After covering some breaking news, Kate, Melissa and Leah recap last week’s oral arguments at the Supreme Court, including cases about civil rights, ghost guns, and the death penalty. Come for the palpable tension between Justices Alito and Kagan, stay for SG Prelogar gently explaining to Justice Alito how a gun isn’t like an omelet.

TRANSCRIPT

Show Intro Mr. Chief Justice, may it please the Court. It’s an old joke, but when an argued, a 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 where your hosts. I’m Melissa Murray.

Leah Litman I’m Leah Litman.

Kate Shaw And I’m Kate Shaw. And newsflash, we are less than one month out from the November election, which, you know, if you haven’t been living under a rock. But if you are listening to this podcast, we need you to do a couple of things. First, we need you to make sure you are registered to vote. And second, we need you to check in with your friends, your book club, your swim team, your yoga instructor.

Leah Litman Your physical therapist.

Kate Shaw Your PT. Your actual therapist, everyone, all of them, and make sure that if they are eligible to vote, they are registered to vote. Deadlines are coming up fast in a lot of places. They have already passed in a few states and Pennsylvania, where I teach these days. The deadline to register to vote is October 21st. So in a lot of places, you still have time to have big impact. And please, please make sure you do not miss that opportunity. We’re begging you.

Melissa Murray We’re also halfway through the court’s October sitting. So if that doesn’t bestir you to go check your registration, I don’t know what will.

Leah Litman Wait until you hear what these guys think about executing potentially innocent people. Right.

Melissa Murray And you want to vote? You really do. You really do. So here’s how this episode’s going to run. We are going to break down some breaking news and then we’re going to recap the big arguments that the court heard last week. And then we’ll briefly look ahead to what’s on deck for this week. So first, breaking news.

Leah Litman So remember moil last term’s metallic case, the case about whether the Emergency Medical Treatment and Active Labor Act forbids states from prohibiting hospitals from providing medically necessary abortions. Or the court punted and said that it had granted surgery improvidently and therefore it didn’t decide the case. Remember when some folks in the media said this was a big win for abortion rights? Remember when we called it bullshit and told you not to believe it? Well, the plot has thickened. So the question in Moyle again was whether a federal law which requires hospitals that receive federal funds to provide emergency care to pregnant patients in crisis applied even in states with extreme abortion bans. Idaho said the federal law doesn’t apply supremacy of federal law done over.

Melissa Murray And the Supreme Court initially sided with Idaho staying a district court opinion and letting Idaho enforce its extreme ban regardless of federal law and regardless of the threat to a pregnant patient’s health. Leading women in that state to routinely being airlifted out of Idaho to get the necessary abortion care. The court ultimately decided that it had intervened too early in the case. We could have told them that, and they then sent it back. But we warned you that this might be no more than the court finally getting that abortion was a salient electoral issue. And this happens to be an election year. And so perhaps this decision to send back as improvidently granted was really just a punt designed to minimize the impact of abortion and this decision in the electoral cycle and in our politics.

Leah Litman The passive voices of the Supreme Court.

Melissa Murray I mean, neutral virtues as they were anyway. Well, listeners, a nearly identical case was back at the court last week, though this time it was Texas rather than Idaho, trying to enforce its extreme abortion law, notwithstanding the impact of federal law. And in an unsigned order, one of the many that the court issued last week, the court again allowed a state to defy federal law and enforce its draconian abortion ban. So let’s just break this down. The court is willing to intervene to block a lower court opinion when the lower court acts to respect federal law and protect pregnant patients in Idaho. But the court stays hands off and leaves the status quo intact when the lower court allows a state abortion ban to Trump said federal law. I think I get it now.

Leah Litman What is it like? Fool me once, fool me twice. Etc. etc..

Melissa Murray Keep fooling me with your 6-3 conservative supermajority. Have your way with us.

Kate Shaw Shame on them in all events. And to be clear, the federal government here was actually just asking the court for what’s called GVR, a grant to vacate and remand. So they were asking for an order in which the court grants cert, but then vacates the decision below. And rather than hearing arguments on the merits, remands the case for further proceedings below. So the Federal Government was just asking the Supreme Court to tell the lower courts to take another look at this. This question in light of Moyle and in particular in light of the federal government’s concession at oral argument that individual doctors can lodge conscience objections in circumstances where. They do not want to be compelled to provide abortion care. And the court’s refusal to even grant that modest ask. Writer VR In light of the dig in Moyle and the opinions that were written in Moil, I think sends an incredibly ominous signal about what the court is likely to do when the question is back before the justices in a non-election year or maybe, I don’t know, later this year after the election. So they’ve now.

Melissa Murray Literally on November 6th?

Kate Shaw Well well, I think so. In terms of the timing that, you know, they have.

