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October 23, 2023
Strict Scrutiny
Texas is a Magic 8 Ball for the Country

In This Episode

ProPublica’s Andrea Bernstein joins Kate and Leah to talk about the new investigative podcast, “We Don’t Talk About Leonard.” Then, Melissa, Kate, and Leah are live from the University of Texas to talk about all the special things the state brings to the federal judiciary.

 

TRANSCRIPT

 

Show Intro Mister 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.

 

Kate Shaw Hello and welcome back to Strict Scrutiny. We are two of your hosts, Leah Litman and Kate Shaw. And today we are bringing you a very special conversation with ProPublica’s Andrea Bernstein, who is one of the hosts of the new series titled We Don’t Talk About Leonard.

 

Leah Litman After this conversation, stay tuned for a full episode about the U.S. Court of Appeals for the Fifth Circuit. Something that I think really drives home what a full scale decadeslong effort to remake the federal courts can produce. We recorded that conversation live at the law school at the University of Texas Austin. And you don’t want to miss it.

 

Kate Shaw But first, Andrea Bernstein, welcome to Strict Scrutiny. It is great to have you.

 

Andrea Bernstein It’s so great to be here.

 

Kate Shaw So as I mentioned, you are one of the hosts of We Don’t Talk About Leonard, which is a three part audio series. That’s a collaborative effort between ProPublica and WNYC’s On the Media. And it introduces listeners to the most powerful person in America they may never have heard of until now, anyway. And that is Leonard Leo.

 

Leah Litman I guess we do want to make clear, I think out of some felt need to apologize that on Strict Scrutiny we do talk about Leonard, but none of us can really talk about him enough. And a lot of the people you reached out to, Andrea wouldn’t talk about him at all. So that’s both, I think, where the title comes from and also quite revelatory in the kind of power he wields.

 

Andrea Bernstein Yeah, I mean, I have to say it was very nice to listen to strict scrutiny because I did feel like I had some company in this long road of investigating Leonard Leo.

 

Kate Shaw But you certainly went much, much deeper than we have gone. And so for folks who haven’t listened to your series and maybe you haven’t heard us talk much about Leonard Leo. Who, Andrea, is Leonard Leo and why is he important enough to do a whole investigative series about?

 

Andrea Bernstein Yeah. So Leonard Leo is a sort of Robert Moses like power broker. But instead of building roads and bridges, he built the infrastructure of the judiciary. And he did it in a way that most people, even people who are incredibly interested in this subject, didn’t know and haven’t known. And he’s been doing it for decades. He has been working not only at the federal level, which is if people have heard of him at all, they know it’s because he was Trump’s judge whisperer. And maybe they know that he was on some trips with Clarence Thomas and a billionaire or with Justice Samuel Alito and some other billionaires, which were things that Leo arranged as we learned. But what is not understood, even by people who closely watch the judiciary, is that Leonard Leo has been working for decades, not only on the U.S. Supreme Court, but at the state level, working on influencing, not just making state Supreme courts more ideologically compatible with his view of the world, but with the specific choices about who gets to sit on state courts and how they are picked.

 

Leah Litman As your co-host or co collaborator on the We Don’t Talk About Leonard series, Andy Kroll said Leonard Leo is funding basically everything. And maybe for that reason you had this clip of Justice Thomas at a Federalist Society event describing Leonard Leo in this way.

 

Clip Now, Leonard, since you’re the number three most powerful person in the world, we have to. Right. God help us.

 

Kate Shaw So I have two questions for you, Andrea. First, do you have any idea who Thomas thinks are the first and second most powerful persons in the world? And then when you tell us a little bit about where is Leo getting this money to fund everything from? And Leah just mentioned the Federalist Society. So that’s part of the picture. But it turns out, and I learned a lot from your reporting on this. There is a whole universe of organizations that Leo has also funded that are in addition to the Federalist Society, deeply involved in advancing Leo’s agenda. So tell us about those.

 

Andrea Bernstein So part one, I don’t know. Number one and number two most powerful people in the world are. I assumed it was then President Trump and he himself, Justice Clarence Thomas.

 

Kate Shaw And then Leo, that seems very plausible.

 

Andrea Bernstein And then Leo. Or maybe Justice Thomas, then President Trump. I don’t know. What I really like about that clip is you can really hear how close the two are that these are people that genuinely like each other. They’re friends. They’re not just sort of casual bystanders. And for me, that is very telling about Leonard Leo and his relationship with Supreme Court justices. And I’m sorry, what was part two again?

 

Kate Shaw Oh its okay

 

Leah Litman Where is the money coming from and where is it going?

 

Andrea Bernstein Yes. Right. Yes. So, I mean, people basically said to us, you’re not going to get anybody to talk to you because Leo funds everything. When you have $1,000,000,000, just the interest can fund a whole conservative movement. Fortunately, we did get a lot of people to talk to us and you can hear their voices in our podcast. But there were so many who were sort of, you know, I. I don’t want to speak because I might lose access. I might lose access to money. I might have to represent somebody in front of a justice, etc., etc.. And one of the early geniuses of Leonard Leo and he had a lot of brainstorms, but one of the early ones was that as the what he was at the time, executive vice president of the Federalist Society, he was able to get close to the White House, he was able to build relationships. And that’s kind of standard Washington stuff. But he himself was not a wealthy individual, and he figured out that he could set up a network of nonprofits. And the most sort of the one that’s at the center of this is started out being called the Judicial Confirmation Network. When Obama was elected, it changed its name to the Judicial Crisis Network. It’s now called the Concord Fund, but that Leo could raise money for this group and then his access to the funds would give him a kind of power in Washington. And one of the ways that he was able to keep his money machine going was by introducing donors to Supreme Court justices. In one instance that we reported about, he brought a group to meet Clarence Thomas in 2017, And then the next year, when Brett Kavanaugh’s nomination was in trouble, he turned to those same people and he said, I need $10 million. And very soon, this group, the Judicial Crisis Network, was on the air with pro Kavanaugh ads. And that’s really how it’s work. By combining all of this into one interconnected network.

 

Leah Litman You had this really, I think, revealing quote from George Conway, who held leadership positions, you know, within the Federal Society organization, describing Leo as a den mother to the Republican appointed justices and describing this kind of two way street of a relationship that Leo set up, saying it made the donors happy to meet the justices and no doubt more inclined to give to Leonard’s causes. And it made the justices happy to meet people who revered them. Have either of you been watching? The most recent season of Love is Blind? Yeah.

 

Andrea Bernstein I have not. I have to confess no.

 

Kate Shaw You know I haven’t.

 

Leah Litman Listeners who have it made me think of this line from one of the contestants fathers when they’re meeting, right? The fiancee, the contestants father says “sometimes love wants to fly first class.” And I feel like Leonard Leo had the insight that sometimes the law wants to fly first class as well, and then kind of like built up these networks around it. Anyways. So we’ve mentioned remaking the federal courts, but the series goes beyond just the federal courts. But let’s start with the federal courts. You tell the story of the way Leo identifies, cultivates and shepherds to the federal bench. Individuals like now Judge Lawrence VanDyke, a story that includes state solicitor general’s offices, which are important training and proving grounds for sending conservative lawyers. So who was Judge LawrenceVanDyke and what does his trajectory tell us about Leonard Leo, his vision and his tactics?

