After touching on some shenanigans from the Federalist Society’s National Lawyers Convention and Chuck Schumer’s lousy deal on judicial appointments, Leah, Kate, and Melissa preview December’s upcoming Supreme Court cases. The Justices will hear arguments in cases about gender-affirming care for minors, the FDA’s denial of authorization to flavored e-cigarettes, and the National Environmental Policy Act.

 

TRANSCRIPT

 

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

 

Melissa Murray 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 Melissa Murray.

 

Leah Litman I’m Leah Litman.

 

Kate Shaw And I’m Kate Shaw.

 

Leah Litman And on the heels of Thanksgiving, we have a court culture segment that will help you relive awkward family encounters with your Craig Gray relatives. Yes, we will be covering the Federalist Society National Lawyers Convention, so be thankful for that. We will also offer some commentary on the latest development in one of our least favorite segments, which is Democrats unilateral disarmament on the courts.

 

Melissa Murray After we cover that, we are going to cover the court’s resolution of a case that was recently heard from there. We will then shift to previewing the cases the court will hear during this December sitting. And then after that, we will regrettably close with another tragic story about the consequences of the Supreme Court’s decision in Dobbs and the restrictive abortion bans that have flourished in its wake.

 

Kate Shaw Okay, so first up, court culture. Last week, Special Counsel Jack Smith filed an unopposed motion to dismiss the federal election interference case against Donald Trump. And fast on its heels and unopposed motion to dismiss the obstruction and classified documents case, the motions made clear they were based on Justice Department policy that the Constitution does not permit the prosecution of a sitting president, and the dismissals were not based on, quote, the merits or strength of the case against the defendant. Both of these dismissals were without prejudice. So, at least in theory, they could potentially be revived at some future date. But I think to quote my colleague, Karen Tönnies, epic forward to the Harvard Law Review, quoting Justice Elena Kagan and also referencing the biblical prophet Ezekiel. The cases are dead, dead, dead. The Trump news is awful, but Karen’s piece is incredible. So everyone go read it if you haven’t.

 

Leah Litman So as we noted when previewing this court culture segment, we know that some of you probably spent Thanksgiving or debated spending Thanksgiving with some relatives who voted for whatever the EFF the Trump administration 2.0 is going to turn out to be. So for those of you who did that, we wanted to help you relive the memories of trying to spit facts at your red pilled grandparents. And for those of you who opted out of that experience, we wanted to give you a sense of what you might have missed.

 

Kate Shaw So earlier in November, the Federalist Society held its annual National Lawyers Convention. The convention always offered a series of panels and a banquet with keynote speakers. And this year, one of the panels included our friend, Commander Slash field marshal of the left. We will explain. Steve, like Steve, who’s now a professor at Georgetown University Law Center, appeared on a panel titled The Continued Independence of the Judiciary that was moderated ostensibly by Judge Jim Ho and included as a fellow panelist, Judge Edith Jones, both of the Fifth Circuit.

 

Melissa Murray Ostensibly is exactly the right word to use for Judge Ho’s turn as moderator because he actually began with remarks, unbefitting a moderator. Because they were pretty much a perspective, not necessarily moderate in tone. So here’s a clip.

 

Clip But now let’s fast forward to the current contract conference conversation. All right. If you listen to commentary coming from academic and cultural elites today, the message is simple The judiciary is no longer to be trusted.

 

Melissa Murray It’s almost like the courts are not trustworthy and people are just noting that. But go off my dude.

 

Kate Shaw So, Steve, Steve Vladeck, during his remarks, talked about how courts depend on the elected branches, which means courts should be mindful of the positions of the elected branches and also be mindful of the views of the country, which of course, selects who is in the elected branches. So he was emphasizing that the independence of the courts does require courts to have some minimum amount of public support.

 

Leah Litman And then Judge Jones. So here is how she opened her remarks.

 

Clip I hope to respond here today in defense of my colleagues. Fifth Circuit District judges who came under relentless attacks during the last several years by certain professors, including notably Professor Vladeck, or what he considers close to unethical situations and litigation which have existed since the dawn of judging.

 

Leah Litman And then she closed her own remarks by suggesting that it is judges who are disadvantaged when there is a disagreement between a judge and a private citizen, which you can hear here.

 

Clip So it’s often said that a fight between a lawyer and a judge is not a fair fight. But normally, this is the first opportunity I’ve had to speak up on behalf of my fellow judges in the district courts of the Fifth Circuit, because it is not a fair fight. Or those who have a podium as an unregulated podium and the press and the law blogs and so on that they can use to cast these illegitimate aspersions.

 

Melissa Murray And then things got really weird during the discussion between the panelists. So here’s another clip.

 

Clip I have studied Professor Vladeck, and this is a file of his articles, amicus briefs and tweets regarding the process of judge picking that he criticizes so heavily. And he has said to me once before and I’m sorry, this is not ad hominem, professor. It is really about the nature of the comments that are made. But he has said before to me that it is not personal. He does not criticize judges on a personal level. Well, I’ll read you a few tweet. November 18th of 2022. Someone says, Isn’t Judge Shopping a practice as Holder’s son? Professor Vladeck says nope. Forum shopping is. But literally picking a single judge is a relatively new phenomenon available only in a handful of here, primarily red states, Mr. Vladeck said. And I think April of 23 just tie these threads together. He mentions a person in Texas as his office, and then he says the then EIC, who allowed Kaz Merrick to pull this nonsense, is one of the lead lawyers sparing Texas challenges. On another one, he says.

 

Clip You might note the context in which I said that this was about something that happened before he was a judge.

 

Clip I don’t think that’s the case. I think that.

 

Clip Is a dispute over a law review article. That was.

 

Clip So you’re still saying you’re referring to the judge’s billing nonsense? It’s part of a pattern. I’ve just got three more.

 

Clip I do appreciate Judge Jones making my point about how we’re shouting past each other and not engaging on substance.

 

Clip We’re up to three Texas judges who have no problem with Texas judge shopping. Here’s Judge Hendricks denying Dios Chase motion to transfer one of the articles. Professor.

 

Clip What was the attack in that?

 

Leah Litman So let’s just walk through what happened here, because I think you can only fully experience this by watching the video. Judge Jones came to this panel with a manila folder that included printed out tweets from Professor Vladeck, and that’s what she is waving around, opening up and reading from like she has binders, binders full of tweets.

 

Melissa Murray I don’t think this is a Mitt Romney reference, though. I think she was channeling Alexis Carrington-Colby from Dynasty, standing on the balcony brandishing receipts.

 

Leah Litman Either that or, as other people suggested, on social media. Maybe this is like a Real Housewives reunion kind of shtick because they, too, will come to reunions with printed out transcripts of their fellow housewives Instagram posts or comments or podcast interviews. You know, Jenae from Love Island, USA did the same. But, you know, I have.

 

Kate Shaw I’ve seen zero of these. Do they do these in like manila envelope folders or binders?

 

Leah Litman Not always manila folders. But yes, folders.

