In This Episode
Melissa, Kate, and Leah explain the ruling out of Texas that could strip mifepristone, one of two drugs used in medication abortions, of its FDA approval. Plus, they react to the explosive ProPublica reporting on Justice Clarence Thomas’s luxury vacations sponsored by a billionaire Republican donor, and chat with CNN’s Joan Biskupic about her new book, Nine Black Robes: Inside the Supreme Court’s Drive to the Right and Its Historic Consequences. They discuss the lasting effects of the Trump presidency on the Court and the working relationships between Justices, giving listeners a glimpse behind the curtain on some of the most iconic scandals at the Court.
- Order Nine Black Robes: Inside the Supreme Court’s Drive to the Right and Its Historic Consequences at Bookshop.org. Use code STRICT10 at checkout to get 10% off your order.
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Leah Litman [AD]
Show Intro Mr. Chief Justice, may it please the court. There’s an old joke but when an argued man argues against two beautiful ladies like this. They’re going to have the last word. She spoke, not elegantly, but with unmistakable clarity. She said. I ask no favor for my sex. All I ask of our brethren is that they take their feet off our necks.
Kate Shaw Hello and welcome back to Strict Scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it. Were your hosts. I’m Kate Shaw.
Leah Litman I’m Leah Litman.
Melissa Murray And I’m Melissa Murray, and we have a terrific episode for you. We have a great interview with CNN’s legal analyst Joan Biskupic coming up about her latest book about the Supreme Court. But before we get to Joan, we wanted to do a rundown of some news, some legal culture and more, including our recent vacations on a superyacht and in a luxurious compound in the Adirondack so.
Leah Litman Don’t forget the PJ! The PJ too.
Kate Shaw We go to Hawaii and those are pictures that our listeners did not see. We were doing all those things.
Melissa Murray Exactly.
Leah Litman Yeah, the one of me in Hagrid’s Hut.
Kate Shaw I did want visuals of some of that. Oh, sorry. We’re getting ahead of ourselves.
Melissa Murray Before we get into the juicy details of Clarence Thomas’s secret bachelor travel schedule, we have to talk about a decision that we knew was coming. But still, it is absolutely shocking to see on paper Judge Matthew Merrick, who is the lone District Court judge in the Amarillo courthouse in Amarillo, Texas, has staged the FDA’s approval of mifepristone. Mifepristone or as people in the know call it, MiFi. It’s one of two drugs that are used in the standard medication abortion protocol. And it was approved by the FDA 23 years ago. So here we are.
Leah Litman So maybe first things first, we can talk about what the stay means. You know, staying something basically means you are putting it on hold and rendering it without force or effects. So the way our federal drug laws work is, you know, you’re not allowed to sell or prescribe drugs that haven’t been approved by the FDA. So here he is. Stay the approval. And that means doctors are not authorized to prescribe mifepristone.
Kate Shaw There are some theories floating out there that I think we’re spending a little bit of time on that suggest that what America said is he is staying the approval, which would render mifepristone an unapproved drug. So what you said, Lee, is exactly right. I think there’s just a question of there’s what it formally does to the status of mifepristone. And then there are enforcement questions and whether this district court judge has the authority to tell the FDA to go out and enforce a prohibition on prescribing. If a press down baseline principles of administrative discretion would suggest no. The district judge actually doesn’t have the authority to order the FDA to take those enforcement steps. But as to the legal status, right. What this would do when it goes into effect, if it ever does go into effect, is to turn mifepristone into an unapproved drug for this purpose. We’re recording this on Saturday. Episode will drop Monday. Right now there is a stay of the order, so it’s not in force yet and it won’t be for another seven days.
Leah Litman Just want to add two quick things to that. One is that we all know Judge Kacsmaryk respects standard principles of administrative law. So I’m sure he won’t attempt to order the FDA to enforce any guidelines that would make it unlawful to prescribe an unauthorized drug in this case. But the second is, let’s assume that the Biden administration says we’re not actually going to enforce any of these prohibitions on prescribing unauthorized drugs for if a person in this case like that kind of status. Right. Isn’t going to prevent states from attempting to do so under their own laws, nor would it prevent a future Republican administration from doing so. And trying to practice medicine against that uncertain backdrop is part of what this decision creates.
Melissa Murray The chaos is the point. Absolutely. It’s the point. Yeah. QUESTION How can Judge Kacsmaryk do this?
Leah Litman Or as our producer formulated the question, I absolutely do not understand this part of the judiciary. Explain it to me like I’m a five year old. So, you know, as we said, the judge purported to stay a decision of an administrative agency under the Administrative Procedure Act, individual judges, at least in some places, and the U.S. Supreme Court seems to think this is true, have the authority to what’s known as like vacate an administrative decision. And when you vacate it, it’s like the decision doesn’t exist. Now, you could say, well, maybe the decision just doesn’t exist in their domain. But that’s not really been the practice or understanding of what it means for an individual judge to vacate an agency decision, because when they do that again, they are basically rendering that decision without effect. And so that’s why this decision potentially has, you know, nationwide implications. How about the decision itself? How much law was in there, ladies?
Melissa Murray Wow.
Kate Shaw Many more vibes, much less law.
Melissa Murray More vibes, less law. Um
Kate Shaw I mean, there’s like the, there’s the rhetoric and then there’s a substance. I kind of think we should start with the rhetoric because in some ways, like it’s the most insane opinion tonally that I have ever read. Full stop. It is so inflammatory in its rhetoric. So what’s what what are the other leading contenders?
Melissa Murray Are the there are some other there are some other contenders. I mean, I think the Dobbs opinion was also similarly inflammatory in its way. I mean, I think this is like this just sort of shows how this has escalated over the last three years. Like, yeah, this is becoming normal, like for federal judges to engage in this kind of inflammatory, very partizan like, I mean, just essentially adopting the alliance, defending Freedoms brief and importing it into a judicial opinion.
Leah Litman Like I actually think he made it worse. It’s like he like took the brief, ran it through chatGPT and was like, make it more misogynist and fetal personhood curious.
Melissa Murray So but again, I just want to emphasize like, I don’t think this is unprecedented anymore. Like we are seeing more and more of this.
Kate Shaw And yes, so let’s give a few examples maybe of the kind of rhetoric that we’re talking about. So one, the opinion refuses and, you know, refuses. It explains in a footnote its refusal to use the term fetus. It refers exclusively to unborn children and unborn babies. It describes mifepristone as killing or starving an unborn baby rather than ending a pregnancy. It refers to providers as abortionists and medication abortion as chemical abortion. It accuses the Biden administration of promoting eugenics.
Melissa Murray I mean, this was also part of the Clarence Thomas Justice Alito playbook from June Medical.
Leah Litman You know, on fetal personhood in particular. It’s not just they’re referring to fetuses as on board. Humans are unborn children. It cites explicitly a brief arguing that fetuses are persons entitled to constitutional protection under the equal protection clause. And then in its analysis about whether, you know, a stay was warranted. It has this weird aside where the judge says parenthetically, sad individual justice and irreparable injury analysis also arguably applies to the unborn humans extinguished by mifepristone. Like that’s what this judge’s ruling. And he described the term fetus as unscientific and then cited a philosopher and political scientist for the unborn human, unborn child designation because like he’s mat making scientific determinations. Right. This is science, ladies.
Kate Shaw But also law. It is science and law.
Melissa Murray Another thing it was also very noteworthy is that so many of these restrictions on abortion have been framed in terms of advancing women’s health and women’s safety. And this was certainly part of that. But he actually goes further here and it seems like his justifications for doing this is less about making the landscape of medical care safe for women and more about curbing the licentiousness of these women whores who are engaging in sexual freedom and sexual liberation. I mean, like the misogyny, the patriarchy and the sort of Victorian era values just come right off the page. And it’s not a surprise that he’s making so much of the Comstock Act, an 1873 federal statute that was passed to stop the distribution through the U.S. mails of articles intended for quote unquote, illicit purposes or immoral purposes. And we are literally back in 1873 when women couldn’t leave the house to work or to engage in public life and instead were supposed to be wives and mothers on Bradwell versus State is also decided in 1873, where we learned that whatever the 14th Amendment says, the Constitution of the family says that the divine mission for women is to be a wife and a mother and just kept married because basically said, yeah, more of that, please.
Leah Litman Yeah. And that’s an example where the rhetoric and the substance of the opinion bleeds together because the Comstock Act is now part of the justification for this ruling. He just announced that that 1873 statute actually makes it a federal crime to distribute medication abortion through the mail. And the reason is.
Melissa Murray It’s like a zombie law.
Kate Shaw Yeah.
