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October 17, 2022
Strict Scrutiny
Pigs, Prince, and Proven Innocence

In This Episode

Kate, Melissa, and Leah recap some of the cases argued at the Supreme Court last week: Reed v. Goertz, National Pork Producers Council v. Ross, and Andy Warhol Foundation for the Visual Arts v. Goldsmith.  Plus, there’s a lot to catch up on in court culture, including judges trying to cancel cancel culture, and another round of Ginni Tonics.

 

TRANSCRIPT

 

Melissa Murray Yeah. It’s recording now. I’m good. All right, so we’re not talking about Prince, Andy Warhol, Prince or Princess. Andy, we’re.

 

Kate Shaw Not Prince Andrew. Yes, Prince and Andy Warhol.

 

Melissa Murray I do think. What I wanted to add for that one, we should do a little discussion of what do you think everyone’s favorite Prince song is, like. I think Justice Alito’s is Sexy Muthafucker. What do you think?

 

*laughs*.

 

Melissa Murray Shaking that ass. Shaking that ass.

 

Melissa Murray 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 Melissa Murray.

 

Kate Shaw I’m Kate Shaw.

 

Leah Litman And I’m Leah Litman.

 

Melissa Murray Today, we’re going to be recapping the cases the court heard last week. We’ll also note the grants. These are the additional cases the court’s decided to hear for this term. And we are going to wrap up with something you’ve all been waiting for a healthy and tea filled court culture segment.

 

Leah Litman So first the recaps. This week, after a blockbuster opening, the court settled into a seemingly more mundane diet of cases. But even though these cases didn’t have the obvious barn burner appeal of cases like Meryl versus Milligan, they still are very consequential. So the first case up we wanted to recap is Reade versus Gertz, a civil rights case about how individuals who are convicted in state courts can get access to post-conviction DNA testing, that is, testing of DNA evidence after they are convicted.

 

Kate Shaw And even if you haven’t heard about this case by name, you may be familiar with the person it involves. And that’s Rodney Reed, whose case came to national attention when serious questions about Reed’s innocence arose. So for people who aren’t familiar with the case, Rodney Reed is a black man who was sentenced to death by an all white jury for the abduction, rape and murder of Stacey Stites, a 19 year old white woman. REED Sperm was found inside Stites body.

 

Melissa Murray So in 2019, the Texas Court of Criminal Appeals stayed Reed’s execution indefinitely to review compelling evidence that Reed may have been wrongfully convicted, including information that Reed’s and Stites had a consensual sexual relationship, that Stites, his fiancee, was abusive, and that Stites, his fiancee, when he was in prison for kidnaping and assaulting another woman while on police duty, allegedly said he killed Stites. Reed is seeking access to DNA testing of the belt that strangled Stites. So there’s also some important case background that is some previous Supreme Court decisions that are relevant to this case. Celia, do you want to tell us a little bit about some of them?

 

Leah Litman Yes. So in an earlier case called District Attorney versus Osborn from 2009, the Supreme Court held that people who are convicted in state court generally do not have a federal constitutional right to access post-conviction DNA testing, even if that post-conviction DNA testing could prove their innocence. Unclear why the court is so hostile to allowing people to prove their innocence. But in that opinion, the court also held that if a state does provide access to post-conviction testing, its procedures must be fundamentally fair. Then, in a later decision, Skinner versus Switzer 2011, the court held that you can challenge a state’s procedures for post-conviction DNA testing under Section 1983, the federal civil rights statute that allows people to sue state and local officers who violate their constitutional rights. And the constitutional claim underlying Skinner is that denying people access to DNA testing that could potentially exonerate them denies them due process of law when a state’s procedures aren’t fundamentally fair.

 

Kate Shaw And at the specific question presented in Reed is when the statute of limitations for bringing this kind of section 1983 action begins, that is the time period you have to actually bring a case that argues the state was wrong to deny you post-conviction DNA testing, and specifically whether it begins to run at the end of state court litigation regarding DNA testing, including any appeals or denials of motions for reconsideration or at the moment, the first state court. A state trial court denies a request for DNA testing.

 

Melissa Murray One potential complication to this case is whether the court’s previous decision in Skinner would come out the same way today. That decision was 6 to 3, with Justices Thomas, Alito and Kennedy dissenting. Those justices would have held that a person seeking access to DNA testing can never use the general civil rights statute to challenge a state’s failure to give them access to DNA testing. Rather, they must challenge the state’s failure to give them access to DNA testing in a federal habeas proceeding. And sorry, this is wonky and complicated, but it was also an issue in one of the cases the court heard last term.

 

Leah Litman If you have.

 

Melissa Murray To challenge the state’s refusal to offer you access to post-conviction DNA testing and habeas, there’s a chance you won’t be able to challenge the lack of DNA testing at all, given the many statutory restrictions on federal habeas review. And Justice Thomas at least seemed to want to relitigate Skinner at one point, asking Mr. Reed’s counsel precisely what liberty interests your client has been deprived of.

 

Leah Litman I think there’s a little rich irony of the tenor of this case being the justices, you know, having some idea that maybe there is no due process violation when someone who is convicted of a crime isn’t allowed access to DNA testing that might exonerate them. And yet in at least two confirmation hearings for these justices, there were allegations that the justices were somehow being denied due process when, you know, there was testimony that we had these justices engaged in rape.

 

Melissa Murray Liberty for me, not for thee.

 

Leah Litman Right. I mean, you can’t even reconcile this on grounds of like bro rights or due process, given that the defendants in these cases are also men. So I’m just trying to find a through line here I am struggling and failing. Umm. Okay. So the petitioner in this case, Rodney Reed, is the civil rights plaintiff who was convicted in state court. And he argues that the statute of limitations begins to run when the state court litigation denying access to DNA testing finishes, including any appeals. And that’s because, he says, a statute of limitations begins to run only when a plaintiff has a complete and present cause of action. And for a claim alleging that state law procedures violate due process, that doesn’t occur until the state’s process, including any appellate proceedings, actually finishes at oral argument. Justice Kagan was kind of all over this idea.

 

Kate Shaw And there’s a very practical reason that this view seems like a sound one, which is a concern about the consequences of a rule that says you basically have to sue. The moment the trial court denies you access to testing, and that’s because that kind of rule would lead inevitably to parallel state and federal litigation. So you’re challenging the denial in federal court while your state proceedings remain ongoing and all of that, you know, might potentially result in federal courts adjudicating constitutional issues they might not otherwise need to decide. Or as several justices raised at oral arguments, the federal courts would just stay the proceedings anyway. So it’s not clear why you would force someone to run to federal court if they’re not going to get anywhere until the state proceedings are done. And Justice Jackson was all over this point at the oral argument.

 

Melissa Murray So how did the argument go? It became clear at some point in the argument that the precise issue in this case was a little bit narrower than some people thought going in and actually than the way the issue in the case was presented. So the dispute in this case seems to be about whether the statute of limitations began to run after an initial appellate court decision in Mr. Reed’s case, or after the appellate court denied Mr. Reed’s motion to reconsider its decision affirming the denial of DNA testing. So a trial court denied Mr. Reed’s motion for DNA testing. And then the Texas Court of Criminal Appeals said that’s right. Mr. Reed then sought reconsideration of that decision, and the Texas Court of Criminal Appeals rejected that motion for reconsideration. And then the Texas Court of Criminal Appeals said, among other things, you can’t access DNA testing if the DNA has been, quote unquote, contaminated through subsequent handling. And there seems to be agreement that you couldn’t sue before the appellate court waited. That is right after the trial court ruling.

