Melissa and Kate talk to Molly Duane, lawyer from the Center for Reproductive Rights, about the disheartening outcome in the Zurawski case in Texas. Plus, they recap recent opinions in cases about bankruptcy, tax law, and health care on Native American reservations.

• To hear more about the Zurawski case, including the stories of the women who testified, listen to our episode “A Code of Misconduct” from  November 2023

 

TRANSCRIPT

 

 

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

 

Melissa Murray Hello and welcome back to Strict Scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it, we’re your hosts for today, I’m Melissa Murray.

 

Kate Shaw And I’m Kate Shaw. It is just the two of us again today. And the reason it is just the two of us is that the one and only Leah Litman, our fearless co-host, is recovering from a bad bike accident. She broke her dominant elbow badly, and she is generally pretty banged up. She’s going to be totally fine, but she does need to take it easy. And that is something that does not come that naturally to Leah, which, you know, you might into it if you’re a regular listener, but it means that it will be another week or two before we get her back on air with us. We’re going to muddle along. In the meantime, though, there is no real way to fill the Leah shaped hole in the show, so please bear with us in Leah’s absence. And please also join us in sending Leah all the love for a quick recovery.

 

Melissa Murray Leah also wanted to let you know that if you’d like to make her convalescence speedier and more relaxing, you can rate and review us and give us five stars in Apple Podcast wherever you get your podcasts. And I’m not kidding, she did actually say that. That would be great.

 

Kate Shaw Please do it for Leah.

 

Melissa Murray Do it for Leah.

 

Kate Shaw She is a ride or die. We would do anything for her, right? Yeah. And this is one thing you can do.

 

Melissa Murray We would drive the white Bronco for Leah.

 

Kate Shaw So the least you can do is five stars us.

 

Melissa Murray Right? Okay. All right. In the meantime, and in Leah’s absence, here’s what we have in store for you today. We will start with opinions the court issued last Thursday, and then we’ll cover some breaking news out of the other courts, particularly the Supreme Court of Texas and the 11th Circuit. And we’re going to end with some court culture. But before we begin with all of that, I just want to say, Kate, I have been having a pop culture moment. I have done so many pop culture things. I feel like I have to tell you so you’re up to speed on them.

 

Kate Shaw I haven’t, shockingly so.

 

Melissa Murray I know That’s why I’m telling you. So one, I flew to LA.

 

Kate Shaw I knew that.

 

Melissa Murray I saw the Sarah McLachlan 30th anniversary of Fumbling Toward Ecstasy show at the Hollywood Bowl. It was amazing and I saw so many strict scrutiny listeners. So a bunch of people came up to me like, we listened to the show. It was great. So I loved that. In my natural meet here at the Hollywood Bowl, listening to Sarah McLachlan, I saw so many of you. It was great to meet all of you.

 

Kate Shaw I love that so much. Did you ever go to a Lilith Fair tour in the 90s? Because I went, I.

 

Melissa Murray Had no money in college. That was like, that’s why I went to this. I bought these tickets like a year ago because I desperately wanted to go to Lilith Fair, and I didn’t. And this was like that. And I love Sarah McLachlan. I love that whole album. It was just absolutely amazing.

 

Kate Shaw She touring actually coming East or just California?

 

Melissa Murray She is. She’s going to be at Radio City Music Hall on June 24th, I think, and I, I, I like to I buy maybe I don’t know, I’m so good at it.

 

Kate Shaw I guess I would go with you would you. I would go with you. I mean, let’s go to some tickets.

 

Melissa Murray You get, you see if you can get the tickets. Okay. It was actually amazing being in the Hollywood Bowl. The Hollywood Bowl is just like a beautiful, beautiful venue. Very much reminded me of, like, a more upscale version of the Greek Theater in Berkeley, which I also loved. In addition to going to see Sarah McLachlan, I also binge the entire third season of hacks. And if you are not watching hacks, you are missing out because it is absolutely fantastic. I love, love, love this show and this season was chef’s kiss and it was so good. And I love Jean smart in it that it made me go back and start watching YouTube videos of Designing Women that show from the 1980s. That was absolutely fantastic. Did you ever watch Designing Women?

 

Kate Shaw I think I’ve seen a couple of episodes in my life. I was not a big deal. You did.

 

Melissa Murray You ever. Julia Sugarbaker I feel like Julia Sugarbaker was the precursor of this podcast, like Suzanne, that it’s not how we’re going to do this. And then herself and Suzanne Sugarbaker would be like, yeah, that is how we’re going to do it. And like it was like, Delta Burke, do you remember this whole thing?

 

Kate Shaw I remember Delta Burke. Yeah, I’m not sure. Like, which of us aligns with which of those characters? Women have to give that some thought.

 

Melissa Murray I don’t know. I mean, I think I really do want to be Julia Sugarbaker. I don’t want to be Suzanne, but I also like the other ladies as well. It was it’s a great show anyway, so just wanted to let you know it’s doing that.

 

Kate Shaw So those are some good cultural accents. Before we dive into the Supreme Court, can I just say I just recently finished, I would say reading, but actually listen to it. Miranda July is all for this novel. Run. Do not walk. It is all fours. Extraordinary. Okay, so I think it’s best read or, you know, ingested with no spoilers, so just pick it up. I actually have a couple hard copies. I will give you one. Maybe I want.

 

Melissa Murray One. Okay, this is great because I’m footloose, fancy free, graded all my exams.

 

Kate Shaw I’m right. I’m done with the exam memo.

 

Melissa Murray I’m ready to go.

 

Kate Shaw Nice. All right. Should we.

 

Melissa Murray Okay.

 

Kate Shaw So be ready to go with the actual I don’t.

 

Melissa Murray Know. We’re ready. We’re warmed up. Okay. Limber okay. So first opinions. And the court gave us a handful of opinions last week. Again, not moving with any sense of urgency. With the 20 odd cases still on the docket, including whether or not Donald Trump is immune from all criminal liability. Who needs to decide that? Apparently nobody. So we’re basically getting set up for a two week period in June. That’s going to feel like a Leonard Leo fever dream of so many absolutely craptastic decisions that it’s almost impossible for me to wrap my head around it. It’s just again. Gird your loins because it’s coming.

 

Kate Shaw It didn’t seem like they would spread the bat a little bit more. Oh, no. It is highly condensed. It is, when you were.

 

Melissa Murray Talking about this.

 

Kate Shaw Like, liquid down, it’s just like to the essence. It’s going to be it is going to be a wild couple of days unless they go into July, which is possible too.

 

Melissa Murray It’s possible they’re going to July. But I mean, just like the compression of all of this.

 

Kate Shaw Reduction, that’s what I’m thinking of when you like, maybe it.

 

Melissa Murray Is a reduction like a red wine reduction of crap. And they’re going to put it on the last part of this term and just, you know, let it rip. And there’s no pacing. Right. And that’s kind of what you get when you have a 63 conservative supermajority in a Congress that has no interest in impeaching you or otherwise policing you, like, you can just do what you want.

 

Kate Shaw So there’s what you want and when you want.

 

Melissa Murray Right? And just appearances don’t even matter. I mean literally do not matter. So anyway. But not this week, Satan. Instead we got three low profile, that is low profile cases that we’re briefly going to walk through right now. So the first one up is truck insurance exchange versus Kaiser Gypsum. This was a unanimous 8 to 0 opinion. More in a minute on why there were just eight justices participating in the disposition of this case. And it involved a question of statutory interpretation related to the bankruptcy Code. The code allows any party in interest to raise and be heard on any issue in a chapter 11 bankruptcy. The question here was whether an insurer with financial responsibility for a bankruptcy claim is a party of interest. Under this provision of the Bankruptcy Code, the Fourth Circuit concluded that the insurance company, Truck Insurance Exchange, was not a party in interest for purposes of the code, because the reorganization plan was, quote, insurance neutral. That is it. Neither increased truck’s pre petition obligations nor did it impair trucks rights under the insurance contracts.