 

Andrea Bernstein Well, who he is now as a judge on the ninth Circuit who is probably best known for his pro gun positions, he wrote this decision during COVID where he talked about sort of the Second Amendment rights being especially apparent during a pandemic. He is somebody who probably a lot of people have never heard of, unless you are followers of the Ninth Circuit or maybe listeners to strict scrutiny. But he was somebody that we in our reporting, we learned that Leonard Leo had made phone calls on his behalf at a point in his career when he was out of a job. And we thought, Well, that’s interesting. And that became part of something that was really one of the really new things that we uncovered, was that Leonard Leo realized the importance of State Solicitors General very early on, because states can get cases to the Supreme Court often faster than everybody else. Often they have standing where others don’t. So one of Leo’s early insights was the importance of State solicitors general. And one of the things that we began to see was that there were figures like Lawrence VanDyke who came in and changed the role of solicitors General from sort of a kind of a backwater office job. Or maybe you would defend your state in some suit against it or there’d be some consumer protection thing to this sort of young, hard line Republican believers in gun rights, opponents of abortion and who became incredibly aggressive. And Lawrence VanDyke was a story of somebody who Leo Leo met when he was in law school and really nurtured his career. All through his career. He was solicitor general in Montana. He was solicitor general in Nevada. He briefly worked in the solicitor general’s office in Texas. He ran for a state supreme court in Montana with the support of Leo’s group, the Judicial Crisis Network, as it was named at that time. And he doesn’t win that race, but ultimately, he gets a nomination for the Ninth Circuit Court of Appeals and he gets on Trump’s short list for Supreme Court judge, the one he put out in 2020 when Trump was running for reelection. So that is the kind of influence that we found with Leo, that he is creating this pipeline that follows people all through their careers.

 

Leah Litman And at one point in his career, then Lawrence VanDyke had a bobblehead of Leonard Leo in his office. That was one of my favorite details of the reporting. Yeah, we mentioned Judge VanDyke on the previous episode for including a draft of a on Borg opinion overruling his own opinion. You know, this is someone who the ABA had described as their emerging a theme with conversations about people that identified him as lacking humility or having an entitlement temperament or not having an open mind.

 

Andrea Bernstein Well, the bobblehead story really sort of pretty much is the center of episode two. It was related to us by Mike Black, who was a law school classmate of Leonard Leo’s and who goes to work in Montana and works and practices law in Montana. And then a new guy comes in and works at his office, a guy named Lawrence VanDyke and Mike Black goes down the hallway and says has some business. And he notices that there are these bobbleheads and it’s Scalia and maybe it’s Alito. And he’s like, wait, who is that guy? And he’s like, That’s Leonard, Leo. And Mike Blake is thinking, I went to law school with him. What? And it is to us the perfect symbol of Leonard Leo’s power, that he is somebody that people knew that was there. And yet his power goes so much deeper than they recognized.

 

Kate Shaw Yeah. The material on the state solicitor general’s offices was so excellent in that episode, and you sort of illuminate two dimensions of that office that I think are really important. One, it’s increasingly central role in pushing conservative legal policy at the national level. And there are people who are quite forthright about the benefits of getting to be in a state six offices that you get to play in national policy. So no one is even really pretending otherwise. So you have the kind of the actually moving substantive law component of that office and this sort of increasing sort of the ascent of the solicitor general’s offices in the states and then also these offices as training grounds for sort of the conservative legal elite and the VanDyke story. So. Well, because as jeez, you think of as coming up through organically through the state legal system, but it’s like he’s even not even he’s moving from state to state from in the state as these offices. And that’s just not typically how this works. But of course, you know, Leo is changing all of the rules. So that I thought was really excellent. And it’s, I think a pretty good segue way because the state AG’s office is in is of course, a state office. So I think maybe we’ll segway now to state courts, which you alluded to at the beginning and which have been just a huge area of focus for Leonard. Leo. So as our listeners will probably know, state Supreme Court justices are selected in different ways in different states. So some are appointed, some are elected. And you talk about Leo’s efforts to intercede in various ways in both kinds of states. So maybe let’s start with states that have gubernatorial appointments. Can you just talk a little bit about his efforts to influence the process in states like Missouri and Florida, where, again, justices don’t run for those seats, They’re appointed, but there are entry points at which Leo sought to exercise influence. And all of that was really interesting and then maybe will shift to judicial elections.

 

Andrea Bernstein Yeah, so Missouri was such a revelation to me. And I’ll tell you how I got involved in trying to find out if Leonard Leo played a role in Missouri was I noticed that this group, the Judicial Crisis Network, had spent a bunch of money on an effort to change the way Missouri selected judges. And I thought, Huh, that’s interesting. They went from funding advertisements for John Roberts and Samuel Alito to giving money to better courts, Missouri. So I began to dig in and I thought, what is that? So I learned of the Missouri plan, which I had never heard of, which is a thing the Missouri plan is a way of selecting state Supreme Court justices that relies on lawyers, gubernatorial appointees, and in the case of Missouri, the chief justice to select a panel of nominees or select a group of nominees in Missouri, it’s three that then go to the governor and then the governor picks one of those three. And the idea this was way back in sort of a 1930s era corruption scandal in Missouri where the decision was, which should try to take the politics out. And we’re going to do it this way. We’re going to have the Missouri plan. Dozens of states have adopted the Missouri plan. In fact, when you read about Florida. Florida says we have the Missouri plan and it is an alternate way of picking judges. That is not an election. So I began calling so many people, everybody I can think of in Missouri. Have you heard of the Federalist Society involvement? Have you heard of Leonard Leo? No, no, no. And I thought, okay, well, really, I’m just, you know, not can find anything here. Maybe there’s nothing to find. And then I learn of these e-mails that Leonard Leo has sent to the at the time chief of staff for the governor. The governor was Matt Blunt, a promising young Republican. And he had a choice before him to select the judges. One of the judges that the panel had picked, or what Leonard Leo wanted him to do, which was to say, no, we’re not picking any of them. And to try to use that to blow up the system, which was a precursor of an effort that Leo and others engaged in many years later when there was an opening on the Supreme Court because of the death of Justice Scalia, when they refused to select or hold a hearing for Merrick Garland. So Missouri was sort of an early testing ground for this kind of process. And what Leo did was he sent these emails essentially saying to the governor, if you pick this justice to retire, her last day as a justice was on October 13th, 2023 of this year, Leo said, If you pick this justice, the fury of the conservative base will rain down upon you. He didn’t say rain down upon you, but that was the essence of the email that he was threatening the governor. This was a terrible choice. The governor selected this justice, Patricia Breckenridge, anyway, and it was a loss for Leo, but he really took those lessons and honed them and went on to use them in other states to great effect.

 

Leah Litman And maybe now we can switch to states with a different kind of judicial selection and judicial elections. So we spent a lot of time on this podcast talking about the Wisconsin Supreme Court, and you do a great deep dive into the politics and funding around judicial elections in that state, which you say really shifted in the 2008 race between Butler and Gabelman. But you also have a lot of material on North Carolina, including an interview with former Chief Justice Beasley, who was chief justice from 2018 to 2020, the first black woman to hold that position and the transformation of that court from one under, you know, Democratic control to the current five to Republican controlled court of today. And how did that transition happen? And are Democrats beginning to pay serious attention to state courts like we know they did in April in Wisconsin? But what about elsewhere?