 

Leah Litman And Justice Alito was really torn between two ways of interpreting the fact that this case is now about an ostensibly narrow issue. On one hand, he wanted to say, while in most cases there won’t be much time between the state appellate courts original decision and when the appellate court denies a motion for reconsideration of that decision. So therefore, I’m just going to rule for the state and against a criminal defendant since it’s no big deal. On the other hand, he also laid the groundwork for, you know, what we have previously called a peak Alito concurrence, in which he would explain why if he somehow, against all odds, ultimately did rule for the defendant in Mr. Reed here, this ruling would basically only be applicable to Mr. Reed and no other criminal defendant would benefit from it. So Justice Alito was stressing this is going to be a case specific and really quite narrow question still, after the argument, it’s not totally clear how this case is going to come out. You know, I take it it was somewhat clear where Justices Sotomayor, Kagan and Jackson were harder to read. Justice Barrett and the chief and Justice Kavanaugh didn’t ask any questions.

 

Kate Shaw So we will see what happens at bottom. You know, it’s important to remember the case is really about remedying wrongful convictions and convictions of the innocent. There are a lot of people who have looked very closely at the evidence in this case and who believe that Rodney Reed is innocent. And this case is really about whether he’ll be able to get access to the DNA testing that could prove that. And I was actually really glad so much of the case was about these kind of technical, procedural questions. And Reed’s lawyer at the very end kind of brought back in some of the evidence that Melissa, you mentioned earlier on that raises real doubts about the potential innocence of this individual who is facing death at the hands of the state. And, you know, the case is not just about Rodney Reed. We know that innocence convictions have wildly disparate impacts. So the National Registry of Exonerations recently issued a report finding that black defendants are seven times more likely than white defendants to be wrongfully convicted. And the risk increases even further. If the murder victim was white, as was the case here.

 

Melissa Murray We should also note that the court’s own record on wrongful convictions isn’t great. So 30 years ago, Justice Scalia wrote an opinion criticizing one of his colleagues, Justice Blackman, for concluding that the death penalty was unconstitutional. Justice Blackman said that he would, quote, no longer tinker with the machinery of death and quote. He wrote that the problem is that the inevitability of factual, legal and moral error gives us a. The system that we know must wrongly kill some defendants. In response, Justice Scalia wrote that in that case, Collins versus Collins Black men had chosen a relatively mundane death penalty case to announce his view rather than a case that involved more brutal facts. And then he went on to invoke the facts of another case that wasn’t really even on the court’s docket at the time. It was about the rape and murder convictions of Henry McCollum. When McCollum’s case eventually did come before the Supreme Court, Justice Blackman would have heard the challenge. But Justice Scalia voted to decline certiorari.

 

Leah Litman And in case you couldn’t tell where this is going, Henry McCollum would later be exonerated of the crimes he was convicted of. And on the basis of DNA testing done downtown, you would think that there would be some kind of humility in light of that experience. And yet.

 

Melissa Murray Humility for thee. But not for me.

 

Leah Litman *laughs* Right, I see how this works. Another case we really wanted to recap was National Pork Producers Council versus Ross, a major dormant Commerce Clause case.

 

Melissa Murray This list is like the Charlotte web of cases. Every time I think about this case, all I think about is some pig.

 

Leah Litman I think, Well, okay, so we’ll go into like my alternative regulatory regime in order to convey some of what California is trying to do. But it involves Charlotte’s Web and the movie, babe. But but let’s let’s get out the facts.

 

Melissa Murray I miss my mom!

 

Leah Litman Right? That’ll do, pig. Okay. So National Pork Producers Council is probably the biggest arm in Commerce Clause case on the court’s docket since the Swedenborg case in 2005, which was about interstate shipment of wine. And more recently, the court heard another case that was about the collision of the dormant commerce clause in the 21st Amendment in 2019. Tennessee Wine and Spirits versus Thomas.

 

Melissa Murray So this is a challenge to a California statute that prohibits any business from selling, quote unquote, pork meat in California. That the business knows or should know is the meat of an animal that was confined in a cruel manner, or is the meat of the offspring of an animal that was confined in a cruel manner? And the stated purpose of the law is to prevent animal cruelty and the risk of food borne illness. And if you’ve been living in California recently, like this is all been sort of a web of regulation that has really been clustered around foie gras. For the most part. Umm, California has banned foie gras because it involves treatment of animals that would be considered cruel. But this isn’t about foie gras. It’s about pigs and pork meat.

 

Leah Litman And really like horrible conditions in which fags are kept. Right. These are designed in part to prevent, you know, gestation crates that confine pregnant pigs in like two by seven foot cages for £400 animals. It’s just. It’s just really.

 

Kate Shaw It is also wild that the conditions that you’re describing, this is not like an isolated event. There are think the briefing says that there are half a million pigs killed every day in the United States. And California voters just basically decided that they want the conditions under which those pigs, you know, live and die to be better than they generally are.

 

Melissa Murray So the issue in this case is whether this California statute violates the dormant commerce clause. So, Kate.

 

Kate Shaw Oh, you’re going to take me to the foundation.

 

Melissa Murray Yeah I’m going to make you do it.

 

Kate Shaw Everyone, don’t fast forward. This is important stuff.

 

Melissa Murray What is the dormant commerce clause? The sleepy commerce clause? What is it?

 

Kate Shaw It is, yeah. Or the negative commerce clause, as Justice Stevens used to call it. It is not, despite his name, a clause at all, which is the first confusing thing, but not in any way the last about the dormant commerce clause. It’s basically a principle that the court has implied from the text and the structure and the history of the Constitution that is understood to limit states ability to burden interstate commerce. So specifically, states under the dormant commerce clause are not supposed to be able to discriminate against out-of-state commerce. So California pretty clearly couldn’t say you can only sell milk from California farmers, but not from Wisconsin farmers. It couldn’t impose a tariff on milk from Wisconsin, but not milk from California. And states can’t unduly burden interstate commerce either. So that would be by enacting regulations that have minimal benefit but impose substantial burdens on interstate commerce. So the pork producers in this case argue that the California law violates the dormant commerce clause in two maybe different ways. Maybe two. You know, maybe these are two different versions of the same argument. It wasn’t totally clear either in the briefing or the oral argument, but there are basically two main arguments. One is that this California law violates the extra territoriality principle of the dormant commerce clause. That is, that pork producers argue that the clause contains this principle that states can’t regulate transactions that occurred outside the state. And that’s what’s happening here. By prohibiting sales inside the state, they’re basically imposing their, you know, preferred regulatory scheme on other states. And the challengers almost like abortion. Right. Well, we’ll get there. Definitely.

 

Melissa Murray Sorry.

 

Kate Shaw But.

 

Melissa Murray Stairs in reproductive rights? Sorry.

 

Kate Shaw Right. No, no, no. Yeah, it’s it’s certainly related. But so in terms of the basic arguments on the table, the producers also argue that the California law is invalid under a balancing test that weighs the burdens on interstate commerce against the benefits conferred by law. And that is something known as pike balancing. And that’s not a test. The court is used to strike down a state law in decades, but it was all over the oral arguments.

 

Melissa Murray Well, it’s probably been abandoned, Kate. We’re going to find out anyway.

