The Absurd Fiction of the Mifepristone Case | Crooked Media
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April 01, 2024
Strict Scrutiny
The Absurd Fiction of the Mifepristone Case

In This Episode

Melissa, Kate, and Leah recap the oral arguments in the case challenging the FDA’s approval of mifepristone, one of the drugs used in medication abortion. They also recap arguments in cases about the Armed Career Criminal Act and Indian Health Services, and give some updates on cases they’re watching in the lower courts, ranging from immigration, to guns, to Title IX.

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  • ICYMI, we did a quick reaction episode on Tuesday right after the mifepristone case was argued

 

TRANSCRIPT

 

 

[AD]

 

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.

 

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

 

Melissa Murray And I’m Melissa Murray.

 

Leah Litman And I’m Leah Litman. The Supreme Court just finished its March sitting. And while we did a very quick, very high level, very short episode on the medication abortion argument, we are going to go deeper on that case in this episode. So that’s what we’ll do first.

 

Kate Shaw We will also briefly note the other cases the court heard arguments in last week, including an important federal Indian and health law case and a case involving the right to trial by jury. And we will note some developments in the Court of Appeals. And this will be strange. Brace yourselves. But it’s actually not all bad news. But first up, recapping the medication abortion case, FDA versus Alliance for Hippocratic Medicine.

 

Melissa Murray So listeners, you know the background of this case. A group of anti-abortion doctors incorporated their organization in Amarillo, Texas, so they could file this medication abortion challenge in the court of one judge, Matthew Kacsmaryk. And unsurprisingly, Judge Matthew Kacsmaryk gave them exactly what they wanted. A decision revoking the FDA’s approval of mifepristone.

 

Leah Litman The Fifth Circuit modified that ruling, so the court didn’t revoke the FDA’s approval of mifepristone, but instead reinstated a bunch of restrictions on the use of mifepristone that the FDA had deemed medically and scientifically unsound in 2016 and 2021. So the FDA had decided that if a person could be used, up to ten weeks of pregnancy, could be prescribed by nurses, and did not require in-person dispensation, meaning it could be dispensed through the mail. And the Fifth Circuit, in its infinite wisdom, decided that the FDA was wrong on all of those accounts and ruled that the earlier, more restrictive regulation should go back into effect.

 

Melissa Murray Judicial restraint.

 

Kate Shaw Well, actually, who was restrained here, surprisingly, was the Supreme Court, which put the Fifth Circuit’s ruling on hold so that that ruling is not and never has been in effect, if a precedent remains available for ending early pregnancies on the terms of the FDA has allowed since 2021. But the Supreme Court subsequently decided to take up the case, and when it did that, it limited its consideration to two specific issues. First, whether the organization individual doctors had what is known as standing to challenge the FDA’s guidance regarding the for Preston, and then to whether the Fifth Circuit was on the merits right to reinstitute these additional and more restrictive regulations on the use of mifepristone.

 

Melissa Murray So, as we noted in our very quick episode, maybe we could call this an episito that we issued on the day of the argument. It seems very likely that the Supreme Court is going to say that these doctors and their organization do not have standing to raise this challenge. We’re going to elaborate on that for a little bit before we talk about all of the various chaos crumbs that certain justices dropped during the argument, these little breadcrumbs that right wing lawyers can later pick up and use to end abortion access forever going forward.

 

Leah Litman But first, on standing. So to have standing to be able to file this case in federal court, this, as Melissa would say, organization is required to show that doctors within the organization face a substantial risk of being injured in the future because of how the FDA has determined mifepristone can be used, and the doctors and this organization obviously can’t do that. And this became apparent during one of Justice Elena Kagan’s murder hours at one First Street that we will touch upon in a second.

 

Kate Shaw Before we play that exchange, though, we want to begin by playing part of the opening statement by Aaron Holley, who is the lawyer representing this group of anti-abortion doctors and their quote unquote, organization. And Aaron made in her first couple of minutes of argument, what was, I thought, one of the most revealing slips I have ever heard from the podium at one first rate. So let’s play that here.

 

Clip It’s no surprise that respondents have experienced an increase in emergency room visits and indeed treated women suffering from abortion drug harms tens of thousands of times. Excuse me dozens of times.

 

Melissa Murray Wow. That was quite an opening. Quite a slip, as it were. Freudian, perhaps, and it really set the tone, I think, for the rest of the argument. So this is the point where I think we need to pick up with Justice Elena Kagan essentially hammering Aaron Hawley with the blunt instrument of the law.

 

Clip When you did your one, two, three in your opening statement, it sounded very probabilistic to me. I mean, I don’t remember exactly what the one, two, three are, but, you know, let’s say it’s something along the lines of, we represent a lot of doctors, and there are a lot of women out there taking Martha Preston, and some fraction of them are going to have adverse events, and some fraction of those are going to come to the emergency room. And and so there’s some probability or likelihood that one of our doctors who has a conscience objection is going to come face to face with one of these women who has an adverse event. Is that your theory? No, Your Honor, and what we think really shows that respondents have standing here is FDA’s own acknowledgments. I would point you to J.A. 384. And in regulating myth, Press Down, FDA has continually said that emergency room doctors and ObGyn hospitals are critical to the safe use of drugs. Well, I think that it is your theory. You need a person. You need a person to be able to come in and meet the court’s regular standing requirements. So you agree with that? Yeah, I think that’s correct, Your Honor. Yes. Okay. So who’s your person? I know you have seven of them, but if you had to pick one and say, go read that declaration, and that declaration is going to tell you why, why, you know, we’re entitled to be up here. Who’s the person?

 

Leah Litman So while it became clear during the argument and there were also signals before the argument, specifically from the fact that the court had stated that is put on hold the Fifth Circuit’s crazy injunction in this case that a majority of justices don’t think these plaintiffs have standing. Certain justices wanted to make very sure that in the future, ADF or maybe other anti-abortion organizations will find the right plaintiffs who will be able to challenge medication abortion access in the future, perhaps sometime after November 2024. So these justices looked around the courtroom and said, we’re going to ask the best lawyer here, Solicitor General Elizabeth Prelogar, to make that case for us and get her to identify possible plaintiffs who could bring future challenges to medication abortion.

 

Clip General, if we agree with you on standing, could you give us an example of who would have standing to challenge to, challenge these, FDA actions? Could you provide a more specific answer to the first question that Justice Thomas asked you? Is there anybody who could challenge in court the lawfulness of what the FDA did here? Okay, how about a doctor who opposes abortion? So she’s on duty in an emergency room when a woman comes in with complications from having taken mifepristone. And the doctor’s the only one there, on duty who can attend to this woman’s problem. And as a result, in order to save her life, the doctor has to abort a viable fetus. Now, how about a woman who suffers adverse consequences from having taken mifepristone?

 

Kate Shaw And in response, Prelogar who apparently ascended to some higher plane of advocacy during this argument. She was so so good. She just refused to give them a plaintiff. Instead she calmly and unanswerable. It reminded them that there are lots of other ways to challenge a drug’s safety and efficacy, apart from seeking a nation wide injunction, as these plaintiffs have done, and also by reminding them, using the court’s own cases and words that the court itself has held and said repeatedly that article three of the Constitution, which limits what kinds of cases federal court can resolve, applies whether or not the court dislikes what the government has done and whether or not the case involves abortion. So let’s play her here.

 

Clip I think that with respect to these regulatory changes, it’s hard to identify anyone who would have standing to sue. But the court has said time and again that the fact that no one would have standing does not provide a basis to depart from article three principles. It said that in rains in Richardson, in Valley Forward, and in Clapper. And so I think it’s clear that even if there is no alternative person here who could sue, that doesn’t mean that the court should dispense with the indispensable requirements of article three.

 

Melissa Murray That noise you can hear at the end is one Justice Samuel Alito, who at this point began to grudgingly concede that.

 

Clip In article three is important.

 

Melissa Murray Baby steps, Justice Alito baby steps to full recognition of the quote unquote law.