 

Kate Shaw A unanimous eight justice majority, however, reversed, concluding that the Fourth Circuit’s interpretation of the insurance neutrality doctrine improperly conflated the merits of an insurer’s objection with the threshold question of whether the insurer qualified as a party in interest. As Justice Sotomayor, who wrote the opinion for the court, explained, section 11 09B asks whether the reorganization proceedings might directly affect a prospective party, not how a particular reorganization plan actually affects that party. On this view, any insurer with financial responsibility for a bankruptcy claim is sufficiently concerned with or affected by the proceedings to be a party, an interest that can raise objections to a reorg plan. That said, the majority was very clear that this was a narrow interpretation. Being a party, an interest did not grant insurers a vote or a veto over the restructuring process. It simply provides them a voice in the proceedings.

 

Melissa Murray I said earlier that this was an 8 to 0 opinion. So who was the ninth justice who did not participate in the disposition of this case? And why did that justice not participate?

 

Kate Shaw It can’t be Sam Alito because he doesn’t recuse. It’s not his thing.

 

Melissa Murray Well, Kate, you would be wrong. It seems that some folks can recuse themselves when they have a mind to do so. Justice Samuel Alito was the justice who, for unspecified reasons, did not participate in the disposition of this case. Hmhm is this another Toledo moment? Like, hey, bitches, look at me recusing.

 

Kate Shaw That’d be amazing if it just came up now he didn’t participate actually assert or the argument. So he has been he has been out of this one. But it would be incredible if he’s like, I’m going to pick a random case in the docket. And just without any explanation, just recuse to just flex would not put that past or.

 

Melissa Murray Just like maybe he was like, you know what, release truck insurance exchange. It’s ready.

 

Kate Shaw I could there be just like they, you know, they own stuff outright. They own beer stock, for example, outright. There are all kinds of claimants involved in this case in various ways. Maybe there is just like a financial stake.

 

Melissa Murray Maybe he has a stake in gypsum. I don’t know.

 

Kate Shaw But the point is we don’t and we won’t because he’s not going to deign to let us know.

 

Melissa Murray Yeah, that’s the other thing. Like they can recuse and not tell us at all why they are doing so.

 

Kate Shaw And some of them have been much more explicit since the adoption of the so-called ethics code. But Alito has provided no explanation.

 

Melissa Murray Any tea leaves in this bankruptcy case for the really big bankruptcy case that’s looming out here, and that’s the Purdue Pharma bankruptcy settlement? I don’t think so.

 

Kate Shaw I don’t think so either. That’s such a sui generis case.

 

Melissa Murray Well, and this one too is, I mean, really more of a statutory interpretation question more than anything else. So yeah, no data.

 

Kate Shaw See here.

 

Melissa Murray No tea to drink. Kate.

 

Kate Shaw I can’t even see any Melissa.

 

Melissa Murray Okay. No, I can’t see it. I can’t drink it. Okay.

 

Kate Shaw We cannot squeeze any out of this rock. Okay. The next decision we got was in Connerly versus United States. A unanimous case, this time on a question of tax law and written by Justice Thomas. Here’s a story. Two brothers were the sole shareholders in their small family business to keep the business in the family. Upon the death of either brother, the brothers entered into an agreement under which the surviving brother would have the option to purchase the deceased brother’s shares. If he declined to do that, the family business itself would be required to purchase the shares. To ensure that the business would have the funds to purchase the shares if required. The business took out a $3.5 million. Life insurance policy on each brother. Okay, one of the brothers died and the other brother declined to exercise the purchase option, which triggered the business’s obligation to do so. The family agreed that the value of the deceased brother’s shares was $3 million, and the business paid that amount to the deceased brother’s estate. The surviving brother, who was the executor of the estate, then filed a federal tax return for the estate, which reported the value of deceased brother shares as $3 million.

 

Melissa Murray And the IRS audited the return. During the audit, an outside accounting firm valued the business at the time of the deceased brother’s death at $3.86 million, an amount that excluded the 3 million in insurance proceeds used to redeem the deceased brother’s shares. On the theory that their value was offset by the redemption obligation. The IRS, however, disagreed, insisting that the redemption obligation did not offset the life insurance proceeds. Accordingly, it assessed the total value of the business as $6.86 million. That is, the 3.86 million plus the $3 million in life insurance proceeds. Based on this higher valuation, the IRS determined that the estate owed an additional $889,000 in taxes. The estate paid the deficiency and then sued the United States for a refund. The district court granted summary judgment to the government, holding that to accurately value the deceased brother’s shares, the 3 million in life insurance proceeds must be counted in the valuation of the business. The A’s circuit affirmed this, and a unanimous court affirmed that holding. In a decision written by Justice Thomas. Specifically, the court held that a corporation’s contractual obligation to redeem shares is not necessarily a liability that reduces a corporation’s value for purposes of the federal estate tax. When calculating the federal estate tax, the value of a decision shares in a closely held corporation must reflect the corporation’s fair market value and life insurance. Proceeds payable to a corporation are an asset that increases the corporation’s fair market value.

 

Kate Shaw So that’s two unanimous opinions. The final opinion, the.

 

Melissa Murray Very consensus driven court here. Like, where’s that POLITICO story.

 

Kate Shaw No record scratch. That’s definitely wrong on the last of the opinions we got last week, and I’m sure most of the opinions yet to come. So this last one was Basara versus San Carlos Apache Tribe. And this was actually A54, not a nine 0 or 8 zero opinion. The case which we discussed when we previewed it involves health law, federal Indian law, and also statutory interpretation. And the bottom line holding is that this was, as I said, A54 ruling. It was a victory for the two tribes in the case and tribes more broadly with this time, Chief Justice Roberts joining the Democratic appointees and Justice Gorsuch in the majority, which was written by the chief justice, and then Kavanaugh in dissent, joined by Justices Thomas, Alito and Barrett. I think it was already clear after Castro where to which rolled back much of McGirt and McGirt core commitment to tribal sovereignty that Kavanaugh, who was the author of Castro Where to is basically public enemy number one in cases touching questions of federal Indian law. But I think this really locks that in. So let’s break the decision down a little bit. As a reminder, the key federal statute here is the Indian Self-Determination and Education Assistance Act, which allows tribes to enter what are called self-determination contracts with the Indian Health Service, or IHS, a component of the Federal Health and Human Services, or HHS. So as a default, IHS administers tribal health care programs. But the statute I just mentioned allows tribes to assume responsibility for administering their own health care programs. And the question in this case is about certain administrative costs that are involved in administering health care programs. So the statute says that IHS has to pay tribes, quote, contract support costs. That is, if tribes exercise the self-determination right, and these contract support costs, everybody agrees to cover certain administrative costs that IHS would not incur if it were administering programs itself. But tribes do incur because tribes don’t have, like the whole body of the federal government to rely upon when they’re administering health care. But in addition to those contract support costs, tribes also collect funds due from third parties like Medicare and Medicaid and certain private insurers. And the question in this case is whether IHS also has to pay contract support costs to tribal programs that are funded by these third party payments. And the court here says, yes, they do. That is, IHS rather than the tribes is on the hook for these costs.