 

Kate Shaw In a Dropbox.

 

Melissa Murray Yeah. Yes. No books, just babies or pike balancing. Right. This case will be interesting to watch because some justices have questioned whether the dormant commerce clause is actually a thing. And by some justices, I mean my favorite textual healer, Justice Clarence Thomas. So this could be one of those weird, strange bedfellows, odd lineup moments where you have some justices like Justice Thomas, who don’t believe the dormant commerce clause is a thing, joining up with other justices like the Democratic appointees who are going to say, I imagine the dormant commerce clause doesn’t prevent states from adopting health, safety and welfare laws about the kind of businesses that are going to be conducted in their state, even if those laws have effects outside of the state.

 

Leah Litman This is an important case that is about state’s ability to enact health, safety and environmental rules. Given that most state laws or regulations are going to have some effect on interstate commerce or impose some burdens on interstate commercial enterprises, you know, you can think about climate issues in states where there might not be a lot of car manufacturing, but the state imposes emissions limits, like could you say the state is effectively regulating out-of-state or interstate commerce? You know, that could really limit state’s ability to enact environmental or climate regulations or think about safety regulations that limit materials you can use in construction. What if those materials tend to be made out of state?

 

Melissa Murray And as I suggested earlier, another potential important aspect of this case are its possible implications for access to abortion and the ability to travel interstate to obtain an abortion. If the court says the only legislation that violates the dormant commerce clause is legislation that’s designed to stick it to out-of-state commerce or to give some economic advantage or protection to in-state businesses rather than legislation enacted for health, safety or morals. Then maybe that would mean the dormant commerce clause doesn’t prohibit states from penalizing interstate travel to obtain abortions. So potentially a big thicket there. So how did this argument go, Kate?

 

Kate Shaw It was a difficult argument to read. I genuinely have no idea how the case is going to come out. So maybe let’s start by just canvasing the different positions that are on the table. And then we can get into some moments from oral argument and speculate a bit about what the justices might be thinking. I think some of them are feeling genuinely cross pressured about this case. So at some points the challengers to the law. So that is the pork industry supported interestingly by the federal government, seem to be arguing for some combination of the following propositions. So, one, a state can’t enact laws premised on the view that particular out-of-state activities are immoral. So here the problem with the California law would be that the reason the California enacted this law is because California thinks housing pigs in these conditions is immoral, and California doesn’t want to be complicit with this kind of immoral activity. But the view is California just can’t project its morals in this way on two other states. So stated this way the implications for laws regulating, say, medication, abortion being provided out of state or residents obtaining out of state abortions are clear. Other times the position was, well, maybe California couldn’t enact this law for any reason, given that the burdens on the pork market are so severe. So it’s not just that it’s it’s moral opposition. Whatever the reasons California can’t an act a law like this or maybe it couldn’t enact a law premised on the immorality of these transactions, given the significant burdens this law imposes. But another similar law that was less burdensome, maybe because it was a state with a much smaller market, say, for pork products would be permissible under the dormant commerce clause. All of these arguments seem to be on the table.

 

Melissa Murray Again, as Kate suggests, all of these theories are being tested during this oral argument. So Justice Sotomayor, for example, pointed out how the California law isn’t just about morality. It’s also backed up by health and safety rationales. So I wonder if she’d watched that movie. What was it, Pandemic or Contagion, the one with Matt Damon and Gwyneth Paltrow, where a huge pandemic starts because of the way a bat is like a dead bat flies into a pork processing plant. Do you remember this?

 

Kate Shaw It was like now all of a sudden it was a number one Netflix film.

 

Leah Litman That kind of sounds like Borat.

 

Melissa Murray Yes! That was the one! And it was all happening in Minneapolis. I thought you would have known this Leah, but basically the whole movie you find out at the end is set in motion because there’s like a poisoned bat who like a pig eats, and then it just sort of sets off this whole thing. Anyway, I wonder.

 

Kate Shaw Different different topic. But Fast Food Nation is also like has some just truly horrifying depictions of the conditions in which, you know, most meat is, you know, lives and dies in this country. But, we’re digressing.

 

Melissa Murray I was thinking. Maybe she’d seen this movie and she was like, you know, like we could have another pandemic because of, like, these poor conditions. I just wondered, you know, justices are just like us. Just us. Anyway, Justice Kagan also was testing out some of these theories. She wondered whether it would be problematic for the court to say that the burdens here are severe because California is a big market, because on a theory like that, smaller states like Wyoming, for example, could enact these kinds of laws, but bigger states like California would not be able to. And so Justice Kagan was sort of playing that out. She also wondered why it was coherent for the challengers to say California could ban pork being sold in the state, which would have an enormous effect on the pork industry, but couldn’t only ban pork made in particular ways from being sold in the state, as she said. And I think she’s right. It doesn’t follow the newest justice. Justice Jackson wanted to know whether it mattered that California might be able to further an interest in avoiding its residents, being morally complicit in this method of raising pork by requiring pork that is produced from immoral conditions to be labeled rather than outright banning it. So let’s play that clip.

 

Clip All right. So with my other set of questions is about the pipe balancing. So let me ask you, would there be a problem under Pike if instead of banning sales based on morality concerns or whatever else, California allowed the sales but required the pork to be labeled. You’ve said a couple of times that you suggested that labeling was fine.

 

Melissa Murray I kind of love this again. Masters Tools.

 

Leah Litman So this is what I was thinking about, like, how about California? Instead enact some sort of informed consent requirement where they require someone to like sit down, watch, babe, write, read Charlotte’s Web, and then watch Charlotte’s Web and then wait 24 hours before purchasing any pork that has been raised in inhumane conditions. Just a thought.

 

Melissa Murray Or alternatively, you know, I want to be exempt from this like this law, because it would make me complicit in a sin where I was like, I love the energy here.

 

Kate Shaw The second lawyer defending the law. So Mike Mangan, the California SSG, was the lead lawyer defending the California law. But there was also a ten minute argument by an amicus from the Humane Society, I think. And he was very much seeking to try to appeal to the justices by suggesting in honestly what felt like kind of a strange way to me that this kind of law was distinguishable from all the other kinds of laws that the justices might have been worried about opening the door to, because we have this deep history and tradition of regulating the conditions of production of meat and food, but meat in particular, and that there’s like deep theological foundations for doing that. And it felt a little bit like pandering to me, quite honestly.

 

Melissa Murray Is it, though? I mean, like Schecter Poultry was like part of the the whole flap around Schecter Poultry was that it regulated the conditions under which chicken and other poultry products were manufactured and it had a real consequence on kosher.

 

Kate Shaw Right. The Dr. family was a kosher butcher in Flatbush, but that’s not the basis on which if you think that’s like the deep underlying theory of a factor poultry.

 

Melissa Murray I don’t know the deep underlying theory of check poultry. I just think it’s like it was an interesting aspect of structure poultry that isn’t actually part of the sort of normal discourse of it. But you mean like there’s a religious underlay to it that we don’t really hear about.

 

Kate Shaw But yes, there were certainly those strains in the last 10 minutes of the argument, just Jackson was all over this possibility of labeling pork. And at one point it generated this kind of funny observation from Justice Sotomayor. So let’s play that here.

 

Clip We have marketed it already. Pork marked as organic, crate free, antibiotic free, and beta agonistic free. I have no idea what that means, but I know it’s there. I’ve seen it in supermarkets. Okay.