Leah Litman And it also on top of that says that the FDA certification of mifepristone in 2000 was not based in law, science, fact, etc., you name it. So it basically rules for the plaintiffs on all of the grounds that they gave. And this is to say nothing about the antecedent. That is like the threshold procedural questions of whether the judge even should have decided whether the authorization of mifepristone was legal. You know, we’re not going to spend time here. We will spend more time, you know, on this decision and how it plays out in the following weeks. But the idea that the plaintiffs here, this medical organization that was incorporated last year were somehow injured by the availability of mifepristone is insane. It rests in part on the theory that even though no complications from medication abortion have required these doctors to treat anyone in 23 years, that that might happen someday still, and therefore the doctors can sue like it’s all just insanity.
Melissa Murray Also, eugenics. Eugenics. Oh.
Leah Litman Forgot, forgot eugenics entering the chat in footnote two.
Kate Shaw And in terms of. The rhetoric and the substance kind of running together, I think in a bunch of different parts of the opinion finding not on the Comstock Act piece, but essentially that the FDA violated federal law in multiple ways in approving mifepristone in the way that it did. It’s like the kind of moral view of abortion. It just infuses all of it. So the judge is incensed that mifepristone was approved using an accelerated approval process because in part, in the court’s judgment, medication abortion does not provide a serious therapeutic benefit which is required because the accelerated process is reserved for serious illnesses. He is clearly so offended that pregnancy could ever be conceived of as an illness.
Leah Litman He describes it as like a natural state.
Kate Shaw That most women in their child rearing years will or should experience. No, that’s really there.
Melissa Murray You all should be walking around pregnant, covering it up with red robes.
Leah Litman Yes, exactly right.
Kate Shaw Also, there’s all this independent, insane fact finding about how the FDA didn’t sufficiently consider the psychological trauma and post-traumatic stress that women experience from.
Melissa Murray So glad that Matthew, a man judge can consider that for us. Women’s trauma.
Leah Litman Who’s the biggest feminist? Sam Alito or Matthew Kacsmaryk?
Melissa Murray I’m thinking Matthew Kacsmaryk.
Leah Litman I think he made a strong play.
Melissa Murray Lets knit him a pussy hat.
Leah Litman I think he made a strong play.
Kate Shaw But we can’t. Brett Kavanaugh honestly, clearly is is in the lead position because.
Leah Litman Does Matthew Kacsmaryk have an all female class of clerks? I mean, I don’t know.
Melissa Murray Is he the father of daughters? I bet he is. Oh, I bet he is.
Leah Litman These are these are strong points. These are strong point.
Melissa Murray He’s the father of daughters.
Leah Litman Okay. While future president of the National Organization of Women, Matthew Kacsmaryk, this was his ruling for now. But maybe we should talk briefly about what might come next. Kate already mentioned that the judge stayed his ruling for seven days. That is, this ruling will not go into effect for seven days. This provides the Biden administration with some time to ask. The court of appeals for the Fifth Circuit, noted very principled and very law like court of appeals.
Melissa Murray Also very liberal, very squishy.
Leah Litman Squishes Kyle Duncan and James Ho to.
Melissa Murray Don’t forget Edith Jones, Leah.
Leah Litman We’ll never. That was Edith Jones erasure. Okay. Sure. I apologize to potentially, you know, undo this ruling and the Supreme Court. We should also note that the case for Supreme Court review got even stronger when within the same hour, a district court in Washington issued another injunction that purported to prevent the FDA from altering the availability of mifepristone. As it stands now, at least in a handful of Democratic states that had sued the FDA to challenge some of the restrictions on method.
Speaker 1 Kristen So can.
Melissa Murray I just interject here to remind everyone, back in June when jobs dropped, how we were going to settle the abortion issue going forward? Yeah, I mean, there’s going to be no more conflict.
Leah Litman No, Sam and Brett told me that Roe and Casey had failed to help with this national debate, but Doug Dobbs was the solution and laid his.
Melissa Murray Like a fire extinguisher of law and vibes that was going to just like put it all out. And here we are, right? Like we were all going to be in peace walking around pregnant in our red robes and to be a restorative justice opinion. Right, exactly? So.
Leah Litman Like maybe in reference to Dobbs and the Supreme Court, I guess I’m kind of curious to hear what you all think might happen. I can give you my my, like early quicktake, which is I think there are at least three votes for this Kaczmarek opinion. And the question is whether there are five. You know, on Barrett, I kind of think like 6040, she’s with him, but like not as confident as I am about like Sam, Clarence and Neil and then Brett Kavanaugh. Part of me thinks like a little depends on whether he thinks the Democrats were mean to him right on the day he’s asked to decide the case. And this is insanity. I don’t honestly know, like what I think the court is going to do. I think there’s a chance, right, that there are five votes for there’s no standing or like something here. But but I’m not confident. And I you know, I could really see it going either way. And that’s insane.
Kate Shaw I think the Fifth Circuit probably just sits on this and in some ways, I don’t know. And Steve Vladeck was saying as soon as the opinion dropped, the Biden administration should seek cert before judgment, go right to the Supreme Court in at least one of the SBA cases. Remember, the fifth just literally sat for months. Yes. On an appeal. And so I’m just not sure they’re going to do I mean, for them running out the clock means this thing goes into effect. So I presume the Biden Justice Department is going have to go immediately to the Supreme Court if they don’t hear right away from the Fifth Circuit and if they hear I can’t imagine the Fifth Circuit reverses that. So I think this is in front of the Supreme Court right away. And I’ve gone through the same calculation, obviously. I think certainly Thomas and Alito love this opinion. And I think that.
Melissa Murray Justice Alito.
Leah Litman Told us this.
Melissa Murray What should be left to states to solve for themselves and to resolve in light. With their constituencies preferences.
Kate Shaw He’s talking about states deciding to restrict abortion for themselves. Red states.
Melissa Murray Deciding.
Kate Shaw Abortion is not democracy.
Melissa Murray Melissa Kate, what are you saying? Sam Alito It’s this was a pro-democracy opinion.
Kate Shaw It was a pro some democracy and the democracy in the state of Texas, which has tried to restrict abortion and is having a hard time. Right. This is what something Aaron Hawley, one of the lawyers we’ve referenced previously in the hearings.
Leah Litman Wait, Mark, does her husband. Is he a runner?
Melissa Murray Yes, he was a runner.
Kate Shaw And she is a very accomplished athlete.
Melissa Murray George Floyd.
Kate Shaw That’s right. And she stood before because Merrigan basically said states are having a very hard time fully enforcing their postcards bans because it’s so easy to get mifepristone. And so basically, we need your help shoring up our democracy. Never mind. This is now needed.
Melissa Murray For not keep those women running around pregnant. Right. Like you got to give us. Also to enforce bans. We literally would have to go into everyone’s medicine cabinet and poll.
Kate Shaw You know I’m sure Matt would be actually fine with it. But right now we’re just trying to get things off the shelves is is the purpose. But yeah, I mean, if the promise of jobs was like, we’re going to let democracy run the show when it comes to abortion policy, like no one with a straight face can claim that actually that’s a genuine commitment in Dobbs that this is what Dobbs has wrought because this is so antithetical to letting states and to letting the Democratic Party, the FDA, is the result. You know, the FDA’s approval is the result of democratic process. That’s an agency exercising authority delegated to it by Congress.
Melissa Murray Okay. Hate the administrative secrecy, anti-democratic. And, you know, of course, that’s the Constitution in exile.
Kate Shaw But it’s.
Melissa Murray Talking about.
Kate Shaw But if this is successful, then the democratic choices at the ballot box, you know, in ballot initiatives and elsewhere of individuals in the many, many states that wish to protect abortion and where all the demonstrated preferences of states that have post jobs, you know, pass new laws, including, you know, not a law, but a justice election last week in Wisconsin have made clear that people do want to protect access to abortion, and this opinion would thwart the exercise of that democratic will. But it’s too.
Leah Litman Bad, Hussey’s says. Matt.
Melissa Murray So here’s what I think may happen. Like this will go up to the Supreme Court. I wonder if all of the political blowback that we’ve seen over the last week, Wisconsin, all of the discussion, the fact that, you know, preview our boy Clarence is living a bachelor life and it’s in the news might make them pause about sort of signing on to this insane opinion and crediting it in any way. So I wonder if we could get a54 decision overruling Cas Merrick or even a63 decision overruling Kasper. And I wonder and I actually I’m on the fence as to whether that’s a good thing. Like, obviously it’s good and that mifepristone will be available, but I don’t want anyone to be anesthetized As to the idea that we have a normal Supreme Court, like the fact that they respond appropriately in this case does not mean that these goals are normal. Yeah, no. Again, if they ever were normal, like this is like it’s a political calculus. I think it all depends on whether on any given day Brett Kavanaugh thinks that people are not going to like him. Yeah, and I could see them overruling this. But if they do, that doesn’t mean we’re good. Like you have to keep your eye on the ball. They’re going to do more. Go further. It may not be an abortion, but it will be in other places.
Leah Litman Like this is also administrative law decision.
Melissa Murray Yeah, that could undermine the administrative state and a lot of.
Leah Litman FDA does damage their drug or COVID drugs.