 

Melissa Murray These are not lawyers, Kate. No one has a Redwell.

 

Kate Shaw Some of them are. You guys have taught me that.

 

Leah Litman Yes. Some of them are lawyers.

 

Melissa Murray One or two of them are. But there are no Redwells.

 

Leah Litman But I mean, if this is like Real Housewives, this would be a Real Housewives that I would not watch and that is.

 

Melissa Murray You would not watch The Real Housewives of Austin, Texas of New Orleans.

 

Leah Litman That is basically the meanest possible thing I can say about a potential reality TV entrant. I wouldn’t watch it.

 

Melissa Murray Zero out of ten.

 

Leah Litman Real Housewives of Dallas. Zero out of ten. Yeah.

 

Melissa Murray Would not watch.

 

Leah Litman Yeah. But the subtext of all of this is that criticizing judges hurts their feelings. And obviously, anything that hurts their feelings is wrong. It’s almost as if we should be asking who the real snowflakes are at this point.

 

Melissa Murray Not surprisingly, the Republican grievance machine decided to latch on to this exchange and write it like a bucking bronco for about a couple of days. In fact, it even made its way to the floor of the United States Senate. So let’s roll the tape.

 

Clip At the latest Federalist Society convention. Judge Edith Jones of the Fifth Circuit was on a panel with one of the field marshals of the academic project to undermine the judiciary. Any of our colleagues who know Judge Jones wouldn’t be surprised to hear that in this academic context. She let the law professor have it when he complained that this was unfair and just you wanted to talk about abstract legal principles of judicial integrity. She pulled out his tweets denigrating conservative judges in Texas. The reaction from liberals in the legal academy, although I repeat myself, was outrage. How dare they? Should a judge give one of their own the sort of tongue lashing they gave conservative judges every day? Well, bullies always cry foul when they’re the ones who get punch right in the nose. So kudos to Judge Jones for standing up for her colleagues. She proved yet again, Well, she’s the lion of the bench.

 

Melissa Murray Your tax dollars. Ladies and gentlemen, at work. There we are.

 

Leah Litman Well, I mean congratulations on the promotion Commander. As, as Steve noted in a tax exchange, apparently field marshal is a higher rank than commander in some places. So good for him, I guess. I don’t know.

 

Kate Shaw I mean to me, what really jumped out about all of this was that the right is about to control every organ of the federal government. And yet the victim mentality burns So white hot. And that’s among Fed SOC senior members and Republican Senate leadership Like it is just wild to observe. And I also think the style of politics that they engage in requires an adversary. And right now, like, there’s not a lot in government to look to as adversary since they’re going to have a lock, at least at the federal level. And so obviously, there are other adversaries that they have generated. The media is, you know, sort of front and center. But the academy is also really up there. And I think you sort of saw that they decided to elevate this attack on like the way they did, again, to a McConnell speech suggests to me that, yeah, law professors are in the crosshairs.

 

Leah Litman Yeah. I mean, I think this is very much consistent with we’ve talked about Teneo, which is, you know, the project to make a Federalist society for everything, you know, not just to take over law and government, but media academy, arts, culture and that’s very much of a piece with this victim mentallity that you were fighting.

 

Melissa Murray I do think the culture piece is going to be hard. I mean, it’s really going to be difficult to make Hulk Hogan and Kid Rock actual high culture. I mean, this is not Audra McDonald and Lin-Manuel Miranda happening.

 

Kate Shaw Well it doesn’t have to be high culture just needs to have mass appeal. And.

 

Melissa Murray Like I said, Kid Rock and Hulk Hogan.

 

Kate Shaw I mean, you to convince me. But I’m just not sure that all share our tastes, Melissa.

 

Leah Litman Well, what I was going to say is maybe Judge Jones and or Senator McConnell or someone else can file a Rico case against Steve Vladeck for, you know, too harsh a diss track for being too mean to him. Yeah, right. That’s what all the cool pop stars are doing these days.

 

Melissa Murray Mmmhmm. Champagne Papi. Do you know what we’re talking about, Kate?

 

Kate Shaw I’m familiar with Drake. I am. Look at that.

 

Melissa Murray Like, I’m familiar with Drake. We meet up at the Starbucks on the corner of 57th.

 

Kate Shaw Not that kind of familiar.

 

Leah Litman So back to the Federalist Society National Lawyers Convention at another panel. This one titled What is the Future of Administrative Law? Question mark Spoiler Nothing not great. That wasn’t in the title. But anyways, at this panel, the moderator, Columbia law professor Philip Hamburger, led a toast to the takedown of the administrative state, which itself is notable, but so too is who participated or seemingly participated in the toast because other panelists included D.C. Circuit Judge Naomi Rao and Florida District Court Judge Katherine mysel. And from the audio, as well as some limited video, it seems like they accepted the champagne being poured into their glasses and at least sounds like at least one of them. Maybe both of them say it says here, here at the end, it’s a woman’s voice and it’s audio. So, you know, it seems likely to be one of the panelists. So listen to this thing.

 

Clip All of this amounts to the greatest setback to administrative power, at least since 1935, perhaps ever. Gary Lawson, I don’t know if he’s in the room. Are you there? There you are. Gary Lawson? Yes. One of the leaders in Bravo, Gary. Gary has recounted the rise and rise of the administrative state, and I’m delighted with his help. We now can see the tipping point when it starts to fall and fall. Won’t that be jolly? Of course, this is just the beginning. As Churchill said, this is not the end, is not even the beginning of the end, but it is perhaps the end of the beginning. And that puts me. Forgive me. That puts me in a celebratory mood.

 

Clip As a Christian. And one of the benefits. Yeah, go ahead. Thank you. Thank you. I’ve never been asked to drink.

 

Clip So I have the microphones down here. Wait. My distinguished colleagues are all. Yes, the glasses are full, but I want them to overflow. Right. May our glasses all overflow. I have a toast. And the toast is the long one to Jarkesy. To Acts and Cochran, to Corner Post. To Loper Bright, to Relentless and all the other wonderful cases. And to all of you, to all of you who seek a revival of our constitutional freedoms. Bravo.

 

Clip Here here. Here here. Cheers

 

Melissa Murray Woo! I’m just going to say, I’ve gone to a lot of conferences. No one ever popped a magnum of champagne or a bottle of champagne and made a toast.

 

Leah Litman Well, that’s because they’re not a debating society that doesn’t take positions. And that is just about the exchange of ideas and has no real substantive or policy views.

 

Melissa Murray Some ideas are best shared over champagne.

 

Leah Litman Indeed, if there will be.

 

Kate Shaw Arguments about specific constitutional questions involving agencies that these sitting judges will be tasked with deciding in an impartial manner, like are.

 

Melissa Murray You suggesting these judges are untrustworthy? I’m beginning as wrong with you, Kate.

 

Leah Litman That’s baseless. That’s treasonous. You’re personally attacking judges. Judge Jones is going to bring that Rico case.