 

Andrea Bernstein Right. So what happened in Wisconsin was Wisconsin at the same time that Leonard Leo was working in Missouri, he also began working in Wisconsin. And one of the earliest traces of that was in the Gabelman Butler race, where somebody who was familiar with the Gabelman campaign told me that the campaign had been passed a list of wealthy individuals to call with the suggestion that Leonard told me to call and that each of those individuals gave the maximum to the Gabelman campaign. The challenger to Louis Butler and Gabelman won by a very small margin. He was the first challenger to unseat an incumbent in Wisconsin in 40 years. So this is the kind of thing where, you know, money can really create a difference. But what that really was what happened in that race was a very controversial ad campaign where Butler, who was Wisconsin’s first black Supreme Court justice, was up on a screen with his picture next to a sex offender, also black. And there was all kinds of criticism. People felt like this is a real break for Wisconsin. This is what I was told by other former justices, that all of a sudden the ads were negative. They were questioning people’s integrity. They were making people think badly about judges and justices. And that was really the beginning of this, you know, what has now been a 15 year effort of negative advertising, which calls into question the entire sort of role, the idea of impartiality, so that what you have now in states like Wisconsin is what one former Supreme Court justice said. People, it’s like they’re running for super legislator. They’re not running to be independent. They’re not running to be impartial. And I mean, I’ve covered a lot of political corruption in my career. And I always thought, like judges, they’re above the system. I mean, you know, maybe not all the time, but basically, like structurally, I believe that until I really began looking at what has been happening where there’s this real driving effort that Leo is one of the main forces behind to make these courts much more partizan and much more about politics. And obviously in their case, they’re looking for much more conservative justices. Justice Cheri Beasley, a sort of at the other end of that. And what was really interesting to me as she talked about how when she was running, she felt so powerless because there you are as a judge and you can’t really campaign. You can’t say how great you are. I mean, all you can do is say how fair you are. But there’s this onslaught of negative ads attacking your character, and you really get the sense of these larger forces determining what happens in states like North Carolina.

 

Kate Shaw There’s much more to say about the state courts and you say much more in the series. But we want to move on now to another kind of topic, obviously, another Leo topic. And I want here to play a clip that we have actually highlighted on Strict Scrutiny previously. And this is Leonard Leo discussing the organization Teneo. But before we play the clip, can you just set this up for us? Like, what is. Teneo Yeah, and then we’ll play the audio and we can talk about it.

 

Andrea Bernstein Yeah. So Teneo was a group that we learned about in the course of our reporting. It’s been around for a while. But just to back up on the money issue, one of the important things I forgot to say is Leo got control of $1.6 billion in a process that began in 2020. It took a sort of couple of years for it to fully fall into place. $1.6 billion at the time of the contribution was the largest known dark money contribution ever in the history of the United States. And he got it from an electronics magnate in Chicago named Barry Side. It was all bequeathed to a organization called the Marble Freedom Trust, which Leo solely controls. So he has this 1.6 billion. We were like, What is he going to do with his 1.6 billion? One of the things he’s doing with his 1.6 billion is working through this organization called Teneo, which we call a Federalist Society for everything. It’s the same idea of creating a pipeline of talent where you get people in high level positions. But now we’re not just talking about just talking about Supreme Courts and the Justice Department and state Supreme Court judges, but also all of culture. So movies, the media, business banking.

 

Leah Litman So like trying to find a fascist Greta Gerwig or something? Or like, is that the idea or.

 

Andrea Bernstein I mean, they certainly don’t characterize it that way. They say. I mean, you know, one of the things is that they consistently say, especially about culture, we’re in the minority, we don’t control it. Our voices are suppressed. We need to take control.

 

Kate Shaw That’s a great overview. Let’s actually play the clip of Leo right now. Who is he? Cuts a promotional video for the group in which he explains this vision.

 

Clip Teneo shapes the broader culture by building networks of conservatives that can roll back or crush liberal dominance in key areas of American life. I know. This is Leo in a promotional video from not too long ago. He’s sitting on a couch wearing a charcoal gray jacket, no tie. I spent close to 30 years of, if not more, helping to build the conservative legal movement. And at some point or another, you know, I just said to myself, what if this can work for law? Why can’t it work for lots of other areas of American culture in American life where things are really messed up right now?

 

Leah Litman Let’s also play the clip, which is them imagining how culture currently exists in their efforts to replicate this imagined version of the world.

 

Clip Consider this case study. Imagine a group of four people sitting at the Harvard Club for lunch in midtown Manhattan, and you have a billionaire hedge funder. You have a film producer. You have a Harvard professor and a New York Times writer. The billionaire says, Wouldn’t it be cool if middle school kids had free access to sex change therapy paid for by the federal government? Well, the filmmaker says I’d love to do a documentary on that will be a major motion film. The Harvard professor says we can do studies on that and say that’s absolutely biologically sound and safe. And your times person says, I’ll profile people who feel trapped in the wrong gender. After one lunch, you can put different kinds of capital together to go out into the world. And what basically wreck shop. That is our approach for how we’re trying to advance our ideas.

 

Kate Shaw With those too fresh in our ears. The series does a great job of displaying Leo’s really single minded focus on creating and cultivating what you call a talent pipeline and infrastructure. So this may go beyond your reporting, but I’m so curious to hear. Do you have a sense of what Leo might be up to right now in terms of planting these same kinds of seeds when it comes to these other areas of American culture and American life? I mean, we have seen how seeds planted decades ago have started to bear fruit in early proteges of Leo ascending to the highest levels of American judiciary and things of that nature. So I’m not sure what he is laying the groundwork for now. But I wonder if you have any ideas.

 

Leah Litman Can I make an early prediction before you give a serious answer, which is I see in the future a fascist Greta Gerwig movie about like upholding the patriarchy. Barbie Right. Like that is what we are staring down.

 

Andrea Bernstein I mean, I’m sure they would not describe it as such, but I do think that getting control of Hollywood movie making and making movies that are sort of, you know, what they would call traditional values themed or Christian themed that people want to watch and go to see is a big goal of theirs and that they’re sort of trying to correct that. But we do see already. I mean, one of the things that, you know, sort of there’s a strong libertarian streak and, you know, it’s interesting thing because we haven’t only sort of gone into the whole marriage of the economic conservatives and the moral conservatives that Leo really embodies. But a lot of what Teneo is doing has to do with deregulation. So, for example, there’s a whole anti ESG movement that Leo is promoting through Teneo and through other parts of his network. There are also talks about, you know, let’s get a group of conservatives ready for a potential Republican administration in 2024. There is a sense of we want to create our own media. And it’s interesting because in our podcast is an interview with Leo, with a podcast from the Maine Wire. The main wire is produced by a think tank that Leo funds. So I think that is sort of the model that we will, you know, be expecting to see more of. So we don’t know. Teneo calls itself private and confidential, and at one in one of the videos, Evan Becker, who’s the co-founder, says some of these projects are so secret that we can’t even talk about them. But I think what we have learned about Leonard Leo is that creating a specific system of loyalty and having specific people and ready to go in specific places is his secret sauce and his allies say that. They say that’s his secret sauce, that he is a visionary, that he has a generational vision, that he plucks people out of law school and nurtures them. Then when there’s a judgeship open, he’s known someone for 20 years and he can plug them right in.

 

Kate Shaw So now he’s just going do that with everything. This is great.

 

Leah Litman Exactly.

 

Andrea Bernstein He could.

 

Kate Shaw This is what This sounds perfect.

 

Andrea Bernstein I mean, I think that is what he’s driving for with Teneo. So I think that this is something that we are really seeing at the beginning of And, you know, culture is different from the courts, which are this as you know, this is a closed system where it’s easier in some ways to crack the code and have influence than over all of culture, which is pluralistic and hard to control. And there are many different inputs. However, Leo certainly has a lot of money to do it, and if past is prolog, he is someone to be taken very seriously in this area.

