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First, Leah is joined by international law expert Bec Ingber to lay out legal issues around the use of force (aka bombing Iran). Then, Leah is joined by two guest hosts–former legal journalist Mike Sacks and Georgetown Law’s Steve Vladeck–to break down last week’s opinions from the Court. Everyone’s up to their old tricks: Coach Kavanaugh makes sports metaphors, Clarence Thomas concurs (shudder), and Sam Alito feels his feelings. Through it all, Ketanji Brown Jackson shows us what the court could–hopefully–one day be.

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• Leah: The release of Mahmoud Khalil
• Mike: Leah’s book, Lawless!

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TRANSCRIPT

Leah Litman [AD]

Show Intro Mr. Chief Justice, may it please the court, it’s an old joke, but when 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.

Leah Litman Hello, and welcome to Strict Scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it. I’m your host for today, Leah Littman. After we recorded today’s episode, Donald the Dove, the peacemaker, announced on True Social that he had bombed Iran. The Post read, quote, “‘We have completed our very successful attack on the three nuclear sites in Iran. A full payload of bombs,’ all caps, was dropped on the primary site. Now is the time for peace,’ also in all caps. Thank you for your attention to this matter.” Uh, you’re welcome because we are going to give this some attention at the request of some of the friends of the pod subscribers We wanted to offer a quick legal primer on issues surrounding the use of force This is not to suggest that the legal questions are somehow more important than just how dangerous and unwise it is to launch Bombs any foreign sovereign our friends at pod save the world have explained this well But the legal issues surrounding The use of Force do underscore how much this administration is corroding our separation of powers and democracy Because this topic is so serious, we needed to discuss it in an even-handed, level-headed way. And so I am delighted to be joined for this conversation by a true expert, Bec Ingber, professor of law at Cardozo Law School. Bec served as counselor on international law in the Office of the Legal Advisor at the Department of State for two years, where she was previously an attorney advisor. Thanks for joining the podcast, Bek. I’m very happy to be here. OK, let’s dive right in. As a general, very high-level background, the Constitution gives Congress the power to declare war and to raise and support armies, and it makes the president the commander-in-chief of those armies. As Steve Vladeck observed at One First, if you’re not subscribing to One First it’s about to become even more indispensable, the federal courts actually used to review a range of questions about military operations during wartime. But since the 1960s, the trend has been toward more solo presidential action, and it was in response to one of those solo presidential actions. Nixon’s secretly bombing Cambodia without notifying Congress that Congress passed the War Powers Resolution of 1973. Bec, what does the War Powers resolution do?

Bec Ingber So when Congress passed the War Powers Resolution, they had really two overarching goals in mind. So the first one is that they wanted to reset the constitutional balance of powers that you just alluded to, right? So they wanted clarify and to remind everyone that the constitution actually gave them the power to declare war and that the president was supposed to serve sort of more of a ministerial function as the commander-in-chief. But they relatedly also wanted to create a sort of alarm system for Congress so that they could get more information from the president and they learned this well during the Vietnam War. And ideally, they wanted to find out whether or not that we’re going to be heading down a war path before it would, of course, be too late for them to weigh in or weighing in would be politically impossible for them do at that point. So they did that in part through reporting requirements and through this 60-day limit on the unilateral use of force. But in terms of resetting the constitutional balance, they actually laid out in the War Powers Resolution Congress’s understanding of what would be the, what is the exceedingly narrow context under which the president can use force. And namely, those are when Congress has declared war, when Congress is given a statutory authorization to do so, neither of which are here today. Or a national emergency created by attack upon the United States, its territories or possessions or its armed forces. So that third category is the only unilateral power that the president has under Congress’s understanding. And that is the power to respond to a true attack on the United states.

Leah Litman So what are the administration’s legal arguments for the strikes against Iran?

Bec Ingber Well, typically when the US government uses force, they give the public an explanation of why their actions comport with law. You guys are so transparent. Well, sometimes they’re more transparent than perhaps we’d like them to be. But we don’t have any signal chats telling us what their legal theory is here. But usually it happens formally through the reporting requirements under the War Powers Resolution that I just mentioned, but often we also get statements from the administration. And we often get an OLC opinion, the Office of Legal Counsel in DOJ, when it’s released. So I’ve been trying to piece together what we’ve seen from the various speeches and tweets, honestly, that hint at the various legal arguments the administration may be contemplating. And on the domestic side, and here the main overarching question is procedural, right? Here the question is, who gets to decide when to take us to war? Does the president have the authority to use force here unilaterally, or is this question really in Congress’s court. You know, I think there’s no question that as a constitutional matter, and including under Congress’s understanding of it as laid out in the War Powers Resolution, the decision whether to use force in this context against Iran was not one that the president could make unilaterally. On the international plane, the main overarching question is actually substantive. So the background rule here. Is, at least since the UN Charter, is that states cannot use force to settle mere disputes. So there’s the default rule, and the default is a ban on using force. And there are narrow exceptions to that, like when the Security Council authorizes force or when a state is acting in self-defense. So a state can use force that is necessary and proportionate to repel an armed attack by another state. And that includes an armed attacked that is imminent, meaning you don’t have to until the bombs are actually dropping on you in order to repel them. But short of that specific scenario, there’s actually a lot of disagreement, as you can imagine, about what eminence requires. And where this concept of eminents begins and ends is often the whole ball game in terms of disputes about whether a state’s truly engaging in lawful self-defense. In this case, there’s one more point that’s relevant here, which is collective self- defense. So under the charter, and this is relevant because it’s actually the only legal terms that I’ve heard come out of the administration thus far. So under the charter, there’s a concept called collective self-defense, and that means a state can come to the aid of another state that is itself the victim of aggression. So for example, Ukraine, international law permits the United States and other states, or I should say would permit states to use force in aid of Ukraine against Russian aggression. And that one seems to be at least part of the argument that this administration is making, at least as a matter of international law.

Leah Litman So how are these legal determinations usually made and does it seem like that process is happening here?

Bec Ingber So, normally, as the policymakers are contemplating a course of action, the lawyers would be simultaneously feeding analysis into that process. And over the last several decades, met through many presidential administrations, this was organized formally through regular lawyers group meetings that would be chaired by NSC Legal. And that would feed into the policy processes such as the principals and deputies committee meetings. And this process would include lawyers from the Justice Department, usually OLC, DoD, office of general counsel, the state office of the legal advisor, as well as lawyers from the intelligence community. And OLC in particular has played stronger and weaker roles at various points, but certainly on any significant decision to use force like this one, OLC would absolutely be expected to weigh in and would typically produce a legal memo with its views on the legality of the course of action, often though not always with the expectation that it would at some point be released publicly. Now, I would assume, based on some of the little… Almost terms of art that have been thrown around by this administration, that lawyers have been consulted through this process, but given the insight that we’ve gotten from those signal chats we were talking about into the quality of the policy process, I find it hard to believe that these decisions are being informed by truly rigorous legal analysis, let’s say.

Leah Litman Um, so I think in the past, you know, the office of legal counsel, as you were saying, has offered theories for when presidents can use force unilaterally. So can you describe how that theory differs from what is envisioned in the war powers resolution.

Bec Ingber Yeah. So there are two different lines of OLC theory on when presidents can use force unilaterally, and they’ve largely actually played out under different administrations, but there’s been some convergence. So one is a self-defense theory, and that might seem like a more classic sort of repel attacks theory that the framers had in mind when they contemplated that there would be some opportunity for the president to act unilatterally. But there are some OLC memos that actually remain on the books, in particular, memos from the early Bush administration days in the wake of 9 11 that view this concept exceedingly broadly and would have, for example, permitted for the president’s actions to invading Iraq in 2003 without congressional authorization. Now those memos, you know, were written and they were made on the books, but Congress ultimately did authorize the use of force in both 2001 and in 2002. And so the president didn’t actually act on the breath of those authorities. So that’s one theory set of theories The other is the one that actually we see more often, and this is a theory that relies on the declare war clause of the Constitution actually, in my view, as an authority and not just as a constraint. And the idea here is that the use of force falls along a spectrum where war is a constitutional threshold. And as long as they don’t cross that threshold and act in a way that would be war in a constitutional sense, the president has power to act unilaterally. So, under this theory, OLC takes a chop on… Whether it’s war in the constitutional sense and the way they do that under several administrations is, you know, analyze whether the nature, scope, and duration of the hostilities, and that includes the likelihood of escalation, amount to war in the constitutional since and the president can only act unilaterally if it falls below that threshold.

Leah Litman So it seems like from what has been unfolding that the legal questions and maybe also the policy decisions are being based more on vibes than on anything approximating more facts. You can kind of hear that from the VP here. And President Trump trust the US intelligence community and its assessments.

Clip Oh, of course we trust our intelligence community, but we also trust our instincts.

Leah Litman And you can hear the same from Secretary of State Marco Rubio, who the Democrats confirmed unanimously.

Clip There that the United States did not see intelligence that the Supreme Leader had ordered weaponization.

Clip That’s irrelevant. I see that question being asked on the media, that’s an irrelevant question, they have everything they need to build a web.

Clip That is the key point in U.S. Intelligence assessment. You know that. Yes it was. No it says. I’m talking about the public March assessment and that’s why I was asking you if you something more than an accurate representation.

