The Aesthetic Enjoyment of Other People’s Uteruses | Crooked Media
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August 21, 2023
Strict Scrutiny
The Aesthetic Enjoyment of Other People’s Uteruses

In This Episode

Easha Anand of Stanford’s Supreme Court Litigation Clinic joins Kate, Melissa, and Leah to lay out what SCOTUS has been up to in the world of criminal law. But first, Kate and Leah analyze the Fifth Circuit’s opinion in the mifepristone case, and what it means for people seeking abortions across the country.






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.


Leah Litman Hello, listeners. We have an awesome episode for you recapping the big criminal law cases from the past term. But the Fifth Circuit threw a little bit of a wrench in that. Yes, that was an intentional pun. So I’m Leah Litman.


Kate Shaw And I’m Kate Shaw. And we are going to bring you that Criminal Law Recap episode, which features a fantastic guest later in the hour. But before we do that, we want to bring you an update on a couple of other important developments, one of which Lisa just alluded to, and that’s the one that involves the medication abortion case, the case brought by a group of anti-abortion doctors who are asking the courts to issue a nationwide ban on Major Preston, the drug used in medication, abortion or in the alternative. The doctors are asking the courts to impose a bunch of restrictions on mifepristone, even though the FDA, which is the expert agency on these matters, deemed those restrictions medically unnecessary. So let’s dive right in.


Leah Litman Most of our listeners will recall the basic history of the case. So we are just going to briefly recap it. Judge Matthew Kacsmaryk, the shadow author of Law Review articles. The man who dressed his children up in T-shirts that read I Survived Roe versus Wade, the man who has criticized no fault divorce rules. I think that was an interview he didn’t disclose to the Senate Judiciary Committee. Anyways, that guy, he issued a decision this winter that purported to revoke the FDA’s approval of mifepristone, one of the two drugs in the medication abortion protocol. Medication. Abortion is the most common method of abortion in the United States. And by revoking the FDA’s approval of the drug that would have rendered mifepristone an unauthorized drug which makes it illegal to prescribe and distribute anywhere in the United States.


Kate Shaw So the Biden administration appealed that order because, of course, they did. Because they had to because it had no basis in law and it also would have had truly catastrophic consequences.


Leah Litman Can I interrupt you, Kate? Do you want to just apologize to Judge Kacsmaryk for what you just said?


Kate Shaw I’d like to stand by actually the way I just characterized Burford’s. But as you’ll as listeners, you’ll hear later in the episode that Lila was just channeling the Fifth Circuit in basically pressing one of the lawyers, you know, defending mifepristone to apologize for criticizing Kacsmaryk. Anyway, we’ll we’ll get there. The Fifth Circuit is the place that an appeal goes. If you are appealing a decision of a district court in Amarillo, Texas, and the Fifth Circuit is not a place you ever want to be. And yet that’s, of course, where the Biden administration had to go in appealing that earlier order. So at that earlier stage, the Fifth Circuit, the Court of Appeals reviewed the district court order, which I’m going to stand by my description of as crazy. And while they said it was a close question, they decided actually not to go whole hog. That is for the judicially ordered nationwide medication abortion ban, which the lower court judge had wanted. The Fifth Circuit instead decided to basically judicially order the FDA to reimpose a bunch of restrictions on mifepristone that the FDA had deemed medically unnecessary. These restrictions included once the Biden administration had lifted during the COVID pandemic and kind of the full slew of restrictions that the Fifth Circuit would have reimposed were one making mifepristone approved only up to seven weeks since the last menstrual period rather than ten weeks, making the drug approved only at a higher dosage, limiting who can prescribe mifepristone to only doctors, which the FDA had rolled back, requiring an in-person pickup of the drug requiring in-person administration of the drug. Again, these are restrictions that had been in effect at earlier stages, but that the FDA had lifted at a few different points and that these judges, in their infinite wisdom, would have just put back into place.


Leah Litman And this ruling still could have been and would have been catastrophic because it’s not just as simple as just reimposing are bringing back the status quo as it existed in 2016, before these restrictions were lifted, the drugs that had already been manufactured and distributed would have been mislabeled. Once, you know, this Fifth Circuit ruling went into effect because the drug still would have had the guidance from the old regulation. And while doctors can prescribe off label drugs, distributors and manufacturers can be subject to liability for distributing them. That’s why one of the drug manufacturers told the Supreme Court that this ruling could imperil medication abortion nationwide for months, if not years. While the manufacturers sought a new label and sought FDA approval of it and then created it and so on. And even if you put that to the side, reimposing, all of the restrictions that Kate just lifted would obviously severely hamper access to medication abortion in states that have shut down clinics since people living in those states could not obtain medication abortion through telemedicine.


Kate Shaw After that earlier Fifth Circuit ruling, the Supreme Court stepped in and stayed the district court’s order. So putting it on hold so it wasn’t in effect. And this part is important. They put that order on hold until the. They, meaning the Supreme Court, had the final say. So what that means is the status quo on medication abortion, which is that it is available subject to these less restrictive requirements that the FDA has adopted. All of that the current status quo stays, in effect, does not change, even with the latest insanity from the Fifth Circuit, which we will get to in a moment, unless and until the Supreme Court allows the Fifth Circuit’s ruling to go into effect. So the danger is very real. But right now, the status quo remains in effect.


Leah Litman And if you’re thinking like this is strange, the Supreme Court already acted on this case, like what is going on now? Just a quick primer. What happened up until now is that the district court had issued that insane ruling and then the federal government asked for what’s called a stay pending appeal, basically to put the district court’s ruling on hold while the appeal of the district court’s ruling was ongoing. That’s what the Fifth Circuit had previously ruled on, and that’s what the Supreme Court had previously ruled on a stay request pending appeal. But now we’re at the actual appeal stage where the Fifth Circuit looked at it and they were like, you know, Matt Casimir was really on to something after all. So we’re going to let like houses of his ruling go into effect. So what would happen next is like a petition for surgery from the appeal, not the stay pending appeal that would be up at the Supreme Court. We recapped the oral argument the Fifth Circuit had held in this appeal in the spring. That was the one where the Fifth Circuit judges asked the lawyer for the drug manufacturer to apologize. Yes, apologize for too strongly criticizing, by which I mean accurately describing Judge Kacsmaryk ruling. So we’re just going to replay that audio. So you have a glimpse of the preview for the insanity to come.


Clip Your filings have been excellent. However, I am concerned about some rather unusual remarks in the filings. And I’m wondering, these are remarks that I don’t normally see or we don’t normally see in briefing from very esteemed counsel that talk about the district court.


Kate Shaw And then there was one other exchange that we wanted to play this one about essentially pressing a lawyer to recant something she had said during the oral argument.


Clip The state panel used false math to claim this certainty, which our brief walks through exactly why that math does not in any way relate to the 2016 or the 2021 changes. You don’t mean false necessarily. You you mean was mistaken, don’t you? False in the sense of inaccurate. Yes, that’s right. The math was actually correct. As in and if you calculate 2 to 7% times the number of women who have taken mifepristone, that would give you the number of women who the label suggests have had an incomplete treatment. But what is false is to equate incomplete treatment with a trip to the E.R.. There is no declarant who says that there is nothing in the record that says that. And so that’s where the inaccuracies come in.


Kate Shaw So from this and other nuggets, it was clear they were going to do something, the Fifth Circuit that is, bananas. We said at the time the panel desperately wanted to do something to limit mifepristone. And they did. Which brings us to their ruling in the case. So we will start with the majority opinion and then get to the James Ho concurrent dissent.


Leah Litman But first, I think it’s worth asking, is this an example of lower court defiance of the Supreme Court? You know, the Supreme Court’s shadow docket orders, which is all it has done in this case up until now, are not formally precedential. And the Supreme Court has said they are not precedential in the sense that, like lower courts must follow them. And there that is the Supreme Court’s decisions on the merits after they hear oral argument and get briefing, don’t always follow what they do on the shadow docket. Having said that, the shadow docket order is a sign the court took the additional step of saying this stay will be in effect until we Supreme Court do anything. As if to say like we don’t really have confidence in those crazies on the Fifth Circuit. And some lower court judges have argued that courts should take hints and cues, at least when the hints and cues all favored Republicans from the court shadow docket orders. And sometimes the Supreme Court itself has faulted lower courts for not heeding guidance provided by these on recent orders. And I just think, especially in light of our discussion with Ari Berman about Alabama’s defiance of the court’s decision and Milligan, like, it seems like we are getting some real at least the lower court in this case defiance. And that defiance is asymmetrical. You know, people on the left have been encouraging other political actors to potentially not enforce or follow the Supreme Court’s orders. But that hasn’t happened yet, right? Nothing close to it has happened yet. It’s just like a few individuals calling for it or suggesting it in some cases. And instead you have more extreme ideologues on the right defying the court, the current court, as well as earlier progressive court precedents. And, you know, sometimes the court rewards that.


Kate Shaw Yeah, And I think that’s why it’s really important to see what the court does when it actually considers this case on the merits, this coming term, as it’s sure to do. And I mean, I guess I would say I wouldn’t characterize what the Fifth Circuit did here as outright defying.


Leah Litman Yeah, no. Neither would I.


Kate Shaw Yeah, no, but it’s a bit but I think it’s right.


Leah Litman It’s curious.