 

Leah Litman Absolutely. Like, even if he like misunderstands the dynamics of like how culture works, it’s not like a group of people with specific preferences then like asking all of society to adopt them, right as the clip we played imagined. But like they are going to try to do that, which is the kind of fascistic impulse that I was referring to anyways. It is a phenomenal series. We want more installments was not enough for some of us. Andrea Bernstein, thank you so much for taking the time to talk to us. Everyone check out We Don’t Talk About Leonard wherever you get your podcasts.

 

Andrea Bernstein Thank you. It’s such a I’m such a big fan of Strict Scrutiny, so it’s so great to talk to you all.

 

Kate Shaw Thank you so much.

 

Leah Litman [AD].

 

Melissa Murray Welcome back to Strict Scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it. We’re your hosts. I’m Melissa Murray.

 

Leah Litman I’m Leah Litman.

 

Kate Shaw And I’m Kate Shaw.

 

Melissa Murray And today we are coming to you live from the belly of the beast. That’s right.

 

Leah Litman The place where it might be illegal for some or all of us to talk and maybe even to exist.

 

Kate Shaw Yes, you guessed it. We are recording from Texas today, and specifically the terrific law school at the University of Texas School of Law. And we are here at the invitation of the Texas Law Review. Thank you so much for the invitation and the hospitality, y’all.

 

Melissa Murray So there’s a lot going on in Texas. So we thought we would use this occasion live in Texas to survey some of what is happening in the Lone Star State or specifically the Longhorn state. Yes, you can clap. That was for you. And we are especially interested in what the federal Court of Appeals is doing here in the Longhorn state. And so if you’re not a regular listener of strict scrutiny, you know that we are talking about the court of appeals here in Texas. We mean only the Fifth Circuit melody insert dramatic, terrifying music here.

 

Leah Litman Like the Darth Vader, you know? Yeah, that, that one. But things change quickly here in Texas. For example, two years ago, some guy named Sam Alito was referring to Texas as.

 

Clip Texas is an abstract entity.

 

Leah Litman So we should note that we are recording this episode at the end of September, and it is not going to air until after the October sittings. So who knows what will even happen in the next month.

 

Kate Shaw But at least for now, we are planning on the following. We are going to cover some greatest hits from the state of Texas. We see you, Judd, with two D’s Stone and Ken Paxton to some recent hits from the district courts in Texas. We see you, Judge Kacsmaryk, a.k.a chief scientist slash surgeon general of the United States. And we will also cover some greatest hits from the Court of appeals that Melissa just alluded to, the one that hears cases from Texas, too many judges to name, but you know who you are.

 

Melissa Murray We’ll also be covering some assorted court culture that we couldn’t quite fit into the term preview in the October preview. So lots of tea to be spilled. And of course, that is sweet tea.

 

Leah Litman First up, yellow roses and thorns. Texas is greatest hits, so some Texas cities are considering and also some are occasionally passing ordinances that are modeled after SB eight, which was the notorious bounty hunter law that shut down abortion access before the Supreme Court formally overruled Roe versus Wade. The new laws that these cities are considering authorized suits again in the model of SB eight. But these suits are authorized against people who drive on a road within the city or county in order to get an abortion. And the anti-abortion movement is trying to pass these laws in places with highways or near airports, a.k.a. places people need to go in order to flee the state to receive abortions. This makes me wonder how these cities or counties plan on enforcing these laws. Like, are the officers going to be profiling drivers to guess whether a given driver might be pregnant? Like, are they going to pull me over and ask for a roadside general check and like maybe a roadside pregnancy test, like pianistic lady, Right. Like, we want to know whether you’re getting an abortion. Like this seems to be part of the plan.

 

Melissa Murray Well, couldn’t there be like a sex discrimination claim if you’re only pulling over women?

 

Leah Litman No, because pregnancy discrimination isn’t sex discrimination. Thank you Supreme Court, ugh Geduldig, and also Dobbs.

 

Melissa Murray In addition to making it unsafe for pregnant people to drive in the state of Texas, Texas is also continuing its takeover of election administration and public schools in Harris County. Harris County, you don’t know, is a racially diverse and Democratic leaning area of the state that covers metropolitan Houston. The bill requires Harris County officials to abolish the office of the Harris County Elections Administrator, and that would put control over elections in blue Harris County in the hands of the state. Again, Melody cue Darth Vader music.

 

Kate Shaw We might have a lot of those interludes in the next hour. So as our audience here in person, of course knows, Texas Attorney General Ken Paxton was acquitted in his state Senate impeachment trial because, you know, arguable lawlessness by high ranking officials is apparently not disqualifying for many in the GOP. The fact of the impeachment in the House, I think, lulled a lot of people into thinking the fever pitch of Partizanship had broken in certain respects that maybe the GOP was capable of meting out consequences for truly egregious conduct. But alas, reporting suggests that a lot of Trump allies organized a campaign pushing Texas senators to vote to acquit. And the campaign seems. You have worked. Only two Republican senators in the end voted to convict. And, you know, along the way, it really did seem as though a lot of others were really in play up to the very end. But in the end, everyone seems to have decided to stand together or fall together. And so the vote wasn’t, in the final analysis, even close.

 

Leah Litman What would you say Ken Paxton’s métier is? For those of you who might not get that reference, go check out the New York Times style section and see if there are any law professors featured in it and then control off the word métier. Trust.

 

Kate Shaw Leah gave you your homework.

 

Melissa Murray A district court in Texas has preliminarily enjoined Texas’s book ban for public school libraries and restrictions on books that are, quote, sexually relevant. That is a term in the law sexually relevant in enjoining the law. The court noted that the requirements for vendors were so numerous that the court wondered whether anyone could comply with the law and whether that in fact was the legislature’s intent in passing it. The court concluded that the law, the abbreviation is reader, misses the mark on obscenity with a web of unconstitutionally vague requirements. And it notes further that quote, Generally the government was confused and unaware of how the law would actually function in practice. Even though the hearing was mere days before it would go into effect. There were approximately 40 instances during the August 18th hearing, hearing one where the government either did not know how the law would function or did not have an answer as to what the effects of certain provisions were. Excellent work legislature. Like, full marks.

 

Leah Litman So that transitions nicely to the next segment, which is about the greatest hits recent hits of the district courts of Texas. And first up, we are going to start with a real banger from Judge J. Campbell Barker. These guys always have the best names. Judge Barker is a 43 year old district judge who was appointed by Donald Trump, and he issued a decision that said the Consumer Financial Protection Bureau does not have the authority to protect certain kinds of consumers or at least doesn’t have the authority to prohibit certain kinds of financial practices. No points, zero points for correctly guessing what he said the CFPB could not do. The court said the CFPB does not have the authority to prohibit discriminatory financial practices and specifically practices that disproportionately disadvantage consumers who are racial minorities. So the agency had said that the relevant statute, which prohibits unfair, deceptive or abusive acts or practices by those terms, prohibits discriminatory practices. Because discriminatory practices are unfair or abusive.

 

Kate Shaw Oh, no, no, no. That’s not that’s not right at all.

 

Melissa Murray Make Walker Thomas great again. Like thats what that is? Yes. Okay.

 

Kate Shaw So Jay Campbell Barker disagreed, said, Not so fast. The court started this opinion by invoking the major questions canon, which in our mind at this point is basically evolved to mean Joe Biden can’t do things that give Republican appointees a bad feeling, which is the title of this next article on the canon. But Jay Campbell Barker invoking this canon, continued when Congress prohibited the unfair, deceptive or abusive acts and practices it did not say including discrimination or such as discrimination.