 

Melissa Murray The cases were brought by two tribes who are operating under self-determination contracts with IHS, operating various health and wellness programs. But where IHS wasn’t paying all contract support costs, the tribes argued that they’d incurred millions in costs, that IHS was actually required by statute to cover both tribes, one below in the Ninth and 10th circuits, respectively, with both appellate courts finding some ambiguity in the statute, but using the Indian canyon as a tiebreaker. That’s a rule of statutory interpretation, under which ambiguous provisions in federal statutes implicating tribal matters are construed in favor of tribes. Again, the court are. Affirmed these decisions and ruled in favor of the tribes. Justice Kavanaugh, however, in his dissent, focused on another federal statute, the Indian Health Care Improvement Act, which actually authorizes tribes to collect third party payments from Medicare, Medicaid, and private insurers. And Kavanaugh insisted that the phrase, quote, performance of their contracts, end quote, in the self-determination statute, means that when tribes spend money on support costs for these third party payments, that is not spent in performance of their contracts. But that’s even though the contracts do allow tribes to collect third party payments. And besides being hard to square with the tax, the majority is correct that what the dissent wants to do here is essentially penalize tribes for exercising their right to self-determination. Does that seem consistent with Castro here to and Kavanaugh’s work there? I think it kind of does or does. Right. So cabinet does hasten to say that his position is best for tribes. He knows what’s best for tribes, actually, because the tribes argument here would cost the federal government between 800 million and $2 billion annually, and this would result in wealthy tribes being able to run their own health care, and that would siphon money away from less well resourced tribes. So it is actually Brett Kavanaugh, not Neil Gorsuch and any members of that liberal majority or some liberal majority who we should view as the most important advocate of tribal sovereignty, in addition to being the most interesting man in federal Indian law.

 

Kate Shaw Nice try. Brett. Nice try. I mean, I think.

 

Melissa Murray This went down between Gorsuch and Kavanaugh. I mean.

 

Kate Shaw Yeah, I look, I obviously that is a relationship that goes back decades. They were, you know, a couple years apart in high school, Georgetown Prep.

 

Melissa Murray Yup. What happens at Georgetown Prep stays at Georgetown, right.

 

Kate Shaw Except for it’s now all, you know, in the highest court.

 

Melissa Murray Well, it was on the calendar, so like, did it become public, right?

 

Kate Shaw Well, I actually think what’s really interesting to me is that I suspect Gorsuch wanted to write this opinion. I would have assumed that Gorsuch being in the majority would get this opinion. So there may be other reasons. Gorsuch has other opinions. The chief has given him other plum assignments, including. Right. Is it possible that Gorsuch he’s I.

 

Melissa Murray See him trying to weigh this like, oh, do I act on my origin story as a villain and completely dismantle the administrative state, or do I act on my origin story as a son of the West and a protector of tribes? Oh, so hard for me. Which I’m going to be. Angels.

 

Kate Shaw Angels after all. This is really good. I mean, look, he’s not the one who’s in the in the position of deciding which of these assignments that he gets. I think he would say, why choose? I contain multitudes, I can take him off the tubes.

 

Melissa Murray The chief justice, like, actually you’re just going to contain one. I’m going to contain multitudes. Yeah.

 

Kate Shaw Like I’m sure he wanted this. He didn’t get the assignment. Maybe he does have bigger fish to fry in the coming weeks. I’m sure he does. I also thought it was interesting. We mentioned that the lower courts use this Indian cannon. Right. This tiebreaker statutory interpretation rule. And there was definitely some discussion at the oral argument that there were some obvious displayed skepticism about the Indian canyon. And then Sotomayor and Jackson were sort of picking up on their colleagues skepticism about it and seeming to try to shore it up as an important interpretive principle. But everybody stays away from that, in the opinion.

 

Melissa Murray So, like we said, we didn’t get a lot of big opinions and looks like we didn’t get any, really, I guess, I guess Becerra was kind of a big opinion, but not the big ones that we were hoping for. But again, enough to stoke the flames of the narrative that we have a consensus driven three, three, three court for yet another week before all hell breaks loose. So enjoy it while you can, folks at Politico.

 

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Kate Shaw So we are now going to shift to developments in other courts. Since our last episode, in particular, the Supreme Court of Texas, which issued an absolutely horrific opinion in this broski case, which we have discussed before on this show, and also the 11th Circuit, which is continuing the post, students for Fair Admissions effort to fully convert the language and logic of the 14th amendment into a tool to block any efforts at racial progress, rather than to facilitate or advance such efforts. So first up, Supreme Court of Texas.

 

Can we call it SCOTEX?

 

It sounds like.

 

Melissa Murray Like a maxi pad. That’s my point.

 

Kate Shaw Which is appropriate.

 

Melissa Murray Exactly.

 

Kate Shaw Yeah. Okay. Yeah. So first up, the Supreme Court of Texas, aka Scotus. And this case in particular, this is a case we have talked about before on this show. And we have done that previously. And we’re going to do that again today, joined by terrific return guest Molly Duane, who tried the case in the trial court and argued it before Scotus, the Texas High Court. Molly, welcome back to strict scrutiny. So good to have you with us.

 

Molly Duane Well, thanks for having me back on my tour of misery.

 

Kate Shaw We will get there. And we do want to ask you about last week’s decision, but can we actually start by having you remind us of what the case was about?

 

Molly Duane Sure. So this is a case that, we at the center for Reproductive Rights brought back in March of last year. When we first brought the case, it was on behalf of five women led by Amanda Roski, who had been denied or delayed access to, really essential reproductive care, namely an abortion due to severe obstetrical complications. The case has since grown to 20 women, as well as two OB GYNs in the state of Texas, who all said the same thing happened to me. And whatever the medical exception to Texass abortion ban says it’s not functioning, as intended. I was almost going to say, but I don’t think it was ever intended to function. So, you know, essentially the exception does not exist because I, a woman in Texas, was denied life and health saving medical care in the form of an abortion because of the state’s abortion bans.

 

Kate Shaw Can you tell us just a little bit about the Amanda, the named plaintiff herself?

 

Molly Duane Absolutely. So Amanda’s situation is, heartbreaking, but not altogether that uncommon. It happens in approximately 1 to 2% of pregnancies, which is her water broke prematurely. So she was about 18 weeks pregnant when her water broke. She lost all of her amniotic fluid. And the problem with that is that a pregnancy cannot survive without amniotic fluid. And despite what anti-abortion activists might tell you, 18 weeks is not a gestation where any child can survive. So she was, in the words of her doctor, going to lose her pregnancy, going to lose her daughter with complete certainty, and the medical care that she needed to protect her life and her future. Fertility was abortion. But because of the really vague and confusing wording of Texass abortion ban and the exception to that ban, her physicians were really worried that they would would be prosecuted, would be put in jail for the rest of their lives, would lose their medical licenses, and would be fined hundreds of thousands of dollars if they performed an abortion. And so what happened was she had to wait until she developed a septic infection, which, caused her to lose one of her fallopian tubes. And, has really thrown her future fertility into, you know, I don’t know what to say, but it’s very uncertain whether or not she’ll be able to have kids in the future or carry a pregnancy. And so that is her situation. Each of our clients has equally horrific stories. Another client was forced to carry a pregnancy to term that was never going to be viable, and then watch her daughter suffocate to death in her arms. So, you know, I often tell people I should come with a trigger warning, but I really should, because these stories are not uncommon. I am hearing them every single day. And working on this case has, you know, led me to meet so many Texans who have had such similar and heartbreaking experiences, and we brought their stories to the court. And we’ll get into this in a minute, I’m sure. But what we saw is the Texas Supreme Court ignored them entirely.

 

Kate Shaw So you guys actually tried this case? A number of your clients were incredibly brave in testifying in detail about their experiences. We actually excerpted some of that trial evidence on the show. And the trial court issued an opinion blocking the ban in the context of dangerous pregnancy complications, and clarifying that doctors are allowed to use their own best medical judgment when determining when an abortion is needed in emergency situations. So you won. But Texas immediately appealed, which put that preliminary injunction on hold. You argue the case in front of Scotus and we got the decision.

