Leah, Melissa, and Kate weigh the implications of Bloomberg’s scoop on EMTALA (apparently someone at the court got a little trigger-happy with the upload button). Then they take a look at today’s two official opinions–is a $13,000 bribe equivalent to buying someone Chipotle? Coach Kavanaugh has thoughts. And did the government strong-arm social media companies into censoring content? There’s a word for that: jawboning.

TRANSCRIPT

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

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

Leah Litman I’m Leah Litman.

Melissa Murray And I’m Melissa Murray, and the band’s all back today for this bonus episode on wait for it. The two opinions that the court deigned to release today, both of which underscore some clear patterns at the court, namely, that this court seems bent on greenlighting corruption and reversing the Fifth Circuit. We’re here for one, not here for the other. We also wanted to note some concerning district court decisions invalidating the latest student debt relief initiatives that the Biden administration has put forth, as well as a really important search grant. But wait, Kate, you’re looking at what’s going on. What what’s happening?

Kate Shaw We are still processing in real time some breaking news that Bloomberg has just given us. And that is that it appears that the Supreme Court inadvertently posted a copy of the, taller disposition on the court’s website this morning before immediately taking it down. I’m sure the two of you were on that site refreshing every five seconds, every feature wise, I missed it. But you know what? The intrepid team at Bloomberg somehow caught what flashed and then disappeared, which was apparently the court’s disposition. And I’m saying disposition and not opinion, you know, deliberately in the a case involving the federal and Tala statute. That’s the case about emergency care for pregnancy emergencies. If they happen in states like Idaho that have basically full abortion bans, but where federal law clearly requires care to be provided regardless. So that’s Sam’s whole case. We’ve talked about it a lot. It’s one of the ones we are the most anticipating and dreading, at least coming out of the oral argument. But what do we think we learned from this Bloomberg reporting?

Melissa Murray So Bloomberg is reporting that the decision, if this is the actual disposition, would dismiss the case as improvident. Granted, that is to say, Scotus isn’t going to decide whether, Tala permits medically necessary emergency abortions to protect the health of the mother so we won’t get to the merits. But by dismissing the case as improvident granted, it would reinstate the injunction that the trial court had earlier issued that required the state to permit hospitals to perform medically necessary abortions. So that would be a good thing.

Leah Litman I guess it would be. And to be clear, we don’t know whether this is going to be the final disposition of the case. This was an inadvertent posting. Much like the Dobbs leak was.

Melissa Murray That was not inadvertent, were a momentary posting like.

Leah Litman Sure was. Well, we don’t know that Martha and wasn’t in the reporter’s office just uploading documents in order to send up a flare. Right. I’m just saying we can’t rule it out.

Melissa Murray Or maybe this is a Trojan horse.

Leah Litman We don’t. We don’t know. And again, we don’t know. To be clear, we don’t know whether this is going to be the final disposition of this case. But in the event it is, we want to prime our listeners for how to understand what Bloomberg reports the court might do. And as Melissa said, like, this is good news in that it allows women in Idaho to receive life and health saving care. But that could be temporary. The decision Bloomberg describes is not a decision on the merits about Am Tala. It does not say that I’m taller, requires hospitals to be able to provide emergency and medically necessary abortions. Instead, they would be deferring a ruling on that, saying we’ll get to this later.

Melissa Murray When’s later?

Leah Litman Maybe after an election. Yeah. And again, to say this again, the court might still rule that emergency abortions can be banned and hospitals can be required to deny women emergency care. We don’t know whether this is the final disposition or the opinion or ruling we will actually get, but if we do, this is just a pause. We’ll get to this later.

Melissa Murray Can I just say that if this is what happened and if this is the disposition cert, and granted, we’re not going to reach the merits just yet, we could reach the merits later, maybe after November 2024. That would be so. And the Chief Justice, John Roberts wheelhouse, remember in Dobbs in oral argument in December 2021 how he was pushing, pushing, pushing to have the court take a compromise position whereby they would uphold the Mississippi law that was challenged at Dobbs, but they would not formally overrule Roe versus Wade, even though those two things were utterly inconsistent with one another. And we speculated then that his whole move toward this compromise position was really about the midterm elections. Same idea here. If this is exactly what’s happening.

Leah Litman It is. And this would effectively be like the medication abortion ruling again, saying, just wait. Until after November 2024. We’ll get to that Comstock Act, and we will get to medically necessary abortions at some point, just not now.