Clip Well, but that’s also an inaccurate representation of it. That’s inaccurate representation. That’s not how intelligence is read. That’s now how intelligence used. Here’s what the whole world knows. Forget about intelligence.

Leah Litman So it seems like the information we are getting about what is happening is also vibes rather than facts. So as Senator Warren pointed out in Blue Sky on Sunday, quote, last night, Trump said Iran’s nuclear program was completely and totally obliterated. This morning, JD Vant says we will permanently dismantle that nuclear program over the coming years. Elsewhere has reported that maybe it wasn’t severely damaged. Anyways, I guess we’ll find out someday. But back to the legal slash legal ish arguments. So some brush clearing. You mentioned the authorization of use of military force that Congress passed in 2001 related to the war on terror and 2002 that was then relied on for the invasion of Iraq. Why don’t those laws provide a basis for the use of force here?

Bec Ingber Yeah, I’m really glad you asked about that because that’s often a source of confusion for government lawyers in some cases as well, not usually for the government lawyers who are actually involved in the decision making, thankfully. But the 2001 AUMF, which was passed in the wake of the 9-11 attacks, specifically references those who organized and carried out the attacks and those who harbored them. And so it was widely understood to refer to. Al-Qaeda and the Taliban. This is not an open-ended use of force. The 2002 AUMF, Congress passed this one to authorize the president to use force against Iraq. And here, this is actually an example of the president checking that domestic procedural box. He had domestic legal authority, but the invasion was nevertheless unlawful as a matter of international law. And then there are other examples, like, for example, Libya, where the opposite was the case. So really, you know, it’s important to question whether or not the president has checked both boxes. It’s not like an either or situation. Um, but there’s been over the years, so much talk about how much power Congress gave the president in the 2001 AUMF. And that’s in part because presidents since that time have used that power for conflicts reaching far beyond the initial one that compelled it. And all of that is true and there’s room for criticism, but nevertheless, all presidential administrations have tied those uses of force to al Qaeda. And I, we just need to be very, very clear in this case, there’s absolutely no plausible basis whatsoever. To claim that Congress authorized the president to use force against Iran under either of those statutes.

Leah Litman So then how about the war powers resolution? You mentioned that that law limits the use of force for more than 60 days. Does that by implication authorize the president to use force for less than 60 day? That’s another.

Bec Ingber Great question because it’s another misconception. So the War Powers Resolution says that when the president uses force unilaterally and recall the limited circumstances under which they thought he could do so, then he has to submit a report and he has to stop using the armed forces within 60 to 90 days. There’s actually a little wiggle room under the statute. So it’s a further constraint on the use of force that they view the Constitution is already granting the president. And in fact, they were quite explicit in saying that this statute was not intended to give him any more power than the Constitution already provided. But some, including OLC actually, have read this as an authority. Oh, you’ve mentioned 60 days. Well, of course, that means that the president can do anything within that 60 days, and that might be exaggerating exactly what they’re saying, but they have viewed it as evidence of Congress’s understanding that the president could act unilaterally.

Leah Litman YOLO, OLC, I don’t know. I feel like there’s an acronym in there somewhere anyways. So JD Vance says, we’re not at war with Iran, we’re at war Iran’s nuclear program. He added that we don’t want war with the Iran, we actually want peace, something Trump’s two social posts also gestured toward. We all know back that one and done bombings are definitely a thing and definitely work. Are they legal under domestic law? Like is anything he’s saying relevant to these legal questions? Well, I think that’s it for this video.

Bec Ingber There are both legal and policy implications to these words that might explain why administration officials are trying to avoid saying we’re at war. And on the legal side, as a domestic legal matter, recall that OLC has this theory that as long as a use of force falls below the threshold of war, it’s within the president’s constitutional power. So it may be that the administration is sort of holding onto that and thinks that if they can wave around these words, that that would somehow keep it, keep them below the threshold. But this is a fact-based.

Leah Litman In which case it doesn’t seem like an assessment, it seems more like an excuse, but yeah.

Bec Ingber Right. This isn’t the first time they’ve either tried to use the word war or tried to say something isn’t a war in this case for the purposes of invoking law. Interestingly, in other contexts, like the Alien Enemies Act context, they’re deploying words like war and invasion in order to invoke the power that comes along with it. In both cases, they are trying to tell us that two plus two, which we can clearly see with our own eyes, equals five. But as I said, these are fact-based inquiries. These aren’t things that you could just turn on or off based on the words you’re using.

Leah Litman Yeah, it has a very wars piece, but we’re always at war with Eurasia kind of valence to it. And already, it seems like this idea that this is just a one and done, you know, below the level of war is already being subject to some slippage, at least on the president’s true social account, which posted later on Sunday, quote, It’s not politically correct to use the term regime change. But if the current Iranian regime is unable to make Iran great again, why wouldn’t there be a regime change? MIGA, M-I-G-A, exclamation mark, excclamation mark. But lest you are worried about another forever war, JD Vance has this to say.

Clip I certainly empathize with Americans who are exhausted after 25 years of foreign entanglements in the Middle East. I understand the concern, but the difference is that back then we had dumb presidents.

Bec Ingber I was surprised that they couldn’t come up with a better distinction than that.

Leah Litman Well, they’ll keep trying. They’re probably workshopping it over signal. So, you know, Beck, you’ve kind of alluded to international law and I know Trump doesn’t give two shits about it, which is part of why I wanna talk about it. But what does international law have to say about the president’s use of force here? You mentioned the UN Charter, self-defense and collective self-defense, but anything else that kind of frames this?

Bec Ingber Yeah, and actually, this is where the whole one and done idea, if we believed it, right? And of course, they’re immediately undermining the statements by suggesting that there might be further strikes. But if we’d believed it. It actually does have relevance under international law. So as I mentioned, you know, the background rule is the use of force is unlawful. But states can use force in self defense that is necessary and proportionate to responding to an armed attack to basically repelling the armed attacks as long as they to do so. And if they’re genuinely doing so, like in the case of Ukraine, other states can come and lawfully use force for the same purposes. So the U.S. Government’s international law theory here seems to be, from piecing together the statements of officials and Hegseth saying some version of self-defense and collective self- defense on behalf of Israel, relies on an argument that we’re using necessary and proportionate force or would rely if we were actually lawyering it properly. Would rely on an argument that we are using necessary and proportionate force to repel an actual or imminent armed attack by Iran. I just want to dispel one thing, because there’s been a lot of chatter about past attacks by Iran, and so I want to just mention the extent to which those are relevant. They are relevant, but they’re not relevant because international law permits reprisals in any way. It does not. So we can’t attack someone just because they attacked us. There’s no tit for tat legal theory. But they’re relevant because they do go to the question of whether Iran has intent and capability to strike, whether it’s us or Israel, and therefore whether these strikes are strikes or Israel strikes, because we’re acting in collective self-defense, according to Hexas of Israel, were necessary to repelling such a strike. So those are fact-based questions. And obviously, I don’t have access to the intelligence that would be required to answer it. And I think even if…

Leah Litman For those who do it. Let’s forget about that. So no big deal.

Bec Ingber No, right. I mean, if I could just trust his instincts. But my sense from watching these, so I just want to be, you know, careful in how I analyze it, but my sense for watching these issues play out historically, and from what I’ve seen of the legal arguments in the past, is that both countries are likely operating under legal theories of imminence that are fairly aggressive, let’s say. And that’s especially so in this context, because the question involves one of nuclear

Leah Litman Stepping back one last question, I think a lot of people have the intuition that presidents have been pushing the boundaries of executive power on unilateral use of force for a long time using force without congressional input or approval. But at least to me, this still feels like a meaningful escalation from what we’ve seen in the past. You know, are there things that strike you as different about this latest episode from what has come before?

Bec Ingber Yes, I think both of those things are true. So I have long been a critic of U.S. Government views on the use of force and war powers, both international law and domestic. And it’s long been my view that even when acting in good faith and with good intentions, presidents have aggrandized power and pushed the legal envelope further and further over time. And they’ve done so with the aid of U S government lawyers who also acting in good faith. And with good intentions. Believed their job to be providing the flexibility that they could find under the law for the president to act. But I think there are some major distinctions here. And one is that I’m not sure that the US government has ever, ever taken strikes of this magnitude and against another state without congressional authorization. And the other, which is an overarching one, seems to be the total lack of legal guardrails inside the US Government right now. Now, these guardrails are… When I talk about guardrails, these are the same government lawyers whose very existence and their ability to write up fancy legal opinions and arguments in court may have over time mollified both the courts and Congress and perhaps aided their reticence to get involved in these places, right? Like we’ve got it, the bureaucracy is handling it and therefore we don’t need to get involved. But now, even those internal constraints appear to be gone. And in the meantime, I think Congress at least has lost its muscle memory to engage. So we know this administration’s tolerance for legal constraints is low and its tolerance for legal risk is high. And that’s true even in areas where the courts tend to get involved. But here, you know, in both the international law context and in the constitutional separation of powers context, laws policed through a mix of norms, internal checks, responses by Congress, public outrage. And much of that has been muted or just plain exhausted in just a few months under this administration. I think it’s an opportunity for the old school separation of powers to re-engage on these issues perhaps, but I think as members of the public we have to demand it of them.

