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December 05, 2022
Strict Scrutiny
Making Fraud Great Again

In This Episode

Melissa and Kate recap oral arguments in a couple of cases that could limit the reach of federal fraud statutes, plus an immigration case out of Texas. And of course, there’s the latest story out of the New York Times, spilling the tea on a years-long effort by conservative activists to ingratiate themselves with Supreme Court justices.

On December 6th, the Supreme Court will hear arguments in Moore v. Harper, a case about the independent state legislature idea/thingamajig/fantasy. We’ve covered it extensively, so catch up on previous episodes before the chaos is unleashed on Wednesday.

 

HUGE reminder that it’s run-off time in Georgia. Early voting started Monday, November 28th for the December 6th election. That’s TOMORROW. If you’re a Georgia voter, head over to votesaveamerica.com to make your plan.And if you want to help out no matter where you live, you can donate and find remote and in-person volunteer opportunities to make sure the Warnock campaign has the resources it needs.51 senators means the difference between a true majority, or being faced with another 2 years of roadblocks like problem children Kyrsten Sinema & Joe Manchin. Make sure that every Georgia voter can make their voice heard again at  votesaveamerica.com.

 

TRANSCRIPT

 

 

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

 

Melissa Murray Welcome back to Strict Scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it. We’re your hosts today. I’m Melissa Murray.

 

Kate Shaw I’m Kate Shaw and Leah is away today. She is taking a little well-deserved downtime after a bear of a semester. So we will muddle through without her. But fear not, she will be back with us next week.

 

Melissa Murray But we have a lot to cover today, so we’re going to dove right in. The court is currently halfway through its December sittings, so we’re going to focus on recapping the cases the court heard last week and we’ll say a few things about the cases the court is set to cover this week and will then spend some time on additional developments and don’t want to Aliko Gates That’s what we’re calling it. And then we’ll walk through some other news and culture grants activity on the shadow docket and some notable developments in the lower courts. But first, an erratum of sorts, a may culpa, if you will, in our last episode when we covered three, three, three Creative versus L.A., which will be argued this week at the court, we mentioned Employment Division versus Smith, the embattled 1990 decision concerning free exercise of religion. In explaining the Smith decision, I misspoke and said that all of the Republican appointees on the court were in the majority in Smith. But while the majority in Smith included Scalia, Rehnquist, Stevens, O’Connor and Kennedy, it did not include Justice Brennan and Eisenhower appointee who dissented from the majority opinion, and Justice Blackman, a Nixon appointee who concurred in part and dissented in part. So I was wrong. It was not all of the Republican appointees, but it was all of the court’s members. So I think we could classify as conservatives. I mean, I think I don’t always think about Justice Brennan as a Republican appointee because he really kind of never stayed with it, which reminded me of something else. So I did an event with Elie Mystal recently, and one of the things that Elie noted about the court in its current composition is that the Republican Party that has nominated these justices, just very different from the Republican Party that nominated justices 40, even 30 years ago. And Brennan and Blackman are kind of exemplary of that impulse, like their Republican appointees. But moderates in many ways, and in Brennan’s case, a true liberal.

 

Kate Shaw Justice Stevens. I mean, just.

 

Melissa Murray I mean, yes, your justice is a perfect example of that. And so perhaps I could be forgiven for forgetting that they were actually appointed by Republicans.

 

Kate Shaw Well and also the moment that we’re in right now is one in which for the first time in history, we have perfect alignment between the ideology of the justices and the parties of the appointing presidents. But that was not always the case. So you’re right. Good reminder.

 

Melissa Murray One of our eagle eared listeners wrote to me and I was like, Yep, you’re right. I went and looked at the transcript. I’m like, My bad. So here we are, my bad. I will be more precise in the future and just basically call everybody out by name and let you do the work. You can do the work.

 

Kate Shaw Our listeners are the best. They really are.

 

Melissa Murray They keep us honest. And you know what? We keep the court honest. So let’s keep going on to the recaps.

 

Kate Shaw So let’s start with two of the fraud slash political corruption cases that we previewed last week. PERCOCO versus.

 

Melissa Murray I thought you were going to say let’s start with two of the frauds.

 

Kate Shaw The frauds on the court, the fraud cases. I know it’s hard to know with just that snippet.

 

Melissa Murray Fraud on the court and fraud cases.

 

Kate Shaw Before the court, yeah, so these are fraud cases before the court, both of which the court heard argued on Tuesday. And just to remind you what they’re about, so Percoco is about whether a former government official who had plans to return to government after a stint on a reelection campaign can be convicted of fraud for receiving a payment from a developer to pressure a state agency to award funding to that developer’s project. You think? The answer is clearly yes, but stay tuned.

 

Melissa Murray The other case, Simonelli, is about whether it is a violation of the federal fraud statute to manipulate the terms of a government bid process in a way that favors a particular bidder. Here, to the tune of a $750 million contract for a high tech facility as part of the Buffalo Billion plan to redevelop upstate New York.

 

Kate Shaw Okay, so high level overview of the two cases. I would say that from the arguments it is clear that the Court is sympathetic to the defendants and eager to further limit the reach of the federal fraud statutes. But let’s maybe take a beat on each of the two cases.

 

Melissa Murray All right. So first step in Percoco. The justices seemed very concerned about the possibility of a theory that prohibiting people with ties to government office. Here, a former official who’s serving on the reelection campaign with plans to reenter the government after the campaign has concluded could extend to, quote unquote, personal friends of people who hold government office and specifically that, quote unquote, personal friends of people who hold government office could be targeted under fraud statutes for, say, receiving gifts, facilitating access to a government official. So let’s hear from one of our favorite justices, Justice Alito, on this point.

 

Clip What do you say about somebody who is a super, super effective lobbyist? So let’s say this person is a childhood friend of the person, the elected public official. They played together on the high school football team. This person was elected officials. Best man or maid of honor at the wedding spearheaded the president’s political career. Campaign manager for every campaign, helped this elected public official out of numerous political scrapes that everybody thought meant the end of the person’s political career. Now, as a lobbyist lobbies, lots of different public officials, have lots of clients, has a 100% success rate. With respect to this public official, there’s a concern about having this interpreting this statute to sweep in lobbying. But would that person be covered, in your view?

 

Melissa Murray What my dude?

 

Kate Shaw Yikes.

 

Melissa Murray It takes real cheek to ask this question at this moment.

 

Kate Shaw It does. And you know, what you’re alluding to there, Melissa, is that, you know, as you said in our earlier episode about The New York Times story about, you know, the Influence Access campaign directed to the court, which we will return to later in the show. The tenor of this question coming from Justice Alito right now just hits different in light of that bombshell reporting.

 

Melissa Murray Big DGAF energy. Big DGAF energy.

 

Kate Shaw Yeah. You know, you know what else had big dig f energy. Maybe we could tease it now. Again, we’ll come back to it later in the episode. But a letter issued from the court’s legal counsel last week in response to Democratic congressional inquiries about the New York Times story. And briefly, the bombshell story we are referring to is the reporting by Jodi Kantor and Joe Becker about this influence and access campaign directed at the Supreme Court. So again, we’ll come back to this. But the letter from the court’s legal counsel said, you know, pretty definitively there is nothing to suggest that Justice Alito’s actions violated ethics standards. It also said the term gift is defined to exclude social hospitality based on personal relationships. And it also noted that gifts do not count toward the dollar threshold if they take the form of food, lodging or entertainment received as personal hospitality of an individual. So Justice Alito’s concern about casting aspersions on potentially untoward relationships that might involve, you know, the peddling of some influence falling clearly outside of any criminal or ethics statutes. It just felt like maybe Alito was speaking in two registers at the same time in this argument. But again, we’ll come back to The Times reporting. So let’s stay with Percoco for another minute. So after Justice Alito is like, you know, high school football teammates, best man hypo Gorsuch piled on. And here I thought that Nicolle Reeves, who was representing the federal government at one point, actually got them to back off and let her answer a question. So maybe let’s play Gorsuch pressing the same point as Alito and then Reeves answering and actually getting Gorsuch to let her speak.

 

Clip This town is full of such persons, and presidents have had kitchen cabinets since the beginning of time, and those people are often taken quite seriously in the halls of government. Whether they should or not is an interesting public policy question, but I would have thought that many of those persons would would function as be functional, functional government, government officials. Is that your phrase under your three part test? Or at least they’d have to have a very long trial to figure out what the answer is. You know, such an individual doesn’t have the approval of both superiors and inferiors that there were. Let’s say he does that, you know, that that he’s in the White House or in the halls of Congress on a regular basis. And people know that he is taken very seriously by the elected official and that they have to they have to listen to that fellow and do what he says because they know he speaks for the president or the senator or whatever. Again, just because someone is very influential, you have to go through these. I know you keep saying they’re influential and that’s not enough, but why isn’t it enough under your three part test? Because a person like that isn’t. What part of the test do they fail specifically? 1 to 3? Which which portion and why? All three? All three. Okay. All right, let’s if you allow me to unpack a little bit.