 

Kate Shaw He never, ever, ever concedes that anything Prelogar says is right, even though it’s so often is. And this is actually a really important moment. Like he just couldn’t avoid it. So three additional points before we move to the biggest chaos Muppets on the court. Obviously, one of them is Sam Alito, and one is to take another moment to pause over the multitude that that Sam, Sam Alito contains, and in particular on standing. So at various moments, he seemed really, really concerned about the possibility that no one might be able to challenge the FDA’s approval or particular regulation of mifepristone.

 

Clip And so your argument here is and as I said, I have great respect for article three. We all do. We have to comply with it. But your argument here is that, even if the FDA acted unlawfully, nobody can challenge that in court.

 

Melissa Murray Now, his outreach here is ironic for any number of reasons, but we are going to restrict ourselves to just identifying two reasons. Because there are only 24 hours in the day, and podcast episodes cannot take up all of those hours. But. One reason why his outrage is ironic is that Justice Alito is himself the author of Clapper versus Amnesty International, which is one of the cases that Prelogar mentioned in the clip we played a few moments ago. And that is a case where Justice Alito wrote that, quote, the assumption that if plaintiffs have no standing to sue, no one would have standing is not a reason to find standing. End quote. Hmhm. Clapper was a case where Alito essentially said that lawyers for nonprofits representing Guantanamo detainees did not have standing to challenge national security policies that allowed the federal government to listen in on communications because wait for it. It wasn’t clear that the federal government would want to listen in on their conversations with Guantanamo detainees. But again, in consistency, thy name is Alito.

 

Leah Litman And we should note, you know, despite Justice Alito saying that and Clapper and the court saying that multiple times, you know, there have been some academic complications of this notion that just because no one would have standing means a particular plaintiff doesn’t have standing in particular. You know, Richard Ray, who is a professor at University of Virginia, has argued that the court’s actual practice has allowed for some plaintiff to be able to challenge government action. But here, Elizabeth Prelogar, actually identified one such plaintiff, which is drug competitors can actually challenge another drug manufacturers ability to market a drug under certain conditions. And that’s happened before. It’s just that that doesn’t facilitate this particular kind of challenge that Justice Alito wants. But that is definitely not a reason to grandstanding here.

 

Kate Shaw And one other thing that came out in Jessica Ellsworth’s argument. So she was the lawyer representing the drug manufacturer, or Danco, which manufactures mifeprex which is the name brand sort of version of mifepristone is that if a drug is not safe or not working, taught suits are extremely familiar. And that’s something that drug that is a way to to bring to courts a different kind of question, but a question regarding drug safety and efficacy. And there is a constant, an iterative relationship of feedback and ongoing review between drug manufacturers and the FDA. So Prelogar pushed back very, very hard on this. Like there must be a single plaintiff under article three who can bring a case like this, because there are many other mechanisms for ensuring drug safety and efficacy.

 

Leah Litman And the point is, if this drug was actually harming people, there would be lawsuits, as there are for other drugs that actually harm people. It’s just an inconvenient fact that mifepristone medication abortion is very safe. The other kind of multitude of Justice Alito’s approach to standing that I wanted to note is that when abortion providers challenge abortion restrictions that could shut the providers and clinics down and throw doctors in jail. Justice Alito has said those providers and doctors do not have standing here.

 

Melissa Murray But Leah that was in June medical. That case doesn’t even exist anymore because of Dobbs.

 

Leah Litman Well, you know, that being said, just to explain, June Medical. There, Sam Alito said that doctors and clinics could not challenge a restriction that specifically applied to them, could have shut them down and thrown doctors in jail. And Sam Alito is like, who is to say whether that injured you? So that’s just part of Sam’s multitudes.

 

Kate Shaw Yeah. Okay. The second point before we move on to the merits is that Neil Gorsuch, perhaps sensing that the writing was on the wall and that the court couldn’t and maybe shouldn’t find standing on the basis of a completely outlandish theory with no plausible facts to support it, because it was cooked up in a meth lab of conservative grievance, wondered, what can I get out of this? And so he.

 

Leah Litman What can the law do for me, Neil?

 

Kate Shaw Yes. Well, he had an idea, which is that he floated possibly using this case as a way to end certain kinds of environmental standing and Establishment Clause standing. So if and when the court rules here that the anti-abortion doctors don’t have standing, he wants to find a silver lining which is keeping the courthouse doors slammed shut to environmental plaintiffs and plaintiffs complaining that they are being injured when the government embraces and adopts religion. And maybe that’s not their religion because they’re members of minority religions, or maybe they’re members of no religious faith at all, and they don’t want to have, you know, typically majoritarian Christian faith expressions by government shoved down their throats. And the court has been more permissive in cases like that about finding standing. But I think Gorsuch would like very much to see those openings closed. And if he can use this case to do that, all the better.

 

Clip I’ve heard. And listen to your argument and read the briefs, and I think I understand it, but how does it fit in your mind with offended observer standing under the Establishment clause or, some injuries about. And I access a park and I like to look at it in a certain way. And those kinds of injuries that the court has sometimes recognized and other times cast doubt on.

 

Melissa Murray That’s what we call lemonade out of lemons, bitches. Neil Gorsuch doing his very best. Beyonce without a cowboy hat, without a white horse, without an American flag, without actually any of the swagger that the Queen would bring to this just his own basic bitchiness. The third point we wanted to end on with regard to standing is this one. If it’s so obvious that there’s no standing in this case, and it seemed pretty obvious from the oral argument that standing was pretty tenuous. Why did the court take this case up rather than summarily reversing it? Like really? Good question. So let’s entertain some answers, Leah.

 

Leah Litman Yeah. And just to explicate why I think they didn’t actually have to hear argument on this from the argument, it was clear there are at least six justices and possibly up to eight who think there’s no standing. And that is more than enough justices to just summarily reverse the fifth circuits ruling.

 

Kate Shaw In eight, you would say Thomas agrees, no standing. It would just be  Alito grandstanding?

 

Leah Litman I said up to eight.  Up to eight.

 

Kate Shaw No, I know, but if it’s eight, that’s.

 

Leah Litman Yes.

 

Kate Shaw Thomas?

 

Leah Litman Yes.

 

Kate Shaw Thomas is with the majority.

 

Leah Litman And Alito to say no standing up.

 

Kate Shaw Okay. Yeah.

 

Leah Litman And so that’s more than enough justices.

 

Melissa Murray That’s a very speculative eight.

 

Leah Litman Sure. I said between six, up to eight, I think more likely seven. And if that’s right, again, that’s more than enough justices to up not to hear argument and just dispose of the case on the briefs. Again, given that the legal theory is baseless, there are no facts to support it, etc. and I truly think that the effort to hear this case and put it on the argument calendar on this timeline is an effort to by the justices and the court credibility and goodwill before the upcoming election and stave off criticism for what I think are likely to be really bad rulings in the Emtala case. We already had the Trump disqualification decision. There’s going to be an important voting rights decision, possibly a really bad decision on bump stocks.

 

Kate Shaw Domestic violence orders a protection. I mean, probably that one is going to be fine.

 

Leah Litman Yeah, exactly. It’s going to go the right way. But I don’t think they want to be.

 

Kate Shaw All the administrative law cases.

 

Leah Litman Is right. I don’t think they want to be the opposition party in the 2024 presidential election, in the same way that they were in the 2022 midterms, and allow Democrats to essentially run on a platform that Republicans are effectively in power in one branch of government for perpetuity and run against them.

 

Melissa Murray And so that’s why the Democrats are not running on that platform, but they totally need to be running on that platform. This is an end run around that. And I think, relatedly, Lisa, the other part of this is that they get to correct the Fifth Circuit, which was completely bonkers on this. And in doing so, and you’ve made this point before, they get to look relatively moderate by comparison, like they rein in the Fifth Circuit and effectively get to use this case to wage a kind of Olivia Pope style PR campaign for the court that the court’s not really extreme, its moderate. I also think this was an opportunity that they could not pass by to telegraph to the right wing troops waiting in the wings, exactly what kind of plaintiffs they want and they need for future litigation after the election. And so, again, lemonade out of lemons.