 

Melissa Murray Can’t a judge sit on a dais and drink some champagne while toasting the demise of an administrative agency. And why do people have to read something into that? It’s just a toast.

 

Kate Shaw Right. Right now, what we’re doing is bullying on our we are bullying them on our podcasts.

 

Leah Litman Yes.

 

Melissa Murray Toasts are not unconstitutional, Kate. Read article 4.

 

Leah Litman Why are you anti-free exchange of ideas? Really mystifying. But, you know, it does seem like from this toast, they really do want to party like it’s 1935, which again is the Great Depression.

 

Melissa Murray Literally coat themselves in Panama oil and sector poultry, chicken feathers. Just get down.

 

Kate Shaw We’ll get there at the end of the episode. But yeah, that’s that’s coming.

 

Leah Litman Yeah. No, I wasn’t there last week. Melissa When you were talking about the the price of eggs.

 

Kate Shaw Milk. It was the price of milk.

 

Leah Litman Price of milk. Okay, well. Well, maybe it’s also the price of eggs. Who knows? But, you know maybe the eggs will will be free because they’re going to be free from health and safety regulations and maybe also.

 

Melissa Murray Raw milk. Raw eggs.

 

Leah Litman Not free from salmonella. I don’t know. So. Fun times.

 

Melissa Murray Little bird flu for everyone.

 

Leah Litman Yeah.

 

Melissa Murray We should also note, and regrettably, we do not have the audio of this to share with you listeners, but several outlets, including the New York Post liberal bastion that it is, and The Hill have noted that Justice Gorsuch, in his keynote remarks at the convention, talked about wait for it Peanut the squirrel.

 

Kate Shaw And for those of you not deep in the MAGA verse and who also did not just read the Wikipedia page, it the way I did. Peanut was a male gray squirrel who was seized along with a raccoon.

 

Melissa Murray Okay. Like I hate this part. The along with the raccoon. Like, see his name, Kate. His name is Fred. It was Fred the Raccoon.

 

Kate Shaw Okay, but did he have like 800,000 followers on instagram? I think that’s why no one knows the raccoon’s name. Okay.

 

Melissa Murray No, I think it’s more MAGA erasure. Say Fred’s name. Okay.

 

Kate Shaw So, Peanut, I don’t know if Gorsuch did, but sure, I will.

 

Melissa Murray I don’t think he did. Justice for Fred too.

 

Kate Shaw And Fred were taken from their owner’s home and reportedly, actually, I don’t know if Fred was taken and euthanized. See again, more Fred erasure.

 

Melissa Murray You know what? You know what?

 

Kate Shaw Wow. Wow. I’m so sorry.

 

Melissa Murray You think the New York state officials showed up at this person’s apartment, saw a live squirrel and a raccoon and said, I’mma take just the squirrel. Of course they took both. Are you serious?

 

Kate Shaw I didn’t. I maybe. No, I don’t think they saw both. I think they went and took the squirrel. I only just learned from Wikipedia perusing that there was also a roommate who was a raccoon, Fred, who I don’t even think is named in the Wikipedia page. I’m so sorry to report. Yeah. In any event, I guess both of them were seized and during the election became or at least Peanut did a rallying cry for Republicans against. I don’t exactly know what I gather. Government overreach. Probably. The paperback edition of Neil Gorsuch’s book about government overreach. Will have a prolog about Peanut, as I say, that of course that’s going to happen. But I guess government overreach, justice for meme makers. That’s the other thing. I think maybe Peanut has become a rallying cry for. And as I mentioned, Peanut did have an Instagram account and I’m pretty sure also an Onlyfans account.

 

Leah Litman Nice.

 

Kate Shaw Which I don’t totally understand.

 

Leah Litman Nice.

 

Kate Shaw But Wikipedia tells me he did. Anyway.

 

Leah Litman Don’t kink shame people, Kate.

 

Kate Shaw The fact that Gorsuch. I’m sorry, I was mentioning the accounts and Peanut contained multitudes clearly.

 

Melissa Murray So did Fred. I just let me know. Back to Fred for a moment. We can confirm w r g b not even making this up. RGB from Albany has confirmed that both Peanut and Fred were seized and both were euthanized. So, justice for Fred too.

 

Leah Litman The point is, if you are like red-pilled and in the MAGA-verse,  Peanut, the squirrel is top of mind and the thing you reference.

 

Melissa Murray And why not Fred? Why not Fred?

 

Leah Litman Well, well. But again, the fact that he does peanut and not Fred, suggests it’s coming from the MAGA-verse which had focused on Peanut. And it just underscores the milieu in which these justices exist. Right? Like it is MAGA-verse.

 

Melissa Murray That I’m sold on that like that was obvious. That was obvious. The moment she said Peanut. I knew we were talking about Neil Gorsuch’s media diet. I am simply suggesting who is erased here and why?

 

Leah Litman Yes.

 

Melissa Murray What happened to Fred? Seriously. Kate, get back on that Wikipedia page. You can update it.

 

Kate Shaw I didn’t I am not personally responsible for seizing and euthanizing Fred. I’m clearly I fully participated in the erasure. So. All right. Well, so I think we did learn something about Neil Gorsuch, which is that as terrible as he is on many issues, I guess I did not realize quite what a kind of MAGA silo he resides in. I don’t know if he always did, but certainly that seemed to be a tell that he now does.

 

Leah Litman Yeah, I think we got a preview of that last term when he asked about the hypothetical of Representative Bowman pulling the fire alarm and whether that could lead to a prosecution under the obstruction statute.

 

Kate Shaw That right in the Fisher orders. Yeah. Yeah, good point. Good point.

 

Melissa Murray The red pilling of Justice Gorsuch was the least surprising aspect of this story to me. So in any event, that’s what’s going on on the right. And that’s what the Republican appointed judges and justices are doing. It’s just all champagne, all manila envelopes, all peanut the squirrel all the time.

 

Leah Litman But what I mean, they’re fucked in the head. I was the champagne problems reference.

 

Melissa Murray Very nice.

 

Leah Litman Thank you. I have no reason to live now that I have no more Eras tour to go to.

 

Melissa Murray You’re all out of effs.

 

Leah Litman I’m struggling.

 

Kate Shaw We need you.

 

Leah Litman [AD]

 

Melissa Murray All right. But folks, this podcast plays it straight down the middle. We are equal opportunity destroyers. And so let’s now turn to see what the Democrats have been doing and hasn’t been great either. So as we alluded to at the top, the staff of Senate Majority Leader Chuck Schumer announced that Democrats had negotiated a quote unquote, deal with Republican senators to withdraw from consideration or at least not move forward with the nominations of for Court of Appeals judges in exchange for the Republicans allowing the confirmation of around 12 district court judges. Senator Schumer defended this, quote unquote deal by saying the four Court of Appeals nominees did not have the votes to be confirmed. What do we think about this?

