The Alabama Supreme Court Embraces Fetal Personhood | Crooked Media
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February 26, 2024
Strict Scrutiny
The Alabama Supreme Court Embraces Fetal Personhood

In This Episode

Looks like we have to add a new segment to the show: Fetal Personhood Watch. Leah, Melissa, and Kate break down the decision from the Alabama Supreme Court that ruled frozen embryos used in IVF treatment are “extrauterine children.” They also recap the oral arguments the US Supreme Court heard last week, including a bonkers case about EPA regulations. And then, for a special Court Culture segment, Sherrilyn Ifill joins the pod to talk about launching a new center about the Fourteenth Amendment at Howard University School of Law.







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


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


Melissa Murray I’m Melissa Murray.


Leah Litman And I’m Leah Litman. And today we are going to start with a court culture segment. And we’re doing this because there is a five alarm fire of a state court decision. That is the latest example of something we have been talking about for a pretty long time now. And that is how the Supreme Court that overruled row and the conservative movement more broadly, are coming for more than just abortion. And covering this latest decision might require us to introduce an unfortunate news segment we’re thinking about calling fetal personhood watch. Yes, we are going to be talking about the Alabama Supreme Court’s decision on IVF, as well as some reporting about possible developments at the federal level in a future Republican administration. There were also some important developments on the court’s shadow docket that we’ll touch on as well.


Kate Shaw Then we’re going to be recapping the arguments that the court heard last week, and we will briefly remind you about some of the arguments the court will hear this week.


Melissa Murray And finally, to close it all out, we will have a very special guest lined up. And that is Sherrilyn Ifill, who’s here to try and help Scotus understand that the 14th amendment actually is a part of the Constitution and a very big part at that.


Leah Litman As at least made clear, we’re going to be taking a break this week from the various Trump cases, which means it’s a perfect time to go in order and then read Melissa’s book, which is going to be out this week. The book is co-written with Andrew Weisman, and it is called The Trump Indictments The Historic Charging Documents with commentary so you can read it and make sure you’re ready to process whatever comes next in any of these cases. But now up is court culture and our potentially new recurring segment, fetal personhood watch.


Kate Shaw All right, so first installment is a banger. In the last episode, we talked about the chief justice of the Florida Supreme Court, who had some takes during an oral argument about a proposed Florida ballot initiative that would protect reproductive freedom. So that’s a proposal. And there was an argument in the Florida Supreme Court about whether that initiative will get onto the ballot at all. And during that argument, the chief justice pressed the lawyers to take a position about whether, under the Florida Constitution, fetuses were rights bearing individuals, meaning people entitled to rights. And that’s a theory that would presumably mean the Constitution requires the state to prohibit abortion.


Melissa Murray And so you might be asking what exactly is going on in that little pocket of the country? Because after we recorded that last episode where we covered the Florida Supreme Court, in comes the Alabama Supreme Court, which also embraced a theory of fetal personhood. And it did so as a matter of state statutory and constitutional law. And it did so in a way that has very clearly endangered the availability of IVF, in vitro fertilization in Alabama, in Ason versus center for Reproductive Medicine and the page versus center for Reproductive Medicine. The Alabama Supreme Court held that frozen non implanted embryos are children within the meaning of an Alabama state law that allows for parents to recover damages for the death of a minor child. We would now like to take a moment to recall some choice words that one Samuel Alito had for the whole country in his majority opinion overruling Roe versus Wade. So here’s one line from that opinion in Dobbs quote. Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion. End quote. Hmhm.


Leah Litman As we explained at the time, this was not even worth the paper it was printed on, and that paper was already pretty shitty. This line was never going to hold because the legal basis for Rowe, the idea that the Constitution protects some rights that are not explicitly enumerated in the text of the Constitution and may not have been recognized for all time, including in the 1800s. In state law, that idea is also the foundation of other rights, like the right to contraception and other reproductive decision making, such as access to IVF.


Melissa Murray Side note it’s also the foundation for an inclusive vision of the right to marry, including the right to marry a person of the same sex. This has real implications for a lot of things. But back to you, Leah. With the implications for IVF.


Leah Litman Plus, pregnancy and reproductive health care are complicated enough where you cannot neatly segment abortion off from other kinds of reproductive care. Again, here, IVF and this isn’t to say that Dobbs necessarily or ineluctably allows states to ban IVF, but it absolutely opened the door for them to do so and destabilize the landscape of reproductive care. And it was also clear that the movement to overrule row was about far more than just abortion. And everyone who was paying attention saw this coming. So here’s a clip from our episode. We did the Summer Dobbs was released, and this is an excerpt from our guest, Professor Michelle Goodwin.


Clip And so the real, you know, sort of tragedy of the post Dobbs reality is that you have lawmakers that are intervening in spaces where they they shouldn’t be and where they can’t be intimately involved, and where one really needs the consultation of medical providers to understand what exactly to do in the. Two spaces. So you’re right, it’s an abortion. But, you know, there’s a lot of euphemism that’s used in this space, right? With, you know, in the space of assisted reproductive technology, it’s called selective reduction. But selective reduction is abortion, right?


Leah Litman Here is a clip from another episode, this one last year with Jessica Valenti, who runs the Essential Abortion Everyday Substack.


Clip A woman in Tennessee whose state representative told her that they, could arrest IVF doctors.


Leah Litman And one more. During Justice Barrett’s confirmation hearing, she refused to say that the constitution prohibits criminalizing IVF.


Clip Your legal position, IVF treatment. And I’m not going to ask again just this last time. Criminalizing it. Well, would it be constitutional? I think there’s a clear answer. But, Senator, I’ve repeatedly said, as has every other nominee who sat in this seat, that we can’t answer questions in the abstract. That would have to be decided in the course of the judicial process with a case, some legislature would actually have to do that, and then litigants would have to come to court. There would have to be briefs and arguments in consultation with colleagues and opinion writing and consideration of precedent. So an off the cuff reaction to that would just circumvent the judicial process.