Melissa Murray I’m just kidding. And no November.

Leah Litman No, but it’ll be November 7th.

Kate Shaw Right. So they have had two chances to clarify. The pregnant patients are entitled to care under Ayatollah. They have declined to do that both times. I think that is with a really important kind of top line. In the near term, the decision will compound the horror that is a medically complicated pregnancy in the state of Texas. So remember, the Texas Supreme Court in those Roski case made clear that the medical exception in state law is essentially meaningless. And now heirs can’t even abide by federal standards when pregnant patients show up in acute distress. It is appalling. But in terms of like when this may be back before go to. So no, it won’t be November 6th or seventh, but it could be kind of fast, probably not out of Texas, but out of Idaho, because in the Idaho case, Moyle actually the the en banc ninth Circuit is in the midst of getting briefs and has scheduled oral arguments for the week of December 9th. So the Texas case actually will probably involve a remand to the district court, and I’m not sure when that one will be back, but it seems like Moyle could be back in front of the Supreme Court as early as, you know, the first couple of months of 2025, at least, with a petition pending.

Leah Litman No. What’s Sam Alito’s New Year’s resolution is. I’ve got a guess now. Suspend the protections of I’m tall a nationwide. Yeah.

Kate Shaw Yeah. So I guess Idaho. I just I was just stopping to think whether he would have a preference as between the two. It doesn’t really matter. He would like to make sure that no one in any state gets it.

Melissa Murray You say Idaho potato. I say Texas Potato. Like, it won’t really matter. It won’t really matter. In other news, the court also denied certiorari in an appeal of the Alabama Supreme Court’s decision holding that fertilized embryos are extra uterine children for purposes of Alabama’s wrongful death lawsuit.

Kate Shaw I truly love the way you say extra uterine in children.

Melissa Murray It’s just let me say it again.

Kate Shaw I want it as my ringtone.

Leah Litman Yeah, It’s just like dripping with disdain.

Kate Shaw It is.

Leah Litman It’s very apparent.

Melissa Murray I mean, you can drip with swagu or drip with disdain. I prefer disdain in the case of extra uterine children. In any event, the Alabama Supreme Court, if you’ll recall, issued a decision in which it said that fertilized embryos are extra uterine children for purposes of Alabama’s wrongful death statute. And when that came down, we were all, I think, rightfully shocked by the Alabama Supreme Court’s very, very fetal personhood curious stance. But the issue here really presented a number of issues that are really questions of state law. So it wasn’t that surprising that the Supreme Court denied this petition for review. But again, just another reminder that fetal personhood watch is really on and it’s coming. So stay tuned.

Leah Litman On that bit. We have an update on one of the anti-abortion cases brought by Jonathan Mitchell. This is the case filed by the ex-husband after, you know, the wife obtained medication, abortion. The ex-husband sued the people he said helped his wife procure an abortion. And the plaintiff in the case, the ex-husband, dismissed the case after the court refused to compel the production of evidence the plaintiff had sought, including where they got the abortion medication and whatnot. And that’s a good result, to be clear. But the reasoning in the case is a little scary. So the court refused to compel production of the evidence, in part because it suggested doing so might cause the parties to incriminate themselves by indicating they violated wait for it the Comstock Act, by distributing medication abortion through the mail. So that’s scary, right? This is a court suggesting that there is a chance the Comstock Act, the 1873 Victorian anti-virus law, does in fact prohibit the distribution of medication abortion through the mails and functions as, again, an abortion ban that is already on the books that a Republican administration could begin enforcing without Congress having to pass a new law or at least try to do so.

Melissa Murray That case was also really fetal personhood. Curious as well, because you’ll recall that Texas already has the Heartbeat Act, which is the bounty hunter, a law that allows private parties to sue other citizens for helping someone to get an abortion. So that law could have been used here. But instead, Jonathan Mitchell and the ex-husband actually filed suit under Texas’s wrongful death statute. And that was really important because around. A full death statute only applies in circumstances where a person has been killed. So the idea here is that the provision of medication abortion that these women helped the pregnant person get was the homicide of the fetus. And the fetus is a person for whom the husband can now recover in wrongful death. So. Layers there are layers to this stuff.

Kate Shaw Well, it’s scary in its inception and the era that we are in is one in which even a good outcome, a result in a particular case, is fucking terrifying as case.

When you were, you’re like, you’re happy about the Comstock act but also not happy with the Comstock Act..