 

Kate Shaw Yeah, it’s actually lemons, right. On the merits in terms of the bread crumbs and mixer, you know, culinary metaphors. But so so that’s probably a good place to turn to those merits. And I think that’s a good hypothesis that not only was this about making them look very reasonable as compared to the Fifth Circuit, but it’s going to be hard for them to drop these breadcrumbs about things like the Comstock Act and fetal personhood, if what they are doing is just summarily reversing the Fifth Circuit. And so this was an occasion for them to do all of that.

 

Melissa Murray [AD]

 

Kate Shaw So turning to the merits, as we said on our quick episode on the day the Argument. It did seem clear that at least two justices are extremely interested in the Comstock Act theory that would allow a Republican president to attempt to throw abortion providers and distributors of medication, abortion, and maybe even doctors who use and distributors who make devices used not for medication abortion, but in procedural abortions into jail without Congress having to do a single thing. So this is, again, the 1873 statute that there is a lot of active interest in reviving and trying to use again to shut down access to medication, abortion and maybe all abortion, even in states that protect it by making it impossible to mail the devices used in performing those abortions. So that’s what this theory involves, is essentially a Republican being in the white House. And it doesn’t then matter what happens in Congress, because the statute has never been repealed. It is on the books. And the theory is that the statute would allow that kind of enforcement on day one of a Republican presidential administration. So let’s play the montage of clips that we played on the emergency episode. That makes clear how much interest there was in pursuing this Comstock Act theory.

 

Clip Shouldn’t the FDA have at least considered the application of 18 U.S.C. 1461?

 

Clip So I think that the Comstock provisions don’t fall within FDA’s lane.

 

Clip Well, it didn’t say any of that. It didn’t say anything about it. And this is a prominent provision. It’s not, some, obscure subsection of a complicated, obscure law of the government. The Solicitor General, points out, would not be susceptible to a Comstock Act, problem. But you in your case, you would be. So, how do you respond, to an argument that, mailing your product and advertising it would violate the Comstock guy? Miss Holly, the, I, I’m sure you heard the answers of the solicitor general and, the counsel counsel for Danco with respect to the Comstock Act. I’d like you to comment on their answers.

 

Leah Litman So I think because that was a quick episode, we wanted to have some additional discussion about this one is just the irony of how, you know, the Republican justices in the administrative law cases, particularly the major questions cases, have said Congress can’t use environmental statutes, or agencies can’t use environmental statutes passed in the 1970s, or health laws passed in the 1940s to solve problems that exist in the year 2000. But yes, a Republican president can revive in 1873 law to implement a nationwide abortion ban, a law that was passed before women had a right under the federal constitution to vote.

 

Kate Shaw No. Women’s women’s autonomy is not a major question, Leah. Obviously.

 

Leah Litman Obviously. Obviously. And this that is the Comstock Act issue is not just about medication, abortion or potentially procedural abortions, but also about contraception. And we’ve talked about the Hobby Lobby decision before. We were talking about it right when Dobbs came down, because in the Supreme Court’s decision and Hobby Lobby there, they recognize a claim under federal law that certain employers were entitled to view certain forms of contraception as effectively abortive functions and therefore not provide them. And under that theory, it is possible that this court could allow the federal government to say certain forms of contraception, maybe emergency contraception or plan B and others are effectively abortive patients and therefore pursue Comstock Act enforcement proceedings against providers of certain forms of contraception as well.

 

Melissa Murray So we’ve noted this before, and Twitter lawyers flood our mentions to remind us that there is a repeal of the Comstock Act insofar as it related to contraception. Shortly after the court decided Griswold versus Connecticut in 1965. That is true. But the point that Leah is making, and that should be emphasized here, is that if you can re categorize or re characterize contraception as an abortive patient, then all bets are off and suddenly Comstock is back in the picture.

 

Leah Litman So another question I wanted to raise about this is whether the two of you thought, going into the argument, maybe Sam and Clarence told themselves, are thought to themselves, let’s keep the Comstock Act on the DL. Or they just, like, couldn’t restrain themselves from bringing it up because we highlighted the New York Times story before about how some of the Trump campaign and Trump supporters, including Jonathan Mitchell, the architect of SB eight, have said, I hope he that is Donald Trump doesn’t know about the existence of Comstock. I don’t want him to shoot off his mouth. I think the pro-life group should keep their mouths shut as much. Is possible until the election again to keep this plan under wraps, so that the 2024 election isn’t a referendum on a federal abortion ban. Do you think that thought entered their minds? They couldn’t restrain themselves like like, no.

 

Melissa Murray No, no. So Samuel Alito, I think, was trying to be cagey because he kept talking about it. It’s like 18 U.S.C. whatever. And like, we know that’s Comstock by like, I’m going to get on this Twitter right now and tell everyone he is talking about Comstock. But Clarence Thomas had big gaffe. Energy’s like he was just like, I don’t care what like, you know, like come at me, bro. And he was just talking about it openly. But I think Alito was trying to be clear. Yeah.

 

Kate Shaw He could not ask the question fast enough. Like it wasn’t he wasn’t trying to be evasive or, you know, try to use indirection. He was just like, the thing I’m most interested in in this case is the effect of the stock act he asked Prelogar  the question he asked Hawley the same question. I don’t think he asked Ellsworth, but I don’t. I could be wrong.

 

Leah Litman But he asked. I was worried because he was like, well, the federal government, they have as a defense, it doesn’t apply to like, the Postal Service. But you’re a private party, so.

 

Kate Shaw Right. That’s right. Yeah. Right. No. Yeah.

 

Leah Litman Hello. UPS Fedex had to enter. And to me it had very big you know deep cut old school reference Leroy Jenkins energy slash you know Alito where they just like you know this is their opportunity to make some declaration. And they just had to do it and couldn’t stop themselves. But me I.

 

Melissa Murray I know what Leroy Jenkins means now. Thank you. Thank you.

 

Leah Litman Lerrrroy Jenkins.

 

Melissa Murray Jenkins okay.

 

Kate Shaw So we’re extremely concerned, as I think is evident about the Comstock Act. And I think we just want to make one point, which is that by raising the alarm, we are not suggesting that this use of the Comstock Act to prohibit devices used in procedural abortion to to prohibit certain forms of contraception would be legally correct. Right. There are many, many reasons that this kind of enforcement of Comstock should not be permitted by any federal court in its right mind shouldn’t even be pursued, but if it is pursued, should be stopped by federal courts. Riva Siegel and Mary Ziegler have a great new paper about Comstock called Comstock Re that listeners should check out. But we are raising the point because we want listeners to be on notice that a future Republican administration seems basically 100% likely to try. And if there were any doubts about that, those doubts should be resolved by this argument. It was front and center for two of the seven justices and the other Republican appointees. I do not for a minute take their silence on Comstock to broadcast that they would be necessarily hostile to the use that Alito and Thomas were obviously gesturing toward. They are just, I think, politically minded enough not to want to make noise about it right now. So I think they are on the same page as Mitchell, which is, let’s not talk about this. I don’t know for sure whether they would all bless it, but I’m not at all confident that they wouldn’t. And so I think we all need to be very, very nervous. But we are also not at all saying that that it would be legally correct, and that.

 

Leah Litman It’s almost like the similarity between saying like the court is going to overrule row, not that overruling row will be correct. It’s that you see the writing on the wall and what they’re going to do, not because again, it’s legally sound, but just because that’s what they’re.

 

Kate Shaw Going to do. So they’re going to do. Yeah.

 

Melissa Murray Well also just to say like again, we’re not endorsing this as legally correct. But when they try to make Comstock happen, it will be challenged. The challenge will ultimately end up at Scotus. And I think the point we’re making is that there are at least two obvious Comstock goblins eagerly waiting to bless the zombie law, and maybe even more. And I think that’s really the big question. So it would be better that this never even got to the point where it was revivified and enforced and just stayed off the books. It would even be better if Congress could just repeal it.