Kate Shaw So against this backdrop, enter the state of Alabama, where the state Supreme Court handed down a decision that throws into question IVF in Alabama and perhaps beyond, and does so using a line of attack that is also part of the ongoing attacks on abortion. So the plaintiffs in the Alabama case, where patients at fertility clinics who went through IVF to create frozen embryos, the clinic successfully implanted embryos in the plaintiffs did give birth to children that resulted from the embryos, but the clinic had made more than just the embryos that were successfully implanted in the plaintiffs. And that is how IVF typically works. If you’re able to, you generally make several embryos because implantation isn’t always successful, and because fertilized eggs aren’t always healthy and conducive to implantation.


Melissa Murray So there is a break in at the fertility clinic, and particularly in the part of the fertility clinic where the cryogenically preserved embryos were stored and the embryos were inadvertently destroyed. In the context of this break in, the plaintiffs say that the clinics are liable for negligently causing the wrongful death of a child. Under Alabama’s wrongful death of a minor law, and the Alabama Supreme Court agreed that frozen and implanted embryos count as, quote, extra uterine children under state law. So what to say or think about this decision? Well, two things are true here. One, the precise implications of the decisions are unclear at this point. So these decisions did not prohibit IVF in Alabama, but it also doesn’t provide a lot of guidance for doing IVF in Alabama. When you have made a statement that an implanted embryos are in fact children for purposes of state law. And so for that reason, it is safe to say that the courts novel take on this question raises serious issues about the availability of IVF treatment and the future of IVF treatment in Alabama, and that’s super concerning. Physicians aren’t going to know whether their participation in IVF is going to result in a lawsuit or civil liability because of, quote unquote, harm to extra uterine children. So this is now another landscape of incredible chaos and confusion. It’s also worth noting, and it is in the vein of we tried to tell you, Jonathan Mitchell, the architect of Texas SB 8 and Donald Trump’s most recent advocate at the Supreme Court after Dobbs brought a case on behalf of a Texas man who was suing three women who had helped his estranged wife to secure a medication abortion. And curiously, the suit was not filed under SB 8, which allows private citizens to sue those who facilitate an abortion. Instead, Mitchell and the husband filed the suit under Texas’s wrongful death statute. And that is meaningful because wrongful death statutes like the one in Alabama, like the one in Texas, are available to provide civil liability for those who negligently cause the death of a person. And as we said, when Jonathan Mitchell’s suit was filed, this was very fetal personhood forward using this wrongful death statute and this lawsuit to normalize the idea that fetuses are persons for purposes of state law.


Kate Shaw So, as we noted, IVF generates multiple frozen embryos that won’t be implanted, or at least it often does. And sometimes IVF will also result in selective reductions, which you heard Michelle Goodwin talk about in the clip we played a few minutes ago. Selective reductions are essentially abortions of implanted embryos, where perhaps more than one embryo implanted or an embryo didn’t successfully or safely implant. And in order to preserve the pregnancy or some pregnancy, a selective reduction is just necessary. And sometimes IVF will result in the destruction of embryos. So this decision at least threatens to undermine all of that, right? Undermines the ability of individuals and clinics to destroy frozen non implanted embryos, or even to perform selective reductions. And the clinic contracts here that the plaintiff signed provided for the destruction of embryos or the donation of embryos for research if they were not used in five years. They also gave abnormal embryos over for research purposes. So I think all of that is clearly thrown into question by this decision.


Melissa Murray It also raises the question of whether anodyne child abuse and child endangerment statutes can be used against those who cryogenically preserve, i.e., freeze, embryos. Because it is my understanding that you cannot put a child in a freezer. So this is very, very on brand for Alabama. You’ll recall that during the pandemic, an Alabama prosecutor charged a pregnant. Woman with child endangerment because she got into a fight with another woman while she was pregnant, and there was a lot of publicity around it. Eventually, the charges were dropped, but again, that was another effort to kind of advance this cause of fetal personhood using anodyne criminal laws.


Leah Litman And this is Alabama as Beyonce. I said, this ain’t Texas. And in Alabama, you know, the entire sorry, had to inject some levity here because this is getting real dark real quick. You know, the entire question of the availability of IVF, you know, the scope and substance of laws that are intended to protect living children are now in question. And this is teed up just a ton of issues like do frozen non implanted embryos have to be implanted at some point. They are apparently children, as Melissa noted. Can you even freeze children? Right. You aren’t supposed to freeze children, but these embryos, in order to stay alive, need to be frozen. Can you do genetic testing? Who is to say?


Melissa Murray And because this decision has raised questions about how, whether and when IVF is legal and how it can be practiced, multiple clinics in Alabama, not surprisingly, have announced a pause in IVF, including the University of Alabama at Birmingham, which is a huge IVF facility, as well as Alabama fertility specialist and center for Reproductive Medicine. And this is what happens when you change the law. It destabilizes everything, and it jeopardizes things that used to be safe and taken for granted. And it creates confusion and a lack of clarity about what is permitted going forward. So yes, maybe this decision does not end IVF in Alabama as a formal matter. Or maybe it doesn’t radically alter IVF as a formal matter in Alabama. But it has created this landscape of confusion, which, at least temporarily, has muddied the waters and made it much harder for individuals to practice this kind of assisted reproductive technology.


Leah Litman And a fair number of Republicans seem to be totally cool with this. So here’s Alabama Senator Tommy Tuberville talking with Huffington Post reporter Jennifer Bender, saying he’s all for this decision.


Clip Do you have a reaction to the Alabama Supreme Court ruling on the fact that embryos are children? Yeah, I was all for it. We need to have more kids. We need to have an opportunity to do that. And I thought this was the right thing to do. But IVF is used to have more children. And right now IVF services are paused at some of the clinics in Alabama. Aren’t you concerned that this could impact people who are trying to have kids? Well, that’s that’s for another conversation people need to have. We need more kids. We need the people to have the opportunity to have kids. What do you say to the women right now in Alabama who no longer have access to IVF or will not as a result of this. What do you say to them. Well. Well, that’s a hard one. It really is. It’s really hard. Because again, you want people to have that opportunity and. And that’s why I was telling her we need more kids.


Leah Litman And here is a clip of presidential hopeful Nikki Haley being also very fetal personhood. Curious.