 

Molly Duane That’s correct. And what happened in the meantime was that, we argued the case before. Let’s go Texas at the end of November. And. And just a few days later, I met Kate Cox for the first time. That I mention that because it’s relevant to the ruling that we got from the from SCO Texas last week. And what happened in her case is she was in the middle of a medical emergency and asked for a court order to, allow her doctor to perform an abortion. And while in a similar pattern, the the lower court gave that to us, the Texas Supreme Court took it away and she was forced to travel to New Mexico. And so, what we know now is that she wasn’t sick enough. And everyone except for Amanda, who was a plaintiff in our lawsuit, also wasn’t sick enough.

 

Kate Shaw Jesus.

 

Melissa Murray That’s a hell of a wind up, Molly. Can you tell us how the court ruled in this final disposition?

 

Molly Duane Sure. So I mentioned Kate Cox’s case because it was relevant to the court’s analysis of standing, which, you know, we have been arguing with the state about for as long as this case has been going on. You know, we’ve got OB GYNs in the case. We have patients who were denied pregnancy care who want to become pregnant in the future, but are scared to do so. Some of our plaintiffs were currently pregnant at the time that we filed the lawsuit, at the time that they testified on the stand, and some of them are pregnant now. And and yet the state contended that no one had standing. So what did the Texas Supreme Court do? It said, it only analyzed one person’s standing, and that was one of the OB GYNs, the one who was going to perform Kate Cox’s abortion until Attorney General Ken Paxton sent a letter directly threatening her and every hospital where she works against providing that abortion. And so what the Texas Supreme Court said was, okay, yeah, that was a direct threat against that particular doctor. And so she has standing, but it didn’t address any of the other standing arguments at all and actually wrote our clients out of the opinion entirely.

 

Kate Shaw Right. So it’s a technical matter what the court says as well. We have one plaintiff withstanding. And so we don’t need to do the analysis. We’re not going to find the other plaintiffs don’t. But there is this strong sense one gets from reading the opinion that they would have found a way to evade the merits altogether and say, sorry, tough luck. Nobody gets to invoke the jurisdiction of this court because no one has standing. Except they couldn’t, because the attorney general sent these unhinged letters, right? Threatening severe sanctions if a doctor performed care consistent with a ruling of the trial court. Right. Like that was even this SCO tax court could not look the other way and find no standing in a circumstance like that. Is that basically right?

 

Molly Duane Yeah, that’s basically right. Although the only there are three abortion bans, at issue in Texas, and they really only ruled on one of them, the the trigger ban, which has criminal penalties for doctors. And the thing that confuses me about the standing analysis is they should have reached the other parties to reach the other claims that they said the one doctor didn’t have. So it was very frustrating to read that was that is one of many reasons why.

 

Kate Shaw Okay. So they actually so in your view and obviously this is your case and you know it inside and out, they actually did have an obligation to consider the standing of the other plaintiffs to the case, and they weren’t able to actually adjudicate some of the claims that you brought, because Carson only had standing. As to one of the statutes.

 

Molly Duane That’s how I read it. One thing that sticks out about this, and I’ve said it obliquely, but let me say it more specifically, the opinion does not refer to our clients by name. It mentions Amanda’s Roski briefly and provides an overview of the trial evidence, but it does not discuss any of our clients by name. It does not discuss their medical conditions. And instead of referring to our clients as the plaintiffs, the opinion does something that I have never seen in a judicial opinion, which is refers to the plaintiffs as the center meaning refers to them by the name of my employer. So the lawyers. Right. It would be like an opinion about Donald Trump referring not to Donald Trump, but saying Terblanche brings these claims. I mean, that’s not.

 

Kate Shaw Wow.

 

Molly Duane That’s not how you write an opinion. And I have to wonder if that was intentional.

 

Melissa Murray Can I ask about just sort of the practical considerations here? I mean, one of the reasons why you brought this case and that you’re bringing these other kinds of cases in places like Tennessee, is to clarify when and in what circumstances the exceptions to these very draconian abortion restrictions actually go into effect. And individuals can, because their health or their fertility is threatened, receive emergency abortion care. What do we know going forward? Is there any more clarity, or is it continue to be as muddied as it was before this lawsuit?

 

Molly Duane I would say it’s almost as muddy as it was on day one, with a limited exception, which is not nothing, and I’ll get into that in a minute. But, you know, what we know is that doctors have been crying out for help in Texas for longer than any other state because of SB eight, which went into effect months before Dobbs was decided. They’re saying we don’t understand this language. We don’t know how to apply it. And with our liberty and our.

 

Melissa Murray Livelihood.

 

Molly Duane And our licenses and everything else on the line, we’re not going to take a guess, right? It’s the stakes are too high. So what we have seen in every state and what we see in this opinion is everyone just saying, well, it seems clear to me it doesn’t really matter what the doctors think. It’s their own fault for not understanding it because I, as a justice, can understand it. Now, the one caveat there, which again is not nothing is. The court did say that what happened to Amanda was not required by law. And so lists her condition, which was, you know, her membranes rupturing prematurely that, the. Shorthand for that condition is often referred to as pip from, and so the opinion does say that p prime is one example of a condition which would meet the the laws inquiry and to my reading. And this is what I will tell every doctor around the state, this is something that’s very much a part of my job is trying to educate people about what the law is, but I’m going to tell them that means if you diagnose people, you can provide abortion care immediately. You do not need to wait for white blood cells to be elevated for a patient to be septic. So that’s something. And, you know, honestly, if Amanda and our other clients hadn’t stepped forward and been so brave, I don’t know if we would have even gotten that.

 

Kate Shaw Yeah, it feels like a safe harbor, almost. But that’s, of course, one of the many kinds of complications that can arise over the course of a pregnancy. And and one thing I think the opinion does that clarifies in kind of the opposite direction, right, is, I think, to make clear that where the fetus has a lethal condition and will not survive unless the pregnant person also has a life threatening condition. That is not a circumstance like the Kate Cox scenario in which this exception would apply. And doctors can proceed with, you know, real comfort that they’re not going to run afoul of this prohibition if they perform an abortion. I mean, I hope I’m reading it wrong, but at least I do think that’s what the opinion seems to say.

 

Molly Duane I had to read it a number of times to to make myself believe it. But yeah, that’s what they’re saying. So to be clear as to those patients, which are, you know, I think 15 of our clients who all had lethal fetal conditions where the baby was never going to survive longer than moments or hours. And in some cases, that would require the patient having a C-section, you know, delivery, which can cause, you know, lots of other problems. And Kate Cox’s case, it would have been her third C-section, which, you know, lots of any woman who’s been through a C-section will know that doctors caution you against having many repeat C-sections because of the complications that can come with that. But for those patients, we said, you know, we think the statute should cover them. But if you disagree with us, then we are saying our clients have a constitutional right under the Texas Constitution not to be forced into that situation. And, you know, we think strict scrutiny should apply, but it’s not even rational to require a woman to do that. And in a basically a sentence, the Texas Supreme Court said, that seems irrational to me.

 

Kate Shaw So the statute doesn’t allow it. And there’s nothing in the Constitution.

 

Molly Duane There’s nothing in the Constitution that would protect women in this situation. That’s right.

 

Kate Shaw So it’s about as ghastly with with the important exception, which I think is maybe you may have a narrow category. So some of these initial bans didn’t even obviously carve out ectopic pregnancy exceptions. So we have had a development in which it is acknowledged now that that they do, and maybe people in Texas, but the vast range of other incredibly serious complications, you know, despite you alluded to this a minute ago, Molly, but despite like the just insane bad faith insistence in the court’s opinion that it just like doctors problem if they don’t understand what is allowed and what is prohibited by the law. There’s this line that I just have to read, in which the court says any doctor who basically says your life is threatened by a complication or there is a serious risk, you will suffer substantial physical impairment, but the law won’t allow me to provide an abortion in these circumstances is simply wrong in that legal assessment. So it is just more of the kind of blame the doctors rhetorical and analytical moves that we saw on display in the oral argument that you did, I think, before the Texas Supreme Court. But there’s very little substantive protection, and it’s not actually clear. But we’re going to pretend it’s clear and doctors are at fault for not understanding what they are and are not allowed to do. Is that a basic Tldr of this opinion?