 

Kate Shaw I just thought it was worth playing that clip because I thought it was effectively done. Subtle but forceful in responding to Gorsuch, badgering her with questions, and then refusing to let her respond, which we see all the time from him. And has got to be just maddening when you’re up there trying to engage and being prevented from doing so. So I thought it was very deftly done.

 

Melissa Murray In the register of here’s what we’re not going to do, Justice Gorsuch.

 

Kate Shaw But she didn’t she didn’t say that. But then she kind of did.

 

Melissa Murray At one point, the Jones Day lawyer who was representing Percoco seemed to suggest that perhaps there is a, I don’t know, constitutional right to engage in lobbying when as here, the lobbying was perhaps paying someone to award a government contract to you. So let’s roll that clip.

 

Clip I haven’t seen a good explanation for why the government’s theory here and the marginal theory would not cover the really influential lobbyist. Maybe somebody who used to be chief of staff in the office has left, still knows everybody there, still can pick up the phone and get things done, as they said about Percoco. You know, why would that not be enough? And I think that’s a major problem. That’s a problem from a due process standpoint because of the indeterminacy. And it’s a problem from a First Amendment standpoint because lobbying is constitutionally protected conduct. We’re talking about petitioning the government for redress of grievances. And when you’re chilling, that type of conduct, that’s a that’s a major problem.

 

Melissa Murray Wow. The First Amendment just beyond religious freedom, beyond compelled speech like the right to lobby.

 

Kate Shaw Protects actual quid pro quo. Yeah, yeah.

 

Melissa Murray Yeah. I mean, and let’s do you think, listeners, that we are making a mountain out of a molehill? I will recall this opinion by Fifth Circuit Judge Jim Ho dissenting from an en banc rehearing in Zimmerman versus City of Austin, which is a challenge to the Austin City campaign contribution limits for city council members. So here’s what Judge ho had to say, to be sure. Many Americans of good faith bemoan the amount of money spent on campaign contributions and political speech. But if you don’t like big money in politics, then you should oppose big government in our lives because the former is a necessary consequence of the latter. When government grows larger, when regulators pick more and more economic winners and losers. Participation in the political process ceases to be merely a citizen’s prerogative. It becomes a human necessity. This is the inevitable result of a government that would be unrecognizable to our founders. So if there is too much money in politics, it’s because there’s too much government. The size and scope of government makes such spending essential. I have to say I love how they defend the stuff like hey redistributive a stunt queens. If you don’t want big money in politics then don’t have big government. You socialist bitches brought this on yourselves. I mean, every right now that’s the energy.

 

Kate Shaw That is the energy. And and in some ways it is the tear it all down sort of deep theory underlying many of these doctrinal commitments that conservative judges and justices really harbor. It is refreshing to see it made explicit from time to time, and I think that is what we have to display here. That is what is really driving them like a complete dismantling objective. And you can dress it up in whatever First Amendment clothing you want, but that’s really what it’s about.

 

Melissa Murray Lipstick on the First Amendment.

 

Kate Shaw Exactly.

 

Melissa Murray Like. Wooo

 

Kate Shaw Alright, so sticking with Percoco for another couple beats. Justice Thomas Not, you know, to be left out of this debate. Voice Some real concerns about imposing ethical standards on government officials. They were kind of dressed up as federalism concerns. But.

 

Melissa Murray Always always.

 

Kate Shaw Yeah, frequently anyway. Yeah, no. But you know, clearly, if you listen, he seems to be concerned about imposing ethical standards just in general, as far as I can tell.

 

Clip I think my point is rather that it seems as though we are using a federal law to impose ethical standards on state activity.

 

Kate Shaw You know, there’s another argument that kind of hit’s different given the various ethical issues swirling around the court and Justice Thomas and his spouse in particular.

 

Melissa Murray Let me just take a sip of my cocktail. I’m parched.

 

Kate Shaw So we’ve known that hit’s different a couple of times. I feel like we need to mention that this is something that Leah noted. We were discussing this episode that hits different. I did not know this. Did you know this, Melissa? It’s a secret on midnights that’s available only on purchased albums and I have just been streaming it, so I did not know that, but I now need to actually purchase that song.

 

Melissa Murray I mean, obviously Leah purchased it immediately and knew this, but the rest of us did not. So we are not true fans only Leah is a true fan.

 

Kate Shaw Its true that we got we actually got tickets. We’re going to go.

 

Melissa Murray Oh good for you.

 

Kate Shaw I’m not. I’m not going to disclose how much we paid for tickets. It was not a small amount, but we’re going to go in May.

 

Melissa Murray There was also some lighter moments in the Percoco argument, especially if you are a fan of the federal common law. So let’s hear Justice Gorsuch letting loose with a little Benmont.

 

Clip Yeah. Where do they come from is my question. I think from a couple of places. One there inherent in the nature of. Being a public official. It’s the sort of things we would look at to see whether someone is. In fact acting as a public official. The brooding omnipresence of the law.

 

Kate Shaw I know this is as funny as Gorsuch gets. Honestly.

 

Melissa Murray I so it reminded me of this moment a couple of years ago at the convention where Justice Sotomayor noted that it had taken her and her colleagues a minute to figure out Justice Gorsuch a sense of humor. And she said, well, you know, he wasn’t funny the way we were used to. And I have to say, I think we’re all still getting used to his sense of humor, still.

 

Kate Shaw All these years hence. We still are.

 

Melissa Murray All these years still getting used to it.

 

Kate Shaw Well, maybe eventually. I mean, now that we want to honestly, there were a couple of actual funny moments in this week’s sitting, so we’ll get to those. But I actually didn’t think this was one of them. Anyway, okay. So back to Justice Alito for a moment. Did you think that he was referencing a Clinton conspiracy theory with this question?

 

Clip What do you think needs to be shown to establish an agency relationship? Let me give you this example. Suppose there is a situation in which the person who formerly holds official power doesn’t exercise it, and everybody knows that. So suppose it’s a popular governor who cannot run for reelection again, but the spouse of the governor runs. And everybody knows that the former governor is really the one pulling the strings. Everybody knows that. And if anybody asks the person who is holds the office as a formal matter, that person will say, Don’t bother me with this. Just ask my spouse. Would that be? Would that person be? Could that person be convicted under the statute?

 

Melissa Murray This is very specific for a hypothetical.

 

Kate Shaw Pretty specific answer. But who knows?

 

Melissa Murray He did change it from president to governor. So that definitely threw us off the trail, clearly. Inspector Gadget.

 

Kate Shaw Well, for us to wonder.

 

Melissa Murray Which is interesting because I thought like Clinton hate was the Kavanaugh beat so .

 

Kate Shaw No, not not exclusively in Kavanaugh’s domain.

 

Melissa Murray I mean I guess.

 

Kate Shaw So clearly some I think from the clips that we played, some very skeptical questioning from the conservative justices. Actually, though, even the liberal justices honestly do the federal government a pretty hard time at points during this argument.

 

Melissa Murray Everyone wants to make it safe for fraud again.