Clip I mean, embryos to me are babies. So even those created through IVF, I mean, I had artificial insemination. That’s how I had my son. So when you look at, you know, one thing is to have, to save sperm or to save eggs. But when you talk about an embryo, you are talking about, to me, that’s a life. And so I do see where that’s coming from when they talk about that.


Melissa Murray And there’s also Tim Scott, who is currently auditioning to be Donald Trump’s running mate. He is, of course, the junior senator from South Carolina. And he has suggested that this issue of whether embryos are children just demands closer study.


Kate Shaw So the Alabama court decided this case on the basis of a state statute, the wrongful death of a minor law. But the court also noted that the parties to these cases, quote, have raised many difficult questions, including ones about the ethical status of extra uterine children, the application of the 14th Amendment of the United States to such children. Close quote the court just didn’t resolve those questions because it resolved them under Alabama state statutory law. But it clearly thinks there are lurking constitutional issues. And there are passages in the majority opinion, as well as the separate writing of the Alabama chief justice, which we will get to in a moment. That suggests that the court thinks that the Alabama Constitution may just prevent IVF. And that is important both because of obviously, what it would mean in terms of the availability of IVF for individuals in the state of Alabama, but also because it would mean that if the legislature came back and tried to amend the statutes to permit IVF to exclude them from these wrongful death or other related statutes, the Alabama Supreme Court might just strike those down as inconsistent with the Alabama Constitution.


Melissa Murray The Alabama chief justice wrote separately here to explain why he agreed with the court’s decision. And I’m just going to say, I don’t even know where to start with this opinion. So he writes, quote, in these cases, the court is upholding the sanctity of unborn life, including unborn life that exists outside the womb. He then went on to note that because a quote, theologically based view of the sanctity of life and quote was adopted by the people of Alabama, that theologically based view encompasses, quote, the following. God made every person in his image and quote, to which all I have to say is, has anyone remembered the Establishment Clause that still exists? Is it still a thing?


Kate Shaw The Alabama Supreme Court has a long tradition of not believing it applies to that body. Actually.


I mean like Roy Moore to the side. I thought we had gotten rid of Roy Moore, but.


Kate Shaw But his court endures. And just to underscore the religious nature of the reasoning in this opinion, the Chief Justice added, quote, life cannot be wrongfully destroyed without incurring the wrath of a holy God who views the destruction of his image as an affront to himself. This is true of unborn human life, no less than it is of all other human life. Close quote I can’t believe I’m reading an excerpt from a judicial opinion. And yet that’s where we are.


Melissa Murray And if it’s unclear about where Alabama Chief Justice Tom Parker is on all of this, on the same day that this decision was announced, Chief Justice Parker took part in an online broadcast hosted by Tennessee evangelist Johnny Law, and there Parker suggested that America was founded to be a Christian nation, and more interestingly, he discussed his own embrace of what is known as the Seven Mountains mandate, and that mandate is the belief that conservative Christians are meant to rule over seven key areas of American life, including media, business, education and government. All of this to say that we usually don’t think of courts as government actors likely to violate the Establishment Clause by imposing their own personal religious beliefs on the populace. But here we are. And the Establishment Clause, for the record, is one that the Supreme Court seems to have basically ghosted, edited out of the Constitution on the view that it really is just surplus edge like the militia clause of the Second Amendment. But if you still believe that the Establishment Clause is a thing, you’ll recall that it bars government from establishing a particular national religion. And that’s essentially what the Alabama Supreme Court chief justice is saying that Alabama did here. It adopted a particular view of religion and imported it into the state government. And that view was a theological view based on the Bible, and we are all now required to live under it, under his eye, as it were.


Leah Litman But the US Supreme Court has been extremely hostile to the Establishment Clause. It has required government funding of religious schools, engaged in some religious instruction in cases like Carson versus Macon or Espinosa versus Montana Department of Revenue. It allowed a football coach to pray on the field games, even though there were allegations that players felt pressure to join. That was Kennedy versus Bremerton School District. And Justice Thomas has said that the Establishment Clause just straight up allows states to establish. Religions. He’s also said that the court’s, quote, distorted understanding of the Establishment Clause has facilitated the repeated denigration of those who continue to adhere to traditional moral standards as outmoded at best and bigoted at worst.


Melissa Murray Suffice to say, the Supreme Court is not going to be a lot of help here. It’s also not clear that this case goes up to the Supreme Court, given that there are a lot of very specific issues of Alabama statutory and constitutional law. But if it were to get to the Supreme Court or if a similar case were to get to the Supreme Court, it’s not going to turn on a question of the Establishment Clause, because that apparently doesn’t exist anymore.


Leah Litman And as we noted last episode, you know, less than two years after Dobbs, we’ve now got the first judicial writings that pretty clearly embrace fetal personhood. You know, as we said, when Dobbs came down, Sam Alito was at your cervix, ladies. And now the Alabama Supreme Court is as well. And, you know.


Melissa Murray Is this the first one because, I mean, I think Judge Cosmetics never pressed on opinion is very fetal personhood forward. But this shows.


Leah Litman Like this is the most explicit. This is the most explicit things.


Kate Shaw This moves things further along on the path and faster, I totally agree. Groundwork rhetorically has been laid before, but I think this goes further.


Leah Litman Also in opinions by some federal court of appeals judges that cited scholarship, you know, that argued fetuses were persons. But I do think that this one is the most explicit in a meaningful way. And this is not the only kind of development along these lines for this new recurring segment.


Melissa Murray And the next potential frontier of fetal personhood seems to be pointing to the view that the federal Constitution also bans abortion. And we wanted to include in this potentially new and terrifying recurring segment on fetal personhood, some reporting about the prospects of a federal law that likely depends on what happens in the 2024 election. So The New York Times recently ran a story about what the anti-abortion movement has in the works for a potential second Trump administration. And we’ve talked a lot about the 1873 Comstock Act, which is a Victorian era law that prohibited the distribution of the moral or licentious materials through the US mail service, including materials that could be used to perform abortions.