Kate Shaw And, you know, I’m sure that like there are there actors out there, maybe some of the same actors who would love nothing more than to get Judge Cas Merrick to stay the FDA’s approval of all kinds of vaccines that say I mean, really, truly like the anti-science ism of this opinion is maybe, you know, they’re it’s hard to sort of rank the offenses in this opinion, but that’s a hugely important and problematic one that is in no way restricted to the abortion context.
Leah Litman Well, as footnote once said, Kate, it’s everyone else who’s on scientific mat, by contrast, is the scientists.
Kate Shaw Right. I forgot.
Leah Litman So that wraps up the discussion of Judge Kacsmaryk’s ruling for this episode. Don’t worry, we will obviously be following this in all of these subsequent episodes. And when we come back for this episode, we’ll catch up on a ton of news out of the court, including Clarence Thomas, as previously undisclosed.
Kate Shaw Baller Baller Luxury vacations funded by conservative billionaire.
Leah Litman [AD]
Melissa Murray We have to talk about this surreal ProPublica exposé that came out last week about Justice Thomas’s relationship with Republican Mega-donor Harlan Crow. And you absolutely must read the story for yourself, because we are only we can’t even capture how bonkers this whole story is. But in brief, Harlan Crow has flown our boy, Justice Thomas, around the world on trips in Crowe’s private jet. He’s also given Justice Thomas and his wife, Ginni Thomas, drink access to his super yacht. And again, these are two people who very famously have said that their ideal vacation is jumping into an RV and motoring across the United States while sleeping overnight in Wal-Mart parking lot. So to say this was a surprising turn is really to understate.
Leah Litman Yeah. So just to contrast this with the RV style vacation, the ProPublica story opens with an anecdote about how in June 2019, at the end of the Supreme Court term, Thomas took the private jet, or PJ, as it’s referred to on Vanderpump Rules. Yes, if you watch Vanderpum Rules, God, you would know this He was.
Melissa Murray Or if you traveled in a private jet, you would know I did it because I don’t I thought you were talking about monogrammed pajamas from.
Leah Litman The. I wasn’t. That’s how poor we are. We don’t this is why you have to watch more reality TV. So you know these things. Anyway, okay, Thomas took the crows PJ to Indonesia, where he boarded the 162 foot Superyacht and ProPublica estimated that this trip would have cost more than $500,000. But for the Thomases, it was free because beep, beep, get in, losers. We’re going on a private jet to Indonesia.
Melissa Murray And the best part is this is not the first time that the Thomases have flown private on air. Kim or excuse me, in this case air crew. They have taken the super yacht around Savannah, Georgia. They have gone to New Zealand, among other places. So they are well versed in luxury.
Leah Litman My recommendation for a Bravo show, if you are at our Hawaii show in person, you know what a previous recommendation for a Bravo show was, but only if you were there. Anyways. New wreck is below deck. Scott is. It could work.
Melissa Murray I mean, I love it.
Leah Litman Yeah. Thank you. Justice Thomas also took the private jet to Crowe’s private library, which is apparently where Judge James Ho was sworn in. I don’t know how all of these things managed to happen at once, but this is.
Melissa Murray How are they all connected?
Kate Shaw Leah It was a massive 42. It wasn’t there yet. And now James Ho enters the.
Leah Litman Picture like, what is going on?
Melissa Murray James Ho In the library with the private jet. Yeah.
Leah Litman And you know, this is in addition to private trips on the private jet to New Haven and elsewhere.
Melissa Murray Where they were not selecting for clerks.
Kate Shaw But I mean, that just just a quick sidebar, like just the kind of unbelievable forensic research the flight manifests, the like scrutinizing of Thomas’s attire and various old photographs, some of which indicate sort of say that there were clearly other Crowe funded trips to places like the Greek islands, although it seems like the reporter wasn’t able to fully nail down and.
Leah Litman Commemorative clothing to market and inscribed.
Kate Shaw Books to say, I mean, it’s just like an incredible feat of reporting we.
Melissa Murray Should have. That part actually was a little gross like Justice Thomas. I don’t know if you listen to this. I hope you do. But if you think an adequate tip is giving someone your remainder bin autobiography with an inscription, they just want a 20, like seriously.
Kate Shaw Or more than that. But not your book.
Leah Litman Well, I mean, this is like, at.
Melissa Murray The very least, flip them a toe. Nobody wants her.
Kate Shaw All right. So in terms of what else is in the story and there’s tons else but just a few other highlights, we know that Justice Thomas has gone to the exclusive all male California retreat to the Bohemian Grove with Crowe that’s doing whatever she’s powerful.
Leah Litman In love that.
Kate Shaw They do in the Redwood.
Leah Litman Bohemian Grove. Oh, yeah, You joke.
Melissa Murray In California, people know this is like, it’s kind of weird, bonkers yellowjackets stuff.
Leah Litman Like, really? Well, so.
Kate Shaw I always sort of assume that, but like, it’s really a California thing, so I have only the easiest of impressions of it. But upon reading it, I was like, Oh, right. Of course. Clarence Thomas goes the Human Grove. I just didn’t know that part. In addition, it turns out from the story, he has spent time on Crowe’s ranch in Texas and spends about a week every summer at Crowe’s private resort in the Adirondacks, which sounds like one of the most insane places.
Leah Litman Exactly. This is the resort that has a clay tennis court and batting cage along with a life size replica of Hagrid’s hut from Harry Potter, as well as the soda fountain where resort staff make you milkshakes.
Kate Shaw But there are so many.
Leah Litman Other crazy details, like there is a painting.
Kate Shaw At the resort that depicts this meeting in this like pastoral setting of Justice Thomas Crowe right. The the donor the. Funder, the architect of all of this, Leonard Leo and two other attorneys, one of whom is the current Dean.
Melissa Murray Rutledge, the dean of the University of Georgia School of Law.
Kate Shaw And Mark Paoletta, who is General counsel of the Office of Management and Budget under Trump. Paoletta also testified against strengthening judicial ethics rules and characterized the criticism of Thomas and his wife on ethics grounds as political attacks. He also represented Jenny in her interview before the January 6th Committee.
Leah Litman Enter. Right. Quote, Interview. Interview.
Kate Shaw Right. We’ve talked. We’ve talked about that. Usually someone will make a play of some sort.
Leah Litman Do you think that painting depicts the meeting where they’re talking about the barges off Guantanamo Bay. Like.
Kate Shaw But Jenny’s not there?
Leah Litman Well, I mean, I know she and Clarence never discuss politics or any of her work, but, like, there’s a possibility he’s independently wondering about the barges.
Kate Shaw So it is a wild feeling.
Melissa Murray It’s a wild painting. It actually has very photographic qualities, like it looks very much like a photograph. So props to the artists.
Leah Litman Really sad that love your work today. Wow.
Melissa Murray The bottom line is these are really lavish trips and the Supreme Court actually does have rules about disclosing this kind of largesse. But meaningfully, none of these trips were ever disclosed on Justice Thomas’s financial statements and disclosures over the years, and he’s got a great explanation for it. Don’t worry. But ProPublica reports that during one trip, there were not only just lavish, lavish outlays of fancy stuff, there were also leaders of certain groups like the American Enterprise Institute, which does often bring cases or is related to cases that appear before the court, as well as executives at corporations like Verizon and PricewaterhouseCoopers, which do have business on occasion before the court. So it’s not simply about just hanging out with your rich friends. It’s like hanging out with your rich friends and other people.
Leah Litman Who.
Melissa Murray Are there and have business before.
Kate Shaw The court. Other Fun facts about Crow Wright, who is at the center of this story. He gives a ton of money to conservative causes, including the Federalist Society, more than a decade ago. The story recounts Crow having given $500,000 to Liberty Consulting, founded by Ginni Thomas, which also paid Ginni a salary. Crow also gave Thomas a portrait of the Justice and Ginni same artist as the I don’t know garden.
Leah Litman I don’t know. Yeah. Yeah.
Kate Shaw Maybe that’s for the follow up story. In addition, his foundation gave over $100,000 to Yale for the Justice Thomas Portrait Fund.
Melissa Murray That’s the same Yale Law School where you should not select.
Kate Shaw And no one learns anything anyway. So why would you want to select your class?
Leah Litman So as Melissa previously alluded to, there are in fact disclosure requirements on the justices, though some people would have you believe that all of this is very cool and very legitimate. And the guys at their high school did this all the time, though.
Melissa Murray Only if your high school is Georgetown.
Leah Litman Exactly. You got where I was going. You know, that being said, there is a pretty compelling argument that Justice Thomas broke the law requiring disclosure of these gifts that exceeded a certain dollar amount. The disclosure requirement does not, as we have previously said, extend to hospitality and hospitality. Definitely includes things like staying at other people’s homes and resorts, at least in certain cases. But at least as of now, After the administrative office of the U.S. Courts released new guidance last month, that disclosure requirement does seem to require disclosure of trips on private jets, and Thomas has not disclosed these. Now, all this travel happened before the new guidance was issued, but the language of the disclosure requirements has not changed. Right. It’s still the same. And the guidance just makes clear that hospitality does not include transportation. Dahlia Lithwick and Mark Joseph Stern at Slate have a piece defending the view that even before the guidance, the disclosure requirements require disclosure of transportation.