 

Melissa Murray Jay Campbell Barker explained that the definition of unfairness, which is defined to include things that caused consumers substantial injury, does not mean discrimination. So in case you didn’t get the memo, discrimination is not unfair. It is actually 100% okay, according to Judge Barker. Am I getting that right?

 

Kate Shaw It sounds like you must not be, but yes, that is actually what the opinion says.

 

Melissa Murray Amazing.

 

Kate Shaw So, right, definitely checks out in another development. Friend of the pod. We’ve already mentioned Judge Matthew Kacsmaryk is currently hearing a case seeking to impose hundreds of millions of dollars, maybe over $1,000,000,000 in liability on Planned Parenthood. So the general synopsis of the case is that Texas tried to remove Planned Parenthood from the Medicaid program. There was litigation over that for four years, ended in Texas removing Planned Parenthood from Medicaid. So this lawsuit suggests that Planned Parenthood needs to pay back the Medicaid reimbursements that it received between 2017 and 2021 while the litigation was ongoing. The lawsuit also claims that Planned Parenthood defrauded the government by taking the lawfully available money during this time, triggering enormous liability under the False Claims Act. But I’m sure it’s going to work out just fine. So I’m not worried about this opinion at all.

 

Melissa Murray He does seem to have range.

 

Leah Litman Judgment sense as well.

 

Melissa Murray Range.

 

Leah Litman I mean, he is chief scientist, surgeon general of the United States, and many other things, too. So, yeah, I’d call that range.

 

Melissa Murray Well, as evidence of. His range. Judge Kacsmaryk has also issued an opinion on drag bans. So unlike basically every other court to consider the issue of policies that restrict drag shows. Judge Kacsmaryk refused to enjoying a West Texas policy that barred such shows. And so that means a drag show can’t happen on the Texas A&M campus without students being punished for it. And Judge Kacsmaryk, in that opinion, called drag, lewd, vulgar, specialized conduct that harms children and is likely unprotected by the First Amendment. He has not seen RuPaul’s Drag Race.

 

Leah Litman So one of the oddities about this opinion is, you know, Judge Kacsmaryk seems to think that drag is not expressive, even though drag seems to give him a lot of feelings.

 

Melissa Murray You know what is expressive?

 

Kate Shaw Right.

 

Melissa Murray Websites. Websites, wedding websites are expressive. Drag, not expressive.

 

Leah Litman Drag is not expressive. Cakes are also expressive.

 

Melissa Murray Definitely. Possibly sandwiches If you’re an artist.

 

Leah Litman Yes, maybe those as well. Photographs maybe expressive. But again, drag is not expressive. And again, like part of the weirdness is if you read this opinion, you just get the sense that Matthew Kacsmaryk thinks drag is saying something he doesn’t really like what it says.

 

Melissa Murray It’s almost like it’s expressing something he doesn’t like.

 

Leah Litman He was so close. He was so close to getting it.

 

Melissa Murray So close.

 

Leah Litman Yeah. Another Texas district judge, this one named Brantley Starr.

 

Melissa Murray Another great name.

 

Leah Litman Also a Trump appointee, because, of course, Judge Starr ordered Southwest Airlines to take a, quote, religious liberty training from the Alliance Defending Freedom. ATF, of course, is the organization that is seeking to ban medication, abortion, that has defended bans on gender affirming care and about a million other things as well. And the order from Judge Starr came as part of a judicially ordered sanction in an employment law case where a former flight attendant had sued Southwest Airlines after the flight attendant was fired. And the plaintiffs, the former flight attendant, you know, became agitated that some union members had participated in Drum roll, please, the Women’s March. The plaintiff also did not care for the fact that the union had lobbied in support of women’s rights. And so she began a social media campaign against this that she says led to her being fired, that social media campaign included, you know, the very typical mundane posts of accusing the union of supporting murder, accusing a leader of the Women’s march of being a terrorist, calling the union sheep in all caps in wolf’s clothing, saying the march was for a despicable show of trash. Also, all caps and more so the judge ordered the airline and union executives to attend a religious liberty training by ADF, a group that describes its legal academy as having, quote, an unwavering commitment to Christian principles.

 

Melissa Murray So can I just jump in here? Like after SFAA versus Harvard, we are now seeing a spate of ed bloom, fueled fever dreams to end DEI efforts in private institutions, including law firms. So you can’t do diversity training. This is the new diversity training. Sending your people out for religious liberty training is the new diversity training.

 

Kate Shaw And this one’s constitutionally sound.

 

Leah Litman Yes, this one is on the cusp of being constitutionally required.

 

Kate Shaw Yes.

 

Leah Litman If I had to predict where things are going.

 

Kate Shaw Just give us a a couple of terms.

 

Kate Shaw All right about eight months, something like that.

 

Melissa Murray Something like that. Nine months.

 

Leah Litman Yeah.

 

Melissa Murray Just enough time to have a baby.

 

Leah Litman Right? We’re going to put it in a drop box and everyone’s going to love it. You know, I thought I recalled something about how the Constitution might prohibit the government, which includes the federal courts, from forcing religious teachings of a particular faith on to people. But I also recall, Melissa, I think you said the court had edited out.

 

Melissa Murray I said the court had ghosted the establishment.

 

Leah Litman Yeah. That part of the Constitution definitely no longer exists. It has been abandoned. So this checks out.

 

Kate Shaw It’s just fine. On the newly edited version.

 

Melissa Murray Texas is basically like a magic eight ball that’s showing us where the whole country is going. It happens here first. Yes. Right. Like Bravo. Yeah. Watch what happens now.

 

Leah Litman Yes. Yeah. Okay. I’m imagining like a watch what happens live with Andy Cohen.

 

Melissa Murray And Ken Paxton.

 

Leah Litman And Ken Paxton, Matthew Kacsmaryk, Brantley Starr and Jay Campbell Barker and all of the Fifth Circuit Judges were. Just about to mention and I just don’t know.

 

Melissa Murray Like a Housewives reunion.

 

Leah Litman Right? The Real Housewives of Article three.

 

Melissa Murray The Real Housewives of Article three.

 

Leah Litman Yeah. Okay.

 

Kate Shaw So Leah just mentioned the Fifth Circuit. So this is probably a good time to pivot to greatest hits of the Fifth Circuit just in very recent months. We have a lot of material to work with. And I should say we’re not going to focus on this dynamic here. But as we sort of survey the big cases the court is slated to hear, it really is striking how many of the biggest cases of the term arise in the Fifth Circuit just to take off a few of the terms, biggest cases that come out of the fifth challenge, the constitutionality of the Consumer Financial Protection Bureau, the Securities and Exchange Commission. Rahimi The Second Amendment case, which is arguably the terms biggest case, the mifepristone challenge, which was, of course first decided by again, friend of the pod Judge Kacsmaryk that’s not yet on the docket, but is almost certain to be added to it in the next couple of months. The Federal government’s already petitioned for cert anyway. The list goes on and includes some of the cases are going to highlight here. But actually that’s not even what we going to focus on because the Fifth Circuit has given us that much material to work with. We have a whole show that is basically not the big cases the court is going to hear, but other madness emanating from the Fifth Circuit.

 

Leah Litman So and part of the reason why we wanted to cover this is not just because, like Texas is the magic eight ball for the country. You know, watch what happens here. It’s about to happen there in six to 8 to 9 months. But also to give our listeners a sense because what the Fifth Circuit does obviously affects the Supreme Court’s docket and it affects, you know, the cases that get to the Supreme Court’s docket, because when the Fifth Circuit is just striking down federal laws left and right, you know, the Supreme Court has to take them. And that really affects the baseline against which the Supreme Court is judge like the Fifth Circuit is single handedly.