Melissa Murray And don’t worry about it, ladies. You can hang up your voter registration cards. We’ve got it handled right.

Leah Litman Exactly, exactly. No need to go to the polls, ladies. It’s all good. Exactly. Calm down, you hysterical lady parts. Nothing to see here.

Melissa Murray No need for a row. Member. We got it.

Kate Shaw That, well, could be the strategy. So we have these two huge abortion cases and the Supreme Court. Maybe if, again, this is what we are going to see as the final outcome in this case, tomorrow or Friday, the court could have on its dance card two abortion decisions in which it declined to yank away medication abortion, and it declined to remove the protections of federal law from women experiencing pregnancy emergencies. And it definitely does seem as though the best way to read those two events is the court trying to lower the temperature on abortion around the election, and that cannot be how these two things land. It gets critical because this is just about one, right?

Leah Litman This is not if yes. So stay.

Melissa Murray Vigilant. Don’t let them gaslight you.

Kate Shaw Also just could I say one other thing about timing, if in fact this is what happens. It’s so crassly political, I think because a dig a dismissal as an providentially granted case is argued April 24th. I think it should not take two months for the justices to decide. Well, this was a premature moment to intervene in this case. We should wait for lower court proceedings to further develop, etc. usually that would happen at conference and they would dismiss it within a week or two. So it looks to me like they sat on it for two months trying to figure out some off ramp. And this is what they came up with.

Melissa Murray So can I remind our listeners about an earlier, a much, much earlier dig that was again, sort of along similar lines. So it’s history and traditions story. Our listeners, back in 1955, just a year after the court decided Brown versus Board of Education, another case came to the court called name versus name, which is a challenge to Virginia’s Racial Integrity Act, which was the law that banned interracial marriage. And the court initially granted sorcery. And then apparently memos were circulated. And Tom Clark, who was a justice at the time, wrote in one of his memos to his chamber staff that this case name versus name was a quote unquote, ticking time bomb, because everybody knew that the real fear behind integration wasn’t the prospect of integrated classrooms, but that integrated classrooms would, in time lead to integrated bedrooms. And so the court, perhaps recognizing that massive resistance was already an issue and that the South would literally lose their minds if the court decided name versus name, decided to dig it. It was improvident granted. And this got kicked down the road to 1967, when finally the court invalidated Virginia’s miscegenation ban and then was really kind of doing a cleanup job on all of those recalcitrant southern states. So we’ve seen this before.

Leah Litman Yes. And just some additional possible explanations for this delay. You know, one is very possible. There’s negotiations happening behind the scenes, and there were not sufficient votes for a dig, you know, immediately after conference. Second, also possible that Sam Alito has in the works an absolute howler of a dissent that is going to delay any possible posting of said disposition. And then finally, I think we also have to put on the table that the court is saving this because it will get covered as the court permitting emergency, medically necessary abortions. And so timing that ruling, together with the rulings we are concerned about in the immunity decision, the January 6th case, the administrative law cases and others is a way of tempering the media coverage.

Kate Shaw One other thing if they did not have to write a long opinion about preemption doctrine, that’s just another reason. It is outrageous that they are waiting to release as many opinions as they still are. It is insane. I want everyone to read Lisa’s times op ed about the unconscionable delay in the immunity case every day, twice a day if necessary, until that fucking opinion is out in the world and I am sure they are not going to release it tomorrow because it’s debate day and they do not want the immunity opinion to drop on the day that the presidential debate is happening, because they don’t want to be headline news. They don’t I don’t I think I think it’s going to be another quiet day Thursday. So they can try to, like, escape attention during the presidential debate and then just go wild on Friday and maybe Monday.

Leah Litman We will not let them escape attention. However.

Kate Shaw No, we will not.

Leah Litman We have some additional breaking news regarding the decision from Bloomberg. So Bloomberg has added some details that I want to note. Three justices dissented from the dig, Clarence Thomas, Samuel Alito, and Neil Gorsuch. Obviously, Justice Kagan apparently wrote separately in a concurring opinion. Justice Jackson wrote separately to say, quote, today’s decision is not a victory for pregnant patients. It is delay.

Melissa Murray Yes, yes.

Leah Litman We’ve seen that line in.

Kate Shaw If this is indeed.

Leah Litman The disposition, keep it in.

Kate Shaw Bloomberg really keeps it coming.

Leah Litman Justice Jackson for the win.