 

Kate Shaw They sort of do. I mean, look, some of. The cases that the court has already decided that limit the ability of federal law to reach this sort of corrupt activity have been unanimous. Know McDonnell was unanimous. Kelly was unanimous. KELLY The Bridgegate case was authored by Justice Kagan. So, look, I understand that justices across the ideological spectrum are concerned about giving too much power and discretion to federal prosecutors. I think that concern is well-founded. But I also think this line of cases poses a real threat to values like integrity and fair dealing and ethics in government. And I think the justices should be concerned about those potential consequences as well. And yet I expect that this will be just the latest installment of that long line of cases, making it harder and harder to go after this kind of fraud. Hmm. Cool. All right, good times. So we’ll be brief in the second of the two cases from Tuesday. So the second case in this pair of corruption cases is Simonelli versus United States. And I think we have to start our discussion of it by noting who argued it for Simonelli, and that was Michael Dreeben. So Dreeben is formerly of the Solicitor General’s Office, and for years he was actually the deputy SSG who handled the criminal law docket for that office, which meant that he argued on behalf of the federal government some of the really significant cases we walked through on the last episode. So Skilling versus United States, Cleveland versus United States, McDonnell versus United States. Like all of these were the cases in which the federal government was in front of the Supreme Court trying to defend convictions under various federal fraud statutes, and in each case lost as the court narrowed the reach of those statutes further and further. And Dreeben is now in private practice at O’Melveny, and there’s nothing technically wrong with him taking on this representation. But it honestly made me pretty uneasy to have this person who for years was like the walking embodiment of the federal government’s views of criminal law. Now at a firm leveraging his credibility on matters of federal criminal law and like trying to build on these cases that he argued for the other side that might further narrow the reach of the federal fraud statute. So I just felt that made me feel lucky, honestly. All right. So on to the arguments, though. So they were not quite as bad for the government as I had assumed going in, honestly, like it’s possible this case could be a super narrow vacate and remand, since the government has now more or less abandoned what’s known as the right to control theory. So that was the theory the Second Circuit used in this case and in related fraud cases over the years. So basically, this is a bid rigging case in which Simonelli secretly worked with state officials to be sure that his firm would be selected for these projects as part of the Buffalo Billions plan. And then the prosecutor’s theory of fraud was that the state had a right to control its funds with full information about how those funds would flow in the bidding process. And this scheme deprived the state of that. So if that sounds kind of convoluted, it may be kind of is. And in any event, the federal government has now abandoned that theory and is trying to recast it as something like material deception or fraudulent inducement and is arguing the evidence was sufficient to support a conviction under a proper theory anyway. And so there should just be a straight affirmance.

 

Melissa Murray It seemed to me that a straight affirmance was pretty unlikely in this scenario, but as you said, a narrow vacate and remand would mean the court could leave for another day. The whole question of whether the fraudulent inducement theory was sufficient here, and that has some elements and requirements that are similar to the right to control theory. So maybe they want to take some time to parse through that if in fact the right to control theory has been abandoned to some degree. So again, this is a kind of weird, strange bedfellows coalition with the Liberals being, I think, as skeptical as the Conservatives are on this. And you have a straight line of cases that are all chipping away at the prospect of limiting fraud in government processes. So this seems like it’s likely to add to that. It’s just will it add in a big way or in a more narrow way?

 

Melissa Murray [AD].

 

Melissa Murray The court also heard last week an extremely important case titled U.S. versus Texas. And if you’re confused because we had earlier talked about an extremely important case called U.S. versus Texas. You would be forgiven, dear listener, because we have so many cases titled U.S. versus Texas. This one is a challenge to President Biden’s enforcement guidelines regarding certain provisions of immigration law, particularly the provisions about which non-citizens are priorities for arrest and removal, as well as guidance about the factors to consider regarding whether a particular individual should be detained while immigration proceedings are ongoing.

 

Kate Shaw So in addition to this question of the lawfulness of that guidance memo, the case raises several other questions. So first, there’s a really big standing question. Does Texas have standing to challenge this guidance memo at all? There’s also a really important remedy question So if Texas does have standing and if that guidance memo is invalid, what remedy might Texas have? So can a federal court vacate the agency action entirely? Can it, you know, issue a nationwide injunction requiring the executive to implement the immigration statutes in a particular way? Can courts do this in general under the EPA, and are they prohibited from doing so, in particular in this case involving the Immigration and Nationality Act?

 

Melissa Murray And I’ll just say from the start, this argument got really spicy, really fast with some of the justices. I’m thinking particularly of the chief justice and Coach Kavanaugh being extremely dismissive of the federal government’s position, both on the remedy and on the merits. And they characterized the government’s position as extreme and unprecedented. And in particular, Justice Kavanaugh seemed to think it would be a major problem if courts could not hear these challenges to how the executive branch is implementing federal immigration law, which is really odd because it seems like just a couple of decisions ago Justice Kavanaugh was all for the political branches, speaking for the people on a fraught issue until he wasn’t. So here we are. But maybe let’s. I mean, like, is it too much to ask that he just stay consistent? But maybe let’s just go through the different steps of the argument and talk about how things went at each stage. So let’s talk first about standing. So, Kate, can you explain the standing issue here?

 

Kate Shaw Sure. Okay. So from the outset of the oral argument, both the chief justice and Justice Alito seemed to suggest the federal government’s argument that the states lacked standing to challenge the guidance memo was foreclosed by the court’s cases. And yet you heard that right. They raised without any hint of irony, the idea that they had to basically put their critical faculties on hold and just respect precedents, giving states wide latitude to establish standing, because this is a court that takes starry decisis. Oh, so seriously.

 

Melissa Murray Very, very seriously.

 

Kate Shaw So here is the chief justice. On that point, I would.

 

Clip Have thought you’d have a little more concern about an opinion of ours that’s four months old, but it’s not even out of the cradle yet. And you’re throwing it under the bus.

 

Kate Shaw And just for extra chuckles, let’s add Justice Alito pretending that he cares about precedent.

 

Clip So this is a sort of special hostility to state standing. How is that consistent with Massachusetts versus EPA, where the court said that there is a special solicitude for states standing.

 

Kate Shaw And just not to let these statements go unchallenged? We need to say that just because the court has said that states can establish standing based on theories not available to private plaintiffs, and the court has said that that doesn’t mean the states, you know, even putting aside the court’s selective commitment to story decisis. Still, that doesn’t mean that states can walk into court whenever they think the federal government has adopted bad immigration policy. Here there are serious flaws with the district court’s standing analysis. So that needs to be said.

 

Melissa Murray Well, I thought this is actually interesting. I mean, I think there’s a lot you could say about Massachusetts versus EPA. This is a decision written by Kate’s Justice. Justice Stevens, which does take, I think, an unusual view of standing and bases it on the fact that the litigant is the state and that certain kinds of protections or the availability of process should be there because it is a state as opposed to some other ordinary kind of litigant. But he was very clear in that opinion that this was not opening the door to states, just being able to sue on any kind of theory of injury. And that, I think, is what was missing from this question is like, you know, is this your king, Justice Stevens, liberal Justice Stevens, Massachusetts versus EPA. Well, then, like, you know, everyone has standing. And I think it was a little more nuanced than that in Massachusetts versus EPA.

 

Kate Shaw It was and it was. And usually Chief Justice Roberts was, you know, livid and an unusually sharp and, I think angry dissent in Massachusetts versus EPA. And and yet here, you know, it is. He’s all too happy to suggest that it kind of answers a standing question in this case, although the situation is so, so different.

 

Melissa Murray There was also a little spice from Justice Kagan, who pointed out. To her favorite, or maybe it’s her least favorite punching bag, Texas Solicitor General “two d” Judd Stone, who seems to think that states can challenge any federal immigration policy under this particular theory of standing. And again, Justice Kagan seemed to be pointing out that that was really problematic, to say the least. So let’s play that clip.

 

Clip General, do you think that there’s any immigration policy that you could not challenge under the way you view standing? I think that’s hard to discuss in the abstract. There might well be, Your Honor, but it shouldn’t come as. Hard to think of, I guess, is what I’m saying. I mean, if all you need to do is to say we have a dollar’s worth of costs and you don’t even need to think about the benefits on the other side. I mean, every immigration policy you let in, more people you let in fewer people is going to have some effect on a state’s fiscal condition. Maybe they’ll get less or more tax dollars. Maybe they’ll have to spend less or more money. I mean, every single immigration policy and then, you know, not to mention all the other policies in the world, that if a state comes in and says, I got a dollar’s worth of costs that I can show you. I mean, we’re just going to be in this in a situation where every administration is confronted by suits, by states that can, you know, bring a policy to a dead halt, to a dead stop by just showing a dollar’s worth of costs.

 

Melissa Murray This exchange prompted another death barb from Justice Kagan to Judd with two D’s.

 

Clip That’s not responsive to my question.

 

Melissa Murray And not to be outdone. She then pleaded with the chief justice to be allowed to continue murdering Judd “Two D” Stone right before her colleagues.

 

Clip Sat on. Can I say something about that? One more. One more.

 

Kate Shaw I just love that.

 

Melissa Murray Elena.

 

Kate Shaw Justices.

 

Melissa Murray Leave him alone.

 

Kate Shaw No, she said. He said go ahead. He said just one more.

 

Melissa Murray I say, girl, he’s dead. Let it be. Give him a proper burial.

 

Kate Shaw No sympathy, though. Neither did she.