Kate Shaw It’s very curious. And it is the case that lower courts take their cues from the Supreme Court. And what I do think is pretty evident in this opinion is that the Fifth Circuit is taking its cues both in tone and substance, not from the fact that the Supreme Court granted the application for this day, but that Sam Alito descended from the court stay order. So it’s Alito from whom the Fifth Circuit is taking cues. And that was this, you know, short writing that we talked about, where he offers this, like unsurprisingly, just unbelievably defensive and bad faith explanation of why these restrictions don’t actually harm anyone. They don’t harm the federal government. They don’t hurt manufacturers, people who need abortions like, well, it’s short term, It’s no big deal, no harm, no foul. That was kind of basically the gist of Alito’s dissent, in which he also said, I’m not saying what I’m saying. Don’t read anything into my writing about my views on the merits. Like, okay, now. But yeah, I do think the asymmetry point is really important to underscore. Like the Court’s many, many unhinged decisions have been subject to some discussion of defiance by lower courts or other government actors like discussion of but no actual pushback by any lower courts or any other government actors. But where you have these very rare moments of sanity by this court. So the stay order in this case or the opinion in Allen versus Milligan, which you mentioned, enforcing literally just enforcing the Voting Rights Act, those are the rulings of the court that we are seeing subject to vigorous pushback on the right. And it’s just like it is bizarro world. Like it’s exactly backwards. Like, well, these should be.


Leah Litman Only decisions worthy of respect are the ones that give Republicans what they want, right? Like, that’s okay. Yeah, that’s what the rule of law of means.


Kate Shaw So that is a kind of important background context, but turning to the majority opinion here, so the opinion just kind of on the defensiveness point from, you know, taking cues totally from Sam Alito, the opinion begins with something of this like lady doth protest too much. Note, which is the court says after extensive briefing in oral argument we hold like they’re just a little nervous. People might think they’re not being super thorough and judicious here. And so that’s how they begin.


Leah Litman I mean, everyone is going to think that or at least they will like after reading the opinion. So let’s start with the court’s discussion of standing. The idea that plaintiffs in order to sue in federal court are supposed to have to establish some future. Risk of injury that is supposed to be like a substantial risk of it or maybe certainly impending anyways. So the majority in this case recounts the plaintiff’s theory of standing, which, as they note, rests on several basic premises. One is that mifepristone causes adverse effects for some number of people who take it, and the other is that these plaintiff doctors will be called on to treat people in ways that harm them if and when people do experience adverse consequences. And the plaintiffs say this has four injuries, two of which the Fifth Circuit lumped together. One is that the plaintiffs would be, quote, required to perform or complete an abortion or and this ends up being a big one, quote, participate in the medical treatment that facilitates an abortion, both of which, like conflicts with their rights of conscience. And the majority lumps this together with a second theory of injury rather than treating them as distinct. Maybe because the second one is so insane. The second theory says treating mifepristone patients imposes mental and emotional strain on the plaintiffs, and they say this is, quote, Due to the unique nature of chemical abortions, which, according to the plaintiff, doctors frequently cause regret or trauma for the patients and by extension, the physicians. We have abortion regret. Back into the pages of federal court opinions, seemingly under the guise of I have really big feelings about abortion as a theory of standing.


Kate Shaw And it’s not just abortion regret, which we’ll get to in a moment, but like a vicarious abortion. Regret rights when they are now suggesting. So to take maybe a step back, this kind of abortion causes regret, depression, sadness, etc.. A line is one that anti-abortion forces have used for many years. This is just the medication abortion version of it. And there are a couple of studies that get trotted out every time this argument is offered by anti-abortion authors that purport to find this. But literally all reputable studies and all meta analyzes of existing studies show that this regret slash trauma theory is bullshit. The turn away study whose author, Diana GREENE Foster we’ve had on this show is one of the many refutations of that, especially when you compare outcomes in terms of mental health and encompassing things like regret and trauma for women who obtain wanted abortions versus women who are forced to carry pregnancies to term. Like, there’s no comparison. It is much, much worse for mental health to be forced to carry a pregnancy to term than to be able to obtain an abortion that you want. But this is, I think, a new wrinkle to suggest that not only are they are they offering this this notion, trying to revive this discredited notion of abortion, regret or trauma, but to say there is this by proxy abortion, regret and trauma that the doctors experience, that gives them a concrete stake in the dispute and they don’t really even reach for any actual evidence for this. They just suggest the plaintiff doctors say so and so it goes. The plaintiffs also say that providing emergency treatment forces, doctors to divert time and resources away from their ordinary patients and that mifepristone involves more risk of complications than the average patient seems obviously false. It is also striking how uninterested this opinion is. Just generally speaking, with the complication rate I was talking about sort of regret and emotional effects of being forced to carry to term an unwanted pregnancy. But complication rates for pregnancy and childbirth, which, you know, particularly for certain segments of the population, black women in particular. Right. Like both pregnancy and childbirth, the rates of complications and sometimes fatal complications are extraordinarily an indefensible high. And none of that enters the calculus. Right now, nothing is without risk but the presentation of complication rates of ever. Preston, in this opinion, is just wildly skewed and disingenuous, right?


Leah Litman And also it’s always as compared to what? And yeah, plus I go back to the fact that, like the plaintiffs are emergency room doctors, and so I just don’t know what it means to divert time and resources away from ordinary patients. When you’re in the E.R. and you treat people with emergencies as they come in, like you’re not choosing who to schedule. And you also don’t get to refuse treatment to people whose choices led them to the E.R. Like, that’s part of what being an ER doctor is. And so I wanted to dub this the like, call the way ambulance theory of standing like the E.R. doctors. The doctors who signed up to treat people having medical emergencies don’t like some emergency use, and so they’re harmed by it. It’s just like it is inconsistent with their responsibility is office and role and it’s just yeah.


Kate Shaw Yeah and all these theories in general rest on vastly overstating complication rates from press. Don’t conclude that it is like a statistical fact that one of these doctors will be called upon to perform an abortion or maybe provide other care. Not that clear to someone because of a medication, abortion and complications from the medication abortion. And the things that they try to offer to back this up, like don’t really come close to doing that. So they cite the required patient agreement, which discloses that the treatment will not work in about 2 to 7 out of 100 women. But that says nothing about whether some of those 2 to 7 women will require an abortion or emergency room care at all. They cite the mifeprex prescribing information which says that between 2.9 and 4.6% of women visited the emergency room after taking mifepristone. But then list these extremely rare rates of severe conditions like sepsis, which is .02 percent rate hospitalization related to abortion, which is between 0.04 and .06 percent blood transfusion because of heavy bleeding, 0.03 2.05%. And critically, none of these say they require surgical abortions. And so the opinion contains this footnote. To be clear, we do not understand the medical organizations and doctors standing theory as applying only to women who present to the emergency room with severe complications such as those listed above. Rather, they also contend they are injured by treating women who experience less medical side effects because such treatment forces the doctor to participate in the abortion process.


Leah Litman But what does that even mean? Participate in the abortion process. It’s not clear what facilitation you’re doing beyond providing standard E.R. care, saving someone’s life. And again, it’s compared to what? Right. Like complication rates, particularly for pregnancies in Texas, particularly for black women’s pregnancies in Texas, are way higher than this. It’s not clear also whether any of the plaintiff doctors would end up seeing, you know, the individuals. And it’s not clear whether any of the patients that they would see or any complications that would arise would be attributable to what they are actually challenging. And what the Fifth Circuit does here, which is like about the relaxed rescinded restrictions on mifepristone, not its overall availability. And you’re supposed to have to show that the policy you’re challenging, which again is the relax restrictions. That’s what causes your injury.


Kate Shaw They’re hostile to move a person entirely as why there’s this disconnect between some of the logic in the opinion and what they actually bottom line conclude, which is that some of these limitations are impermissible. But clearly, like they don’t think the first one should be available at all. They just don’t quite think they can. I think with a straight face, defend that position in like the language of law. So they try this one and they sort of try to substantiate their standing analysis with declarations from anti-abortion doctors. But like two of them are from doctors who say their partners treated people for complications. This is like second hand information, and they don’t describe the injuries to the plaintiffs. And the Fifth Circuit also acknowledges in a footnote that one of the individuals who is supposedly treated by these other doctors obtained mifepristone outside of the United States. So none of the regulations being challenged are relevant at all in that instance.


Leah Litman They also have this extremely tortured distinction with the Supreme Court’s prior decision in some resources, Earth Land Institute, which we had previously highlighted when discussing that case. That case rejected a theory that an organization had standing just because statistically it was likely that one of their members would be injured, instead requiring the organization to show that a particular member or members would in fact be injured. And the Fifth Circuit is like, Oh, no, that’s not what this case was about. Because in that case, the Supreme Court said the individual members didn’t have standing. And it’s like, no, but that’s that’s true here. Right. They concluded in that case, the organization couldn’t rely on statistical fact or statistical certainty that some member might be injured. They had to point out to individual members and they concluded the individual members hadn’t shown it was sufficiently likely that they themselves would be injured, which is exactly what happened in this case. It’s just, again, like tortured logic to get to a result that they so desperately wanted to reach. And another piece of evidence about this is this utter insanity. They include, toward the end of their discussion, standing in which they say, we’re not really considering this issue of third party standing and third party standing concerns like when a doctor would be asserting an injury on behalf of someone else, either patients rather than themselves. But they add, quote, We suspect that the doctors have a relationship with their patients that is more than adequate to support third party standing. In many respects, such a relationship may be closer than those previously recognized by. And then they list the court’s cases protecting the right to abortion like June medical hole, women’s health. And it’s like you literally can’t see a difference between doctors challenging patients access to a medication and treatment than some patients want, and doctors ensuring access to medication and treatment that some patients want, like the doctors in the case is protecting abortion access. We’re not trying to prevent people from choosing one way of addressing their pregnancies.


