After accidentally uploading the decision in the EMTALA case, the Supreme Court released it for real today. Leah is joined by Fatima Goss-Graves, Chris Geidner, and Amanda Hollis-Brusky to analyze the Court’s “refusal to declare what the law requires,” as KBJ put it in her dissent. Plus, Leah, Chris, and Amanda break down today’s opinions in cases about the administrative state, breathing clean air, and big pharma.

TRANSCRIPT

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

Leah Litman Hello, and welcome back to Strict Scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it. I’m your host today, Leah Litman. Kate and Melissa are on the road. Don’t worry, they haven’t been in any catastrophic bike accidents, so we will all be back together for the next episode. But I couldn’t do this one all by myself, so I am delighted to be joined by two guest hosts who I learn a ton from about the Supreme Court and the courts more generally. One of the guest hosts today is Chris Geidner. You’ve heard us talk a lot about his indispensable independent publication, Law Talk, which you should subscribe to immediately if you haven’t already. Welcome to the show, Chris.

Chris Geidner Hello. So good to be here. In spite of the moment we’re in.

Leah Litman Yes. And the second guest host is returning guest, Amanda Hollis-Brusky who is the expert on the conservative legal movement and the author or coauthor of the essential books ideas with consequences on the Federalist Society and Separate but Faithful on the Christian Legal Movement and takeover of the courts. Amanda is a professor of politics and chair of the politics department at Pomona College. Welcome back to the show, Amanda.

Amanda Hollis-Brusky Thanks, Leah. So excited to analyze the fresh hell we’ve been delivered by Scotus today.

Leah Litman All day, every day. So as a roadmap for our listeners, we’re going to start with the court’s disposition of the case on emergency medical care for pregnant patients. Then we will cover the court’s most recent attacks on the administrative state. And finally, we will briefly touch on the court’s decision invalidating the settlement in the bankruptcy case related to Purdue Pharma and opioids. So first up, we have the Tala decision, the actual decision, this is the case about whether women who are experiencing life and health threatening pregnancy complications can receive emergency treatment at hospitals in states that ban abortions, including emergency medical treatment that is necessary to save the pregnant patient’s life or health. So for this segment, we are delighted to be joined by Fatima Goss-Graves, the CEO of the National Women’s Law Center. Thank you for joining Fatuma.

Fatima Goss-Graves So glad to be with you.

Leah Litman Okay, so just to lay out what happened, the disposition of this case is what the court inadvertently posted on its website yesterday. Just to recap that disposition, six justices agree to dissolve the stay the court had issued in this case that stay paused, a lower court injunction that required Idaho to permit emergency abortion care where M Tala requires it. So that means the lower court injunction is back in effect. And in Idaho, women can receive the emergency stabilizing care that M Tala says they can receive. But also, five justices agreed to dismiss this case as improvident granted, meaning the court is not deciding whether that lower court injunction is correct or whether M tala requires emergency abortion care to be available, even where states try to ban it. This is important because they could come back later and say, I’m Tala doesn’t authorize emergency care, and two there are orders in effect in other places. Cough the fifth circuit that say M tala does not authorize emergency care in states that ban it like Texas. So the court’s disposition in this case allows other states like Texas to ban stabilizing, health saving care for pregnant patients. Okay, so that’s the basic description. I’ll tell you my quick off the cuff reaction, but then I am interested in yours. So to me, this just stinks of a compromise that is part of an effort to allow the court to dodge the issue and not come out and say yes. States can force hospitals to deny emergency care to pregnant patients at a time when it would be inconvenient politically for the court to say that. Am I too cynical or fatuma? Like, how are you reading this?

Fatima Goss-Graves Well, it’s a really radical idea that pregnant people can’t get emergency medical stabilizing care, right? That, you know, that’s a sort of mind blowing thing that I think most people didn’t have on their bingo card as a possibility. So the idea that it leaves the question unanswered, that’s it. That in and of itself is a really radical idea. But at the same time, I have to say, you know, we have clients who have had to flee states seeking care at a time when their health is in jeopardy. And, you know, for the people in Idaho, the fact that they have had these last six months of uncertainty, the stories of people being helicoptered out of the state, I can’t help but wanting to center them as well in this conversation.

Leah Litman Yes. So if we I think mentioning the stories of the people who are affected by these bans, you know, part of the reason I think I’m reading the decision or not decision and lack thereof in this way, is it’s impossible for me to ignore the backdrop or background for this, which to me includes all of the ads that the Biden administration and Democrats are running about people’s abortion stories and their emergency health situations, with people telling horrifying stories about the danger to their life and health from these abortion bans.

Fatima Goss-Graves And yet they can’t run away from those stories. So. Right. They can’t run away from the story of the person who passed out in the bathroom, or the person who was bleeding in a parking lot, and they’re going to hear those stories again and again. We’re going to hear them in the presidential debates, I’m sure. But you’re going to see them on ads. You’re going to see people talking about them in community. And so if people thought they could sort of get away with the idea that this is, a problem that very few people will be affected by, or that there’s no real harm here, it’s too late for that. We’ve seen the harm. And the question is, what are we going to do about it?

Chris Geidner Well, and as you pointed out, the the fact of the matter is, is that the stories are still going to come out of Texas, like the Fifth Circuit ruling is because they didn’t resolve this on the merits, because they dodged it. In a way, it’s more a failure of the court to be able to get five votes to just uphold the Supremacy Clause than it is, some, some grand compromise by Roberts. I think this was more a failing than a compromise, because you are still left with with the Fifth Circuit. Yeah.