Leah Litman Yeah. So on that front, it does seem like something else that’s missing to me is like an absence of public discussion about the possible basis for this strike. And it also has an element of arsonist firemen to it and that he pulled out of the Iran deal, you know, when the Department of State had certified Iran was in compliance and now is insisting, well, because they might develop a nuclear weapon, I get to launch these strikes. But again, that’s just my. Unlearned observation.

Bec Ingber No, I think that’s an essential component of it, and I’m glad you raised it because we didn’t even address that. And of course that’s in the background, but it does feel like yet again, this administration is trying to create an emergency or is creating an emergency that it then claims enormous power to resolve.

Leah Litman Bec, thank you so much for joining. Where can people find you if they want to learn more?

Bec Ingber For my personal personal views, you can find me at Blue Sky at BecIngber, but in my day job, I am a professor of law at Cardozoa Law School.

Leah Litman Thank you again Bec for joining.

Bec Ingber Thanks so much for having me.

Leah Litman While everything is going to shit, I wanted to note that there are currently four undecided Supreme Court cases from the March sitting on the Voting Rights Act, Planned Parenthood, non-delegation, and a statutory deadline case. And the following five justices haven’t written yet in that sitting, meaning they’ll likely be the ones writing the opinions in these cases. Alito, Kagan, Gorsuch, Kavanaugh and Barrett. Womp womp. Oh, and there’s also a chance that Justice Thomas has a First Amendment case about porn. And now for more good news, our episode about how businesses get to challenge regulations kind of whenever and wherever, rather than how Congress intended, how tobacco companies get to sue the FDA in the wild, wild Fifth Circuit, if they so please, and how fuel producers get to Sue the EPA in a ruling that, according to Justice Jackson, quote, will no doubt aid future attempts by the fuel industry to attack the Clean Air end quote. And she adds, quote, gives fodder to the unfortunate perception that moneyed interests enjoy an easier road to relief in this court than ordinary citizens,” end quote. So don’t go away.

[AD]

Leah Litman Hi everyone, it’s Leah. Kate, and Melissa are unfortunately unavailable for recording, but don’t worry, I’m not alone, or even on a frosting-induced sugar high. On the latter, you’ll have to take my word for it. But on the former, I am stoked to be verifiably joined by returning guest Steve Vladeck, professor at Georgetown Law and author of the indispensable One First Substack and first-time guest Mike Sacks. Mike is a former legal journalist who is now running for Congress out of New York for Republican Representative Mike Lawler’s seat in particular. I figured we needed a boost of energy, something to be excited about. So how about a possible congressional representative who knows what’s what on the federal courts? Welcome to Strict Scrutiny, Steve and Mike.

Mike Sacks Thanks for having us.

Steve Vladeck Yeah, thanks Leah.

Leah Litman This is our first or annual or semi-occasional DEI for men with good personalities episode. So I literally think this is the third time I was trying to remember that we have had an episode with two straight cis white men. But one of those prior episodes did involve Steve, and that worked out okay. So I think this will work, but we’ll see. If it doesn’t, I’m going to hold it against all white men though.

Steve Vladeck The good personality requirement might cut me off though, so you know, no one asked Karen about that.

Leah Litman So here’s the plan for today. We’re gonna chat Supreme Court actions and then some legal news. So boys, are you ready?

Mike Sacks Ready.

Leah Litman Start your engines and may the best queen win. So we got a bunch of different opinions last week, both Wednesday and Friday. We’re going to quickly cover most of them so you can all be up to speed on what it takes to finish a Supreme Court term. These aren’t huge opinions, but we’re gonna nerd out a bit because all of them have interesting angles and nuggets if you know where to look. First step, got the opinion in Nuclear Regulatory Commission versus Texas. This was a 6 to 3 decision authored by Justice Kavanaugh with justices Alito, Thomas, and Gorsuch in dissent. The bottom line here is, few. The lower court, the Fifth Circuit, because it’s always the Fifth circuit, had held that the NRC does not have the authority to license certain sites for nuclear waste storage. Authority, it had exercised for decades. So. This had enormous potential for disruption, but the Supreme Court said the parties who were complaining here, a private facility in the state of Texas, weren’t authorized to challenge the licensing decision. So the court reversed the Fifth Circuit, always a good sign, and basically said, not today, Satan, on upending our entire system of storage of nuclear waste. Gorsuch, joined by Thomas Adolito, would have said, yes, today, Satan, and so dissented. Steve, what am I missing?

Steve Vladeck Uh, not much. I mean, I think the only two things I would add, Leah, are, um, first, this was, this was one of those Jim Ho specials, uh, where the Fifth Circuit had, uh relied upon a really fairly preposterous application of the major questions doctrine to hold that the Nuclear Regulatory Commission lacked the power to

Leah Litman Double whammy, Jim Ho, major questions.

Steve Vladeck Well, but second, I mean, I really do think that there’s a theme that this term has been dominated so much by Trump and by all of the emergency applications. But if we were to just look at the so-called merits cases, to me, the most overarching theme of the term is the Fifth Circuit behaving badly. By my count, I think it’s 16 of the cases the court granted Sersharian, 18 if you count. The appeals in the Louisiana redistricting cases came from the Fifth Circuit. That’s basically a quarter of the docket. And at least to this point, the Fifth Circuits not doing very well. And here’s another example of why, mind you, with the court finding a procedural reason to get rid of the Fifth Circus ruling, as opposed to saying, actually they were wrong on the merits. And so, I would prefer reversals on the merit because I think some of these opinions are really like. Remarkably either bizarre or wrongheaded or both. But, you know, when this is the court you have, this is a result you can get.

Leah Litman Steve, I’m a little bit worried that Edith Jones is going to print out a transcript of this episode and bring it in a Manila folder to the next Federal Society event with that remark about the Fifth Circuit.

Steve Vladeck I’ve been trying to give her more fodder because, you know, for her clerks who hate listening to this podcast, there was a letter to the editor in the Wall Street Journal on Friday by me about how the Trump administration had judge shopped in Reid O’Connor’s single judge division in Wichita Falls. That’s definitely going in the folder. So we’ll see if they can figure out how to make this transcript go in there too.

Leah Litman So speaking of judge shopping, we also got the cases about where entities can file challenges to various EPA and FDA actions. That’s the Environmental Protection Agency and Food and Drug Administration, and specifically whether the suits must go to the law forward, DC Circuit, or whether they can instead be brought in the what is law, don’t know her, Fifth Circuit. So on the EPA cases, which were a pair of cases, EPA versus Kalamich Street, Port Refining, in Oklahoma versus EPA. The Supreme Court kind of split the baby. Both opinions were authored by Justice Thomas. And the court adopted a two-step test to determine whether an EPA action had nationwide scope or effect, which requires cases to be filed in the DC Circuit, or whether an action instead was locally or regionally applicable, in which case it could be filed in a regional circuit, cough, cough the climate disaster that is the Fifth Circuit. Under the two- step test, courts first ask if it’s nationally applicable or regionall applicable. The two cases involved two different actions, denials of exemptions for individual small refineries from a renewable fuel program, and then the other denials of state implementation plans for the Clean Air Act. Both actions, the Supreme Court said, were local and regional because they applied only to particular entities. But at the second step of the test, the Supreme court said the former had nationwide scope or effect, and the latter was regionally and locally applicable. That’s because the denials of the refinery exemptions were based on a determination that as a legal matter applies throughout the country and would have had nationwide effects too, and that that determination was the most important part of EPA’s reasoning. Steve, what were your reactions to this kind of test-ish that the court adopted?

Steve Vladeck I might be jumping in the gun a bit. I will say, I think the test in the EPA cases is a little bit self-serving. And basically, you know, if we want the relevant regional court of appeals to have the case, we’ll find a way to let them. And if we don’t, we won’t. This is jumping ahead a bit, I was much more troubled by the venue analysis in the FDA case. Because it seems to me that- I know. And so, but so it seems to me that like this was venue day at the Supreme Court and not just venue day, because if we throw in diamond alternative energy, I think you get venue and standing day. And it is just, I mean, we don’t have the time to do this justice, but the lengths to which the justices will go to basically facilitate the ability of litigants that they like to bring lawsuits where they want them to be able to bring them. I think is, you know, I mean, Justice Jackson called them out on it a little bit in one of her dissents on Friday, but I’ll just say a little bit. Yeah, a lot. I mean not as much as footnote 12 in the ADA case, but

Leah Litman I’ll just say. Steve, you’re jumping way ahead. Give us a sec. Okay.

Steve Vladeck Okay, I’m sorry. Spoiler alert. I just want to say though, I mean, I mentioned a couple minutes ago, I mean in so far as one of the themes of this term is how does it’s, you know, clean up on aisle Fifth Circuit. It seems to me that the justices ought to be appreciating that these two things are related and that the easier that they’re going to make it for litigants to basically steer cases into the fifth circuit. The more they’re going to have to clean up messes that the Fifth Circuit makes. I mean, how you can look at those two things and not see a connection is what I really don’t get in these cases.

Mike Sacks Let me go galaxy brain here on you guys. Um, not just this term, but last term, we’re all about clean up on aisle five. And I was going to use that term too, Steve.

Steve Vladeck My bad.