Kate Shaw Yeah, what I found so chilling about this actually, is that later and I think maybe this is more in the whole concurrence, the unborn patients is a phrase that. So users and it’s pretty clear to me here in the majority opinion that the third party standing that the court actually has in mind is the unborn patient and the doctor being able to stand in the shoes of and assert the interests of the.


Leah Litman Little person here. Curious, once again.


Kate Shaw It’s I mean, it’s just like impossible to miss here. And that’s obviously what this litigation is moving us toward. And they’re not yet ready to just like say that quiet part loud. But I do think that’s very clearly what underlies the logic here. But we should move to the merits. I don’t know if we’ve got the merits. I mean, look, so it seems like the panel identifies two purported faults with the FDA scientific determinations. One is that the FDA purportedly did not study the cumulative effect of implementing all of these changes together. It studied the amendments individually. And because the FDA failed to seek data on it, on the cumulative effects and failed to explain why it did not do so, its decision to approve these amendments was likely arbitrary and capricious, as a shout out to anybody who is like not sure if they’re going to enroll in administrative law in law school this coming year. Like, yes, do it. This is an ad law case. Like so many of the most important cases the court is considering. This upcoming term, including this one, really are administrative law cases. So it’s just important to kind of work your way around it. But in any event, that conclusion seems to directly contradict something the Supreme Court said in a case a few years ago called Prometheus, which is that the APA, the Administrative Procedure Act, imposes no general obligation on agencies to conduct or commission their own empirical or statistical studies, and yet that is basis.


Leah Litman But abortion case.


Kate Shaw Yeah. Yeah. That was yeah, there was like a little footnote in Prometheus. Now, now I remember it.


Leah Litman Like this is antiabortion exceptionalism continued right. And of course their reasoning also overlooks the fact that it’s just like absurd to require studying all this together when the complication rate baseline is so low. Right. You could conclude in the aggregate that it is fine to continue, given that.


Kate Shaw Yeah. All right. So in terms of what else the majority fault the FDA for, it basically says the FDA was at fault for declining to continue to collect data on non-fatal adverse events in light of the major changes to the regulations surrounding mifepristone. So here’s what the majority said when considering the data collection question, FDA reasoned that non-fatal adverse events did not have to be recorded because the risks associated with mifepristone were well known. But FDA failed to account for the fact that it was about to significantly loosen mifepristone’s conditions for use. At no point during the decision did the agency acknowledge that the 2016 amendments might alter the risk profile, but maybe because that’s not supported by the evidence, because it didn’t alter the risk profile, right?


Leah Litman It’s just like assumption. Assumption, assumption, right. Like they considered it, but the evidence did support it. Again, given the baseline studies about mifepristone. And they acknowledge that each of these things like didn’t alter the risk profile, it’s just insane. Anyways, so before we started recording, I asked we were having a discussion like, Do you think the majority tried to make this opinion not crazy in the hope that they could get five votes on the court?


Kate Shaw I just I don’t I mean, on standing, I don’t think they could make it sound not crazy.


Leah Litman I mean they couldn’t.


Kate Shaw I think you’re right.


Leah Litman There’s a limit given the materials that they have to work with.


Kate Shaw It’s truly an insane standing opinion. I think it’s right that cosmetically, superficially, on the merits discussion, they tried to make it sound like a routine administrative law case where an agency just did not actually go through, you know, the requisite process in order to survive arbitrary and capricious review, which again, when you take administrative law like you will learn a lot about, but like, you know, agencies actually have to consider evidence, consider the key aspects of a problem, like consider different paths they might take and explain why they’re doing it, not doing particular things. But also, you know, there’s a sort of a delicate dance between courts not wanting to totally second guess everything agencies do, but also making sure agencies are actually acting in reasoned ways that give reasons. And so here I think you’re right on the merits. The court has tried to make this sound like a routine administrative law case. It’s not. But I do think that they have rested up in a way that at a glance could be mistaken for that kind of opinion.


Leah Litman And I think that they were helped in their efforts to make this look less crazy by the separate writing by Judge Ho and also the underlying order that they’re reviewing. Right. Since technically they don’t affirm it, it’s in its entirety. It’s like, oh, they took this like moderate middle ground opinion. No, no, no, no, no, no. That would be a mistake. But we should proceed to that other opinion.


Kate Shaw To the opinion that makes this one maybe sound reasonable, which is, of course, the concurrence in part dissent in part written by the man who was sworn in to be a judge at Harlan Crow’s private library. And no, we did not make that up. James Ho. Okay, so Ho unstanding do you think he tried to make his standing?


Leah Litman He was auditioning so hard for that next Supreme Court vacancy. In the next Republican administration, and he knows he has to outdo Judge Thapar  who’s going around writing books about Clarence Thomas and giving interviews on Fox News. So Jim Ho is like, watch this. Like Usher me in.


Kate Shaw I think he’s got the upper hand.


Leah Litman Yeah. Oh, yeah. Oh, yeah. Okay


Kate Shaw Should we clue our listeners into some of.


Leah Litman Yeah.


Kate Shaw Just a few.


Leah Litman Here is Jim Ho’s take on standing quote. Unborn babies are a source of profound joy for those who view them. Expectant parents eagerly share ultrasound photos with loved ones. Friends and family cheer at the sight of an unborn child. Doctors delight in working with their unborn patients and experience an esthetic injury when they are aborted. You know, we’ll unpack this exactly what it says in a little bit. But like, if we’re going with this, I would just note that, like, reason legal opinions are a source of profound joy for me, which means I experience an esthetic injury and can bring suit. Whenever Jim Ho is on a panel.


Kate Shaw Looking at pictures, I will offer mine, which is that looking at pictures of Ho being sworn in in Harlan Crow’s library by Justice Thomas is a source of esthetic injury.


Leah Litman This means you get to revoke his Article three commission. I’m pretty sure. I’m pretty sure. But he substantiates this esthetic injury claim with additional insanity, noting that it is well-established that if a plaintiff has concrete plans to visit an animal’s habitat and view that animal, they suffer esthetic injury. And then he says, I see no basis for allowing Article three standing based on esthetic injury when it comes to animals and plants, but not unborn human life. And it’s like, I’m sorry, no basis like you see no basis with saying someone is injured because they can’t force someone else to continue their pregnancy to term and go through childbirth. Like, would we have an esthetic injury because there isn’t like forced impregnation? Like he is literally saying a doctor is injured because a pregnant woman doesn’t carry a fetus to term. Right. They’re injured because of the choice someone else makes about their body and their pregnancy because a pregnant woman’s uterus and wombs are apparently there for like pro-life people’s enjoyment.


Kate Shaw Back to the animals and plants. Remove them. Then I respond to what you just said, Leah. You know, it’s so trolly to basically suggest that, like, liberals care about grass more than, you know, unborn human life as he terms it, right? Like, is it I think that is what he is or just ignore but but also the failure right to suggest that there is any interest on the other side of the balance that a case involving say, plaintiffs just doesn’t present. But kind of to your point about pregnant people’s uteruses being there for other people’s esthetic enjoyment like that really does, There’s a chilling lack of limiting principle to this logic because I just don’t know what the end point is like. It could be deployed, I imagine, to challenge birth control. People not getting pregnant in the first place means that doctors are deprived of the joy of looking at the pictures and like working with the fetuses that would result if people were forced to get pregnant and not use birth control. Like, I don’t know why doctors can’t challenge birth control on that logic. And maybe more short term. Obviously all abortion and not medication abortion has this effect. So states that have chosen through democratic processes to protect access to abortion, there’s absolutely no reason why you could not manufacturers standing to challenge all laws that permit abortion under this view of the law.


Leah Litman This is a standing theory for fetal personhood, right? Yeah. He just put it out there.


Kate Shaw Yeah. Yeah. And he goes sort of full revocation. He would hold the entire 2000 approval of mifepristone unlawful. So he was not sort of on board with this kind of just patchwork of restrictions. He would have gone back to what Judge Kacsmaryk said, which is to pull the drug basically off the market entirely.


Leah Litman But he wants you to know he respects those FDA officials so much, he’ll second guess them from here to eternity. So he writes, quote, The scientists at the FDA deserve our respect and our gratitude, but not our blind deference that would defy Congress’s clear, direct it. The courts conduct independent legal review. It’s like, can you feel that respect when he’s like punching you in one face, He’ll respect you again and like punch you in the other eye. And it’s just like.


Kate Shaw He previously previewed this in the oral argument when he read some criticisms of the FDA to Dangote’s lawyer and was like, Well, doesn’t the fact that other people criticize the FDA mean that I, Jim, who get to second guess their scientific determinations and revoke them if I disagree? So maybe let’s play that quick clip here.