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Kate Shaw So should we talk about the opinions that we actually did get?

Melissa Murray Yes, sure. All right. All right. So first up is Snyder versus United States. This was a case about government corruption. Crickets.

Leah Litman The court and government corruption. What is there to say or do?

Melissa Murray Well, Leah, the court, in a 6 to 3 opinion that split along familiar ideological lines, narrowly interpreted yet another anti-corruption statute to make it easier for government officials to be corrupt. I know this is truly shocking from this corruption forward court.

Leah Litman But let me make public corruption great again.

Melissa Murray Yes, we say yet another anti-corruption statute because this court has actually been on a real tear in the last couple of years in limiting the reach of anti-corruption statutes. Basically, they have eliminated the government’s ability to prosecute anything that falls short of extremely cartoonish quid pro quo bribes. So just a few cases that are part of this trend. Like, Kate, why don’t you get us started? Because I know you’ve written a ton about this in your partizanship crepe paper.

Kate Shaw I did, and honestly, it would take us the whole episode to really talk through the development in this area. But just to mention a couple that people might remember. McDonnell versus United States was a case in which the court overturned the conviction of former Virginia Governor Bob McDonnell for accepting lavish gifts, including money for his daughter’s wedding. A Rolex watch, lots of other things that were given in exchange for the governor making some calls and arranging meetings in order to help a local businessman, court said. Nope, that kind of conduct cannot be prosecuted. Then we had Kelly versus United States, which is a case in which the court overturned the convictions of several new Jersey officials related to Bridgegate. That was then governor Chris Christie and his administration’s decision to shut down lanes on the GW bridge as political retaliation for another official not supporting Christie’s reelection bid again, the court said. That wasn’t corruption that could be prosecuted. We had Shimon Lee, we had Per Koko earlier, we had Sun Diamond. All of these cases involved different statutes and different underlying conduct, but the exact same bottom line conclusion, which is none of this is conduct that the federal law can reach and can criminalize. And it is kind of this game of whac-a-mole in which the court strikes down the use of particular federal anti-corruption statutes. Federal prosecutors find another statute to charge egregious corrupt conduct under. And the court also either strikes down or narrows that application of a statute until there is almost nothing standing. And yet and we got another installment in that effort today.

Melissa Murray So this case, Snyder versus United States, concerned one of the last remaining anti-corruption statutes, 18 U.S.C. section 666, not my choice, which prohibits state and local officials from, quote unquote, corruptly soliciting, accepting, or agreeing to accept anything of value from any person intended to be influenced or rewarded for an official act. The specific legal question here was whether accepting a gift, or in this case, a gratuity or reward for an official act violates the statute. So this isn’t bribery, which happens before the official act. In this kind of scenario, the official takes a gift or a reward without some kind of ex-ante agreement that promises the gift in exchange for the official act. But where the gift is in exchange for the act. Right. So in this particular case, an Indiana mayor had awarded $1 million trucking contract to a trucking company, and the trucking company later gave him more than $10,000 for consulting services, or maybe just as a gratuity. The US federal government said that that was corruptly accepting something of value for the purpose of being rewarded for the earlier act, giving this trucking contract.

Leah Litman And guess what? The Corruption Forward Supreme Court said no, because every government official is entitled to at least one emotional support billionaire to provide them gifts. Gratuity is consulting services and they need to be able to accept things of value from said emotional support billionaires. So the court split, as we said, along 6 to 3 ideological lines, with Justice Kavanaugh writing for the six Republican appointees and Justice Jackson writing the dissent for the three Democratic appointees.

Kate Shaw Can I ask a quick question? Which is that do we think that even this shameless court understood that you just could not have, like Clarence Thomas write the opinion saying, yes.

Melissa Murray The bench is getting really small for the corruption case.

Kate Shaw So who the can you among the ones in the majority, you definitely can’t have Thomas. You probably can’t have Alito. So I guess Kavanaugh is like relatively clean on this front right now. So I guess this is how he gets the opinion there.

Melissa Murray Like, okay, so Brett’s clean. Amy’s clean. And I hate Neil.

Kate Shaw So Brett I owe the Neil. Neil has an incredibly annoying concurrence. Yes, we can talk about past stuff. He did get his say. But yeah. So this is a Kavanaugh opinion.

Leah Litman I mean, I guess I want to reserve judgment on that until I see who’s writing the January 6th Fisher case. Because if they assign that bad boy to Alito or Thomas, then that’s a sign there is actually no shame or.