Mike Sacks But, uh, it’s not just about clean up on an aisle, fifth circuit. It’s about setting the fifth circuit up as a foil to say, Hey, we are not those guys, right? They’re MAGA. We’re not quite MAGA and the Supreme court uses the fifth-circuit to make itself look good. I mean, the first action to do so. But for the past two terms, this term and last term, this court has brought terrible things to bear on the merits in cases, terrible. But they are saying, but you could go with this or you can go with those guys over there. And in that way, this is more of Roberts trying to make his court seem to look reasonable, seem to get the headlines of a moderate court at the end of the term, even when they’re doing wildly immoderate things on the things that actually truly matter. To the super majority. But the galaxy brain stuff is this. They’re shunting things to the Fifth Circuit only so that then they can get those things back on the merits and say, no, sorry, Fifth Circuit. And we saw that with the tobacco cases as well. That was a note in, I think, Jackson’s dissent from that case. You know, yes, we can send this, we’ll send this thing back to the fifth circuit, but remember, we still sided against tobacco folk on the merit from the Fifth Circuits decision there.

Leah Litman Yeah, well, so on that galaxy brain analysis, I think even if the Supreme Court can’t totally control what cases they have to take from the Fifth Circuit, given that because of how crazy the Fifth circuit acts, I don’t think the court has a choice about whether to take some of their cases. But what I do think they have a choice over is whether to tell the Fifth Circle to knock it the fuck off and actually go out of their way to tell them they are out of line. And they have yet to do so, even when they reverse the Fifth Circuit. And friend of the pod, Sherrilyn Eiffel, has kind of described the relationship between the Supreme Court and the Fifth Circuit as the parent who spoils the child and never actually disciplines them, and therefore, I think, is enabling this bad behavior. So anyways, since you both have already alluded to it, we also got the FDA opinion about where to file challenges to FDA actions or some of them. And in that case, FDA versus R.J. Reynolds, the Supreme Court went all in on go ahead with regional circuits. So the Supreme court said that retailers who would sell a new tobacco product, if not for the FDA’s denial order, may seek judicial review of the order in the place where said retailer resides. This essentially allows entities to pick where they will challenge an FDA denial order. Cough, cough, Fifth Circuit, since you can always find a prospective retailer. So more forum shopping on matters of public health. And the Fifth Circuit is gonna help these guys make America healthy again, by requiring us all to inject ourselves with ketamine, drink raw milk and do other things too. So this was a 72 Barrett opinion and Justice Jackson joined by Justice Sotomayor dissents. You know, I kind of think the Supreme Court has gotten the message from the Republicans in Congress that forum shopping is bad when Democrats do it and good when tobacco companies do. Mike, you had already kind of alluded to Justice Jackson sounding an alarm to that effect. Did you want to explain a little bit more kind of what she had said?

Mike Sacks So yeah, Justice Jackson, in her dissent in this case, continues along her path towards being the avatar of what the Supreme Court can be, should we will it. Every time she writes separately, almost every time she write separately, since she’s joined the bench, she is focused on the democratic process. She’s focused on deferring to Congress and what Congress intends. She’s deferred to the will of the people, absent clear constitutional restraints. And this is something that we don’t get anymore in this judicial supremacist Supreme Court. I’ve been tracking this for some time, and every time I read anything she does, I go immediately to Control-F Congress. I go immediately to her first and last paragraphs, which then in these cases…

Leah Litman Congress, what’s that?

Mike Sacks In each of these cases, she just goes full bore on talking about the will of Congress, not the will the court. And sometimes this is kind of a thing that the dissent and majority do back and forth when they’re doing statutory interpretation. But she comes out with such force and with such authority that it’s clear when she’s writing, she is actually taking seriously Congress’s will. So she just keeps going consistently to talk about what Congress intended. And that has been her, when talking about federal laws, has been Her Lodestar in ways that is refreshing at this point with the Supreme Court that all too often inserts its own interpretation, its own understanding to pursue into its own right-wing agenda when reading our laws.

Leah Litman Steve, I know you mentioned you were especially troubled by the venue analysis in the FDA case. So I also wanted to give you a chance to add to why that was.

Steve Vladeck The really, really short version is just that it is so easy for a large corporation that wants to sue to challenge regulation under the majority’s analysis to find any mom and pop retailer, a gas station that sells vapes and thereby sort of pick whatever court in the country they want bring their lawsuit in. And, you know, in a world in which we had a normal distribution of federal judges across the United States, that might not be so trouble in a world in which I think even the folks who are more positively disposed toward the Fifth Circuit than I think the three of us are, would have to admit the Fifth Circuit is an outlier. All this means is that more and more of these cases will be brought in the Fifth circuit when it’s this set of regulations and in the First or the circuit when it’s in the other direction and that just seems like it’s only going to exacerbate these litigation trends that we’re seeing, where instead of randomness in the lower courts, litigants are really able to manipulate, to the maximum extent, the best possible judge or at least the best possible bench to get their case before, which, by the way, just puts more pressure on the Supreme Court.

Leah Litman Yeah, and you mentioned that it’s big corporations who are going to be able to do this. And I think that speaks to the point that you and Mike were gesturing toward earlier that I know we’re going to come back to, which is which kinds of litigants the Supreme Court favors and gives more power to control their cases.

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Leah Litman So, unfortunately, that decision wasn’t the only attack on administrative agencies we got last week. These guys were not going to let Doge and Big Balls have all the fun. So wanted to talk about two together. One is the Supreme Court issued the opinion in McLaughlin Chiropractic Association versus McKesson. The formal holding in the case is that a federal law, the Hobbs Act, does not district courts in civil enforcement proceedings to how an agency interpreted a statute. But the practical effect of that ruling is to allow parties to challenge an agency’s order well after the order has gone into effect in litigation in which the government is not a party and in another court where they can choose to sue. So the judicial review provisions of the Hobbs Act require agency orders like the federal communication orders at issue here to be subject to the exclusive review of the court of appeals and pre-enforcement suits. These guys were not going to let that get in the way of a good time. So as Justice Kagan noted in her dissent, this holding subjects all administrative schemes and the many businesses and individuals relying on them to the ever-present risk of disruption. This was a 6 to 3 Kavanaugh opinion with a Justice Kagon dissent to the very definition of an unfair fight. Just one sampling, Justice Kagen’s footnote, quote, the majority’s response relegated to a footnote is hard to make out. Unfortunately, we still more fun and done with the deep state. So the next decision is Diamond Alternative Energy versus EPA, where Brett the Builder said, fuck climate change. But Steve, do you want to actually summarize what the court said?

Steve Vladeck Sure, I mean, so it’s an Article 3 standing case, at least in theory. And the question is whether this alternative energy group in California had the power or had the right to challenge the EPA’s approval of certain attempts by California at the state level to regulate various forms of emissions and other pollution. I will say, Leah, what I find striking about not just the majority opinion in Diamond Alternative Energy, but its authorship is this is the same Brett Kavanaugh who wrote the majority of opinion in TransUnion saying, no, standing is super limited and we have to be very wary about it. And here it’s like, oh, you actually have some like indirect way in which you think the EPA’s approval of this other thing is kosher or not kosher, go to court. I will say I am relatively sympathetic to broad theories of Article 3 standing. So I’m less troubled by the result. In Diamond Alternative Energy, what I find really exasperating about it is actually the inconsistency, right? That you have the majority opinion written by Justice Brett Kavanaugh, who wrote the majority opinion in TransUnion versus Ramirez, where a 5-4 majority struck down a statute that authorized particular plaintiffs to bring lawsuits against credit protection agencies when they were maintaining databases with incorrect information. It seems like you can’t be like super anti-standing when it’s consumers and super pro broad theories of standing. You know, when it when it these energy companies trying to indirectly challenge what California is doing. And I think most of the justice are being-

Leah Litman Brett Kavanaugh doing the usher, watch this. Yes you can.

Steve Vladeck I think it’s just that, like, the conservative justices don’t see how much they, like are sympathetic to standing when they’re sympathetic to the litigants and how much they’re not when they are not.

Mike Sacks Well, except Justice Jackson made them see that today, didn’t she, in her decision?

Steve Vladeck Well, and so, but no, but so this is why I found Justice Jackson’s dissent in diamond alternative energy so fricking useful, um, and something that’s already going on in my federal court syllabus for the fall.

Leah Litman Right

Steve Vladeck Because you know, I mean, and I really think this has been a theme in Justice Jackson’s opinions this entire term But it really came out last week is that she is like calling things as she sees them Yeah, and you know in diamond alternative energy that means like literally accusing the majority of Recognizing standing for litigants, you know for big for basically money business interests and nobody else now you have sort of attempts to rationalize these doctrines that seem to be completely just incoherent when it comes to why some people get to see and why others don’t.

Mike Sacks So I wanna just make two extra points about this particular case, bringing us back to this case, the EPA case. One is about the case itself, and the other is about the makeup of the majority. So this case has been going on for a couple of years now, but it goes back to when 2013, the Obama EPA let California lead the way on vehicle emission standards. And then Trump comes in office in 2019, then says, nope, sorry, reverses. Then 2021, Biden EPA reinstates the 2013 Obama rule. And then in 2022, Republican state AGs and fuel companies sue to restore the Trump rule because they weren’t gonna get it back and through the political process. And then the DC circuit said no standing for the fuel companies, which is how it came to here, and rejected the suit from others as well. So what happened now is Trump’s back in office. And multiple times in both the majority and then in Jackson descent, the justices acknowledge that Trump is about to reverse course again. And yet, as Jackson noted, this court still decides to jump in and make a hash and a mess of standing analysis when they could have just said, you know what, we’re not going to even rule in this case. I think even the Trump administration said, please don’t weigh in at this point. We’re on our way towards rescinding the rule. So this is the court again, jumping in to make a hash of things, but let’s just note the majority here was seven to two. You had Kagan with the majority. And in Friday’s cases, Kagan was showing herself as a conciliator trying to, I don’t know, you know, fine common ground with the supermajority in ways that she did not on the issue that she really truly cares about, where it was 6-3 and she wrote the dissent on a matter of administrative law and extending Loper-Bright outward towards new issues, and she made that perfectly clear. But in other cases, she was siding with the Supermajor here, or siding conservative right-wing results.