Kate Shaw I know, I know. So, okay. In other news, last week, friend of the pod, Senator Sheldon White board, a White House issued a report, evidently six years in the making about the FBI’s investigation or really, as the report tells it now, an investigation of the sexual assault allegations made against Brett Kavanaugh as listeners. Well, I’m sure remember Dr. Christine Blasey Ford accused Kavanaugh of attempting to sexually assault her when they were both high school students. After she testified, the Senate Judiciary Committee asked the FBI to conduct a supplemental background investigation into these allegations and some others adjourning the hearing to ostensibly allow the FBI to investigate.

Melissa Murray Except that the report suggests that the investigation was kind of a sham. According to the report, the Trump White House prevented the FBI from investigating witnesses and following up on those leads says that the FBI set up a tip line. But then all of those thousands of tips went directly to the White House and the FBI never investigated any of them. And yet, despite all of those deficiencies, multiple senators cited the investigation’s failure to produce corroborating evidence of sexual assault as a reason that they could comfortably vote for Brett Kavanaugh and that listeners is how we got the fifth vote to overturn Roe versus Wade. So good work, fellas, is absolutely legendary.

Leah Litman So with that breaking news, let’s go on to recaps. We are halfway through the October sitting, as we said, at the top. So we’re going to recap the biggest cases the court heard last week. The very first case the court heard this term was Williams versus Washington, a case about when you can file a Section 1983 federal civil rights claim in state court. Section 1983 is the general federal civil rights statute. The parties frame the case as whether the exhaustion of state administrative remedies is required before a plaintiff brings a federal civil rights claim in state court. So what that means is whether a plaintiff has to first try to prevail or resolve a matter through state administrative agencies before filing suit in state court. A prior Supreme Court decision, Patsey versus Board of Regents, had held that exhaustion of state administrative remedies was not required to bring a federal civil rights action. And the court has since made clear that this rule equally applies when you’re trying to vindicate your federal rights in state court. Now, in this case, the state court below said that Patsy didn’t apply because the state had created an exclusive state administrative scheme in state law and the state rule was jurisdictional. This is nonsense. States can’t nullify or alter the federal rules established by federal law here by the general Civil Rights statutes, Section 1983. It doesn’t matter whether the state has cast them as jurisdictional or exclusive, right? If it walks like a duck, quacks like a duck, it’s a duck.

Kate Shaw And in general terms, the kind of theory at the heart of this case is one that could pose a genuine threat to civil rights enforcement. Right. Section 1983 is an incredibly important vehicle for the protection of rights And ruling for Alabama, which was the state here, could give states permission and perverse incentives to erect all kinds of procedures that litigants would have to pursue before filing a claim in court. Luckily, though, there really didn’t seem to be a majority on the court inclined to rule for the state here.

Melissa Murray There also didn’t seem to be a whole lot of palpable warmth between the justices on the bench during this first oral argument of the term. So if you were wondering whether absence from Samuel Alito has made anyone’s heart grow fonder for the gentlemen, I think the answer is a resounding abso fucking not see e.g. this Sam Alito effort to make nice with Justice Kagan and her, shall I say it? Chilly response. Roll the tape.

Clip Can I labor it? Ask about the dimensions of your argument in two different ways. I’ll give you just a couple of hypotheticals. Here is all right. If I don’t want to appeal real Justice Kagan, I think I have a number of hypotheticals, but so I don’t want to interrupt that. But then I eventually I do want to ask you about Mr. Unicast, his narrow argument that you want to make. It doesn’t matter which way you went.

Melissa Murray Translation, Shoot. Your shot Ace. I’m going to pay you in dust.

Leah Litman Elena Kagan pouring one out for all the women who do not aspire to be humble as against Sam Alito. That was a reference to if you haven’t listened to it. Vice President Harris’s interview with Alex Cooper on Alex Cooper’s podcast, Call Her Daddy. It’s a fantastic interview. Definitely go listen to it. But in the podcast, Alex asked Vice President Harris about remarks that, you know, Vice President Harris didn’t have any children keeping her humble.

Melissa Murray And Sarah Huckabee Sanders, I think you’re offering. To the governor of Arkansas said that.

Leah Litman Yeah. The one who wants to send children to the mines. Yeah. She was asked about her remarks and Vice President Harris had some things to say about it. So that’s that. Anyways, so on the first day of the term, the court heard another civil rights case, Lackey versus Stinney. This case presents multiple circuit splits on an important issue, which is whether a plaintiff who obtains only a preliminary injunction is a prevailing party entitled to attorney’s fees. A federal law Section 1988 and other federal civil rights statutes provides that parties who prevail in federal civil rights actions may be entitled to attorneys fees. The question here is whether to be a prevailing party for purposes of the civil rights statutes. You have to obtain a final favorable ruling from a court such as a judgment on the merits or a court ordered consent decree, as opposed to hear what the plaintiffs got a preliminary injunction which indicates that you are likely to prevail on the merits. There’s one more wrinkle here, which is the plaintiffs challenged a Virginia fines and fees scheme and were granted a preliminary injunction. But while the case was pending after the litigants prevailed in their request for a preliminary injunction, the Virginia state legislature, at the urging of state officials, repealed the fines and fees scheme that the plaintiffs had challenged. So that further complicates the question of whether the plaintiffs are prevailing parties entitled to attorneys fees.

