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October 30, 2022
Strict Scrutiny
Open Season on Precedents

In This Episode

On Halloween, the Supreme Court will hear pair of cases challenging affirmative action in university admissions. Spooky! Janai Nelson, President and Director-Counsel of the NAACP Legal Defense Fund, joins Melissa, Kate, and Leah to preview the cases.

 

TRANSCRIPT

 

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Leah Litman Surprise. It’s a Sunday episode of Strict Scrutiny. Think of it like our version of Taylor Swift’s chaotic surprise. That is the extra three and tracks she released to her most recent album, Midnights. More seriously, we wanted to give you this episode early so you could listen to it in advance of the super big and important affirmative action cases that the court is hearing first thing on Monday on Halloween, and you could follow along with the arguments in those cases if you’re so inclined. We hope you enjoy and we’ll be back to our regularly scheduled Monday programing next week and going forward.

 

Melissa Murray All I want to say is that if you’re thinking like, maybe I shouldn’t vote in this midterm election because everything looks terrible and gas prices are really high and inflation, everything I just want to note, they literally took away your rights in June. And this is kind of like a proving ground. Like if you’re okay with it and you sit out this election, you’re basically saying, you know what? Take all my rights. Take them. All right. Now, like this election is a referendum not just of Joe Biden, but this court.

 

Kate Shaw Hello and welcome back to Strict Scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it. We’re your hosts. I’m Kate Shaw.

 

Leah Litman It’s me. Hi. I’m the problem. It’s me, Leah Litman.

 

Melissa Murray Why are you like this?

 

Leah Litman We all need to find our joy.

 

Kate Shaw I didn’t put any midnight references into the script.

 

Leah Litman I think it’s time to teach some lessons, Kate. That’s another line.

 

Kate Shaw I’m here to learn.

 

Melissa Murray Um. Okay. I’m Melissa Murray. Today, we’re going to preview the cases the court is going to hear in the first week of what the court calls the November sitting by which we know actually starts on the last day of October. So happy Halloween, America. Guess what? Justice Alito has some treats in store for you. And it may or may not be an apple with a razor blade inside. What to suit light your early like? Nope, nope, nope, nope. First up, we’re going to do some case previews and then we’re going to walk through some other developments in the lower courts and on the shadow docket. So, Leo, why don’t you take it away with the case that is the most hotly anticipated of the November slash Halloween. Spooky, spooky sitting.

 

Leah Litman Okay. So we are going to start with the biggest cases of the sitting, really two of the biggest cases of the term and, you know, many of the last terms as well. These are Students for Fair Admissions versus Harvard and Students for Fair Admissions versus USC, two cases involving the permissibility of using race in higher education admissions.

 

Kate Shaw And to preview these cases, we are delighted to be joined by Janai Nelson, who in March of this year became the eighth president and director counsel of the NAACP Legal Defense Fund. That is truly, let me just pause and say, one of the coolest titles in the world of law. But more substantively and more importantly, it is one of the most important positions in the world of law. If you’re someone who cares about justice and equity and multiracial democracy, long time listeners of the podcast will know that we’ve been privileged to host Janai’s incredible predecessor at the helm of LDF, Sherrilyn Ifill, as a guest on the podcast. And Janai we are totally thrilled to welcome you to the pod as the only person who could possibly have filled a Sherrilyn’s shoes. So welcome to the show. Thanks so much for joining us.

 

Janai Nelson Thank you so much for having me.

 

Melissa Murray So we’ve already laid a bit of foundation for these cases because I know Leah and Kate, you talked about these cases with Michelle Adams at your Ann Arbor Live show. So this is going to be a pretty brief introduction because you can always go back and hear that live show, or maybe you can’t because the audio was terrible. But well, live shows are live for a reason. Here’s the gist of it. Basically, the plaintiffs in these cases are arguing that the use of race in admissions is unlawful and the specific legal claims are technically different in the two cases. The argument in the University of North Carolina case is that the use of race violates the Constitution and specifically the Equal Protection Clause of the 14th Amendment. That is because the University of North Carolina is a public institution. The argument in the Harvard case is that Harvard’s use of race violates a statute Title six of the Civil Rights Act of 1964, which prohibits all institutions in receipt of federal moneys from engaging in, quote, unquote, racial discrimination. Of course, Title six is applicable because Harvard is a private institution. There’s also an argument in the Harvard case that’s not relevant in the USC case, which is that Harvard’s admissions practices discriminate against Asian-American applicants. And that actually is quite novel because as we’ll discuss in earlier affirmative action cases, affirmative action is presented as a kind of reverse race discrimination that really sticks it to white people. Now it’s kind of being reframed as something that precedes it, a kind of intra minority discrimination that sort of divides the minority community into different camps. So a very different kind of posture and one that I think is really meaningful and relevant.

 

Leah Litman So in the Harvard case, the district court held a 15 day bench trial with 30 witnesses. After the trial, the court found Harvard admissions process survived strict scrutiny because the university used race in a way that was narrowly tailored to achieve the academic benefits that flow from diversity. The court also found no evidence of racial animus or intentional discrimination. And the Court of Appeals affirmed that decision. The USC case similarly involved a lengthy bench trial and a district court conclusion that the admissions policy was constitutional. But the Supreme Court took the USC case before the Court of Appeals weighed in.

 

Melissa Murray So the two cases were originally consolidated for review, but now they’re actually being argued separately, likely so that Ketanji Brown Jackson, the newest justice who has decided to recuse herself in the Harvard case because she had previously served on Harvard’s board of Overseers. Terrible name. I think it’s just administrative thing. But they really I mean, I think we should really be canceling the whole term overseer as a general matter. But because she previously served on that body, she decided to recuse herself from the Harvard case. But that means she can still part. Dissipate in the USC case. Slow pause here. Just think about what would it mean to have a justice recuse herself from a case because the optics of actually participating in it, having previously served on the board of overseers look really bad. Like weird.

 

Leah Litman I can’t imagine another case where the optics of a justice’s participation, Melissa, might cause some public concern about propriety or bias.

 

Melissa Murray I mean, she’s obviously just being overcautious, obviously hysterical. Ladies, once again. Anyway, it’s just to say that we’re really glad that even though she had to recuse herself in the Harvard case, Justice Jackson is available to participate in the USC case because she was absolutely phenomenal in Merrill versus Milliken, which is the voting rights case that the court heard in October. And she was on fire there. So I am so, so, so glad that she’s going to be participating in this case. And I assume that during the Harvard argument, she’s literally going to be behind the curtain, like silently screaming, maybe even taking a couple of shots every time her conservative colleagues say colorblind, but hopefully she won’t be too blotto, that she can’t participate in the USC case. So I’m glad that she is preserved the opportunity for her voice to be heard. And this, I think in Merrill versus Mulligan, she preceded some of the arguments she’s going to be bringing to the affirmative action context. So both cases are going to be argued on October 31st. Spooky. Both have asked the court to overrule Grutter versus Bollinger, which in 2003 narrowly upheld the University of Michigan Law School’s use of race in admissions.