Fatima Goss-Graves And know it speaks to the dysfunction because we’re, you know, we’re sort of in this situation in the first place because they didn’t they reached down to take the case. So it was also just a weird rule, a weird decision. Whether they were talking about how how were we to know all of these things hadn’t yet been determined. No one told you to take it from the Ninth Circuit before the Ninth Circuit had finished this job? Yeah.

Amanda Hollis-Brusky This was one of the worst possible dystopia. Be in scenarios. If Roe v Wade were overruled. Right. And that’s the thing that people would dismiss it. No, that’s not going to happen. Calm your uterus. You’re being hysterical. And so I do think that if this is where the court’s going, if they’re really going to say that it does not apply in states with criminal abortion bans, they’re not going to say that before an election. And so, as the political scientist here, I am going to read into this more cynical, view of this decision, because to have the court definitively say we are going to actually make into law your worst dystopian nightmares and fears about a post row world and give them the blessing, then that would we’d have remember. Right? And I do think that there’s an attempt to avoid that, at least for now.

Leah Litman So I’m going to ask you all in a second, like how likely it is from these opinions. You know, you can pick up where the court is headed on this issue. But before I ask that question, I want to support Amanda’s political scientist. Take, with the law professor take, because I think there’s actually considerable evidence in these opinions that the court is dodging this knowing. Right. We are on the eve of a presidential election. You have Justice Barrett separate writing with the chief, and Justice Kavanaugh bends over backwards to justify dismissing this case, insisting the issues have been narrowed since Idaho’s lawyers say the state law permits abortions in some lifesaving circumstances. But as Justice Jackson’s dissent points out, there’s still a conflict. Idaho still bans abortions in cases where the federal government says I’m taller, requires them. The federal government has never denied that there are conscious protections, and the Idaho Supreme Court has confirmed this interpretation of state law, which, as Fatima underscored, is playing out on the ground in ways that underscore a conflict. Justice Jackson’s dissent basically accuses the court of doing this, saying the court is using a procedural mechanism, quote, to avoid issues that it does not want to decide. And she says the court has made this bed, so now it must lie in it. And, you know, Justice Alito, of course, he has to take it to the next level. He accuses Amy Barrett of being too emotional to resolve the whole issue. He literally says, quote, apparently the court has simply lost the will to decide the easy but emotional and highly politicized question that the case presents. So everybody knows what’s going on here. But I guess now I want to put the dystopian question to all of you, like, how worried should we be? Or argue that when this issue inevitably gets to the court next, they’re going to say that states can prohibit hospitals from providing emergency care to pregnant patients.

Fatima Goss-Graves Listen, I’m deeply worried. I mean, some might say I’m even emotional with you. I think that helps you.

Leah Litman I mean, it makes me emotional as an emergency room person. I would like care.

Fatima Goss-Graves Well, I think that’s what’s so shocking about it, too, is that we. For 40 years, when people have emergencies, they know that you go to the emergency room. Right. But God is. That is something that is deeply understood and that hospitals can’t just tone you away because they disagree with what you did before you got there. So I don’t know where the end of that argument would be. And and so that is also dystopian in my mind. But I have to say that what they have done is just invited more and more extreme bands, but also more and more extreme legal theories. In some of this, they should just shut down. They should just say, this makes no sense. Stop talking to me about the spending clause here because it does not make sense. Congress has the authority to do that. Stop talking about. I mean, that is what is also worrisome. I don’t know the bounds in this moment. I don’t know what is law.

Chris Geidner We don’t know what is law. That that is the problem.

Leah Litman Maybe not EMTALA, right?

Chris Geidner It’s maybe not EMTALA. It’s maybe not the Supremacy Clause. It’s maybe not the spending Clause. Like we really have no idea. And I think the, the, the big concern that I have is not even are they holding this for the election, which I think is a bit of it. But like I just I don’t believe if they had a majority they would hold it. Like I believe that that what we saw with Dobbs is that they know. And they’ve some of them have lived through the fact that the court can change on a dime. I didn’t want to say it yesterday when the opinion document leaked, but like, I was like, there’s a reality that like, if a justice dies before a decision is released, it changes and it could change the outcome of this case. And especially when we had the five four rolling on the the dig. And so I do think that, like, we shouldn’t, we shouldn’t, ascribe to, evil what also can be an incompetence to craft a majority.

Fatima Goss-Graves I agree that if they had a majority, they would have gone forward. That’s the lesson I learned from Dobbs. There are all these people predicting that. No, no. It would be politically harmful to overturn Roe. They won’t actually do it when they have the power to do it. They overturn Roe. So I, you know, I think that ship has sailed on that. But I also think if you just look at the three justices who who sort of came together to say, well, not right now, but I don’t know, maybe sometime in the future we need more information. They they gave a bit of a roadmap of the type of information they need, the type of plaintiffs that would do well for them to basically say that it is the state who has irreparable harm, rather than the people who should be at the center of this, which is, you know, women who are pregnant, anyone who can be pregnant, that that should be the very center of the conversation. So it boggles my mind that Idaho could have ever had more harm and injury than the person being flown out of the state by helicopter.

Leah Litman So we should just make explicit the vote breakdown, and then maybe we can go through the different opinions. So the six justices who dissolved this day were the chief justice, Justices Barrett and Kavanaugh, and then the three Democratic appointees. And then Justice Jackson peeled off on the dig. She said the court should not have dismissed the case. And then you had these separate writings. One was by Justice Barrett, joined by the chief justice and Justice Kavanaugh. And that’s the opinion that Fatuma you were just alluding to that basically invites this nonsensical spending clause challenge under which Spending Clause legislation could not preempt state criminal laws, even though M tala has the preemption clause. And even though there’s no doubt Congress would have authority to enact this under the Commerce Clause. And yet this opinion says states bring me this challenge. I think it’s a difficult question, and that’s part of where my nerves come from. And the other part is what you just alluded to, Fatima, the fact that in talking about the balance of equities in this case, all of the court’s concern in that writing is with the possibility that abortions might be performed, not with the possibility that people’s lives and health will be put in jeopardy because of these abortion bans. And it’s hard not to read that and get very nervous about what this court might do. Right? If and when that spending clause issue or some version of it comes back up to them again.