Kate Shaw There’s no figuring out. Exactly. Right. Yeah. Okay. All right. Fine. Let’s reserve judgment. I think that’s right.

Melissa Murray Okay. So Kavanaugh’s opinion starts with the baseline. View that while some gratuities might be problematic, others are commonplace and might be innocuous. Depending then proceeds to make a remarkably a textualist. Some might even say in a tie textualist move in which essentially says look, this provision, regulating gratuities to state and local officials has some things in common with the anti-bribery provision applicable to federal officials, but we’re not going to actually treat it like an anti-bribery statute. Why would we do that? Even though the provision, as we’ve noted, has some obvious similarities with the separate provision regarding federal gratuities? Textualism.

Kate Shaw Can I just say, though, you said Melissa, the opinion opens by noting that there might be some problematic gratuities, but there are lots that might be innocuous. And then it lists a whole bunch of innocuous examples, like an end of your gift basket to a child’s public school teacher, a college dean giving a sweatshirt to a city council member.

Leah Litman Or like some student taking a professor to Chipotle.

Kate Shaw Okay. And then also to a steak is oh, yes, it is like the most breathless. It’s like, what about giving somebody $100?

Melissa Murray Wait wait wait don’t you’re Brett voice do your voice. I don’t have your sunglasses on. No, no.

Kate Shaw Wait, wait.

Melissa Murray Okay, fine. I will actually do it. Read it, read it.

Kate Shaw But then Jackson actually goes off right on. But she she she disparagingly references burrito bowls. It. Oh, Leah. Nice sunglasses I love those. Okay, fine. So let me, let me let me try to do my cabinet here. This is like a little a little data poetry. I don’t have my sunglasses in my little recording.

Leah Litman Some of us came ready. That’s. That’s your fault.

Kate Shaw Oh, my God, I do it.

Melissa Murray Okay, here we go. All right. It’s strict scrutiny. Beat poetry. Success. You okay? Cobra, I like this.

Kate Shaw All right, all right, let’s do it. Okay, so, is $100 Dunkin Donuts gift card for a trash collector? Wrongful. What about a $200 Nike gift card for county commissioner who voted to fund new school athletic facilities? Could students take their college professor out to Chipotle for an end of term celebration? And if so, would it somehow become criminal to take the professor for a steak dinner?

Leah Litman And could they order guac because guac is extra.

Melissa Murray This opinion is extra,

Kate Shaw I mean, I love Jackson, like just she’s just like, we’re talking about fucking burrito bowl.

Kate Shaw Okay, okay. Well, all right. So. Yeah. So that’s so anyway. But but the point I was actually going to make here is that he list these like, that’s that’s actually a later passage earlier. He’s also talking about the like gift card for the school teacher. But the point is this case involved a $13,000 payment, not a Chipotle burrito. Like, come on, Brett.

Melissa Murray Okay, time the fuck out, Kate. Who among us hasn’t given our kids teacher a $13,000 trucking contract? Like, who hasn’t done that?

Leah Litman Yeah, it’s like.

Kate Shaw The worried world these people live in.

Melissa Murray Wait, wait, wait. Do you remember the oral argument like. Oh, yeah. I’m not surprised at all by this oral argument. Like the in little Washington giving a tip to my plastic surgeon. Like, all of this is like they were.

Kate Shaw I’m not remembering though. Neal did somebody did bring up Neil. Neil brought up Chipotle. The argument. Right.

Melissa Murray Maybe this is Cheesecake Factory.

Kate Shaw Oh that’s right yes yes. Yeah. Chipotle is all bread. All right. We’re getting a little far afield. Okay. Let’s go back to the opinion.

Melissa Murray We’re getting a little far afield from anti-corruption. Correct.

Leah Litman Much much like the court is.

Kate Shaw This is I think they want us to, right? Like that. That is I’m sure the point because, like, what they are doing here is so dystopian, right. Like so it is like funny. It is preposterous. But they’re essentially making corruption and even egregious corruption insulated from criminal accountability as a matter of federal law. So Kavanaugh does this using one of his, like, now sort of go tos, which is like a list sometimes with bullets, sometimes without. There’s like invisible bullets, I think, on this list. But he says text, statutory history, statutory structure, statutory punishments, federalism, fair notice. These are these are all the reasons he gives for finding that this statute cannot be applied to reach the conduct at issue here. But I have to say, I don’t know if you guys felt this way reading the opinion. His heart isn’t even in it. He’s like, I think the vibes are off. Yes, applying this law this way. And that’s really what the case is about. And he sort of tries to like, make arguments grounded in these like categories. But I don’t think he even has convinced himself. Quite honestly. It’s really just the vibes.