Clip I don’t understand this theme. The FDA can do no wrong. That first of all, you’ll agree that is basically the narrative you only bring forth. Nobody should ever question the FDA. This is unprecedented. The FDA just last month in response to litigation about the drug, a subpart H drug for pregnant women, McKenna FDA withdrew it in response to a New York Times headline. FDA Rushed a Drug for Preterm Birth. Did FDA Put Speed Over Science Just last year, Senator Murray, chairman of the chair of the Senate Health Committee, criticized the FDA for, quote, unacceptable long standing food safety failures. FDA is being blamed for the opioid crisis. Your honor. Journal of Ethics Article How FDA Failures Contributed to the Opioid Crisis. None of this has anything to do with this case. What I’m trying to say is why are we? It’s a theme that you all are putting forth that is completely unnecessary. We are allowed to look at the FDA just like we’re allowed to look at any agency. That’s the role of the courts. Absolutely, Your Honor. I think some of that may have been prompted by the district court itself saying that it was second guessing FDA. And so to the extent that part of our theme is that a court is not to second guess FDA, that is established. And I think every type of agency APA review.


Leah Litman Another theory he embraces. In this case was the Comstock Act theory that federal law, this Victorian era federal law, actually prohibits the distribution of medication abortion. That theory would prohibit medication abortion nationwide. The majority doesn’t reach that argument. In a footnote, they say they’re not addressing it. I worry that they are preserving it for the possibility of a ruling on remand if the court rejects these theories. I mean, they’re just trying to run out the clock.


Kate Shaw More short term, what this means is that the federal government and Danco, the manufacturer that intervened in the case, will definitely file a search petition. The court will, I think, definitely hear this case next year. I mean, interesting. I wonder since the stay has meant the status quo is intact, it would not be that surprising to me to see at least some members of the court think strategically about kind of the political timing of this opinion, or at least the argument in this case and the issuance of the opinion against the backdrop of the 2024 presidential election. So you sort of we will see how all that timing plays out. But as we said, and I think you said this explicitly in the Dobbs retrospective, Leah, we need to make sure that abortion and the court remain front of mind for the American public going into an election year. And the fact that Donald Trump’s appointees and the GOP in general are trying to make medication abortion unavailable everywhere in the country needs to be a key issue that every candidate asked about. Every debate, features and just voters are very, very aware of as we head into the presidential election cycle. Two more pieces of breaking news that we wanted to highlight before we bring you that criminal law recap. One is a very different piece of breaking news. It involves a landmark ruling in a landmark climate suit filed by young people in Montana. It was really a first of its kind lawsuit that was about using the courts and specifically state courts to pursue climate justice. So that’s the broad goal. But the claim itself is pretty concrete. Basically, Montana has a law that blocks the state from even considering greenhouse gas emissions and climate impact when they were deciding whether to permit large energy projects like involving coal and gas. And these plaintiffs who were between two and 18 years old when the suit was filed, are now between five and 22, argue that that statute violates the Montana Constitution, in particular, two provisions of it, actually some others, too. But but critically, Article two, Section three, which guarantees as an inalienable right, the right to a clean and healthful environment, and then Article 11, Section one, which requires the state to maintain and provide a clean and healthful environment in Montana for present and future generations. And there’s pretty interesting history here in that Montana is a state that was once basically owned and run by oil and gas companies. But in the 1970s, a new constitution was adopted and it tried to reduce their power and shift power to the people, including by adding these really pressured provisions to the Constitution. Anyway, these plaintiffs won. They had a lengthy trial back in June. There was testimony by climate experts and these young plaintiffs. And this past week, in a 100 page opinion issued by a montana state court judge, which I will say is a better read than the similar length opinion out of the Fifth Circuit in the mifepristone case. So you have to just read one. Read this one. She found that the statute prohibiting the consideration of climate impact was unconstitutional under the Montana State constitution. It brought to mind Lee I remember we were in Hawaii. There was a similar decision that had just been issued under the Hawaii Constitution with a great concurrence by Justice Wilson from that court. Anyway, back to Montana. The state attorney general has already said they will appeal, but this is a really significant ruling. There are other state constitutions with similar provisions. There are lawsuits like this one in various stages in virtually every state. And as the climate crisis intensifies, this opening of state courts as a new frontier feels potentially very promising to me.


Leah Litman And then one additional note, which is that Justice Rebecca Bradley is at it once again. She really can’t stop one stop that woman. So the Supreme Court of Wisconsin changed over from having a majority of conservative justices to a majority of progressive justices. And a case has been filed asking the courts to review whether the Wisconsin legislature’s maps, which are one of the most gerrymandered maps in the country, you know, violates that state’s constitution. And Rebecca Bradley is not happy about this. So she wrote a dissent from an order that basically allows the party to file more briefs so the court can consider whether to hear the case. She says, quote, The outcome of this original action has been predetermined. She goes on a rant against the Democrat Party of Wisconsin. And it’s just like, you know, I just wonder, like what she’s putting on those Cheerios, because that is a lot of cray.


Kate Shaw It is an order. Literally, this was just a briefing or I think what the court basically said was like, you can respond. Yes. And this is her dissent from that procedural matter at an early stage. It is really hard to imagine how she’s going to like turn that dial up. I don’t know what to do.


Leah Litman She will find a way she will find a way she might go again, like barges off Guantanamo Bay for her colleagues. Crazy. Like, there’s no way this doesn’t escalate.


Kate Shaw I think that’s right. So in any event. Right. Now all we have is a procedural development in that there are more filings in this original action challenging these maps. And she is this mad about that?


Leah Litman I just want to say, like in this passage, she says that like addressing the gerrymander would, quote, bestow an electoral advantage for Democrat candidates. So in addition to the whole, like using the Democrat name, removing an unfair electoral advantage where people can remain in power despite not receiving majority of votes, it’s not the same thing as conferring an electoral advantage, and that logic seems to have escaped her. Maybe in her fits of rage. She just like couldn’t see clearly. But, you know, we’ll see what she has in store for us as this case proceeds.




Kate Shaw Today, we are bringing you a special episode of focused on criminal law. And because none of us are really crim law experts save for Leah’s specific and important interest in habeas corpus and federal post-conviction review, and also the insanity that is the Armed Career Criminal Act. We are delighted to be joined by a real expert, one of the best in the business return guest, Easha Anand.


Easha Anand Thank you so much for having me. Add the three of you inform so much of how I think about the court and its business. And so it is always such an honor to join you on this podcast.


Leah Litman It is mutual. So Easha is formerly with the MacArthur Justice Center, their appellate and Supreme Court project, and is now one of the co-directors of the Supreme Court Clinic at Stanford Law School. So it is wonderful to have you back.


Melissa Murray Easha, because you are really the expert here. And I should note that your expertise is homegrown at the University of California, Berkeley, where I happened to know you as a student. So it’s really exciting to have you here. But again, you are the expert. So we’re mostly going to be putting the questions to you, although I’m sure we all have thoughts and will chime in as we are want to do. But just so our listeners know what to expect, we’re going to divide up the discussion with Easha  into three areas statutory decisions which are decisions interpreting what federal criminal law prohibits or what it means in certain circumstances. Constitutional decisions, that is what limits on what the state can do in terms of criminal regulation the Constitution imposes. And here we’ll probably focus on capital cases that were heard on the shadow docket, and then we’ll do a section on remedies where Leah will go all her mini Granger on us with a raised hand and lots to say alongside Easha . So with all of that in mind, let’s get to it.


Kate Shaw And as Melissa just said, we’re going to start with decisions about the scope of federal criminal law. So these are cases where the court is asked to interpret federal law and decide things like what has Congress actually made a crime? Okay. So in this area, Easha , are there any notable trends or patterns or just cases you want to highlight?


Easha Anand Right. So this is one area where the news is pretty happy, right? So the overarching theme here is this is a court that whatever its general hostility to criminal defendants, is deeply concerned about the overreach of criminal law, particularly federal criminal law. When you think about the kind of last ten years, you see this sort of largely unbroken string of wins when it comes to substantive criminal law. And that string kind of continued this year. So you’ve talked on this podcast about Dubin versus United States, which is the case that the Stanford Clinic handled, in which David Dubin overbilled Medicaid for the cost of a psychological evaluation. So basically rounds up the amount of time slightly and says that it’s the psychiatrist that does it when it’s actually a psychological associate. He basically it’s an extra 100 bucks for doing this. Government says he not only engaged in health care fraud, no one’s disputing that, but he also engaged in aggravated identity theft because during the course of the fraud, Mr. Dubin had to use his patient’s name. I had to write it down on the reimbursement for the court rejects this theory, and the thing doing the work seems to be this kind of potential overreach of the statute, right? So the opinion starts by pointing out that on the government’s theory, a lawyer who rounds up her hours from 2.9 to 3, or a waiter who serves flank steak but charges for filet mignon. That’s the kind of driving ethos that we see in this case. The same thing with criminal Percoco Two cases about bribery and corruption among public officials. And again, there’s this undertone and, you know, maybe it takes on a different resonance in the wake of recent revelations about how the justices have received money themselves. This undertone of like, if we adopt the government theory, like where does it stop?


Melissa Murray So this is a pretty good run for criminal defendants and perhaps an unexpectedly good run. Like, to what can we attribute this spate of good fortune for criminal defendants? Is this about shifts in personnel on the court? The introduction of a Kentucky Brown Jackson who previously was a public defender? Or maybe it’s the confluence of Katie Brown Jackson Sonia Sotomayor, who has been very skeptical of the government’s authority in these contexts, and also Neil Gorsuch, who has, as we know, a strong libertarian streak. That means he’s somewhat skeptical of government regulation of crime. Is it all of these things or any one thing or is it nothing to do with the justices themselves?