 

Kate Shaw Yeah, this is, I think, another big important takeaway, which is that if the Democrats manage to keep the white House in both houses of Congress, obviously there’s a question of the future of the filibuster. But repealing Comstock should be at the very, very top of an agenda so that we are not in this position again, completely. So that, I think, is important to bear in mind depending on the outcome of the presidential election. But I feel like there’s a non-zero chance the number of Republican retirement announcements in recent months be about is there like a world in which the Democrats somehow like, retake the House in like May because there’s like two more Republican resignations? I mean, it’s not likely to happen, but I’m just saying if it does and you have a very narrow window to definitely repeal Comstock, please, please do that.

 

Leah Litman Sounds great to me. So there is more to say on the merits. And I think another topic we wanted to expand upon is Justice Barrett’s perspective in this case, because we only played one of her clips last time. But I had some questions about Justice Barrett’s understanding of reproductive healthcare. Based on some clips that we didn’t play last time, but we’ll play now.

 

Clip So there was no requirement of either an ultrasound or any, detecting a fetal heartbeat or anything like that, even before the doctor could just go. Based on the woman’s recounting when her last menstrual period was how even under the pre 2021 Rams, was it possible to detect an ectopic pregnancy without an ultrasound? Unless the. Woman was presenting with pain.

 

Leah Litman So based on those clips and others, I wanted to know, like what she thought is the standard care for reproductive matters, particularly the reproductive matters at issue in this case, which are medication abortions for people early in pregnancy. Like in those cases, the requirement of detecting a fetal heartbeat is not part of providing that form of reproductive health care. You know, admittedly, in Indiana, where Justice Barrett lived before, you know, they required ultrasounds, but as a method of basically signaling the state’s support for fetal personhood and guilting people out of abortions. And it’s that perspective that I think was evocative of fetal personhood and a certain worldview that seems to inform her consideration of these matters, which is why we suggested, at least in part in the last episode, that some of her other questions seemed to be gesturing toward fetal personhood. And also, you know, some of the questions seemed to not understand that ultrasounds are not going to uncover all ectopic pregnancies. As Solicitor General pre logger explained. And again, like it was that overall context. And those questions I think that were concerning about the possibility that she is open to embracing fetal personhood.

 

Kate Shaw Yeah. And just injecting. Right. Like most people who are terminating pregnancy using medication are going to be doing it after. There is something that Justice Barrett might want to describe as a fetal heartbeat. And a lot of pro-life legislators describe as fetal heartbeat. Like, I think it’s actually more accurately, scientifically described as detectable, you know.

 

Leah Litman Cardiac.

 

Kate Shaw Electric or cardiac activity or something. But it’s not a heartbeat, as I understand a beating heart. And I think, as most people understand a beating heart. And so it was just completely irrelevant. And to inject that like, yeah, if it’s 6 or 7 weeks, that’s the case. There is something detectable. And most people having, you know, who are pregnant don’t know before 6 or 7 weeks. So that’s the period of six to 7 to 8 to 9 to 10 weeks. When people are using medication abortion, there might be something that Justice Barrett would call a fetal heartbeat. It’s completely irrelevant. It’s never been part of the protocol for prescribing medication abortion. And it just felt to me like injecting very, very serious sort of pro-life frameworks and anti-abortion frameworks into this debate about mifepristone.

 

Melissa Murray I think that’s the really important point, because it suggests that her understanding of how reproductive care is provided all happens in the shadow of abortion restrictions, like mandatory ultrasounds before you can have an abortion or the detection of quote unquote, cardiac activity before you can have an abortion. And she’s essentially importing those restrictions as a standard of care in this situation for medication abortion, where, again, as you say, it’s not relevant. And many would argue even for procedural abortions, it wasn’t relevant or necessary. It was done as a way to, as Lisa said, express the state’s interest in the potentiality of life and likely more to guilt women out of having abortions in the first place. So yeah.

 

Leah Litman And also like importing them as a standard of care suggests some default and perhaps constitutional default that is rooted in part in fetal personhood. And so yeah.

 

Melissa Murray Okay. So we’ve talked about Amy Coney Barrett. I think it’s time we cleanse our palates by talking about Zero Fox, Elena Kagan. And we’ve talked about her on this show before, but I want to talk about her some more. And we’re going to play a really deep cut from her in a bit. But as an amuse bouche, let’s hear from Zero Fucks, Ketanji Brown Jackson, who showed up in this argument with very strong I am not here for your bullshit energy. And at some points she seemed to ask Solicitor General Lager questions that kind of sounded in the register of, WTF is going on here? Like, do you know? Because this is batshit crazy and I don’t know where I am right now. Here’s a clip.

 

Clip They are saying, because we object to having to be forced to participate in this procedure, we’re seeking an order preventing anyone from having access to these drugs at all. And I guess I’m just trying to understand how they could possibly be entitled to that, given the injury that they have alleged.

 

Melissa Murray She had the same level of incredulity slash skepticism when ATF lawyer Aaron Hawley stepped up to the podium and they had this exchange. Miss Hawley, can you.

 

Clip Clarify that, broader conscience harm from the narrow one? Because I had understood the constant harm, as Justice Barrett does. But you suggest that there’s a broader one. To what? What is that? No, wait. I’m sorry. It complicit. Like, I’m. I work in the emergency room, and this is going on. I’m handing them a water bottle. I’m like, what do you mean, complicit in the process?

 

Kate Shaw Jackson was great in this argument, and I appreciated her sort of bringing into, like, sort of specific focus. What? Actually, we’re talking about in the emergency room. Yeah. And we’ll get a little bit more to some of the things that Holly said in response, which are really deeply, deeply concerning. But I just wanted to interject, which is that I want to channel my friend Derrick Haas, who’s an emergency physician, and I’ve talked to her about this, and it’s really clear that E.R. docs are just, like, apoplectic about this. You know, the general thrust of the argument being made by the doctors are being made by Holly on behalf of these doctors. And here’s the point. Emergency medicine doctors, as a general matter like treat all patients no matter what. That is elemental to the practice of emergency medicine. So if you have a school shooter who has literally shot, you know, babies who are who have grown and are now attending school, who get brought into the emergency room like that school shooter gets care from emergency medicine physicians who work in ERS. When people with Nazi tattoos get brought into the E.R. because they are injured, maybe injured, doing horrifying things, they also get care from ER doctors. Like I am sure the doctors treating those patients have profound conscience objections to the activities that brought those patients into the ER, but they get care anyway because again, as I said, it’s elemental to emergency medicine. So this whole discussion seems actually quite unmoored from that reality of what it means to be a doctor who provides care to people in emergencies.

 

Melissa Murray All right. Enough about Aaron. Holly. Let’s get back to Katie J being amazing and a rock star. This might be my favorite example of CBGBs. I’m not here for this B.S. energy. She literally and very brutally annihilated Justice Alito as he attempted his own sad effort to body the lawyer for Danko, which is, as we said, the manufacturer of myth. Here’s Justice Alito.

 

Clip Do you think the FDA is infallible?

 

Melissa Murray And here’s CBJ doing what they call an stand up comedy a callback.

 

Clip So you were asked if the agency is infallible. And I guess I’m wondering about the flip side, which is do you, think that courts have specialized scientific knowledge with respect to pharmaceuticals and as a company that has pharmaceuticals? Do you have concerns about judges passing medical and scientific studies?

 

Leah Litman So that was the CBJ amuse booth. She was there for this argument and locked in and ready to go. We also wanted to, as previewed, discuss zero facts, Elena Kagan, because she is never above beating a man when he’s down, at least when said man deserves it. And she had some really brutal shade for the nation’s aspiring chief scientist, Matthew Kazmierczak, that we wanted to play in this clip.

 

Clip But you just said again, it’s being involved in completing an elective abortion. So I took that to be the conscience objection. I think what Justice Jackson is asking, or what I asked before for what just to separate, is is there any broader conscience objection that appears? I don’t I’m not sure I care all that much about the district court, but that appears in the declarations.

 

Leah Litman I just want to underscore the line quote. I’m not sure I care all that much about the district court.

 

Kate Shaw Just like dripping with just.