 

Melissa Murray She had no sympathy either. The point that Justice Kagan was pressing here is one that we have highlighted previously in our preview, and one that friend of the pod, commander Steve Vladeck, has raised in his amicus brief that was submitted in this case. And that is that Texas is not only challenging every Biden administration immigration policy, but that the state is selecting which judges may hear those challenges by choosing to file their cases in divisions within districts where there’s only one judge, or in some cases there are only two judges, but they’re both Republican appointees, or they’ve both been appointed by Donald Trump. And that’s a kind of forum shopping that does not augur well for a sane system of judicial administration. And here’s Justice Kagan on that point.

 

Clip I mean, just to think about just the backdrop of this case and what’s going on here, let me just add to the notion, not your fault. This is not you know, that in Texas there are divisions within districts. You can pick your trial court judge. You know, you play by the rules. That’s fine. But you pick your trial court judge. One judge stops a federal immigration policy in its tracks because you have a kind of sort of speculative argument that your budget is going to be affected.

 

Kate Shaw You know, she was she was nicer here than she had to be. Right. It’s not your fault. I don’t know. I think kind of is.

 

Melissa Murray Kinda is your fault.

 

Kate Shaw Maybe she felt mad about the murder that preceded it. I’m not sure.

 

Melissa Murray You don’t have to feel bad. Like he brought it on himself.

 

Kate Shaw Thats true. Okay, so let’s shift to remedy, because this part of the argument was really, really interesting. The question again here is whether district courts have the power to invalidate presidential action on a nationwide basis or, you know, issue a nationwide injunction regarding implementation of the INA. And the federal government was making kind of two distinct arguments here. One is specific argument under the immigration statutes and then actually a broader argument which, as we both describe, some of the justices really got their dander up over that. Maybe in general, courts have been engaging in remedial overreach in their understanding of what the Administrative Procedure Act and in particular, Section 7062 provides. So that provision contains language allowing that courts can set aside unlawful agency action. But the federal government is arguing that maybe that language has long been misunderstood and that it actually doesn’t permit the remedy of vaquita.

 

Melissa Murray As we had previously suggested. There is language in the court’s decision from last term Garland versus Allemande Gonzalez, that strongly reads as a statement that the court already decided that the Ironi forbids district courts from entering injunctions requiring the executive to implement the inay in. No particular way. And here’s what Justice Alito wrote for the court in Alamo Gonzalez. Section 1252, F-1 generally prohibits lower courts from entering injunctions that order federal officials to take or to refrain from taking actions to enforce, implement or otherwise carry out the specified statutory provisions, end quote. Now, since we all know how much this court and Justice Alito in particular cares about precedent, as the justices were just suggesting, I’m sure that they will be best served to resolve this issue posthaste. What do you think, Kate?

 

Kate Shaw The language seems pretty clear, and yet I’m not sure. Yeah. And one of the reasons that I’m not sure that the justices will agree that this is as obviously settled as that language seems to suggest, is just the way that at least two of the justices seemed completely appalled by the suggestion that courts couldn’t invalidate agency actions on a nationwide basis. And here they’re actually responding not to the narrow Section 1252 argument, but more broadly to this EPA argument. So the chief Justice and Justice Kavanaugh repeatedly invoked their time on the D.C. circuit during which, as they suggested, like literally this is basically what they said. Guys in my court of Appeals enjoined agents actions all the time as the reason that it was legally permissible for them to do so. And I mean, I will note that most of those cases didn’t involve the inay, but, you know, whatever. But we have to play some of these clips, mostly because until this argument, I would not have imagined it was possible to talk in quite such a frati register about vaquita under the EPA. But Coach Kavanaugh managed. I mean, you kind of have to hear it to believe it. So first, let’s play the chief justice with the warm up.

 

Clip Counsel maybe we can move on to individual question now, and I’m sure that some of it will deal with remedy, which is the one area we haven’t addressed yet. And in that area, your position on the vaquita, that’s sounded to me to be fairly radical and inconsistent with, for example, you know what those of us who were on the D.C. Circuit do, you know, five times before breakfast, that’s what you do in an EPA case. And all of a sudden you’re telling us that, no, you can’t vacate it, you do something different. Are you overturning that whole established practice under the EPA?

 

Kate Shaw Okay. So that’s the chief justice calling the federal government’s argument radical, inconsistent with the experience of those of us who are on the D.C. circuit. And so then Kavanaugh jumps in to the fray.

 

Clip Well, can I move to remedy then? Because I still have some problems with that, as you might imagine. Set aside, you said the judges on the D.C. Circuit haven’t paid attention to the tax context in history. I guess I would respectfully push back pretty strongly on that. And I sat with judges like Silberman and Garland and Tatel and Edwards and Williams. They paid a lot of attention to that. And the government never has made this argument in all the years of the EPA, at least not that I remember sitting there for 12 years. I haven’t seen it made. It’s a pretty radical rewrite, as the chief justice says of what’s been standard administrative law practice. And you devote three pages in your brief to this complete change that all these judges have been doing for all these years. And the government comes up and acknowledges that in case after case after case with a labor or an energy environmental. And I think it’s a big step. And you say they’re not paying attention. The tax. Yeah, we did set aside means set aside then that’s always been understood to mean the rules no longer in place. No one’s really had no cases ever said what you’re saying anywhere. No one’s. You know, it’s a recent law review proposal. Good for that. But, you know, that’s not been the law. And so I find it pretty astonishing that you come up here and make it and I realize that’s not your, you know, the main part of your submission. But I’m just going to push back pretty strongly on, you know, three pages for just just toss out decades of of this court’s law of circuit law. And you’ve got Public Citizen in Texas coming after you on this. They don’t usually unite in a administrative law case, in my experience. And they both say your position is completely unprecedented on that. So that’s not really a question. But that is a that is a comment on what what I think is a pretty extreme argument. And I know it’s not your whole argument, but this piece of the argument. So I don’t want to overstate what I’m saying here. Just this piece of your argument I think is pretty extreme. So.

 

Melissa Murray I mean, Larry Merrick, David, Harry, we were all just doing it like.

 

Kate Shaw How could it be wrong.

 

Melissa Murray All sitting around the D.C. Circuit House, like just doing it.

 

Kate Shaw Just like the affront that he thought the federal government were. I mean, it was just wild and, you know, Gorse Edge. EJ We’re not playing clips from Gorsuch because we already have so many clips, but but Gorsuch actually, to his credit, was like, I wasn’t on the D.C. Circuit, which, you know, he wasn’t. But he was also, I think, correctly saying without saying explicitly, like, I don’t know, maybe we should look at the language of the APA. And that’s all the federal government was asking the court to do. Like, yes. For a long time, everyone has assumed that courts have this power. But maybe we should take a fresh look and you know, who knows what we’ll find. But Kavanaugh was just so offended by that suggestion.

 

Melissa Murray Well, the whole exchange actually prompted an interesting follow up from Justice Jackson and then this very interesting clip from Justice Kagan. So here’s Justice Jackson with Justice Kagan following.

 

Clip Yes, as you might imagine, I would like to circle back to the concerns that the chief Justice and Justice Kavanaugh raised about Victor and the argument that you’re making in this case and seems to be a kind of D.C. circuit court. It is. It is.

 

Melissa Murray So I kind of love this. Like Justice Jackson’s like at one point, the frat got coeducated. And I was there, too. Yeah. So here’s. And then Justice Kagan steps in and is like, you guys are literally a cartel. And it should be noted here that in 1999, President Clinton nominated then Elena Kagan, former government employee, former law professor to the United States Court of Appeals for the District of Columbia Circuit. But the Senate Judiciary Committee’s Republican chairman, Orrin Hatch, never scheduled a hearing on her, which effectively ended her nomination. And to my mind, with this exchange, she hasn’t seemed to be especially bothered about having missed out on this particular stint on the D.C. frat.

 

Kate Shaw She’s like, I dodged a bullet and I still ended up here, so.

 

Melissa Murray Like, I didn’t get paddled didn’t get hazed and here I am anyway. So.

 

Kate Shaw Yes, all good. So that was a fascinating set of exchanges. But let’s also make sure we have some time to talk about the merits. So here is another, I think, a relatively lengthy but very much worth playing exchange between, again, Chief Justice Roberts and Solicitor General pre Lugar. So let’s play it. And then I kind of want to try to articulate why I found it just so maddening.