 

Kate Shaw And the history of race. Conscious government policies and admissions in particular has a history at the court that starts well before 2003 and Grutter. So back in the 1970s, when affirmative action policies began emerging as a means of remedying the historic exclusion of minorities from educational institutions and employment opportunities, these policies were quickly challenged by those who argued that they were basically reverse discrimination against whites. So in 1978, in the regions of the University of California versus Bakke case, the court took up a challenge to UC Davis medical school admissions protocol, which set aside a number of seats for underrepresented minorities. On the view that those students would graduate, they would serve underrepresented communities that were in need of physicians. And Alan Barkey, who was a white plaintiff, sued, arguing that this program basically precluded his admission in violation of his constitutional rights.

 

Melissa Murray What emerged from Bakke on the court were six opinions, and none of them in full had the support of a full majority of the court. So in one plurality opinion, Justice Lewis Powell delivered the judgment of the court. And then four justices, Justices Berger, Stuart Rehnquist and Stevens joined him to strike down UC Davis minority admissions program. The other four justices, Justices Brennan, White Marshall and Blackman, dissented from that portion of the decision, but later joined with Powell to find affirmative action permissible under some circumstances, though subject to an intermediate scrutiny standard of analysis. They also joined with Powell to reverse that portion of the judgment of the California Supreme Court that forbade the university to consider race in the admissions process.

 

Leah Litman Justice Powell’s decision in Bakke suggested that diversity could be a compelling state interest to justify the use of race. But because the decisions were so fractured, it was hard to tell whether that view or something like it had the backing of a full majority. And that was the issue that was before the court almost 30 years later in Grutter. So in Grutter, the court ruled that universities could use race in admissions decisions. Grutter said that strict scrutiny applied to the use of race in admissions, but that in the case the University of Michigan Law School’s admissions policy survived strict scrutiny and therefore was constitutional. Under the Equal Protection Clause of the 14th Amendment. It was constitutional because achieving classroom diversity is a sufficient, compelling government interest that justifies the use of race. And the students were getting holistic and individualized assessment. In a companion case, Gratz versus Bollinger, the court struck down the University of Michigan undergraduates approach to undergraduate admissions, which involved assigning points to individuals who are members of underrepresented minorities. And the difference in the volume for undergraduate admissions versus a professional school admissions likely made a constitutional, holistic review process more challenging for undergraduate admissions. But in Grutter at the majority suggested that there might be a sunset period for race conscious remedy. As Justice O’Connor’s majority said, they expect or maybe hoped that race wouldn’t be needed in 25 years, which would mean in 2028, I guess maybe because we would have solved racism and compounded structural disadvantages by.

 

Melissa Murray That that we heard her ire. Evan Thomas said she recanted that.

 

Leah Litman I was going to note that, but I would also note that I guess great news, America. We’re about to hear from this court that racism has been solved five years early. So everybody pat yourselves on the back. Check.

 

Melissa Murray Cross that off. Excellent. Good work, folks.

 

Kate Shaw Pour yourself a Ginni tonic. All right, so we’re almost done. So one more case. Just a flag. In 2016, the Supreme Court, in an opinion authored by Justice Kennedy, reaffirmed Grutter in Fisher versus Texas, too. So we have a series of cases which, you know, make clear that there is an important story decisis question in this case, as well as the broader question about whether the Constitution should be understood to prohibit all government consideration of race, regardless of the purpose of considering race or the costs of not doing so. And we should say we did a short episode of our spin off podcast, Irrational Basis Review about these cases. The episode is called Race Conscious Remedies. Check it out if you want a little bit more background on this.

 

Melissa Murray All right, Janai, I’ve got so many questions for you, because obviously this court loves affirmative action. They’re just they just want to bless affirmative action up and down the place, like they want to just uphold precedents. And I want you to tell me, how important are these cases in the long run and what’s at stake for ordinary Americans in these cases?

 

Janai Nelson Yeah, these cases are so important for us. They are a real test of the Supreme Court’s fidelity to its own precedent. You mentioned that the court loves affirmative action, and we can judge that by the number of times it’s taken up this issue that it first decided, as you all pointed out, in 1978.

 

Melissa Murray See, I was being snarky, but I might actually have been correct.

 

Janai Nelson Well, you know, it’s the kind of thing where it’s like that abusive kind of love, where they love the subject, but every time they get their arms around it, it comes out lesser for it. So affirmative action has gone before the court several times, but every time it seems to come back just a little bit narrower, just a little bit more difficult to navigate. And unfortunately, it also has what I think is something of a chilling effect in that some universities are concerned about how they can continue to use race conscious admissions, despite the fact that the court said in Fisher that universities should be given deference in terms of how they compose their student classes to enable diversity to enhance the learning experience. But what’s really at stake here is not only a test of the court’s willingness to adhere to its own precedent, to follow stare decisis. But more broadly, whether it has any self-awareness about the crisis in public confidence that engulfs this very court, I mean, I can’t even say it started with Dobbs, but certainly Dobbs was the most bold manifestation of of that crisis in public confidence. And given where our democracy is, given the numerous ways in which our democratic structures are being tested and threatened, the court needs to maintain its integrity as a reliable, objective actor, even though I think people can quibble with that assessment of the court. But it will only get worse if they undo affirmative action. And then in terms of just a practical consequence, affirmative action has helped to fuel the pipeline of diverse leadership in this country. We are still far, far from what we should be in terms of representation at the highest levels of government or the highest levels of any industry or segment of society. But affirmative action has helped to get us as far as we have gotten to date and to reverse that pipeline would be absolutely devastating, particularly at a time when the demographics of this country are shifting in such profound ways.

 

Kate Shaw So Janai, your organization, filed an amicus brief on behalf of 25 Harvard student organizations and alumni groups, and it made basically the array of arguments that you just kind of sketched out, you know, these practical arguments about the enduring need for race consciousness in admissions that likely and devastating effects that a decision overruling Grutter and prohibiting these kinds of policies would have on the creation of pipelines, on meaningful, broad representation sought at the highest echelons and kind of throughout our institutions. But I actually also thought it was so interesting the way the brief really explicitly made the arguments that you just started with about the court and its own legitimacy and the view of the public when it comes to the court and kind of the crisis the court finds itself in. Those arguments appear in the brief, and I’m interested in hearing about the decision to center those arguments really explicitly in the brief directed to the court. Do you want the justices to contemplate what overturning Grutter and disallowing you know, we can talk about what an opinion might look like if it overrules Grutter, but disallowing some or all forms of affirmative action. What that would do to the court as an institution?