 

Molly Duane Yeah, that’s right. And I want to just pick up one thread that you mentioned there, which is ectopic pregnancies, right? You it is true that most states, not all most states, have an explicit exception and say that terminating an ectopic pregnancy, which for those who don’t know, is a life threatening condition. If it ruptures, you could lose your life and at the very least lose your fertility. Yeah, that those are not abortions that are excluded from the bans. But the problem is the medical care doesn’t work like that. You can’t, you know, shine a flashlight into the uterus and know what’s going on in there. And so in early pregnancy, it’s not clear whether a pregnancy is ultimately going to be viable, whether it’s ectopic or whether it’s a miscarriage. And I have talked to multiple women in Texas who had ectopic pregnancies and were told to come back days weeks later, causing them to have ruptured pregnancies. There was a story, that’s that’s sort of making the rounds this week about a couple in Texas that was denied medical care for a miscarriage, resulting in the patient bleeding out in her bathroom. And, you know, this is why medical exceptions and exceptions in general to abortion bans don’t work. You cannot try to regulate medicine this way. Doctors cannot understand it. It does not make any sense. And real people, if the Texas Supreme Court sees them or not. Real people are suffering and they will continue to suffer until someone does something about this.

 

Kate Shaw So I don’t know that I’m willing to say the law is not going to provide any recourse. I think that you’re going to continue to fight, I’m sure, in all of the states in which you are litigating these cases, and maybe they’ll be different results under state statutes and state constitutions in other places. But it’s just hard to see this saga unfold and not come away thinking like voting is the only answer right now, right? Like it actually needs to be the case that elected officials are installed who are going to change substantive laws. And that includes installing elected judges who are going to read laws differently. But is is the answer just at this point, voting and elections. And that that’s a long process. But that’s sort of the road that we have to be on. Molly, what’s your take? I know you’re a litigator, but sure, at a certain point, like I’m not sure lawsuits are going to save us.

 

Molly Duane Yeah. Lawsuits are a tool. It’s a useful one. This lawsuit in particular has been a amazing platform for my clients to tell their stories. And I appreciate you all covering it, because it is really unfortunate that this decision came out in the middle of a Donald Trump news cycle. And one has to wonder if that was intentional. But this is not the end. This is just the beginning. Our clients are beyond motivated to tell their stories. I have continued to get calls every week, messages from women across the country, and lots of women in Texas saying, I want to tell my story too. I want to help. And, you know, I work at a 501 C3, so I always have to state that. But I’m going to tell you for a fact, which is the Texas Supreme Court justice who wrote this opinion is up for election this year. So voting is a really important tool. It is something that is, you know, like all of our most important rights, severely disenfranchized, particularly in places like Texas. But I really do hope that people continue to follow the stories of my clients, to follow their advocacy and to, bump this issue up the list on the things that they think about when they enter the voting booth.

 

Melissa Murray Molly, thanks so much for telling us those sobering details about the disposition of this case, but also offering us a more hopeful note for individual action going forward on these questions. It’s been great to again, have you back on Strict Scrutiny.

 

Molly Duane It’s my pleasure. Thank you.

 

Melissa Murray [AD].

 

Melissa Murray All right. It’s not just SCOTUS doing the absolute most. Also in the running for America’s worst appellate court is. And no, it’s not the Fifth Circuit. This one branched out from Texas. It’s the 11th circuit. We have discussed elements of this lawsuit before, but let me just refresh your memory about this 11th Circuit case, American Alliance for Equal Rights versus Fearless Fund. The Fearless Fund is an Atlanta based venture capital firm that’s owned and operated by black women. Its mission is to, quote, bridge the gap in venture capital funding for women of color founders building scalable, growth, aggressive companies, and, quote, the fact of a VC firm owned and operated by black women is something of a novelty because black women are grossly underrepresented in the VC universe and indeed the entrepreneurial space. According to Digital Undivided, a nonprofit advocacy organization, less than 1% of VC funding goes to black and Hispanic women owned businesses, and between 2009 and 2017, firms started by black women received only 8.0006% of VC startup funding, literally less than 1%. In 2019, a report found that black entrepreneurs loan requests are three times less likely to be approved than white entrepreneurs. Like I said, a huge disparity.

 

Kate Shaw So enter the Fearless Fund, which is a private organization that wanted to use some of its money to try to remedy this disparity. So under its foundation arm, it operated an initiative called the Fearless Drivers Grant contest, which awarded four winners $20,000 apiece, digital tools to assist with business growth and also mentorship from the Fearless Fund’s members. And critically, this contest was open only to black women.

 

Melissa Murray And Ed Bloom, in the words of Michael Jordan, took that personally. Ed Blum is not a black woman.

 

Kate Shaw Very not.

 

Melissa Murray He is a white man who has made it his mission to turn the 14th amendment inside out and make it entirely colorblind, and to literally strip it of any of its color and context, all pun intended. He is the genius behind Wsfa versus Harvard, and before that, the genius behind Abby Fischer’s Becky. With the Bad Grades lawsuit and many other follow on lawsuits to SFFA which now seek to extend that decisions color blind reasoning to other context. Under the auspices of his organization, the American Alliance for Equal Rights, Blum challenged the Fearless Fund’s Striver Grant contest, again, a grant contest that awarded modest $20,000 grants to black women owned businesses. That’s the problem. That’s the racism. And again, the Fearless Fund and its foundation. These are not public entities. They’re not even private entities that receive public funding. As was the case in the Harvard and uncW cases. The Fearless Fund is a wholly private entity. But why let that get in the way of contorting civil rights statutes to thwart civil rights? The American Alliance for Equal Rights decided to file suit against the Fearless Fund on the ground that the strivers Grant contest violates section 1981, the reconstruction era civil rights statute that provides that all persons within the jurisdiction of the United States shall have the same right to make and enforce contracts as enjoyed by white citizens. History and tradition compels me to mention that this law was enacted as a response to the post bellum effort to limit the contractual and economic freedom of newly freed African Americans. That is, this law, section 1981 was enacted with a remedial purpose in mind, and that remedial purpose was to specifically address the economic and contractual disabilities that white Southerners tried to impose on the formerly enslaved as a means of re enslaving them.

 

Kate Shaw It also, if we’re talking not about context, but text of.

 

Melissa Murray The statute, it has race in it.

 

Kate Shaw As enjoyed by white citizens.

 

Melissa Murray That’s why I mentioned the white citizens. Correct.

 

Kate Shaw Yeah. It’s the it’s the context, it’s the text. It’s all of it. And this kind of color blind frenzy extends not just the 14th amendment and not just to title six, which are the two legal provisions that issue in the admissions cases. But now it is section 1981 as well.

 

Melissa Murray But weirdly, Kate, the 11th Circuit had very little to say about the history and tradition of this venerable civil rights statute other than to note that section 1981 prevents the Fearless Fund from being real racists and discriminating against white male entrepreneurs.

 

Kate Shaw That’s right. In a 2 to 1 decision written by Trump appointee Kevin Newsome and joined by fellow Trump appointee Robert Locke. A majority of the 11th Circuit reversed in part the district court’s decision and granted the alliance’s request for a preliminary injunction. The appellate court, you know, maybe taking its cues from the Supreme Court, took a relaxed view of standing, concluding that the Alliance had standing to sue on behalf of three anonymous members. To be clear, these members had not entered the contest and lost. They simply objected. They were offended. They felt excluded. They, like Blum, thought the prospect of black women getting modest startup grants of $20,000 a hole for of them, was legally intolerable, and for that reason, they were entitled to invoke the jurisdiction of the federal courts to get redress.