 

Clip And let’s say that I disagree with you on standing and on the remedies, and I have to reach the merits. And when we get to the merits, I think Shell means Shell. Then we’re in a position where, as you see it, Congress has passed a law that it is impossible for the executive to comply with. Now, it’s our job to say what the law is, not whether or not it can be possibly implemented or whether there are difficulties there. And I don’t think we should change that responsibility just because Congress and the executive can’t agree on something that’s possible to address this this problem. I don’t think we should let them off the hook. So shouldn’t we just say what we think the law is, even if we think shall, mean, shall, and then leave it for them to sort that out? Well, Mr. Chief Justice, let me take a stab at trying to persuade you that these considerations of resource constraints do properly informed the task for this Court, which is to interpret the meaning of shall and the statute itself. And therefore, it seems to me that you’re arguing with one of the predicates to my question that we think I think anyway, shall, means, shall. What do we do in that situation? If this court were to actually adopt that interpretation of the statute, then I think that it would be incredibly destabilizing on the ground. I didn’t ask you what it would be. I want you to know what we should do. Should we still fulfill our responsibility to say what the law is? And then it’s up to Congress or the executive to figure out a way to comply with that? I think if the court did that and the reason I’m turning to the practical implications here is because in the meantime, while Congress and the executive tried to figure it out, it would absolutely scramble immigration enforcement efforts on the ground. It would mean that DHS, I think if it were under this kind of judicially enforceable obligation to treat each of those shadows as a mandatory shall. So you’re still arguing? I’m sorry. Yeah, you’re still arguing that that would be wrong. To say shall mean shall. I think it would. I think it would be wrong to say the shall mean shall. And I would I would welcome the chance to explain, as a matter of statutory interpretation why that so. But at the very least, I don’t think the court should announce it as a judicially cognizable injury here that could justify interference by the courts in light of the practical ramifications.

 

Melissa Murray I’m just an umpire calling balls and strikes.

 

Kate Shaw Yeah, yeah. So, so, yeah. So let me try to figure out, I mean, my, I really my head felt like it was going to explode listening to this line of questioning. And there was just something that was like this really kind of performative obtuseness in on display by Chief Justice Roberts like this. I’m a simple judge. I’m a simple umpire. I say what the law is, and then you all in the political branches work out how to comply with it. It would be improper for me to worry about those things, but I mean, saying what the law is doesn’t and shouldn’t happen with blinders on about consequences, including the possibility of actually complying. Playing with the law as courts understand it. And I mean, I think part of why I felt like my head was going to explode was because Roberts was once actually pretty good on this kind of stuff. Like, remember his opinion in King versus Burwell when he refused to embrace an interpretation of the Affordable Care Act that would have completely and fatally undermined the ability of the act to function as intended. Right. He was like, No, we can’t read that word in that way. Or It would completely cause the Affordable Care Act to death spiral. So that can’t be what Congress wanted. Like that’s all over that opinion. And interpreting statutes is not some scientific undertaking that happens in a vacuum, and it shouldn’t be. And then, you know, that’s in addition to all these background principles about the importance of enforcement discretion in the context of the executive and immigration law in particular. And it’s just like Roberts is hard to pin down, like there’s King versus Burwell. Last week, I taught his opinions in the census citizenship case and the DOCA rescission case. And he is just in those cases so far from the Roberts that was on display in this argument. And I just the last thing I’ll say about this line was that it called to my mind. You remember we talked last term about law professor David Noel had this great tweet. I think he’s since deleted after the film. Don’t look up, read about the absurdity.

 

Melissa Murray Why did he delete that? it was still in your file. It is text file. Move.

 

Kate Shaw That tweet was so good. So. But he but anyway it was something like the film don’t look up would have been had like higher degree of verisimilitude or something if the Supreme Court, based on the major questions doctrine, had enjoined NASA’s efforts to actually take out that asteroid or something, I mean, that was not it was much better than that. But that’s a joke. Yeah, it’s very funny. Yeah. And that was kind of the energy that Roberts I thought had in this line of questioning. Like, it’s not our concern if our rulings will, like, destroy the planet or will make it absolutely impossible for the federal government to function, all we do is look at some words and say what they mean and then, you know, go home for a cocktail. Like it was just crazy.

 

Melissa Murray That said, both the chief and Coach Kavanaugh did press to do Judge Stone on this same question of how exactly the federal government could possibly function without enforcement discretion and guidance to assist fuel agents, for example, in exercising that discretion in the face of the 11 million removable non-citizens and the fact that there are like 6000 ICE agents in the country. So yeah, he went back and forth on this.

 

Kate Shaw Yep, totally.

 

Melissa Murray Anyway, but yes, more of the energy was reserved for. So what if I blow this all I’m doing law. I’m doing law. Okay, so one possibility in terms of outcome here is that we could get some combination of the conservative justices who agree that review would be barred under 1252 of one, and then maybe the Democrat appointees who agree with the federal government on the merits that the memo is perfectly permissible and maybe they all come together and there is a majority against Texas that, you know, sort of, again, a strange bedfellows kind of assembly, although, I mean, I think it is very clear that Justice Alito is going to vote with Texas no matter what. And I think it’s also very clear that the D.C.Circuit Mafia on the court is very D.C. circuit mafia slash fraternity is very unhappy with the APA argument, but it just seems less clear about where they all are on 1252.

 

Kate Shaw So, so that seems possible that the federal government eked out a win, stitching together these like different coalitions. But we also should take a step back and acknowledge that it is truly insane that this case won’t be unanimous on the merits and I mean a standing to maybe, but certainly on the merits, this guidance doesn’t require any officer to do anything in a particular case. It is literally just about setting priorities for apprehension.

 

Melissa Murray Setting priorities.

 

Kate Shaw And removal. And if you can’t have priorities.

 

Melissa Murray Which should be within the administration’s purview.

 

Kate Shaw Of course it should be. And that’s true is immigration law and law in general, and is actually required for the sensible execution and implementation of all law. And every administration has done it. And it would be malpractise not to, honestly. So, you know, it’s kind of madness to me that even if the Biden administration wins this case, there will still be justices who will say that they’re fine. Depriving this president, though, I am sure not all presidents of this kind of clear authority that the president has to possess. So that’s probably enough on that case. Maybe we’ll just have take a beat on the last case the court heard argued this week, Wilkins versus United States, which is a case about whether the statute of limitations in the Quiet Title Act is a jurisdictional limit or a claim processing rule. And if it’s the latter, it can be waived. You know, there’s a chance the plaintiffs lose either way. So it’s not totally clear what’s at stake in this case. But I did think the oral argument gestured at this kind of interesting, like intra temporal question about what the court should do, about earlier cases that were decided based on interpretive principles the court no longer uses. And like this is a very particular instance of it because the way the court used to use the term jurisdictional was very loose and it has since acknowledged that it was very loose and it’s trying to be more precise now. And so like this is pretty specific. But there is, I think, this larger question about how different the court’s approach to statutory interpretation is today from its approach in earlier eras, and sort of what that means about how it should treat earlier statutory precedents. And I thought this came up in some pretty interesting ways, actually, in the circuit Clean Water Act argument earlier this term. And so, you know, I think there’s just like a lot of interesting questions about interpretation that Wilkins sort of dipped a toe in.

 

Melissa Murray I thought the case really revealed some interesting interpersonal dynamics that I wanted to highlight. You know me, what’s going on?

 

Kate Shaw This was surprising. I know what you’re going to talk about. Its very surprising.

 

Melissa Murray Well, so there is one thing I wanted to highlight from oral argument, and it was an uncharacteristically friendly, I might even say, warm exchange between Justices Alito and Kagan.

 

Clip Yes. I think if it did use subject matter jurisdiction in. Okay, so I think you’re giving too much away there, Mr. McClay. Well, maybe maybe Mr. McClay could answer my next question, which is about Justice Kagan and I like to ask each other, I’ll reciprocate. But anyway. You haven’t even given me a chance to but okay go ahead. Now, I forgot my next question. Well, let me let me rephrase. No, no, I know it’s come back to me. So.

 

Melissa Murray Hmm.

 

Kate Shaw That was not.

 

Melissa Murray Is there a thawing of relations here.

 

Kate Shaw They were like there was genuine, like, mirth and warmth in their voices. It was so weird. I like that as a general matter that that pair I mean, if Kagan is working him over in some fashion, I am all for it. But but it was puzzling to me, just like how genuinely friendly and jovial they sounded.

 

Melissa Murray I’m still holding a grudge on her behalf for his Wall Street Journal comments where he was basically like, You can’t criticize the court about it’s crossing a line. And I’m just like, I mean, so clearly Justice Kagan is not a Virgo or she would be literally nursing this grudge until the end of time. And since since she is not, I will nurse it for her. But yeah, this seemed like weirdly warm. Maybe he’s invited her to Jackson Hole like Elena. My friends have given me their cabin for the weekend. Why don’t you come hang out with me and Martha Ann.