 

Melissa Murray Shaping.

 

Leah Litman Shaping our expectations and the metrics against which the court is being judged. They are taking that Overton Window and driving it to the North Pole. And again, you know, when inevitably, inevitably, I think the U.S. Supreme Court is going to disagree with at least one of these Fifth Circuit rulings that is going to lead to conversations about whether it is a moderate, institutionalist, U.S. Supreme Court. You know, there have been other Supreme Court previews in other venues and locations happening over the last month, and a few of those previews have reverted to tropes about the three, three, three Supreme Court. This idea that there is this middle center that represents the center of American law, but the fact that someone is on the law side to where the Fifth Circuit is does not mean they are in the center of American law. Like these things are very different. So with that long rant out of the way, here is some additional context for what the Fifth Circuit has been doing. The Fifth Circuit has really been making some moves in addition to all of the cases that are now up at the Supreme Court. The Fifth Circuit revived some claims by some doctors who say their feelings were hurt by the Food and Drug Administration’s tweets about ivermectin.

 

Melissa Murray Wasn’t ivermectin like the horse thing that you used for COVID?

 

Leah Litman It is illegal to say ivermectin is about horses, Melissa. Now doctors can sue you, so watch what you say.

 

Melissa Murray I may not make it to the airport.

 

Leah Litman Ken Paxton is going to take jurisdiction. You right back to austin because in this case, Apter versus DHHS. Judges will let Clement and Elrod said that some doctors could sue the FDA over tweets that said, quote, You are not a horse. That is illegal.

 

Melissa Murray I think you need context.. Context of the of COVID and that whole like I’m not a cat. I think it was like all of that vein. And it’s I’m sure.

 

Leah Litman The tweets were trying to warn people not to use the version of ivermectin that is available for use on animals to treat COVID. So the rest of the tweet that read you are not a horse said, stop it with ivermectin. It’s not authorized for treating COVID, and it included a picture of a horse.

 

Melissa Murray That seems very normal.

 

Leah Litman You would be wrong because some pro ivermectin doctors said the post harmed their reputations and also interfered with their ability to prescribe ivermectin.

 

Melissa Murray As best as I can tell, the court’s reasoning here was that the agency didn’t have the statutory authority to communicate with the public about, quote, non factual matters.

 

Leah Litman The fact that you are not a horse is not a factual matter. Not factual. It’s expressive. Right? Unlike drag. Logic.

 

Melissa Murray All right. So the court of Appeals faulted the district court here for rejecting that claim on the theory that the agency had, quote, inherent authority to communicate information to the public. That’s what the district court thought the court of appeals said. That view assumed that the tweets, quote, contained only factual statements, end quote, rather than medical recommendations or advice. So these were just. What were these words?

 

Leah Litman This is giving me really strong memories of the Sam Alito moment at the oral argument in the test and vacs case with Solicitor General Preloger, where he said, I’m not saying this, I’m not saying this, I’m not saying this, but aren’t vaccines super unsafe and dangerous? And, you know, again, the Fifth Circuit is saying that what the FDA did here isn’t communicating about just factual matters, like the fact that ivermectin isn’t approved for use on humans to treat COVID.

 

Kate Shaw But this is I mean, Sam Alito at least had the decency to understand the way the things that he was saying might land and try to get ahead of them unsuccessfully. Fifth Circuit is completely unbothered by the potential perception that this is lunacy, to suggest that this is not it’s not a factual claim that Twitter users are not horses.

 

Leah Litman This is, you know, the for that premise Swami like administration or the next Donald Trump administration to get their seats on the Supreme Court. So they need to go full in ivermectin.

 

Kate Shaw Yeah, this is the Overton window that you were just talking about. Lest we be accused of never having anything nice to say about the Fifth Circuit, I am going to mention an opinion that actually was decent.

 

Melissa Murray I’ve said nice things about them.

 

Kate Shaw When?

 

Melissa Murray They meet in New Orleans.

 

Kate Shaw Oh, that’s true. It’s beautiful court house.

 

Leah Litman I’m personally enjoying Austin.

 

Kate Shaw Okay, That’s good. Yeah. Yeah. I’m really excited about the breakfast tacos.

 

Melissa Murray The breakfast tacos are going to be lit.

 

Leah Litman I am Pro-Donuts from Gordos.

 

Kate Shaw None of this is about the fifth circuit. You guys. None of this is about the fifth circuit.

 

Leah Litman I bet some Fifth Circuit judges eat donuts at Gordos.

 

Kate Shaw Okay? Alright there you go.

 

Leah Litman I just complimented their taste in food.

 

Melissa Murray They have great taste in breakfast tacos.

 

Kate Shaw So. But on an actual decided case that we will mention, this is an over detention case arising out of back to Louisiana, the illegal practice in the state of Louisiana, of continuing to detain people after their release date, slash the end of their term of imprisonment because the state has a completely chaotic system for calculating release dates and because, again, we will give credit where credit is due. A panel of the Fifth Circuit actually in this case denied Louisiana officials their request for qualified immunity, said the lawsuit could proceed despite several procedural bars that Louisiana was asserting was an opinion by Judge Higginbotham said Louisiana’s process for calculating release dates is so flawed, to put it kindly that roughly one in four inmates released will have been locked up past their release dates for a collective total of 3000 plus years. So that suit gets to proceed.

 

Melissa Murray And to be fair, Judge Higginbotham is often just really and dissents to his colleagues. But it seems here for egregious enough that even some of his colleagues were like, Yeah, you might be right, this is really terrible. But there’s another Fifth Circuit case again. The Fifth Circuit also upheld various aspects of an injunction that prohibited the Biden administration from formally or informally, directly or indirectly, coercing or significantly encouraging social media companies to suppress or reduce social media content, quote, containing protected free speech, end quote. So back on there, yes, the panel, which included Judges Clement Elrod and Willett, they wrote that they agreed with the district court that several officials, namely the White House, the surgeon general, the CDC and the FBI likely coerced or significantly encouraged social media platforms to moderate content and therefore violated the First Amendment in doing so. This included having press conferences saying that platforms weren’t removing misinformation and disinformation and then calling on the social media platforms to do so.

 

Leah Litman You know, I think this is similar to the lawsuit reviving the doctors claims against the FDA, because the through line between these cases is it is illegal for Democratic administrations to say anything.

 

Kate Shaw That’s true. Yeah, these are principled decisions.

 

Melissa Murray It’s like you’re saying we might actually it might be illegal for us to do this podcast.

 

Leah Litman Exactly.

 

Melissa Murray We will be allowed to talk. We’ll find out when we try to leave.

 

Leah Litman Okay. The Supreme Court stayed the injunction and the Supreme Court decided that it is going to hear later this term the case challenging the federal government’s interactions with social media companies about information that is posted on the social media platforms.

 

Kate Shaw The next opinion that I will mention is not inconsistent with that general thesis. So the decision that we just talked about is an interesting companion to one of the fifth Circuit’s opinions from last year, Netchoice versus Paxton, which upheld a Texas. Law requiring platforms to post content that the platforms don’t want to post. So to get this straight, it is coercion for the Biden administration to call on platforms to remove misinformation because there are Democratic administration and thus it is illegal for them to talk at all, as Leah just summarized. But it’s not coercion for the Texas attorney general, not part of a Democratic administration to require platforms to post hate speech and misinformation. The platforms would like to remove totally consistent, principled lawmaking. That’s what we call law.