Melissa Murray It’s also worth noting here that Justice Thomas did actually disclose other trips that other people paid for. He just didn’t disclose these trips. So The L.A. Times reported a front page story where Justice Thomas receives tens of thousands of dollars in gifts over the last six years more than other justices. And then he just stops reporting.
Kate Shaw And it’s really hard not to think immediately about some of the court’s cases about corruption in the context of reading the account of Justice Thomas’s activities here. So there are a lot of examples that spring to mind. Maybe we could just mention two of them. So in Caperton versus Massey in a54 Justice Kennedy opinion. The Court. It holds that the Constitution actually required a state judge to recuse himself from a case where a litigant had spent millions of dollars on that judge’s election campaign. This was an important ruling. And Thomas wrote in dissent that the judge should not have had to recuse. The Constitution was fine with even judges deciding cases involving litigants who had basically bankrolled their path to the bench in order specifically to have them rule on their case. Those were the facts of Caperton and Thomas.
Melissa Murray The fact that that was a 5 to 4 opinion is bonkers.
Kate Shaw And it’s not just Thomas, like Roberts was apoplectic in dissent in this case. So this is, you know, something that this is not like an outlier, Thomas position, that this conduct is fine. It just feels like especially conspicuous with respect to Thomas because of this reporting. And then maybe let’s just mention one other case, which is the McDonnell case, which we talked about on the podcast a number of times involving former Virginia Governor Bob McDonnell. And in that case, the court holds that officials don’t violate public corruption laws when they receive gifts in exchange for setting up meetings, holding events, making calls. And that’s actually a Roberts majority opinion, and that’s actually a unanimous opinion. So basically, there’s a pattern of the court having blessed a lot of what feels to me like really corrupt conduct by public officials or public servants. And even where the court has found that some conduct goes too far, even for its very permissive tastes. Some of the justices, including Justice Thomas, have written to urge a reading of the Constitution that would allow. It seems to me basically anything, no matter how corrupt.
Leah Litman So let’s turn to see what some of our listeners are saying about this decline in our institution. Here we have a comment from May 2022 from some guy named Clarence Thomas who said, quote, I wonder how long we’re going to have these institutions at the rate we’re undermining them. This comment, of course, was in reference to the leak of the draft opinion in Dobbs, which overruled Roe versus Wade, as well as the criticism of that opinion. Around the same time, he also said at another conference that he worried about declining respect for institutions and the rule of law.
Melissa Murray Area man worries about declining faith in important institutions. Sir, the call was coming from inside the house. We also have from the story as well some statements that Justice Thomas has made over the years about his own preferences for vacation. So he notes, I don’t have any problem with going to Europe, but I prefer the United States and I prefer seeing the regular parts of the United States. This is from a documentary about Justice Thomas’s life that was incidentally underwritten by Harlan Crow. Justice Thomas then goes on in the biopic to say, I prefer the R.V. parks. I prefer the Wal-Mart parking lots to the beaches and things like that. S why I No one has ever preferred a Wal-Mart parking lot to a beach. Bonkers. Absolutely untrue. He goes on. There’s something normal to me about this.
Leah Litman There’s nothing normal about preferring a parking lot to a beach.
Melissa Murray Thomas continues to say, I come from regular stock and I prefer that I prefer being around that. Well, this reminds me of when Prince William and Kate Middleton try to pass off their four different houses as.
Leah Litman Being totally normal because one of them picks up their kids at school.
Melissa Murray It’s not normal people. You have a gold piano. Your life is not normal. Justice Thomas It’s not normal to go on a super yacht. Even if you then chase it with some time in a Wal-Mart parking lot, like, that’s not normal. That’s rich people stuff.
Kate Shaw Thomas used to I don’t know if he still does refer to his RV as a land yacht, which was always like sort of folksy. And it meant to convey this like some people, like real yachts. I like my RV, and it seems to sort of subtly communicate everything that’s explicit in the quote you just read, Melissa. But now it seems really different. And it’s like.
Leah Litman Now he just like, yeah, no, no. I mean.
Melissa Murray I mean, the real tell is if he invites Harlon Crowe, his friend, and his wife on the LAMB yacht, which I’m guessing.
Leah Litman Is a negative, it seems unlikely we.
Kate Shaw Will revisit this if it turns out in follow up follow on reporting that the crew spend a week every summer.
Leah Litman Together and I don’t.
Melissa Murray Really get my monogrammed.
Leah Litman Yacht hat.
Kate Shaw So in the wake of this story, there has been some discussion about whether these relationships and these trips somehow influenced Thomas’s votes. And I think our reaction to that is that is really beside the point. Right? The question here is largely about the appearance of bias. If everyone is rowing in the same direction that this is not there’s not actually an exchange.
Leah Litman Do you row on a yacht?
Kate Shaw I don’t know.
Leah Litman I don’t think it’s fair. Bowersox makes for the pause. Maybe.
Kate Shaw Maybe there are people down below doing the rowing, but Thomas and Crowe are clearly not. They’re doing more metaphor. Rowing in some direction. But regardless. Right. This is obviously these opportunities exist for a select group of individuals to bring to the justices attention particular facts, narratives, arguments, and that all of that could well have an influence in how opinions get written, even if no votes are changed by virtue of all of this. It also seems, from what we know from the reporting, to be flatly inconsistent with obligations to disclose their incumbent on all public officials, including the Supreme Court.
Leah Litman Also, like, what the fuck do you think that Leonard Leo, Clarence Thomas, Mark pail letter and the dean of Georgia Law School are discussing together with Harlan Crow? Like these are for people immersed in the conservative legal movement who are lawyers. In response to this report. Justice Thomas issued an uncharacteristic statement that it’s pretty unusual for him to comment on, but he did so here. That statement included the following, and I’m just going to read some of it. Harlan and Cathy Crow are among our dearest friends. Early in my tenure on the court, I sought guidance from my colleagues and was advised that this kind of hospitality from friends who don’t have business at the court wasn’t reportable. I have always sought to comply. These guidelines are now being changed and it is, of course, you know, his plan to follow this guidance in the future.
Melissa Murray So tldr Justice Scalia made me do it.
Leah Litman Cool. I mean, totally fine. Justice Scalia did take a fuck ton of undisclosed trips, including hunting trips. And also, I just have to point out, like his statement about how he and the Crows have been friends for like 25 years. He’s been on the court for 30, 30 years.
Leah Litman Right. Exactly. Like they became friends, like after he was in power. And like, this doesn’t kind of raise red flags. It’s just.
Melissa Murray No, no, no. I’m sure the crows wanted to hang out with Clarence Thomas, commissioner of the EEOC.
Leah Litman Or Clarence Thomas, just like a graduate of Yale Law. Right. Like or.
Melissa Murray You know, staffer to Senator Danforth. They wanted to hang out with them because they’re they’re like ecumenical people and they wanted to make friends. Definitely. Yeah. There’s other important legal news I think we have to cover. So really important. Last week, we had so much legal tier. Donald Trump got indicted While we talked a little bit about that Kate and Leo did when they were hanging out with the pot roast the other day. So you can check that out. That’s a strict scrutiny Pod Save America collab. We also had the trial, the ski trial with Gwyneth Paltrow versus the optometrist where Gwyneth was vindicated. I think we can just call this Gwyneth science and she was amazing as she slunk out of the.
Leah Litman Let’s see, I think it was like, oh, it was way, way out of the.
Melissa Murray Clouds. She floated out of the courtroom and then bent over and whispered in this poor flunkies ear, I wish you well. I mean, what? Like, I know she’s a Libra, but this was straight up Virgo energy. She’s like, Bitch, don’t you ever fucking do this again, or I will haunt your dreams with a jade egg like and I’m here for it. I love it.
Leah Litman And then she stood back up and just waltzed out. I just walked out. I like as.
Melissa Murray You do with your $1 in damages, but that’s not the legal news I want to talk about, although I loved all of that. The other piece of important legal news is that Meghan Markle, the Duchess of Sussex, who was sued by her half sister, Samantha Markle, for defamation in a motion to dismiss from Meghan, the Duchess of Sussex. Judge Charlene Honeywell of the Middle District of Florida, dismissed many of Samantha Markle’s claims, including claims related to finding freedom, the Omid Scobie and Carolyn Durand book about the Sussexes. She dismissed those claims with prejudice with regard to claims that were made about the Oprah interview. The judge determined that perhaps Samantha Markle could simply refiled these claims and then they could be determined whether or not they had merit. So those were dismissed without prejudice. But I think the TLDR here is Samantha Girl. Frivolous lawsuits are not cool. You really need to stop. I would love to know who’s actually funding your lawsuits and I cannot wait until the Duchess of Sussex gets to recover attorney’s fees from you. So staying tuned to that. I love this royal family. And there’s a little bit more royal family law.