 

Kate Shaw Well, she used to go shooting with Justice Scalia. I don’t know.

 

Melissa Murray I know.

 

Kate Shaw If she has any kind of similar golf with Sam. Like, I don’t know what that is. I don’t know what I don’t know what Sam’s like past times are.

 

Melissa Murray I mean, Oh my god I love them in like spa robes and they’re like doing sheet mask and he’s like, okay, put this yogurt on your face. Like, like, put it on your face. It’d be great.

 

Kate Shaw Pedicures, all of it.

 

Melissa Murray Spa with Sam.

 

Kate Shaw Oh, God.

 

Melissa Murray I love that for them a little bit.

 

Kate Shaw I guess. I’m thinking it better her than us.

 

Melissa Murray I mean. I mean.

 

Kate Shaw All right. Should we pivot to this coming week in then onto news and culture?

 

Melissa Murray Definitely. Let’s do the week and then we’ll do news and culture. I can’t wait for news and culture okay.

 

Kate Shaw You’ve been very patient.

 

Melissa Murray Okay? I’ve been very like, let me just get through this. This week, it’s going to be one of the most explosive of this term, and I’m not being hyperbolic. So in our last episode, we extensively previewed this week’s two biggest cases 303 Creative versus Elenis and Moore Versus Harper. And we’ll recap these arguments on our next episode. But Kate, tell us what we need to know.

 

Kate Shaw Well, I just you know, so more versus Harper, this big independent state legislature theory thingy fanfic case is being argued on Wednesday. And you know, we mentioned in our preview that there is extensive amicus briefing opposed to the ISLT, including tons of conservative luminaries. And like a huge numerical asymmetry, just tons of really big briefs opposed the ISLT, much smaller number in support of it. And we also are upside down.

 

Melissa Murray Very upside down.

 

Kate Shaw And we also now know who is arguing the case. And that just seemed worth flagging. I mean, so arguing in opposition to the ISLT is not one, not two, but three solicitors general.

 

Melissa Murray Here come the generals.

 

Kate Shaw So former SSG Don Verrilli will represent the state respondent. That’s like the North Carolina Department of Justice. Former acting solicitor general Neal Katyal will represent the non state respondent. So that’s North Carolina voters and several organizations. And current SSG Elizabeth Pilger will represent the federal government. So that is like a lot of heavy lawyers on.

 

Melissa Murray Literally big guns.

 

Kate Shaw Yeah. And then on the other side.

 

Melissa Murray Literally big guns.

 

Kate Shaw Is David Thompson, a lawyer at the firm of Cooper Kirk. Will this advocacy asymmetry matter? Who knows? But I honestly can’t recall like a three SG on one side argument lineup ever.

 

Melissa Murray They probably have Seth Waxman on like, phone-a-friend. Like on the side.

 

Kate Shaw I wonder if he feels left out. He’s like, why am I not arguing in this case.

 

Melissa Murray Like you did Students for Fair Admissions. You’re fine. You’re fine. You’re fine. Yeah.

 

Kate Shaw So looking forward to that argument. I mean, I’m terrified, but I’m hope. I’m glad that these are the advocates.

 

Melissa Murray All right. So we will recap those arguments in our next episode. And since we previewed them, if you want to know what’s going on with them, just hit the flip and go back and listen to one episode before that. And we should also.

 

Kate Shaw Highlight, but oh, sorry to make you wait for ten more seconds, Melissa, because let’s also mention that over the summer we did a special like full hour on this case and the Ice Lady with Jamelle Bouie and Carolyn SHAPIRO. So if you’re super interested in going deep, pull up that summer episode and listen to it.

 

Melissa Murray [AD].

 

Melissa Murray  Okay. Is it time?

 

Kate Shaw Now we can move on to news and court culture.

 

Melissa Murray SCOTUS news.

 

Kate Shaw Okay, so let’s start with news. And the first thing we just wanted to mention was that the court declined to issue a stay of execution in the case of Kevin Johnson, who challenged his execution based on a finding by a special prosecutor that his original prosecutor had been biased against black defendants. So again, the court denied his request for a stay. Justice Jackson, joined by Justice Sotomayor, noted her dissent at the time and then the next day actually issued a written opinion that followed the vote. And this was the second written opinion that she’s issued. He also dissented from the denial of surge in a death penalty case in early November. I note that she, I think, is going to be active in not just noting, but explaining her views in these cases where the court, all too often, as we have noted, gives no reasons or no explanation at all. And I just it made me like I’m really looking forward to when she starts actually authoring merits opinions, but probably a few months to wait before that happens.

 

Melissa Murray All right. SCOTUS also granted surgery before judgment and set the Biden student loan forgiveness plan for oral argument in February. So this will keep the program on hold until the court actually decides the case. The Solicitor General’s Office had asked the court to vacate the injunction entered by the eighth Circuit, and the court treated that application as a petition for certiorari and set the case to be heard in February, though we don’t know yet the exact date for oral argument. The Biden administration was going to start actually processing loan forgiveness by the end of the year, but this means that it now cannot do that. And because the Supreme Court is apparently not a leashed enough chaos in the last six months, it’s decided that, you know, it has an appetite for more. You only live once. So just stop all the student loan forgiveness. I guarantee we will be returning to this case in good time. So this is a major, major cert grant. And again, sort of of the vein about, you know, policy priorities on the extent of executive power. This is going to be a really big case.

 

Kate Shaw Yeah, another case with enormous standing questions. And I do think it’ll matter a lot how the Biden administration kind of messages around and talks about this case in the Supreme Court because, you know, it’s going to have very tangible consequences for millions and millions of people. What the court does here.

 

Melissa Murray For a lot of very young voters who are likely to be the beneficiaries of this program if it were actually allowed to go into effect. All right. Is it time? It’s time. The time. Okay.

 

Kate Shaw All right. The latest on A-leak-o or A-leak-to? I think I like A-leak-to.

 

Melissa Murray A-leak-to.

 

Kate Shaw A-leak-to. So some updates regarding skin care maven Sam Alito. So a very brief reminder of what’s at issue here. So following Jodi Kantor and Joe Becker’s bombshell reporting on quote unquote, Operation Higher Court, which was the actual name of a deliberate influence operation spearheaded by evangelical minister and former anti-abortion activist Rob Schenck, which included a dinner attended by two of Schenck’s emissaries and the Alito’s, at which the outcome of the Hobby Lobby case may or may not have been disclosed. After all that came to light, some congressional leadership had questions. So. Oh, so our friend and former guest, Senator Whitehouse, together with Representative Hank Johnson, sent the court a letter. We referenced this letter earlier in the episode, or at least the response to it. And the letter posed a number of questions, including whether the court would be investigating these allegations and whether the court might revisit some of its practices with respect to things like gifts and travel and other ethics matters.

 

Melissa Murray Well, our friends on the Hill at the Senate Judiciary Committee and the House Judiciary Committee got a response. But I have to say, it was a bit of a deflating response. It came from the court’s legal counsel, Ethan Torrey. And let me just say, I was a little surprised to think about the court having a lawyer. But here we are making attorneys. Get attorneys. Anyway, Ethan Torrey, who is the court’s legal counsel, issued a response and it mostly involved sort of anodyne denials of impropriety and reminders that under the relevant ethical standards, which I should say are negligible here, these sorts of things aren’t really an issue because the justices aren’t necessarily required to report these kinds of goodies, if you will, as gifts. They’re not considered gifts. And this was a big part of the letter sort of explaining that meals stays at vacation, homes, hospitality. Those are not gifts to be considered under the very limited ethical rules to which the court subscribes. So there’s that. But then I got a little tease. So one of our listeners slid into my DMs, if you will, to let us know that this person knows Ethan Torrey. And he wanted us to know because I think he suspected we would be very skeptical of this response. But he wanted us to know that Torrey is actually a really good guy and a very good lawyer. In fact, he was described as a lawyer’s lawyer, and I believe it. I like I do not dispute that because this is a very lawyerly letter. This is exactly the kind of response you expect from someone who is responding on behalf of a client who has been accused of wrongdoing because it basically says there is nothing to see here because there are no rules or laws that cover this alleged misconduct. Therefore, it is not misconduct. There is no rule that prohibits a justice from getting a free vacation at a rich person’s Jackson Hole vacation home. So thank you so much. I’ll see you on the flip side.

 

Kate Shaw I mean, so I am going to be less generous about this letter. And also, did Torrey himself slide into your DMS? I wonder, was this like an assumed idea that somebody is actually saying it’s.

 

Melissa Murray Someone I know?