Kate Shaw Now, obviously, the Comstock Act could not be enforced when abortion was constitutionally protected. And even aside from that, the executive branch and courts have long interpreted the law not to prohibit the mailing of materials used in abortions, so long as the mailer doesn’t intend for the materials to be used illegally. So if you listen to this podcast, you already know that this 1873 statute, the Comstock Act, has been waiting in the wings since Dobbs, and now the New York Times has reported that it is maybe more than just waiting in the wings. So that reporting quotes one Jonathan F Mitchell, architect of Texas SB eight, which basically nullified Roe versus Wade in Texas before the court overruled ro. So Mitchell, as Melissa has noted, was also the lawyer who argued that Trump was not disqualified from the ballot in the Colorado case. And Mitchell in this New York Times reporting says, quote, we don’t need a federal ban. When we have Comstock on the books. There’s a smorgasbord of options. He also says in this piece, quote, I hope he meaning Trump doesn’t know about the existence of Comstock because I just don’t want him to shoot off his mouth. I think the pro-life groups should keep their mouth shut as much as possible until the election, basically saying keep it in the cone of silence, folks.


Melissa Murray Hush money, hush money.


Kate Shaw We can’t shout it enough from the rooftops that that is the plan. The plan is to enforce Comstock if they are in a position of running the executive branch, kind of whatever happens in the courts, whatever happens in Congress, they could just revive enforcement of Comstock and essentially implement a federal abortion ban without Congress by doing that. Like that is the five alarm fire that we are in the midst of right now.


Melissa Murray And they could still also pass a federal ban on abortion. So, I mean, he says smorgusboard of options are available.


Kate Shaw They control congress. Absolutely.


Kate Shaw Yes. But even if they just get the presidency, this is what they’re going to do.


Leah Litman Well, and they will probably file cases inviting courts to take even further steps toward fetal personhood in order to use the court’s right to restrict abortion above and beyond the Comstock Act or any new federal abortion ban, as well. So these are the stakes.


Melissa Murray Making separation of powers work for you.


Leah Litman We’ve got some things to cover from the Supreme Court shadow docket. That is the decisions and orders and various stuff the court does without argument and full briefing. And there’s a lot going on here.


Melissa Murray So the court gave us some additional clues about the possible fallout of its decision in students for Fair Admissions versus Harvard. That, of course, is the 2023 affirmative action cases that invalidated race conscious admissions programs, but left open the prospect that race conscious measures might be used at the nation’s military academies.


Leah Litman So naturally, the anti affirmative action movement said, okay, let’s bring that case. And so they did. They filed a case challenging West Point’s admissions procedures.


Kate Shaw And they were denied a preliminary injunction, which means they didn’t get the bar on the admissions policies being used while they challenged the. Policies at trial. And then they sought an injunction, pending appeal, that would have prohibited West Point from using its procedures while they were challenged. And then when that didn’t work, they went to the United States Supreme Court with the same request.


Melissa Murray And the Supreme Court denied the request for an injunction. And this was reported by most mainstream media as a massive victory for affirmative action and race conscious admissions. But we wanted to be very clear with our listeners that there’s more to this decision than simply denying the request for an injunction. In fact, the court made clear that the litigants are actually more than welcome to come back to this issue in the future and to bring it back to the courts. The court wrote, quote, the record before this court is underdeveloped, and this order should not be construed as expressing any view on the merits of this constitutional question. And quote again, the court doesn’t always or even usually give reasons for denying requests for emergency relief. So it was notable that they issued that statement, making clear that going forward, maybe not this year, maybe not next year, but soon they would be more than happy to entertain this question. So don’t put down your pitchforks yet. There’s more to come.


Kate Shaw Another update on the shadow docket, and this is the rare piece of good news from the shadow docket. And that is the court’s decision not to hear a challenge to the system for admissions used in the Thomas Jefferson High School in Arlington, Virginia. So that admission system listeners might recall, because we’ve talked about it before, does not consider the race of applicants to the high school. It considers a bunch of other things test scores, extracurricular activities, performance and other methods of assessment, etc., but not race. But the admissions policy was still challenged on the grounds that the policy was designed to achieve a diverse class, i.e. that diversity was its purpose and that even that is not permitted.


Melissa Murray So we’d express concern that this case might be the court’s next frontier in challenging admissions policies that facilitate diversity in, and access to higher education. In SFA, the court made it harder to use what are called race conscious measures, that is, facially race conscious measures that would achieve diversity. Those that are explicitly designed to take into account race when attempting to generate a diverse class. So those measures, ones that consider race by itself, are not permitted. But this case invited the court to also invalidate race neutral measures, that is, measures that do not take into account race. And the idea here is that simply because they are designed to achieve a diverse class, they are unconstitutional. So basically the question presented here is, is even thinking about diversity illegal?


Leah Litman The Supreme Court thankfully turned down that effort. Justice Alito and Thomas would have taken it up because, of course they would. And Justice Alito’s dissent from the court’s decision not to take the class make clear he was mad AF about the decision to let the admissions policy stand, and he wanted to declare that they were obviously illegal. He called the Court of Appeals decision indefensible and flagrantly wrong. So on and so forth. So shout out to the four circuit judges, including Judge Toby Heaton’s separate opinion for writing a great opinion upholding Thomas Jefferson’s admissions policies.


Kate Shaw That’s how you know you got it right. And also, let’s just stop for a moment to note how rare it is for a justice to take so strong a position on the ultimate legal question in a case when the only question at the cert stage is whether to grant cert. So you can be mad af about the court not taking the case up, but to say this explicitly, what you would do with the underlying case is at least unusual.


Melissa Murray Suggests that he might have had this opinion in his back pocket in case they were going to actually take this up.


Kate Shaw Ready to be just published and sent off. Yep. And Alito more broadly, really was not having a normal one on the shadow docket last week. So, you know, in addition to this admissions case, he made a statement about the court’s decision not to hear a case about disqualifying potential jurors from a Missouri case that involved allegations of sex discrimination. So this case involved a lesbian plaintiff who said her employer discriminated against her because she was a lesbian, and that she behaved in stereotypically masculine ways.


Melissa Murray The plaintiff argued that her employer discriminated against her on the basis of sex and violation of state law, and in the course of selecting a jury to decide whether the defendant illegally discriminated against the plaintiff for being a lesbian who presented in stereotypically masculine ways, the plaintiff’s lawyer had the audacity to ask prospective jurors if they had negative views about lesbians. Specifically, the plaintiff’s lawyer asked prospective jurors if they thought that homosexuality was a sin, and several prospective jurors said, yes, they did, and the lawyer asked the court to remove those prospective jurors from the jury pool, which the court did.