Melissa Murray In our last episode, we also briefly flagged Royal Canin case about federal jurisdiction. And we’re not going to go into a whole lot of detail about it, but it did seem from the oral argument that it was very likely that the respondent in the case was going to prevail, which is to say that the court seems very likely to say that when a plaintiff amends their complaint to take out a federal claim, the case isn’t removable. So there was this really interesting exchange with the respondents lawyer that we did want to highlight just for kicks. So let’s roll the tape.

Clip Counsel We have had cases where we came out the other way and then the every court of appeals, it had come out, right? Yes, you have, Mr. Chief Justice. Like what? I think there are. That’s a great question and none spring to mind. But I am positive that I can find some sense of well, I think it’s pretty bold to take the position without knowing one fair market, whatever. Was that the case in Charter I? And as for Strata, yes. I don’t know. I apologize. Check. I just I’m not sure which way that got.

Leah Litman I love the idea of just confidently asserting a proposition to the Supreme Court when you don’t actually have any examples to substantiate it.

Melissa Murray But somebody will check.

Leah Litman Somebody will check. I mean, of course there are examples, right? Like this, just graves like Rafe and whatnot. But it’s just like, you know, find cite here is basically the attitude that the litigant took in front of the Supreme Court. And I guess I just wanted to step back. You know, we’re kind of a month into law school. You know, there are first years who are just kind of getting their bearings. And I know it oftentimes seems like the people who are speaking quickly, confidently, right, with like punchy turns of phrases and whatnot, they’re the ones getting all of this. No, not necessarily. Right. Like that is one skill. There are many, many, many other skills that go into reading it as all employer reading, researching, take, not making shit up, the list goes on. So just wanted to kind of step back and make that note for the law students in the audience.

Kate Shaw Art So moving on to one of the big cases that we wanted to talk about from last week, and that is Garland versus Vander Storch, the case about whether the ATF has the authority to regulate ghost guns like any other firearms. We struck a fairly pessimistic note about this case last week when we predicted that the case might well go the way of Garland versus Cargill, which was a case that last term struck down an ATF regulation of bump stocks. And I am delighted to report that we may well have been wrong in our pessimism. When we’re wrong, we say, Yeah, I totally yeah.

Leah Litman Yeah. So I’m not totally sure we predicted that. Given that we noted that the court had stayed lower court decisions, putting it on hold. And I’m also unwilling to just take on the argument that this is definitely what the court is going to do, although I think it is more likely than not that they uphold the regulation. Sorry, Melissa, did you want to.

Melissa Murray Well, we’ll get to this like so I’m happy to be wrong on this, but I think it’s still too early to say that we were totally wrong. So let’s see. And again, the devil is in the details. Really. Clarence Thomas is in the details. So, yeah.

Leah Litman Well, you know, it turns out. So Solicitor General Prelogar argued the case herself on behalf of the federal government. You know, somewhat interesting because her deputy, Bryan Fletcher, had handled Cargill, although of course, she had argued the big Second Amendment case Rahimi. And while she is always excellent, she did seem to once again transcend to a higher plane of advocacy during this argument.

Kate Shaw How many more planes are there do we think.

Melissa Murray We have highlighted before all of the ways that Solicitor General Prelogar has perhaps turned Justice Alito into a communist because he seems to have no trouble getting publicly owned by her on a regular basis. And this argument was absolutely no exception. So let’s roll the tape.

Clip I want to stick with the definition of weapon for just sure. Show you here’s a here’s a blank pad and here’s a pen. All right. Is this a grocery list? I don’t think that that’s a grocery list. But the reason for that is because there are a lot of things you could use those products for to create something other than a grocery list. Like I show you, I put out on the counter some eggs, some chopped up ham, some chopped up pepper and onions. Is that a Western omelet? No, because again, those items have well known other uses to become something other than an omelet. The key difference here is that these weapon parts kits are designed and intended to be used as instruments of combat, and they have no other conceivable use.

Melissa Murray Shorter Prelogar, my dude. Do you even know what an omelet is like?

Leah Litman Is this guy just consuming raw eggs and vegetables every morning? And that’s why he’s so cranky when he gets on the bench.

Melissa Murray Eggs raw eggs P90X.

Kate Shaw I just loved it. Right. So he’s clearly in the first example. He’s holding up his pad. He’s holding up a pen and he thinks he’s like, gotcha. By asking, Is this a grocery list?