Melissa Murray Yes.
Leah Litman That the Heritage Foundation is apparently filing Freedom of Information Act requests about Prince Harry’s visa application, ostensibly or at least possibly with an eye toward trying to get Prince Harry deported from the EU,.
Melissa Murray Because in his autobiography, he talked about doing shrooms at Courtney Cox’s house and he’s also copped to taking drugs in the past. And so they’re basically saying you cannot come into this country on a visa if you have admitted to being a drug user at some time. So, again.
Kate Shaw What is the basis for that? It’s not like a security clearance application. You’re just trying to get a visa.
Melissa Murray I mean, this is the same Heritage Foundation that had a whole ass seminar about how important the British monarchy was. This is an organization which literally has the Liberty Bell and its logo, but it’s supporting the British monarchy. And then I say, Yeah, I know Ron DeSantis like cut all history from Florida, but has it trickled up so far that we don’t even remember the basic contours of the American Revolution? Like, what the fuck?
Leah Litman Very unclear.
Melissa Murray Anyway.
Leah Litman We also have a development on federal judicial nominations we wanted to note, which is that a mississippi nominee to federal district court is encountering a blue slip problem. We’ll explain that in a second. In that, Mississippi Senator Hyde-Smith finally announced her opposition to a district court nominee who had been nominated in October 2020. To the nominee is Scott Collum, who is currently a district attorney in Mississippi. And the blue slip refers to the convention that home state senators, even home state senators of different parties, must agree to nominees to their district court in their state. So in her statement announcing opposition, Hyde-Smith said, quote, As someone with a strong interest in protecting the rights of girls and women, I am concerned about the nominee’s opposition to legislation to protect female athletes. So a little transphobia at the beginning. And then she continues the significant support his campaign received from George Soros also weighs heavily against his nomination. Column, as I mentioned, is an elected D.A. And she said this the day before Passover began. So happy Pesach to all of you. This tees up, you know, a fight or a debate about blue slips, sends, you know, at least some Republican senators seem to be of the view that Democratic presidents don’t get to nominate judges in states with Republican senators, or at least they don’t get to nominate people who aren’t Jim Ho or Kyle Duncan. And the question is like whether the Democratic Senate and President Biden will go along with this obstruction where they’re basically not allowing President Biden to name any nominees who will be plausible nominees for a Democratic administration, including this one.
Kate Shaw Yeah. So this is a fight that has been brewing and we will see if it actually turns into a decision to revisit this longstanding practice. There have been calls for a long time for that to happen. So next up, the big news out of Wisconsin. Judge Janet protest words won election to the Wisconsin Supreme Court, flipping the ideological split on the court from four three with a conservative majority. Two, four, three with a liberal majority. Enormous, enormous outcome and also enormous win. I think in the final analysis, she won by something like why was it 11 points?
Leah Litman Yeah. You know, as Justice Kurosaki said on our last episode, Justice Garcia is the last justice to defeat Dan Kelly in an election for the Wisconsin Supreme Court. Some of us win our statewide elections by ten points, which is you know what, now Justice Janice did. Helen Kennedy has said on Twitter the Alito torpedo continues, and I just loved the phrase and thought it was perfection.
Kate Shaw Right. And Alito obviously is a reference to Dobbs as an enormous factor in this election. And I think it absolutely was. But also, Judge Gannett ran a very good race. Dan Kelly ran a pretty appalling race. And I think the results really sort of drive that home.
Leah Litman Other notes you mentioned, Dan Kelly ran a not so great campaign. He also gave one of the least gracious concession speeches you could imagine. Let’s play some of those clips here.
Clip And it brings me no joy to say this. I wish that in a circumstance like this, I would be able to concede to a worthy opponent, but I do not have a worthy opponent to which I can concede that this was the most deeply deceitful, dishonorable, despicable campaign I have ever seen run for the courts. It was truly beneath contempt. We have this laid out plainly for us. We can have the rule of law or the rule of Janet when the people of Wisconsin have chosen the rule of Janet.
Leah Litman As Melissa said on Twitter, like he should really try smiling more. But, you know, that’s just some free advice.
Kate Shaw I did also said Melissa, I think it was also said right, that the rule of Janet as my new favorite legal procedural, which I think was great. Yeah.
Leah Litman I personally wanted now Justice Janet to appear over Dan Kelly’s shoulder and leaned down and say, I wish you well.
Kate Shaw And then float out.
Leah Litman Exactly like you. But I think that would have been very fitting.
Kate Shaw In terms of like additional graceless responses to the result. Justice Rebecca Bradley, who sits on the court and who campaigned for Dan Kelly, said that protest was this campaign, sought to slander a good and honorable Christian man. But that good people right? Meaning presumably. KELLY voters rejected those lies. So I guess that tells us what she thinks about all the other and many more people who voted for justice. Janet.
Leah Litman Haters and losers.
Kate Shaw So, yeah, that is still reverberating and I think will still continue to reverberate for a long, long time. There’s basically an infinite list of other things that we could cover. So we were just going to be brief on a few that are really important to highlight. So one, we really wanted to take a minute to just to note briefly the truly appalling decision by the Tennessee Legislature to exclude two Tennessee state representatives for protesting alongside their constituents the Legislature’s failure to address gun violence here in the wake of the school shooting at the Covenant Private School in Nashville that killed six people, including three children. The state legislature chose to expel the two black men who were representatives of those who participated in the protest, but not the white woman who was also a state representative. And as far as I could tell, engaged in identical conduct to the two black representatives who were expelled as a result.
Leah Litman I mean, whether it was identical or not. Right. It all kind of implicated and violated the same rule. So they did the same, like relevant conduct. But they the legislature are like, okay, we’re not just going to do a fascism. We’re going to also do a racism, right, to show how, like, you know, our destruction of multiracial democracy is on the path toward fascism, I guess.
Kate Shaw Right. So the technical there was a technical decorum violation in which all three, I think, clearly did engage. I mean, there were differences, but of course, the representative was not expelled. The white woman, Gloria Johnson, was asked about the differential treatment in interviews and she had this to say.
Clip I think it’s pretty clear I’m a six year old white woman and they are two young black men.
Leah Litman This is literally how democracy dies for expelling democratic representatives, for engaging in democracy. You should very much listen to the speeches of the two state representatives who were expelled. They are Justin Pearson and Justin Jones.
Kate Shaw There’s a lot of like, fast moving decisions about reinstatement. And I have no idea if anyone’s thinking about filing a lawsuit. But there are precedents for this, right? The Georgia legislature did not expel but actually initially refused to seat. Then Georgia Representative elect Julian Bond on the basis that he had made criticisms of the Vietnam War and the kind of racism and human rights violations of the federal government following his election, but before his being seated in the Georgia legislature. And in that case, Bond versus Floyd. The Supreme Court unanimously ruled that he had a First Amendment right to take a seat and at the Georgia legislature did not have the authority to exclude him. So, you know, I would never put any stock in this Supreme Court’s adherence to that precedent. But this is not something that has never happened before. And when it has happened before, it has been sort of majority white legislatures acting in pretty explicitly racist ways vis a vis black representatives or representatives elect. And so I could not think of anything but Bond versus Floyd yesterday when this happened in an event, as Melissa pointed out on Twitter. The Supreme Court’s fingerprints are on this, not just in the Bond versus Floyd precedent, but on the map in Tennessee. That legislature is gerrymandered to a degree that gave Republicans enough of a majority to expel these members. The court has also provided cover for legislatures failure to attempt to address gun violence. So on the substantive question that these representatives were protesting. And on the gerrymandering that resulted in this legislature and the Supreme Court’s unwillingness to allow that the federal Constitution might play some limits on that, the court is in the background of this story in multiple ways.
Leah Litman So there’s lots we’ll be keeping an eye on in the weeks and months ahead. We have to take another quick break. And when we come back, we’ll spill the tea with Joan Biskupic.
Leah Litman [AD]
Melissa Murray We are delighted to be joined with Joan Biskupic, CNN’s legal analysis and the author of several books about the Supreme Court and the Supreme Court’s justices, including her most recent book, Nine Black Robe. So welcome to the show, Joan, I should say. Welcome back, because, of course, you are a strict scrutiny super guest. You were here about two years ago to discuss your then recent book, The Chief The Life and Times of John G. Roberts And wow. Have his life and times changed in just a few years.
Joan Biskupic I remember it so well, Melissa. It was in July of 2020, and it was right at a time when I was developing a series of stories about what had been going on behind the scenes during the Chief Justice’s really great run. That was when he was at the height of his powers. It was after Justice Kennedy had retired, and suddenly John Roberts was the ideological center of the bench, as well as still having this great power of assignment as the chief justice. And we were only a few months from Amy Coney Barrett succeeding Ruth Bader Ginsburg. So he had just had this very good term where he prevailed in just about every case.