Leah Litman I believe Justice Alito called the streak ornery, not just libertarian, Melissa.


Melissa Murray Is ornery and libertarian. Again, a T-shirt in the making. If only he knew.


Easha Anand So I think it’s probably a little bit of column, a little bit of column B, So this streak pre-dates some of the current personnel on the court. There’s been this sort of skepticism of these really broad federal statutes has been around for a while. I do think that the addition of Justice Jackson and Justice Gorsuch has given sort of them a new ferocity to the way that the court approaches these statutes. So just. Is Gorsuch not only signed on to these opinions, but this term. We saw him writing separately in at least two cases saying not only what I narrow the statute in the way that the court has done, but I also am so deeply skeptical of a statute I might consider striking it down altogether. Right. So he is, as his very aggressive conception of this notion of void for vagueness, the idea of the law is still unclear. It has to be struck down altogether. And he’s got kind of his own gloss on the doctrine. So historically, you’ve got to use the doctrine where the statute either fails to give fair notice or is so standardless, it invites arbitrary enforcement. And Justice Gorsuch seems to be channeling this kind of theme we talked about in the majority, the sort of ordinary case. And see that that’s kind of what the void for vagueness inquiry gets it right. He says that in Jubin he writes and says the statute should be considered vague because, quote, Almost every adult American would be an aggravated identity thief. Under the government’s view. It’s sort of a new gloss on this kind of fair warning and judicial restraint principle and a reminder that Justice Gorsuch has this very high threshold for what a criminal law and especially a federal criminal law can and needs to say or do. So I guess there’s not any one person on the court or any one kind of bloc of justices. These opinions tend to be actually pretty broad, tend opinions. But I do think that particularly Justice Gorsuch kind of penning his separate writings saying we should strike down these statutes altogether, not just come up with this narrow and construction shift, the kind of Overton window of how the court is thinking about these statutes.


Leah Litman The Gorsuch description of vagueness that you read almost sounds like a criminal law analog or a take on over breath doctrine. That is, it’s not necessarily about whether the statute is unclear in applications, but whether it potentially applies to a bunch of things that we’re just not so sure it should apply to or get at that. But, you know, despite these defense side wins and I think deserved ones, another part of the trend we’re observing is maybe less positive. And this relates to an observation that Justice Sotomayor made during the oral argument in said about the fact that the federal government is pressing all of these broad theories and then kind of abandoned them once they get to the Supreme Court and, you know, admits they’re kind of indefensible while still asking for a do over. So why don’t we play that clip and then I’d love to hear your thoughts on it.


Clip There was an intense requirement that’s for here. You say it was broader than you think it should have been given, but we’ve had a number of cases this term Criminelli, Percoco, Dubin. Now, this case. Where the government is actually conceding that the statute read by explains terms is too broad and you come back to us and say, read it more narrowly, but you won at a jury trial on a broader charge. If we keep doing as you ask us to, which is to rewriting statutes, are we encouraging the government to continue this practice?


Easha Anand She’s exactly right, perhaps unsurprisingly, because they almost always think she’s exactly right. And what you have here is this dynamic where the court is so used to saying, we look at these statutes, they’re vastly overbroad. We know they can’t possibly mean what they say. We just put a narrower gloss on it. And that’s so normalized that the court perhaps forgets that for someone who’s not a lawyer, it’s kind of a counterintuitive approach. And so in the Hansons of the case, remember where federal law criminalizes encouraging or inducing an immigrant to come to or remain in the United States when they’re not allowed to. The Ninth Circuit struck down the law’s unconstitutionally overbroad. This is a doctrine that Leah was just referring to, the idea that criminalizes all kinds of stuff that’s protected by the First Amendment right the granddaughter who begs her grand mother to stay in the United States knowing that she’s not allowed to seemingly encouraging her and then wait. A majority resolves this cases. They say we’re going to read the words encourage or induce in the statute to really mean, solicit or facilitate, which are much narrower words. And the Jackson and Sotomayor dissent perfectly captures how implausible this narrow in construction is. And I think the takeaway that Justice Sotomayor is getting at in her question is, look, it’s good that the Supreme Court is figuring out ways to cabin prosecutors power to bring these charges, but it shouldn’t do that at the expense of just saying this statute is absurd to begin with. That’s a little bit with the Gorsuch concurrence, as we were just talking about, get it as well. Sometimes these statutes just can’t be salvaged. And the Supreme Court making up an alternative statute that’s narrower in lieu of just striking down from these statutes, I think is is the kind of bad tale to this. Otherwise, that sort of shiny penny of narrowing the statute.


Kate Shaw What it feels like here is the court kind of masquerading as modest, but actually exercising enormous authority to really like rewrite statutes. And but it is doing it in the guise of. You know, not disturbing Congress’s handiwork and trying to save statutes which like in some context and in, you know, the abstract does seem like something that courts should often try to do, but it obviously has a limiting principle.


Leah Litman So getting your description of what Justice Gorsuch is doing in these cases, kind of looking at the expected applications or potential applications of this law and then stepping back and concluding, well, that just cannot be true. Like that mode or method of statutory interpretation almost sounds pretty purposivist or at least concerned about the consequences of an interpretation. It doesn’t sound like the kind of formal textualism that either Gorsuch professes to adhere to or that we have come to assume that this court does. So is the court doing something different in these federal criminal law cases than it is doing in other statutory interpretations like, say, Bostock, where it says, well, we just care about the meaning And yes, this might be an unexpected application, but who cares? Or is that really what they’re doing in all cases and only sometimes admitting it?


Easha Anand So I think probably the latter. I think that, you know, those of us who have some sort of any sort of judicial realism bone in our body know that this that it’s not really the definition of the word. So where the word use that can be driving the train in all of these cases. But I appreciate in these kind of federal criminal cases, the court lifting the veil and saying, yes, this turns on what the word use means, but the word use means a lot of different things and a version of use that makes every single adult American a criminal can’t be the right one. Right. I wish that they didn’t have to start with the Yes, this turns on what the word use means preface, because I think that the latter part does all the work, but I do appreciate the kind of lifting of the veil in this federal criminal context.


Kate Shaw I just wanted to ask a follow up question about two of the cases that you mentioned, Simonelli and Percoco. And, you know, you describe this as a pretty good run for criminal defendants and Simonelli and Percoco or cases that did involve criminal prosecutions of cases involving political corruption under different statutes and different theories. But basically this is the trading of money for political favors. Prosecutors in the federal system believe that this conduct ran afoul of federal statutes, and the Supreme Court basically, unanimously in both cases, reverses those convictions. So I guess in your mind, are these the criminal defendant wins that belong in the same column as the other kind of criminal defendant wins? We have taken the position previously when talking about these cases and the cases that they build upon, like McDonnell and Kelly, the Bridgegate case really concerning in that the court seems to be inching ever closer to basically building a protective bubble around any activity engaged in by elected officials and their benefactors in the private sphere in ways that, you know, as you mentioned a couple of minutes ago, you know, does like land in a different way in light of recent ethics revelations about the justices and, you know, billionaire benefactors. So are there are distinctions between cases like this that raise genuine concerns about the justices, even where they are finding for criminal defendants and other cases where we can celebrate these criminal defendant wins? Or to your mind, are these also important instances of the justices, you know, reining in potential prosecutorial overreach?


Melissa Murray Can I just interject? I mean, I think there’s a real difference. And maybe I’m answering the question for you so you can answer yes or no and say more. But it does seem like there is a real difference between Simonelli and Percoco and these cases where the court seems to be making it safe to grift and graft and cases where they are acknowledging that the Constitution or alternatively statutory law imposes real limits on what the government can do in terms of regulating through the criminal law. So this is not the do been like, you know, like small time criminal defendant. This is basically making it safe for justice adjacent friends to do corruption.


Easha Anand So I think that’s all right. And I think that, you know, I think it depends on the lens through which you’re looking at this, right? If you’re asking what’s good for society and democracy, I think you come up with one set of answers. I will say that, you know, this kind of principle that the court, frankly, kind of pulled out at starting in these kind of public corruption cases in cases of criminal defendants who looked a lot like them. This principle that the court can’t construe a statute on the assumption that the government’s going to use it responsibly, that has benefited an enormous number of criminal defendants who don’t look like these defendants. So do I think it’s a good thing that the court says we can’t trust prosecutors, that that revelation comes to the court in cases of criminal defendants who look a lot like the justices themselves, Like, no, I don’t think that’s great. But the fact is that that principle has been used by folks in a kind of variety of circumstances to be able to think about how to narrow the scope of criminal statutes. So if you’re just looking at sort of the criminal law.


Kate Shaw Yeah, the downstream effects actually of. Their skepticism toward these broadly worded criminal statutes actually does redound to the benefit of a much broader class of criminal defendants. So that is an interesting and yet it is also possible from the perspective of democracy to be really troubled by this seeming in that we’re talking about these statutory cases. And they are. But I always feel like the court is inching ever closer to constitutional izing protection for political officials. So maybe these cases will jump into the constitutional column, which we’re going to turn to in a minute. So I think that we just kind of have to be able to hold both ideas in our mind. There’s something really troubling about these cases on their own, and yet maybe they have yielded other benefits in other spheres.


Melissa Murray Well, it is that kind of nuanced, subtle answer, Isha, that I think made you number one in your class. And I’m just going to say, well, dead.