 

Melissa Murray It’s more than that. I mean, the real injury here, it seems to me, is the prospect of black women setting up their own organization, the Fearless Fund, to help other black women get a toehold in on.

 

Kate Shaw Doubly unlawful two layers of illegality. And I don’t know if they can doubly if the 11th Circuit can and join this undertaking, but I would like to see them try.

 

Melissa Murray Well, the 11th circuit definitely did try. So Judge Newsome, who wrote the opinion here, noted that the anonymous entrepreneur cause, although they had not entered the contest, they were nonetheless, quote, ready and able to enter the contest again, although they had never done so, nor did the record indicate that they had ever entered any similar contest where the prize was a startup grant or, similar.

 

Kate Shaw Well why would they until someone started one only available to black women entrepreneurs? There might have been others out there.

 

Melissa Murray This is basically, like rock and roll. Like nobody wanted to get into it till black people started doing it.

 

Kate Shaw And then all of a sudden.

 

Melissa Murray Yeah, yeah, yeah. And like, everyone wants to be in rock and roll.

 

Kate Shaw Wants in.

 

Melissa Murray Right. Okay. I will say that despite this craptastic load of an opinion, I was very pleased to read dissenting Judge Robin Rosenbaum’s actual assassination of her colleagues standing analysis on. And she did this assassination by using. Wait for it, Kate. The record right from the record. Judge Rosenbaum noted how all of this seemed to her like kind of a manufactured claim. She likened it to soccer players flopping on the field and then, you know, incurring penalties even though the other side hadn’t actually done anything. She noted that there was very little evidence that the Alliance’s members had ever or would ever enter into the Fearless Funds contest, and that maybe all of this was perhaps just consider it a ploy to get into court and challenge and ultimately invalidate this program. And she might be right. I don’t know as to the merits of this case. The 11th Circuit concluded, again in the context of a request for a preliminary injunction, that the grant program for black women entrepreneurs was likely unconstitutional because, of course, it was. Specifically, the 11th Circuit concluded that the contest was a contract within the meaning of section 1981, and that it did not fall into the remedial exception for section 1981. So what is the remedial exception in the context of title seven? The Supreme Court, in two cases, United Steelworkers versus Weber and Johnson versus Transportation Agency, has held that a race conscious remedial program is valid if it addresses manifest racial imbalances and doesn’t unnecessarily trample the rights of others, or create an absolute bar to the advancement of other employees. And this title seven exception has been extended to section 1981.

 

Kate Shaw But interestingly, the 11th Circuit did not think that this case met the standard for the exception. That’s right. According to the 11th Circuit, a program intended to remedy the gross underrepresentation of black women in venture capital funding by awarding, again, modest $20,000 grants to black women, trampled on the rights of others, and created an absolute bar to the advancement of other entrepreneurs. If you can’t get that $20,000 grant, you’re never going to get anywhere in business.

 

Melissa Murray I mean.

 

Kate Shaw Everyone knows this.

 

Melissa Murray This is me staring in Elon Musk and Jeff Bezos.

 

Kate Shaw But yeah, the party seeking to remedy racial imbalance are the real racists is the Tldr of this. And I think the entire corpus of lawsuits that are the follow on love children of SFA.

 

Melissa Murray That’s okay. Just add one more thing like this. This I was so in my feelings about this, the district court actually denied the alliance’s request for a preliminary injunction. They agreed that there was standing here a similar kind of relaxed standing analysis. They also agreed that this was a contract and this violated section 1981. But where they departed was that they believed that the contest was protected expression under the First Amendment. So that was the basis, this sort of First Amendment argument. Shockingly, the 11th Circuit disagreed with this First Amendment analysis, and in their disagreement, the 11th Circuit relied on Runyon versus McCreary, a 1976 case in which the United States Supreme Court. Court held that private schools that refused admission to black and Brown students violated section 1981. The schools had defended their admissions policy on the grounds of associational freedom. Like we are allowed to be racist if we want to. And the court credited the right of the individual to associate with whomever she like, but said, quote, it did not follow that the practice of excluding racial minorities from such institutions schools is also protected by the same principle, end quote. According to the 11th Circuit, it’s the fearless fund that’s basically the segregationists here, like in the whole Runyon versus McCrary analogy. The fearless Fund, which is trying to remedy the gross imbalance in representation of black women in venture capital. They’re the ones who are akin to the segregationists keeping out black and brown students. And this is the best line of all from Judge Kevin Newsome Trump appointee, the fearless fund’s position that the First Amendment protects such conduct, quote, risks sowing the seeds of anti-discrimination laws demise. And, quote, again, the real racism is trying to fix racism.

 

Kate Shaw This is like trying to one up Sam Alito’s South Carolina. I mean, I think this might be an audition. I think we’re seeing a lot of those. But, but this is like another crappy audition tape that I feel like is going to get noticed. So.

 

Melissa Murray He comes in the same week as two black people. Raven Baxter, microbiologist. And the actor Wendell Pierce spoke out about being the victims of discrimination in the housing market. And it also is in the same week in which a California teachers union, the Elk Grove Teachers Association, has been challenged in court because it created a Bipoc position on their union board. And they did this in response to data showing that the school district that they represent suspends black students more than any other district in the state. So they wanted to put this Bipoc position on their union board so that there would be a representation by Bipoc voices on the board. All of the other union positions are available to be filled by anybody. But there’s this one position for a minority voice. Well, history teacher Isaac Newman, who is white, took that personally, despite the fact that all of these other seats on the union board are available to anyone he specifically injured by the creation of this Bipoc seat. And he’s suing his own union for discrimination, saying that he is, quote, been banned from a leadership position simply because of the color of his skin, end quote. And I just want to say, hey, this is some real civil rights energy. It is giving letter from a Birmingham Country Club. Yeah, yeah. MBK would be so proud. The arc of the universe is long, but it bends toward this guy getting all the seats perfect.

 

Kate Shaw We are just in the Upside Down and we’re only going to see more of these. So if we can stomach it, we’re going to keep bringing them to you. But it is every statute and the Constitution is going to be completely inverted. Until we have eviscerated every intervention, both governmental and private, it turns out.

 

Melissa Murray To eat the way and the way to stop discriminating on the basis of race, I have heard, is to stop discriminating.

 

Kate Shaw Against white men.

 

Melissa Murray Thank you.

 

Kate Shaw That’s I think the quote.

 

Melissa Murray I mean, yeah.

 

Kate Shaw Yeah, that is actually what what John Roberts thinks. So all right. Well, on that uplifting note, let’s pivot to some court culture.

 

Melissa Murray That last segment got me a little exorcized Kate. So I hope you’re going to have something to take me down a little.

 

Kate Shaw I did I did mix us up a batch of Martha-Ritas for the next segment.

 

Melissa Murray Girl. You know me so well.

 

Kate Shaw Salt on the rims, all of it.

 

Melissa Murray No, it’s not just the rims. Kate, you got a.

 

Kate Shaw Oh, sorry. The whole glass.

 

Melissa Murray The whole glass. The whole glass has to be covered in salt.

 

Kate Shaw I actually just. Got I just did the rim, so. But I promise we’re going to do a full glass.

 

Melissa Murray No half-assing it. Roll the whole thing.

 

Kate Shaw We’re going to make the whole thing the muldon coating of the entire glass. All right, all right, I got that. The note. The note has been taken for next for next episode.

 

Melissa Murray Okay.