 

Kate Shaw Well, anyway, you know, I a couple of things. One. Sure. Maybe this is the letter you send on behalf of a client who’s been accused of wrongdoing. But I don’t think Sam Alito is even Torrey’s client. Honestly, like the legal counsel to the court is this, you know, usually pretty internal facing operation that like writes talk memos cover memos to the conference of the justices sometimes advises on you know definitely advises on ethics matters that pertain to the justices and to clerks and core personnel.

 

Melissa Murray Maybe Ethan Torrey is like he’s he’s lawyering for all the justices. I can imagine. This is just the only kind of gift situation we know about. There might be other considerations which we don’t know, know.

 

Kate Shaw And again, but just this sort of the public facing nature of this letter, it’s obviously, you know, to the Hill, but quickly made public. It’s just not a posture you typically see, you know the legal counsel in and honestly more than that I did find it kind of weird in tone. And I will note that Sherrilyn Ifill on Twitter at one point sort of questioned whether it was real. And I actually thought, here’s what I thought was so weird about the letter was was very careful in terms of the way it described the ethics obligations and the consistency of these reported events with those obligations. But then there was this like really gratuitous reference to Politico. So New York Times broke the story and the letter says, Well, Politico was unable to locate anyone who heard about the decision at Hobby Lobby directly from Alito or his wife. And. Okay, but that’s also what we know from the Times. Right. The Times also said Mrs. Wright denies that this happened. So, no, the Times also didn’t report anybody who directly heard this. But the point of the story was that there is lots of circumstantial evidence confirming it. And Politico actually also reported that. And it’s also the case that the Hobby Lobby leak isn’t even the most important part of the story as far as we’re concerned.

 

Melissa Murray It’s not the story at all. It’s not the story.

 

Kate Shaw As you said, really clear in our last episode. Yeah. And so it’s like it’s just a little bit nonresponsive to the larger institutional questions that the story raises. So those were some of my reactions to the letter.

 

Melissa Murray I don’t dispute that Ethan Torrey is a nice guy and probably a really terrific lawyer. I’m sure all of that is true. Again, it made me wonder like, you know, who is the actual client here? Is it the court more generally? Is it Justice Alito specifically? Is it the chief justice? I mean, I imagine this this letter had to go across the chief justice’s. Oh, I’m sure it went anywhere. So, you know, there’s that. Although the chief justice, as you have reminded me, has his own lawyer for purposes of the court’s administrative function. So, you know, there’s that it was sort of an interesting tone. And to some degree, it struck me a little bit like sort of the kinds of letters that ethics lawyers in the government typically write. You know, you just you get this question like, can I buy this stock as a member of this agency? And someone’s like, okay, I’ve looked at X, Y, Z rule and now you cannot buy that stock. And so there sort of a kind of straight forward aspect to it. But this isn’t a straightforward issue, in part because there isn’t you know, there’s not a lot of law or regulation around this question. And I think specifically, the fact that Sheldon Whitehouse and Hank Johnson were asking about this is the question. The underlying question that I think was actually stated was, you know, we’re investigating this because we want to know if there should be rules. And he’s basically like, yeah, there’s nothing there’s nothing to see here because there’s nothing to see.

 

Kate Shaw Right.

 

Melissa Murray Like and maybe that means there needs to be something to see.

 

Kate Shaw Certainly the authors of the letter, Senator Whitehouse and Representative Johnson were not satisfied with that letter. And they basically fired back another letter saying the Supreme Court has reiterated Alito’s denials but didn’t substantively answer any of our questions and called the letter an embodiment of the problems at the court around ethics issues. So I think we know that the Hill is not done with this issue.

 

Melissa Murray Thats kind of our point.

 

Kate Shaw Yeah.

 

Melissa Murray Yeah, they’re still coming for you. Like they’ll be time after the holidays.

 

Kate Shaw Actually, even before that.

 

Melissa Murray Well, I mean, but like after the holidays too, I think a lot of the energy will come from the Senate Judiciary Committee and White House who literally will, I think, be like a dog with a bone about this. Maybe not so much from the house if, you know, like. There’s going to be a change in leadership. But I mean, I think the Senate by itself is enough to kind of really put some heat on this anyway.

 

Kate Shaw Definitely. But before the changeover. Right. The House Judiciary Committee is going to hold hearings on Operation Higher Court this week. So I don’t know. I don’t think we know yet who is testifying, but I will be very interested in those hearings.

 

Melissa Murray I cannot wait. I took your recommendation and I listened it to The New York Times, the daily podcast this morning that had an interview with I think it was Jodi Kantor and Reverend Schenck and oh, my God. Like I almost walked into traffic at one point because it was so jaw dropping.

 

Kate Shaw It’s pretty jaw dropping, like you pick your jaw up off the floor after the initial reporting and then it was like back on the floor because I think there was a lot more. Yeah. Just more kind of color and detail in this interview.

 

Melissa Murray Like the training. Like they literally had like here’s what, first of all, Reverend Schenck described this influence campaign like matchmaking. This was like hinge for justices. Like so we were matching donor rich people, couples with justice couples and like we like tailored it. It was like I mean, it’s all subtle. Like, yeah, it’s a little gross.

 

Kate Shaw He described himself as basically a matchmaker. He said We would feel out what justice is, what justice pairs would be good pairs by feeling out personalities, interests station in life to figure out where there was a real possibility of a meaningful relationship between one of our couples, as he described them, and their justice couple. I mean, it was incredibly calculated. And then these couples, again, which he referred to repeatedly as our couples, were trained in the rules and the rhythms and the protocols of life inside the Supreme Court.

 

Melissa Murray This was like Temptation Island.

 

Kate Shaw To like put together this detailed briefing.

 

Melissa Murray Or Fuck Boy Island for justices. Oh, my God.

 

Kate Shaw I was not going to go there. But there was something really weird about these, like, set up, like, double dates. It was just really strange. Yeah. And, you know, like this put. He put together a manual that says, like, here’s how you approach justice. Here’s how you introduce people to the justices.

 

Melissa Murray You don’t call him Justice Alito you’re like, Hello, Mr. Justice. And then he knows you get it. You get the protocol.

 

Kate Shaw It was wild. And then this couple that’s at the center of the Hobby Lobby story. The Wrights Schenck describes as having been particularly good at this, like getting it. And then, lo and behold, they became real friends with the Alito’s. And, you know, Schenck says. And this was also in the Times piece, although, honestly, I hadn’t focused on it at the time.

 

Melissa Murray Not just Alito. Remember, she was describing Justice Scalia as Nino and hanging out with Maureen.

 

Kate Shaw Oh totally. Yeah, but it’s the Alito’s who stayed with the Wrights at their home in Jackson Hole, Wyoming.

 

Melissa Murray As one does in a casual friendship, Kate.

 

Kate Shaw I mean, you know. Right member Alito said in his denials to the Times and then also through the weird letter from Torrey that this was a casual and purely social relationship and okay, it was social. I’m not saying anything else other than that, but casual.

 

Melissa Murray No, no, no. casual is like you go to someone’s house and they made pigs in a blanket and gave you a cocktail. That’s a casual relationship when you are staying the night when you were putting your toothbrush in their bathroom and using their towels. That’s not just casual.

 

Kate Shaw Not casual.

 

Melissa Murray It’s not casual. Like, I don’t even think we’ve been to each other’s houses and spent the night and like, we see each other.

 

Kate Shaw We’ve been to each other’s houses but not spent the night. Not put on like pajamas and slippers. We have not done that.

 

Melissa Murray Come down in the morning in your bathrobe to get some coffee.

 

Kate Shaw To be clear, I would, but that’s intimacy. Like I wouldn’t do that with people I have a casual relationship with. No.

 

Melissa Murray Yes.

 

Kate Shaw Oh, my gosh.

 

Melissa Murray It’s not casual friendship. Like, this is Hinge.

 

Kate Shaw Yeah. So anyway, if people are interested in this story in the way that we are and you have it, listen to that episode of The Daily. Please do that. That daily piece and the follow on piece from The Times, I think, made clear to me that The Times seems to be staying on this story and I am glad this is really important.

 

Melissa Murray So I will say other people need to get on the story. So I just want to give a shout out to Alex Wagner at MSNBC, who had me on last week to talk about this. I think more people should be talking about this like.

 

Kate Shaw Yeah.

 

Melissa Murray This is weird as fuck, this is just really. They bought a building. They raised 30 million, more than $30 million. And then Schenck talks about it like there was this lovely Victorian rowhouse across the street from the court. And so I bought it. And then I would look every day into the court and send prayer missiles with my mind to the court. Like what? Like what.