Amanda Hollis-Brusky Yeah. And I would I mean, I would just underscore what Fatima said. If you read the Kagan’s Sotomayor and Jackson opinion, they characterize alito’s dissent and his reading of and Tala. It turns a both and into an either or so. And Tala wants to guarantee that the pregnant person and any unborn child is taken into consideration when emergency care is given. And alito’s dissent turns that into his, his opinion turns it into an either or right where it’s the unborn child first and foremost, and does not take into consideration the pregnant person. And so when we think about who we’re centering here, that rhetoric is really frightening.

Chris Geidner Just on that point, I think, an interesting thing that when, when remembering that Alliance Defending Freedom joined on to represent Idaho in a story that I’ve been following their their growing representation of actual government entities, one of the the the the they advance this claim. There’s this either or claim very strongly. And if you look at the response and look at what happened, is that that was actually an amendment into the law, and it was an amendment for the opposite of the reason why it’s being used today. It was an amendment because hospitals were still refusing to help pregnant women who showed up and saying, you. You don’t need stabilizing care. It is only your fetus who needs stabilizing care. And we aren’t required to protect you under that. And so that’s where this was. Yeah. There were a lot of pro-life amendments in the Reagan era, but this wasn’t even that that this was actually something that that shouldn’t be able to be used for that purpose now. And yet it’s just being completely manipulated to, to create a free standing. Right, for, for, that that does sort of reek of personhood amendment issues.

Fatima Goss-Graves And what’s ridiculous about it is that, you know, Justice Alito writes it as if we all have assume that meaning of installer for decades. And we all knew that there was this huge personhood part of installer. That meant that emergency care was not provided, that no one thought, that no one believed that I don’t know what was happening.

Leah Litman It was Sam Alito wrote.

Chris Geidner Yeah, like, that’s the bottom line. Like it was written under Rowe. So how can you, like, retrofit it to in a post-roe world?

Leah Litman Yeah. And just to spell out the fetal personhood that we’ve been gesturing toward, like what Sam Alito basically says is this federal law and taller, at least the amendments to it that Chris just described basically enact fetal personhood into the law and treat fetuses as people with rights coequal to and in many respects, supreme to the rights of the pregnant person. And in addition to that, you know, the Alito dissent or whatever it is, which was joined by Justice Gorsuch and Thomas, in addition to going fetal personhood, also, goes down what I have called Sam Alito at your cervix energy and offer is like his and Clarence and Neil’s opinions on proper medical care for pregnant patients, where they say, well, actually, doctors, you might think abortions are required to teach prom, but let me tell you, maybe they’re not. And it’s like, okay, all of the pregnant people who are forced to become septic would like to disagree. But the opinion is just unhinged on that point.

Fatima Goss-Graves They’re disagreeing. Actual doctors, also disagreeing hospitals, minds or minds are turning and blowing right now.

Amanda Hollis-Brusky You know, I’ll just note that there is a whole industry involved, in the Christian right, and on the conservative legal movement to manufacture this kind of faux medical expertise and this kind of faux science. We’re seeing it in this case, we’re seeing it in sort of cases around trans kids, around same sex parenting. And so this is not coming out of thin air. This is supported by an entire sort of cottage industry of manufacturing faux advice. But then these justices can sort of, put on their, their official, you know, lab coats and, and, and recite to us as if they are kind of co-equal or even better than what actual doctors are saying.

Leah Litman Doctor Sam always there to help. This is why we need the political scientist on hand. And again, just to be clear what Sam Alito’s opinion says, you know, Justice Kagan, in her separate writing, joined by Justice Sotomayor, says, you know, his opinion merits a brief response. And she goes on to describe what he is saying, and she describes it as saying Justice Alito’s dissenting opinion. Primary argument is that although I’m told generally obligates hospitals to provide emergency medical care, it never demands that they offer an abortion, no matter how much that procedure is needed to prevent grave physical harm or even death like that is the synopsis of his view. So we are running out of time on this emergency episode, but I want to give all of you an opportunity for kind of final thoughts that people should be taking away from this, taller disposition.

Amanda Hollis-Brusky I guess I would just reiterate, Leah, what you said about the spending clause and Roberts kind of laying the groundwork and creating a roadmap for future plaintiffs to challenge EMTALA on Spending Clause grounds. Because this is this is a page from the Roberts playbook. We’ve seen it before. We’re going to acknowledge that Congress has this power, but we’re gonna create kind of artificial principles and rules that limit it in ways that are not found in the tax structure or history of the Constitution. And so keep an eye out for that, because that would be a continuation of sort of a long term Roberts Court trend of narrowing federal power in areas where the federal government clearly and emphatically has power.

Fatima Goss-Graves You know, I just there’s two things that I think are important to say. The first is I do want to remind people Intel is still exists. So I’m worried that there will be even more confusion. And so it still exists. And hospitals still have to provide emergency care, including abortion care. And then the second thing I have to say is that this confusion and crisis is entirely of this court’s making. The court created the crisis in Dobbs. Then it created a new crisis. When it took this case, it says, I guess, too soon and allowed the Idaho ban to be in there for so many months. And now they’ve created a new crisis and confusion, because I do think hospitals are going to be more and more nervous about their obligations until they still exists. And so final word from me.