 

Leah Litman Dripping with kind of tension. And if I can just say a little bit about my appreciation for this. So, you know, as I think we’ve talked about before on the show, like I have somewhat of a poster’s energy, which is why I can see it in Sam Alito, like when there is something wrong on the internet, I get extremely worked up and want to respond and like, nuke it into oblivion. And Elena Kagan knows how to just swatted away with a very clear signal of I don’t care, do you energy. And it’s just a plain to which I aspire to. And that’s part of why this amuses me so. But her, you know, intervention, Justice Kagan’s intervention led to, I think, one of the more confusing and concerning responses from Aaron Hawley, whose understanding of reproductive health care seems to somehow be even worse than Justice Barrett’s. So let’s play that here.

 

Clip Yes, Your Honor, and in this sense, completing an elective abortion means, removing an embryo fetus whether or not they’re alive as well as placental tissue. Again, Doctor Francis talks about being required to perform a DNC. This is at 154. So remove placental tissue whether or not there is any live tissue. Yes Your honor.

 

Leah Litman And again she seemed to be saying that her legal theory is now that removing non living tissue is a problem. Like, it’s as if she is saying these doctors object to participating in or interacting with any tissue in a person where there was a fertilized implanted embryo, and that would basically mean no miscarriage care. At all. Maybe no surgeries for women who were or used to be pregnant. And it’s just extremely alarming.

 

Kate Shaw There’s part of me that just hopes that Erin actually didn’t even quite understand what was being asked, because I don’t think the declarations from these doctors like really quite say what? But I think we have to take at her word like that. This is the objection. And if that is right, like, I just feel like it kind of reveals what an absurd fiction this whole suit is, right? Like, this is not about preventing violations of the individual religious liberty or conscience of these doctors. It is just about preventing abortion and maybe health care for women in general. Right? Because what could be more pro-life than that? But any pregnancy that does not result in a baby being born is all of a sudden something that doctors should not be required to participate in. Because, of course, we know many, many pregnancies that aren’t terminated via medication abortion but end through miscarriage like will require some kind of medical care. And even if a pregnancy is done, done, done, the suggestion seems to be that no doctor should be required to assist in completing maybe a not fully completed miscarriage, and I honestly don’t know quite how to get my head around that as a position of these, like avowed pro-life physicians. But I do think that there is this kind of conscience objection. I think we haven’t really talked about something that was, I think, a really important theme in the argument that we should mention, which is that pre logger made crystal clear. And I think it matters hugely here. And I think it will matter also in the I’m a case about emergency care in hospitals that receive federal funds. That’s a case the court will hear next month. In both cases I think it’s really important that federal law provides. And no, it’s not the Common Stock Act. But federal law provides right conscience protections for individuals who don’t want to participate in particular kinds of medical procedures. And hospitals have procedures for implementing that federal protection. And there is no evidence that these plaintiffs tried to invoke any such procedures. And so that, I think, is another reason that, you know, these doctors don’t have standing in a case has to be tossed. But it just like makes crystal clear our legal system has already built in these protections for the individuals that Holly is representing. And that’s clearly not enough, because their goal is not the protection of the religious liberty of these doctors. It is the prevention of abortion. Like it’s just it couldn’t be clearer.

 

Leah Litman Can I say one additional thing about that? Because I am concerned, you know, we mentioned at the outset that one reason why the court may have taken this case is to give themselves cover for some of the rulings they might reach in other cases, including the case. And a part of me was concerned that they are going to extract from this argument. They’re going to come to the argument and say, well, you federal government said in the medication abortion case that no one who didn’t want to provide abortions would be required to. And now you’re telling us in the case that they do, that is a totally misleading and incorrect narrative about what the case is about. So just to stake out this ground now, the whole case is about whether doctors who want to provide abortions that are necessary to prevent pain, suffering, medical complications, potentially save the patient’s life. Whether doctors who want to provide those abortions and believe they are necessary can do so, despite the fact that state law wants to prohibit them. Because federal law contains this provision under Impala that purports to authorize hospitals if and particular doctors if they believe and want to provide abortion as a standard of care, to be able to do so and just want to put that ground.

 

Melissa Murray No, no, you’re right to put that out there, because I’m Tala came up a lot during this argument for a case that was not being argued. Yeah. Okay. So just a quick recap of our takeaways from this argument. One, I think we all think that the court is going to say that these particular plaintiffs don’t have standing in this case, and that’s obviously correct. It should be 9 to 0. It probably won’t be, but whatever. But that would be a good outcome. And it will be held in the press as a victory for abortion rights. Do not be fooled. It is only a partial victory because this is a court that loves to kick a can down the road. And that means they have already indicated and signaled to the conservative legal movement that they are looking for better plaintiffs. They will get better plaintiffs, and there will be an opportunity in the future, probably after the election, to raise these questions again. And the court has also ceded the view that the Comstock Act could be used to limit the distribution of medication abortion throughout the United States, even in blue states. So that’s definitely in the hopper. And there’s definitely the sense, at least we think so, that there are some members of the court who are fetal personhood curious, and that that may be raised at a later date at the court as well. So again, those are some major takeaways about this case. We are going to underscore the broader takeaway we’ve been making this entire term, which is that the Fifth Circuit’s only real function right now is to be as extreme as possible, so that the Supreme Court can look reasonable. They are essentially the court’s. Arm and do not forget it.

 

Kate Shaw Blast beat before we leave this case. Can we just play the very end of pre loggers rebuttal argument? Because I subjected my family to it last night and.

 

Leah Litman Gather round kids.

 

Kate Shaw Exactly. They stood up and applauded. So our listeners who did not actually sit down listen to the argument. We’ll get a little taste of it here.

 

Clip And I think it’s worth stepping back, finally, and thinking about the profound mismatch between that theory of of injury and the remedy that respondents obtained. They have said that they fear that there might be some emergency room doctor somewhere, someday, who might be presented with some woman who is suffering an incredibly rare complication and that the doctor might have to provide treatment notwithstanding the conscience protections. We don’t think that harm has materialized, but what the court did to guard against that very remote risk is enter sweeping nationwide relief that restricts access to mythic stone for every single woman in this country, and that causes profound harm. It harms the agency which had the federal courts come in and displace the agency. Scientific judgments. It harms the pharmaceutical industry, which is sounding alarm bells in this case, and saying that this would destabilize the system for approving and regulating drugs. And it harms women who need access to medication abortion under the conditions that FDA determined were safe and effective. The court should reverse and remand with instructions to dismiss to conclusively in this litigation.

 

Melissa Murray [AD]

 

Melissa Murray All right. What other Hobgoblin stuff did they get up to?

 

Leah Litman The court also heard argument in Erlanger versus United States. This is a case about whether the Constitution requires a jury trial and a jury to find beyond a reasonable doubt that a defendant’s prior convictions were committed on occasions different from one another, in order to impose the enhanced sentence under the Armed Career Criminal Act, which imposes heightened penalties on people with certain prior convictions.

 

Kate Shaw So in a case called Woodin, the court said that whether offenses were committed on different occasions is a holistic inquiry that doesn’t just turn on whether the offenses were committed at distinct sequential points in time. Okay. So the Sixth Amendment generally requires juries to find any fact that exposes a defendant to a greater penalty, like the armed career criminal acts, mandatory minimums, which increase both the mandatory minimum and statutory maximum for an offense without occurred. The maximum penalty is ten years, with AKA the minimum is 15 years.

 

Melissa Murray But in another earlier case, Armando Torres, the Supreme Court decided that there is an important exception to the rule that juries must find facts that subject a defendant to more time in prison. The court in Almada Torres said that the Sixth Amendment does not require a jury to find the fact of a prior conviction, even if the prior conviction increases the defendant’s penalty. So the question here is whether the quote unquote different occasion aspect of ACA the issue of whether offenses were committed on different occasions is subject to the general Sixth Amendment rules such that it has to be found by the jury, or whether it falls within that Armendariz Torres exception.

 

Kate Shaw The federal government supported the petitioner here, so the court actually appointed an amicus to defend the judgment below, and to argue that there is no requirement that a jury find that these qualifying offenses were committed on different occasions. And they selected Nick Harper, a Gibson Dunn associate who clerked for Kavanaugh when he was on the D.C. circuit and then Kennedy on the Supreme Court. And I will just say, having studied this issue, they really have a type with these amicus appointments. I told them years ago that if they really wanted to, or even if they cared at all, they could use these appointments to mildly diversify the Supreme Court bar. They could invite women, they could invite people of color, they could fight advocates with different kinds of legal experiences and backgrounds. And shockingly, they have not heeded that call and are continuing really to hew closely to type. I do not know Nick Harper, but my brief review suggests that he is very much their type for these kinds of appointments.