 

Janai Nelson Yes, we thought it was important to center that part of the argument. There are many other reasons to uphold Fisher, to uphold Grutter. But what was important to us was to have. Have the court understand what message would be sent. What would be the effective outcome of turning its back on affirmative action? Because what that does is cements a perception of inequality in terms of the qualifications of black and Latino and certain Asian students and indigenous students who benefit from affirmative action. And what we’ve made clear from our time in the trial court, when we intervened on behalf of the 25 student groups and organizations that we represent, we made very clear in the evidence, bore out without any rebuke that these students, by the time they get to the point where race is considered in the admissions process, they have cleared every possible hurdle when it comes to merit. And all of these students under consideration are perfectly capable and admissible and competitive and worthy of being part of this institution. What the what the school is doing at that point is trying to determine how to craft a incoming class that has a diversity of viewpoints and backgrounds and stories where you can have the sort of organic learning and exchange that really is the hallmark of American higher education. And so we wanted to do is make sure that the court understood that by saying that we should somehow valorize test scores and grades and extracurricular activities in a way that erases someone’s racial or ethnic background and makes that less relevant than some other important contextual factors, is essentially putting the court’s imprimatur of inferiority on those students. And it is redefining the racial hierarchy that defines our country. That is a dignitary harm. That is a harm that we thought this court had distanced itself from in deciding Brown and overturning Plessy. And we felt it was critically important for the court to understand not just the legal issues that are clear, that make it obvious that this affirmative action race conscious admissions process should be upheld, but that the court has a role in its own integrity and what message it sends throughout society about racial equality through this decision.

 

Melissa Murray So, Janai, can I ask a question about Justice Thomas, who always takes sort of a contrarian view of race in these cases and certainly did in 2003 in Grutter and in his dissent in Grutter, he offered this idea that this whole idea of diversity and cobbling together this classroom experience of many different viewpoints, sort of commodified black and brown students, so that they could furnish a better educational experience for whites. And and that he sort of suggested that the schools that engage in these race conscious admissions policies are only grudgingly tolerating these students and not doing anything to really make their experience at these elite institutions especially robust and interesting and engaging and worthwhile for them. And so it’s a different slant on race where he’s kind of, you know, sort of turning it on its ear and arguing that the real racial injustice here is not limiting affirmative action, but actually continuing it and using these black and brown students as sort of pawns for this larger diversity rationale that really accrues to the benefits of whites. How do we engage that? Is it easier to engage that narrative now that there are two black justices on the court, or has he sort of intervened and kind of turn things on its head in a way that it’s hard to answer that actually, this isn’t what this looks like and this isn’t, in fact, what racial justice would look like.

 

Janai Nelson Yeah, listen, I think that it’s borne out in what we see in terms of the impact of affirmative action over the 44 years that it’s been legalized and implemented in institutions of higher education across the country. We know that the court rejected a remedial justification for affirmative action in Bakke and instead said that we could consider race for purposes of creating diverse classrooms for the educational benefits that it confers, not just on white students, but on all students, that a diverse educational setting is better for everyone involved. And we’ve seen that borne out over the 40 plus years since. And most poignantly, I think if you look at the array of amicus briefs in support of race conscious admissions from industry leaders across the spectrum, from institutions of higher learning to STEM companies to some of the top corporations in this country, we see that the diverse pipeline of leadership that comes out of this process of considering race and having not perfectly racially balanced classrooms, let’s be clear, but more racial balance than we saw before. Affirmative action. We see the value of. Diversity in the workplace. That is a direct product of what we see in our classrooms of higher education. We were so pleased to help to put together the coalition of companies that combined represent over 5.5 million employees worldwide and more than $3.2 trillion of annual revenue, saying that diversity matters and affirmative action is a necessity to the success of those businesses, to their innovation, to their creativity, to their economic success, and the people who benefit from affirmative action, be they black, white, Asian, Latino or otherwise, are the products of one of the most celebrated higher education systems in the world. So I have no problem pushing back on that narrative that we are somehow being exploited by given the opportunity to get a higher education at some of the best universities in this country. That’s exploitation. I think we would all gladly avail themselves of. And we see the benefits not only for those racial groups and ethnic groups, but also for our country at large.

 

Melissa Murray And some of the justices who are going to be weighing in here.

 

Janai Nelson Well, let’s say that.

 

Leah Litman So briefs making some version of this argument were among the briefs that the court found particularly powerful and persuasive back in Grutter, with the justices highlighting, among other things, you know, a brief by military leaders that highlighted the benefits of diversity to cultivating military leaders who would be in a position to actually lead the country. Maybe we can shift now to talking about some things that aren’t in the briefs or at least aren’t in all of them. And that’s about the history. So, Melissa, you alluded to how Justice Jackson’s participation in Merril versus Milligan, you know, pointedly focused on the history of the 14th Amendment and how it was adopted with race in mind in order to facilitate race conscious remedies. I am going to take a point of privilege and cite a Taylor Swift lyric here about how I find it dizzying. They’re bringing up my history, but you weren’t even listening, and maybe that was about Justice Jackson and Maral. I’m just going to float that possibility.

 

Melissa Murray I think it’s entirely possible, Leah. I think its exactly right.

 

Leah Litman Thank you. Thank you for validating this. If Taylor would like to disagree with this, she’s welcome to come on the show.

 

Melissa Murray I completely believe that vigilante shit is about SB eight. 100%.

 

Leah Litman Well, I have a different theory that Janai, I’ll spare you, but maybe we can return to later on anyways. So the history, you know, the Students for Fair Admissions brief authored by some geniuses, trademark Justice Kagan is pretty light on the history. And so I guess, Janai, I would love to hear you talk about like, what does the history of the 14th Amendment, the Equal Protection Clause, show or say about the permissibility of some race conscious measures?

 

Janai Nelson Yeah. So essentially there is an effort like what we’ve seen in so many spaces these days to co-opt the 14th Amendment, to co-opt the equal protection clause, to co-opt Brown versus Board of Education, and ascribe an entirely different meaning that serves the interests of a conservative minority, a very vociferous one, but conservative nonetheless, an extreme conservative minority of voices. And essentially, the theory is that Brown versus Board of Education, which was based on the 14th Amendment Equal Protection Clause, means that we cannot consider race at all, because doing so would be, as you said in your intro, reverse discrimination. It’s this concept of of colorblindness. And, you know, I think that what was so skillful in the Merrill versus Milligan argument, which I’m so proud to say, that one of our lawyers, Douglas Ross, who was just on your program, argued what was so incredibly impressive about what Justice Brown Jackson did is that she was able to point to the very text and the original intent behind the reconstruction amendments, of which the 14th is one, and make it as plain as day, because so many of us just don’t know history or don’t remember it, that they were intended to reverse the effects of the enslavement of black people in this country and the legal subjugation under which they lived and operated by making very clear that race could not be a basis for discrimination. Not that it could not be a basis.

 

Melissa Murray Wait. Are you saying the 14th Amendment was race conscious?

 

Janai Nelson I am saying that the 14th Amendment was not only race conscious, it was race positive. It was it was it was race visionary. It was race. All those things. Because it had.

 

Melissa Murray Does Justice Thomas know? Does he know? Has someone told him?

 

Janai Nelson I if he doesn’t know, now he knows. Right. So I think it’s. You know, let me quote Biggie. Since you’re quoting Taylor.

 

Leah Litman Dear reader, If it feels like a trap, you’re already in one.