 

Kate Shaw For now. Okay. We have to press ahead with just the rim. Salty. And we’re going to do that for just another small installment of reporting, this time via Andrew Gumbel of The Guardian, about goings on of The Real Housewives of Fairfax County. Jodi Kantor not the only game in town. Others are getting in on it. And this was, I thought, small but a really interesting set of, I think, new developments in the saga. So Emily Baden, the same neighbor who spoke to Jodi Kantor for the story that we talked about at length in our last episode. She’s the one who allegedly called Martha and a citizen or some other Cassie Seward. And she offered up some other details about their encounter. So apparently this was not in the times reporting, but it was, I thought, really disturbing. After the altercation, the alito’s security detail started parking outside of Baden Smothers House, which is where Baden was living at the time, not in its usual spot down the street, which Baden said she took as threatening. So she said, quote, the message was we could do terrible things to you and nobody would be able to do anything about it. When it comes to justices at the Supreme Court, they make the laws, but the laws don’t apply to them. What I feel like is as good a description of the current moment.

 

Melissa Murray Put it on a t-shirt.

 

Kate Shaw In the Supreme Court and anything we have done on our podcast. I mean, Emily, really, I think gets it.

 

Melissa Murray Emily, does Emily listen to Strict Scrutiny? I think she might.

 

Kate Shaw I have no idea. We should we should get in touch.

 

Melissa Murray Okay. That’s what I did. You know what, Emily Baden? If you change one letter, it becomes Emily Biden. And maybe that’s part of this. And it was inevitable.

 

Kate Shaw Really. She’s part. She’s going to be living on a barge off off of Guantanamo.

 

Melissa Murray Off Guantanomo with the rest of the family.

 

Kate Shaw With the whole clan, including the cousins who change the spelling of their name. Yeah, she’s she’s six. She’s from that part of the of the clan.

 

Kate Shaw Okay. But but Baden, relative or not of the current president, told the Guardian that Alito is, quote, lying about many, many things, which is a pretty serious accusation. I want to know one other thing, which is, she says Alito is lying about a lot of the details of their encounter. And Alito did speak to the times in response to questions around the first story about the flag, about, you know, flag it.

 

Melissa Murray But he also spoke to Shannon Bream where he elaborated that.

 

Kate Shaw So, so journalists, he talked to the times, he talked to Fox News.

 

Melissa Murray I wouldn’t go with journalist. That might be too strong.

 

Kate Shaw But the point I’m making is that’s not even the most important recipient of these potential misstatements. But because he wrote and signed a letter to Congress, he was not testifying under oath. But as your NYU colleague Ryan Goodman recently pointed out on Twitter, quote, Justice Alito’s letter explaining his refusal to recuse in the January 6th cases may include false statements to Congress under 18 U.S.C. section 1001, which is the general federal statute that criminalizes false statements to government officials not just under oath, like if you lie to a White House official during a vetting interview that’s technically chargeable under 18 U.S.C. section 1001, it’s been done before.

 

Melissa Murray So see Michael Cohen, I know it’s been done before.

 

Kate Shaw Yeah. So but I’m just, you know, if you’re in an interview with the FBI or something in some ways, like you kind of know your, you know, maybe you’re sworn, maybe you’re not. I’m not even sure if he was. But regardless, it’s a big broad statute. And Ryan Goodman, not us smart guy, real watcher of all the things, has suggested there could be potential criminal exposure on the part of Justice Alito.

 

Melissa Murray Can I just say something, though? Yeah. This is where, again, I’m going to come back to voting. Like, why does this court feel it can act with impunity? There are no checks, right? We know the code of conduct is really a code of misconduct. We know impeachment is a paper tiger, but impeachment is only a paper tiger because there’s such a narrow majority in the Senate, and impeachment requires a super. Majority to convict. If there was a much bigger majority, I think not even necessarily a super majority. For those who are interested in holding these individuals accountable. I think you actually might have some traction here if like, there was even just the possibility that there would be enough people to credibly get close to conviction, or even just to raise the prospect of conviction on impeachment charges. I think you would have them behaving better. Yeah, like I mean, they’re not. Am I not.

 

Kate Shaw Afraid of anything? No, I agree, and I think that’s I don’t even know if it needs to be that just, you know, a serious effort to require some appearances before Congress on pain of some budgetary response. Take their law clerks, for example. Gosh. So, you know, even short of impeachment and removal, I think the Congress could be flexing a lot of muscles that it is allowing to atrophy in ways extremely damaging for the health.

 

Melissa Murray This is my like there are muscles for voters to flex as well. Because yes, this is not just a presidential election. The Senate hangs in the balance. There are a lot of folks who are in seats where it will make the difference between the Democrats controlling that chamber and not like I’m thinking about Jon Tester in Montana, thinking about the, Ruben Gallego Kari Lake race in Arizona. Like, these are really important election. So, you know, not just the top of the ticket. All the down ballot races are really important. And if you want to hold this court accountable, make it a little easier to do. Although yes, they can also do something in the interim. But I think the threat of a real majority that could do some stuff to them would get this court in line real fast.

 

Kate Shaw I agree.

 

Melissa Murray All right. In other court culture news, I want to bring us back to our regular recurring segment, America’s Next Top Justice prospect. And once again, our favorite auditor, Jim Ho, is auditioning again for a spot on the Supreme Court in yet another Fifth Circuit jawboning case. A group called the Association of American Physicians and Surgeons Educational Foundation appealed a district court’s denial on standing grounds of its claim. It’s claim was that various national medical specialties, certifiers, in tandem with the Secretary of Homeland Security, had coordinated to censor and chill the speech of physicians, including some of the physicians associated with this group. And these physicians were ones who had spoken critically of positions taken by Doctor Anthony Fauci, and they’d spoken critically of lockdowns, mask mandates, Covid vaccinations and abortion. The Fifth Circuit reversed the district court’s standing decisions and remanded the case back to the district court. But that’s not why we’re here. As we all know, Fifth Circuit Judge Jim Ho not to be confused with Dale ho of the Southern District of New York. Jim Ho stays auditioning for Clarence Thomas, his seat on the United States Supreme Court. This man desperately wants to replace Justice Thomas, for whom he clerked. And I imagine Harlan Crow, in whose home Judge Ho was sworn on to the bench in, probably wants this too. Anyway, Judge Ho submitted for your consideration another banger of an opinion in which he underscored his aggrieved conservative bona fides while also appealing to America’s healers. So let me read from this particular dissenting opinion.

 

Kate Shaw Can I just say, Melissa, our listeners loved your dramatic reading of John Roberts letter that we got in real time in the last episode of Congress. So I feel like now you’re going to just have to like one up that with this dramatic reading of the joke.

 

Melissa Murray All right, let’s do it. Let me get ready. Okay. Doctors deserve our tremendous respect. We trust them to provide us with the best medical advice and treatment. But they’re not perfect. Doctors are, quote, susceptible to peer pressure, careerism, ambition and fear of cancel culture, just like the rest of us. End quote. And there he cites his concurring opinion in Whole Women’s Health versus Paxton. At various times throughout history, medical care has suffered and patients have been harmed, even killed, because doctors succumbed to social pressure and desire for approval and advancement. And then again, he cites to himself. We may quote, look back in disbelief at doctors who ridiculed and ostracized proponents of hand-washing and sterilizing surgical instruments to prevent disease and infection, and, quote again, a sight to himself. But we would do well to learn from our past. Yes, we should absolutely follow the science, but that doesn’t mean we should always follow scientists, because scientists don’t always follow the science. And then he cites himself.

 

Kate Shaw Can you believe he references succumbing to social pressure and desire for approval and dvancement with a straight fucking face.

 

Melissa Murray Susceptible to peer pressure, careerism, ambition and a fear of cancel culture?

 

Kate Shaw I mean. You gotta give it him. He knows where he speaks. And so maybe he’s got a point, right? He’s like, I see you doctors. I know.