 

Kate Shaw I just loved her signaling that she is still the people’s justice and she personally goes to the supermarket, which I don’t think most of them do. And I totally believe that she does.

 

Melissa Murray Actually know that. She does. Like I know that she does.

 

Kate Shaw But you can say no more.

 

Melissa Murray You know, when she’s not in D.C., she’s like hang around New York City. And like sometimes she pops into bodegas and stuff and, you know, I mean, she knows about crate free, you know, she knows all about that stuff. But in some ways, the most revealing exchanges in this oral argument came when the justices began to consider the implications of California’s argument that states can limit and state commercial exchanges based on the idea that out-of-state commercial activity is immoral. So Justice Kagan wanted to know what the challengers and the federal government thought about this possibility. So let’s roll the tape.

 

Clip I mean, just to take an extreme example of this, Mr. Kneedler, suppose we imagine ourselves back into slavery days. Would it have been impermissible for a state to have said. We’re not going to traffic in products that have been produced by slavery. I think the logic of our position would say yes.

 

Melissa Murray And then of course, the justices thought about the present day implications. And it’s just, I don’t know, really revealing to hear what different justices were thinking about. That is what they’re wondering if states can do what they think states might try to do or in some instances maybe what they think a state should be able to do. If California’s law is constitutional. So again, stares and reproductive rights.

 

Kate Shaw Extremely interesting to hear Justice Barrett on this.

 

Melissa Murray Very interesting.

 

Kate Shaw Right. So let’s play a clip of Justice Barrett wondering if California is allowed to do this. California or other states might apply this method of regulation to other contexts.

 

Clip So could you have California pass a law that said we’re not going to buy any pork from companies that don’t require all their employees to be vaccinated or from corporations that don’t fund gender affirming surgery or that sort of thing.

 

Melissa Murray I mean.

 

Kate Shaw I feel like we need to take a bit to talk about this. On the one hand, her use of, I think, the correct term gender affirming surgery is an interesting one. On the other, it did suggest to me that the information silo in which she resides is one in which the moral panic is in full bloom. So that you know.

 

Melissa Murray Stares and Leslie Rutledge.

 

Kate Shaw Right.

 

Melissa Murray Leslie Rutledge is the attorney general of Arkansas who recently had a great interview with our good friend.

 

Kate Shaw Jon Stewart.

 

Melissa Murray Yeah. Check it out.

 

Leah Litman Yeah.

 

Kate Shaw Has Justice Barrett checked it out, do you think?

 

Leah Litman I’m not sure if that exists in her information silo.

 

Kate Shaw Probably not.

 

Melissa Murray A big black blob over Jon Stewart. Leslie Rutledge.

 

Leah Litman Yes, she only heard Leslie Rutledge’s comments. No idea who was asking the questions.

 

Melissa Murray Womp womp womp womp womp womp? And then Leslie Rutledge speaks. What about Coach Kavanaugh? Didn’t he have something to say here?

 

Kate Shaw Yeah. So he’s a let’s play him too. So he raises the following possibility.

 

Clip So what about a law that says you can’t sell fruit in our state if it’s produced handled by people who are not in the country legally? Is that state law permissible and it’s not. How is it different from this law?

 

Leah Litman And here is what comes to Sam Alito’s mind when he thinks about morals, legislation involving commerce. If you’re asking yourself what Sam Alito thinks is a moral listener, prepare not to be surprised.

 

Clip If a state says, we don’t want a particular product to come into our borders because we think it was produced in an immoral way. So. So, Your Honor, perhaps why isn’t that apply equally to a law that says you can’t bring any products into our state if they were produced by employees who did not have the right to work, the right to not to join the union.

 

Leah Litman Yes. It appears Sam Alito thinks that union regimes are immoral.

 

Melissa Murray But I thought he was the champion of the working man. Or is that only when they are defenseless and unarmed? The New York City subway after commuting from a hard day’s work in Manhattan to the outer boroughs.

 

Leah Litman And then ugh a union official tells him to get the working man out of his mouth.

 

Melissa Murray Take my name out of your mouth. Yes. Um. Sam Alito also seemed committed to searching for a narrative in this case about why California is a villain. And, you know, I appreciate that Sam Alito is always on message. Like, I mean, he is prosecuting the case like the federal prosecutor. He was at various points. He called California both a behemoth and a bully.

 

Kate Shaw So, so, too, two points on that. One, projecting a little bit.

 

Melissa Murray Oh, I mean.

 

Kate Shaw Not a behemoth, but a bully?

 

Melissa Murray The CA in California definitely stands for cancel culture.

 

Kate Shaw It made me want to go back. And of course, I haven’t done this, but there have been all of these gratuitous invocations in oral arguments and in opinions. Of course, the one that springs to mind is that weird line by Justice Scalia, I think in his Obergefell dissent, in which he’s like the nine lawyers on this court have made the law for all of us. They’re all from the East Coast, except for California, which doesn’t count. Do you remember that?

 

Leah Litman Yes. Yeah.

 

Kate Shaw It just feels sort of in that vein. Like, I don’t I feel like you actually could put together.

 

Leah Litman The coastal elites, not real Americans, like the son of Jersey, Samuel Alito.

 

Kate Shaw Exactly.

 

Melissa Murray Mmmhmm.

 

Kate Shaw Very fixated on California.

 

Melissa Murray And Wyoming. I mean, Wyoming is the ostensible victim of California’s throwing its weight around. I mean, Wyoming’s not even close to California. They’re like five other states in between.

 

Kate Shaw Their Liz Cheney, like some sublime something going on here. I have no idea.

 

Melissa Murray Like there are other red states close to California that would have it would have been easier to imagine. Idaho. It’s Idaho.

 

Kate Shaw Yeah.

 

Melissa Murray Yeah, Idaho. Get knocked around by California all the time. Happens all the. Time.

 

Kate Shaw But more generally, what the justices seemed to be getting at was a concern about states using laws that are structured like California’s to pick fights with other states. So here is Justice Kagan articulating that concern.

 

Clip You know, one, California can do laws. You have to be pro-labor and Texas can do laws saying pro-labor union and Texas can do laws that say you have to be anti-labor union, you know, close shop, open shop. You could you could have states making immigration policy essentially through these laws. You could have states doing a wide variety of things through the mechanism of saying, well, unless you comply, you can’t sell goods in our market. And, you know, we live in a divided country. And the Balkanization that the framers were concerned about is surely present today. And I think that the the the real power of Mr. Nadler’s examples where, you know, do we want to live in a world where we’re constantly at each other’s throats? And, you know, Texas is at war with California and California at war with Texas.

 

Kate Shaw All right. So what’s going to happen with this case? Do we have any predictions?

 

Leah Litman I have no idea. I am slightly concerned about an overly broad ruling that calls into question, like all morals legislation, which I also think is a weird position for conservatives to take, given the extent to which they have suggested states have wide latitude to enact morals legislation under, say, the equal protection clause. I also think they want to depict California’s law as unique, but I think you could characterize other laws as, again, like having the effect of burdening primarily out-of-state commerce on the idea that the state just doesn’t like how other businesses do business or the effects of other businesses. So maybe some group of them will focus on this being at the motion to dismiss stage, where you take the allegations in the complaint as true. Justice Jackson, being a civ pro maven, seem to know this, but I really don’t know.