 

Leah Litman I, I don’t understand. You are in the majority. Why do you need to make a deal with the minority to confirm judges like act like you’re in the majority. And I understand that at least one of the court of Appeals nominees, they are planning not to move forward with a deal. Manjhi did not have the votes. He was the nominee to the Third Circuit who had been subject to the horrific Islamophobic attacks. But it was very unclear to me that the other nominees did not have the votes to move forward.

 

Melissa Murray I actually do think that Karla Campbell, who had been nominated to the Sixth Circuit, had the votes. I mean she’s a prominent labor lawyer.

 

Kate Shaw Yeah.

 

Leah Litman Yeah.

 

Kate Shaw And the main nominee as well. I think that there was some question about Park.

 

Leah Litman Yeah. Julia Lipez . Yeah.

 

Kate Shaw Yeah. Lipez , I think was also fine. Or at least that was my understanding. So I too am completely flummoxed by this move. It sounds to me for what it is worth, like there was just some murkiness in some of the reporting, so maybe this is not a complete fait accompli. That is, we do still have the whole month of December. They do still have the majority. There obviously are going to be there the whole month of December, but they can be there for some of it. They could be there for all of it if they wanted to. So I’m not sure, you know, that there’s zero possibility of reopening this deal, at least as to some of these court of appeals judges. And also, I do think this could be an area where public pushback, which I think there has been a lot of because this deal looks insane, might be constructive.

 

Melissa Murray Time to call Senator Schumer?

 

Kate Shaw I think it might be.

 

Leah Litman Well, it’s like the opposite of the saying, you know, the beatings will continue until morale approves. It’s like we’re going to continue to just fold, right? And give in to whatever Republicans want/.

 

Melissa Murray Until we actually become the minority. We’re going to act like a minority till we are a minority.

 

Leah Litman Right. It’s so frustrating and mind boggling because now forgoing the majority, for example, will give Republicans a majority of appointees on the Third Circuit. I’m pretty sure it loses the opportunity to change the majority on the sixth Circuit in the near future. And again, assuming, Kate, like your optimism rate doesn’t hold and they don’t actually try to move forward with some of these nominees, I mean, hopefully some of the court of appeals judges will rescind their retirements or announcements that they’re taking senior status. But it’s just.

 

Melissa Murray Because otherwise not moving forward leaves these seats available.

 

Leah Litman Open for Republicans.

 

Melissa Murray For the Trump administration to fill.

 

Melissa Murray Yes.

 

Leah Litman Right.

 

Kate Shaw Appeals court seats are so goddamn important. And the Supreme Court, obviously, that’s our focus on the podcast, but takes a very small subset of the cases that are brought in federal courts. And given that there just aren’t a lot of checks on the incoming Trump administration in DC, actually federal appeals courts are going to be, you know, one of the lone remaining bulwarks, such as they are and just willingly handing over some of these, you know, potentially decisive seats to Trump to fill seems completely insane to me.

 

Melissa Murray So they did push through some district court seats. So, I mean. Yes. Okay. Well, maybe we should focus on the positive and maybe shout out some of these great district court judges.

 

Leah Litman We now have a judge Ameer Ali.

 

Kate Shaw Mmmhmm

 

Melissa Murray On the DC DC, the district court.

 

Kate Shaw And that’s amazing.

 

Leah Litman Fantastic

 

Melissa Murray Sarah Russell in the district of Connecticut.

 

Leah Litman Yes!

 

Melissa Murray Also great. So I mean, again, it wasn’t terrible, but like, wow, why are you negotiating with yourselves at this point? Like you have the majority. Act like.

 

Leah Litman The the most sympathetic reconstruction is. Schumer knows either or both Sinema and Manchin are not going to vote for these nominees. And so that’s why they did it, right? Like, I mean, the cinema didn’t vote for all of the district court nominees, for example. But again, it seems there was no indication that Campbell and Lipez , right? We’re risking.

 

Kate Shaw No. And also, even if you do lose those two, a lot of Republicans were not in DC. You don’t actually need more than 50. You just need more votes for than against. So it did seem like the math was there because I never like Republicans see Senator Cruz like in Texas. Vance wasn’t in town. There were a bunch of people.

 

Melissa Murray Texas? Cancun. Come on. Kidding.

 

Kate Shaw But either way, I just don’t understand. And this is like why I have this kernel of hope, that sanity will.

 

Leah Litman Texas or supply closet or Cancun. Either way. Right. He’s not on the floor. Yeah.

 

Melissa Murray So we did get an opinion from the court. Sort of. A couple of episodes ago, we covered Facebook versus Amalgamated Bank, which the court has now dismissed on The view that sorcery was improvidently granted. The case concerned whether a securities fraud class action against the social media giant Meta could go forward on the theory that Facebook’s disclosures improperly downplayed the risks of a data breach to shareholders. The case arose in the aftermath of the highly publicized incident in which Cambridge Analytica harvested and then exploited for profit the data of millions of Facebook users. In its shareholder disclosures, Facebook disclosed the risk of future hypothetical data breaches. But shareholders argued that this violated securities law because the company knew that Cambridge Analytica had already exploited the user data. When the breach did become public, Facebook’s stock plummeted. As is the case with Diggs dismissed as improvidently granted. The court did not really explain itself. Instead, it just issued an unsigned per curiam order dismissing the case. Still, this resolution is perhaps not entirely surprising. At oral argument in the case, many of the justices, including the more conservative justices, seemed really skeptical of Facebook’s argument. What this does mean is that the Ninth Circuit’s ruling below stands, and that means the shareholder suit against Meta will proceed. So an opinion of sorts.

 

Kate Shaw All right. Well, with that, should we move on to what’s on tap for this upcoming Supreme Court session?

 

Leah Litman Sure.

 

Melissa Murray Moving from strength to strength, let’s go .

 

Kate Shaw Okay. And first is a big one, United States versus Skrmetti, which is a huge case about Tennessee’s ban on gender affirming care for minors. The only question the court is reviewing in this case is whether the band discriminates on the basis of sex, such that the law is subject to more searching review under the equal protection clause.

 

Melissa Murray Because the court is only reviewing the equal protection issue. It’s really important to situate this case and this question alongside the court’s recent decision to overrule Roe versus Wade in Dobbs. Dobbs rejected the idea that abortion restrictions discriminate on the basis of sex. And I should note, most weeks we get at least some listener questions along the lines of, hey, can’t you argue that these abortion bans and the fact that they are literally killing women are a species of sex based discrimination? Well, yes, listeners, you could make that argument. And in fact, Reva Siegel, Serena Mayeri, and I did and submitted an amicus brief saying as much in the Dobbs case. But Justice Alito had already thought out a rejection of this argument, and he did so out of hand in. Dobbs And this is the best part. He rejected this argument by citing Geduldig versus Aiello, a decision that concluded that discrimination on the basis of pregnancy is not sex based discrimination for purposes of the equal protection clause. Incidentally, Geduldig was decided in 1974, a year after Roe versus Wade. So this is Peak Toledo citing precedent and then overruling a precedent, which is fantastic. And even more interestingly, Congress thought that the court’s decision in Geduldig was so wrongheaded that they subsequently enacted the Pregnancy Discrimination Act of 1978 to make explicit that for purposes of Title seven, pregnancy discrimination is a species of sex based discrimination. That obviously does not address the constitutional issue that was decided in adult egg. But it did address the statutory issue that was decided a few years later in another case called Gilbert. All of this to say is that you listeners are not wrong or off base and this argument isn’t wrong or off base. It’s just not in favor with either past or current courts and their impoverished understanding of equality and the equal protection clause.