 

Janai Nelson One. It really doesn’t require a whole lot of digging to figure this part out. This is a willful blindness on the part of some of the justices on the court and obviously those who want to see affirmative action overruled. But it’s very clear that the 14th Amendment was intended to be a remedial provision of the Constitution and also to give Congress the wherewithal to enact legislation that would fulfill the goal of ending segregation and ending, most importantly, the effects and lasting and durable impacts of entrenched, legalized racial apartheid. So when Justice Brown Jackson brought up that history in connection with the Voting Rights Act, it was really helpful to see how that backed some of the justices up on trying to embrace one of the most extreme interpretations of the Voting Rights Act. And I would say that that analysis is equally applicable here, where you have an organization that is purportedly one that is trying to advance fairness in admissions, attempting to co-opt and completely mischaracterize the Constitution and the key decisions that are part of the pantheon of legal victories. Part of the legal defense funds that have really helped to reshape our democracy and set us on the path of being a recognizable and cognizable democracy.

 

Kate Shaw And just a flag there. There’s a wonderful brief that’s a law and history brief that really walks through some of the history that, Janai, you were just talking about and not just the drafting and framing of the 14th Amendment, but the kind of series of pieces of federal legislation enacted, you know, right before right after the passage of the 14th Amendment, the Civil Rights Acts of 1866 and 1870, the Freedmen’s Bureau act like the language of these statutes and the debate around their passage, or make it crystal clear that Congress understood its 14th Amendment powers to include the ability to use race conscious measures consistent with the 14th Amendment. Indeed, that there was like an obligation to do so in order to actually implement substantive equality or at least move us in that direction. And I think the history is just crystal clear, and it is striking how little of it these plaintiffs include in their briefs, I think for good reason, because it’s just fatal.

 

Janai Nelson Because they can’t they can’t possibly recount that history and engage it in a way that isn’t completely laughable and try to get the court to come out with a different outcome. So the best thing to do from their vantage point is to ignore it altogether, which is why we have to engage it in our amicus brief so thoroughly.

 

Leah Litman And just as an example of I’m so glad you brought up like the co-optation of the Equal Protection Clause and Brown versus Board of Education. Like there are so many examples that we could point to about, you know, saving Brown for particular propositions. But, you know, these cases are about like the legacy of Brown versus Board of Education and the meaning of Brown versus Board of Education, which ended segregation in public schools. And just one very recent example of the inversion of equal protection and the law of discrimination. I can’t resist flagging a recent piece authored by Judge James Ho on the Fifth Circuit entitled Agreeing to Disagree Restoring America by Resisting Cancel Culture, in which he likened none other than Ilya Shapiro’s tweets questioning the qualifications of Joe Biden’s not yet announced nominee to the Supreme Court. Tweets suggesting that any black woman nominated would be a lesser nominee. He likened those tweets to, you guessed it, Martin Luther King’s I Have a Dream speech and Brown versus Board of Education like that is the inversion, that is the co-optation like and just a very clear example of it.

 

Janai Nelson Yes. Like a house of mirrors. You don’t even recognize the words that they’re speaking. And you know, what’s what’s most disturbing, though, is the extent to which these arguments get any audience before the Supreme Court, which takes us back to the very beginning of why this court is even entertaining. Yet another challenge to affirmative action so quickly after it decided it in 2016 and after over four decades of precedent upholding race conscious admissions.

 

Kate Shaw Right. We shouldn’t get inured to the fact that the court doesn’t typically take up these kinds of questions when there’s no dispute in the lower courts, when the you know, the rulings below are totally consistent with what the Supreme Court has said, the sort of guiding principles in these cases are. It’s clearly a sign that the court is just gunning to change the law again. And yeah, I mean, just to maybe one more beat on sort of the co-optation of Brown, you know, the opening of the plaintiffs brief, it is just you know, I was just really glad that we were going to be able to have you on on the show so we can talk about this. But the like the kind of claiming the mantle of. BROWN Right. And there’s this kind of tricky thing in the second paragraph of the brief where they cite Brown, but it’s actually parents involved. And that case is gloss on Brown and actually on the Brown. Oral argument, not on the opinion itself, but it just it’s galling just I think as a member of the public to read Brown deployed in that way and as a person who literally sits in Thurgood Marshall’s seat, it must be just exponentially more galling to see Brown deployed in this way.

 

Janai Nelson No, that’s absolutely right. Brown versus Board of Education was such a transformative case in the canon of constitutional cases in this country, but more so in what it did to advance us from really a system of of racial barbarism where we were segregated based on race. Black people and others were submitted to just the most ignominious conditions and laws. And that case ended legal apartheid in this country and is now being used to undo what is a very narrow and modest intervention to create more diversity in higher education. When we are very cognizant of the fact that our K-through-12 system still has the effects of our segregated past and that there are raw racial disparities that leave black and brown children in a worse position in terms of having opportunities to access higher education than white students. That’s incontrovertible. It is beyond any dispute, and the court has recognized this and nonetheless is willing to entertain these arguments that really will take away from this court’s legitimacy, not just in terms of forcing it to embrace a reality that just doesn’t exist. But Brown conferred integrity on this court. Brown showed that the Supreme Court could see a precedent in its past that no longer met with modern conditions, that no longer served it as a growing, evolving democracy, and could correct society by using its power as the third branch of government to reverse course. Calls this court’s ability to serve our ongoing evolution as a democracy and to question. And so for it to trade Brown in this way is extraordinarily dangerous.

 

Melissa Murray Do you think that the court is going to invoke Justice Marshall in the way that they invoked Justice Ginsburg and Dobbs? And if they do, will you go full Kyle Bragg, that is the SEIU leader in the New York affiliate and issue a press release telling them to get Justice Marshall’s name out of their mouths because that would be epic. And I would be here for it.

 

Janai Nelson I am going to hope.

 

Melissa Murray Just say yes.

 

Janai Nelson I am going to hope that I don’t have to answer any of those questions that the court finds a way to do what is right in this case. We are obviously under no illusion about the threat that affirmative action faces and about the composition of the court. But I think the stakes in this case are so incredibly high for all the reasons that I’ve mentioned, that I’ve got to think that the court respects itself enough to not upend the 44 years of history, certainly on the heels of of what it did in reproductive rights and and will do the right thing here.

 

Leah Litman Show yourself some self-respect. Supreme Court. Show yourself some Self-Respect.

 

Janai Nelson There you go.

 

Melissa Murray Respect yourself.

 

Kate Shaw Exactly.

 

Janai Nelson That’s right.

 

Melissa Murray I want that energy for myself, Janai. But going into this argument, I think I’m a little pessimistic about how this is going to come out. What do you think are the most important points for the advocates to emphasize at oral arguments? And what do you think is going to be important here? And what should the public understand about how this all goes down?

 

Janai Nelson Well, I know that the oral list will do a phenomenal job. I’m also hoping that some of the justices will do the work of making clear what the distinctions are between Plessy and Brown and what the court’s trajectory has been from Bakke to Grutter and Fisher. That’s important for the American public to understand the history that this rests upon, to correct some of the myths that have been swirling in the media and in some conservative discourse about the potential harm of continuing race conscious admissions. So I think that people should be listening for an education because I’m sure that some of the folks on the court will be trying to lay the groundwork and set the record straight in terms of what’s what, so as not to muddy and disregard or disrespect the important history of this court and of the canonical cases. But I also think it’s important to get the facts right. You may be hearing that.