 

Kate Shaw Yeah, I mean, I mentioned the justices feeling or appearing cross pressured. And I have to say I feel the same way about this case. Like they seem to me really unhappy with all of the arguments on the table. Right. They seemed unhappy with the challengers and the federal government’s extremely broad arguments that would make it really hard for states to do all kinds of things they want to do and that they do do now. But they seemed also really unhappy with California for failing to offer them some sort of bright line that divided this as permissible from states impermissibly using regulation like this to project their values on to other states in ways that would be genuinely burdensome. I do think it seems like California has to have some sort of authority to regulate in ways that it deems necessary to protect its population. And on the other hand, I do really worry about Balkanization in general and in particular that a win for California might open the door to states being able to project anti-abortion policies out of state. And the fact. Government repeatedly invoked this concern about Balkanization. That I think is very clearly about a lot more than pork production, and I think it’s a real concern in this case.

 

Melissa Murray So I think this is going to be a case like Ramos, which was from the 2019 term, where we saw another really weird sort of line up of justices with Justice Kagan joining the chief Justice and Justice Alito to uphold Apodaca, which was a 1972 case that allowed for criminal convictions to proceed on non-unanimous jury verdicts. And we talked in 2019 about why Justice Kagan was sort of aligned with the chief justice and Justice Alito. And, you know, we speculated there it was because of Roe about upholding past precedents, even when there were sort of compelling reasons, like, for example, racial discrimination underlying the rule around Non-Unanimous jury verdicts. She nonetheless felt it was important to sort of stay the course because of Roe. And I think, again, you’re right, Kate. I think antiabortion legislation is looming all over this. And this is not going to be a case about pigs and pork products. It’s going to be a case about what the pigs and the pork products mean for interstate travel in order to obtain abortion care. And I think you may find the Democratic appointees lining up with some of the people that I think we don’t expect them to line up, too, because for once, there’s interest convergence around anti-abortion and sticking it to California.

 

Leah Litman But like, on the other hand, that could imperil climate, right. Or environmental regulations where, again, like states are regulating out-of-state commerce. But this is the difference.

 

Melissa Murray But this is the difference, I think, between where the six justice conservative bloc and the three justice minority are like the minorities, like they’ve got a finger in the dike. Like this is like the immediate threat is abortion and maybe they can’t play a long game and think about climate and all of these other things because the real immediate threat is, you know, Missouri is going to pass some law that makes it illegal to leave the state in order to seek an abortion. And they’re just trying to deal with that in the short term. And, you know, they’re going to figure out climate when they get to it. But I mean, that’s one of the differences of being so overwhelmed in terms of the numbers of this court. You can’t actually play a long game.

 

Kate Shaw Yeah, there’s also, I think, some interesting methodological currents in this case in that a lot of these dormant commerce clause cases are all about intent. Right. Like did the state intend to discriminate against, you know, out of state commerce? And today’s textual ish court purports not to care about intent. And I thought there was kind of an interesting line of questioning by the chief justice about this was a ballot initiative. And the ballot materials reflected two considerations this morals concern, but also health and safety concerns. And he sort of you kind of take those at face value. And Roberts was sort of probing, well, what if some people voted because of morals and some people voted because of health and safety concerns? What do we do with that? And, you know, I’m not sure what this court will do with the kind of intent focus of the dormant commerce clause cases in terms of its current approach to discerning the meaning of legislation.

 

Melissa Murray Well, especially because of the ballot initiative, I mean, maybe they find a way to do this narrowly, because most states don’t have ballot initiatives as a mechanism for creating policy. And it would be cleaner to make a more broad rule using just sort of ordinary representative democracy. As the model for passing laws.

 

Kate Shaw A fascinating case. And we will how some picked.

 

Leah Litman [AD]

 

Kate Shaw So the court heard a couple of other cases that we will just briefly note. One was Andy Warhol Foundation for the Visual Arts versus Goldsmith, a really important copyright case about copyright protections for art. So briefly, the Copyright Act protects original works, but it also allows fair use of copyrighted works and to determine what constitutes fair use, courts typically consider the purpose and character of the use, including the extent to which the secondary work is transformative. And the question here is whether work is transformative when it conveys a different meaning or message from its source material, but where it is recognizably derived from and retains the essential elements of its source material. So here a photographer photographed prints and licensed the photograph to Vanity Fair.

 

Melissa Murray Vanity Fair then commissioned Andy Warhol to create something depicting prints based on the photograph, and it ran the Warhol piece in a magazine, attributing it to the photographer and to Warhol. Warhol, however, created additional works commemorating prints. However, he did so without any attribution to the photographer. The question now is whether that was fair use, whether the Warhol pieces were transformative when more specifically, whether a work is transformative because it conveys a new meaning, even if it is recognizable as related to an earlier piece.

 

Leah Litman If you look at the pictures, I think it’s super interesting. You know, the coloring and emphasis of the Warhol painting make prints look different, you know, and it evokes like a different image or feelings about prints, you know. Then if you were just looking at the pictures as a minnesota resident. Right. This matters a lot to me. Although it wasn’t clear whether from the argument the justices themselves are Prince fans, or at least not all of them. So but let’s hear some of the justices tell on themselves.

 

Clip Let’s say that I’m both a Prince fan, which I was in the eighties and no longer. Well, so not only on Thursday night, but let’s say just so there.

 

Clip I think my colleague Justice Thomas needs a lawyer and I’m going to provide it every. I see the person.

 

Leah Litman So nor is it clear that the justices are comfortable with a legal test that asks about like the meaning or message of works of art and whether a new work, you know, changed the meaning or message of a prior work of art. You know, they’re a little concerned that this would involve them staring at paintings or photographs and asking, like, what’s the vibe here versus like, what’s the vibe there?

 

Kate Shaw And they only want to do that with laws. They don’t want to do that with art.

 

Leah Litman Exactly. Exactly. A part of me, like, is really dying, thinking about the justices, like sitting around looking at a piece of art and saying, what does this mean to you? What do you see? And Clarence is like, I see a stolen election and Alito is like, I see cancel culture. And it’s just that that’s how I’m conditioning.

 

Melissa Murray And Justice Sotomayor is like, I see a multiracial democracy. They’re like, no, no, no definitely cancel culture.

 

Leah Litman I do not. I affirmatively don’t see it.

 

Melissa Murray Anyway, there are a lot of briefs filed in this case and from AP scholars on both sides of this issue. But I did want to call out my NYU colleague, Amy Adler, who filed a brief that was done in conjunction with Mark Lemley, who is not only a law professor at Stanford, but also a member of the firm jury hungry in San Francisco. And they filed a brief on behalf of art law professors that we had IP folks in here, we had copyright folks. We also had quote unquote, art law, which is an amalgamation of all of those things. And so lots of interests from the Academy on this one. What can I say? All of our colleagues, they love prints.

 

Kate Shaw Even if Justice Thomas doesn’t any longer.

 

Melissa Murray How do you stop loving prints? I actually think this is like I think Justice Sotomayor is.

 

Leah Litman Actually your age, not your show size.

 

Kate Shaw Is a Ginni responsible?

 

Leah Litman Clarence.

 

Melissa Murray I mean I mean, I think he does need a lawyer. How do you who stops loving prints? Like who does that? Nobody does that. Like my do you know, my greatest regret in life is.

 

Kate Shaw You had a chance to go see prints live and didn’t.