 

Leah Litman And I think immediately after. Dobbs, there was a question about whether Dobbs is stingy conception of the equal protection clause. That is, it’s not super persuasive. Rejection of the equal protection claim was about abortion exceptionalism. That is, the court’s hostility to abortion may have driven the legal analysis and manipulated the law. But the question in this case for many is whether the court’s slapdash approach to equal protection and gender and sex discrimination in Dobbs will extend beyond that case. Dobbs And beyond abortion.

 

Kate Shaw So Geduldig and Dobbs illustrate how this court has enabled discrimination in equal protection or sex discrimination cases by insisting that these cases are not about sex discrimination at all, but instead about biological differences, Right? Pregnancy or the termination of a pregnancy. But of course, it’s possible to grant the biological fact of pregnancy, but also to grasp that there were gender-based stereotypes that seem pretty relevant. The legal questions in both of those cases and that the distinctions at issue in those. Cases, right? The pregnancy and abortion cases were quite related to sex here.

 

Melissa Murray The law at issue does seem to involve a very straightforward distinction on the basis of sex. That is, it is an instance where individuals are treated differently and can get different kinds of medical treatment based on their sex assigned at birth. So, for example, if you are assigned a woman at birth, you cannot get hormone therapy that ordinarily would be prescribed for a man, so you could not get testosterone treatments. And by the same token, if you were assigned a male at birth, you couldn’t get hormone treatment that ordinarily would be assigned to a woman. So, for example, estrogen therapy. So it’s pretty straightforward. You can’t get the kind of hormone therapy that would be necessary to effect a gender transition because of the sex that you were assigned at birth. Now, the question here is whether this very straightforward distinction is even going to matter to this court or whether the court is simply going to paper over that kind of sex based discrimination by claiming that what’s really going on here is something different, like gender identity or medical care, which is the same kind of move that they did with regard to the sex equality arguments in Dobbs, where they said this is a case about abortion, not about sex based discrimination. An earlier court did a very similar thing with adult egg, where they said this isn’t a case about sex based discrimination. It’s a case about biological differences and pregnancy. So that’s the question that I’m going to be looking for as the case proceeds.

 

Leah Litman So as the federal government’s brief in the case explains, quote, The Tennessee law declares that the state has an interest in encouraging minors to appreciate their sex and in prohibiting treatments that might encourage minors to become disdainful of their sex. And quote. And those are direct quotes from the state law. Right? They are sex conscious and sex based.

 

Kate Shaw Yeah. And just as you were just saying earlier, and Melissa was alluding to a minute ago, let’s just maybe talk about explicitly what is in the statute. So it is sex based in the clear as a possible term. So covered treatments are banned if they are prescribed, quote, for the purpose of, quote, enabling a minor to identify with or live with a purported identity inconsistent with the minor sex or quote, treating purported discomfort or distress from a discordance between the minor sex and asserted identity. But those exact same treatments are entirely unrestricted if they are prescribed for any other purpose, like treating delayed or early puberty. So again, as Melissa was saying, that means a teenager who’s sex assigned at birth is male can be prescribed testosterone by a teenager assigned female at birth cannot. So I just I don’t understand how anyone with a straight face can say that that is not a sex classification.

 

Leah Litman Again, Usher meme, watch this. Right? They’re going to do it.

 

Melissa Murray It’s just about medical treatment, Kate. Rational basis.

 

Leah Litman Yeah. No, I mean, they’re just going to say we can describe it, right, in different terms. This is about gender identity, even though it uses sex. And that’s partially what’s going to do it here. Or honestly, a part of me is really worried they’re going to do some weird history and traditions analysis and say this sort of distinction didn’t trigger heightened scrutiny at that time or something and therefore doesn’t do so now, in which case it would lock in all sorts of discriminatory treatment. I mean, who knows, right?

 

Kate Shaw But it would be so crazy. I mean, of course, they’ve done that a lot in the substantive liberty context, but they typically haven’t in the sex cases.

 

Leah Litman In equal protection and sex discrimination in particular.

 

Kate Shaw So it’s certainly a move they could try to justify making, but it would be another enormous distortion in the doctrine to take that line of cases. Again, they’re about liberty and use them here in the sex classification context.

 

Melissa Murray I think it also papers over the distinction between the substantive due process issue and what the equal protection clause is supposed to do. I mean, so it may be the case that due process is retrospective. And, you know, I guess now we’re doing only history and tradition with regard to that. But the equal protection clause was supposed to be prospective, right? I mean, it’s forward looking and it is intentionally disrupting the past so that we no longer have enslavement disrupting the past, so we no longer live with the discrimination that once was okay because it’s now determined to be inconsistent with equality. And so it just seems like a very not just thin conception of equality, but just a wrong conception of what the equal protection clause is supposed to be doing.

 

Kate Shaw Yeah.

 

Leah Litman Yeah. So I think other background that’s important to understanding this case and it’s stakes. The court is hearing this case on the heels of a pretty intensely anti-trans campaign by Republican candidates, including the Republican presidential candidate. And I think there’s a real concern about what that that is a campaign and a decision in this case could embolden governments to try and do if. The Supreme Court gives them the green light. You know, on the heels of that campaign, I guess predictions kind of I think it is really just how ugly the case is going to get. As I suggested, maybe it will resurrect, you know, I can call what is happening something other than sex discrimination. And therefore, I will deny that it is sex discrimination at all. I am worried we are going to get some really awful historical parallels where they try to analogize gender affirming care to, you know, abhorrent instances of medical experimentation or some of the justices will rise happily to indicate that It’s just I’m very concerned here.

 

Kate Shaw Yeah, I mean, I wonder whether the conservative Justices Alito has talked previously about Wright, Buck versus Bell, which was talked about on this podcast before, a case permitting Wright the involuntary sterilization. And they think that case was, you know, an egregious error. And it was, of course, but on their own logic that I’m not sure the history and tradition really is on their side. They’re just pro needless and they think that anything that interferes with reproduction is a problem. But that’s a substantive due process kind of view, right? Not something I don’t think that that they can justify is deeply rooted in history and tradition. So I think that’s we will see if they try to revive cases like that. I also just think, as I said, I don’t see how you can say with a straight face that there’s no sex classification here. But I also think that, you know, Tennessee is trying in this case to basically prevail on like what they call an equal treatment rationale. So they basically say, like the law treats everybody equally because it prohibits transition related care for all, regardless of sex. But like another sort of page of history, that is exactly what the state of Virginia said in defense of its ban on interracial marriage in Loving versus Virginia. Right. It said because, quote, Its miscegenation statutes punish equally both the white and black participants in interracial marriage. The statutes basically don’t discriminate on the basis of race. The court rejected that justification there. And it seems hard for me to see how they could accept the same kind of logical structure of argument here without calling into question that part of Loving.