 

Melissa Murray I mean, there’s so much we could say here. Certainly. I mean, I hope you understood. I was indirectly and by implication, shading all of the congratulatory self citing here because this man is like, I don’t want anybody else what I think about you, I cite myself he’s doing all of that?

 

Kate Shaw There’s so much good 90s music reference today.

 

Melissa Murray So much.

 

Kate Shaw I love this.

 

Melissa Murray I wish we could license this. But the point I wanted to make here is that if this is what Jim Ho wants to throw at Doctor Fauci and the scientific community in his bid to be the successor to Clarence Thomas, sir, you are going to have to up your game, because this week we had another aggrieved conservative who outsold Jim Ho. Roll the tape.

 

Clip You’re not doctor. You’re Mr. Fauci. In my few minutes, I want to talk about this right here. Mr. Fauci I reclaim my time. Objection. In my time, that man does not deserve to have a license. As a matter of fact, it should be revoked. And he belongs in place. Suspend. And I’ve instructed her to address him as doctor. I’m not addressing him as doctor. We should be writing a criminal referral because you should be prosecuted for crimes against humanity. You belong in prison, Doctor Fauci.

 

Melissa Murray I mean, I think she’s ready for prime time. I think she’s ready for Scotus. I think there’s an upside down flag in her backyard and she’s ready. I think there’s a security detail pulling up to her neighbors. She ready. She ready.

 

Kate Shaw I think she’s she’s looking for an appointment, though. I think in the Trump administration. What was this it I mean, that was a scientist. Yeah, I think that’s.

 

Melissa Murray Could it get worse? It could people. That’s why you gotta vote. Marge is auditioning.

 

Kate Shaw All right. So one more story before we go. And that is one that was covered in real depth over the last, maybe two weeks by Chris Geidner, whose Law Dork newsletter is a key resource in keeping tabs on the federal courts. It’s particularly important in this moment of a rapidly disintegrating media landscape. So if you don’t already subscribe to Law Dork, go do that. And this also, I think, may be an installment, maybe the first installment of a series I’ve been thinking, Melissa, about referring to as move over Matthew, which is, I think, going to be a series involving district judges reminding us that Matthew Kacsmaryk and Aileen Cannon are not the only Trump appointees on this nation’s district courts crying out for coverage on this podcast. So we have a new figure to talk about. But in all seriousness, this is just like an incredibly disturbing story involving an Alabama District Court judge, Judge Lyles Burke. And it’s actually not his substantive rulings that are the focus of Geidner’s reporting and of our discussion here, but truly unhinged behavior involving a group of cases and the attorneys involved in that group of cases.

 

Melissa Murray Over the course of two long and deeply reported pieces posted in the last week, Geithner walks us through a saga that we’d already been loosely aware of, but the full details were actually quite stunning and wildly concerning for anyone who actually cares about the rule of law. Basically, over the course of the last two years, some of the country’s most important, righteous, brilliant LGBTQ lawyers and advocates have been forced while they are in the midst of challenging an outrageous state law that targets trans kids to defend themselves against what seems to be baseless ethics allegations by several Alabama District Court judges, including Judge Burke.

 

Kate Shaw So let’s walk through the background a little bit. So back in 2022, attorneys for a number of key national civil rights groups filed several challenges to Alabama’s ban on gender affirming care for minors. The challenges were filed in different districts in the Northern District of Alabama and the Middle District of Alabama, sort of both. One of them was assigned to Judge Burke, who is, as I said, a Trump appointee. Another was initially assigned elsewhere, but then transferred to Judge Burke. And it’s pretty clear that this was a bad draw. The attorneys were not happy to get Judge Burke. And so they moved to dismiss those challenges as federal rules allow, and as is pretty routine practice in federal litigation. But Judge Burke was not happy about this. He took it personally. He didn’t give her. He decided it looked like Judd shopping, which everyone knows is only legal in Texas. And this is Alabama. So he launched what is now a two year investigation involving convening a three judge panel that conducted an inquiry into forum shopping. The investigation involved what sounds like multiple rounds of depositions, including pretty dodgy due process protections during those depositions, requiring these attorneys to answer written questions, pressing them to reveal confidential attorney client information. And again, this is a process that has gone on for, I think, close to two years at this point.

 

Melissa Murray And while this process was going on, Burke was actually issuing an opinion that enjoined the Alabama law, although that was subsequently reversed by the 11th Circuit and the ban was allowed to go into effect. And as this is proceeding, other states are passing laws similarly banning gender affirming care for minors. And these attorneys are challenging those laws, but also having to defend themselves in this really lawless sounding inquiry. Finally, this three judge panel that had been convened to review these ethics inquiries issued a 53 page final report of inquiry that includes findings that some lawyers had purposefully attempted to circumvent random case assignment procedures, all of which the lawyers vigorously dispute.

 

Kate Shaw Okay, so Burke now has back in front of him what to do with the final inquiry report, including the possibility of imposing sanctions against these lawyers. He is also considering a kind of a sub dispute, part of this larger dispute, but specifically regarding a document that the lawyers claim is privileged. Burke initially ordered the lawyers to turn that document over. That resulted in a mandamus petition to the 11th Circuit, something you really only try if a district judge has really done something truly crazy. Burke later withdrew this order, and so the attorneys withdrew their mandamus petition. But there is a hearing currently scheduled for the end of this month on, again, the possibility of sanctions for some of the nation’s leading LGBT rights lawyers. The hearing is scheduled for June 28th, which, as Geidner reminds us, is the 55th anniversary of the Stonewall riots, which are widely viewed as marking the start of the modern LGBTQ rights movement. So happy pride from Judge Burke in Alabama.

 

Melissa Murray And many thanks to Chris Geidner for this important reporting, because this saga needed to be told, and it really does recall the harassment of civil rights lawyers that happened when those lawyers challenged segregation and the civil rights movement South. I’m thinking specifically of Constance Baker Motley, Tamika Brown. Megan, who wrote that terrific book Civil Rights Queen, documented all of the ways in which Constance Baker Motley was disrespected when she appeared in federal court in the South and throughout Mississippi. The attorneys in these modern cases are doing incredible work, just as their predecessors did, and they are vigorously advocating for their clients and for constitutional principles like liberty and equality. I know not in vogue anymore, but they still exist. It’s outrageous to think that they are essentially embroiled in an under the radar inquisition for doing the work of bringing cases, especially in circumstances where lots of other groups are similarly being strategic, very strategic about where and how they bring their cases.

 

Kate Shaw So keep up with developments at law talk and we will keep up with this story as well.

 

Melissa Murray And on a lighter note, the Crooked store is kicking off summer with an accessory sale. I love a good sale and this one is great. There are tons of items that are marked up to 30% off, so now it’s the perfect time to stock up on totes candles. I have a couple that I like, mugs and more. Everything you need to add a little crooked to your morning coffee, your next canvasing shift, or your sock drawer. And yes, we are coming for your sock drawer, so head over to crooked.com/store to get up to 30% off the very best accessories. The sale ends tomorrow, so make sure you snag them quick. Actually, I’m going to go over there and see if.

 

Kate Shaw I know I need some more. I need some more mugs as well. So all right, well get on that before Melissa and I completely clean out the inventory. Strict Scrutiny is a Crooked Media production hosted and executive produced by Leah Litman, Melissa Murray and me, Kate Shaw. Produced and edited by Melody Rowell. Michael Goldsmith is our associate producer. Our intern this summer is Hannah Saraf. 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 Motaski. Finally, thanks to the wonderful Bill Pollock who has been stepping in while we’ve been short staffed in recent weeks. Bill, you have been such a pleasure to work with and we’re gonna find ways to collaborate in the future. Subscribe to Strict Scrutiny on YouTube to catch full episodes. Find us at youtube.com/strict scrutiny podcast. And 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. It really helps.