Leah Litman And Sam Alito is pretty sure that removing people who were biased against lesbians from the jury pool is actually unconstitutional bias and discrimination against religion. So Alito wrote, quote, the court below reasoned that a person who still holds traditional religious views on questions of sexual morality is presumptively unfit to serve on a jury in a case involving a party who is a lesbian. That holding. Exemplifies the danger that I anticipated in Obergefell, namely, that Americans who do not hide their adherence to traditional religious beliefs about homosexual conduct will be labeled as bigots and treated as such by the government. End quote.


Melissa Murray Just chiming in here to say that Justice Thomas likely agrees with this position. And you will recall that in 2020, when the court declined to grant cert in the case of a county clerk who, for religious reasons, refused to grant marriage licenses to same sex couples. Both Justices Alito and Thomas issued a joint separate writing in which they noted their quote unquote concerns with Obergefell versus Hodges, the 2015 decision that legalized same sex marriage.


Leah Litman And as we’re talking about the spillover effects and fallout from Dobbs, like Alabama effectively ending IVF, at least temporarily. It’s worth remembering that in Dobbs itself, Justice Thomas also called on the court to later overrule Obergefell. So it seems like there are at least two votes for that position now. Justice Thomas and the author of Dobbs himself, Sam Alito and the State of Tennessee, you know, went ahead and passed a law that allows public officials to refuse to officiate same sex weddings. You know, if doing so would offend their conscious or religious beliefs. And this, too, is part of a trend of what might follow. And just brief note, this is like a long term thing. So mark your calendars for like over a year from now. But if you’re interested in hearing more about how the conservative legal movement at the court turns themselves into victims at the expense of the rest of the country, I am currently working on a book that has that as one of its running themes, and it’s called lawless and will be out next year.


Kate Shaw The problem with that topic is that you have so much new material coming in all the time, like I know when or when are you going to put the pen down? Like it’s got to be really hard.


Leah Litman I sent a note to Sam Alito asking him to hold off on any separate writings for like six months. You know, I’m sure I’m sure he’ll listen.


Melissa Murray He’s like, no Leah.


It’s going to be epic.


I got to be me.


Kate Shaw Can’t stop, won’t stop.


Melissa Murray Don’t suppress me, Leah. Like you can’t do it. Okay. And while Sam Alito is the best research assistant Leah never had, he is also concerned about discrimination only against some religions. And we wanted to be very clear about that. He specifically is very concerned about those who are faithful who have religious objections to LGBTQ equality. But we also wanted to note that there are other people who are faithful, and many of them are being subjected to absolutely horrific and disgusting attacks. So case in point is the absolutely disgusting attack ad that has been launched against Third Circuit nominee Adeel Manji, who would be the first Muslim appellate judge. We talked about Republican senators absolutely outrageous conduct at Monday’s hearing. Senators Cruz and Holly were in absolutely rare form, and they attempted to smear Manji by suggesting that he wasn’t opposed to 9/11 or the October 7th Hamas attacks. Well guess what? Judicial Crisis Network has entered the chat. Is that even still their name? It’s hard to keep up.


Leah Litman I think it is. It’s. Yeah.


Melissa Murray It’s really hard.


Kate Shaw They’re still in crisis because you just look at who is in the white House and I think it’s a crisis if there’s a Democrat in the White House.


Melissa Murray Right. If there’s a Democrat in the white House appointing people of color, definitely a crisis. Definitely a definitely a crisis. Again, JCN is one of these dark money groups that is part of Leonard Leo’s shadowy network. I’m not to be confused with the shadow docket. This is just a shadowy network adjacent to the shadow docket. But in any event, JCN launched an absolutely grotesque Islamophobic ad against Adeel Manji.


Leah Litman The ad, which we are not going to play because it is grotesque, features a gunman grabbing a woman and the planes crashing into buildings, you know, on September 11th. It then calls Mr. Manji an anti-Semite who refused to condemn efforts to teach students to hate Israel, hate America and support global terrorism. And it also says, when given opportunities to condemn these hateful views, he refused to do so. The ad specifically mentioned some Democratic senators up for reelection and then urges them to vote against Manji.


Kate Shaw And the ad is just demonstrably false. On these accounts, Manji repeatedly condemned antisemitism and terrorism and the October 7th terrorist attacks during his hearings, as Republicans shouted at him to do so. And we played those clips before. But let’s do it again here.


Clip Senator, I stated this earlier, but let me repeat it because I think it’s critically important. Do you condemn the atrocities of the Hamas terrorist? Yes, that’s what I was about to address, Senator. And if any justification, is there any justification for those atrocities? Senator, I’ll repeat myself. The events of October 7th were a horror involving the deaths of innocent civilians. That is contrary question again, is there any justification for those atrocities? That was going to be my next sentence, Senator, which is I have no patience, none for any attempts to justify or defend those events. Are you willing to denounce the center on whose board you served? Inviting a convicted terrorist, a supporter of Palestinian Islamic Jihad? By the way, Palestinian Islamic Jihad participated in the October 7th atrocities. Are you willing to condemn? They’re inviting a supporter of their to attack America and and to support the reasons for the September 11th attacks. Senator, I don’t think anyone can feel more strongly about what happened on nine over 11 than someone who was there, who saw with their own eyes, smoke billowing from there. You won’t condemn this. I’ll let him complete his answer, would you? He’s filibustering and not answering questions, so I’m going to ask him to answer the question I ask instead of giving a speech on a different topic. And Mr. Chairman, you do this all the time. When a question is going badly for a Democrat witness, you jump in and try to save the witness. He knows how to answer a question when I ask a question. He gives a speech on a different topic because he doesn’t want to answer it. My question is simple. Do you condemn this event that was celebrating Palestinian Islamic Jihad? Yes or no? You should not bully. The witnesses nor try to bully members of the committee. Asking a question is not bullying. Complete your answer please. Thank you, chair Durbin. I’ll answer your question very directly, Senator Cruz. I will condemn without equivocation any terrorism, any terrorist or any act of terrorism, or any defense of any act of terrorism. I do not know this event. I do not know anything about this event or who these people are. I’ve never heard of any of them. If someone on there is a terrorist, I condemn them.