Melissa Murray And he was feeling himself during that term.
Joan Biskupic I remember this so well because we had just come off of the Trump document cases that had initially in the initial votes, they had divided like five four in both of those cases. And he had been able to achieve a compromise that was 7 to 2. And he was very proud of as much unanimity as he could do and those separation of powers cases. So, yes, he was definitely feeling it.
Leah Litman So at the time, Joan, I remember Melissa asked or we asked you for advice on how to train your killer whale here. The killer whale was Chief Justice Roberts, you know, when he was the median justice on the court. But now that the media in justice has shifted, do you have any advice on how to train face eating leopards now that they are the media and justices on the court, or are they just untrainable?
Joan Biskupic Do we have a middle? There really is no middle. Right?
Leah Litman Yeah, that does seem to be the case. As you know, Your answer suggests the book describes the court’s rapid pitch to the right over the course of several appointments of justices by former President Donald Trump. So what was the impetus, Joan, like for this newest book?
Joan Biskupic That’s a good question, because as you know, the previous four, starting with Justice O’Connor in 2005, going to Antonin Scalia and then the political biography of Sonia Sotomayor before the bio of the chief, all was so focused on an individual, there was an easy arc to the story. Their their lives, you know, dictated what I would be writing. And I couldn’t think of another justice that I really wanted to focus that much time on once who interested me had served long enough to really see their record and ones who had served long enough I didn’t think would offer the kind of material I wanted. But at the same time that I was sort of thinking about what next I was detecting what I believe was the Trump effect on the court. I you know, I’m always aware of what’s going I’m always trying to be aware of what’s going on behind the scenes. And I felt that I was seeing some shifting among the justices, some maneuvering that I hadn’t detected before, in part because of the Trump effect. And then, of course, you had these you know, first it was just the two justices, Justice Neil Gorsuch and Brett Kavanaugh, who are having such an effect. And then Amy Coney Barrett obviously makes all the difference in the world. But when I sold the proposal, it was late 2019, early 2020, and I was thinking that this would be much more of a let’s look behind the scenes of the court, much more atmosphere. I wasn’t thinking that I would have this huge shift in the law, and then suddenly in May of 2021, they accept the Dobbs case. And I went to my publisher and I said, I definitely need more time for this because we’re going to have to see what they do in the Dobbs case. And the one final thing I would mention is I was always writing. I was writing this tale, you know, throughout 2019, 2021. I was surprised that when we got to June of 2022 and we saw exactly what was in Dobbs, how little rewriting I had to do of this entire book. It’s like I saw it all coming, even though I didn’t know I saw it coming. I was one of the people who was always saying, Oh, John Roberts will probably pull it out. He will have some sort of compromise opinion that will not reverse entirely Roe v Wade and how wrong I was. But somehow I must have suspected in the book because when I went back, all the seeds were in place.
Melissa Murray So you start off writing a book about the quote unquote Trump effect, which to my mind is like how President Trump’s influence just sort of shades this whole court. So just imagine the entire Supreme Court gilded in tacky 14 karat gold overlay like that as the Trump effect. But in fact, it actually turns out to be far more substantive than merely cosmetic. And so the book is detailing a court that is lurched to the right. So what are the most important things, Joan, that you think the reader should take away from this rightward shift?
Joan Biskupic Okay, well, then let’s let’s step back and we can do it substantively, and then we can do some of the atmospherics that are also sort of relevant to the kind of court we have today, a supermajority, these three three Trump appointees joining with three other Republican appointees for a supermajority. I have never in my life realized how a single person, a single vote can so shift a dynamic. The difference between five, four and six three is stunning because the liberals, they could pick off a single person much easier than to pick off a single person who had a pal also on that side. You know, they just have the security of the numbers of the six justices on the right, I think has changed the dynamic much more than you would have thought with just one additional justice. And the the proof is in the rulings. So, you know, I we obviously just referred to Dobbs that will probably come up on and on throughout this conversation, the stunning reversal of nearly 50 years of reproductive rights. But then also just look at how far they’ve been moving on the separation of church and state, the main ruling that essentially requires public funding of religious schools moving further along. Now, that, of course, is steered by John Roberts. John Roberts could not control women’s reproductive rights at the pace he wanted it to go. He just he.
Leah Litman Well, I think you could have stopped at John Roberts could not control women’s reproductive rights. I think that also would have worked as the sentence.
Melissa Murray Commander Roberts could not control women’s reproductive rights.
Joan Biskupic Right. Okay. Okay. I’m just talking about the law right now, for a second. But but but Leah, he he’s never favored abortion rights, but he didn’t favor the court moving so fast. That’s that was the point I was making there. But I also was trying to distinguish it from conservative religious liberty, where he has been at the vanguard on that and written some of the key opinion. So. So to get back to Melissa’s question that the Trump effect, obviously we see it in the ruling so much, but then we also saw it in the positions that Donald Trump was taking and the advocacy of Francisco, his solicitor general. And I try to track the pressure from those actual legal positions from the administration. And then finally, a piece that I don’t think we could ignore. And it was right there in front of us. Even the week of the revealing of the indictment against Donald Trump, his attack on the judiciary, his constant personalizing of what judges are doing as if he has control over them. He owns them. He’s always making them the issue more than the law.
Leah Litman Yeah, it’s interesting because in some ways it almost seems like the justices, in my view, have to own Trump. You know. Part of the book is describing the bargain between the conservative legal movement and Donald Trump and the Republican Party to secure what they so badly wanted, you know, control of the federal courts and the Supreme Court in particular, which they have now achieved because of all that it could give them. And so I appreciate that like that aspect of the kind of like framing of the book and, you know, the arc of the narrative is just like the imprint that Donald Trump has had on the court and how the courts that we have are like attributable to that administration. So you just heard in the initial answer to the question toward some of the interpersonal slightly less substantive dynamics. And one of the items in the book that I wanted to talk about is some of the discussion surrounding Neil Gorsuch. So one representative passage from the book that I am just going to quote for a second is quote, Like his mother, Gorsuch lived by his own rules and interests. Once on the bench, he resisted any freshman roll and refused to bend to certain court formalities. He tussled with Chief Justice Roberts on matters of protocol, skipping the justices first private session and pressing for some time to speak at the investiture ceremony and quote, okay, so I appreciated this discussion and other parts of the book like it because on the heels of Gorsuch, his appointment, conservative commentators tried to pitch this narrative about how the chief trusted Gorsuch and loved Gorsuch and how Gorsuch was so beloved. And that’s why the chief justice assigned Gorsuch the anti-worker arbitration opinion in Epic Systems versus Lewis. And you’re telling us maybe that’s not the case if I if I read all of these passages correctly?
Joan Biskupic No, they were not. They weren’t. I vaguely remember that narrative. And that narrative was not accurate. There was plenty of tension, personal tensions between the chief and Neil Gorsuch. And just so our listeners know why I even brought in the mother, because I love the mother effect on this Neil Gorsuch. Met a very famous mother and Gorsuch. BURFORD She changed your name while she was here in Washington, as she was the head of the EPA. She was in charge of enforcing environmental regulations as a as the first woman appointed to that position by Ronald Reagan in the early. As soon as Ronald Reagan took office in 1981. And she immediately got crosswise with the Reagan administration because she wanted to roll back regulations as the administration wanted. But she went even further. And she so angered congressional Democrats, but also people in her own party who thought she was going too far and she ends up essentially getting run out of town. She said.
Leah Litman That doesn’t sound like anyone I know going farther than, you know, others in their party annoying them in the process. This is just not ringing any bells to me. I don’t know.
Melissa Murray I mean. The apple doesn’t fall far.
Joan Biskupic Here’s the thing. He’s a teenager at the time. He’s he’s just in in high school at Georgetown Prep, which we’re very familiar with, with.
Melissa Murray Georgetown Prep?
Leah Litman Feeder to the Supreme Court?
Melissa Murray We know some folks at the feeder school.
Joan Biskupic Like like the D.C. Circuit, Georgetown Prep. Yeah. So so anyway, so he’s aware of it. And it was a very trying time for his mother who wrote this wonderful book that was quite helpful called Are You Tough Enough? And it’s all about what she went through. And just one other little side to that. But just because I am so fascinated by his late mother story. She got crosswise with all sorts of Republican establishment people, including Ted Olson and folks in the White House counsel’s office where John Roberts was working at the time. So, yeah, because she was she was just she was so much her own person and she was just going to barrel through. And her tenure, of course, was short because of that. But but he was right there. And she writes in her book about how disturbed he was that she she ends up having to essentially quit. And he says you cannot you did nothing wrong. You shouldn’t have quit. And she recounts how upset he was. And I think that that is a memory that lives on in the son.