 

Leah Litman Yes, I’m pretty sure the First Amendment says that. But in general, this is apparently the majesty of the First Amendment, which also, like the major questions doctrine, means that whatever the Biden administration does is very bad and very illegal. And whatever the Abbott administration does is very good and very legal. You know that Texas law that you just referred to, Cade, imposed actual legal penalties and liability on the companies. If anything is coercion and coerces speech, it would be that.

 

Kate Shaw Okay. Another case we wanted to mention out of this circuit just from a few weeks ago is Texas versus NRC, in which Judge Ho, for a panel kind of breezily concluded that the Nuclear Regulatory Commission doesn’t have the authority to issue licenses for storage of spent nuclear fuel despite decades long practice to the contrary and no real Plan B about what to do with nuclear waste just in this shockingly thin couple of pages of substantive reasoning. You know, because nuclear waste and its storage is a tiny little issue we shouldn’t bother to to explain in much detail. Judge Holt concludes the statute just does not. Again, despite decades of practice, to the contrary, give the Commission the Nuclear Regulatory Commission, the authority to issue the license that was at stake in this dispute. And even if it were ambiguous, the courts made up major questions doctrine that’s going to Kagan’s description, not judge how his description applies, because nuclear energy is a big deal.

 

Melissa Murray Now, we’re going to get to one of my favorite cases from the Fifth Circuit. This was just not so good. All right. So in Louisiana versus 13 Verticals, Inc., I don’t even know what 13 Verticals are, but I love this case. This case ostensibly was about the meaning of the Class Action Fairness Act, but it actually turned out to be an occasion for Trump appointees to turn on each other and basically scrap over the meaning of a Bible verse. So you can’t make this up. So go read this opinion in Louisiana versus 13 Verticals, Inc., the majority opinion by Judge Ho goes whole hog into an entire just I don’t even know what to call this. I used the whole meditation on the meaning of Matthew Chapter 7, verse seven, and then is met by an opposing view from another Trump appointee, Judge Oldham, who has a very different view of Matthew 7:7. And this is all just being very normally hashed out in the pages of the federal reporter.

 

Leah Litman Well, also this is how you determine the meaning of federal law and the Class Action Fairness Act. You debate Bible verses and their meaning textualism, right?

 

Melissa Murray Who among us has not assigned the Bible in civil proceedings?

 

Leah Litman It’s the cortex for legislation and regulation.

 

Kate Shaw There was also a recent Fifth Circuit opinion. We wanted to mention which state a district court decision that had ordered Texas to take down a bully barrier and placed on its river border. The district court decision opened this way. Governor Abbott announced that he was not asking for permission for Operation Lone Star, which is this anti-immigration program under which Texas constructed a floating barrier. Unfortunately for Texas, permission is exactly what federal law requires before installing obstructions in the nation’s navigable waters.

 

Melissa Murray What are navigable waters?

 

Kate Shaw Well, maybe a biblical verse. Maybe there’s a Bible verse that speaks to this, but it doesn’t come up in this opinion.

 

Leah Litman You know, I’m not sure that Harlan Crow’s super yacht has passed through the navigable surrounding Texas. Exactly. Which means it’s probably not a navigable water. And this case can simply be resolved on that basis alone.

 

Melissa Murray Has Justice Thomas cruised on this water way? If no, no dice.

 

Leah Litman We’re going to need to ask ProPublica to look into that, because I don’t know that we have a full accounting there just yet.

 

Kate Shaw Should we pivot to some court culture?

 

Leah Litman Sure.

 

Kate Shaw All right. So this is both kind of in and of the Fifth Circuit.

 

Melissa Murray That was like incredibly chaotic, which is like that whole recitation, that litany of Fifth Circuit cases. I think you just pause for a minute. Like what a bunch of chaos agents.

 

Leah Litman Yes, it is full of Loki’s. And again, like that is the baseline against which the Supreme Court’s work is being judged. Right. And rejecting the idea that the Class Action Fairness Act should be interpreted on the basis of a Bible verse does not mean we have a normal or moderate Supreme Court. And that is going to be an inference that people are going to be tempted to revert to at numerous points throughout this term. It’s already happening and I do not love to see it.

 

Kate Shaw Yeah. And you know, obviously we are very focused on the need for people to pay more attention to the Supreme Court. But in some ways, like that is even truer when we’re talking about the federal appeals courts, which get even less national attention. So, I mean, this was a subset and we probably could have spent twice the time discussing recent pretty shocking cases, both in result and in reasoning out of the Fifth Circuit.

 

Leah Litman I can just like add another right now. Can I, can I can I just do like one more? It’s a post-conviction case, habeas. You can’t turn off your screen because we’re not on Zoom.

 

Melissa Murray Not on Zoom.

 

Leah Litman There’s this case, Crawford versus Cain, where all of a sudden the Fifth Circuit discovers this rule that you have to prove you are factually innocent of the crime you were convicted of in order to get habeas relief. That is, even if you prove you’re six, then I’m at right to. Council was denied. Even if you prove that the government failed to disclose exculpatory evidence suggesting you are innocent in violation of Brady versus Maryland, it just doesn’t matter. You also have to prove you’re factual in a sense. That requirement is nowhere in the statute. The Fifth Circuit read it in to a statute that has been around for decades. And you add that ruling to the Supreme Court’s previous rulings that have made it basically impossible to get an evidentiary hearing to establish your innocence election versus Ramirez. And it’s just, again, like they they are doing this stuff all of the time and the lower federal courts, what they are doing is so important and they are resolving the vast, vast, vast majority of cases. And people just yeah, the stuff does not kind of catch on in the same way.

 

Kate Shaw Do you think some of the more egregious opinions really are attributable to kind of auditioning for like a short list, our next the next Republican presidential administration? Yeah.

 

Leah Litman Yeah.

 

Melissa Murray Yeah. It’s like American Idol for conservatives.

 

Kate Shaw Because there is sort of a one Upsmanship.

 

Leah Litman America’s Got Talent. And also whatever it is that this is. So it’s got to be like something like that. But I think even separate and apart from whether it’s auditioning, I think it is this race to the bottom to be like on the edge and like on the nouveau trends of like cutting edge of conservative legal thought. And in order to prove that, like, you’ve got some different ideas, they were already questioning the New Deal, right? You’re not going to make a name for yourself by questioning the New Deal. You need to question like the entirety of reconstruction and the edifice of American democracy to make a statement. And I think that that’s part of it, too. Even apart from the auditioning.

 

Melissa Murray I do blame Brett Kavanaugh, obviously. You know, I mean, I think Kavanaugh’s opinion in Gaza on the D.C. Circuit sort of set the template for this, you know, this kind of auditioning that they’re all doing. And again, if there is a second Trump presidency or a ramaswamy presidency like this is going to pay off in spades.

 

Kate Shaw And not just Kavanaugh, Right? Gorsuch, I think, really kind of catapulted into sort of public attention writing these just tomes against Chevron and other sort of longstanding administrative law cases and doctrines. And it seems to have worked.

 

Melissa Murray But, I mean, the thing for Kavanaugh is like that got him on the list. He was a wobbly normal conservatives until he became not.

 

Kate Shaw Yeah.

 

Leah Litman What do you call it? Playing the squish.

 

Melissa Murray Bringing the squish.

 

Leah Litman He was bringing the squish before Garza versus Harkin.