Leah Litman So I wanted to note one thing about the majority and then one thing, about the Jackson descent. But I know we have a lot of other things to cover. So just quickly, because this was a Coach Kavanaugh opinion, my eyes and ears were subjected to the following hypothetical. Quote, if the government prohibits aluminum bats in Little League, then aluminum bat manufacturers, not only Little League might be objects of the regulation. This was just an aside on a legal theory he didn’t even address. Um, and Steve, you had mentioned that he might’ve had a special guest in the courtroom, supposedly Kim Mulkey. And I wondered if that’s why I was subjected to that terror. Um, but second, the thing about the dissent, the Jackson dissent which we’ve already alluded to, she makes pretty remarkable claims about how the court can at least be perceived to be favoring the fuel industry and corporations. So she writes, quote, I worry that the fuel industry’s gain comes at a reputational cost for this court. Which is already viewed by many as being overly sympathetic to corporate interests. She acknowledges some researchers have suggested the reputation is unfounded, but at the end of the day, that perception is pervasive and the mere appearance of favoritism can undermine confidence in the integrity of the judiciary. I appreciated that call out. That is also definitely going in my FedCourts class as well, Steve. So just I think that that was part of the pro-democracy. Concern, Mike, that you had been highlighting. Anti-billionaire capture. Yeah, it’s terrible. Yeah, exactly. So another case in which that theme came through was Stanley v. City of Sanford, a 7 to 2 Gorsuch opinion. There were some concurrences in the judgment. There, the court held that a retiree cannot bring a suit under the Americans with Disabilities Act if they, quote, do not hold or desire to hold an employment position, end quote, that they’re capable of performing with a reasonable accommodation. So here, Stanley retired because of a disability. And then after she retired, she sued her employer because of changes they made in their policy on health insurance benefits for retirees. But at that point, the Supreme Court said she didn’t want the job and therefore she can’t sue. So Justice Thomas had a concurrence that we do have to talk about. Welcome to our now recurring segment of we need to talk about Clarence Thomas’s concurrence or conclarance. What was the concurrence, Mike, and why was it so striking?

Mike Sacks Oh jeez, okay, and this was joined by Justice Barrett. We need to remind ourselves of this as well, because of all the chatter over the past couple weeks of Barrett somehow slipping left because she’s not always with Trump, we need to remember that she is fully on board with the right-wing legal movement’s agenda here. And in this Clarence Thomas concurrence, he writes separately to express my concern with the increasingly common practice of litigants urging this court to grant certiorari to resolve one question, and then, after we do so, Pivoting to an entirely different question, that’s exactly what Mississippi did in Dobbs and Thomas and Barrett weren’t exactly complaining about it then. If we remember, when Dobbs came to the court, Ginsburg was still alive. The question that Mississippi put to the Court was about its 15-week ban and whether to I think erase the viability line or really revise the undue burden standard in Casey. It was geared towards Roberts, then the median vote. Uphold a 15-week ban and strike the penultimate death blow towards Roe, but not the ultimate one. But then Barrett came to the court, and the court was considering whether to take the case for a very long time. And the moment they then agreed to hear the case, Mississippi, in its merits brief, then said, oh, never mind that, let’s overturn Roe. And what did the Supreme Court do, including Justice Thomas and Justice Barrett? They went along with that. They did the very thing that Thomas and Barrett, in this very opinion, is big mad at the litigants doing here. So just the hypocrisy and the lack of self-awareness is obscene.

Leah Litman Maybe this was hypocrisy week at the court, although that seems like more than one week from what we are seeing. So this was another case where there was a Jackson dissent that I think sounded some of her concerns with the court’s project and whose interest the court was favoring and how they were going about it. So there was remarkable footnote. And even though her dissent was joined by Justice Sotomayor, here she spoke only for herself. And instead of reading this footnote I am instead going to share with our listeners the following jam of the summer, which is Friend of the Pod, Elie Mystal, putting this footnote, footnote 12, to music on TikTok. And we all need this energy right now, so here you go.

Clip The majority’s contention that I reject pure textualism as insufficiently pliable to secure the result I seek, stems from an unfortunate misunderstanding of the judicial role. Our interpretive task is not to seek our own desired results, whatever they may be, and indeed it is precisely because of this solemn duty that, in my view, it is imperative that we interpret statutes consistent with. All relevant in disha of what Congress wanted, as best we can ascertain its intent. A methodology that includes consideration of Congress’s aims does exactly that, and no more. By contrast, pure textualism’s refusal to try to understand the text of a statute in the larger context of what Congress sought to achieve turns the interpretive task into a potent weapon for advancing judicial policy preferences. By finding answers in ambiguous steps, and not bothering to consider whether those answers align with the other sources of statutory meaning pure textualist. Can easily disguise their own preferences as textual inevitabilities. Far from being insufficiently pliable, I think pure textualism is incessantly malleable. And that’s its primary problem. And indeed, it is certainly somehow always flexible enough to secure the majority’s desired outcome.

Leah Litman Mike and Steve, I know, I mean, like this footnote is a banger. I don’t know if you wanted to share particular reactions to it.

Mike Sacks And the last sentence is amazing. I’ll let Steve handle this one though, if he wants to.

Steve Vladeck No, I think it’s just Jackson, I mean, again, she’s saying what I think so many of us have been thinking, and she is distilling into accessible prose, what really are in many respects the central analytical critiques. Of the dominant methodological commitment, or at least the dominant, purported methodological commitments of the justice and the majority. And more power to her. And I’m curious as to sort of Sotomayor not joining in this footnote because she doesn’t agree with it or because she actually wanted to let Jackson have it for herself. And not take credit for what really is unusually strong accusation. Of methodological manipulation by one of the justices.

Mike Sacks I think to some degree Sotomayor, because was this a Gorsuch opinion? Yeah. I think Sotomayer to some degrees still likes to hold on to her frenemyship with Gorsich when it comes time for certain criminal justice issues. Now Jackson joins those two as well. But I think there’s something to what Steve just said, because this footnote is consistent with again, Justice Jackson’s vision of the future of a pro-democracy Supreme Court. Right, and she sets. Quite literally, she says, it is imperative that we interpret statutes consistent with all relevant indicia of what Congress wanted, as best as we can ascertain its intent. And then she just goes and says pure textualism is result-oriented garbage. That’s how she ends it. And it’s a straight on assault on Gorsuch and his pure texturalism.

Steve Vladeck But it’s also a defense of the modality of statutory interpretation that conservatives has spent the last 40 years vilifying, which is looking like, yes, legislative history is imperfect, and yes, the legislative history can be manipulated. But there are reasons why it is legitimate to ask what the context is in which words are adopted. She really is, I think, in some respects, claiming the mantle of intellectual leadership. Um, for the, you know, not on everything. I mean, I think I still, I think it’s still justice Kagan on some of the other stuff. And I think it still justice Sotomayor on, you know, criminal procedure issues, for example, but on like methodology, this is like Jackson really, I think step.

Mike Sacks She is the alternative voice there. It’s vision. I think Kagan and Sotomayor arrived at the bench in a defensive crouch in the pre-Dobbs era. And Jackson is the justice for a post-Dobs era, for those who no longer believe in

Leah Litman And also for those who don’t think the battle or war will be won by trying to compromise. And instead, we need something entirely new. That’s also where I see her coming in.

Steve Vladeck I just want one quick thing about the Thomas concurrence, and then just before we run past it, which is just, there should come a point, right, where the justices have to stop pretending that they are ignorant of all of the discussion of what the court does. I mean, right? There is so much work being done out there right now about how often the court is reaching questions the parties didn’t present, about how the court is rewriting the question presented to answer whatever they want to answer. You know, for Thomas to say, this is not what we do, is, you know, it’s galling.