Melissa Murray Oh, my gosh. I can only imagine the chief justice whispering to Neil Gorsuch at his investiture. Tell your mom it was me. I love that for us.You’re sort of getting at this point that we have made repeatedly on episodes of the show that Justice Gorsuch is kind of an interesting personality on the court. And this idea that he sort of fits seamlessly into the dynamics of the court is perhaps overstated. We’ve heard lots of people sort of insinuate this over the years. Justice Sotomayor famously said that it took them a while to get used to his quirky sense of humor, but I think the tale is in the tape. So let’s bring in some, as we say, illustrative clips of the personality of one Neil Gorsuch. And this can give some added color to our conversation. So these are from the last week of oral argument in the second week of March, where Justice Gorsuch is characteristic humility and grace and kindness and charity toward the advocates and their positions was on display. So let’s roll those.
Clip Amicus briefs on our side. 14 amicus briefs, on the other hand, a lot of amicus briefs. I got so many friends, I can hardly stand it. It’s it’s with friends like that, you end up staying up late reading.
Melissa Murray That was a clip from Amgen versus Sanofi. And here’s another clip from Smith versus United States.
Clip In addition to the fact that why was this brought in the middle district of Florida, which I mean, everyone seemed to you were alerted pretty early on that that wasn’t the right venue. Are they just not that busy in the middle district? So so this was brought in the Northern Star. The Northern district should have brought in the middle district or in Alabama. I apologize. I’ve got the wrong district. So apologies to the middle district of Florida. They’re obviously very busy. Maybe the northern district isn’t. So I so I don’t know. We don’t know that went into the prosecution decision. But I think the northern district of Florida was the natural home for this, because that’s where all the harm was felt. That’s where the victim was.
Leah Litman My favorite part about this clip is the insistence that he can interrupt and like the indignant tone in his voice, even though he happens to be wrong. And this is not the first occasion where he has, like interrupted either his colleagues or advocates to insist on something that isn’t true and then like, needed to be corrected. And it’s just it’s very on brand.
Joan Biskupic Don’t you remember in his first?
Leah Litman Yes, the very. Exactly.
Joan Biskupic The map.
Leah Litman Yes, exactly. About the highways he gave the wrong highway.
Joan Biskupic Yes. And and and and he calls for an atlas to try to make sure that he was right. And of course, the chief loved that moment because it turned out the chief who he was quarreling with in public about which highway this was up in the Pacific Northwest was right. The chief was right. And that had to be acknowledged. Can I just mention one other thing about when he first came on and something. Substantive that that detail in the book you see in there the pacts that the chief justice made with Anthony Kennedy.
Leah Litman We’re going to get to those in a second. Yeah.
Joan Biskupic Yeah, you’ll get to those. But I just want to say that a Neil Gorsuch part that isn’t part of the deal in that case, he had just gotten in the court and he’s the one who writes that dissent from the Pavan versus Haven one. And I remember at the time hearing that the chief was not pleased that he wrote that dissent. But I think it set the tone that he was going, you know, he’s like, hey, I’ve got as strong a vote as anybody else here. I’m going to write whatever I want and I’m going to do it now.
Melissa Murray He’s like, Totally that guy in the fraternity who is like, I’m a legacy and, you know, no one’s hazing me. And like, I’m just doing whatever I want.
Leah Litman That’s the one that all of the other frat brothers most want to give the swirly to. Like, it’s it’s Neil Gorsuch. If you polled the colleagues. Right. And said, who do you most want to give this world to? I just I think it’s Neil. I do.
Melissa Murray It’s me. Hi. I’m the problem. It’s me. All right, so you’ve already sort of set this up, Joan, but in the book, you discuss some of the fraught negotiations between Chief Justice Roberts and about to depart Justice Kennedy over the court, taking up Masterpiece Cakeshop, which, of course, is the Colorado case about Jack Phillips, the Christian evangelical baker who refuses to provide cakes for same sex weddings. And this case was a precursor to Fulton versus the City of Philadelphia. And it’s basically the same kind of case as the one currently pending before the court. Now in 303 creative versus LNA. So that’s the wedding website case. Anyway, there were negotiations over whether or not to take that case. And those negotiations also involved another case that was part of the fallout from Obergefell versus Hodges. And that case, as you’ve noted, is Haven or Pavan versus Smith, which held that Arkansas had to offer the same parental recognition to same sex couples who were married as it did to married opposite sex couples because of Obergefell as protections for the constellation of rights and benefits that went with marriage. So can you tell us more about how these two cases interacted in the negotiations and the run up to Masterpiece Cakeshop?
Joan Biskupic Sure. Masterpiece, which ended up being decided in 2018, had the petition from Jack Phillips. The baker had just lingered and lingered and lingered and lingered. And the first vote was one not to take it. And Sam Alito had begun a dissent from denial. And it was a pretty fierce dissent from denial, saying we should take this case. This this man has been discriminated against based on his religion and he shouldn’t have had to make this cake.
Melissa Murray I’m so shocked that this was Justice Alito’s view. I’m shocked.
Joan Biskupic Jack Phillips had been sanctioned for refusing to bake this cake for these two gay men who wanted to celebrate their marriage while that was pending income. The Pavan versus Smith one and Anthony Kennedy, who wrote Obergefell versus Hodges just two years earlier declaring a constitutional right to same sex marriage, thought that they could just summarily reverse the Arkansas Supreme Court that had said, no, you can’t have two the names of two women on this birth certificate. And so but but a little known rule that isn’t made public, but I’ve learned about it is that you need six votes for summary reversal. So they essentially needed somebody from the dissent in Obergefell to join them to summarily reverse this. And the chief was willing to do that in the end. But the chief also really wanted a strong signal from Anthony Kennedy that if they took the Jack Phillips case, that he would be sympathetic to the baker’s plight. Now, you know, you need only four votes to grant. So once Neil Gorsuch came on succeeding Antonin Scalia, who had passed away just a few months earlier, they would have had the four votes to grant from the dissenters the Obergefell dissenters plus Neil Gorsuch. But the chief didn’t want to take up a Masterpiece Cakeshop case without knowing what Anthony Kennedy would do. Kennedy is the key on gay rights case. He was the key on gay rights cases. So there was a subtle understanding worked out between these two justices. And as I write in the book, the orders in both were conveniently released on the same June 2017 day. So here you have the court on one hand saying we’re about to take up this claim from this man who did not want to bake the cake, which would have signaled to a lot of people, Oh, is the court about to retrench somehow on Obergefell and the right to same sex marriage? But on the same day they also agree to summarily reverse the Arkansas Supreme Court decision and ensure that the two lesbian women could have their names on the birth certificate of their baby.
Leah Litman So those kinds of negotiations are supposed to be rare. Some people suggested they don’t exist at all. Do you get any sense for how rare that was like? Was this atypical or are other negotiations kind of between cases sometimes occurring?
Joan Biskupic My impression and you know, remember, I’m so totally outside that conference are were you know, law clerks on are allowed in. No administrative help is is allowed in. It’s just the nine that there are plenty of deals. Most of them are at the margins. They don’t involve like a complete, you know, a pact between two cases or a vote switch. But as you know, I found out about votes, which is, you know, the double vote of the chief in the Obamacare case, the switched vote in the census case, the Wilbur Ross case that’s been memorialized by this podcast. But the tough part is finding out exactly what happened, because as I write in the book, sometimes all of the justices do not know what has gone on between a pair of justices. Many times the clerks don’t know. You know, obviously, the clerk network is very strong and can often reveal things to their bosses. And then after the fact, to someone from the outside who who can win some of their trust. But I have discovered that sometimes these understandings are reached between justices that the clerks don’t know about and that all nine aren’t sure about. And some of the justices can remain baffled to the end of why a justice ended up altering or switching his or her vote.
Melissa Murray Another nugget that you put forth in the book that I thought was just so, so interesting about the personalities, like really revealing personalities was about Brett Kavanaugh. So Brett Kavanaugh, of course, is one of the three Trump justices who are appointed during this very tumultuous time at the court. And he, of course, replaces Justice Anthony Kennedy, for whom he also clerk. But unlike Kennedy, who was very much a swing justice and kind of was happy to do his own thing, whether it was like florid opinions with soaring rhetoric, but no actual doctrinal analysis. Brett Kavanaugh really cares what you think. And one of the things that comes out so beautifully in the book is Brett Kavanaugh was kind of a little insecure and wants you to think he’s a really good guy, even when he’s doing absolutely insane goblins stuff. So can you talk a little bit about why Justice Kavanaugh’s so needy?
Joan Biskupic Well. Actually, no. I don’t know why he sent me. I don’t know. I cannot address that, Melissa. But I can tell you what I found out. That I think is somebody who’s more qualified in psychology than I am right now.
Melissa Murray We’ll get to that after the show. Will get a little armchair therapy session.
Joan Biskupic Yes. Right. So but what I can tell you what I discovered, you know, look, some of it has been evident to any readers of opinions, the way he will often try to have it. You know, that appeasing Tony takes a digging of the Bostock ruling in 2020 when he rules against any kind of broader reading of Title seven that would favor LGBTQ workers, but then writes, But I’m, you know, I’m so impressed by their progress and isn’t this great?