Easha Anand Still, top of it. I learned everything I know from Melissa.


Melissa Murray That’s a lie. She never took my class. She said she was too busy.


Leah Litman I just want to point out that there is going to be a remarkable contrast in what people are apparently learning at Berkeley law versus what we’ve learned that people are learning at Harvard Law in a recent episode.


Melissa Murray Spoiler.


Leah Litman Just putting that out there.




Melissa Murray So we noted at the outset that we did not have a lot of big headline grabbing constitutional cases involving criminal law. Although Hanson was both a constitutional and statutory decision, the court ended up interpreting the statute in a way that avoided a decision on the constitutional issue. So, you know, we really didn’t grapple with it explicitly, but there were definitely some interesting cases that sort of touched on constitutional issues, including COUNTERMAN versus Colorado, where the court established what kinds of true threats the government could prosecute consistent with the First Amendment. And basically the court concluded that the First Amendment requires that a defendant have some subjective understanding of the statements threatening nature, but that a recklessness standard for determining whether that was the case was sufficient.


Leah Litman There was also salmiya versus United States, the Confrontation Clause case in which the court essentially held that there is a new sheriff in town when it comes to the confrontation clause. And that sheriff has left the.


Melissa Murray Joe Arpaio, Sheriff Joe Arpaio.


Leah Litman Well, basically, since that sheriff has allowed the governments to redact a confession with generic terms like she or the other person in order to get around the Supreme Court’s earlier cases holding that you can’t admit the confession of a codefendant who doesn’t testify against the other defendant. I could go on, but we discussed that case at some length when it came down, and we did want to spend some time discussing the court’s capital cases.


Kate Shaw So on the court’s capital cases, although the court finished releasing opinions in argued cases at the end of June, the term actually isn’t over because the court has continued to oversee executions happening throughout the country, including in a couple of cases we haven’t yet had a chance to discuss on the show. And so I’m glad we have a chance to do that now. And in particular, in one notable case, the case of James Barber, who was executed by lethal injection in Alabama. The court denied a stay of execution over dissent by Justice Sotomayor, together with the two other Democratic appointees. Barber had sought a stay in light of his own medical history of medical personnel being unable to access his veins, as well as Alabama’s history of botched executions. And as a reminder, in the last year, the state has temporarily called off two executions after struggling to implement its execution protocol, which resulted in horrendous pain for the individuals who lived to describe what had happened to them. The state ended up calling off these executions, nominally conducted a review after the governor paused executions because it was that bad, but later announced that it had found no deficiencies in its execution protocols.


Melissa Murray And interestingly, in her remarkable dissent and Barbour versus Ivey, Justice Sotomayor, for whom you clerked, Easha , expressed concern about, quote, the court stymying the development of Eighth Amendment law by pushing forward executions without complete information. She noted that in two cases, the court vacated stays of execution that had been granted because lower courts concluded that Alabama would botch the executions, which it did. But by not allowing the cases to actually proceed, there hasn’t been sufficient factual development to uncover what exactly Alabama was doing with these executions. So again, a sort of shallow, factual foundation on which to base a decision.


Leah Litman And as Justice Sotomayor wrote, quote, This court’s decision denying Barber’s request for a stay allows Alabama to experiment again with a human life. And she dissented because, quote, the court should not allow Alabama to test the efficacy of its internal review by using Barber as its guinea pig. Okay. So that was a long lead up issue. But I guess, you know, what do you make generally of the court’s actions on the capital docket and what is happening here?


Easha Anand Right. So I think the death penalty context is one arena where you’re just really, really seeing the impact of a63 court as opposed to a 5-4 court. Right. So remember, it takes four votes to grant cert. Four justices can set the agenda for the court. So when I was clerking in a doesn’t actually feel like that long ago but was a really different era. Justice Kennedy was still on the court and there were sometimes cases where no one could really disagree on the merits. Right. It was very clear some sort of error had been made and the liberal justices could then force the court to consider the case on the merits for votes. Right. And even though there were only four votes at that stage, the case would end up being like seven two or eight one in the end, because the other justices didn’t disagree that air had been committed. They just disagree that it was worth the court’s time to make sure that someone who was being executed was being executed after a fair process. And, you know, that same dynamic played out even in these expedited cases, because there was this tradition that the chief justice at least sometimes adhered to of the courtesy Fifth, where four justices wanted to hear the case, You provide a fifth vote to make sure that the defendant doesn’t get executed before you can hear the case. No longer. There are no longer four justices room for four people on the United States Supreme Court who think the fact that someone might be executed despite severe constitutional defects in their conviction or sentence, there’s no link for just. You think that is worthy of the Supreme Court’s time and attention? And we see this in sort of case after case, right? You read from the dissent in Barbour a few weeks ago, Missouri executed a man who genuinely believed Satan had orchestrated his execution. Three justices dissent. Justice Sotomayor writes There was no moral victory in executing someone who believes Satan is killing him to bring about the end of the world. He’s killed back in June, case out of Mississippi. Evidence shows the prosecution basically did background checks just on the prospective black jurors. Again, three justices dissent justice as says, hey, look, we just decided this flowers versus Mississippi case, that wild case where the prosecution tried six times to get a conviction and gets one finally by striking all the black jurors. You just decided this case. Mississippi’s already flouting the teachings of that case and you’re really going to let it go. Majority’s unmoved, condition denied back in April, Case out of Louisiana comes to the court. Turns out prosecution suppressed a statement from one of the co-defendants taking responsibility for the crime. Three justices dissent. Justice Jackson points out Louisiana has a bad habit of ignoring the Supreme Court on this issue. Doesn’t matter tonight and so on. So just the fact that there are only three justices left who just think the fact that someone is about to be executed is worthy of the court’s time and attention. The fact that they don’t have a fourth has really made all the difference. And I don’t mean to be sanguine about the prior era of capital cases at the Supreme Court. It was not great when I was working on what you were clerking, Leah. But at the very least, there are four justices who could force the court to pay attention, and that doesn’t exist any longer.


Leah Litman Yeah.


Kate Shaw Although can I ask, do you think if there were if Roberts said, because of what I think have to be Roberts were willing to go along with the liberals, are you convinced that there would be a courtesy, even among the more conservative remaining justices on the court? I’m not I’m not sure they would abide by that practice.


Easha Anand You know, I’m not sure they would either. And to be clear, the chiefs courtesy Fifth, I think, was somewhat ad hoc even when it existed. But I don’t know that any of the other justices have professed any sort of adherence to the courtesy Fifth. Justice Breyer and the chief are the two who kind of publicly wrote about that. I don’t know who of the rest of the justices believe in that practice because they’ve never been for the test. There’s never been for where they’ve needed the courtesy of the right.


Leah Litman So forgive the her mighty Granger first interjection. I just wanted to add kind of three things to what you just said you said about the capital docket. So one is just, you know, on the Louisiana case, specifically Louisiana, like Mississippi, as you noted in the Batson case, involving racial discrimination. Louisiana has a horrible history of flouting the obligation to disclose exculpatory evidence in violation of Brady. You know, there was a case, Smith versus Cain, where the Brady violation was literally so bad. Several justices spent the argument time asking the lawyer for Louisiana, why do you just refuse to concede? Like, why won’t you just admit there is an error? You know, the Connick versus Thompson case about the prosecutor’s office failing to disclose exculpatory evidence of an innocent person who came within hours of being executed like that also involved a kind of pattern of Brady violations in Louisiana. And I worry that like part of what we are seeing on the shadow docket with the court refusing to grant these cases, is the court basically allowing lower courts and state courts to evade constitutional decisions without the Supreme Court actually having to overrule them, whether that is Brady, whether that is Batson, whether that is ineffective assistance cases, whether those are Eighth Amendment cases involving the execution of persons who are not competent to be executed. And so that’s one dynamic that I feel like is happening that is a little bit difficult to report on because they don’t actually involve cases that the court is hearing. It’s instead the decision not to hear them. That is changing the direction of the law and it’s substantive guarantees. And then the other thing that I just wanted to note was the court’s practice of basically denying stays and then vacating stays that are issued, I worry is also emboldening lower courts to kind of do the same, particularly with respect to method of execution claims, which it seems like the court has uniquely soured on and cast aspersions on is like basically a problem in capital litigation. So like there to it is not substantive decisions, but just like procedural rulings that the court is using to kind of extinguish like what used to be a substantive right.


Easha Anand I think that’s exactly right. And I think you see that most acutely in the capital context. But I think it’s a dynamic that is happening all over this court’s docket. And as podcast talked about in your episode with Steve Vladeck, using these sort of procedural tools to just set an agenda that doesn’t include a huge important swath of cases is a profound power that the court is exercising in a particular way.


Leah Litman So now into the Good Stuff remedies get excited. So these are Melissa, Turn your camera back on Barbie’s. Are interested in remedies. Okay, I’m post-conviction, Barbie. These are cases where, you know, you can see Italy have a right and you know your right has been violated. And the question in these cases is like, what, if anything, can courts do about it? And there were at least two big cases on the criminal law side this term that teed up that issue. One is Jones versus Hendrix, the habeas case where the court said that legally innocent people can’t file habeas petitions. So literally where a court messed up and you were convicted of something that is not a crime or you were sentenced to more time than the law says you can serve. The court said it is illegal for a federal court to do something about this. So this means all those nice federal criminal rulings we described earlier in the episode, they won’t actually benefit people who have already been mistakenly convicted or sentenced under them, like those people are stuck in prison. And the appeal has a story about how this ruling’s already hurting those legally innocent people.