Chris Geidner I would just, allow somebody else’s words to speak. Justice Jackson, along with Justice Sotomayor in another case today, read from her dissent on the bench. And I think that that was, to echo a lot of what we’ve been saying today that that this does need to be highlighted. This does not resolve the issue. This is the court passing the buck. And and she literally said it is delay. And I think that that that is sort of the key, the key takeaway and if it, if I don’t necessarily think that the decision today was one just based on politics, I do think that the reality of the, the those three, votes in the sort of concurrence, that that my biggest fear from that is that particularly from the chief Justice that he’s sort of shown us this year what a lack of a spine he has. And I think in some ways this was a warning of of how important the election is. And that, that he, he really could go as he thinks the country is going and we’ll, we’ll just, craft a majority out of that.

Leah Litman I’m going to take host privilege and add mine at the end. Which is Justice Jackson’s, you know, words, I think, underscore the costs of this decision. You know, she says and writes, quote, for as long as we refuse to declare what the law requires, pregnant patients in Idaho, Texas and elsewhere will be paying the price because we owe them and the nation an answer to the straightforward preemption question presented. I respectfully dissent, and also I like I understand this as an effort, like the medication abortion case, to basically lower the salience of abortion in the upcoming election, when in reality, the two decisions only underscore that this next election is really going to decide a lot of significant issues related to the future of abortion access, because in the event that Trump wins, even these limited, though important and taller protections might disappear if his administration takes the position that, Tala actually doesn’t require the availability of emergency stabilizing care. And, you know, whether Trump or Biden wins this issue and other abortion issues are going to make their way back to the courts. And that is important enough, right, to keep in mind as you are preparing about what to do in the, you know, upcoming election cycle. So thank you, Fatima, for joining us for the segment on what I am sure is an extremely busy day for you.

Fatima Goss-Graves So glad to be here.

Leah Litman [AD]

Leah Litman Now we are going to discuss the court’s latest attacks on the administrative state, the agencies that are a part of governance today. The court released two different cases that embraced two different ways of challenging the administrative state as a treat. Basically, the court said, why not both? So the first one we’re going to cover is SEC versus Jarkesy. This was a 6 to 3 decision along typical ideological lines, invalidating the SEC civil enforcement scheme. That is, the court struck down the SEC ability to impose civil penalties on companies that violate securities law. In SEC enforcement proceedings, the chief justice wrote the opinion for the six Republican appointees, holding that this scheme violated the company’s Seventh Amendment right to a jury trial. And I guess before we get into dissecting the case, I wanted to clarify for our listeners why this is kind of a big deal and how it strips authority from the administrative state and transfers it to the federal courts. So I guess I turn that question over to both of you. Like, why is this case kind of a big deal as part of the larger, you know, attack on the administrative state?

Chris Geidner Yeah. I mean, I think that one of the first ways that I can share with you, that we can tell that it’s a big deal, is that Justice Sotomayor read from her dissent. And that happens occasionally when justices want to make a point that basically it’s the I strenuously object of the Supreme Court. But it’s I mean, one thing about that, first of all, the Supreme Court doesn’t live stream of opinion announcements with which they absolutely should, and there’s no reason why they do not. But you listener, will not be able to hear this writ, this audible dissent until next fall. But but what we heard in the court today is sort of a a a signal that, the, the, the liberal trio do see and want to make these administrative cases be seen by the public as as important as the sort of social cases and voting rights cases that liberals normally think of as the big cases.

Amanda Hollis-Brusky Yeah. And I’ll just add, I think one of the kind of background, principles to keep in mind here is that the separation of powers cases are not the sexy civil liberties cases, and yet they have such a fundamental impact on politics, on who gets to decide and who has authority. And so for me, this is one of these really sexy separation of powers cases. That has huge consequences. And I agree with Chris. That’s why Sotomayor reads her dissent from the bench. And when we get to it that dissent is fire, right? That dissent is the equivalent of Scalia, Morrison versus Olson back in the 80s. This wolf comes as a wolf. Right. So I think that is the stakes are so high. It’s so technical. But that’s how conservatives are sort of shielding these massive, changes, seismic changes they’re making to the separation of powers in this really highly technical separation of powers decisions.

Leah Litman Maybe just like a beat on the potential fallout, you know, as Justice Sotomayor’s dissent, which will obviously get to, you know, in a second. But as her dissent for the three Democratic appointees said, you know, there are something like two dozen agencies that use these kind of civil enforcement schemes that impose civil penalties in administrative proceedings, like the Department of Labor, the National Labor Relations Board, the FCC, the FTC, Medicare Enforcement also works this way, and the decision calls into question those enforcement schemes and potentially requires the agencies to go to federal court, which are slower, have backlogs, and are now staffed with anti regulatory judges. And I guess, you know, Amanda, I want to start with you on this question. We have talked so much on this podcast about the conservative legal movement’s efforts to undermine and really challenge the administrative state. How should we understand, like this case as a part of that strategy?

Amanda Hollis-Brusky Yeah, so this is this case. There was a question raised which the court didn’t address, and I want to talk about that for a moment. So one of the ways in which the court really could have, adjudicated this case, which is would be under the non delegation doctrine. All right. So the idea that Congress can’t delegate broad swaths of its own legislative power to administrative agencies, absent some kind of rule, right, telling them how to govern. And this is a doctrine that goes back to and before the 1930s, but was really used by the Hughes Court to strike down several provisions of FDR New Deal legislation. All right. So we’re talking about making the Hughes Court great again here. And one thing.

Leah Litman Make the Great Depression great.

