of you, whatever, fuck you. But, you know, it’s not just kind of like what happened at the event that raised concerns, although I’ll talk about how the things that unfolded at the event were concerning. It’s that after this, like after some cooling off period, the judge continued to give a series of interviews that I think reflected very injudicious behavior. You know, he gave quotes to outlets like Reuters calling the students idiots and hypocrites, you know, to another outlet.
Melissa Murray Bullies.
Leah Litman Also bullies, you know, to the Washington Free Beacon. He described the administrator, the dean’s remarks, as, quote, a bizarre therapy session from hell. You know, as the dog shit comments alluded to. You know, he said that the Federalist Society students were being treated, quote, like dog shit, you know, by fellow students and administrators. And he gave an interview, you know, as a neutral, impartial political official would to Rod Dreher. So at the same time, this is happening, like what is also unfolding is the conservative grievance machine. And this kind of fixation about speech on campus and whether speech on campus is under attack. And I just worry that that narrative, that focus loses sight of a lot of what’s happening here and some of what is very problematic. I mean, again, you had federal officials who then began to call for students to be expelled, to be disciplined, for administrators to be fired. You know, not just Judge Duncan, but then, of course, you know, feeling like he was losing out on some of the attention and the conservative grievance tour. You know, Judge Ho on the Fifth Circuit, joined by, you know, the judge on the 11th Circuit, Judge Bryant, who had started the boycott of hiring Yale Law students because of the like speech problems they allege were happening at Yale Law. They wrote a post in the National Review calling for students to be punished, you know, maybe expelled, and for the students to be identified to future employers and maybe the bar, you know, for disrupting any event. And I just feel like if you’re concerned about speech, maybe you should be concerned about government officials calling for private citizens to be disciplined for speech, critical of government officials. And part of what I feel like is happening here is an increasingly right wing judiciary, like bumping up against institutions, including law schools that are increasingly open and diverse.
Melissa Murray Well, that’s where the affirmative action cases come in.
Leah Litman I wrote. I have other thoughts, but I feel like that was a long monologue.
Melissa Murray A long range strategy. But we’ve got that we got that covered.
Kate Shaw I think this is really hard. I think it is. I think that what you were just saying, Leah, is entirely right in that it’s a right wing judiciary that has just a real lock on the most important and powerful institution. You know, in some ways right now of all of our governmental institutions, because the Supreme Court has decided to assert this unbelievable amount of power to undo sort of the output of the political process in just a range of areas. And lower courts are taking the cues of this Supreme Court. And so I think that the reaction of someone who sits in this incredibly powerful position to entering a situation that I’m sure was extremely uncomfortable. And in which he was, you know, without power, or at least relative to these students for a period of, you know, 30 minutes, an hour, whatever the period was just the outsized indignation and outrage that both he and a lot of the conservative outrage machine have demonstrated, I think, sort of is an outgrowth of the outsized amount of power that they’re used to sort of enjoying and exercising. And so, you know, I do think that the sort of focus on what the students and the administration should have done differently as opposed to sort of the larger dynamic. I do think that it is upsetting that expressions of genuine, like pain and rage are ending up fueling a narrative of intolerance on the left and persecution of conservative students and judges. And so, yeah, I mean, I do think that a lot of the student activity can feed a really counterproductive narrative. Now, this is not us sitting from in our podcast or me sitting in this podcast saying, Look, students shouldn’t protest, but it’s just really frustrating to sort of see the way it’s being received, I think in a lot of quarters, which is just like an illustration of campus intolerance for a diverse sort of set of views on campus, because I don’t think that’s actually the right way to understand what went down.
Leah Litman As you’re alluding to, you know, I think these dynamics, you know, the increasingly right wing judiciary and grievance machine creates real dilemmas and questions for students who want to express outrage and want to exercise their speech rights about like what they want to do when doing so. Because, like on some level, the reaction they provoked by Judge Duncan is extremely illuminating. And I wish there was more focus on how that reaction was illuminating of a larger problem. But again, like ex-ante, I feel like there are real questions on the part of students, like what do we want to do and how do we best accomplish this? And I feel like part of, you know, what’s happening here is also like a lack of clarity around student speech policies, right? Like what constitutes effective disruption? Like what’s heckling, which is permissible under some policies, including here at Michigan, and what actually constitutes effective disruption once it crosses the line into effective disruption? Like what’s the penalty? Like, obviously there are people calling for the students to be expelled and prevented from taking the bar. That strikes me as way removed from any conception of penalty sensitivity. But these are just some of the dynamics that are getting lost here about like what is happening and why that just all go out the door in favor of this fixation of campus speech.
Melissa Murray It also should be noted that this can go both ways, too. I mean, I just gave a talk at a university where a conservative professor like was very I mean, challenging and in a very forthright and aggressive way in the question answering session. And, you know, like I responded and it like was fine and pretty mean.
Leah Litman You didn’t say thank you to the people in the audience and to you fuck you, whatever.
Melissa Murray I did not. No, I mean, again, like, I think we can we don’t always have to agree. I think some of the issues, certainly the things I write about, our issues on which there will not be complete agreement and you know, I want to make room for that too. But I mean, again, this idea that liberals and liberal professors especially are sort of cultivating this like indoctrinated rank of soldiers, like going out and like shouting down Kyle Duncan, I think is just really unfortunate.
Leah Litman And it’s also not new.
Kate Shaw First, we have lunch at the Harvard Club and.