 

Kate Shaw Okay. So we will now pivot to some sort of assorted grab bag of court culture and sort of other news we want to flag for our listeners. And one kind of serious piece of business is that there is an election in Pennsylvania coming up on November 7th that could have huge consequences for democracy in Pennsylvania and the country. More broadly, the voters will cast ballots on November 7th for a vacant seat on the Pennsylvania Supreme Court, which currently has only six members and a42 Democratic majority. But even if that sounds like this race isn’t that important because it’s not going to decide the balance of the court, it’ll either be five, two or four three. That is a wrong way to approach this election. All four of the Democratic justices will face a retention election or mandatory retirement by 2027. So this is a hugely important seat for the foreseeable future on a court that matters a ton. The court has enormous powers, including what’s called the Kings Bench Powers, which is a pretty unique power that this court has. It allows it to grab any case from a lower court and just decide it back in 2020. For people who are following that presidential election and the aftermath closely, the Pennsylvania Supreme Court issued a critical rulings on things like absentee ballot deadlines and earlier on Partizan gerrymandering. And it’s likely to get a lot more such cases, you know, including but not just in the 2024 election. So on that same ballot on November 7th, voters will also cast a vote for a seat on the Commonwealth court, another statewide court, this one, an appellate court that currently has a 5-3 Republican majority and was one of the only courts in 2020 to actually hand Trump a victory. So these are off year elections. Typically, they’re just municipal elections. It just happens to be the case that there are two really important judicial elections on that day. Voter turnout can be low in off year elections. Let’s not let that happen here. If you’re a Pennsylvania voter, please get out. Make sure that the elections of the state of Pennsylvania and democracy more broadly is protected in the critical state of Pennsylvania. All right. Off my soapbox. Thank you guys, for giving me those couple of minutes.

 

Leah Litman You’re going to get like 35000 new thousand new voters.

 

Kate Shaw You know, as soon as this episode drops, it seems likely.

 

Leah Litman Exactly. And then we’ll go out with Sophie Turner.

 

Melissa Murray All right. In other news, the Supreme Court’s favorite coach scratch that, the Supreme Court’s second favorite coach. Coach Kennedy, the praying junior varsity football coach of Kennedy versus Bremerton School District fame quit his job after coaching only one more game in Washington. And again, this is significant because there were questions when this case came before the court about whether or not Coach Kennedy planned to continue coaching and therefore whether it was a moot or live issue that he be allowed to continue praying on the 50 yard line after game. So it turns out he’s not planning to continue coaching. And the court decided that case blew up the Lemon test and reconfigured the establishment clause jurisdiction all to allow this individual to move to Boca Raton.

 

Kate Shaw Pretty much. Yup

 

Melissa Murray Basically. So below the gist, the school district had argued that the case was moot because Kennedy had left the state. Apparently, that doesn’t matter. It’s still alive. Controversy. The court really wanted to address this and make it safe for mid-field prayers also seems to have made it safe for Kennedy to go on to other things. He has a forthcoming book. Awesome. You can buy that, I guess. He also noted in an interview that although he had been approached by the Ron DeSantis campaign to be a, quote, spiritual adviser, like be on the prayer team, he be on the Team prayer for DeSantis.

 

Leah Litman He also wanted him to make some appearances with them, you know, quote, in private or in public, I don’t know. It’s kind of a weird mix with this guy. So one final note about court culture that kind of ties back to why our focus on the Fifth Circuit and Texas in this episode. And this is about a case that will not make its way to the Supreme Court. So the solicitor general elected not to challenge in the Supreme Court a sixth Circuit decision that had invalidated part of the American Rescue Plan spending program. That part of the American rescue plan had made COVID stimulus funds available to states on the condition that they not enact certain tax cuts. You know, that the federal money might then offset. So the Sixth Circuit had held that the terms of the spending program violated the spending clause because they were ambiguous. And the solicitor general, the lawyer for the federal government, didn’t challenge that ruling and asked the Supreme Court to review it, even though the Sixth Circuit had invalidated a federal program. And that’s an interesting data point that goes to the shifting Overton Window and the 500 ton gorilla. You know, that is the changing composition of the federal courts of appeals and the Supreme Court and their effect on federal programs, because sometimes, you know, the federal Court of Appeals will get the last say on these things. And the solicitor general might opt not to risk it, you know, and go up to the Supreme Court. And again, that just goes to you can’t just measure what the Supreme Court is doing by looking at, you know, numbers that break down while they agreed with the Fifth Circuit. In this many cases are that many cases when again, the baseline is so much larger and the movement in the law like needs to be measured and discussed in more qualitative ways. You know, in this case by an anecdote of, again, the solicitor general not challenging a ruling that struck down a federal program, which is super unusual.

 

Kate Shaw And that’s not going to be captured in any year end data about the Supreme Court. It reminds me of, I think one of the limitations I always think exists in sort of year end metrics that say things like at the end of last term, the court actually in the last few years has not overturned that many precedents numerically. So that suggests like, you know, Roe is just like any other president, and it was just one. And so, you know, light term, they took it pretty easy. Of course, that’s wrong. It’s not just the number of precedents, but the sort of significance, long standing, this reliance interests, all these other considerations. But it’s also the case that some lawsuits that are brought and some of the actual opinions reached by lower courts, including the Fifth Circuit, are extreme in ways that don’t necessarily cash out in overruling prior precedents. Sometimes no one’s even made these arguments before. But what courts end up doing, like in the Nuclear Regulatory Commission case that I just talked about, is unsettling longstanding institutional practice, but not necessarily overruling a prior case. So there are just all these ways that we sort of flattened the metrics that I think do allow stories to be told about this court not being as radical as I think the three of us deeply believe that it is. And so I think it’s important to include these outlier data points that sort of provide a fuller picture.

 

Leah Litman Yeah, I mean, like the Fifth Circuit cases that we surveyed, you know, they’re not overruling decisions. They are just engaging in antics that are really, really, really transforming, you know, what courts are doing and potentially the future of, you know, the country and like what our laws and society look like.

 

Melissa Murray And with that in mind, I think it’s a good point in which to close by noting some observations about the great state of Texas. So

 

Leah Litman That it’s an abstract entity?

 

Melissa Murray Better than that.

 

Leah Litman Okay.

 

Melissa Murray John Steinbeck once mused that Texas is a state of mind. Texas is an obsession. Above all, Texas is a nation in every sense of the word, and there’s an opening convey of generalities. A Texan outside of Texas is a foreigner. Jack Butterfield goes even further to note that the miracle of Texas lies in the fact that it is the work of a handful of men, all of them on the Fifth Circuit.

 

Leah Litman And some in Amarillo and other district courts.

 

Melissa Murray And then I will finally note Davy Crockett, the hero of the Alamo. You may all go to hell and I will go to Texas. So, thank you to the University of Texas and the Texas Law Review for the very warm welcome to the Lone Star State and to the Longhorn campus. We are very, very grateful to be here. And we especially thank editor in chief Mason Grist and the administrative editor Sarah McCann for your hospitality and of course, Dean Elizabeth Banks, who has done so much to help wrangle all of the wild horses in this Texas rodeo. But we could not be contained. But thank you so much for having us.

 

Kate Shaw Strict Scrutiny is a Crooked Media production. Hosted and executive produced by Leah Litman. Melissa Murray and me, Kate Shaw. Produced and edited by Melody Rowell, Ashley Mizuho is our Associate Producer. Audio Engineering by Kyle Seglin. Music by Eddie Cooper. Production Support from Michael Martinez and Ari Schwartz.

 

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