Amanda Hollis-Brusky Makes the Great Depression great again. Right? Make laissez faire capitalism great again. And for me, I was really surprised that we didn’t get a concurrence from Thomas about delegation. Right. Saying I hope some future court will be able to revisit the non delegation doctrine. But the sneaky Roberts way is to have the same practical effect without raising the specter of those 1930s judicially activist cases that have now been kind of buried in the canon. Right. We do want to go back to there. Except Thomas does. So for me, that I think is the interesting part here, is that you have that savvy of John Roberts to achieve the same practical effect as reviving this, like dusty non delegation doctrine, except he doesn’t have to revive the non delegation doctrine to do it.

Leah Litman Chris, I had actually wanted to basically put that question to you, which is, this opinion when I read it was just like, this is Peak Roberts to me, insisting the court isn’t overruling any cases while coming up with a pretty nonsensical way of reading the court’s prior cases in order to turn the law in a completely different direction and accomplish the result. You know that the conservative legal movement has pushing for like, am I off there? Or like, what was your reading of that majority?

Chris Geidner You’re you’re not off. And I mean, it’s almost even more than that. It’s just this idea. And and Sotomayor does dig into it. The that that there’s just we all talked back in 2022 about the fact that, like, the court doesn’t care about starry decisis anymore and they’re going to overturn anything that they want to because now they have the votes today. What what Sotomayor suggests and virtually says at one point, it is is basically we’ve moved a step beyond that. Even we don’t even need to say when we’re over overruling precedent. And and that’s really important here because, like, it’s this 1977 case Atlas Roofing that, that going in, everybody was like, well, that sort of controls that. That’s that. And most important particularly to, to Amanda’s point about separation of powers, that’s what Congress has been doing for the past, since 1977. Every law about a federal agency that has been passed since 1977 was built on not just Atlas Roofing, which is the other thing that the the majority pretends like that’s a standalone case. But but everything is based on this idea since then that that yes, these are allowed. Yes. Congress when they’re passing an independent statutory right that an agency is going to enforce, they can do so with an administrative agency through an administrative process and the, the, the misuse of other cases to sort of pick and choose parts of these, these couple of other earlier decisions to say, well, no, we’ve already limited Atlas because of because of this. And so this what we’re doing today isn’t a surprise. Is is like, as Sotomayor says, it’s only a it’s only not overturning precedent if you ignore the precedent.

Amanda Hollis-Brusky This is her quote in a world where precedent means something, this should in the case. Yet here it does not. Right.

Leah Litman Yeah. And just to take a beat on this Atlas Roofing point, you know, Chris said everyone understood that Atlas Roofing settled it. This was the oral argument where Justice Kagan had sent to the advocate. You know, no one since Atlas Roofing has had the hot spot to come in here arguing that these agency enforcement proceedings are unconstitutional because what Atlas Roofing had done is uphold the EPA civil enforcement mechanism for seeking civil penalties, which is what the agency did here. And yet, the court says Atlas Roofing somehow doesn’t control. And how the court gets there is this really confusing process where even though the court has blessed Congress, assigning this authority to agencies, the court now comes back and says, but actually it violates the Seventh Amendment. Because, you know, the penalties that the agency is seeking are all but dispositive. And, you know, just to kind of list the other cases that I had in mind when I said this was Peak Roberts, you know, all of the removal cases, right? He doesn’t say we’re overruling Humphrey’s executor. He just cabins it and goes in a completely different direction. Or cases like stern versus Marshall on the authority of bankruptcy courts. He just says we’re not overruling all those prior cases. I’m just distinguishing that in completely nonsensical ways. And I think you’re both right that, like, this is designed to kind of take a lot of the steam out of the public perception of these cases because, one, they’re not admitting to overruling them, and two, they’re not invoking a doctrine that has now kind of bubbled up in the public discourse, non delegation and where people understand like, oh wow, that would be a big deal. And a dramatic refashioning of how American government works. So I guess, you know, I want to put the question to both of you, like, what else should we kind of know, either about the majority opinion or the Justice Sotomayor dissent that we have now alluded to several times?

Amanda Hollis-Brusky Yeah. I’ll just say, you know, some of the notable quotable from this at the my opinion, you know, the phrase bench slapping right comes to mind. So I think she’s got a lot of good bench slaps in here. Number one, she cites the Harvard Law. Review piece from Will bode which was a Roberts clerk to support the dissents reading in this case she talks about the umpire right metaphor. She deploys that against Roberts and more recently, Kavanaugh. This is not the court acting like an umpire. She even buss out solicitor General Robert Bork, the patron father saint of the conservative legal movement, to say even he wouldn’t sign on to this crap, right.

Leah Litman Even he he was defending Atlas Roofing. He filed the brief there.

Chris Geidner Gear. Is that and this roofing. Yeah, it’s it’s specifically it’s like this precedent that you’re calling the high watermark that you’re just completely ignoring that. That’s Bork’s precedent.

Leah Litman Now, Robert Bork is too much of a rhino for this Supreme Court. That is where we are.

Amanda Hollis-Brusky We get that. Yes, Liberal Robert Bork thank God, thank God we got the conservative majority in here.

Chris Geidner And Rex and Rex Lee. Yeah.

Leah Litman Other notable.

Amanda Hollis-Brusky Well, I mean, today’s decision is a power grab. Sotomayor. Right. Which is really a callback to that Scalia dissent in Morrison versus Olson. She busts out Madison’s Federalist 51. She’s like, oh, this is your favorite quote about the separation of powers. Let me show you how you are now violating it. And so for me, it doesn’t surprise me. She read this from the bench, because this is a case that, as we say in political science, would go below the radar. Right? This isn’t one of these cases that’s going to achieve a lot of salience, but using that tool, reading it from the bench, ensures that people are going to pay attention, right?