Melissa Murray I didn’t go to Harvard at a Harvard club. I totally did it wrong. And you did it wrong too, Kate. Leah did it right.
Kate Shaw Well, we get, our invites come from Leah. Obviously.
Melissa Murray I mean, that’s right. I mean, that’s why we’re with her.
Leah Litman But again, part of I think the narrative where this narrative goes wrong is an idea that this is new. Right. Like Justice O’Connor was protested and shouted at and heckled when she did public appearances. So was Justice Scalia, like almost like 20 years ago.
Melissa Murray Do you sodomized your wife?
Leah Litman That was literally a question that a student asked. Justice Scalia And so NYU. Right. And so knowing that this is a dynamic, knowing that there is this like rage machine, just like waiting to take this narrative and push it out and it will be picked up by these outlets, I feel like that is a consideration right now. Of course, like that students to do is going to be unfairly characterized. Right. But the question is, is like, how far do you want to go? And I don’t know the answer to that.
Melissa Murray I don’t it’s actually really interesting. When that question was asked, it was in the wake of Lawrence versus Texas. So sometime around 2004, 2005. And there was, I think, a sort of flurry of discussion of it. And there were like the student definitely is a student and where you got a lot of blowback. But it didn’t reach the fever pitch that this did like, I don’t think people are necessarily calling for him to be fired.
Kate Shaw Pre-social media as part of it, I think. Right.
Melissa Murray Yeah, that’s probably right.
Kate Shaw But I think it’s also the case that Justice Scalia did not hit the speaking circuit about this. I don’t think I mean, Duncan’s publicity tour.
Leah Litman He wasn’t appearing on Fox News for the next like week? And podcasts.
Kate Shaw Wait, did Duncan go on Fox News?
Leah Litman No, Fox News has just been covering it nonstop. Okay.
Kate Shaw Yes. So.
Melissa Murray Again, I don’t want to I don’t want to underplay. I mean, I do think that student got a lot of blowback for it. And Liz Zapper a couple of months ago on Twitter, Liz Suppers, a professor at the University of Texas, had a really interesting thread. She was a student at NYU at the time and wrote about it and like really offered a bird’s eye view of what that time was like. But it just didn’t feel like this. But I think you’re right. There wasn’t this sort of right wing echo chamber in the media that could amplify it, and we just didn’t have social media to talk about it. Yeah. All right. One last bit of court culture and I’ll be very fast about it. So do you all remember back in the 1860s when the Civil War ended and slavery was formally abolished with the 13th Amendment? Do you remember that?
Leah Litman I mean, I’m not an older worker, so not personally.
Melissa Murray All right. We know you’re the baby of this podcast, but Kate, definitely remembers, she’s. Oh, yeah, I definitely remember that time. Yeah. So you would think that those developments would signal the death knell for not just slavery as a formal matter, but also arguments, reasoning from slavery and actual judicial opinions, right? You would think, guess what, folks? You would think wrong. Slavery is making a comeback, at least in one Fairfax County, Virginia court. So at issue was a case where there was a question about the ownership of frozen embryos that had been created by two spouses who have subsequently divorced, and the former wife now wishes to use those created embryos to have a family. And she’s making this request over the objections of her former husband. So the question for the court is who owns the embryos? And this is actually a very common question in family law, this creation of genetic material and who owns it after especially embryos. But in answering this quite common question now, a Virginia state court judge relied in part on a 19th century law that defined enslaved people as property. And now, to be fair to the judge, although issues involving frozen embryos have arisen in courts for more than a quarter of a century, they’re often presented in the context of divorce and treated as a question of marital property to be divided. But this was a question of first impression for the court because the spouses were already divorced. So it wasn’t a marital property issue. And so this ostensible distinction prompted the judge to take a different approach whereby he canvased earlier iterations of Virginia’s current property law on goods and chattels to see whether embryos could be divided as property between people who were no longer spouses. And one earlier iteration of the law was from the 1849 Virginia Code, in which slaves are categorized as property that could be divided and sold. And so the judge cited this law to draw a parallel to the human embryos in this case, saying that the earlier code used, quote, language almost identical to the current law. So, okay, I’m just going to say, as someone who teaches family law, I’m not entirely sure why the fact of an extent divorce requires you to play the slavery card, but here we are making slavery happen again. So, good times.
Kate Shaw I mean, methodologically, this does feel like what Dobbs and Bruin have wrought, like they have basically sent judges, like back to the mid-19th century to sort of. Use the legal.
Melissa Murray History and tradition.
Kate Shaw That’s right. And so thank you, Supreme Court. So much more to come in our next two episodes, but I think we’re out of time for today.
Melissa Murray Much more to come with Mai Tais.
Kate Shaw That’s right. All right. So before we go, don’t forget to follow Crooked Media on Instagram and Twitter for more original content host takeovers and other community events. You can also find us on Twitter and Instagram. And maybe one day, when we convince Melissa, on TikTok. And if you are as opinionated as we are, please consider leaving us a review in your favorite podcast app.
Melissa Murray Strict Scrutiny is a Crooked Media production hosted and executive produced by Leah Litman, me, Melissa Murray, and Kate Shore, where produced and edited by Melody Rowell with Audio Engineering by Kyle Seglin Music by Eddie Cooper and production support from Ashley Mizuo, Michael Martinez, Sandy Girard and Ari Schwartz, and digital support from Amelia Montooth.