Leah Litman So two quick opinions I’m going to quickly summarize before we get to another that has an Alito dissent that is worth pausing over. So one of the opinions, Fold versus Palestinian Liberation Organization and Palestinian Authority is where the PLO and PA were sued under the Promoting Security and Justice for Victims of Terrorism Act. The law designates those entities as defendants that shall be deemed to have consented to jurisdiction in Anti-Terrorism Act litigation. The law subjects them to jurisdiction on the theory that they pay salaries for terrorists in Israeli prisons and families of deceased terrorists, which promote terrorism, and because of their activities on United States soil. The Supreme Court said that did not violate the due process clause because the statute reasonably ties the assertion of jurisdiction over the PLO and PA to conduct involving the United States and implicating sensitive foreign policy matters within the prerogative of the political branches. This was a unanimous opinion with a Justice Thomas concurrence in the judgment that I actually, blessedly, think we don’t have to talk about. In Part 2 versus Richards, the Supreme Court held that parties are entitled to a jury trial on Prison Litigation Reform Act exhaustion questions, which are about whether plaintiffs exhausted their administrative remedies for legal violations that occur in prison, at least when that issue is intertwined with the merits of a claim that requires a jury trial under the Seventh Amendment. Here, the issue of exhaustion was linked with the underlying merits, because the plaintiff had said there were threats of retaliation after they reported a sexual assault claim, and that those threats deterred them from seeking future recourse, i.e. From further exhausting their remedies. This was a 5-4 opinion by the Chief Justice, joined by Justice Gorsuch and the Democratic point is. OK, final SCOTUS opinion. In Astarris versus United States, Justice Barrett, in a 7 to 2 opinion, held that district courts, in considering whether to revoke a defendant’s supervised release, may not consider retribution vis-a-vis the defendant’s underlying offense. The statute setting out preconditions for imposing supervised reliefs does not include that sentencing factor, which is listed in 3553A, the statute about imposing the initial sentence. The opinion was 7 to two. The dissent was authored by Alito, joined by Gorsuch. Justices Sotomayor and Jackson filed concurrences. They don’t think courts revoking supervised release can consider retribution for any purpose. And Sam Alito really needed to take an emotional lap before filing this dissent. So here’s the opening. Quote, veteran trial judges often complain that their appellate colleagues live in a world of airy abstractions and do not give enough thought to the practical effects of their holdings. Today’s decision is likely to earn the rank of exhibit A in the trial bench’s catalog of appellant worldliness end quote. Raise your hand if you’re a trial judge and you have felt personally attacked by Sam Alito. Notice everyone raising their hands. So Sam Alita is the guy in the hot dog suit meme. Like we’re all trying to find the guy who did this because we could play a game where we go around and name examples of Sam Alido not giving two shits about trial judges. I would start with his opinion in Alexander versus South Carolina conference of the NAACP, or there’s New York versus Department of Commerce. This guy just doesn’t care about fact findings that don’t go his way. Also, the only two former district judges on the court voted the other way, Sam, and that didn’t give him pause. Also, I don’t understand why Sam Alito was so angry, so Wired reported that one of Martha Anne Alito’s favorite flags, the Appeal to Heaven flag, a popular symbol for Christian nationalists that was waved by January 6 rioters, was raised over the Small Business administration headquarters in the last two weeks. Apparently, they’re knocking back Martha Rita’s at the SBA. And I’m pretty sure Melissa manifested this at our live show by engaging in some Martha Anne erasure by admitting that she, Melissa, had forgotten about the whole freak flag flying thing. Now to more SCOTUS-adjacent legal news. So the Ninth Circuit formally stayed Judge Breyer’s order that found Trump’s federalization of the California National Guard unlawful. So… That order, returning control of the California National Guard to the California governor, is not in effect and isn’t going to go into effect. So Steve, what did the Ninth Circuit do and how concerned should we be about the decision?

Steve Vladeck Yeah, I mean, I think, I know what the NYSERPA did is it basically said that given where we are right now, it is not clear that the plaintiffs have that strong, the plaintiff’s Governor Newsom has that strong a chance of winning on the merits with regard to the claim that this random obscure federal statute, 10 U.S.C. Section 12406, doesn’t allow for the federalization of so far 4,000 members of the California National Guard for what they’ve done to date. Critically, at least as of now, or at least in the posture in which the Ninth Circuit decided this did not include what we might call ordinary law enforcement activity. The case was already back before Judge Breyer Friday afternoon, with California now arguing that there has been some law enforcement activities. And so there’s been, in California’s view, a violation of the and Comet Tardis Act. This 1878 statute that prohibits using the military domestically for law enforcement without specific congressional authorization. Leah, I don’t see the Ninth Circuit decision as really foreordaining what happens on the preliminary injunction. I think it’s just saying, we need more. Before we can really hold that any of this is unlawful, we need more evidence that something is happening beyond just federalizing the National Guard.

Leah Litman So can I ask you about that? Because obviously, I agree that this decision doesn’t say anything about the Posse Comitatus issue. That is, it only addresses this threshold question of activating the guard. It doesn’t say anything about what the guard might be doing. But are you saying that this decision doesn’ even foreclose Breyer doing the same thing for other reasons or based on additional evidence based on the activation issue?

Steve Vladeck So, I mean, I think it makes it harder, right? So, you know, granting a state of a TRO, right, is not necessarily saying there’s 100% chance we’re going to rule for President Trump on the merits. It certainly makes it hard. And so I think Judge Breyer would need pretty good reasons to say that the federalization itself was unlawful for the purpose of the preliminary Junction. I will just say, and I think Leah betraying my own views to a degree, I’ve always thought that the much larger concern here is the law enforcement piece of it. Yes. I am not as bothered in the abstract by the notion that president should be allowed to federalize the National Guard in some circumstances without the governor’s consent. I think that’s not just a fair reading of the statute. I think it’s a good reading of history. To me, the issue is what are you using the National Guard for?

Leah Litman To my mind, what you’re using the National Guard for is basically inextricably linked to this activation question. If you think the president is kind of federalizing the National guard based on the idea that there has been some legal violations, vandalism disorder, that is ordinarily the purview of state and local law enforcement and that efforts to do something about it kind of. Are just inextricably related to that traditional law enforcement. Mike, it looks like you wanted to say something.

Mike Sacks Yeah, I think this ultimately came down to a level of deference to the executive as the executive, not to the executive as Donald Trump. And this this panel, which was one of the normie, they said one is a normie Trump judge in the Ninth Circuit, a Trump judge and Ninth circuit, and then a Biden judge, was unanimous in extending this presumption of regularity to the Executive. And I think what Judge Breyer did was was say, you’re not regular. You know, this this is not normal. But when it gets to the Ninth Circuit, maybe their view was that at this point, well, at least for Judge Sung, that the Supreme Court will probably do what the other judges of the Nineth Circuit wanted to do. So let’s not stick my neck out here in ways that the supreme court could then say otherwise. But really this comes down to presumption of regularity. We talk a lot about this. And this is a hard question for judges because on the one hand, We have a deeply irregular president who acts in consistent bad faith, and it’s plain for all to see, but when it gets laundered through the court system, the courts have to look at it at this president, or they insist they must look at this President through the lens of just a theoretical executive. This is what we saw with the Supreme Court, at least with John Roberts’ position in Trump v. U.S. That runs headlong into letting a would-be autocrat run rampant through this country. So long as he can pull some statutory authorization that requires courts to defer to the executive. And that’s messed up. But on the other hand, if you don’t presume regularity, then when the worm turns, then if the next president, who is a Democrat, has to pull a little rock, and a court says, well, no, that’s irregular too, and we won’t let the president activate the National Guard in that regard. That’s another consideration. But then we have to remember that at least at this point in our political history, Republicans are deeply irregular and both both both in how they act in power and how their judges act when when they when they don’t have political power, you know, so this and there’s there will be no fair play, there will be no the Republican judges will extend a presumption of irregularity to a regular democratic administration in ways that now at least Judge Sung in this case, was extending a presumption of regularity to a highly irregular president in this

Leah Litman Steve, I know you are going to have to bounce. So I want to give you the chance to say more about the Ninth Circuit decision and this issue before you have to go.

Steve Vladeck Sure. I mean, so first I’m going to say I’m really glad that someone from my Fall 1L small group other than Stuart Rhodes is now making news. Jennifer Sung, Fall 2001 Rubenfeld small group. And boy was that, yeah, that’s a whole, that’s different episode. So I think, I mean, Mike’s exactly right that the whole issue here is the presumption of regularity. I will just say that I also think it is entirely proper given how the Supreme Court has been behaving on emergency applications for circuit judges who are not just in the bag for whatever President Trump wants to do, to be thinking about how to put these cases in the best possible posture. For if and when they go to the Supreme Court. And it seems like, you know, Mike, I agree that figuring out when the presumption of regularity can and should be overcome is perhaps the dominant tricky question of the moment. I think a national security case about using military force is not gonna be first for John Roberts, Brett Kavanaugh, and Amy Coney Barrett. And so, you now, part of this again is my own biases. I actually am less troubled historically by you know, using the military domestically in some circumstances. And part of it is also that I think in the broad strokes of things, the place where this becomes a big problem is not just the federalization. But if it’s if we’re doing so, let me back up a second. If it’s okay for the president to use troops, for example, to protect the federal courthouse in Portland, as President Trump did right in 2020, then I think the question is what’s happening in LA that’s different. And there are answers to that question. And there a good answer to that questions. And I’m on the side that this is different, but it’s different not simply because he said, let’s have troops to protect federal functions, right? It’s different to me at least, because of largely what’s happening on the ground. That’s why Lee, I think the preliminary injunction hearing and proceedings are so important.

Leah Litman Yeah, no. I mean, Judge Breyer acknowledged that he did not have before him at the time evidence as to whether these National Guardsmen were performing ordinary law enforcement functions. And that would be very important to have in any proceedings on this issue about whether the National Guard are being used properly. Steve, thanks so much for joining us.

Steve Vladeck Thanks so much for having me, Leah. Mike, great to be with you too.