Kate Shaw And the other big case we wanted to mention here was Cruz versus Arizona. And in this case, the court said the Arizona courts couldn’t refuse to entertain defendants Symons claim. And this is a claim that his sentencing had violated a defendant’s rights because the jury hadn’t been told that the defendant would not be eligible for parole if they were not sentenced to death. So basically, the jury might have imposed a death sentence because they were under the mistaken impression that otherwise the defendant might end up back on the streets.


Melissa Murray We’ve talked a lot on the show about how the court has narrowed the availability of remedies, even when it hasn’t always narrowed rights. And to be clear, my turning off the camera is not because I don’t find any of this interesting. I find it incredibly interesting. But I think remedies is something that a lot of our listeners are a little shaky on, in part because it’s not a course that’s offered at every law school, or maybe not by ladder truck faculty member. I don’t remember it being offered when I was in law school. And so this might just be a part of the law that you really only get to know through serious practice. But Easha , you are someone who practices in this area. So what do you make of this trend at the court where you may have a right and the court may recognize that right, but they’re not, especially buster to offer you an avenue for exercising or remedying a violation of that. Right.


Easha Anand As Leah noted, up top long standing trend at the court to narrow the availability of remedies. And still, I think Jones versus Hendrix marks a new and even more troubling chapter. Right. So as Leah noted, the bottom line in that case is court basically says you are out of luck. Innocence doesn’t matter for folks who have already filed one habeas petition. So ironically, the folks who’ve already served the most time under a sentence that should never have been imposed, they can’t file a second and say, hey, now that the Supreme Court decided the thing I did was not even criminal in the first place, can you take another look? So that’s bad enough. But I think the methodological implications of Jones are pretty bad, too. So from the time Justice Gorsuch got on the court, he’s posited this kind of aggressively narrow view of the scope of habeas relief started in a concurrence. Concurrences migrated into various majorities, and now we sort of see it as the kind of law of the land. Second, the court in Jones canvasses kind of founding era practice and kind of concludes that innocence didn’t matter at all at the time of the founding, which is kind of scary and dangerous for all sorts of settings, not just for this kind of procedural barrier. And finally, the court in that case formally inters the habeas clear statement rules. So for a long time Supreme Court, it said, when you are going to be interpreting a statute to foreclose habeas relief to a class of people, you need a clear statement to that effect. That was kind of been on the rocks for a while. I can’t really remember a case where it operated to the benefit of the habeas petition in a long time. But this case formally in Tarzan basically said there’s no such thing. So bad enough to say all of these people who are actually innocent, who are not covered by the terms of the statute have no recourse. But these kind of other seeds, this kind of Justice Gorsuch view of very limited scope of habeas. This idea that at the time of the founding innocence didn’t matter, and this notion that the kind of Congress needn’t act with any particular clarity before foreclosing habeas relief, I think those are sort of scary seeds that have been planted and will continue to sprout and strangle any possibility of relief for criminal defendants going forward.


Leah Litman So a part of me worries that, you know, Justice Gorsuch in particular has been vetted, as this noted libertarian in federal criminal law. But like the court’s narrowing of remedies hasn’t been picked up on to the same extent as their narrowing of the scope of federal criminal law or substantive criminal law. And it calls to mind, you know, two things. One is what I perceive to be something of a disparity between the court overruling Roe formerly in Dobbs and then effectively allowing. A state to nullify the protections of ROE through a procedural ruling in the SBA eight case. Like people really latched on to Dobbs and its implications. And, you know, there was attention certainly to the SBA eight case, but nowhere near the same extent, especially once the court issued its decision in whole Woman’s Health versus Jackson. And I worry that the courts like differential treatment of substantive criminal law on one hand and remedies on the other is kind of getting at the same issue. And it calls to mind one of my all time favorite law review articles by Carole Steiger, Counterrevolution in Constitutional Criminal Procedure in the Michigan Law Review, where she makes this point. So if you’re interested in that, please check it out. But I actually wanted to draw like another possible break down among the justices, not just between, you know, those who are able to recognize rights while not recognizing remedies, but another remedy ish break down. And I think this one is reflected in Cruz versus Arizona, as well as another crim ish case from this term, Reid versus Gertz, that the court heard this term. But to float this, I will have to get into the weeds for a second, so bear with me. So both cruise and read are basically to my mind about whether Kafka can be a guide for a state’s criminal legal system. Because more specifically, Cruise is about the enforcement of, as Kate noted, the Supreme Court’s decision in Simmons in Arizona. Simmons had said that a jury had to know whether they did not impose the death penalty if a defendant would be eligible for parole. And the Arizona court said that decision. Simmons did not apply in Arizona for like 20 years, even though Arizona had formally abolished parole for felony convictions. They were like, well, there’s always a chance of a commutation. But then in 2016, the Supreme Court said, knock it off. Simmons actually does apply in Arizona. But then after that, the Arizona courts refused to apply. Simmons where a defendant had already been sentenced on the ground, that Simmons was an old rule that had always applied in Arizona. And you could only challenge your conviction on the basis of new rules. But of course, this makes no sense. As Justice Kagan pointed out in the oral argument in Cruz.


Clip Bad faith or not, I think Kafka would have loved this. Cruz loses his Simmons claims on direct appeal because the Arizona courts say point blank, Simmons has never applied in Arizona. And then he loses the next time around because the Arizona courts say Simmons always applied in California I mean tells you in has I lose whatever that expression is I mean how can you run a railroad that way? The rule was the rule in Simmons has never changed, but it doesn’t change the rule in Simmons in Arizona. I mean, you know, maybe I’m just being simpleminded about this, but at point Simmons was not operative in Arizona, and in point B, Simmons was operative in California. Changing the law. Well, not every precedent has changed to some extent, but that’s a big change. Yes. I mean, right is not there to be invoked now the right is there to be invoked. And that happened as a result of LYNCH? No, it’s true. It should have happened earlier. But in Arizona, Simmons could not be invoked. The you know, the the defendant would have been told, too bad now the right can be invoked. That’s as big a change of law that there is.


Leah Litman And then Reid was basically about whether you can bring a federal civil rights claim in federal court that’s related to a state criminal proceeding. You know, when a state trial court denies you access to post-conviction DNA testing, do you have to immediately challenge that denial in federal court and have to simultaneous proceedings ongoing? Or can you wait until the state’s final appeals court says, yes, you’re denied access to post-conviction DNA testing to launch a separate proceeding and in both cases by the same vote break down. And this is what I want to talk about. The court says we’re not going to do the insane thing right. It says Kafka is not actually the organizing principle for state criminal legal system. States can’t say that they win, tails you lose on federal constitutional claims. You’re not required to litigate two cases in two courts about the same issue to preserve your federal constitutional claims. And it seems like this represents another fissure among the justices, where you have four pro Kafka justices Sam Alito, Clarence Thomas, noted Libertarian hero Neil Gorsuch and Amy Barrett, and then five who are like maybe completely deranged, isn’t okay. The three Democratic appointees together with the chief and Kavanaugh, who right is more law and order than Gorsuch, at least on some substantive crime issues? And this was the same breakdown last term in a similar case about perversity and Nancy versus Ward. And it just struck me as interesting because it’s different than the libertarian law and order breakdown. And here it’s almost flipped. So like, what is happening here?


Easha Anand I love the idea of the pro Kafka and anti-Kafka wings of the court because, right, Cruz and Reid we celebrate them as bright spots but.


Leah Litman Oh Gosh, no.


Easha Anand Really a sign of how absurd it is that there was. Ever any question how these cases would come out. And it’s a sign of how far things have moved, right? So. Lynch The case you alluded to where the Supreme Court said Arizona, actually you do have to obey. SIMMONS That was my term at the court and that was a summary reversal, right? That was not even a grant where they needed to hear argument. It was the justices were like, we don’t need to hear any more like, we’re just going to reverse this on the shadow docket. And now this case comes back up and literally Arizona is saying it’s not a significant change in the law because we were so wrong before that. The Supreme Court correcting us isn’t the kind of development that allows for this new petition had to be a granted with a54 decision. And same thing, you know, with read. I think in a different era someone would look at that and say, we don’t need to hear arguing about this like consensus. It can’t do this state. Let me suggest another way to think about that breakdown, which is that I think for the chief and Kavanaugh, the power of the Supreme Court really matters. And so in Cruz versus Arizona, a lot of the sort of theme you heard at oral argument was just this idea of you can’t ignore us. Like we said this twice. I don’t actually know if Simmons came back to the court today. I don’t know how the Chief and Justice Kavanaugh vote. To be totally candid. I don’t know that they still make the same ruling that was at issue in Simmons, but nothing aggravates the chief more. And I think Kavanaugh sort of in this line then this perception that lower courts are flouting the United States Supreme Court. And so when Cruz came up and it was literally the Arizona Supreme Court saying, like in in that you can’t get relief, even though the Supreme Court just told us we need to give you relief because we come with this very clever workaround. That, to me is is at least some part of what’s motivating the chief and Kavanaugh. And you saw that. You know, that’s sort of been the chief’s M.O. in the past as well. So shortly after Obergefell, where the chief dissented, there were a couple of cases where lower courts are basically directly flouting the teachings of Obergefell, often dealing with adoption type cases where same sex couples were adopting in one state and moving to another. And those were some rare reversals. I think, again, not because the chief had come around on Obergefell, but because he couldn’t stand how blatantly lower courts were defying a Supreme Court Precedent.