Leah Litman This is going to be the time. This is going to be the time.

Kate Shaw Sorry. When I brought props and I’m going to best her with my props and she has to concede it’s not a grocery list.

Melissa Murray This is not a grocery list, it’s a pad of paper.

Kate Shaw And you can do other things. And then with the egg example, it would be amazing if he did. I was not in court, but I do not believe he actually pulled out eggs to show her to ask if in fact were a denver omelet.

Melissa Murray I would have respected him so much more if he had.

Leah Litman If he’s just cracking raw eggs up at the Supreme Court.

Kate Shaw To be like, the problem is I didn’t bring enough exhibits and I will next time. But you could just hear him deflate when she answers like she just got him and it was glorious.

Melissa Murray Okay, it’s not an omelet. All right.

Leah Litman Right. Okay, fine. So in the government’s brief, General Prelogar had analogized a ghost gun to an Ikea furniture flatpack. That is. Just because it’s not assembled doesn’t mean it’s not furniture. And it appears that Sam Alito took that analogy personally, as he has often want to do. So roll that tape here.

Clip So what level of expertise is taken into account? What collection of tools is taken into account? Can you provide any sort of a time limit? How long must it take some of us who are not and don’t have a lot of mechanical ability have spent hours and hours and hours trying to assemble things that we’ve purchased? And with you on that one. Justice Alito, as someone who struggles with Ikea furniture, let me do my best And to try to be responsive to that question.

Melissa Murray I like how she was just sort of like, okay, sir, we’re going to find some common ground here. I can’t put together Ikea furniture either. Like it’s one of the rare places where I’m not great at everything.

Leah Litman Right.

Melissa Murray How about you?

Kate Shaw Sure, Elizabeth. Sure. You struggle. You’re just trying to make Sam feel better, right?

Leah Litman Exactly.

Melissa Murray But she’s like, also like a TaskRabbit and putting those things together for people in her spare time.

Kate Shaw Well. We know she put stuff together because separately in the argument, she talked about actually having assembled one of these ghost guns herself. So she clearly decided to literally take this question into her own hands because she knew she was going to get pressed with a lot of questions about the specific mechanics of assembling one of these. And clearly, she decided that she wanted to be able to speak from experience about the answers to those questions. So take a listen to this clip.

Clip I actually had the experience of putting one of these kids together, and it’s just like what the record shows. There are usually only a couple of steps. The first thing that most of the kids require is drilling the holes, usually at six holes, and you do it with the jig. So you had the product there in the tool and it removes all of the trial and error or guesswork. You know exactly where to drill in seconds. The second step is to remove the extra plastic blocking tabs. That again, doesn’t require much work at all because you clip them off with a pair of pliers or a box cutter. You can file it down with the jigsaw template using a metal nail file or using a Dremel Rotary tool that a lot of people, especially dog owners, own because it’s helpful for trimming your dog’s nails. At that point, you have a fully functional frame or receiver and you can quickly assemble it into a gun in no time at all. That’s how the products are marketed. That’s how they were sold.

Melissa Murray I love that she went full AMO sexual on them just like yes, I put together a ghost gun.  It took me 15 minutes.

Leah Litman This was also just like a big, you know, not all women aspire to be humble moments like I’ve just been assembling ghost guns in my spare time. Sam, what have you been doing?

Melissa Murray Making omelets? Cracking eggs?

Kate Shaw Also, did she maybe say she cuts her own her dog’s toenails herself and that.

Melissa Murray Yes, she did say that.

Kate Shaw She does. Yes. She said some people do.

Leah Litman And that is not for the faint of heart. Let me tell you.

Kate Shaw I mean, I’ve never done it. I can’t even really cut my children’s fingernails.

Leah Litman I have. During the pandemic.It’s it’s not easy.

Melissa Murray So. Well, she said she had one of those implements that you used like literally cut and file down your dogs nails.

Kate Shaw Or she said someone. Yeah. She says it’s like people might have them. Yeah. Yeah.

Melissa Murray Well you don’t know about that unless you actually have one.

Kate Shaw That was my read. I think so.

Still. It’s not easy.

Kate Shaw She does make it look easy, though. And for that reason, by the end of the argument, I did feel pretty confident that she had a solid majority on her side, which again, maybe I read our preview differently. I felt because of Garland versus Cargill and because it’s a different statute, the arguments are distinct, but the vibes are very similar. And because of that, I thought there was a really good chance that this was going to go the way of Cargill.

Melissa Murray I really think this is in the vein of the Colin Allred Ted Cruz Senate race in Texas. Where it was solidly in the Republican camp. Now it’s just leaning Republican because Albright has made some real inroads. But the real question is. What the fuck Texas like? Why are you voting for the gentleman from Cancun all over again when you have the option.