 

Leah Litman Sorry, it’s my puppy. She can hear the dog whistles in the briefs.

 

Janai Nelson Exactly. Exactly. All of the truths.

 

Melissa Murray Leave it at Melody. Leave it in.

 

Janai Nelson Yeah, but but all of the, the factual misrepresentations about the students in particular that we represent and the students and alumni who represent just a, a wide variety of groups of interests, of decades of persons who attended these schools and who are standing up in support of affirmative action and recognize that their educational trajectory would be totally different if they were not able to take advantage of race conscious admissions and a class that was composed with that in mind.

 

Melissa Murray Well, while you’re getting all of that education, also listeners, I think there’s also a strict certainly drinking game that you can also play. So when argument starts at ten in the morning on Monday, Halloween, Monday, pour yourself a festive beverage, maybe a Jenny tonic, maybe a hot gin toddy, maybe just a pumpkin spice latte with a little shot of pessimism. And every time you hear colorblindness or Plessy or Brown, take a drink and we’ll see where you are at the end of this. Now, let’s see if you can go on and continue your day. I’m guessing that.

 

Kate Shaw By the time the trick or treating starts, it’s going to be quite a scene.

 

Melissa Murray It’s yeah, you’re right. I mean, you’re going to be blind, right? I mean, color blind, drunk. But it’ll be interesting. That’s our plan. We’re going to be live tweeting all of this, obviously. So. Janai Nelson, thank you so much for joining us. This has been really fantastic. We can’t wait to talk with you after all of this is over.

 

Janai Nelson It was great to be here. Thank you all.

 

Melissa Murray All right, listeners, again, this is going to be argued on Halloween morning. So get all of your hot toddy fixings together, get your Halloween candy for a spooky surprise at SCOTUS and we will all listen along.

 

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Leah Litman Okay. And now we will move on to the other cases where we will be once again asking some version of the sometimes I wonder which one will be your last lot and will this be one of them? I’m just going to keep doing it. Melissa, you can’t stop me. You can’t stop me. Melissa turned her video off. I would just like this noted. That is not okay. I feel very personally attacked. That is a macro aggression.

 

Kate Shaw You used to do that, wait didn’t you used to do that when Leah would get real deep in habeas weeds. And actually we were about to do that. So this is both.

 

Melissa Murray Perfect.

 

Kate Shaw Responsive.

 

Melissa Murray Yes, I was.

 

Kate Shaw And yes.

 

Leah Litman Okay. The next case we wanted to preview is Jones versus Hendrix, a super important habeas case in which the court will consider whether people who are convicted of something that it turns out is not actually a crime or are sentenced to more time in prison than the law says they can serve. Have a remedy for that violation.

 

Melissa Murray That is.

 

Leah Litman Okay.

 

Kate Shaw It seems like the answer.

 

Leah Litman That is literally the question in this case. This is one of those cases where I feel like we should do a segment on the podcast where we ask normies, like, here’s the legal question that the court is going to confront. And then a Normie, i.e., like a non-lawyer, will be like, Well, duh. Obviously the answer is, if you’re convicted of something that isn’t a crime, you have a remedy.

 

Melissa Murray This reminds me of those billboards on the highway, like, have you been convicted of a crime that’s not actually a crime? Call Bert. Right.

 

Leah Litman The Supreme Court is basically going to say take to the sea, right? They’re going to do the blah. blah, blah for for this one.

 

Melissa Murray It’s all so depressing. What’s the basic issue in this case, Kate?

 

Kate Shaw So it’s a little complicated. I mean, it’s obviously the distillation of it that Leah just offered is exactly right. But the statutory scheme is a little bit complicated. So let me try to elaborate a bit without getting too in the weeds. Basically, the idea is if you have a federal prisoner who did not argue that the statute under which he was convicted didn’t criminalize his conduct, but where he did not make that argument because circuit precedent was squarely against him. And then when he is barred by 28 USC Section 2255 from filing a successive motion to vacate his conviction whether he can file a habeas petition under Section 20 to 41. If and this is what Leo was just alluding to, if the Supreme Court then rules after his conviction and rules in a decision that is retroactive. So it does apply to the conduct for which he was convicted. If they rule that the statute under which he was convicted didn’t actually criminalize his conduct, and that is what happened here.

 

Melissa Murray So like the circuit precedent was wrong and he never argued the circuit. He never argued against the circuit precedent because it was against him. And now it turns out the circuit precedent is crap.

 

Kate Shaw It was wrong. The court later says it was say later that it was wrong and the conduct was not criminal.

 

Melissa Murray Well this seems very straightforward. But dun dun dunnn.

 

Leah Litman And yet and yet the case turns on the meaning of the so-called savings clause of section 2255. As a general matter, federal law prevents prisoners from filing what are known as successive motions. That is, motions after their initial one, except when it comes to newly discovered evidence or new rules of constitutional law. But the savings clause allows an inmate to file a habeas petition if that remedy under 2255 is inadequate or ineffective to test the legality of the detention.

 

Melissa Murray And the petitioner in this case, Marcus Jones, was convicted of being a felon in possession and making false statements to acquire a firearm. At that time, eighth Circuit precedent held that the government did not have to prove a defendant’s knowledge that he is a convicted felon. Under the felon in possession statute, Jones filed various appeals and post-conviction challenges on other grounds, including motions to vacate his conviction under Section 2255. But then in 2098, in a case called Raif, which we talked about extensively on this podcast, the Supreme Court held, as a matter of statutory interpretation, that the government must prove that a defendant charged with being a felon in possession knew of his status as a felon. And that didn’t happen in the Jones case because, again, at the time, the eighth Circuit held that that wasn’t required.

 

Kate Shaw Right. So the question here is whether he can raise this argument in a habeas petition. Most circuits have held, yes, under the savings clause and 20 to 55, Jones can raise his claim in a habeas petition. The Eighth Circuit adopted the minority position, and that’s actually a position that was pioneered by then Judge Gorsuch when he was on the 10th Circuit. And that position is that, you know, the saving clause does not permit him to proceed using habeas here. The federal government actually agrees that Jones shouldn’t get to proceed, but it isn’t defending the judgment of the eighth Circuit. So the court appointed an amicus as it sometimes does, and here appointed former Kavanaugh clerk Morgan Ratner, who’s defending the judgment and arguing that this clause never applies. When the change in law involves a matter of statutory interpretation, federal government takes the position that no, actually the saving clause exception to the bar on, you know, these successive motions does preserve a narrow category of claims based on intervening statutory construction decisions. But just that, you know, here Jones can’t get the benefit of Rafe. So I think that the seemingly straightforward obviously answer to the question that Leia posed at the beginning of this conversation is, you know, likely not going to be with the opinion in this case looks like.

 

Leah Litman And because the fund just never stops at 1/1 street. We also have another case we wanted to preview Cruz versus Arizona, which I will distill into the following question. Can states avoid enforcing constitutional guarantees because they repeatedly refused to do so? So I’m a little general, but. But I’ll get into the weeds. Just give me a shot. Okay. So.