Leah Litman Yes.

Melissa Murray The Justice Gorsuch concurrence can basically be boiled down to one thing. It’s just like, guys, this whole decision is really about the rule of law and the rule of law entity is a canon of statutory construction that basically says we interpret vague criminal statutes in favor of the accused, the defendant. And so I guess in this case, the statute is weirdly vague, and we should interpret it in the light that is most favorable to Mr. Snyder, the government official receiving the $13,000 tip for awarding the contract, which is all apparently fine.

Leah Litman Yeah. So basically, the court’s six three went all in on the just the tip theory of government. That’s also, you know, the, the bottom line of this case. But now on to the good opinion in the case, which is Justice Jackson’s dissent, and it absolutely hammers the majority.

Melissa Murray So what’s so pointed and so snarky?

Leah Litman Okay.

Melissa Murray And it just reminds me of Steel Magnolias. Like you point in Steel Magnolias where I think it’s like I forget which one it is with some. Like if you have nothing nice to say, come sit next to me. I want to come sit next to her.

Leah Litman I know, I know, me too. Okay, so there was one line. There were many lines. But let’s start with this one quote. Snyder’s absurd, and a textual reading of the statute is one only today’s court could love. End quote. Oh, really? Girl? What? Why is that? Why would only this court love this? Could it have something to do with the free PJ trips they get as gratuities for allowing emotional support? Billionaires to spend money influencing officials? I don’t know, perhaps.

Melissa Murray So this dissent is really I. I love it so much I literally inject it into my veins. It accuses the court of relying on policy objections to these kinds of prosecutions. She notes, quote, both the majority and Snyder suggest that interpreting section 6666 to cover gratuities is problematic because it gives federal prosecutors unwarranted power to alleged crimes that should be handled at the state level. But words could. Insureds of this nature must be addressed across the street with Congress, not in the pages of the U.S reports. End quote. Hello, Justice Alito, it seems like you’ve been reserved line up of your own crap like Congress should get in here, not us.

Kate Shaw Yeah, right. So she’s correctly, I think, redirecting the majority to Congress, and saying, take it up with them. And she mounts a totally straightforward and devastating textual case for the government, which is the statute prohibits more than one thing, one accepting gifts to be influenced, i.e. like quid pro quo bargains, but also rewarded. That’s in the statute and that is gratuitous. The Jackson opinion describes the majority as offering rank speculation as to why rewarded in section 666 might mean something other than what it ordinarily does, ultimately assigning the word some busy work relating to potential defenses to bribery charges. It has this like amazing transition, which is speaking of time, I think I’m not gonna put sunglasses back on, but just like imagine the yes under this part, a different kind of sunglasses, like actually cool ones. So speaking of text, the language of other statutes demonstrates that Congress uses the word reward when it wants to criminalize gratuities. And I mean, she just like, so disparaging of I think all of these like, cutesy examples. She says limits within the text of section six six, six provide fair notice that commonplace gratuities are typically not within the statutes reach, and they suffice to prevent prosecution of the gift cards, burrito bowls, and steak dinners that derail today’s decision. So she’s like the statute already excludes that, you absolute morons. One more word on Snyder before I do, murthy, which is I just wanted to pose a question which is Kagan, remember, was pretty hard on the government during the oral argument, and we had this fear that this might be like a nine 0 or 8 one opinion, as many of the corruption cases that we talked about a couple of minutes ago were. But this one is six three. And it honestly feels to me like Jackson’s dissent was so good that she might have persuaded Kagan. And I’m not sure where Sotomayor was coming out of argument, but at least Kagan to change her vote. Does that seem right?

Leah Litman It’s definitely a possibility. I thought Justice Kagan was hard to read during the argument, and she was definitely pressing the federal government on, like, where’s the dividing line? But also since she also.

Kate Shaw Wrote the opinion in the Bridgegate case, like she definitely has been skeptical of some of these anti-corruption statutes. So anyway, if not, I don’t know that Jackson of Dissent is amazing.