Kate Shaw But JCN is not going to let facts get in the way of its agenda, which is to torch this guy’s nomination. And it is absolutely despicable.


Melissa Murray But we are here with receipts.


Leah Litman Yes. And we wanted to follow up on something else we’ve covered on a previous episode, actually, on the last episode, when we highlighted several pending Court of Appeals cases on LGBTQ rights. One of the cases we highlighted was a challenge to a school district’s anti-bullying policy that the district wanted to do in order to, you know, ensure that transgender students were protected from bullying as well. That case was out of Ohio, and this piece of news is also related to Sam Alito’s view that there is a constitutional right to exercise state power while harboring bias against the queer community. And it is an absolutely heartbreaking piece of news from Oklahoma. So a 16 year old non-binary student next. Benedict was reportedly severely bullied at school and the bullying ended up becoming physical. Next was beaten by other students and sustained severe head injuries. The school didn’t call an ambulance or take next to the hospital. Lexi’s Guardian contacted the school and the school suspended next for two weeks. Next went with a guardian to a medical center for treatment, after which they went to bed with a sore head and next passed away the next day before they could make it to Tulsa for treatment.


Kate Shaw We’ll be right back.


Leah Litman [AD]


Melissa Murray Okay, that was incredibly grim. And if you are looking to us for light banter, sorry. Like the news is grim. This is like go time, folks, and we’re just telling you what we’re seeing on the ground here. But there’s still stuff going on at the core. We’re still going to cover it. So let’s dig into the recaps. Last week, the court heard oral argument in Ohio versus EPA. And boy, this was a doozy. This is the case where an industry group and some states are asking the Supreme Court to put on hold a Biden administration EPA rule before any courts get to determine that the rule is illegal or invalid. That is, they want the rule paused while they challenge the rule and litigate whether or not the rule is invalid. The rule is known as the good neighbor rule, and it adopts pollution restrictions on states that are upwind from other states, that is, to prevent them from causing accumulated pollution in downwind states.


Kate Shaw Now, the lower courts here didn’t grant the challengers a stay and instead scheduled the case for briefing and argument, which is what is supposed to happen. But the challengers, rather than just pursuing the ordinary course, instead asked the Supreme Court for a stay. That is, to put the rule on hold. And the Supreme Court said, we will hear arguments on that. But as we said last time, even though the court agreed to hear arguments on this request, the request was still a pretty insane request. And again, I don’t want us to lose sight of just how anomalous it was for the debate to be happening at all at this very, very premature stage. Again, no lower court determined whether the rule was invalid. That hasn’t been fully briefed or litigated or aired. And the Supreme Court is deciding whether to pause this rule not based on full briefing, but based on some emergency filings. That turned out to be kind of quick work, and that the briefing didn’t actually spell out all the arguments that the challengers eventually, during the oral argument, found their way around, too.


Leah Litman And so, just to underscore the dynamics here, the challengers rushed off to the Supreme Court because they wanted the rule pause, but they hadn’t yet hammered out exactly why they thought the rule was illegal. So they filed some papers and then it argument came forward with, oh, and here’s a theory I’ve had some additional time to reflect on, to which Justice Kagan said, not so fast.


Clip The argument you’re making now, I don’t remember that in your application. Can you point me to where in your application I should look to get your argument? Because, you know, the way I remember your application, you very high level of generality about interdependence and collective responsibility and so forth, but you gave us really nothing to allow us to say, well, how would this have been different if it had been 13 rather than 21? What would have changed? Well, it’s your burden right now to show a likelihood of success. And I have to say, pages 18 to 21. If I took these pages and I compared it to what you’re saying now, I don’t think that I would find a whole lot of commonality.


Melissa Murray Kagan’s essentially linking the strategy to the unusual posture of the case, the fact that the parties are asking the court to pause the rule before any court has really looked into the arguments and evaluated them.


Clip I guess it does, though, suggest to me that this is an unusual posture for us to be in, and no court has looked at the kinds of questions that you’re raising here and the kinds of questions that we asked you to discuss. Not a single court has addressed that issue. And yet here we are on papers that also do not address the issue, trying to figure that out. That seems quite odd to me. And I’m wondering how you think we should do that.


Leah Litman I just have to say, Melissa, you totally caught this when you said Sam Alito has a blank space and he’ll just write in any challenger’s name there or really any arguments. It turns out it doesn’t matter who challenges a regulation or what their arguments are. The rule is that the EPA will lose and planet Earth will too, because it really does seem like a majority of the Republican justices are fine throwing out the rule on whatever general claims the challengers put in their papers and whatever arguments they can come up with now. So here’s Coach Kavanaugh explaining why he thinks the Supreme Court should maybe pause the rule. Because, you know, it’s just kind of a big deal. And everyone says they’re a big considerations on both sides. So why not just declare a rule temporarily enjoined whether or not it’s actually illegal?


Clip I agree, I agree with you about the equities of the downwind states, but there’s also the equities of the upwind states and the industry. And I don’t know how. And they’re both like major.


Melissa Murray This really feels like a new version of the major questions doctrine.


Leah Litman I mean, it is it is the court essentially saying no rule can go into effect before we Supreme Courts decide it is legal, which is an insane way to run government. And Justice Kavanaugh was so high on vibes during the argument, it was astonishing. So let’s let’s play this next clip.


Clip On an emergency stay. One of the factors is irreparable harm. I think both sides in. I’m just giving you my view. Both sides have irreparable harm. So that’s a wash. The public interest. Both sides have a strong public interest. In my view.


Leah Litman He seems to be saying this is all a wash. So why not just enjoying it and be legends? Because on one side of the ledger, you have clean air and less pollution. And on the other side, you have, I don’t know, some industry groups that don’t want pollution restrictions because it will lower their profits. It’s like, I know he loves the Coke Network talking points and like Grover Norquist, like aphorisms, but it really feels like he is just hot boxing on deregulatory. I don’t even know what.