Melissa Murray G Medical versus Russo was in that vein as well. Even.


Leah Litman Moore Versus Texas.


Melissa Murray Yeah, there is a kind of South Park-ian quality to this. I mean, it is very much like you will respect my authority, right?


Leah Litman Eric Cartman Principle of judicial review.


Melissa Murray That’s who it is. Exactly. Kate is like what? Who?


Kate Shaw No, but I just want to make sure the.


Melissa Murray Eric Cartman clearked for the court in October term 2019 Kate, he’s a little known clerk.


Kate Shaw I’m sort of loosely familar with South Park, actually.


Melissa Murray He shared between the retired justices.


Kate Shaw I am not credulously nodding this. I know it’s not correct.


Easha Anand Oh I love this like anti Kafka slash pro Cartman.


Leah Litman Yeah exactly.


Kate Shaw In terms of where Kavanaugh lines up and they said sort of depends what is on the other side of the balance right because I do think it’s right that he is on board with defending the court’s primacy, but not at all. Not in all circumstances, because SB eight of course is really important counter example. So I think of like abortion is on the other side. He’s like, if it had been medical and he had been on the court.


Melissa Murray He’s not a reliable guy. Very sketchy record would leave you at the bar regardless of whether you two had met someone.


Kate Shaw Please. Oh God. Maybe take a shower. Don’t bring up and out. Not doing.


Melissa Murray He’s no goose or he’s no goose. He’s not in it to win it.


Kate Shaw Okay, so maybe we could pivot now to one more topic we wanted to get your perspective on. Easha, which is that this is our first term with a public defender on the court. We have had justices before who have represented criminal defendants, to be sure. But Justice Jackson is our first former public defender. And we wanted to sort of get your one year in, read out on what sort of impact she’s had on the dynamics of the court’s criminal cases.


Easha Anand Oh, gosh, there’s so much I can say about Justice Jackson. So in lieu of an hours long fancast about having heard oral argument.


Kate Shaw We have one. We’ve got one planned for later this term, so.


Leah Litman Fear not.


Easha Anand So maybe I’ll just single out one thing in particular, which is sort of her approach to statutory interpretation, which I don’t know if I can tether directly to her being a public defender, but I suspect as a function of working in that context with statutes that are messy over many years, and maybe also her time on the Sentencing Commission and sort of seeing how the sausage is made in that kind of quasi statutory speech. So. Right. So in recent years, you’ve had, on the one hand, the textualist. Right. What matters of the text in statute, nothing more. And folks who are sort of maybe Justice Breyer is the epitome of this think that the Texas statute is sort of a starting point at best. And in her dissent and Jones versus Hendricks, this is again, the case where the majority says actually innocent people can languish in prison. And BD Justice Jackson kind of puts forward an alternative to both of those. So she plays in the majority’s turf, she does all the textual stuff, but she also this is very pragmatic approach where she says. Look the way we should give these words, turned in part on how they got there. Right. And so the majority puts a lot of emphasis on these kind of two exceptions, maybe a statute. And she basically says, look, it’s really clear Congress copy pasted this. Right. It was the aftermath of the Oklahoma City bombing. It was, quote, rushed and emotionally charged. Congress made the scheme for federal review of state convictions and then copy paste it into federal review of federal convictions for getting that actually in federal review of federal convictions. There’s this other avenue for relief. So this isn’t like a textualist dissent, right? A committed textualist doesn’t care about why something was left out of the text of the statute, just that it’s not there and it’s not exactly the sort of. Justice Breyer. Let’s just look at purpose and policy and try to make sense of the statute in the abstract. It’s this really interesting, I think, pretty compelling argument that I think we all know on some gut level to be true, which is that, look, there are some words that Congress haggled over and put a lot of care into. And for those words, we should care deeply about what’s in the text of the statute. But it kind of blinds ourself to reality to say we should put just as much weight on the words that were kind of accidentally copy, paste it into the statute as those words that were the product of haggling and compromise. And we should at least be sort of attentive to which category these words are in when we’re interpreting the statute. So I love that. I can’t think of another recent justice that had that kind of sliding scale approach to statutory interpretation. I think it’s really smart and I think it’s tethered to the way in which she practiced for a long time, which was a lot of attention to the words of federal criminal statutes, some of which were the product of a lot of care and some of which were kind of passed in a reactionary fervor after some major crime.


Leah Litman So glad you mentioned the Jones VS Hendrix dissent, which I just think is like a masterpiece. Like it goes all in on the idea that sometimes withdrawing judicial remedies for like wrongfully convicted or sentenced people violates the Constitution, which I think is a really important perspective to have. And that is on top of the statutory interpretation methodology. You know, you noted, which I also think was on display in Laura versus United States important art career criminal act decision. And I guess speaking of ACCA, this is my attempt at a transition. You know, Melissa, you’re shaking your head. I took that as a personal attack and the video is now off. Girl, girl. Next term, the court will also be hearing several important criminal law cases, including an actual one. So I guess, Easha , like, are there any particular cases or decisions that listeners should be, especially on the lookout for next term?


Easha Anand So I’ll be keeping an eye on Jackson, which is a case that my colleague Jeff Fisher, and the students at the Stanford Clinic are litigating alongside Andy Adler, a federal defender in Miami. As Lynn noted, it’s about a provision of ACCA that’s the one that imposes a 15 year mandatory minimum, where the defendant has three prior, quote, serious drug offenses. And the question is whether you measure serious drug offense based on whether the drug was on a version of the controlled substance, the schedule in place at the time of a state offense, it’s the government’s position at the time of the federal offense. That’s Jackson’s position or at the time of sentencing that the possession of a companion case. The issue has tremendous salience because what we think of as a controlled substance has changed so much in recent years, right. Almost always to decriminalize things. So, for instance, until 2018, CBD from hemp was a controlled substance. And so whether someone with a conviction that implicates that substance from before 2018 gets this mandatory sentence turns on the outcome of this case, on this Jackson case.


Melissa Murray That’s the merits docket issue. Are there things that could be happening on the shadow docket? As we know from Steve Vladeck, we have to be as attentive to the shadow docket as we are to the merits docket. So what are you looking for there?


Easha Anand So this podcast has covered in the past the court’s kind of penchant for summarily reversing that is, again, without briefing an argument and certain pat issue areas. Two of the most common areas are really criminal justice adjacent cases where a lower court has granted habeas relief, right, where a lower court has sided with a criminal defendant and cases where a lower court has denied qualified immunity. That is where a lower court sided with usually a victim of police brutality against an officer. There were no summary reversals in either category this year, and this is the second year in a row there have been no habeas summary reversals after four such reversals in October term 2020. And this is despite, you know, some of the court being really, really eager for it. And one particularly apoplectic dissent from denial in a case called Shoup versus Cunningham, where the Sixth Circuit had granted habeas relief to a criminal defendant, Justices Thomas, Alito and Gorsuch have this very mafioso paragraph where they say the Sixth Circuit must do better with or without this court’s help. And they call out not only the panel for granting habeas relief in this case, the panel literally just told the district court to take. A closer look at the fact that the jury foreperson in the case knew the victim’s family. Right. And they were not only mad about that, we’re mad at every other sixth Circuit judge for not taking this case and to make sure this man gets executed. So not stressing that the court as a whole or individual justices are moving, and that’s why we’re not seeing some reversals. But one theory I have is that historically, I think this area kind of the shadow docket, summer reversal area, has received relatively little interest from the Supreme Court bar, partly for the reasons that you talked about on your podcast with Steve Vladeck. That shadow docket always gets less attention than merits, partly because the shadow docket doesn’t lead to oral argument, which is sort of become the currency of the realm for many practitioners. But in recent years, I think there’s been a concerted effort by many folks, including my colleagues at the Stanford Clinic, including my colleagues at the MacArthur Justice Center, other actors like the Institute for Constitutional Advocacy and Protection at Georgetown, to step in and provide resources and support to civil rights and criminal defense attorneys fighting to preserve their victories against summary reversal. And so I’m hopeful that what we’ve seen this last term or two will continue going forward and that this coalition will be able to kind of work together to stave off future summer ebbs.


Melissa Murray I think that’s all we have time for. But wow, did we cover a lot? Aesha Really substantive in depth. I mean, we really covered the criminal law docket and probably did it in a way that was more comprehensive than the justices themselves. So hats off to you. No shade. Just like.


Leah Litman Oh, I intended that as shade. That’s why I was laughing. It was both a compliment and a neg.


Melissa Murray That’s how we do it.


Easha Anand The best kind. The best kind


Melissa Murray We giveth and taketh away. Like the court itself. But Easha, as always, it’s so great to watch. You saw doing the great work that you’re doing with your students and the Stanford Supreme Court Clinic. Thanks so much for coming back to Strict Scrutiny to give us the lowdown on what’s going on on the criminal law docket.


Easha Anand Thank you so much for having me.


Leah Litman At the current rate of Trump’s legal troubles, every Georgia native is going to be put on a Trump jury sooner or later, so you might as well grab our totally impartial potential juror tee to signal that you’re totally unbiased and ready to serve. Head to slash store to shop now to get yours.


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 and Digital support from Amelia Montooth.