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Leah Litman Mike, we are going to proceed onward with legal news. And here it is legal news that’s kind of like other Supreme Court actions that relate to developments in the lower courts that we wanted to highlight. So the Supreme Court ordered a state court to take another look at whether New York’s abortion health care coverage requirement, the law requiring insurance to cover abortions, violates the religious rights of anti-abortion entities. The reason why the court ordered reconsideration, though, is kind of what raised a red flag. And that’s the Supreme Court said the lower court had to take another look at the case in light of the Supreme court’s decision in Catholic charities, the decision that held unconstitutional a rule requiring religious entities to engage in proselytization in order to be eligible for a state tax exemption. There, that is, in Catholic charities, the court reasoned that the anti-proscelization rule discriminated against certain denominations that don’t allow for proscelization. Suggesting Catholic charities is relevant here. To a law requiring health insurance coverage for abortion is concerning because it’s holding open the possibility that a rule protecting abortion rights discriminates against denominations that object to abortion. And that’s basically exactly what we warned about. When we discuss Catholic charities, as you can hear here.

Clip I think we’d be remiss if we didn’t point out all of the ways in which this decision, despite its efforts to hem in this out-of-control majority, may still pave the way for more significant changes in First Amendment doctrine. So here’s a question. What other conditions will the Supreme Court say discriminate between different religions or different religious denominations? What about a non-discrimination condition? Would the Supreme court say that that discriminates against certain denominations. Provides an opportunity to distinguish between different denominations. What would this decision mean in the context of religious hospitals or organizations that are affiliated with a church? And I don’t think this is an abstract question, because over the last couple of years, there have been a number of hospital consolidations under hospital corporations that are affiliated with the Catholic Church and the Baptist Church. I’m thinking of Dignity Health, for example. What rules can states apply to those kinds of organizations and. Their work going forward.

Leah Litman And the Supreme Court is not the only Republican controlled federal court that’s digging into the anti-abortion, anti-feminist aspects of the Republican Party’s agenda. So the country’s chief scientist, slash chief immigration officer, slash chief financial regulator, yes, Matthew Kaczmarek, a district judge in Texas, issued a banger of an opinion that struck down the 2024 Biden HIPAA rule, protecting reproductive health information from disclosure to law enforcement investigators when legally obtained, including in other states. Because what we really need right now is more policing women’s reproduction. And because Matthew Kaczmarek is Matthew Kaszmarek, he had to go a little fetal personhood. So he wrote, quote, the 2024 rule relies on the Dictionary Act to deny legal status and rights to unborn humans. In so doing, the 2024 rule is facially contrary to the Dictonary Act’s terms, end quote. Mike, can you remind us what fetal personhood is and why this is not just a threat in Texas?

Mike Sacks Fetal personhood is the legal theory that would declare abortion itself unconstitutional throughout the entire country. That’s, at bottom, what it is. To expand, it’s saying that fetuses are persons under the 14th Amendment, and so their rights would trump women’s rights under the fourteenth Amendment and their reproductive freedom. A challenge to, say, New York state’s strong abortion law as violating the right of a fetus to life. If a court buys that, then down goes every other state protection for abortion in the rest of this country. I would call it the reverse row. You know, for years, for YEARS, the fight against row coming from Justice Rehnquist’s pen and Justice Scalia’s pen and the federal society was a federalist argument. It wasn’t pro or anti-abortion as, you know, the justices and dobs insisted on in its decision. No, it was a federalist issue. It was something that the constitution was silent about. The constitution is silent on abortion. Therefore it should be a state policy preference. Or in Kavanaugh’s concurrence, Congress can weigh in as well. But not courts, not the constitution. But in the Dobbs briefing, you saw briefs by Robbie George and John Finnis, who are leaders of the more theocratic element of the right-wing legal movement. Who have been for years arguing for fetal personhood. The court in Dobbs didn’t want to go there, but that’s clearly the next step in the right-wing anti-abortion movement to get by judicial fiat abortion banned across the country as unconstitutional. It’s really the mirror image of Roe versus Wade for those who were once screaming that Roe vs. Wade was awful.

Leah Litman And anti-democratic, yeah. And this isn’t just happening in Texas, right, Mike?

Mike Sacks No, it’s not. It’s happening here in New York. So last week, a trio of Republican-appointed federal judges on the Second Circuit, Court of Appeals, threw out a challenge to New York State’s Reproductive Health Act, but gave future plaintiffs a roadmap to establish fetal personhood and have abortion declared unconstitutional. There was a case called Doe v. Hokel, and there was a plaintiff there who sought to represent a, quote, class of viable fetuses in New york against the Reproductive Health Act. And the argument was that it violated fetuses’ right to life and equal protection under the 14th Amendment. Now these judges said that this next friend of the class of fetuses she sought to represent did not have standing because she wasn’t able to actually say this fetus got, this one fetus or several fetuses were directly impacted by the Reproductive Health Act. The court then went on to say that though she failed to identify or otherwise describe any class member in the viable fetus class that she sought to represent, it did say someone at some point, an expectant father. This is another quote, other relative, or perhaps even a non-relative who describes the viable fetus they seek to represent with sufficient specificity could walk through the courthouse doors. Now, this trio of Republican appointed judges were coy about what they would rule if they’re presented with a proper standing litigant. But this is the roadmap through the courthouse doors to get into federal court to argue for fetal personhood, at least one of the ways. So we’re seeing it, it has begun.

Leah Litman It’s wild because this is just three years after Dobbs, and it is a reminder of how quickly the Overton window shifts, and courts roll in that.

Mike Sacks And it’s a matter of the composition of the Supreme Court too, right? If there weren’t five justices ready to go full reverse row this time in Dobbs, you know, all it takes is a few more. And that’s what this movement is hoping for. And meanwhile, Mandy Kaczmarek, Emperor Amarillo, as I like to call him, is trying to still, we’re waiting for, to see whether he’s going to resuscitate the case against Mr. Pristone. Yep. And he’s would do so by saying that several states that sought to intervene that are not in Texas. Can be in his courtroom, even though the Supreme Court threw out the actual Texas-based plaintiffs. And we’re waiting for that to come out, even as this Trump administration is considering whether to do what Kazimerek was looking to do by court through administrative action and revoke FDA’s approval of Ramiffy.

Leah Litman Yeah, that’s the case we’ve talked about with Emily Amick, where the state’s theory of injury is that teenagers are not having enough babies. So anyways, that unfortunately is not the only thing happening in the lower courts as fallout from the Supreme Court’s approach to sex discrimination. So we did an emergency episode last week on Skirmety with Chase Strangio and talked about how there the Supreme court or at least the Republican justices signaled that maybe a little sex stereotyping is a OK, totally kosher. And longer-time listeners might be familiar with the case of Brenda Andrew. That is the woman who was convicted and sentenced to death on the basis of a trial that included some absolutely outlandish instances of sex stereotyping, so much so that the case has been described as an instance where someone, Brenda Andrew, was sex-shamed to death. So Brenda was accused of conspiring to murder her husband. At trial, the prosecution introduced a bunch of evidence. Of Brenda’s sexual history, suggesting a grieving widow, wouldn’t have dressed like such a slut, eliciting lurid details about her affairs, showing the jury her sexy underwear, also using that to suggest Brenda wasn’t innocent and maybe was guilty of murder. In what was truly an extraordinary win, Brenda Anders’ lawyers pulled off a nearly impossible feat, convincing the United States Supreme Court to issue a decision siding with a habeas petitioner. After the US Court of Appeals for the 10th Circuit denied Brenda’s habeas petition on the ground that there was no clearly established law prohibiting sex stereotyping, yes, you heard that right, the lawyers at Phillips Black convinced the Supreme Court to send Brenda’s case back down to the 10 circuit on the grounds that the 10 Circuit had erred by defining clearly established laws too narrowly. Well, the oral argument in Brenda’s case happened in the 10 Th Circuit. The question in the case, again, is whether Brenda’s trial was so infected with sex discrimination and sex stereotyping. That her conviction and sentence violate the Equal Protection Clause of the Constitution. Let’s hear how some federal judges decided to engage with that issue. The argument starts out this way.

Clip Mr. Greenfield, Ms. Greenfield.

Leah Litman Always love to hear a federal judge starting out a sex discrimination case by assuming there must be a man arguing. And that’s not all. Peep this exchange.

Clip It was relevant for him to say that she had told him she hated her husband and wished he were dead. You agree? That’s a remarkable statement for a woman to say to a guy.

Leah Litman That kind of sounds like a sex stereotype to me, but Mike, you’re a man with a good personality. What do you think?

Mike Sacks Oh man, yeah, um, I wouldn’t say that.

Leah Litman Yep, that is definitely just locker talk. OK, so we will be watching to see what happened. Natalie Greenfield, who argued the case on behalf of Brenda Andrew, was phenomenal. Definitely worth listening to the argument. A little bit more on sex stereotyping, the always classy New York Times decided that the day after Skrmetti was the perfect occasion to publish a long, excruciatingly long piece, second guessing the decision to challenge bans on gender affirming care for trans people and to have that case get to the Supreme Court. I think the best commentary on the piece came from a Blue Sky account whose handle I’m now blinking on, which said, quote, if only trans people had been politically savvy and gave up their own humanity so that the Democrats could lose by one percentage point less, end Also, the piece is kind of a remarkable self-own because in some ways the story in the piece is how the laws forged in response to and against the backdrop of politics and public opinion. The New York Times poses something along the lines of, why take this case to the court when the public and states leaned into anti-trans backlash? You know, that public opinion thing they’re talking about, like the Times, the New York Times had a hand in shaping it with their obsessive anti-trans coverage. So the piece is not quite the own they think it is. And the Newark Times coverage was cited seven times in the majority opinion in Skrmetti itself. Okay, so two other pieces of legal news. Mike, we have to go back to the Fifth Circuit. I’m sorry. There was a recent Fifth Circuit ruling, although you’re gonna like this Judge Jones. That managed to be both bananas and not bananas. So I know you had wanted to highlight this. So do you wanna give a quick summary of the ruling and what wasn’t bananas about it? Sure.