Melissa Murray Free enterprise is a major question, Leah.


Kate Shaw It was just like it was so lawless, and it didn’t even seem to try to clothe itself in like the language of like, legal standards. It was just like, it seems really expensive and difficult for these industries to comply. So maybe no and not and. Yeah.


Melissa Murray I like your John Hart Ely paraphrase.


Kate Shaw It was. Yeah, it was. Just straight up vibes. It really was. So to get a little bit more into the details, as we talked about in our preview in unlike.


Leah Litman The court did. The court’s not concerned about any details.


Kate Shaw We on the other hand have standards and we still care about.


Melissa Murray Environmental standards but standards more generally. Correct. Correct.


Kate Shaw We have both more as but so as we talked about in our preview in this day application that they filed, the challengers were actually making two different arguments. One argument was that because some lower courts had invalidated the EPA’s rejection of other states plans, the federal plan was necessarily invalid because the federal plan was based on the idea that the state plans were invalid. So the state plans are actually valid. Maybe the federal plan is invalid, too. And then another argument was that the federal plan was invalid because it was arbitrary or too costly, etc. the usual arguments they always make against any environmental regulation. And at the Supreme Court, the Republican justices and the advocates actually kind of refashioned these two arguments into a shiny new one that they just might go with. And that new argument was that when the EPA explained why the plan was justified, they assumed it was going to apply to a certain number of states. But EPA never did the same assessment of the costs and benefits and whatnot, based on an assumption that it would only apply now to a subset of the states like 11, as opposed to 23. And that’s essentially the new version of the argument, not in the briefs, but that emerged during the oral argument.


Melissa Murray So it’s not entirely clear why that argument should actually matter. Or as Justice Sotomayor noted, this development doesn’t actually change the obligations on any state that is subject to the plan. And as Justice Kagan pointed out, it doesn’t change the fact that the federal rule would reduce pollution from upwind to down one states. So.


Leah Litman Yeah. Again, like the EPA is abiding by a framework for good neighbor rules the Supreme Court has signed off on. And yet the court seems likely to pause the rule based on the idea that the EPA didn’t sufficiently explain, like this precise kind of contingency, even though when that is the failure or a failure with an agency plan, an agency rule is allowed to go into effect. Like while the agency might just offer some additional explanation and like clean up its work, it’s just it’s a very weird posture for the courts to be having this argument in. And Justice Jackson made clear just how this entire approach to agency regulations threatens the rule of law and legal process as we know it.


Clip I mean, surely the Supreme Court’s emergency docket is not a viable alternative for every party that believes they have a meritorious claim against the government, and doesn’t want to have to comply with a rule while they’re challenging it. Yes, but everybody who has to comply with the rule, right has to spend some something, I would think, in order to do so. And what I’m a little concerned about is that really your argument is just boiling down to we think we have a meritorious claim, and we don’t want to have to follow the law while we’re challenging it. And I don’t understand why every single person who is challenging a rule doesn’t have that same set of circumstances.


Kate Shaw Right. And the Republican justices were really both sides in suggesting that because the Biden administration or down with states would seek a stay or seek emergency review of the court invalidated the rule, well, then, of course the court can do the same if no one has invalidated the rule. But the courts. Those two things are not at all the same. But I definitely left the argument feeling really pessimistic, both about a thing of this good neighbor rule and also about prospects for reasoned and principled decision making in this court in environmental cases and more broadly.


Melissa Murray Was versus EPA part of the case caption. That’s all you need to know.


Kate Shaw Exactly. That’s that’s going to be our preview recap, all of it going forward. So thank you Melissa, for seeing that. And next time we’ll spare ourselves the pain of working through these proofs, because it just doesn’t matter. All right. Onward. The court also heard argument in Bissonnette, which is the court’s most recent case about the Federal Arbitration Act. As a general rule, just by way of a little bit of background, the Federal Arbitration Act, or FAA, establishes a strong presumption in favor of arbitration agreements. It makes it really difficult to challenge arbitration clauses. But the FAA doesn’t apply to contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce. And the question here is whether that exemption includes workers who are engaged in interstate commerce, specifically truck drivers hauling goods if they work for an employer who isn’t selling transportation goods or services. So it’s not like a transport company here. The employer sells food, but the workers move that food in interstate commerce.


Melissa Murray The case was argued by the wonderful Jennifer Bennett at Gupta. Wessler, who has secured two recent wins for employees who have said that they are covered by that exemption and therefore are not subject to the FAA. And we predicted this, but Bennett did really, really well in this argument. It’s always going to be a little tough to tell where the justices are leaning, but it did seem like she had four votes here. So the three Democratic appointees seem to be very firmly in her camp. But it also seemed like Justice Barrett was there, too. And I think maybe there’s some hope that she performed well enough to secure a fifth vote here.


Leah Litman Yeah. When we previewed this case, we played some clips from Bennett’s previous arguments to highlight how great she is, and she was similarly excellent here. Here she is rebutting what I think is kind of a jerk move from Justice Kavanaugh. So let’s play the clip and then I’ll explain.


Clip So it was reassuring. I think the word narrow was used, reassuring that the holding in favor of Saxton would be narrow and would not extend to industries other than transportation industry, which that may be incorrect. But to call it like that makes no sense is a little much for me at least.


Clip Sure. And I think the gravamen, you know, the there were specific predictions maybe, but the gravamen and that answer is to know whether the Federal Arbitration Act exempts a particular class of workers. We’d have to do is go back and look in 1925 and see what these words meant. And we’ve now, you know, because it wasn’t the question presented in section that research hadn’t been done. We’ve now done that. And I think it’s very clear that in 1925, the word seamen did not mean somebody who was employed by a company that sold transportation. And I’d like to turn to that briefly, if I may. You know, every source we have, when you go back and take a look, you’ve you’ve dictionaries, case law books, statutes, other statutes, literally any piece of evidence we have confirms that the word seamen included anyone who worked aboard a vessel in furtherance of its purpose. It had nothing to do with whether an employer sold transportation.