 

Melissa Murray Know. That’s exactly right, Kate. Like, he came to Oakland to do a couple of small shows at the Fox Theater, and I had tickets to go. But then I had some public interest auction event, like where I was having students come to my house to play Trivial Pursuit, and I gave my tickets to someone else because I’m like, I’ll just see prints another time. And then he died.

 

Kate Shaw Everyone thought I had what you had many, many years of prints making music to go. So that was not you were not like wrong to assume that. But I’m so sorry.

 

Leah Litman Some of us went to Paisley Park.

 

Melissa Murray Like, sometimes when I see these students, all I think about is just like.

 

Kate Shaw I hope they appreciate what you gave up. Wait, so you saw him, Leah?

 

Leah Litman Yeah. Paisley Park. Right? I grew up in Minnesota. Come on.

 

Melissa Murray That’s amazing. I mean, like Leah, can you imagine Lee as a young girl in a raspberry beret just waiting around the gates of Paisley Park? Like I totally,see it.

 

Leah Litman Honestly. Like after he passed away, I was one of those people that put, like, little purple capes and guitars around, like the little ducks around the lakes, around Lake Harriet commemorating Prince. This is what it means.

 

Kate Shaw These were like duck statues or actual like actual ducks.

 

Leah Litman No. Yeah. Not real real live ducks.

 

Kate Shaw Its sounding like animal cruelty.

 

Leah Litman No, no, these are. These are animal statues.

 

Kate Shaw Okay. Okay, that sounds better.

 

Leah Litman Yeah.

 

Melissa Murray Oh, yeah. It’s my greatest its one of my, my greatest regrets ever.

 

Leah Litman It’s fair. That’s fair.

 

Melissa Murray Yeah. It was a great night of Trivial Pursuit. Obviously, I killed those students. I destroyed them, but I could have done that any time.

 

Kate Shaw All right, peoples. All right. Shifting gears briefly, one more case to mention, Helix Energy Solutions versus Hewitt, which is a case about whether a supervisor who makes over $200,000 a year is entitled to overtime pay under federal regulations. Implementing the Fair Labor Standards Act and this is a question because he was paid on a daily rate as opposed to a weekly rate.

 

Leah Litman And this case had what might be my favorite moment from oral argument this week. So let’s play that here.

 

Clip How I’m not sure I get it. Mr.. CLEMENT So 601 sends you to 602 because 602 tells you what salary basis means. That’s we can all agree on. Okay, but can I just stop you to say. Not really. Okay.

 

Leah Litman This is the energy I want to bring to podcasting and life. Like it’s like what you know. Right? Exactly. Can I ask you just now?

 

Melissa Murray Right. Like, is this okay?

 

Leah Litman No, no. You’re like, shut up your food days. I just like I love this energy. You thought they were.

 

Leah Litman Going to be down and out after last term and they came back, like, ready to pick a fight every single time. I love it.

 

Melissa Murray By the way, and why you has a campus now shut up.

 

Kate Shaw You know, it actually made me wonder, do you guys remember? So Kagan invited Clement to argue in defense of the law. Yeah. Of the Consumer Financial Protection Bureau. And salable.

 

Melissa Murray Sale. That was his J.Lo moment. J.Lo on the pole.

 

Kate Shaw Wait, what?

 

Melissa Murray You weren’t there. Oh, God. She wasn’t there for it. Wait, that was that was that was the live show in B.U., where. We talked about that and Kate you weren’t there.

 

Kate Shaw I listened to it, but I don’t remember it. Just we talked about hustlers a lot, but I don’t remember Clement being part of the discussion.

 

Melissa Murray We’re like he was. He was actually really good and he was really there. Like, he was like J.Lo working the pole.

 

Kate Shaw Okay. It’s coming back to me. Yes, he was, but was unsuccessful ultimately. And does she hold it against him? I really just wondered.

 

Melissa Murray So it was J.Lo.

 

Speaker 3 She didn’t get this.

 

Kate Shaw It’s all connected.

 

Leah Litman Justice Kagan was really on fleek this sitting. There was also this moment from the Andy Warhol argument. And now that we’re recapping greatest hits, so listeners turn up your volume to listen to this oral argument clip, and in particular, listen for what comes after The Advocate. Lisa Blatt answers Justice Kagan’s question.

 

Clip So that is different from what the Second Circuit said, because I thought the Second Circuit took it out of the analysis entirely, said it was irrelevant to the question. No, and I think that’s very unfair to three members of Article three who three times said meaning and message is relevant. What they three times what they three. Yes. Well, it should I find it insulting to the Second Circuit.

 

Leah Litman So I have many nightmares about the Supreme Court. One of them is definitely having Justice Kagan incredulously or mockingly or derisively repeat something back to me that I have just said. I also think we might need to change the Overton Window a little bit on what insulting to members of Article three means.

 

Kate Shaw All right, we should go to court culture. I feel like we’ve actually already transitioned there.

 

Melissa Murray We are. We’re there. Like, can confirm.

 

Leah Litman Yeah so you know. That was the October sitting a Supreme Court getting back in the swing of things you know new term. There were some rough patches, especially coming back from a long weekend. The chief justice almost forgot this area item questioning format. So let’s play that clip here.

 

Clip Oppositions in well how about I thank you. Thank you, counsel. Mr. Kneedler. She. She’s going to do that. Well, I’m sorry. I’m just really very anxious to hear from her.

 

Leah Litman Also, just stepping back for a second, on the October sitting, there were 22 advocates arguing in the sitting for were women. There were literally as many women arguing in the entire October session as there are justices, women justices on the Supreme Court. Do Ross, you know who we had on the show last week arguing for the NAACP LDF may have been the only black attorney arguing in the sitting, just like extremely dismal diversity at the lectern.

 

Melissa Murray But again, as with the justices, they were outnumbered but not outclassed and they were fantastic. All right. All right. Moving on to the grants, the first week of the term, we learned that the court had decided to just, you know, accelerate, step on the gas and start granting some big, big grants in a bunch of additional cases that are really going to be consequential. So the first of these big grants is a challenge to so-called Section 230 immunity. And there are several cases involving this. Section 230 is a provision of the Communications Decency Act that immunizes interactive computer services like Facebook or Twitter for publishing information provided by another information content provider, like a Facebook or Twitter user. And it’s recently come under attack, or at least has been criticized from a lot of different angles, some on the left and some on the right. But basically, everyone’s mad at Section 230, and the right’s attack on Section 230 has been driven by the claim that big social media companies censor or discriminate against conservative speech. So they are huge, huge participants in this cancel culture against conservatives. And the left argues that, in fact, Section 230 doesn’t really give these platforms enough latitude to really deal with disinformation and things that are actually really harmful or misleading. And so just basically everyone is unhappy. And so one of the grants here is a case called Gonzalez versus Google. And the question here is whether Section 230 grants immunity to information service providers when they recommend or promote certain content rather than publish it. So this is about amplification of certain information.

 

Leah Litman And there’s another Section 230 case that the court also granted, certiorari and Twitter versus TAM. Now, which involves related issues, though, under Anti-Terrorism Act and whether service providers can be held liable under that act for, again, providing access to their platform.

 

Kate Shaw We should just say that we are concerned about these grants, right? This case, these cases in the hands of the court has really big like start the rapture energy.

 

Melissa Murray Yes.

 

Kate Shaw I think it’s fair to say.

 

Leah Litman Like zero doubt that Sam Alito is going to bring up cancel culture.

 

Melissa Murray Cancel culture.