 

Melissa Murray Well, Kate, I think we can begin to see the kernels of a new logic emerging where we draw distinctions between sexual orientation and gender identity and race. I think we’ve already seen some of those lines being drawn in cases like Masterpiece Cakeshop and 303 creative. The case that you’re referring to, Loving, Kate. Not only rejected that logic, it rejected the case in which that logic had been affirmed by the court, which is an 1883 case called Pace versus Alabama, where the court upheld on, again, an equal treatment logic of Alabama’s anti-miscegenation law. If they were to credit that logic, they’d actually be resuscitating a previously discredited precedent, which I don’t put it past them.

 

Leah Litman [AD]

 

Kate Shaw Let’s move on to the other cases the court will hear in the sitting. The court will also hear the argument in FDA versus wages and White Lion investments, an important public health case that also concerns how aggressively the court is going to use the arbitrary and capricious standard by which courts evaluate much agency action under the Administrative Procedure Act. So the case arises out of the FDA’s denial of authorization to market certain e-cigarette flavors. And part of the FDA’s rationale in these denials was that certain flavors were more likely to appeal to children. And so the FDA declined to approve them, although it did approve other e-cigarettes. And I don’t know if you guys looked at the list of some of these flavors in the briefs, they’re pretty wild. And it does seem as though, yeah, these seem pretty attractive to children. So let me just tick off a few examples.

 

Melissa Murray Eh. Not all of them.

 

Kate Shaw Seeking approval. Okay. There’s a range, I think. Lemonade, Rainbow Road, Chewy clouds, Sour Grape. Jimmy the Juice Man pkg Strawberry Cloud Science alpha, which apparently tastes similar to cotton candy. Cloud Science Epsilon. I don’t know what that one tastes like. Creme brulee, Killer custard, strawberry parfait, suicide bunny, mother’s milk and cookies.

 

Melissa Murray Mother’s milk and cookies. Sounds like it could have been used at our last episode.

 

Kate Shaw It’s true.

 

Melissa Murray It doesn’t sound like the youth will like it as much.

 

Kate Shaw Okay. Stipulated. But the rest of them, I mean, my kids would be into something called chewy clouds sour grape, I am sure.

 

Melissa Murray Follow you for more parenting tips.

 

Leah Litman But, but. Okay, so so I agree with that. You know, some of the flavors, like creme brulee. I don’t know how kid- oriented that is, but part of the problem is this not all people grow out of childlike obsession with sugar, specifically me. I like exist on sugar, like the sweeter the candy, the cookies, the dessert, the more I want it. When we embarrassingly go and shop for wine and people ask well what sort of.

 

Melissa Murray You like a moscato don’t you?

 

Leah Litman I love moscato, it’s my favorite.

 

Melissa Murray I know you do!

 

Leah Litman And then. But you’re. Okay. Even worse, people will ask what sort of moscato you like anyway. More cloying sugar, the better, right? Look, I want that cloying sugar taste.

 

Melissa Murray I’m going to recommend to you.

 

Kate Shaw Bartles and James baby.

 

Melissa Murray No, amateur. Barefoot Pink Moscato. Like

 

Leah Litman I’ve tried that. It’s not quite as sweet as I like it, which is.

 

Melissa Murray Are you fucking kidding?

 

Leah Litman Like Cupcake moscato. Again, I don’t do caffeine. I do sugar and I love sugar.

 

Melissa Murray Oh my. Okay, back to the e-cigarettes. The question in this case is whether the FDA’s denial of authorization was arbitrary and capricious, or instead whether it was supported by the facts that question mass some very interesting background dynamics in this case and also some potential administrative law issues that the court might decide to wade into. So what’s going on in the background of this case? Well, one thing is that the FDA denied authorization because it was concerned about particular flavors appealing to kids like this was Kate’s concern just a moment ago. But the reality is that what appeals to kids also appeals to adults. That’s what we were saying. And that’s what prompted that whole Moscato interlude. So there’s really some question here about the extent to which sugary sweet flavors are targeted at minors or are uniquely appealing to minors, or whether they just appeal to everyone with an undiscriminating palate. Not you.

 

Leah Litman It is discriminating. It’s discriminating in favor of sugar. But there’s also some question about the relationship between e-cigarettes and cigarettes and tobacco and whether picking up an e-cigarette makes someone, you know, more likely to smoke a cigarette or use tobacco or less. And those are some of the background factual issues that might have affected or might affect, you know, an FDA determination on this issue. And the case.

 

Melissa Murray Also arises in the posture of the change in administration. So the Trump administration previously took a more lenient or sympathetic approach to e-cigarettes relative to the Biden administration. I know you’re surprised. And if you think the science doesn’t resolve the question here, then you might be sympathetic to the idea that politics or value judgments are a perfectly appropriate way to come to a decision here. But we shall see a few other things happening in this case. One is the dynamics at or within the FDA, which is in some ways one of the more cautious agencies in that they are often inclined to say no. They’re concerned about replicating the failure of light cigarettes. This was a thing back in the day, the idea that you could market a cigarette that had a lower level of tobacco and it would somehow be less harmful or less addictive. So again, that might be a concern within the FDA and might shape or influence the dynamics here in this case.

 

Leah Litman Yeah. And there are, of course, other historical examples, you know, where the FDA approved. Drug only to learn later. It had somewhat catastrophic consequences. What am I ID? Right.

 

Melissa Murray Also a good one.

 

Leah Litman Right? Yeah. So the FDA also asked applicants to provide a lot of information about how the companies would keep the product out of kids hands and specifically to include discrete plans for all the different flavors and all of the different possible dosages. But then it turned out that was way too much information for the FDA to process, and the FDA couldn’t review all of the information individually. And so the FDA therefore said they wouldn’t review any of them, but that all of the methods of trying to keep this out of hand of kids were ineffective. And I think kind of conceitedly is right. Like they are ineffective. But the solicitor general, that is the federal government concedes that was an error. You know, the FDA can’t do that kind of bait and switch. But the question is whether that error was harmless again, because no one’s really questioning that. The methods of trying to keep this out of the hands of kids. Right. Those just aren’t really going to work. There’s also some under the surface hostility to an agency making policy through what’s called adjudication. That is, you know, adjudicating individual cases rather than going through a rulemaking process. And so here, of course, the change is possible, change in posture toward e-cigarettes and e-cigarette flavors.

 

Kate Shaw We should say the court actually took a very expansive view of harmlessness in administrative law cases in a case about HHS’s decision to essentially bypass public comment in implementing a very protective rule about employers obligation to provide contraception in the Little Sisters of the Poor case. But we will see if that broad conception of harmlessness obtains here.

 

Melissa Murray I’m guessing, no.