 

Kate Shaw He does that to be fair, like, look, you can send whatever prayer missiles you want, but the thing about like he was like I was there and it was important to be close because you can like pick up on stuff, you learn about stuff and just being in the right place at the right time.

 

Melissa Murray Like you see them at Pret A Manger and talk to them. Like it’s just, I mean, I’m just going to say, I don’t know that there is an analogous liberal slash progressive campaign to do this. I mean, like, I don’t know that George Soros is not buying.

 

Kate Shaw I’m going to say he is not. No

 

Melissa Murray No. Like we we’re so poor. We’re writing amicus briefs. Like, real plebs like please, like what?

 

Kate Shaw It would genuinely also not occur. I don’t think.

 

Melissa Murray Not occur to us to buy a building. I mean. Oh, my God. Operation higher court. Operation lower court. Anyway, let’s shift to some other court culture.

 

Kate Shaw We’ll, tick through some kind of like other news in the lower courts and then call it a day.

 

Melissa Murray Yeah, let’s do that. Why don’t you talk about what’s been happening down in Georgia?

 

Kate Shaw Well, there are just a few things that we haven’t had a chance to mention that we wanted to just briefly touch on. So one right before the Thanksgiving holiday. A state court judge in Fulton County struck down Georgia’s six week abortion ban. And it was in an opinion that contained a footnote that I kind of feel like we need to read at least a couple of sentences from. So this is Judge Robert McBurney. And he wrote, quote, The state does the state of Georgia. The state argues that Dobbs reflects no change in constitutional law because there was never a federal constitutional right to abortion, except there was for 50 years. And we know it because the very same Supreme Court told us so repeatedly, end quote. And the end of the footnote, McBurney goes on to say Dobbs Authority flows not from some mystical, higher wisdom, but instead basic math. The Dobbs majority is not somehow more correct than the majority that birthed Roe or Casey, despite its frothy language disparaging the views espoused by previous justices. The magic of Dobbs is not a special insight into hisTorreycal facts or monopoly on constitutional hermeneutics. It is simply numbers. Anyway, there’s a bunch more, but this was a great footnote, and I just feel like we need to say. Judge McBurney, we will get you that YOLO Court shirt in the mail.

 

Melissa Murray We will not.

 

Kate Shaw Because we think you deserve one.

 

Melissa Murray No, we will not because that would be a gift. Instead, Judge McBurney, you can come stay at my house overnight because that is fine.

 

Kate Shaw Judge McBurney, we you have our you have our blessing if you want more and pay with your own salary, one of our YOLO court shirts. But we feel like you need to be wearing one. Mm hmm. I think we should say the Georgia Supreme Court, not surprisingly, quickly reversed that opinion and put the Georgia ban back into effect with no explanation, because they clearly take their cues from 1/1. But, you know, I didn’t think the fact that the court so quickly reversed that opinion should mean that the footnote, you know, immediately evaporates into obscurity because it’s it’s worth giving some attention to.

 

Melissa Murray Another thing to note is last week, the Supreme Court rejected Donald Trump’s request for emergency relief that would have spared him from having to provide his much discussed tax returns to the House Ways and Means Committee. So there were no recorded dissents. Interestingly, not even for Clarence Thomas, who has been especially solicitous of former President Trump’s efforts to get the court to intercede to shield him from various investigations. So maybe Justice Thomas is happy to kind of ride under the radar for a little bit, let Sam take the heat and the bad press for a bit. But in any event, former President Donald Trump, not surprisingly, took to his social media site. I say that with air quotes, truth social, to make his displeasure known. So I’m going to say to my Trump voice, Why would anybody be surprised that the Supreme Court has ruled against me? They always do. The Supreme Court has lost its honor, prestige and standing for. I nominated a third of them. That’s me paraphrasing. It has become nothing more than a political body. Again, I nominated a third of this court with our country paying the price. Shame on them. This body of individuals of which I have nominated and appointed a third three like I did a lot of paraphrasing on the truth social. Sorry, if I if I were anti social I would have read quote, tweeted it and added all of these things. But anyway.

 

Kate Shaw Would they let you. I don’t even know.

 

Melissa Murray They would not let me. I’m sure they wouldn’t let me. No, no, no. I’d have to change my name to Kanye. I would have to change my name to Kanye. I would definitely fail.

 

Kate Shaw Also, another important recent development in the world of law, although not the Supreme Court in particular, which is there’s a new special counsel in town. So since former President Trump has declared that he is running for president again, Attorney General Merrick Garland has named a special counsel, Jack Smith, whose name is just so good. And I keep for some reason I’m thinking of his Jack Ryan from that John Krasinski show. But it’s not is Jack is Jack Smith and he’s taking over the investigation, both of the Mar a Lago document case and the kind of Trump and senior White House leadership part of the January 6th investigation. So we’ll see what develop there.

 

Melissa Murray Watch this space. In other news, the Senate passed the respect for marriage bill. So this is a bill that would protect existing marriages under federal law and as a matter of full faith and credit, in the event the court overturns Obergefell versus Hodges and or Loving versus Virginia. So the bill actually goes further than just protecting same sex marriages to also protect interracial marriages as well. The Senate version is a bit different from the previously passed House bill, and the Senate bill includes pretty broad religious liberty protections. So that would have to be reconciled or the House would need to pass some version that looks more like the Senate bill. But I do think that there is every expectation that some version of this bill will be passed and that it will be signed into law by President Biden. So this is a promising development about codifying the protections for same sex and interracial marriages in the wake of. Dobbs. So well done, I guess.

 

Kate Shaw Yeah. No, I think it’s really important. I do think that. Congress obviously didn’t seek to legislatively backstop the right to abortion during, say, the first year of the Obama administration, when the Democrats controlled, obviously, the White House and then both houses of Congress, including, you know, 60 votes for bit in the Senate. So I think it’s really important that they’re doing this here. But I also think it’s a really clear indication that a majority of this Congress thinks there’s a chance Obergefell is in jeopardy, which I have to say is curious, because there are so many men in the commentariat who told us that it was hysterical to worry about Obergefell, that Thomas was just spitballing for himself, etc..

 

Melissa Murray I mean, I don’t want to hear, but I don’t. I mean, we said it, I said it, whatever. Like, I think one of the real differences here is sort of the differences in the political economy of gay marriage versus the political economy of abortion. And, you know, we have lots of people on both sides of the aisle who know and love people who are in same sex marriages. So I think that contributes to it. I think the sort of public effect of same sex marriage really counts here in a way that the sort of secretive nature of reproductive care really hobbled abortion for many years as a legislative and public policy question. So again, there are lots of lessons to be learned here. One of them is early and decisive action when you have the opportunity. But I think there are some other lessons that could be learned as well.

 

Kate Shaw One thing to flag that, I mean, I’m afraid we’re going to have to keep an eye on. But I just want to mention now, which is that last week some conservative groups sued the FDA in, you guessed it, Texas.

 

Melissa Murray Stares, and Steve Vladeck.

 

Kate Shaw I know. So, you know, obviously a very strategic choice of where to bring the suit. And the goal of the suit is to challenge the FDA’s approval of mifepristone, one of the drugs used in medication abortion. And, you know, definitely calls to mind, you know, Steve Vladeck, some of Kagan’s questions during the United States versus Texas argument about, you know, single district judges in Texas getting to set national policy on every question. I mean, it hasn’t happened here yet, but it well could.

 

Melissa Murray All right. Before we head off into the sunset, I just want to make a huge plug and remind you that it’s runoff time in Georgia. So early voting in Georgia started on Monday, November 28th for the December 6th election. That’s tomorrow. So if you are a Georgia voter, head over to Vote Save America dot com to make your plan to vote. And if you want to help out, no matter where you live, you can donate and find remote and in-person volunteer operations to make sure that the Raphael Warnock campaign has the resources that it needs to run successfully against Herschel Walker. So I just cannot underscore this enough. 51 senators means the difference between a true majority or being faced with another two years of roadblocks because certain people can’t get with the program. And I’m not going to name names, but I think we all know who I’m talking about. So make sure that every Georgia voter can make their voice heard again at Vote Save America. Dot com.

 

Kate Shaw Strict Scrutiny is a Crooked Media production. Hosted and executive produced by Leah Litman, Melissa Murray, and me, Kate Shaw produced and edited by Melody Rowell, Audio Engineering by Kyle Seglin Music by Eddie Cooper. Production support from Michael Martinez, Sandy Girard and Ari Schwartz with digital support from Amelia Montooth.