 

Melissa Murray Hmhm what type is that?

 

Kate Shaw I actually don’t remember if he’s a first time advocate, but it’s typically like young ish white guy law firm partners or senior associate.

 

Melissa Murray Clerk for the one of the justices.

 

Kate Shaw Clerked for one of the justices. Yep. That’s the type.

 

Melissa Murray That’s the type. All right. We wanted to highlight some notable clips here in Erlanger, including one where our favorite, Justice Samuel Alito, signaled that he is perhaps more interested in starry decisis and adhering to precedent now that it would disadvantage the defendant. Let’s hear that.

 

Clip Well, Ellman. Torres. Torres is a an established principle of an established precedent of a court that’s been relied upon and reaffirmed in subsequent cases. So if we were to reexamine that, would it then be appropriate to reexamine the entire question that was opened up in a frenzy? Or would you just like us to open up the part that might yield a decision that’s favorable to you? Well, I’m not even asking you to do that today. Well, you know, but if you. But if you did, I just sort of sort of took Justice Thomas’s bait. I, I suppose fair would be fair. And the court could go back to first principles.

 

Melissa Murray Some justices also made clear that they are approaching this case with a kind of precedent president attitude, and are inclined to really embrace their inner originalists. So let’s hear from Amy Coney Barrett.

 

Clip Mr. Fisher, can you, maybe address what history and tradition are on your side?

 

Leah Litman And it struck me as somewhat notable that at times, The Advocate’s first impulse to these kinds of questions was basically to say, come on, your honors, like precedent answers this. So here’s the lawyer for the federal government.

 

Clip I think, has the burden on the historical practice. Well, Your Honor, it’s it’s a little bit of, do you want to see two faces or a vase? I think as we view are going to need more than that. Yeah, I thought you might.

 

Leah Litman And at other points, some of the justices jumped on the history and traditions as bunk bandwagon, including Justice Sotomayor. With this gem.

 

Clip When we start talking about history, I.

 

Clip I get very annoyed because in every history there are exceptions.

 

Leah Litman And that led to this. I don’t know what to call it, something by Coach Kavanaugh.

 

Clip And Justice Sotomayor. This question, because I think the methodological question, if we get deep into this, is pretty important here, how to think about all this. So start with the text. The text itself of the Constitution does not tell us the answer, just the bare. Words. Correct. Correct. Okay, so then we usually look to history. We might not like it, but I don’t agree unless we’re just making it up. I don’t know where else we’re going to look.

 

Melissa Murray Not really a layup.

 

Leah Litman No, not really a layup. Just because the idea that, you know, non originalism just involves making it up is just so silly and debunked, including in this case, you know, there is precedent that makes clear that anything outside the elements of the prior conviction is subject to the Sixth Amendment jury trial. Right. You know, that’s cases like Mathis or two camps. There’s reasoning in prior cases, right, that they can use to resolve this issue. There’s also practice on bifurcated trials where, you know, criminal history becomes relevant. So you essentially hold trials in two stages. So it doesn’t prejudice the jury by introducing criminal history. And it’s just again.

 

Melissa Murray Yeah, it is actually kind of amazing how Justice Alito is like fully, fully outcome determinative, like and literally does not care, like, you know, starry decisis. I love it as long as it doesn’t love defendant. Sorry, decisis, I hate it. What? It’s about women getting abortions. Yeah.

 

Leah Litman Or like originalism, you know, love it. Why? And it might allow me to overturn, you know Smith versus employment decision. You know, hate it when it might lead me to rule for free speech protections, so on and so forth.

 

Kate Shaw So let’s briefly cover another case that the court heard argued last week Becerra versus San Carlos Apache Tribe. And the question in this case is whether the Indian health services must pay the contract support costs that cover a tribe’s expenditure of income that is collected from third parties when the tribes are administering the provision of health services. So this is an important question of both health law and federal Indian law. And Indian Health Services, or IHS, is a component of the Department of Health and Human Services that provides health care programs for tribes, which are funded by congressional appropriations and revenues from third party payers.

 

Melissa Murray Federal law requires IHS to award contracts that transfer to tribes the responsibility for federal programs IHS would otherwise administer. It also directs IHS to pay contracting tribes the amount IHS would otherwise have provided for operating the program, plus contract support costs. The statute requires reimbursement for any overhead expense incurred by the tribal contractor in connection with the operation of the federal program pursuant to the contract, and so the question here is whether IHS must pay contract support costs for the increased overhead expenses that a tribe incurs in connection with services funded by the same program, income from third parties like Medicare, Medicaid or private insurers.

 

Leah Litman I was cautiously optimistic about how this case was going to go. The justices seemed to understand both the importance that the statutes placed on empowering tribes to administer health care systems, and also the real world facts and practical reality about how administering those health care systems generates administrative overhead costs that aren’t merely costs of direct services that are, you know, covered under a narrower definition of these contracts. But, you know, building up a system that is equipped to provide healthier people involves overhead matters that need to be covered as well.

 

Kate Shaw And the background here is that the kind of core premise of the Indian Self-Determination and Education Assistance Act, or IST, you know, as the name of the statute suggests, you know, the whole idea is that tribes can take over and administer programs if they choose to that would otherwise be run by the federal government, that this ability is important to self-determination, and that if they do do that, they need to be reimbursed appropriately or the scheme just doesn’t work. So I think it is actually quite complex in its specifics. But that sort of core principle, I think, makes the case actually feel pretty straightforward and not difficult.

 

Melissa Murray So this argument left me with a funny feeling in my tummy because I felt really warmly toward one Neil Gorsuch, who one tends.

 

Leah Litman To happen in those federal Indian law cases.

 

Melissa Murray You know, I was like, am I rooting for him? I think I might be, he once again really showed that he is the justice who brings a certain sensibility to questions involving federal Indian law. And this case was a high point for Neil Gorsuch. There are some low points here, but.

 

Kate Shaw No, it was also like the same way CBJ sort of like was was making things very concrete when we’re talking about the dynamic in emergency rooms, handing water bottles to someone, providing care, he’s sort of asking about the actual material conditions in which services are provided on reservations and making clear like, this is all. All of this is very, very thinly funded. Many of these facilities are totally suboptimal in the first place. And like that is really important context that he is able to see and appreciate and kind of harm. He’s able to understand in these cases so deeply and not at all in so many other cases. It remains the enigma of Neil Gorsuch.

 

Melissa Murray The enigma of Neil Gorsuch. Like, exactly like he was great on this issue. So that was really a high point. But as I said, it was Neil Gorsuch. So there were also low points in this week of cases. And I just wanted to highlight one of those low points, which is a clip from another case, Harrow versus Department of Defense, where Neil was just doing the absolute most. So let’s hear that.

 

Clip Yes. I’m just wondering why the government’s making us do I don’t know, I mean so but it is a sort of form of compensation that to be here today is an honor for me and an honor for him. And so good. But having said having said, it’s an honor for all of us.

 

Melissa Murray And he’s so humorous. I mean, honestly, like,

 

Kate Shaw In his mind, he really.

 

Melissa Murray Pieces. Do you remember that Ax conference where Justice Sotomayor mentioned how weird it was when Justice Gorsuch came onto the court and they all had to, quote unquote, figure out his sense of humor.

 

Kate Shaw Yes, yes, we’re all still trying. Yes.

 

Melissa Murray Yeah. Like, how’s that going?

 

Leah Litman Maybe the nicest thing you could say.

 

Kate Shaw Yeah.

 

Melissa Murray Woooh. Anyway

 

Kate Shaw Yeah. All right, well, so let’s move on to cover some court culture. First, we wanted to highlight a number of ongoing Second Amendment challenges. We flagged a few decisions. The on Bank Fourth Circuit recently heard a challenge to Maryland’s assault weapons ban in a case called Bianche versus Brown. And we wanted to highlight two clips from that argument as judges question the challenger, that is, the lawyer arguing that this assault weapons ban was unconstitutional. So let’s play the first clip here.