 

Leah Litman Yeah. No all all over these arguments. So, yeah.

 

Kate Shaw The court also decided to hear Santos Zakaria versus Garland, which is a case challenging the denial of an asylum claim by a transgender woman. So this case, like other recent ones at the court, is about whether provisions of immigration law limit federal court’s ability to review certain aspects of immigration proceedings. Here, the Board of Immigration Appeals allegedly impermissible fact finding. The court also granted several important labor law cases. These are concerning like the Section 230 cases, given the court’s pretty reliable anti-labor bent.

 

Leah Litman So one of them, Glacier Northwest versus International Board of Teamsters is about when you can hold a union liable for the economic costs or consequences that result from a labor strike. And the idea that, again, you can sue a union and impose monetary penalties on them for organizing a strike is potentially really disastrous and limiting like labor power and union organizing. So we’re watching that one as well. The court also rejected a request to hear an important case involving race discrimination in criminal proceedings that I wanted to highlight, Thomas versus Lampkin. So this is a case the court refused to hear. Justice Sotomayor dissented, indicating she would have heard the case. She was joined by Justices Kagan and Jackson. And this case involves Andre Thomas, who was sentenced to death for the murder of his estranged wife, their son and her daughter from a previous relationship. Thomas is black, his wife was white and their son was biracial. He was convicted and sentenced to death by an all white jury, three of whom expressed firm opposition to interracial marriage in their written juror questionnaires. Despite their declarations of bias, Thomas’s lawyer did not object to their presence on the jury and didn’t even question them about their indicated bias. And the claim that Thomas wants to race here is whether he was provided ineffective assistance of counsel for a lawyer who failed to object to these obviously biased jurors serving on the jury. And the Supreme Court is like, yup, no, it seems fine to us. Nothing to see here.

 

Leah Litman [AD]

 

Melissa Murray Okay. And now we’ve gotten to what you’ve been waiting for a very meaty and interesting court culture segment. And we are I’ve been dying to talk with both of you about the news emanating from New Haven. Yale Law School has been canceled. So can you tell us more?

 

Leah Litman It’s finally time to talk about the Federalist Society and cancel culture. So Judge Ho, a trump appointee on the Fifth Circuit, announced that he is trying to cancel Yale Law School and specifically that he will not hire law clerks from Yale and is encouraging other judges to do the same. Why, you ask? Well, he says it’s because Yale is engaging in cancel culture. So irony isn’t dead after all.

 

Melissa Murray This is very meta.

 

Leah Litman This is.

 

Melissa Murray Canceling Yale to protest, cancel culture.

 

Leah Litman Yes.

 

Kate Shaw It’s performance art.

 

Melissa Murray I mean, I have to say, as a student, I tried to cancel Yale Law School all the time. And like so if Judge Ho is going to succeed, where I did not. Like, I don’t know.

 

Kate Shaw But it’s not just Judge Ho. So other judges are joining him. So the Free Beacon has reported that 12 judges, including both circuit judges and district judges, have announced that they will no longer hire clerks from Yale Law School. They bravely took this stand in favor of free speech. Right, because it is free speech that is under attack at Yale. So their stance in favor of free speech was done through an anonymous interview with The Free Beacon in which they announced that they would not be hired.

 

Melissa Murray The speech is always more free if no one knows it’s yours.

 

Kate Shaw Right. I mean, some of the quotes by these unnamed judges are a lot. So let’s let’s quote a few of them. Okay. So the article said another circuit court judge, a top feeder for Supreme Court clerkships, said he was torn on whether to participate in the boycott, but that the case for it had gotten stronger over the past year. I’ve heard a bunch of great Yale law clerks, the judge said. But at some point the institution becomes so worthless and degenerate that you wonder what conservative would want to be part of it.

 

Melissa Murray I mean, like, this is like Yale Law School. 127 Wall Street is the new red light district.

 

Leah Litman But I mean, also also from the piece, right. This feeder judge apparently said that the school had made it a, quote speech and thought crime for students to associate with Professor Amy Chu. I mean, I just the words that are being said right there. They seem to have a meaning with which I am not familiar. And and yet.

 

Melissa Murray After the Free Beacon article, it was also reported that Judge Branch of the 11th Circuit, another Trump appointee, also refused to hire from Yale Law School.

 

Leah Litman And I have to say, you know, judges using their judicial office to engage in political boycotts against perceived ideological or political adversaries does wonders for preserving the appearance of an impartial, completely nonpartizan judiciary. Right. Like I am convinced I am.

 

Melissa Murray I mean, what’s next, Lee? I mean, taking a photo with the Senate candidate and one time reproductive rights activist Herschel Walker, or maybe even your spouse, communicating with the staff of a disgruntled ex president during an attempted coup. What is a nonpartisan, neutral arbiter of law and not vibes to do?

 

Leah Litman You know who is to say? I was personally happy to see that on the eve of this court’s term, Donald Trump shouted out None other than Ginni Thomas. So let’s let’s play that clip here. Right. Just really sealing the deal on our nonpartisan judiciary.

 

Clip As we talk about and think of the rigged and stolen election of 2020, presidential election, rigged and stolen. I would like to thank a great woman named Ginni Thomas. You know, Ginni Thomas, she’s a great woman, the wife of a great man, Justice Clarence Thomas. For her courage and strength and saying. According to the standard and routine. Leaks from the committee, you know, everything leaks out of those committees. They’re like a leaking sieve. They’re just like a leaking sieve. But she said that she still believes the 2020 election was solid. She didn’t say, Oh, well, I’d like not to get involved. Of course, it was a wonderful election. It was a rigged and stolen election. She didn’t wait and sit around and say, Well, let me give you maybe a different answer that I’ve been saying for the last two years now. Now, she didn’t wilt under pressure. Like so many others, that a weak people and stupid people, because once they wilt, they end up being a witness for a long time. She said what she thought. She said what she believed in. Too many Republicans are weak and they’re afraid and they better get strong fast. So you’re not going to have a Republican Party and you’re not going to have a country anymore.

 

Kate Shaw That was so disturbing, and I think it warranted breaking from our ordinary rule that we don’t ask Melody to ever put Donald Trump clips into the show. I think that one our listeners need to hear. If they haven’t, we should say as to the Yale boycott that not all conservative judges are on board. So Judge Jerry Smith had an Oscar posting, which is the website where federal judges list their openings to hire law clerks. And he said this is to respond to the recent announcement by one circuit judge that he will no longer hire courts from Yale. With due respect, that is regrettable. I regularly and recently have had Yale law clerks who consistently are extremely talented and perform spectacularly in upholding the rule of law, etc., etc.. And this is interesting sort of sub tweet energy because Smith is on the Fifth Circuit along with Judge Ho and Judge Ho before he was Judge Ho actually clerked for Smith. So not everyone is enthusiastic, even if they’re ideological. Fellow travelers. With this move by Judge Ho.

 

Melissa Murray It’s giving real Annekin Obi-Wan Kenobi vibes. I think.

 

Leah Litman Look at this Star Wars reference. Look at you. You know, and other judges have announced that they will not be participating in this boycott. So Judge Wilkinson on the Fourth Circuit said he would not be at a panel presentation. Judge McKee, a judge on the Third Circuit, described the boycott as like ugly and nasty and even called it horrendous.