Leah Litman Who abandoned his dog?

Melissa Murray Right. This is all in the realm of that. Like, I don’t understand how that race is not solidly like a runaway race for Colin Allread. I similarly don’t understand why this isn’t going to be a 9 to 0 unanimous opinion in which the federal government gets a resounding win.

Leah Litman Yeah. And just to underscore, like why it is so perplexing, this statute literally defines firearms to include items that can readily be converted into firearms. And that is exactly what a ghost gun kit does. And yet some justices are going to say that is not a firearm that ATF can regulate, which is what makes this so outlandish.

Melissa Murray So another big case that the court heard last week was one that they should be relatively familiar with because it has been up and down to the Supreme Court a number of times, although on other issues, and this was, of course, Glossop versus Oklahoma, we previewed Glossop last week, it’s a death penalty case that features the rare episode where the prosecutors actually admit to committing some errors here, which is to say that the Oklahoma attorney general is admitting that the prosecutors in this case violated the Constitution and is asking that the defendant, Richard Glossip, be granted a new trial. So this was definitely an argument with real here come the general’s energy to former solicitor general, as were there representing Mr. Glossip. Seth Waxman was there representing Glossip directly. And Paul Clement was there representing the Oklahoma attorney general, which again was asking the court to order a new trial. There was an appointed amicus who argued in defense of the Oklahoma court’s position here.

Kate Shaw So here is Paul Clement distilling the issue in the case. And he’s talking about Oklahoma Attorney General Drummond.

Clip And General Drummond reached the conclusion regretfully, but reached the conclusion Our prosecutors elicited perjury here in a man’s going to go to his death. We can’t allow that to happen.

Kate Shaw But despite the facial clarity and simplicity of the claim that Clement was making to the court, at least some members of the court seemed to say, not so fast. Maybe we can allow that to happen. So if we were or at least I was unduly pessimistic in Van der stock, I think it’s possible that we are unduly optimistic here. And while it’s clear that the Democratic appointees are on the side of Glossip and the Oklahoma attorney general and justice, it’s also clear that Alito and Thomas and I think Roberts are not. And I found it at least just pretty hard to read Kavanaugh and Barrett. And that’s the whole case, because Gorsuch is recused.

Leah Litman And just to underscore what is happening here, like the Supreme Court is literally deliberating over whether when prosecutors elicit perjured testimony, refuse to disclose exculpatory material, then admit their error. Can state courts nonetheless force the state to execute a potentially innocent person like this is the big legal question that they’re devoting their time to. And the fact that the chief I mean, I, I was less sure exactly where the chief was leaning. I think sometimes he just asked difficult questions of both sides in a lot of these cases where it’s a this just cannot be situation, he does ultimately find his way to the right side, but not at all confident, which again, is that should be the story here. Like we don’t know how the court is actually going to rule on this issue, which is wild. And a lot of the argument turned on whether the Oklahoma court decision rested on what’s called an independent and adequate state ground. That is a state rule that was not related to the underlying federal constitutional claims. And so there was some fairly technical parsing of the Oklahoma Court of Criminal Appeals opinion being reviewed, whether the decision rested on state or federal grounds, and also whether there had been a waiver, that is, whether the state had waived its objection to any state law procedural requirements that might be an impediment to reaching the federal constitutional claims. But again, I just don’t think this is that hard because their reason, the court reason for why they weren’t going to consider the federal constitutional claims to the extent they didn’t, is that the defendant the defense could have discovered them earlier, but that’s bound up with whether the prosecutors failed to disclose exculpatory material and also with whether they elicited perjured testimony. And aside from that, in any case, like where a state is conceding error, you know, as the justices, the Democratic appointees noted, the courts have been totally fine with just accepting that concession of error. And now all of a sudden they aren’t.

Kate Shaw So sometimes you, I think, are genuinely in a difficult position where these tactical legal doctrines and principles of justice are in actual tension. But that does not seem to be the case here and which will make it just so wildly lawless and unjust. If some solid portion of the court, God forbid, up to a majority of it, decides like, you know, oops, maybe there was a little perjury, a little false testimony, but there’s nothing to be done here. So a couple of other things to note about the argument. I at least found it pretty unsettling how much attention was paid to an amicus brief that had been filed in the case by the family of the victim. The family was represented by a former federal judge, Paul Cassell. And despite the fact that this amicus brief contained information that was concededly not in the record of the case, it came up again and again in the oral argument, including the theories that it offered to explain one important piece of evidence in the case. Again, this brief itself, you know, was filed. In the Supreme Court, not in the lower courts. And it floated theories to explain evidence that were also very much not in the record. So let’s just play a couple of places where this brief was referenced.