 

Melissa Murray Not at all reductive.

 

Leah Litman The question is specifically about state post-conviction review review in state courts after your initial trial and appeals. So we talked some about state post-conviction review procedures in Reed versus Gertz, which is about getting access to DNA testing after your conviction. The question in this case is when can a state court effectively refuse to apply governing Supreme Court precedent in state post-conviction proceedings, maybe because it’s abandoned or because stare decisis is for suckers, or because the Supreme Court has declared open season on any Supreme Court precedents that GOP appointed judges might not like. Those are some theories.

 

Kate Shaw Those are theories. Those does seem kind of sound. So specifically, the question here arises from Arizona’s refusal to apply the Supreme Court’s decision in Simmons, which said that in death penalty cases, you have to tell the jury if the defendant isn’t going to be eligible for parole, if the jury rejects the death penalty. Right. Basically, you have to tell the jury, look, if you guys reject the death penalty, the defendant has no chance of being released if in fact, that is the state of the law in the state where this trial is occurring.

 

Melissa Murray And Simmons arose out of South Carolina. And that is all you need to know about what happened in that case. Just kidding. For years, Arizona courts refused to apply the decision on very questionable bases. Arizona formally authorized both natural life and life sentences, and life sentences meant someone is eligible for parole after 25 years. But Arizona then abolished parole for felonies in 1994. So parole wasn’t actually available. So.

 

Leah Litman And yet still, the Arizona court said Simmons doesn’t apply, even though people convicted of felonies are not eligible for parole. And so after years of flouting Simmons, the Supreme Court in a 2016 per curiam decision, Lynch versus Arizona was like, No, really, our decision in Simmons applies in Arizona. And they vacated an Arizona death sentence because Arizona hadn’t informed the jury that the defendant was never going to be eligible for parole. So naturally, defendants in Arizona filed state post-conviction petitions invoking Lynch and the Arizona courts in those post-conviction proceedings said you can’t raise the Lynch claims. And their theory was pretty wild, like kind of a definitional heads I win, tails you lose kind of situation. So there’s a state rule that you can only file a state post-conviction petition when there’s been a, quote, significant change in the law. And the Arizona courts are like, well, applying sentence, Arizona wasn’t a significant change. Since everybody knew and should have applied. It’s no big deal.

 

Melissa Murray Stop.

 

Leah Litman I’m serious.

 

Melissa Murray Wait, wait. So they’re not applying it. The Supreme Court is like, no, seriously, you have to apply this. And they’re like, nothing has changed.

 

Leah Litman Nothing has changed. Because their theory is like when Lynch applied cements to Arizona, the court wasn’t making new law, much less a significant change.

 

Melissa Murray But it was telling you to do the old law, which you weren’t doing.

 

Leah Litman This is the problem. Their theory is it’s so obvious Simmons should have applied to Arizona and doing so didn’t require changing or expanding. Simmons That you can’t file a claim now in state post-conviction that the Supreme Court has told Arizona to apply. SIMMONS But you also couldn’t file one before because the Arizona courts were refusing to apply Simmons.

 

Melissa Murray This is just like rewarding bad behavior.

 

Leah Litman That was what the Supreme Court’s did in the SBA case, right? They are inviting states to nullify decisions and rights with which they disagree. And that’s part of what I was joking about, like when I suggested the court has basically declared open season on precedence, you know, that the justices disagree with. And here in Lynch, like, guess who dissented from that decision? Justice Thomas and Justice Alito. So, like, is it worth sending over a shot seeing whether the court is actually going to enforce that decision now? I mean, the state might think so.

 

Kate Shaw Arizona is like it’s working for Texas, so we may as well give it a shot.

 

Melissa Murray Big Wonder Twins Energy.

 

Kate Shaw It’s not going to be happy week. The first week of the November sitting. The second week is also going to be jampacked. I’m not sure if it’ll be any more uplifting, but we’re definitely going to be closely watching the cases in that week. Those cases include the equal case, Holland versus Brackeen to Loki. But I think really important administrative law cases, an important case about whether you can sue under Section 1983 to challenge legislation enacted under the spending clause. But dear listener, you’re going to wait until our next episode to go deep on all of those.

 

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Kate Shaw So let’s take a few minutes to talk about some additional developments and breaking news from the lower courts.

 

Melissa Murray First, we have the latest installment of an ongoing segment that we are tentatively titling. The Fifth Circuit did what or the Fifth Circuit broke what? I mean, it could go anyway. Last fall, the Fifth Circuit was allowing the flagrantly unconstitutional SB eight to go into effect. That was the first time that we issued this segment. And then last summer in Casey versus SLC, the Fifth Circuit found various aspects of FCC enforcement to be unconstitutional. We actually joined friend of the pod, Jon Stewart. Is he a friend of the pod? I guess we can say that.

 

Leah Litman Yeah, I think we can call that.

 

Melissa Murray He’s our friend. Like our dear friend. Jon Stewart joined us to break that down. Actually, we joined him to protest. I mean, what are facts, anyway? This week, the all Trump panel of the Fifth Circuit held that the method of funding that Congress chose to use for the CFP is wait for it unconstitutional.

 

Leah Litman So the court relied on the appropriations clause of the Constitution, which said no money shall be drawn from the Treasury, but in consequence of appropriations made by law. And the Court’s theory was that the Congress’s appropriations power is so exclusive that the Court of Appeals gets to tell Congress that they can’t use their appropriations power to appropriate a separate, independent funding stream to the CFPB.

 

Melissa Murray Wait, wait. Are you saying the Fifth Circuit’s doing politics and not law?

 

Leah Litman You know. It certainly doesn’t look like law to me because.

 

Kate Shaw But what if you start the opinion with the Federalist 38, then it has to be law.

 

Leah Litman Then its automatically law. No, this is the latest instantiation of originalist, hot boxing, or maybe like anti administrative hot boxing or deregulatory hot boxing. But, you know, the idea that the appropriations clause requires this is insane, like the money given to the agency is appropriated by law. It’s just Congress in a law, right. Set up a different funding mechanism.

 

Melissa Murray And it wasn’t there then time that they’ve done that.

 

Leah Litman And it’s not the only time they’ve done this right. The Federal Reserve Board has an appropriation scheme that isn’t dependent on annual appropriations, as does the FDIC.

 

Melissa Murray And obviously all of those are.

 

Kate Shaw Unconstitutional and games until originalism literally brings down the global economy. Like I am not really even joking. Like I actually.

 

Melissa Murray Think because in 1778 we didn’t have an economy, we were bartering and that’s what we should keep that.

 

Leah Litman Originalist case for perpetual recession. That is, that is.

 

Melissa Murray I love this for us.

 

Kate Shaw We’re well on our way folks. Yeah.

 

Melissa Murray Because when you’re talking about inflation and gas prices, Democrats lose. That’s the whole plan, folks. That’s the plan.

 

Leah Litman My transition to the next case is we’re going to be the originalist case for other economic woes.

 

Melissa Murray I like that. Smooth flowing. Like it.

 

Leah Litman I’m nothing but smooth.