 

Clip Argue that five radically different weapons that are before us in this case than the handgun, statutes and handgun regulations, they were at issue in in Bruen and Heller. This is a whole jump up. It’s a different order of magnitude, is it not? It is not. Your honor, these are relatively underpowered rifles. But what’s interesting? Underpowered? Yes. They are 15 can fire 300 rounds a minute.

 

Kate Shaw If I understood this correctly, the lawyer seemed to be claiming that are fifteens are underpowered. Did my ears deceive me?

 

Leah Litman That’s what it also read to me as.

 

Kate Shaw Don’t worry, it’s going to get crazier because the next clip gets to the possible implications of the challenger’s position.

 

Clip So under your theory, if Congress had never gotten around to banning fully automatic rifles or machine guns, and they had become popular in common use to the extent that apparently AR 15 AR, the state couldn’t regulate that kind of a weapon. Well, again, we’re not talking about regulation. There could possibly a ban on types of regulation or ban could not ban firearms that are in common use. So so right. So state could not ban a machine gun. Assuming that there had been no federal, they had been in common use, but they had not. I mean, we had a what about a bazooka? The use for recreational purposes, any firearm that is in common use for lawful tactical nuclear weapon use. Well, a tactical nuclear weapon is I mean, it’s a so there’s no limit essentially, once once the cat is out of the bag, the Second Amendment trumps all. That’s that’s your position. That that’s not my position. That is Heller’s position and Bruins position.

 

Leah Litman So coming soon to a court of appeals in Texas, does the Second Amendment allow for nuclear regulation?

 

Kate Shaw Please pray that judge Ho is not on a panel.

 

Leah Litman It is a suicide pact. This is a suicide pact. Yeah. The Texas district courts want to make that clear. So having said that, you know, for the time being, some sanity is prevailing in Texas because a Fifth Circuit issued a decision that we predicted after the argument in the SB four case. So by a 2 to 1 vote, the Fifth Circuit declined to stay the district court’s injunction against Texas SB for the restrictive immigration law that allows the state to deport people who aren’t currently removable under federal immigration law, among other things. Judge Oldham, a Trump appointee, dissented, but the Texas law will remain on hold for the time being. The same panel, judges Ramirez and Oldham, as well as Chief Judge Richman, will be hearing oral argument on whether to leave the preliminary injunction in place, i.e. the merits, in early April.

 

Melissa Murray We also wanted to highlight a development in the Fourth Circuit in a case called Wapner Hart, so versus Baltimore Lutheran High School Association. The case involves a title nine challenge to a school’s response to sexual assault. The litigant, a survivor of sexual assault and bullying, argued that the school’s response to her claims violated title nine. But in order to show that the school was bound by title nine, she also had to show that the school, quote unquote, received federal funds to make that showing. She argued that the school’s 501 C3 tax exempt status essentially rendered it in receipt of federal funding, and a Maryland district court agreed. Well, the Fourth Circuit reversed, saying that tax exempt status is insufficient to satisfy Title Nine’s requirement that an entity receive federal funds to be subject to the statute. And I’m flagging this because it’s obviously important for title nine, and it certainly limits the scope of title nine. But it’s also important for a range of other civil rights statutes that apply to private entities, where those entities are in receipt of federal funding. The district court’s ruling would have opened the door to challenges to private tax exempt organizations that engage in, for example, Dei measures. So while this was a blow or a limitation on title nine, the Fourth Circuit was likely thinking of how this ruling might in the future be co-opted by conservatives to limit the reach of other civil rights statutes going forward.

 

Kate Shaw Another thing that we wanted to flag was a development related to Alexander versus South Carolina, which is the racial gerrymandering case, the court heard argued back in October. So, as a reminder, in that case, a three judge panel had found after holding a trial, that there was stark evidence of racial gerrymandering and ordered new maps. But the Supreme Court is now considering that case. Heard arguments again, as I said back in October during the first sitting of the term, and when it heard those arguments, both the state and the. Voters asked the Supreme Court to rule on this map by January 1st. So they did not do that. They did not rule by February 1st or March 1st. And it is now the beginning of April. Still no ruling from the Supreme Court. So at the end of last week, the same district court that had found these maps unlawful has ruled that they will be used because the Supreme Court cannot get its shit together to decide a case in whatever. It’s been eight months and the decision essentially finding that the old maps will be used said, quote, with a primary election procedures rapidly approaching, the appeal before the Supreme Court still pending and no remedial plan in place, the ideal must bend to the practical. And here the practical meant there is no way to get new maps drafted and implemented in time with the primary election happening. And so the Supreme Court’s delay. It’s unconscionable. Delay is directly responsible for these unlawful maps going into effect and being used in this primary election. And it’s both like a deeply disheartening result in this case. And it also, I think, is causing me additional concern about the court’s likely timeline on the Trump immunity argument like they are.

 

Melissa Murray I was just going to say, like all they do is delay in highly consequential cases like this.

 

Leah Litman Surprise and get away with it. Right? Because they’re not being forced to own this.

 

Kate Shaw Now, inaction needs to be understood as culpable conduct in exactly the same way as action is.

 

Melissa Murray So the implication is gerrymandering is literally that de facto.

 

Kate Shaw Exactly. So what they have said without saying a word is that unconstitutional maps can be used in this election. And we should understand their inaction in in that way. That’s what they’ve done.

 

Leah Litman And that’s what they did right. In Allen versus Milligan, they allowed states to use maps that violated the Voting Rights Act, even though they later switched course. In that case, which, you know, I am not super optimistic that they’re going to say.

 

Kate Shaw No, I think.

 

Leah Litman You and.

 

Kate Shaw I think it’s right that they will ultimately. But but they would have to, you know, again, own it in a different way with at least with this election, they would. And I think it’s right. I think that they are likely to reverse the three judge panel in this case. But if that’s happening, like have the decency to do it in an open way before the election.

 

Melissa Murray Well, I know we don’t often talk about politics, but like, is it now past time for the Biden administration to, like, literally make the Supreme Court and all of its fuckery part of the election?

 

Leah Litman It’s way past that time.

 

Melissa Murray Way past time.

 

Leah Litman Way past that time.

 

Kate Shaw I think there’s some movement. Look, the state of the Union compared to last state of the Union, actually was much more focused on the Supreme Court. But that’s just to say.

 

Melissa Murray Okay, that was a start. But he also could have been like you and you. And you. Like that would have been helpful to like to really said like you three are fine. These over here like we need to talk about.

 

Leah Litman I mean, look, in my ideal world, he would have called Olivia Rodrigo and Lily Allen to the stage and Donna Reed performance of Fuck You. Right? Like they did in the wake of Dobbs. Short of that, I do think he could have done more, to be sure.

 

Melissa Murray But it was a good start. It’s a good start. But keep going. Like. Like we should. They should be talking about this all the time. Talking about the fact that you get their surrogates out there, talking about the fact that the court has effectively immunized Donald Trump by delaying this until April 25th, and who knows when we’re going to get a decision like effectively allowed gerrymandering to happen. And whatever the political consequences of that are, it’s make the court part of this election to start talking about the fact that Alito and Thomas are 70 and they want to step down under a Donald Trump presidency, not under a Joe Biden presidency.

 

Leah Litman Yeah. And again, not to kind of repeat something we said earlier, but I do think incorporating the court is a way of altering the baseline on which these elections, second term elections are often held, which is the party in power sometimes does less well. But thinking about who the party in power is in a world with a 6 to 3 conservative supermajority on the court, that is very intent on advancing its agenda is very different, right, than just thinking about a presidential election in isolation. And so I think that is part of, again, talking to people about the world we are living in, the stakes of the election and again, realizing why some things are happening and forcing the relevant institution to own it.