Chris Geidner Yeah, yeah. I do think you talked about how it’s, like, quintessential Roberts opinion, I. I do think an example of that is the fact that that as Amanda was talking about what they didn’t resolve, that he sort of highlights that, like, it’s sort of like, oh, we could have done so much more. Look at look at how demure we are. He’s like, since the answer to the jury trial question resolves this case, we do not reach the non delegation or removal issues. I mean it’s just it’s a I mean it goes back to this point that I made at the beginning of the year that I do think strict scrutiny listeners are going to be, particularly attuned to is this idea that, like the Fifth Circuit is actually a great tool for the Roberts Court because they’re able to swat down three of every four decisions. But the reality is that none of them are reasonable. If you have four unreasonable decisions out of the Fifth Circuit and one becomes U.S. Supreme Court law, that’s still bad. Yeah, that’s still a a further right wing encapsulation and capture of the courts and and that sort of I mean, listening to to yesterday’s podcast about murthy, like, yeah. Like they slap down the fifth circuit, but they had this waiting in the wings where they blast, another Fifth Circuit ruling. The other thing that I would say that this, this opinion and the fact that Roberts wrote it and the fact that Sotomayor read the dissent from the bench, really just highlights how much we have to be on guard for Loper, bright and relentless, like, clearly they’re going to be bad if if she was giving the the heads up with I mean, we did not expect a bench dissent from John Cassidy.

Leah Litman So Laura Bright and Ron Lis are of course, the Chevron cases, where, you know, people have asked the court to overrule those. So just to wrap up kind of the discussion on Jakesky, you know, Chris, you alluded to the fact that everything that comes out of the Fifth Circuit is kind of a mess. You know, this is one of the decisions that came out of the Fifth Circuit. And here the Fifth Circuit got way ahead of the Supreme Court and effectively said, you know, we’re just going to ignore this precedent. Atlas roofing you don’t like. And the Supreme Court basically said, yeah, great job guys. Right. And so, you know, even if, as you’re saying, like they slapped them down in some cases, they’re not actually policing them because they’re letting them get away with it in many others. And I again, just kind of wanted to underscore that this case, it’s a little bit more difficult to spin out the precise practical implications. But this is going to have like deregulatory effects because it’s raising the costs for agencies to try to enforce the law against companies and corporations. And so that is going to mean, right. It’s harder right to hold these companies and corporations accountable in federal court. And the chief justice, I think, wrote this opinion in a way that is pretty broad and opens up avenues for challenging other agencies enforcement schemes as well.

Chris Geidner So absolutely.

Leah Litman Yeah. But as you know, we noted up top, one blow to the administrative state just isn’t enough. Because in a separate case, the court opened up yet another avenue for challenging administrative agencies decisions by adopting a pretty demanding standard for how agencies must justify or explain their decisions. And this is the Ohio versus EPA case about the federal government’s Good Neighbor Rule that limited emissions from upwind states. So to minimize pollution in downwind states. Just to briefly recap complicated procedural posture, the Biden administration adopted a federal standard for emissions at the same time that it was reviewing the state’s plans for limiting emissions, and the federal government then rejected some of the state’s plans. States challenge the EPA’s rejection of their plans, and some federal courts invalidated the EPA’s rejection of some state plans. Then the states came back and said the entire federal plan is invalid because it didn’t take account of the possibility that not all of the projected upwind states would be subject to the federal plan. Since the states that successfully challenged the EPA’s rejection of their plans wouldn’t be subject to the federal plan anyways. That’s a procedural posture. So in A54 decision by none other than an Gorsuch preferred son, Neil Gorsuch, the Supreme Court agreed with them staying the enforcement of the EPA’s Good Neighbor Rule before it goes into effect. And while it is being challenged, basically, have fun breathing particulate matter, you hippies. So, Chris, do you want to explain kind of how the majority got there to stay on this rule?

Chris Geidner I mean, the, the, the bottom line that I. Thing is, is so disingenuous. I know Neil Gorsuch a disingenuous opinion that is shocking to everybody. But it is a it’s, on on page 17 of his opinion when he delves into the government’s, the, the dissents arguments, after he dismisses the, the government’s arguments under the APA, he says, the dissent advances other theories of its own. It begins by suggesting that the problem the applicants raise was not, quote, important enough to warrant a reasoned reply from the agency. That is the wildest thing that I’ve seen in an attack on. Well, in this case, just.

Amanda Hollis-Brusky That raging liberal, Amy Coney Barrett.

Chris Geidner So by another Republican appointee. Turn to page 12 of Barrett’s dissent. You learn, if you weren’t already familiar with it, that that was a quote from State Farm, the essential understanding of how EPA challenges are considered under the EPA. The in order for a agency’s response to be arbitrary and capricious, you have to find that the agency in quote from the opinion entirely failed to consider an important aspect of the problem. So the entire Supreme Court decision from Gorsuch is built on this quicksand that literally now, anything that a challenger to a regulation can point to as not being appropriately responded to by the agency is a justification to toss the regulation out, or at least get it put on hold, pending litigation and that that just to me, that is both the entire basis of the decision and the most disingenuous aspect of it. Yeah.

Leah Litman Amanda, I kind of wanted to put the question that you alluded to when talking about, you know, Jarkesy, back to you about this case, which is Justice Sotomayor in Jarkesy called the Supreme Court’s decision a power grab, right, and a significant separation of powers case. The court basically re-allocate its decision making authority among the different branches. So, like, how does this case kind of fit into, you know, the Roberts Court continued power grab and in particular like undermining federal agencies vis-a-vis the federal courts.