Melissa Murray I’m sure Jackson buttonholed him like girl burrito bowls. Seriously, And Kagan, which which.

Kate Shaw Which side of this are you on? Yeah.

Melissa Murray You’re right.

Leah Litman Okay, okay. So bottom line is, you know, Snyder increases state and local grift and graft because people who take illegal gratuities and avoid making explicit agreements and using the magic words of quid pro quo could get off scot free. Which the closing line of Justice Jackson’s dissent describes as functionally indistinguishable from taking a bribe.

Kate Shaw Yeah, and scot free. As a matter of federal law, there is still the possibility of state and local prosecution, although when push comes to shove, the Supreme Court, I think, is going to declare some of this conduct constitutionally protected from any prosecution by whatever level of government. But at least for now, this opinion applies only to the federal statute.

Melissa Murray I’m waiting for the decision where the bribe is merely political.

Kate Shaw Speech and the first bribe is first time. Yeah, I think we’re literally like halfway down that pack.

Melissa Murray Getting there.

Kate Shaw Stay tuned.

Leah Litman [AD]

Melissa Murray Murphy versus Missouri was decided today. This is the Jawboning case, where a group of individual citizens and states sued various parts of the federal government, including the Surgeon General, the white House, the FBI, and others on the ground that the federal government had coerced or strongarm social media companies into censoring their content. And in particular, this was around Covid misinformation or social media posts criticizing Covid policies, as well as election denialism and misinformation.

Kate Shaw So in this case, Barrett, for A63 court, tosses the case on standing grounds. So in certain respects, this is similar to the, if a presto in case right gets dismissed on standing grounds. We’ll talk a little bit more about sort of why. But just to say one thing at the outset, I think that the outcome in this case has very important forward looking implications, which is that the district court had initially issued this incredibly broad injunction that would have prevented the federal government from communicating at all with social media companies. Now, the Supreme Court lifted that injunction. So it’s not in effect now. But if it had somehow allowed some kind of injunction like that to go into effect, that would have really hamstrung the federal government’s ability to communicate with social media platforms, in particular around the upcoming election, around things like election misinformation. And that could be genuinely, incredibly dangerous to prevent the federal government from having these conversations. And this standing dismissal means that, at least in the short term, the federal government is not going to be constrained in its ability to have these communications with social media companies.

Leah Litman And the bottom line of the court’s standing analysis was that the plaintiffs in this case hadn’t shown that their injuries, were traceable to or caused by anything the federal government did, and therefore any future injuries or any future censorship was not likely to recur because of the federal government. So what Justice Barrett says is, quote, this evidence indicates that the platforms had independent incentives to moderate content and often exercise their own judgment. To be sure, the record reflects that the government defendants played a role in at least some of the platform’s moderation choices. But the Fifth Circuit, by attributing every platform decision, at least in part to the defendants, glossed over complexities in the evidence. End quote. There was also a really important footnote because while the court said the plaintiffs didn’t have standing and therefore it didn’t have to address the merits of what the District Court and Fifth Circuit concluded, and those courts said, you know, the federal government violates the First Amendment. Here, Barrett drops a footnote and says, quote, the Fifth Circuit relied on the district court’s factual findings, many of which, unfortunately appear to be clearly erroneous. And, quote, and then it goes to some examples, and that if you look at the examples, they seemed to suggest that these justices in the majority also think the courts were wrong on the merits of the First Amendment claim, too.

Melissa Murray Right. So this is not a unanimous decision. There was a dissent. Justice Alito wrote a dissent in which Justices Thomas and Gorsuch joined in that dissent. Justice Alito characterized this case as, quote, one of the most important free speech cases to reach this court in years. So much for hyperbole. Anyway. He also noted that, quote, what the officials did in this case was more subtle than the ham handed censorship found to be unconstitutional in Zullo, but it was no less coercive. And because of the perpetrators high positions, it was even more dangerous. It was blatantly unconstitutional. And the country may come to regret the court’s failure to stay. So officials who read today’s decision together with Bulow, will get the message. If a coercive campaign is carried out with enough sophistication, it may get by. This is not a message this court should send. And just to remind listeners, NRA versus Bulow is a case that the court earlier decided unanimously, in which it reinstated a lawsuit that was brought by the National Rifle Association, the NRA, alleging that Maria Bello, a New York official, violated the NRA’s First Amendment rights when she urged banks and insurance companies in New York not to do business with the NRA in the wake of the parkland 2018 shooting.