 

Kate Shaw I’m not going to transition in a smooth transition out Leah. But we wanted to flag that an eighth Circuit opinion. The circuit is basically giving the Fifth Circuit a run for it’s kind of YOLO money just in this last week. So the eighth circuit issued an order. I still don’t understand what to call like. It’s styled as a stay. It seems actually to be an injunction and it maybe has the effect of temporarily putting on hold the implementation of the Biden administration student loan forgiveness plan. Right.

 

Leah Litman That sounds right to me.

 

Melissa Murray I think the technical term is kibosh. It is not actually a stay or an attorney should just come off.

 

Kate Shaw YOLO, kibosh, labels be damned. They didn’t really matter what to call it, but basically it was like a you know, they didn’t like dark Brandon’s move here and so they decided to stop it. But plan as people I’m sure no would cancel up to $10,000 in student loans for certain borrowers. And then there’s additional forgiveness for Pell Grant recipients. And tens of millions of people have already applied. The administration has said it will start actually erasing debt in November. But there have predictably been some challenges by opponents of forgiving student loans. So first, a group of Wisconsin taxpayers filed a suit and the lower courts correctly found that just being taxpayers isn’t enough to get a federal court to listen to your arguments about why something the government is doing is unlawful.

 

Melissa Murray Which every first year law student knows.

 

Kate Shaw I mean, I don’t even know what what every first year law student is going to know a year from now. Truly like yes it was so crazy. Never really. Are you saying like surely even this Supreme Court is going to see how ridiculous this effort is.

 

Leah Litman That was what I said about the taxpayer state. Yeah. That Wisconsin.

 

Kate Shaw You know. Yes yeah, yeah. Yeah. And you’re right. The Wisconsin group tried to get the Supreme Court to intercede and just Justice Barrett, acting alone, rejected that request without any comment. But in this case, some Republican states have filed suit. Their suit was dismissed on standing grounds in the district court. But last week the eighth Circuit stayed the order, dismissing the complaint and purported to somehow block implementation of the program. And it just not clear what authority. They have to do that. They were just, you know, enjoining a policy there and joining a policy, I think functionally that the lower courts never even addressed the merits of. But, you know, the circuit is clearly getting ideas from the Fifth Circuit. And so here we are.

 

Leah Litman Look, it’s because if you look at Article three, it says the judicial power shall extend to cases and controversies and major questions that Republican appointed judges don’t like. So did its.

 

Melissa Murray Analysis idea and really has to be deeply rooted in the history and traditions of this country, which it obviously is.

 

Leah Litman That was what Federalist number 30 was about, by the way.

 

Melissa Murray Yeah, yeah, for sure. In other news, Senator Lindsey Graham is fighting very, very, very hard to avoid testifying before a Georgia grand jury that is looking into former President Trump’s efforts to change the outcome of the Georgia election. Graham was subpoenaed to testify before the grand jury, including about phone calls he personally made to election officials. He went immediately to federal court arguing that the Constitution’s speech or debate clause shielded him from such inquiries. And he was actually partly successful in the district court, which placed limits on what he could be asked. But that court would not actually block his testimony entirely, and neither would the 11th Circuit. They basically told him that the speech and debate clause did not go that far. He has since filed an emergency application before the Supreme Court and wait for it listeners. He is represented by our good friend, friend of the POD, former White House counsel. Don McGahn of Jones Day. And they’ve asked the court to intervene to issue an emergency stay. And as we’re recording the circuit, justice for the 11th Circuit. Wait for it. While Clarence Thomas has issued an administrative stay, this does not necessarily indicate how he or the full court will vote on this issue. But it does suggest that unlike his colleague, one Justice Ketanji Brown Jackson Justice Thomas does not have the same recusal energy going on right now. So he is not recusing himself, it seems, in cases relating to January 6th and any attempt to intervene and the results of a validly conducted election. And that all seems copacetic.

 

Leah Litman Yeah. I can’t think of any reason why he might need to recuse in those cases, or why there might be an appearance of bias or impropriety for him to participate in cases about communications related to overturning the results of a duly conducted election. Because no one he knows or is close to or with whom he definitely does not.

 

Melissa Murray Do we know, ladies, what maybe?

 

Kate Shaw I think Georgia might be the one state she wasn’t communicating with. I see.

 

Leah Litman Nothing that we know about.

 

Kate Shaw Occasions and we’re not going.

 

Melissa Murray To see it all again. It doesn’t have to be an actual ethical violation. He just has to give the appearance of impropriety to be really problematic. But again, this is a court that’s kind of like whatever optics who.

 

Leah Litman Speaking of democracy, being up on the up, we have a subpoena for the former president, Donald Trump. The January six committee has now subpoenaed Trump to provide documents and testimony related to their charge and investigation. My guess is this is unlikely to go anywhere before the results of the midterms. And if, as projected, Democrats lose the House of Representatives, this subpoena is going to become moot when that new majority dissolves the January six committee.

 

Melissa Murray I know The New York Times had all of that polling, and it’s one poll and there are other polls that suggest that maybe it’s not going to be this Republican. But that’s all I want to say, is that if you’re thinking like, maybe I shouldn’t vote in this midterm election because everything looks terrible and gas prices are really high and inflation, everything I just want to note, they literally took away your rights in June. And this is kind of like a proving ground. Like if you’re okay with it and you sit out this election, you’re basically saying, you know what? Take all my rights. Take them. All right. Now, like this election is a referendum not just of Joe Biden, but this court.

 

Leah Litman If you want that subpoena to actually go forward, you better get out and vote so we can have a good time with that subpoena for documents and testimony. I mean, look, that’s by far not the most important reason. I mean, most as you’re saying. Yeah, well, I mean.

 

Melissa Murray Look, I know everyone’s talking about democracy’s on the ballot and it seems like really sort of elusive and esoteric for people to sort of figure out what that means. Here’s what it means in concrete terms. They took your stuff. If you’re not going to go to the ballot box and say, you can’t take my stuff, they’re going to take more of your stuff, stop taking your.

 

Kate Shaw Stuff. Here is your bodily autonomy.

 

Melissa Murray And everything else

 

Kate Shaw That’s the most important stuff. Right. But that’s, I think, the big thing that they just took. And I mean, so so the Senate.

 

Melissa Murray But not the last thing.

 

Kate Shaw No, it is. No. Well, I think it somewhat does depend on what happens in November, at least in terms of the kind of peace this court has, this conservative supermajority. And at the moment, defense is the most important thing. But there’s still a ton of lower court vacancies hanging on to the Senate is, you know, for the Democrats is absolutely a possibility. And if that happens.

 

Melissa Murray Julie Rippleman on the first circuit.

 

Kate Shaw Can and where she’ll hopefully be confirmed before either way.

 

Melissa Murray I don’t know like we don’t know what’s going on. Like, I mean, she just had her hearing.

 

Kate Shaw Well, hopefully they’re going to do in the lame duck everything they can, regardless of whether there’s going to be a changeover in January. But the holding on to the Senate for the Democrats is a very real possibility. But obviously it’s going to come down to turnout in a lot of critical states. So just everything was just said. So true, so important.