Amanda Hollis-Brusky Yeah. So for me, I read this as a almost like a Shelby County versus holder, whereas we don’t recognize that data or that expertise because we don’t understand it. And you didn’t do a good enough job explaining it to us and Neil Gorsuch. Just opinion to me is like, Neil, I hate the administrative state. Gorsuch turns into Neil Gorsuch, the science guy, where at one point he’s like, ozone kids is bad. Sometimes ozone can have these harmful effects and you know, but and yet when the EPA did its due diligence, you know, they didn’t explain enough or they didn’t do the right process. And so it has this effect of rejecting all that expertise, which when you read Barrett’s dissent, really comes to light, right? In Barrett saying the majority just ignores the fact that the EPA actually did provide the right kind of evidence, and they did do the due diligence. They just didn’t explain well enough in a particular point in time. And so for me, it really is this disingenuous kind of rejection of agency authority of saying, you have to just have to do better, right? You have to do better if you’re going to justify these administrative rulings.

Leah Litman Yeah. It has very strong. Lucile. I don’t understand the question and therefore I won’t respond to it. Bluth. Energy and kind of nit picking the, EPA’s decisions. I guess I kind of wanted to, flag two different ways. I understood the decision as aggregating power to the courts and get your reaction on this. You know, one is this case came to the court on a stay application, you know, a request to pause a rule before it goes into effect. And traditionally, when deciding whether to grant a stay, the court considers not just the underlying merits, that is, whether the rule is invalid, but also right the balance of the equities right and the likelihood of irreparable harm. And here, Justice Gorsuch, his opinion draws on this line of questioning from Justice Kavanaugh, from oral argument, where they basically say, like, if both sides say they’re harmed, so what’s the big deal? We’re not even going to attempt to weigh this. And because therefore, like we think the rules are valid, we can just stare at. And so I think that that is a way of saying, well, look, we federal courts just get to superintend what agencies are doing and we don’t actually have to assess, you know, the balance of the harms of our decision in doing so. And then second is and I think this is just another way of thinking about Amanda, what you were saying. And this also draws from, you know, Chris, you were saying the opinion is disingenuous. The court is really nit picking what the EPA did. And it is reading, I think, disingenuously and too broadly, the comments that were submitted to the EPA. Right. And saying, well, this challenge was raised to the EPA, and yet the court refuses right to also interpret broadly and I think, interpret fairly what the federal government had done and said in this case, because none of what the federal government did or said, as Justice Barrett lays out, perfectly, clearly depended on the number of states that were actually subject to this plan. It was in states. Dependent on other considerations, like the cost effectiveness thresholds and, you know, emissions reduction technology. And so, you know, those two pieces I think are a real green light to the federal courts that say you can be a roving commission for any regulations you think are invalid. And second, in deciding what regulations you think are invalid, like go ahead. Right. Treat the record unfairly, give the challengers all the benefit of the doubt, and then nit pick the federal government and, you know, not kind of, take seriously what they were doing or saying.

Amanda Hollis-Brusky Yeah. And now that’s exactly it. Yeah. And one of the things that I keep coming back to as I’m reading this, this, court’s decisions is, is this idea of judicial restraint versus judicial activism. So way back in the 80s. All right. The court was on this hobbyhorse of judicial restraint. Right. Courts judges are unelected. They if there’s a way to construe a statute or a rule that would uphold or maintain the product of, you know, democracy of the people, then we as judges have a responsibility to read the rule or statute or constitution that way. Right? We defer to the political process, and only when it is absolutely necessary do we intervene, not because we think a rule is the best rule or we think a law is the best law, but because it is reasonable, it is constitutional, it is legitimate. And these cases to me are the conservative majority finding ways, as you said earlier, to nitpick and to tear down and to reverse. All right, agency rulings, expertise and even, you know, congressional statutes, readings of congressional statutes. So I think it all feeds back into that broader agenda of, as Sotomayor said, aggregating power back to the core and letting them be the last say.

Chris Geidner I do think two things that that responding to your comments, as you said, that that sort of came into my mind, was that the the looking at the preliminary injunction factors, I mean, obviously, likelihood of success has has regularly taken the four. But I, I’ve noticed and I think we saw in the the Idaho trans care case, that that sort of the, the hardship factor sort of being almost. Yes. It if not disingenuous at least like punted to the side, in those cases because it seems to me that, that there if, if it would clearly favor the the challengers when, when we’re talking about a new law that would restrict ability to receive care that they previously were able to receive. And yet it was considered irrelevant. And then the other point is that I do think this idea of, of comments in rulemaking forming the basis is, is I can’t quite come up with the analogy, but it’s like, it’s it’s that like it’s like this is what it is. It’s, it’s when somebody quotes a tweet and says, there are people saying.

Amanda Hollis-Brusky Many people are saying. Many people are saying.

Chris Geidner There are 3000 comments that were submitted. Yes. One of them did raise that issue, Neil. Does that does that mean that the agency needs to respond to again, once we’ve removed important from the factor, does that mean that the agencies now need to respond to every statement implied? Because this is the other issue, is that it wasn’t even an issue raised by the States in their in their criticism, it was implied by their complaint. And it just it really is. We’re starting to see the this comment issue coming up. And I think speaking of the shadow docket and speaking of states, in the title nine challenges, the challenges to the Biden administration’s title nine rules. And I forget which one of the district court decisions I think it might have been. Doty in in Louisiana, his decision, relied on actually did quote from like it in a comment submitted to to the the agency, they were told of concerns about this aspect of the rule.