Leah Litman I have a rainbow t-shirt. But yeah.
Joan Biskupic But the episode that I know has interested people and I was frankly glad to find it out because I thought it was very revealing. He votes with the dissenters in the census case, the case in which Wilbur Ross, the Secretary of Commerce, had wanted to put a citizenship question on the 2020 census. And originally, you know, as I said, the chief the chief was going to go with a majority to just let them do that. He ends up changing his vote. So in dissent are Justices Thomas, Alito, Gorsuch and Kavanaugh. Justice Alito, interestingly, breaks off and writes his own dissent on this. But Justice Thomas writes a dissenting opinion that Gorsuch and Kavanaugh join. That’s incredibly critical of the lower court Judge Jesse Furman, who was the district court judge in New York, who did an incredibly extensive and effective job of taking apart the administration’s argument for why they thought they needed to have this citizenship question on the census and who had who had actually started proposing that? Like, who were the what was the roots of it? Who were the political people who actually infected the administration in some ways with this this idea and how they carried it forward? And he found, you know, all the pretextual evidence of this. And Clarence Thomas in his dissent decides to really go after Judge Furman, saying, you know, accusing him of having a conspiracy against Wilbur Ross and that he was predisposed to rule the way he did. And Brett Kavanaugh signs on to that dissent, doesn’t write anything separately. He doesn’t encourage Clarence Thomas to take it out. And frankly, I just do have to say that, you know, Clarence Thomas is very much in the news right now. But Clarence Thomas dissents don’t usually have biting personal attacks against anybody. So this was a little bit of an unusual dissent by him. And I just wonder if some if someone like Kavanaugh might have said, look, do we really need to have that in there? But he didn’t. And he went ahead. And signed on to that kind of language. But then he separately without people knowing. Although I found out, he then wrote a note to Judge Furman saying, you know, I really respect you. Don’t you know, don’t be swayed by what I put in that opinion. I really respect you. And that, I thought, was indicative of his interest in, you know, I use the phrase double signaling in the book because there were other episodes I showed, but also just a desire to be liked and appreciated and to have it both ways to an extent.
Kate Shaw So there’s also t in the book about Mask gate. And some of our listeners will know. But for those who don’t, or just as a reminder, mask gate refers to when Gorsuch appeared at arguments without a mask when the justices were initially all masking. And then Nina TOTENBERG of NPR reported that it was suggested to him that he should wear a mask. He was sitting at the time next to Justice Sotomayor, who is diabetic and was taking masking very seriously. And you note that Gorsuch and Sotomayor issued a joint statement after the reporting which said, quote, reporting that Justice Sotomayor asked Justice Gorsuch to wear a mask, surprised us. It is false. While we may sometimes disagree about the law, we are warm colleagues and friends. So, John, you write that the chief was surprised by the statement and issued his own statement. And as we have pointed out, none of these statements, not the Sotomayor Gorsuch statement, not the chief statement, actually contradicted Nina’s reporting. So what did you make of all of this?
Joan Biskupic Well, it goes back to something we touched on at the beginning. These tensions between Justice Gorsuch and the chief. The chief, they’re hearing arguments that day, by the way. They’re hearing arguments. The chief is going about his business, trying to, you know, run the oral arguments and Justice Gorsuch and Sotomayor, who, you know, can be pals on some things. But this was sort of a strange thing for them to have joined together to want to, you know, reject the NPR reporting without actually even specifically taking issue with certain facts in the reporting, but leaving the implication that we will speak for ourselves and we’re essentially kind of speaking for the court in some way to tell you what happened here. And we’re not the ones who did it. So then everybody looks to the chief. Well, then, did the chief do this to the chief? Ask Neil Gorsuch to wear a mask of the chief, encourage people. So then the chief who hates to put out any public statement, you know, he there was no way he wanted to do that. But suddenly all the public attention went to him saying, well, then did you do it? And he says, No, it wasn’t me. And then he says, And that note that you referred to, Kate, came with an admonition from the public information officer that said, and this is all the chief will ever say about this topic. So, you know, it it became a federal case for no good reason. It was crazy in the beginning. I remember some people saying when there was an issue of did the chief ask people to wear masks or not. I remember somebody on Twitter saying once the chief said, I didn’t ask, saying, well, why not? You know, I mean. Why not? You know, why not at least think about how how much COVID was spreading at the time.
Kate Shaw It’s clearly an individual in perfect control of the institution that he is running, obviously. So we can’t let you go, though, Joan, without talking a little bit about the elephant in the room, which is, of course, the big leak in Dobbs. In the book, you discuss both some earlier, you know, kind of leak ish episodes, not the Dobbs, but other episodes. But then as to Dobbs, you talk about how the leak in Dobbs essentially froze in place the votes as they stood at the time of the leak. Could you elaborate maybe on both of those things a bit more?
Joan Biskupic Sure. And, you know, look, I have been lucky enough to find out information regarding the justices negotiations in conference. I’ve known things before. Other reporters have known and the public has known. But I have never been so fortunate to get a draft opinion of, you know, like Politico got. So I think, you know.
Leah Litman There’s still time. There is still time. Sam, if you are listening, you know where to find Joan.
Joan Biskupic Anyway, I, I think that, you know, what Kate sketched out about how it’s true. It did it did make it harder for the Chiefs to try to pick off anybody on the other side. And I have my doubts about whether Brett Kavanaugh was ever going to change his vote at all. So, you know, it might not have really made a difference, but at least in the moment, it just had the effect of halting all real negotiations. And as we all saw, it ensured that the very strong language of the draft opinion became the final product. Justice Alito changed so little in that. But, Kate, what’s happened when people asked me about the effect, they say, well, doesn’t that mean that it must have been a conservative justice or law clerk who leaked it? And I say no. First of all, I am, I believe, without having any concrete information that it was not a justice or law clerk from the right or the left, because there is an argument that, you know, okay, so it could. I’ve been a conservative wanting to lock in the votes, but it could have been a liberal, you know, really enraged by it and not realizing what the effect could be. But my theory is not that it was a justice or a law clerk. But setting that aside, I think it doesn’t help us understand the motivation of the leaker, but it definitely makes clear the effect of the leak.
Melissa Murray Well, Joan, I don’t know what else to say. Like, that was a mic drop if ever there was one. The book is called Nine Black Robes Inside the Supreme Court’s Drive to the Right and Its Historic Consequences. And let me just say, it is the kind of book that must be read. It absolutely demands a hot scone and some cucumber sandwiches because there’s just so much tea in here. We haven’t even scratched the surface. All I will say is mouth gate and you’ll know what I mean when you read it. But Joan Biskupic, thank you so much for being a strict scrutiny super guest. It is great to have you back and we loved the book. Thanks so much.
Joan Biskupic Thank you, guys.
Kate Shaw Before we go, a quick reminder that we are going to have our first grab bag episode with listener participation coming up when the court finishes oral arguments. If you would like to ask us a question, you can send us a voice memo to strict scrutiny, just one word, at Crooked dot com. Please keep those questions to 20 seconds or less. And when you send the voice memos in, if you’re okay with it, we would love to hear your name, what you do, and when you listen to strict scrutiny.
Leah Litman Unless your name is Taylor Swift, Meghan Markle, or Sonia, Alena or Ketanji, you are allowed to stay anonymous. But basically, you know, while you’re asking questions of us, we would also love to ask some questions of you and to share your answers with other listeners. So on these voice memos, even if you don’t want to ask a question, you can record something sharing your name. When you listen to the podcast, maybe if you have a favorite episode or two, I don’t know if you listen, you know, from your personal jet or your friend Haaland’s personal jet, or if you listen during your White Lotus moment on your superyacht or your friend’s superyacht to Indonesia. But you know, you can share that information with us and send them to strict scrutiny. One word at Crooked’s dot com and if you’d like that included on the show, please try to submit the voice memos before what, say, April 25th or 26th.
Melissa Murray Just a big reminder that Strict Scrutiny Merch is now available at the Crooked Store. Our latest collection has all of the excitement of a leaked ruling from the Supreme Court. But without any of the terror of losing any of those pesky fundamental rights. It’s just two really cool T-shirts, and we’ve already sold out of these pieces twice, so we wanted to let you know ASAP so you can grab something for yourself. And if we’ve been helping you get through this court’s current YOLO era, then this collection is for you. Head to crooked dot com forward slash store to check it out.
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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. Audio Engineering by Kyle Seglin. Music by Eddie Cooper. Production Support from Ashley Mizuo, Michael Martinez and Ari Schwartz. And Digital Support from Amelia Montooth.
Leah Litman But a conservative billionaire.
Melissa Murray Just a friend. And you say he’s just a friend. You say he’s just a friend. Oh, baby, you. You got what? I need.
Leah Litman That PJ. That PJ. No, no. This should be our outro. This should be our outro.
Melissa Murray Private jets, super Yachts, all of it.