 

Kate Shaw Seems like it’s a safe guess. But what we will see and in general, the case does seem to have hallmarks of Ohio versus EPA, where the court held that the EPA’s good neighbor rule was arbitrary and capricious because the Republican appointees, except for Amy Coney Barrett, just weren’t super convinced by the EPA’s explanations about the science. Both cases write Ohio versus EPA in this case, are about just essentially how closely the court is going to flyspeck agency explanations, rationales, assessments of facts. In Ohio versus EPA, the court freely second guessed what the EPA did. But of course, the EPA, at least under Democratic administrations, is always in the wrong and always acting illegally. The question is just how. And maybe the question in this case is whether that also holds true for the FDA, at least when controlled by a Democratic administration.

 

Leah Litman So I kind of agree with the suggestion or intimation that maybe the court may be inclined to, as they said at the Federalist Society National Lawyers Convention deal, another blow to the administrative state.

 

Melissa Murray Cheers!

 

Leah Litman Right, exactly. Pop that champs make sure it’s Moscato. Or maybe they let this one go because the Trump administration is about to come back in and say yes to all the e-cigarette manufacturers. You know, who knows? But we’ll see.

 

Melissa Murray The court is also hearing seven County Infrastructure Coalition versus Eagle County, Colorado. And this case is about agencies obligations under NEPA, the National Environmental Policy Act. NEPA requires agencies to consider the environmental impact of proposed agency actions. The question here is what kind of environmental impacts?

 

Kate Shaw Here, the Coalition sought approval from the Surface Transportation Board, STB to build a new rail line so as to be put together an environmental impact statement that concluded the project should move forward. The decision was challenged on the ground that the STB failed to consider certain environmental impacts, such as the increased demand for crude oil. Given the construction of the highway, the downstream effects of increased oil refining and the possibility of accidents on the line, which could create additional environmental costs.

 

Melissa Murray The D.C. Circuit concluded that the STB’s environmental assessment was invalid. Interestingly, the federal government is supporting the petitioners and arguing that the assessment is valid. The Federal Government says the STB didn’t have to go further upstream or downstream in considering the environmental impact. That is, they didn’t have to consider the effect on supply or demand for oil or the risk of accidents. All it had to consider was what construction and the presence of the rail line would do to the environment. Though the Federal government adds, the STB did consider the effects of increased oil production in the area. The government also cautions the court against adopting any kind of bright line rule, like telling the agencies they need not consider consequences. They don’t directly regulate, like in this case, oil refining or telling agencies they must only consider effects proximately caused by a project. Things of that nature.

 

Kate Shaw And some of the background to the case is just the big question of the extent to which Nepa requires agencies to consider the effect of a particular project on climate change.

 

Melissa Murray What is climate change? Does it exist?

 

Kate Shaw We hardly know.

 

Leah Litman It’s a it’s a hoax. So other cases to note on the court’s docket, one is United States versus Miller, which is a bankruptcy case that is actually a sovereign immunity case. So sovereign immunity is the rule that the sovereign here, the government cannot be sued without its consent. And the question here is whether one sovereign, the United States, consented to being sued in some form under a provision of bankruptcy law.

 

Melissa Murray Under Section 544 B of Chapter 11, A bankruptcy trustee may avoid a previous transfer if it is, quote, voidable under applicable law by a creditor holding an unsecured claim. And quote And the applicable law here may include state law. Section 106 of the Bankruptcy Code abrogates the United States immunity with respect to section 544 B. The question in this case is whether the trustee may avoid a debtor’s tax payment to the United States under section 544 B, when sovereign immunity would have barred the applicable state law, fraudulent transfer action against the United States outside of bankruptcy?

 

Kate Shaw Let’s make this concrete with facts. So a company, the all resort group Inc, paid money to the IRS to satisfy tax obligations of its principals and then later filed for bankruptcy. The trustee in bankruptcy filed suit against the United States to recover the tax payments. The trustee relied on a state fraudulent transfer statute, and the government asserted as a defense that the debt wasn’t voidable under state law because sovereign immunity would bar that suit outside of bankruptcy. The government argues that the trustee can’t avoid a debtors tax payment when sovereign immunity would bar the underlying state fraudulent transfer suit. The government says that Section one of six addresses only the government’s immunity from suit, not the distinct merits issue of whether state substantive law provides an avenue for relief. And the government points to the statement in section one of six that says, quote, Nothing in this section shall create any substantive claim for relief or cause of action.

 

Leah Litman Then there is Republic of Hungary versus Simon, which is another sovereign immunity case, but this time foreign sovereign immunity, foreign sovereign immunity is governed by a federal statute, the Foreign Sovereign Immunity Act.

 

Melissa Murray The question here is how plaintiffs make out an exception to the FCA, an exception that would allow them to sue a foreign sovereign. The relevant provision here says you can bring suit where property is expropriated. That is taken in violation of international law, and the property has an adequate commercial nexus to the United States.

 

Kate Shaw One question in the case is how to prove an adequate commercial nexus exists. Do you have to trace a foreign nations property in the United States to proceeds of the sale, or can you rely on commingling of funds? Another is the burden that a plaintiff has. Does a plaintiff have to establish in the complaint that the expropriation exception applies, or are they subject to normal pleading standards of plausibility? And then another is also a burden question, which is whether a sovereign bears the burden of producing evidence to show their property in the U.S. isn’t traceable to historically commingled funds.

 

Leah Litman As with many of the expropriation cases, this arises out of Holocaust era seizures of Jewish property. The Republic of Hungary confiscated property of its Jewish population and sold it, and then added that to the country’s national wealth. They also recently issued bonds in the United States, so Jewish survivors of the Hungarian Holocaust brought suit, asserting that the bonds satisfied the expropriation exceptions Commercial nexus requirement.

 

Kate Shaw We also have hostesses versus United States. I have no idea how to pronounce this one. And I should I should put you in a.

 

Melissa Murray Just say it authoritatively and I’ll be fine.

 

Kate Shaw But I’m not a man, Melissa. I’m not sure that works. I did get a couple of listener notes that I said in a video last week and not invidea mea culpa. Sorry. So this case, this versus the United States, allows the justices to continue on with their passion project of whittling down federal fraud prohibitions. This case, unlike many recent cases, actually doesn’t involve fraud or corruption by a political official. So it probably won’t spark as much joy in them as it could. But as to this case, the federal wire fraud statute prohibits schemes to obtain money or property by false or fraudulent representations. So the government often has to prove the fraud victim was deprived of property. The question here is whether falsely representing compliance with a contract term that is not economic deprives the victim of property when it induces the victim to part with money in a contract.

 

Melissa Murray The specifics of this case are as follows. PennDOT, which is the Pennsylvania Department of Transportation, awarded millions of dollars in contracts to Alpha Painting and construction, which was managed by Stamatios Kousisis. A condition of the contract, says that the company agreed to buy paint from a disadvantaged business enterprise, and PennDOT paid the petitioners based on the false certification that they had purchased the paint from a DBE. The question here is what’s the relevant money or property? Is that the money the victim paid? Is it the victim’s intangible interests in compliance with this provision? The petitioner says the government has to show a defendant intended to harm the victim’s economic interests, not compliance with a non-economic contract term.