Leah Litman And I just kind of want to explain for our listeners who might not be super immersed in administrative procedure, like what the comment issue kind of is and how it arises. So in these arbitrary and capricious challenges, you know, when an agency is thinking about a rule, they will send out a notice, a proposed rulemaking. People can then submit comments, and then the agency will publish a final rule, and. Responding to comments. But as Chris was saying, you know, generally they only have to respond to important or material comments. And generally you can only challenge a rule right on the basis of comments that were actually presented to the agency. And I think, you know, part of the oddity of this case is it was just a really weird ground to stay a rule and prevent it from going into effect, that an agency hadn’t responded to a comment, in part because the comment, you know, it’s not clear, raise the issue. It’s also not clear how material it was like to the ultimate rule. And also, the agency had a motion for reconsideration in which this specific issue was raised. And the agency explained why this did not actually require it to adopt a different plan. And yet, you know, that doesn’t seem to matter either. And this is just another way in which, again, the court seems to be inviting, you know, future judicial challenges to agencies. So, you know, we’ve alluded to the Barrett dissent. She wrote the dissent that was joined by the three Democratic appointees. You know, anything kind of of note about that, dissent that we should be aware of?

Chris Geidner Just to point out for for readers who want to look that the part of Barrett actually quotes from the the comment on page ten of her dissent, and she says this sentence says nothing about what would be required if, after the EPA finalizes its disapproval and issues a final rule, some states drop out of the plan. And so it was. It’s not only that they have gotten rid of the important language, but the even the comment that they use doesn’t doesn’t really say what what Gorsuch was saying.

Amanda Hollis-Brusky Yeah. And I’ll just say in the final paragraph of her dissent, this is where I really see a contrast between Neil Gorsuch is like fourth grade science view and Amy Coney Barrett saying, these are really thorny technical issues. And, she says our emergency docket requires us to evaluate quickly the merits of applications without the benefit of full briefing and reasoned lower court opinions. Given those limitations, we and here is an actual statement of judicial restraint, should proceed all the more cautiously in cases like this one, with voluminous technical records and thorny legal questions. I respectfully dissent that Neil the science guy Gorsuch, can really understand what’s going on here. Yeah.

Leah Litman Yeah. And Neil’s like, no, I got this one, I got it. I am the ozone specialist. Matthew Casimir thought he was chief scientist. I’ve got nothing on me.

Amanda Hollis-Brusky That’s right.

Chris Geidner I would note, a concern that I guess is not a new concern, but just that that this does raise is, to the extent there was any sort of pairing of Barrett and Kavanaugh on, being, judicially restrained when it comes to, stay applications and shadow docket requests, as Amanda was discussing, they he was the vote that mattered here. Yeah. Had he adhered to that principles, Barrett would have been writing the majority.

Leah Litman Yeah. Okay. So finally, we’re just going to briefly know we got the opinion in Harrington versus Purdue Pharma. This ended up being A54 opinion with Justice Gorsuch writing the majority, with somewhat of an odd line up. And the majority opinion ultimately invalidated the settlement in the opioid case. And it concluded that the bankruptcy Code does not authorize settlements that include the release of claims against non parties here, the Sacklers. So recall that in this case, the Sacklers are alleged to have drained the company’s assets and to essentially be holding any settlement deal hostage until they are released from individual liability. The dissent by Justice Kavanaugh, joined by the chief justice and Justice Sotomayor and Kagan, focuses on how this settlement, you know, might be the best option for opioid victims and how the, you know, settlement was supported by many, including all 50 state attorneys general. But the majority concludes this just isn’t an authority that bankruptcy, courts have under the bankruptcy code.

Amanda Hollis-Brusky Yeah. And just note this is another curious coalition in terms of the breakdown. If Justice Jackson had signed on with the other liberals, then the dissent becomes the majority in this case. So, we see another interesting the majority and dissent coalition happening in this case.

Chris Geidner I just I thought that this was an interesting decision because as opposed to the, the, the EPA decision, where where it was pretty clear that it was sort of like, I want pollution versus I don’t. This was a dissent where you did see both sides saying, I am trying to my opinion, believes that it is advancing the cause of protecting and supporting those people who were wronged by this, which is interesting. Like, sort of like everybody was like, no, we know these were bad people who did a bad thing. And we’re basically now left with a bad situation.

Leah Litman [AD]

Leah Litman That is all we have time for. On this emergency same day episode. Thank you so much, Amanda and Chris, for joining me as, guest hosts. Want to put in two quick reminders? One, if you are not subscribed to Law Dork, you are missing out on great real time, in-depth coverage of the courts. Chris literally broke the story about Justice Alito selling his Bud Light stock as part of that culture war fight. He is the one on top of the sanction proceedings against the LGBT civil rights lawyers and more. And if you are not following Amanda, and if you haven’t checked out Ideas with Consequences and Separate But Faithful, you are missing out on understanding, you know, the development of these cottage cottage industries and legal theories and different organizations that are changing the law. These are the mechanisms by which laws changing and how. So thank you so much to the two of you for making time to join.

Amanda Hollis-Brusky Thanks, Leah.

Chris Geidner Thank you.

Leah Litman Strict Scrutiny is a Crooked Media production hosted and executive produced by me, Leah Litman, Melissa Murray and Kate Shaw. Produced and edited by Melody Rowell with help from Bill Pollock. Thanks to Evan Sutton for pinch hit producing this episode. Michael Goldsmith is our associate producer. Our interns this summer are Hannah Saraf and Tess O’Donohue. Audio support from Kyle Seglin and Charlotte Landes. Music by Eddie Cooper. Production support from Madeline Herringer and Ari Schwartz. Matt DeGroot is our head of production and thanks to our digital team, Phoebe Bradford and Joe Matusky. Subscribe to Strict Scrutiny on YouTube to catch full episodes, find us at youtube.com/Strict ScrutinyPodcast if you haven’t already, be sure to subscribe to Strict Scrutiny on your favorite podcast app so you never miss an episode. And if you want to help other people find the show, please rate and review us. It really helps.

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