 

Melissa Murray So let’s do some actually fun and interesting court culture news. You know who’s not canceling fashion? Who’s actually embracing it with both feet? None other than our favorite SCOTUS spouse, Dr. Patrick Jackson, whose sartorial flair with his footwear continues. And in fact, it’s so good that Ariane de Vogue, CNN’s Supreme Court reporter, tweeted about it. So she noted that at her investiture, Justice Jackson’s husband was sporting none other than CBJ socks. And I have to say, I’m now looking at my husband like do more. Find the Melissa Murray socks and wear them. I also appreciated his boots. His boots were also featured in the picture, and they were also very fashion forward. They were black leather with a little monk strap and just slightly below the ankle. So you could still see the KB de socks. And to which I say, Dr. Jackson. Yes, please. These are fantastic. Continue doing what you do.

 

Kate Shaw He’s the ultimate fanboy. I love it so much.

 

Leah Litman I know. It’s adorable.

 

Melissa Murray American husbands are all going to have to step up their game.

 

Kate Shaw That’s true.

 

Melissa Murray After Dr. Jackson. Dr. Jackson is in the house.

 

Leah Litman We also wanted to note that the Fifth Circuit issued its much anticipated ruling on the Deferred Action for Childhood Arrivals program, the Dacca program. For those of you who haven’t been following this litigation, a district judge in Texas because it’s always a district judge in Texas, declared Dacca unlawful, but stayed the ruling with respect to current Dacca recipients such that they could continue to have the benefits of the program, but there could not be new applications for Dacca. The case went up to the Fifth Circuit, but during that process, the Biden administration announced that it would be reinforcing Dhaka through a process known as notice and comment rulemaking. So Dhaka originally had been announced through a guidance memo from the DHS secretary and the Biden administration said instead, we’re going to do it through a formal rulemaking process. So what that means is the Fifth Circuit in this case kind of agreed with the district court, but said because there’s going to be a new rule here, we asked the district court to look at the first instance whether this new rule that goes through notice and comment rulemaking is going to be invalid, you know, so the bottom line is Dhaka remains in place for current recipients, but it is in danger. You know, the Fifth Circuit’s reasoning to me seems to imply that that court will say maybe right after the midterms or after the election, that even though the program goes through, notice a comment rulemaking that will be sufficient to. Solve the legal problems. It is long past time to pass the Clean Dream Act and give tax recipients the security they deserve. But this is just kind of bubbling up and is, I think, a disaster waiting to happen.

 

Melissa Murray So in addition to that development on the DOCA front, Texas continued to make news on Texas executed John Ramirez. Ramirez, you’ll remember, was the plaintiff in Ramirez versus Collier. The case that resulted in the court saying that the state had to allow a pastor to be able to audibly pray with Ramirez in the execution chamber and lay hands on Ramirez prior to his execution.

 

Leah Litman In more fallout from the courts cases over the last few terms, we had the latest edition of Originalists Hot Boxing. You know, the follow on from the Supreme Court’s decision in Brooklyn invalidating New York’s, you know, may issue permitting regime. So a federal judge halted the enforcement of much of New York’s 2022 gun law passed in the wake of the Brown decision. The judge put the order on hold to allow the state to go to the Court of Appeals as a result of the ruling, the state’s restrictions on carrying weapons at medical facilities summer camps are invalid, as well as the state’s requirement that you look at an individual’s social media profiles in order to determine whether to sell them a firearm. And the analysis in this opinion is just otherworldly. And what it reveals about Braun, the judge was like, Well, I’m looking for historical analogs. And because there wasn’t social media back in the 1800s, this requirement is inconsistent with our nation’s tradition of firearm regulations. Also, because summer camp wasn’t a thing that wasn’t a place at which the states restricted firearm possession. I mean, it’s truly something.

 

Kate Shaw But at least all of us, hardworking New Yorkers are going to be able to defend ourselves on the subway. So there is that. And finally, we need to mention a truly epic amicus brief filed by The Onion last month. So the case in which the brief was filed involves an Ohio man who was arrested and prosecuted for creating a parody Facebook page, making fun of his local police department. When he filed suit after he was acquitted by a jury, the lower courts found the police officers shielded by qualified immunity, and he has now filed a petition. So The Onion has a clear interest in First Amendment protections for parody. And it is a brief that does with the genre of the amicus brief things I’ve never quite seen done it. It’s brilliant, it is hilarious and it’s only like 20 pages long. So if you haven’t read it, even if you’ve heard about it and think you know what it’s about, actually sit down and read, it is very much worth your time.

 

Leah Litman Two big reminders. First, if listening to crooked shows in your podcast app is simply not enough, check out the crooked radio takeover every weekend in October on Sirius XM Progress and on the Sirius XM app. It’s a great new way to hear and discover all of the great voices and shows across the crooked universe. Ahead of the midterms, Strict Scrutiny episodes will air at 1:30 p.m. and 5:15 p.m. Eastern each weekend, and crooked listeners can get up to four months free so you can check it out at Sirius XM dot com slash crooked and second election day is right around the corner where officially in the final stretch when most normal people are actually starting to pay attention and decide who they’re going to vote for or if they’re going to vote at all. If you’re listening to this, we hope you already know how you’re going to vote on or before November 8th. So now we need you to help get people out to vote. Face to face conversations are the most effective way to make a difference on the margins in the races that are going to be close. So sign up to volunteer, head to Vote Save America dot com slash volunteer to find an opportunity near you.

 

Melissa Murray So before we leave, we just wanted to let you know that we have new Strict Scrutiny merch at Crooked Media’s store and that’s located at Crooked Dot com forward slash store. But we have to tell you, we sold out of the very popular “no law, just vibes” shirts during our first week that they were available. So one, thank you to all of you who bought them. We’re really grateful and overwhelmed by your support for this new merch drop. And don’t worry if you didn’t get yours, we have reordered more and they will be back in stock in the crooked store soon. But if you are absolutely dying for some strict scrutiny merchandise and I know you must be on because you’re trying to have a Patrick Jackson style glow up. There’s still the YOLO court shirts and those are available. So just go over to the crooked icon for its law store to get your YOLO Court merchandise now. And that’ll be like a good sort of pre-game chaser for when you get your no lot just vibes restock.

 

Leah Litman And just for a rare moment of earnestness which we do sometimes have, you’re listening to and support of the show most recently through these merch sales is incredibly meaningful and we appreciate it so much you know being women and in Melissa’s case, a woman of color on the Internet, in the media over the podcast waves brings with it certain costs. But we wanted to make a podcast, you know, by women, including women of color, that would be welcoming to women, including women of color, and promote the voices and perspectives of women, women of color and people of color that get ignored in and around the courts too often. And we are glad that we did and proud of what we have done, even though it has generated misogyny and misogynoir from all sides. It is wonderful when there are occasions to be reminded that there are people who enjoy what we are doing. So if you like the podcast and you’d like to stick it to the man, the mens and the women who enable the patriarchy rate and review Strict Scrutiny. Our podcast on your chosen podcast app and recommend it to a friend and we will see you next week.

 

Melissa Murray Strict Scrutiny is a Crooked Media production hosted and executive produced by women and women of color. Leah Litman, Melissa Murray and Kate Shaw. It is produced and edited by Melody Rowell, also a woman. Audio Engineering by Kyle Seglin. Music by Eddie Cooper and production support from Michael Martinez, Sandy Girard and Ari Schwartz. And Digital Support from Amelia Montooth. Many women.

 

Kate Shaw Awesome.