 

Leah Litman So even though this case doesn’t involve fraud by a public or a political official, I have to say reading into it really made me think about what we are likely to see from the Trump 2.0 administration as far as kleptocracy, graft and corruption. You know, can you imagine different members of the administration funneling government contracts to themselves and their cronies? You know, even if said cronies aren’t going to perform what might be required under the terms or they certify they’re going to perform. It just really made me.

 

Kate Shaw But there’s a robust body of federal statutes that would chill. The willingness of such would be wrongdoers from actually engaging.

 

Leah Litman And a lot of.

 

Melissa Murray I’m aware of the Supreme Court precedent that takes those statutes very seriously.

 

Kate Shaw Very seriously.

 

Leah Litman Right. Yeah. I am aware that those statutes are on the books. I am also aware of what this regard has done to them.

 

Kate Shaw Yup.

 

Melissa Murray Fear not little one. It will be fine.

 

Leah Litman Really? Right. Finally, there is Feliciano versus Department of Transportation, which is about compensation for reservists. Federal civilian employees who are also reservists, may be entitled to the difference between their lower military reservist pay and their civilian salaries. That’s called differential pay when they are called to active duty under a federal law. The employing agency must provide differential pay when the employee reservist is called to active duty under one of several listed provisions or under, quote, any other provision of law during a national emergency declared by the president or Congress, unquote. So the question is whether federal civilian employees who are called to active duty during a declared national emergency are entitled to differential pay even when they are performing duties that might not be necessarily connected to that emergency.

 

Melissa Murray The facts here are as follows. Nick. Feliciano was a federal air traffic controller for the FAA and also served as a reservist in the Coast Guard. He was called to active duty during a declared emergency, but his duties weren’t connected to that emergency. And there are also some pending cases raising the same issue that the court is holding on to now. That is, they’re waiting to act on those cases until they reach a decision in this case.

 

Kate Shaw Feliciano Finally, we wanted to note that ProPublica has reported on what is now the third known case of a woman dying because of Texas’s restrictive abortion laws. ProPublica has also reported on what were the two known cases of women dying of the same in Georgia, Amber Thurmond and Avery Belle, as well as Texas women and of Ukraine and Georgia Ali Barnicle, all of whom died because of the denial of medically needed abortion care. The latest story involved Portia and Gomez, who suffered a miscarriage at around 11 weeks of pregnancy. She experienced severe, severe blood loss that required two transfusions at an emergency department, but she needed a DNC, the standard first trimester miscarriage treatment that is also an abortion procedure, and it involves the doctor removing remaining tissue from the uterus so as to stop the bleeding. But the Texas doctors didn’t do that, and Portia passed away. The story, like the others, is just gutting. Portia is survived by her husband, Hope, and their two sons, ages three and five. When Hope returned home, one of his sons asked, Is Mommy still at the hospital? The youngest son didn’t understand that his mother was gone for a while when he would see a woman with braids from far off, he would run after her shouting, Mommy. It is just heartbreaking.

 

Melissa Murray ProPublica also reports that Portia’s husband, Hope, said this We all know that pregnancies can come out beautifully or horribly. Instead of putting laws in place to make pregnancy safer, we created laws that put them back in danger. And quote, just to say we actually hate having to talk about these stories. We hate having to share them. They are absolutely gutting. But we continue to do so because we think it’s even worse to let what is happening to women, children and their families go unnoticed. In the march toward what feels like Gilead. So there are consequences here and there actually real life human consequences.

 

Leah Litman And states are trying to disappear those stories. So after ProPublica obtained the Georgia Maternal Mortality Commission’s findings that two Georgia women had died because abortion bans delayed necessary care, the state responded by disbanding the Maternal Mortality Commission, and then the Texas Maternal Mortality Commission was told they will not examine cases from 2022 to 2023. The first two years of Texas’s restrictive abortion laws being in effect.

 

Melissa Murray This is such a standard move like it reminds me of during Covid when they just stopped testing and then you couldn’t talk about whether Covid rates were going up or going down. Like it just like, you know, the absence of information means we don’t have a problem at all.

 

Kate Shaw Yeah. Like, rather than thinking about even adding meaningful protections for doctors to perform lifesaving abortions, even, that’s something that they won’t consider. But instead they’ll disband the commissions that actually study what is happening in their states. All right. So finally to you know, and on another although different kind of bleak note, the court granted cert and a pretty scary non delegation doctrine case. So this is what we meant to the outset when we alluded to partying like it’s 1935. This case involves the way that the Federal Communications Commission administers the Universal Service Fund, which impacts access to broadband in large swaths of the country. And the argument is that it violates the non delegation doctrine, a doctrine that, again, we’ve said this before, had really one good year in 1935, but has been dormant and properly so since. Although there’s a lots of interest in this venture, some court in reviving a robust version of it here and.

 

Melissa Murray Here, here.

 

Kate Shaw It does that we’re going to need a bigger bottle of champagne if, in fact this results in the finally the revival in a, you know, full throated way of the non delegation doctrine could be a technical knock out for the administrative state, not just another blow, at least the part of the administrative state that does anything to protect our health and safety and welfare. I am sure they will find a way to keep standing a shell of an administrative state so that grifters can grift and amass power.

 

Leah Litman Like DOGE.

 

Kate Shaw Like DOGE. Whatever else falls, DOGE will stand.

 

Melissa Murray Not a real department. Really. More like a faculty committee.

 

Leah Litman Exactly.

 

Kate Shaw The DOGE co-bros of the faculty committee will remain.

 

Melissa Murray ASS deans.

 

Kate Shaw I guess we’ll always have that.

 

Leah Litman So a few notes before we go. Last week, Pod Save America dropped a special episode featuring Dan Pfeiffer postmortem interview with senior staff from the Harris-Walz campaign. It’s a must listen episode as the staff reflects about what happened, why and how we move forward. And on Friends of the Pod, Dan followed it up with a Q&A episode, answering listener questions pulled directly from our Discord community. Do you want to join the conversation? Then subscribe to Friends of the Pod and jump into our Discord.

 

Melissa Murray [AD]

 

Kate Shaw Strict Scrutiny is a Crooked Media production hosted and executive produced by Leah Litman, Melissa Murray and me, Kate Shaw. Produced and edited by Melody Rowell. Michael Goldsmith is our associate producer. Audio support from Kyle Seglin and Charlotte Landes. Music by Eddie Cooper. Production Support from Madeline Herringer and Ari Schwartz. Matt DeGroot is our head of production. And thanks to our digital team Phoebe Bradford and Joe Matasky. Subscribe to Strict Scrutiny on YouTube to catch full episodes. Find us at YouTube.com slash Strict Scrutiny podcast. And 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 helps.

 

Leah Litman [AD]