Clip And the Van Trace Families amicus brief provides a pretty compelling counter reading of that. And you want us to say, Well, just pretend it doesn’t exist and read those notes the way we think they should be. Read as the Van Trees Families Amicus brief explains, It indicates that the investigation the attorney general conducted here and the other and two independent investigations were not particularly thorough.

Clip Okay. I want to ask you about the standard of review for looking at some other ones notes, because one of the difficulties, I think, with the notes is that putting aside whether the Ventress Reef is in the record, it’s not. It’s so it’s still reveals that there are multiple plausible interpretations of the notes.

Clip Now on the Ventris issue, that’s non record evidence. So it’s not before us. It’s not only not before you, it wasn’t the basis. It wasn’t before the Oklahoma Court of Criminal Appeals. So.

Leah Litman This is what happens when you have theories, not evidence. You know, as we talked about last week in the unsealed immunity brief.

Kate Shaw A lot of theories.

Melissa Murray Justice Thomas does this a lot as well. There was another death penalty case a couple of years ago where he, I can’t recall, was a death penalty case or a Fourth Amendment case where something involving a pretty heinous crime. And he just like again, went over and over into this brief that really detailed the family’s perspective I got in. So victim impact statements, pain, all of that. This stuff is. This is their bread and butter and they love it.

Leah Litman You know who Justice Thomas also thought was unfairly victimized and pained by this entire case? Who the poor prosecutors, through the defense was suggesting, had elicited perjured testimony and failed to disclose exculpatory evidence. Like there were several moments in the argument where he seemed just indignant at the prospect that anyone would deign to suggest prosecutors violated the Constitution without giving them an explanation or an offer to explain themselves, even though they had such an offer and chance to explain themselves. In this case, it was just wild. I mean, it was like taking Sam Alito’s conservative victimization complex and persecution complex and then just applying it to states, trying to execute people like it was. It was just wild. Well, you.

Melissa Murray Actually we I’m glad you mention Justice Alito, because I am old enough to remember when in the context of a state prosecution or a request for information in a state investigation of Donald Trump, Sam Alito had a lot to say about the nefarious influences of state level.

Leah Litman Prosecutor Or you remember when Justice Thomas, for example, basically suggested anyone who thought the Trump administration’s admission of the citizenship question to the census was engaged in some cockamamie conspiracy theory, and how could you possibly think that? So it’s not like these guys are above maligning state and federal officials when it suits them. But God forbid anyone suggests. Right. Prosecutors might have elicited perjured testimony in order to send a potentially innocent man to death. That that’s just going too far.

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Kate Shaw But it’s it’s both, obviously, the contrast, the hypocrisy with, you know, their suppositions about prosecutors and their motives in the Trump cases. But it was also so bizarre here because there was this suggestion that the prosecutors hadn’t even been interviewed or questioned. And in fact, they definitely had. So the factual predicate for the indignation was completely wrong. But when does that ever stop them?

Leah Litman It’s like we’re just going to put our facts or the evidence in the record and choose to focus on the evidence outside the record, right? Choices, as Tatiana would say.

Kate Shaw So in part because of this amicus brief filed on behalf of the Ventress family, it did seem to me that there was at least a chance the court would send the case back down for an evidentiary hearing, which is something that came up a couple of times. And I think that would just create truly terrible precedent around amicus briefs and their ability to totally change or derail the trajectory of a case. Right. If you can file an amicus brief at the Supreme Court, including facts and speculation, and then have the justices decide that whatever has transpired below, a new evidentiary hearing is required. I just think you pair that with like the way that the diagrams and GIFs from the Firearms Policy Coalition amicus brief in the Cargill case seem to really shape Justice Thomas’s opinion. You know, remember those appeared, you know, five of them maybe in the actual published opinion those those diagrams and, you know, link to a gif from the amicus brief. It just feels like the court will have fully created a set of incentives that if interested, parties want to change. Policy in this country, not just alter the trajectory of a particular case, but maybe like change policy writ large. There is no reason to bother with Congress. The executive branch elections, none of it. Get a good amicus brief filed in the Supreme Court. And that is the most expeditious and efficacious way to actually change the law and to change policy. And that’s madness.

Melissa Murray So it’s actually it’s such a terrific point, especially when you layer on like there are so few checks for amicus briefs. Like anyone can file an amicus brief, nobody checks that. What is being purported in the amicus brief is right is factually accurate. I mean, Ali Larsen at William and Mary has written tons of stuff on this. And again, all really terrific points. The incentives are already profound toward amicus briefs. And this would just expand those.