Leah Litman This dissent by Alito is really conservative grievance on steroids. It relies on Jim Jordan’s weaponization of government House Committee report. It says, quote, all these victims simply wanted to speak out on a question of the utmost importance, end quote. And I also wanted to point out that the dissent repeatedly cites all of this government speech, including tweets, in order to establish the merits of a First Amendment claim. Even though if you think back too many years ago, or maybe not so many years ago, the court’s hesitation to consider the same when Trump’s travel ban was challenged on the ground that it violated the First Amendment because it was motivated by anti-Muslim animus. And there, you know, courts were reticent to consider statements, including tweets by Donald Trump in order to assess the First Amendment claim there.

Kate Shaw I mean, the Alito opinion is just like luxuriating in these offhand remarks by Jen Psaki during press briefings. I mean, there is so much absurd invocation of all of these statements. And you’re right, Leah, it’s pretty conspicuous that in other context, the court is like nothing to see here when it comes to government speech.

Melissa Murray That actually was a striking. Part of the Alito dissent. I mean it’s so anti Biden administration. I mean sort of like this guy was keeping a burn book for the whole of the pandemic of stuff the Biden administration was doing. From.

Kate Shaw Can I, can I say one thing I haven’t, I haven’t had a chance to, like, go sort of line by line through this, but I think it’s right. It’s very there’s individuals who are named repeatedly Biden officials, President Biden, and then there’s like a gauzy invocation of, oh, an earlier government. And there’s a mention of 2019. So he’s much less interested in naming and shaming Trump administration officials. It’s it seemed conspicuous on my quick read.

Melissa Murray I think that’s exactly right. It has a kind of Fox grandpa quality to it. I mean, it’s just very like just anti anti Biden. I don’t know, it’s like it’s a tea leave sort of thing. But it did make me wonder when I read it like what does the immunity decision look like exactly. If you know, he’s like so clearly naked in his distaste for the current administration.

Kate Shaw Yeah. Well, if he writes anything, I’m so curious. I mean. But you know, there’s no rush. Take your time, guys. Okay, so just one more small point to make about this case, which is that I think that the majority opinion has declared that we can still call the platform formerly known as Twitter, Twitter, which we basically still do, but the Supreme Court agrees. So let me just read a quote that says, since the events of the suit, Twitter has merged into X Corp and is now known as X. For the sake of clarity, we refer to these platforms as Twitter and Facebook, as they were known during the vast majority of the events underlying the suit. Okay, so fine, just this just a backward looking description, but I think it’s essentially the court telling.

Melissa Murray Us Amy Coney Barrett is his mama called him Twitter. I’m gonna call him Twitter.

Kate Shaw Yeah.

Leah Litman Yeah.

Kate Shaw Occasion makes an okay point. I think we have to give her that. Okay.

Leah Litman So bottom line, you know, yet another fifth Circuit decision that is reversed. Also reversed on standing grounds, like them, of a freestone case, like, recent case on Biden’s enforcement guidelines for immigration, like the Indian Child Welfare Act case. You know, the this season on Scotus or maybe last season and the season before, you know, clean up on fifth circuit, seems to be one of the running themes.

Kate Shaw Okay, so before we go, I just wanted to highlight a couple of pieces of non Scotus, but really important legal news. And one is a pair of district court decisions on one of President Biden’s recent student loan forgiveness programs. So these district courts are actually, maybe surprisingly, not in the Fifth Circuit. One is in Kansas, one is in Missouri. But these are two district courts that yesterday invalidated the latest Biden student debt relief plan. So this is the one that the administration announced after the appalling decision by the Supreme Court in Biden versus Nebraska, which killed Biden’s larger loan relief effort. So this new effort is known as save these Savings on valuable education program. And these two district courts, although in different ways, both relied on the major questions doctrine to invalidate aspects of this new loan forgiveness plan, which really, I think is as clear a confirmation as you could want of just what deregulatory chaos Scotus has created with this doctrine.

Leah Litman Yeah, and the opinions themselves are pretty messy. And I think further underscore what a shit show the major questions doctrine is. So both opinions concede that here the save plan is not novel, right? The federal government has done loan restructuring and forgiveness under this statute before the statute is HCA. One decision even quotes a passage from the Supreme Court’s debt relief case and Biden versus Nebraska saying this law, unlike the Heroes act, which was the one at issue in Biden versus Nebraska, authorizes forgiveness. The decisions don’t explain why this particular loan forgiveness program was politically significant. They invalidated different parts of the program for different reasons. The Kansas court concedes the statute authorizes the program, but because it’s too expensive, strikes it down like it says. In the court’s view, the Secretary’s longstanding interpretation of the statute is the correct one. It’s just really wild and messy. And I think all goes back to the weirdness of major questions and what the Supreme Court opened up with that.