 

Leah Litman I just want to like echo and underscore one thing that Melissa said in like a slightly different perspective about. Like they just took away this fundamental right that is so important in such profound ways to so many people’s lives. And the question is like, are there going to be consequences for that? Because for many years we heard talk about how some progressives on the left this was happening even in the lead up to Dobbs, like they wanted the court to just overrule Roe because they said, if that’s going to happen, the Republicans, the court would face electoral consequences. I was never especially sympathetic to that narrative, both because it minimized the profound human suffering that would happen over the period of time that it might take to provoke a political backlash. But also because I thought it was like overly simplistic and ignores how voting and electoral processes work. If you look at anything that has happened in the past. But the point is, if that doesn’t happen in the very first election after again, they just so fundamentally disrupted something that is so important to, again, like people’s control over their bodies, their families, their lives, their destiny. Like what would give them a second’s pause before any future decision in which challenges to their legitimacy, the power of the court or political pushback are being dangled in front of that. There is no reason to pause if this doesn’t have any consequences. And that’s one thing. And then the second is, you know, as someone who lives in Michigan, when you say democracy is on the ballot, like democracy is on the ballot, because what happens in 2022 will affect what happens in 2024 since in a bunch of statewide races. You know, Melissa, I know you narrated like a piece about this. We are electing secretaries of state, statewide officials, attorneys general who are supposed to certify the results of elections in states. And if you are electing election deniers to those positions, what’s going to happen right.

 

Melissa Murray I’m guessing elections will be denied.

 

Leah Litman Right. Exactly. And so, like, these are concrete things that could happen, almost happened right in 2020. And I am also despondent and scared and frustrated about so many things as my narration about basically all of the court’s cases suggest. And yet I am still right out doing everything I can, voting, among other things, and like it is worth it for you to do that as well.

 

Melissa Murray Get in the game. Get in the game. It’s go time.

 

Leah Litman Exactly. On a more uplifting note, can I now share my theory about vigilante justice?

 

Kate Shaw Yes.

 

Leah Litman Okay. So here’s here’s my theory. I’m going to read some lines and then I’m going to float the theory. I don’t start shit, but I can tell you how it ends. Yeah, the ladies simply had enough. While he was doing lines and crossing all of mine, someone told his just blank crimes to the FBI. I think this is about Justice Kagan’s clapback to Sam Alito. Right. And like all of the narratives about the court’s legitimacy, look at this. I don’t start shit, but I can tell you how it ends. The ladies simply had enough. I’m sticking with it. This is my theory.

 

Melissa Murray The lines are obviously not illicit substances, but just bad decision writing.

 

Leah Litman Exactly. Exactly. Lines from the opinions in Dobbs or like lines of institutional propriety. And again, if Taylor Swift, if she disagrees with this assessment.

 

Melissa Murray Come on the pod Tay.

 

Leah Litman She’s welcome to come on the podcast and discuss this with me and tell Justice Kagan that actually her lyrics in vigilante shit aren’t about her. And, like, we can process this as a group.

 

Melissa Murray Taylor. Taylor can come on.

 

Leah Litman That’s my offer.

 

Melissa Murray This is a Karlie Kloss free zone. She can come. Yeah, like she can come. It’s great.

 

Leah Litman Yeah.

 

Melissa Murray Do, do we need to end.

 

Leah Litman Post Bruen fallout and then.

 

Melissa Murray Okay. Oh, what is this post Bruen fallout, Kate? Like, I’m guessing. I know.

 

Kate Shaw It’s bad. It’s bad. As you said. It’s not just Dobbs. It’s really I mean, so, you know, Bruen reminder was a June case in which the court struck down the.

 

Melissa Murray June 23rd. Justice Clarence Thomas’ birthday. Happy birthday to me.

 

Kate Shaw They’re really marking all the big events. Thomas’s birthday, Halloween.

 

Leah Litman And these schedule the independent state legislature case for Pearl. Harbor Day.

 

Kate Shaw Oh, my gosh.

 

Leah Litman Pearl Harbor Day. The attack on America. Just going to float that one.

 

Kate Shaw Well, I had caught that. Yeah. So, you know, I don’t know. Irony is dead. Irony is alive. I’m not sure which at the Supreme Court but so. Bruen June case the court strikes down this New York law that required people who wanted to carry concealed weapons to show some need or reason to do that. And in striking that law down, the court announced this new and totally ill defined standard for evaluating all gun regulations, which was basically that they need to be grounded in the nation’s historical tradition of firearm regulation. And now less than four months post Bruen, I think it’s pretty clear that all hell is breaking loose when it comes to lower courts originalist, hot boxing about gun laws. These laws are going down left and right in recent weeks. Just like to tick off a few things that have happened. The district court invalidated New York’s ban on handguns in wait for it places of worship. This is after invalidating social media background check requirements and bans on guns at domestic violence centers and summer camps. Although that ruling has been stayed by the Second Circuit, West Virginia District Court Court invalidated a federal prohibition on possessing a firearm with removed or obliterated or altered serial number. With this, you know, kind of like a freelancing in the opinion about how, you know, there’s not an analog in history to limits on possessing firearms without serial numbers because there were no serial numbers.

 

Melissa Murray I mean, everyone knows Alexander Hamilton had a barcode scanner. People like.

 

Kate Shaw There were no serial numbers. There were no summer camps in 1791. Ergo, all these laws must fall. That is basically the level of analysis.

 

Leah Litman QED.

 

Kate Shaw These days. Yeah, well, I mean, but that’s what the court has unleashed. I think to the extent that it was a little unclear just how the lower courts were going to implement the kind of madness of the Bruen method. It’s becoming clear and it’s really scary.

 

Leah Litman Yeah.

 

Melissa Murray Spooky.

 

Kate Shaw Cool. On that note. Is there is there a Taylor Swift note we can end on that’s going to be more uplifting?

 

Melissa Murray Mastermind Justice Thomas. Mastermind.

 

Kate Shaw Yeah. Yes. That’s definitely not uplifting. But it it’s true.

 

Melissa Murray And on an uplifting note, I went to my 20th law school reunion where a whole bunch of law students came up and said that they were fans of the show. So thank you all for listening. Thanks for saying hi. When I call out Alphonse. Caroline and Rosemary. Thanks for saying hello and introducing yourselves. And thank you for continuing to listen wherever you are.

 

Kate Shaw So Senator Booker was the reunion and I saw a picture a cute picture with him.

 

Melissa Murray He he maybe I don’t know who’s going to be on the pod first, Taylor Swift or Cory Booker, but.

 

Kate Shaw But he might he might entertain an invitation.

 

Melissa Murray I I think so. I think so.

 

Kate Shaw Okay.

 

Melissa Murray I also resent the people on Twitter who talked about how short I was compared to him, like focus people.

 

Kate Shaw Your a perfect height.

 

Melissa Murray Obviously. Obviously.

 

Kate Shaw Okay, that’s a better note to end on.

 

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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. Digital Support from Amelia Montooth and special thanks to Janai Nelson for taking the time to talk to us today. It was great to have her.