Leah Litman I don’t know why, but when you were saying no one really checks these and. Image popped into my mind kind of from the office. Episode where Michael learns that Oscar is gay. And I don’t know if you remember this, but like, Jim gives him an item that he tells him is gaydar. And it’s this item from Sharper Image that just like randomly beeps. And so Michael is just like kind of throwing it in the air and passing it, you know, across several people. And sometimes it beeps. I’m just imagining Sam Alito with like some sharper image thing that he’s just like running over amicus briefs and files and be seen. That’s a good one. That’s a good one. Anyway, sorry, that was a tangent. Okay. So back to the rest of the argument. Justice Kagan did try to cut to the heart of the issue in the case.

Clip There is some question, though, about just he lied on the stand. And in a case where the entire case rested on the testimony of one person and his credibility, if you can show that he lied on the stand when he said, I never saw a psychiatrist and I didn’t get a prescription from the psychiatrist, it was you know, they gave me lithium for a common cold. And and then the prosecutor says, well, that was a lie. I better correct that under Napo. And and doesn’t that seems pretty material to me. I mean, it’s just your one witness has been exposed as a liar. A couple of responses. Justice Kagan. I think first, there are threshold elements under Depew, including whether this was false testimony. I don’t think it was false testimony, but I want to take your question on its own terms. This false testimony that Snead saw, a psychiatrist that would have been harmful to petitioner under his theory of the case. Remember, the prosecution false is false.

Leah Litman I love this. False is false. False. We’re just going to stop there. Again, not all women aspire to be humble. We’re just going to shoot that one down, boys. So she she.

Kate Shaw Was great in this argument. I mean, you know, we were sort of talking about the chili affect, right, that she displayed vis a vis her colleague, Sam, who seemed to be trying to, like make nice. And I’m sure we were all trying to get a sense from this first week back of what the dynamics among them are really like and as like sharp and excellent as she was and always is like, the liberals sound tired to me, like they sound depleted. And I guess I’m not surprised. But the summer, whatever they did, did not fully expunge the madness that June and the beginning of July unleashed.

Melissa Murray So maybe I can add some color to this. So when Justice Kagan recently came to NYU in September and, you know, we did this conversation, she didn’t mention that they don’t really have Summers anymore the way that they used to, where they had these long expanses of time away from each other, that because of the uptick in shadow docket activity, they actually are in conversation, even if they’re not physically at one for st for much of the summer. So the fact of the matter may well be she’s like fucking tired because she can’t get away from them.

Leah Litman Sam Alito’s always in her inbox, right? She can’t just like auto delete that.

Melissa Murray Sliding into her DMs.

Leah Litman Since last September. That’s no good.

Melissa Murray She needs a break. I think all three of them need a break. Maybe Amy Coney Barrett needs a break, too. She seemed over them as well.

Kate Shaw Yeah. So did you guys also agree that this looked Lee, I think you said maybe that, you know, I think it looked on the anti anti Kafka a majority would win going in but coming out less clear Yeah yeah I don’t actually know the procedures in Oklahoma for clemency there had been an unsuccessful clemency effort previously. I mean I suppose it is possible that the safety valve of clemency. Right, which does exist in some form in every state, would remain a possibility. But that is not a reason for the court to be excused from actually doing its job here.

Melissa Murray Up this week at the court, there are a number of cases. There is a Rico case, Rico is the Racketeer influenced and corrupt organization statute. If you watch The Sopranos, this is the federal legislation that Tony Soprano at. Resolutely lived in fear of. There is also an immigration case, a case involving veterans benefits, and now wait for it a really important environmental case, which means there is an opportunity for the court to continue to do more to completely jack up the environment. So this case is called city and County of San Francisco versus the EPA. And again, it’s a quite technical case, but the Tldr is basically how did the Biden administration violate the law again.

Kate Shaw The EPA specifically this time. Not if, but how? Yeah, that’s right. We’ll go deeper on that case after the argument. And we are all just, I think, on tenterhooks waiting to see what kind of election litigation related mishegoss. Trump and his team, which have already filed lawsuits in many, many states, clearly seeking to lay the groundwork for post-election challenges once the votes shake out. And we will see what, if any, of that litigation makes its way to Scotus.

Leah Litman So a few notes before we go. On our previous episode, we talked about the creation of the Civil Rights Court in Texas and the problems that created for groups doing important civil rights work, including Texas Civil Rights Project and Lou Locke. In the summary, we meant to convey that one of those organizations, Lou Locke, was being raided and investigated for election fraud. But it was heard to suggest that the Texas Civil Rights Project was also being raided and investigated for election fraud. We wanted to clarify that the Texas Civil Rights Project has not been raided and is not under investigation.

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Kate Shaw Strict Scrutiny is a Crooked Media production posted 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 Matusky. 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.