Melissa Murray We have long warned you, listeners that the major questions doctrine has been will continue to be a kind of stealth, unpredictable weapon. That’s just lying in wait. We’ve said this from the time when Scotus first announced this over. I guess it’s been 2 or 3 years like West Virginia vs EVA.

Kate Shaw The doctrine of course, has like slightly older origins, but in terms of the term, yeah, it’s just it’s a very absent.

Melissa Murray Yeah. So this is really just the latest evidence of how it can sort of just lie there in plain sight, ready to strike down hugely popular programs that would greatly improve people’s lives, programs that have enormous popular support. That might be interesting is sort of majoritarian democracy kind of question. And they just strike it down for, you know, reasons. And as Leah and Dan Deacon have pointed out in their really excellent article in the Virginia Law Review on the Major Questions doctrine, a lot of the major questions doctrine is just. Really, really subjective and aggregates a lot of power to this court to decide what is a major question. When is something significant enough to warrant this kind of intervention? And not a lot of answers, but lots of authority for the court.

Kate Shaw Right? And in addition to subjective, the doctrine seems to say anything agencies do that’s big and consequential is presumptively suspect. And it actually the district court judges in these cases are Obama appointees. These are not Trump judges, but they’re taking their marching orders from a Supreme Court that is so deeply skeptical about anything agencies do that is big. You know, they’re applying what the Supreme Court has essentially given them. So then just a quick beat on CERT grants. And we wanted to mention two important sort grants. One is the scrum case, which is a case we’ve talked about before. It involves a Tennessee law that bans gender affirming health care for trans kids. A Tennessee district court invalidated the law. That’s also happened in a bunch of other states Arkansas, Alabama, Florida, Georgia. But in this case, a divided panel of the Sixth Circuit reversed, reinstated the law, and the Supreme Court has agreed to hear it. And, you know, I understand why the CERT petition was filed in this case. The Sixth Circuit opinion in this case left a horror show on the ground for trans kids and their families. But it is also really worrying to contemplate what the Supreme Court is going to do with this case and this question.

Melissa Murray The court also granted CERT and even County Infrastructure Coalition versus Eagle County, Colorado, a case that asks whether the National Environmental Policy Act allows federal agencies to consider climate change and environmental impacts beyond the immediate scope of a proposed project. And so that seems like a place where maybe the court will get its teeth into environmental law and make it less environmentally.

Kate Shaw This is more earth. You endanger girl material for sure.

Melissa Murray Last Earth you in danger? Yeah. Anyway, so that’s what’s been going on. I’m. We just continue to wait like Captain Ahab for the big ones. So keep waiting for.

Leah Litman The Supreme Court to perhaps officially announce its latest gift to the Republican Party in the form of the Ayatollah decision and deferring it, you know, until after the election. So definitely stay tuned for two gifts.

Melissa Murray This is Justice Thomas’s birthday week. We might get a gift to President Trump or former President Trump. We might get a gift to the Republican Party more generally. But, well, remember, conservative is another.

Kate Shaw Gift we already have. The delay itself is already as huge. We’ve all said an enormous gift. This trial was supposed to happen March 4th. It is now the end of June. There’s already the biggest imaginable gift the court has given to former President Donald Trump.

Leah Litman Yes, but be on the lookout for those takes that suggest the Supreme Court permitted emergency abortions and, you know, moderate consensus. Be the be the reply guy and the comment girl and the non-binary responder because like, that just ain’t right. Okay. That is all we have for today. 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. Michael Goldsmith is our associate producer. Our interns this summer are Hannah Saraf and Tess O’Donoghue. 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 so you can see us in our sunglasses! Find us at youtube.com/Strict ScrutinyPodcast. If you haven’t already, be sure to subscribe to Strict Scrutiny in 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. Maybe leave us a little tip or gratuity as a reward, just in the form of a review, though. Just in the form of a review.

Kate Shaw What about in the form of Taylor Swift tickets?

Leah Litman And Taylor Swift tickets. Yes!

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