Mike Sacks Sure. So this was a challenge to the federal ban on guns near schools. And what’s not bananas is the fifth circuit upheld the federal band on guns.

Leah Litman Whoa, whoa.

Mike Sacks Right, and that’s always perhaps an open question with the Fifth Circuit. You know, the panel here was, well, you know, that’s why. They gave it to one of the Trump judges to write, but it wasn’t a fully Trumpy panel. But, you now, Jim Ho would have had a ball with this.

Leah Litman Okay, so that sounds inoffensive slash harmless. So what was the bananas part of the non-bananas opinion?

Mike Sacks The bananas part was the part where they had to follow the Supreme Court’s bananas ruling and brewing. Is that enough alliteration for everybody? I could have put a little bit more in there.

Leah Litman Bruin bananas. Bruin Bananas. Those sound like bad bananas.

Mike Sacks The decision from the 5th circuit, instead of just saying, you know, bans of guns near schools make sense, which is how these laws were upheld for all of American history until just the past decade, if that, after Bruin a couple years ago, is that instead they had to go for the unfathomably stupid reason that a 697-year-old English law was sufficiently analogous to the band.

Leah Litman And not just any law, the statute of Northampton, which we literally created a Second Amendment drinking game around, given the Supreme Court’s fixation on that law as like the lodestar of the Second Amendment.

Mike Sacks No, you heard the Statute of Northampton referred to over and over again, starting with the Heller decision in 2008. I was in the Supreme Court room when that decision was handed down. I was Nina Totenberg’s intern, and I was listening to it, and jotting down the Toten I was jotting down all of the things that Justice Scalia was saying and things that Justice Stevens was saying. And I kept hearing the Statue of Northhampton and the fundamental right of self-defense in the home. And thus, thus began this totally bananas Second Amendment jurisprudence that, what, 14 years later, the Supreme Court codified in Bruin to make sure that any contemporary or even 100 or 150 year old restriction on firearm use has to be measured according to either the statue of Northampton, almost 700 years ago, or what the founders were looking to do in 1791. And that’s no way to run a country, that’s not way to have a democratic process, and there’s no way to keep people safe.

Leah Litman Just want to say we could use more members of Congress who know how to pick up disturbing signs from the federal courts, before they actually materialize in a bruned bananas bombshell. And more generally to understand what is going on in the federal court. Yeah, hands raised. Raising hands moment of this episode, the second one. So, speaking of disturbing signs, there’s been a deeply concerning trend, like more than one actually, among Donald Trump’s judicial nominees. So. Jay Willis at Balls and Strikes highlighted how multiple Trump judicial nominees are answering questions related to the 2020 election results, which, surprise, they are basically unwilling to say was a legitimate victory by Joe Biden. So Senator Durbin asked nominees, quote, did President Trump lose the 2020 election, to which all five nominees said the exact same thing, quote. President Biden was certified as the winner. To the extent this question seeks to elicit an answer that could be taken as opining on the broader political or policy debate regarding the conduct of the 2020 presidential election, my response is that it would be improper to offer any such comment as a judicial nominee.” End quote. Mike, this seems bad.

Mike Sacks Yes, it’s very bad. This is the MAGA version of what we saw in Trump 1.0, where every Trump judge put forward would refuse to answer whether Brown v. Board was properly, was rightly decided because they knew that was the next question would be, was Roe vs. Wade rightly decided. And they wanted to hide the ball on that, so they just decided to not answer about Brown v Board. Oh my God. But no, this is that version because anyone put forward by Trump has to pledge fealty lest they have their nomination pulled. And that they plead fealty to the animating mythology of this administration, of its second time around, which is Dude Never Lost. Now, that might create some problems for the 22nd Amendment, because if Dude Never lost the second time, then he shouldn’t be in office this time. But these people aren’t thinking that far ahead. In fact, they’re probably thinking far enough ahead to, I don’t know, create a pathway for a dude to run again.

Leah Litman Exactly. Like if he’s already serving a third term, why not a fourth, fifth, sixth, seventh, eighth? So I like, you know, how you frame this as like a MAGA trend from Trump 1.0 to 2.0, because, you know Trump exchanged a vice president based on their unwillingness to overturn the results of the 2020 election. And he is now exchanging judicial nominees, because again, a bunch of federal society judges refuse to overturn their results of the 2020 election. And it seems like he wants to replace those ones. With all the sacks who would do something different in a future election, right?

Mike Sacks Can I tell you what really deeply terrifies me?

Leah Litman Please

Mike Sacks We can all agree that-

Leah Litman I love not being able to sleep at night.

Mike Sacks We can all agree that whether Trump runs again and courts let him or whether Vance runs or some other Republican runs and Say that person does not win the electoral college We can probably all agree the JD Vance being up on the rostrum on January 6, 2029 Would do it might pence refuse to do on January six 2021 now. There’s been a law passed in the meantime Yeah saying that one a vice president presiding over the Senate as constitutionally required for ministerial in that moment that Pence did as well. But you can also imagine that- But it’s just a-

Leah Litman but as Justice Jackson warned us, right? Right?

Mike Sacks And you can also imagine that Vance will say, sorry, no, that law is unconstitutional. And you could then see this case going to the Supreme Court because that law requires an expedited movement towards the Supreme court. This Supreme Court saying, political question, guys, fight it out. And we are in, if we think we’re in the bad place now, and if we, if you think we’re going to be in a bad place every single day of this administration leading up to then, and we kind of will given this administration, it gets worse and That’s going to be a bad place. And we need to keep our eyes open, not only in the courts, but all around to make sure that should those guys try that stuff, we’re aware of the anti-democratic forces trying to lock the voice of the people out of our own self-determination.

Leah Litman Again, just want to suggest it would be very helpful to have members in Congress who foresee the bad things the Republican Party might do, rather than telling us all the Republican party is a bunch of normies and refusing to see what is before their eyes until it blows up in our faces. And speaking of the bad place. Why did I learn about these responses from judicial nominees, from a reporter at an independent media site, rather than from fucking Senate Democrats screaming too high hell about this?

Mike Sacks I think warrants and Democrats not there in the room a lot of this.

Leah Litman Yeah, that was part of it.

Mike Sacks That could be one of them. But yeah, it’s a credit to independent reporters being there. Having been a reporter myself once, being in these rooms, we’ve got to respect and realize that those are the eyes and ears of our government when those in the government aren’t sending the message out to the rest of us.

Leah Litman OK, so we like to try to end these episodes on positive notes now by saying the things we enjoyed reading this past week, or watching, or seeing. So I am going to start. And I will say the thing I enjoyed reading the most was that a judge has ordered the release of the Columbia protestor Mahmoud Khalil. From ICE detention. This just broke as we were recording. And it’s possible there will be additional developments. But I think that is a very welcome thing to have learned. Mike, you want to add anything? Oh, for those who are not watching on YouTube, Mike, what are you what are you holding up?

Mike Sacks I am holding up your book, Lawless, How the Supreme Court Runs on Conservative Grievance, Fringe Theories, and Bad Vibes by Leah Litman, co-host of the podcast, Strict Streep.

Leah Litman Some people have given me shit for using that as my author descriptor rather than like constitutional law professor or something. No, it’s always about the pod.

Mike Sacks And I’m keeping this up here until you turn off the video. I’m just gonna hold this here so that your listeners who can know I’m holding this here and your viewers who see my holding it here will continue to see it and buy the book. Really, Leah, it’s been just astounding and amazing seeing how successful you’ve become and how influential you are.

Leah Litman Thank you.

Mike Sacks So really, I’m proud to know you and I’m very grateful that you asked me to be here on the pod today. And also, for those of you listening, for you to read. I’d say check out Mike Sachs for congress.com. Learn about the campaign, learn about what I’m about and, you know, join us.

Leah Litman Mike, thank you so much for joining.

Mike Sacks Thanks for having me.

Leah Litman Piece of housekeeping before we go.

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Leah Litman Strict Scrutiny is a Crooked Media production, hosted and executive produced by me, Leah Litman, Melissa Murray, and Kate Shaw, produced and edited by Melody Rowell. Michael Goldsmith is our associate producer. Jordan Thomas is our intern. Audio support from Kyle Seglin and Charlotte Landes. Music by Eddie Cooper. Production support from Katie Long and Adrian Hill. Matt DeGroot is our head of production. And thanks to our digital team, Ben Hethcote, Joe Matoski, and Johanna Case. Our production staff is proudly unionized with the Writers Guild of America East. Subscribe to Strict Scrutiny on YouTube to catch full episodes. Find us at youtube.com slash at strict scrutiny podcast. If you haven’t already, be sure to subscribe to Strict Scrutiny in your favorite podcast apps. You never miss an episode. And if you want to help other people find the show, please rate and review us. It really helps.

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