 

Melissa Murray I mean, like we talked about this back in 2020 when, you know, at the Democratic National Convention, they talked about all the great things Joe Biden had done over the course of his career in the Senate. And we were like, but that got invalidated by the Supreme Court and that got invalidated the Supreme Court. Yes, they should be doing that right now. Like, yes. Did provide student loan relief. Yes. And it literally got fucked by the Supreme Court. Yes. Like talk about that.

 

Leah Litman Continuing on this kind of meandering court culture segment, we wanted to highlight, recent district court opinion that previewed some of the possible fallout from yet another Supreme Court decision this term, yet another likely bad decision, and that is SCC versus George Casey, as well as some of the court’s previous administrative law cases. So in Walmart versus King, the Southern District of Georgia in. Validated the system that sets up administrative law judges that oversees timeout.

 

Melissa Murray I actually just read that as Walmart is King, which may have been the energy from the other district from.

 

Leah Litman Arguably in some ways.

 

Kate Shaw Trump. Wal-Mart. They’re all king.

 

Leah Litman Oh, anyways, the district court invalidated the administrative law judges that oversee the administrative proceedings about whether to impose civil penalties for certain violations of immigration related recordkeeping requirements. And these administrative law judges are part of the civil service. They can’t just be fired willy nilly. You know, if a president disagrees with how they’re doing their job, they are civil servants entitled to protections under the Merit Systems Protection Board. And the district court concluded these ALJ is have to be removable at will. They can be fired for possibly policy disagreements or disagreements about how they are adjudicating cases or particular cases, and therefore inject politics and presidential priorities into administrative adjudications that are supposed to be neutral.

 

Kate Shaw Expert adjudications what was once just a conservative fever dream actually making its way into judicial opinions like this. This was one of the bases on which the Fifth Circuit ruled the same way about the ALJ. Is that the SEC in the Jacuzzi case happening now. So district court opinions basically finding that these ALJ have to be removable at will by the president. At the same time, as we see, like the vision of the project 2025 plan for leadership, which basically would suggest that most or all of the civil service should also be subject to the removal authority of the president, so that if a future President Trump wanted to, he would not be constrained by the civil service protections that have applied throughout the federal government in a limited way since the late 19th century, but in a very robust way for most the last 100 years, we literally could just be looking at manifestly unqualified people. You’ve Melissa, previously talked about Marjorie Taylor Greene, like literally running, I don’t know, NASA, or.

 

Melissa Murray Space lasers.

 

Kate Shaw Right, but I’m saying we have to put her in an agency. So I guess NASA’s reboot and look like there are already presidential appointees who are, you know, chosen at the pleasure of the president and typically confirmed by the Senate for the top positions. But we’re talking about everyone all the way down, potentially being subject to the same thing just by appointment and removal by the president at will. And it’s a very, very, very scary prospect to contemplate that. I think we should all be taking very seriously, both because of some of the energy devoted at building this out into something that could be real in the executive branch context, but also because of decisions like this that reach these algaes who are, you know, reside in the executive branch, but have been understood as serving this judicial kind of function and thus importantly protected from political hiring, firing, reprisal, things like that. So I have a long paper that will be out later this month in the Northwestern University Law Review called Partizanship Creep, which is largely about this phenomenon, which really felt much more academic a couple of years ago when I started writing this paper. And it’s become a terrifyingly timely, urgent, yeah, yeah. So, anyway, there’s much more on all of these developments in that paper, if you’re interested.

 

Leah Litman Okay, so one last thing. We talk a lot, but we also listen. And we wanted to respond to at least what I perceived to be a recent cry for help from our fellow Cassandra and Mensch on the bench, though formerly on the bench, Stephen Breyer. So Justice Breyer, who rejoined the Harvard Law faculty upon his retirement from the court, has a new book out, quote, Reading the Constitution Why I Chose Pragmatism, not Textualism.

 

Melissa Murray As part of his promotional tour for his book, Justice Breyer has been making several press appearances, and in one for Washington Post Live, Justice Breyer appeared to be sitting in front of a bookshelf in which all of the books were inexplicably placed on the shelf with their spines away from the viewer. So basically all you could see was just the pages. You couldn’t actually tell what the books were. It was all very weird, and I.

 

Kate Shaw Don’t know, it looked so.

 

Melissa Murray Sheer. I was, what is he? It wasn’t even like when decorators just cover all the books in white paper, and it’s like it was just like just the pages. And you didn’t know what I was like. That can’t be efficient. Like you don’t know.

 

Speaker 3 I don’t know what titles are you doing, what are you doing? And it’s also not esthetically pleasing.

 

Kate Shaw It looks horrible. It makes no sense functionally and it’s esthetically disastrous. Like what is going on?

 

Melissa Murray I mean, like I was like, who is your publicist, Justice Breyer? Because your publicist would tell you, right. My Skype room is coming for you. Room reader is coming for you. And again, like, there is nothing more dependable than rate my Skype room like you show up on TV or anywhere without a succulent. They are there, like giving you a six out of ten for your room and room. Reader, I have to say, I hate to say it. I hate to see it. They gave Justice Breyer what I think might have been a deserved. Zero out of ten.

 

Leah Litman So as we mentioned, I perceive this as a cry for help. You know, we are fond of Steve and so are we wanted to be his pro bono, maybe publicity publicist, team decorator. So Melissa just offered you some advice. You know, one turned the books around to get a turbulent.

 

Melissa Murray Get a pineapple to just like you gotta. You gotta put all things out there. Make sure your records are out of view.

 

Leah Litman Also, get a fluffy doodle. Get a dosa is, you know, a ten out of ten Room Rater winner. And I think a previous winner of some of the yearly awards. And her wallpaper. Wallpaper. Okay. Still amazing. And her dog Cole won dog of the year. So, Steve, like, help us help you give us a moment and we will help you not only get you a higher room rater score and with power, but also turn up that volume in criticizing the current court so that people can hear it. So you know where to find us. I mean, like, this.

 

Melissa Murray Is a great title, Reading the Constitution Why I Chose pragmatism, not Textualism, but I think you could have done more. I think you’re going to be like why I chose pragmatism, not fever dream meth lab textualism.

 

Leah Litman Utter nihilism, or something like that.

 

Melissa Murray I mean, and since you’re turning all the spines away, no one needs to know. It doesn’t fit right on the spine, so it’s fine.

 

Kate Shaw Wait. Wait. Can I ask a question? Is there is the not in the title italicized? I feel like I’ve seen it italicized, and I don’t know how I feel about that. Why not textual I don’t.

 

Leah Litman Know, yeah, I again, I feel like it’s just not loud enough, right. For the people in the back of the room to understand what he’s saying, because I think, you know, in his press appearances, he has raised more concerns about the court than I think come through in the book. And again, I think, I think we can help him find that voice.

 

Kate Shaw That’s right. The Liptak piece that he did, that was an interview in chambers. There was more fire there than. Yeah, I have not read the book yet, but that certainly came across in like the Times Book Review. So I one read for myself, but my sense is that there’s not nearly enough fire in those pages.

 

Melissa Murray Well, I mean, open invitation to Justice Breyer to join us on the pod. You can have your own segment. We can talk about the book. You’re always welcome here. But we do think that you’re zero out of ten. This is not your best showing. We know you can do better. Honestly, we’re not even blaming you. We think this is your team. I don’t know who told you about those books. Get it fixed. We can help you. We will send you a succulent. And then you just come on here with your new background and we’ll talk. It’ll be fun. Yep.

 

Leah Litman So we also want to make sure you hear this, Steve. But all of the rest of you too. So in case you missed it, Strict Scrutiny is coming to Washington, DC on June 22nd. We’ll be breaking down the decisions coming out of the Supreme Court live at the Howard Theater. Tickets are available now, but they’re moving fast, so get yours at Crooked.com.

 

Melissa Murray Faster than the Supreme Court on immunity. So that means you do actually have to do something.

 

Leah Litman Faster than the Supreme Court on most anything.

 

Melissa Murray Of consequence.

 

Leah Litman Right. So get your tickets at Crooked.com/events or hit the link in the episode description.

 

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. Audio support from Kyle Seglin and Charlotte Landes. Music by Eddie Cooper. Production support from Madeline Herringer and Ari Schwartz. 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 us. It really helps.

 

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