Leah Litman So Justice Kavanaugh is basically saying here. You told us your previous win was a narrow win that wouldn’t protect many workers, and now you’re here telling me to protect some additional workers beyond the ones involved in that previous case. And, you know, dude, that’s just how lawyering works. Also, she just explain to you why her position wouldn’t cover everyone in this case. And also, it’s not her fault how your colleagues wrote the opinion and their reasoning suggests she should win here.


Kate Shaw I thought it was also. He was just, like, really nasty and also like, read quotes that were from her earlier argument but didn’t quite say like you said this to us, but said like this was said to us. It was like so passive aggressive. And then she said she was very forthright in answering and she was just like, you know.


Melissa Murray I said what I said, and I said what I said.


Kate Shaw And she did not. She was like, she was so like, gracious and, but I couldn’t believe how, like both passive aggressive and hostile he was in that interaction. But anyway.


Leah Litman When they go low, we go, hi, is Jennifer Bennett’s. m.o. It would not have been mine. I would have been like, oh, who said that? Who told that to you, bitch?


Melissa Murray I think she needs an anger translator.


Kate Shaw She’s just. Yeah, I’m working on some other level.


Melissa Murray No, I think she needs an anger translator.


Kate Shaw Okay. All right, well, we can work on catching that. Back to the specifics of that Kavanaugh question or line of questions, here’s Justice Barrett picking up on this and basically telling the lawyer on the other side, yeah, I think Bennett is just right about this. So doesn’t this mean you lose?


Clip But, Miss Lovett, the shipping Commissioner’s act, miss Bennett says that in fact, it did encompass seamen who were outside of the shipping industry. If I agree with her about that, do you lose? Well, I I would disagree with that. And if I can answer that question first and then yours Justice Barrett.


Kate Shaw So, you know, yes, Bennett was really phenomenal. And her mastery of the kind of murky early history and the like the 1920s of the way this this exception operated the nature of labor strikes and work stoppages that happened in the immediate like post-fire enactment era. I thought that was a real master class. And I think that this is a case that under any other circumstances, a majority of this court would be so hostile to that she would absolutely, definitely lose. And I don’t know what happens here, but I think there’s a real chance that she wins. And that is really saying something.


Melissa Murray You’re right about her command of the history here and I. It just sort of goes to this issue that we’ve been talking about, like how many of these advocates are having to get teched up on history to try and make arguments that appeal to these fake historians, and.


Kate Shaw Even in just a statutory case, there’s more to say. But we have obviously too much to cover. But just like all of these places where Kavanaugh at one point is just like, well, who cares really what the tech says? Weren’t they all thinking about X? And it was like this was, oh, wait a minute. And so because you never know, they might just do that. You do have to be deeply steeped.


Leah Litman It’s all a wash, Kate. It’s all just a wash because on one side you have the text and on the other hand you have an employer.


Melissa Murray And then there’s Leonard Leo stepping in to say, excuse me, sir, I’m going to take your textualist card now. And all right, let’s take a beat on another case corner post. This was the important administrative law case that is about the general rules for how long parties have to challenge administrative agencies regulations, i.e. rules made by the EPA or Homeland Security or whatever. Generally, the Administrative Procedures Act is the law that generally structures challenges to agency decisions. It says that civil suits are barred if they’re not filed within six years of when an individual is authorized to bring suit. The federal government says that that period begins when the agency announces the regulation. However, here the challengers say that the period begins when the regulation affects the entity.


Kate Shaw And the challengers. Interpretation, if it’s accepted, could open up a broad swath of existing regulations to a totally new universe of challenges. So if you’ve regulations that have been around for more than six years, but then some new legal entity is created and then that new legal entity, you know, is affected by the regulation under this theory, they would then be able to challenge even a very long standing regulation because they would be able to say, well, I wasn’t around, I wasn’t affected when the regulation was passed. So the six year period, like starts when I’m first impacted by the regulation, and we know that the conservative legal movement is very fine with creating new entities for litigation purposes. So think about the medication abortion challenge, where the group of doctors challenging if a person incorporated a new entity in Texas, and in particular in Amarillo, Texas, so they could challenge medication abortion in Judge Matthew Kacsmaryk. So this would be a very, very big deal in terms of opening up a new universe of litigation. And it is really about whether agency regulations will ever be in a safe zone, whether the law actually ever would close the period for challenging not all agency regulations, because some have their own statute of limitations baked into the statute that authorizes them. But here we’re talking about a lot of statutes where the EPA limitations period would be the applicable period.


Melissa Murray Here its Justice Jackson, who also seemed to understand the very high stakes of this dispute.


Clip Can I also be clear on the consequences of your decision? Because I guess I worry, that if you win, every agency rule in existence today would be subject to some sort of a challenge. In this way.


Melissa Murray And to be very clear, no court anywhere has adopted the challengers position i.e. no court has allowed entities to just bring suit whenever the moment a regulation affects them arises.


Kate Shaw So this is very concerning that the Supreme Court might be interested in declaring open season on a bunch of long standing regulations. But it’s in part because of some developments in administrative law and the federal courts. The federal courts are now stacked with a lot of judges who are extremely hostile to administrative agencies and agency power.


Leah Litman Here is Justice Kagan gesturing toward that.


Clip I mean, you can always find a new company, a new regulated entity. You can create a new company or a new regulated entity. If the same trade association that has had its first bite at the apple doesn’t like the answer ten years later and looks around and thinks, you know, the environment is more hospitable, the judges have changed. Let’s try again. Just create a new entity.


Kate Shaw And the rule that these challengers are advocating could potentially allow entities to challenge regulations anew in front of these newly fashioned federal courts that have these new tools at their disposal, things like the major questions doctrine. Right. In some cases, these federal courts have said they will place a thumb on the scale, at least when we’re talking about major actions against the agency. And there’s also the possibility of the court undoing Chevron or limiting it this very term. Chevron is the long standing case that tells courts to defer to agency interpretations of statutes those agencies administer. And Justice Kagan very explicitly tied this case to the pending cases challenging Chevron. Those are two cases called Lobo bright and relentless. So let’s play that clip here.


Clip Mister Slater, I want to emphasize that I’m asking you a hypothetical question. It’s a tough question. There is, obviously another big challenge to the way courts review agency action before this court. Has the has the Justice Department and the agencies can. Considered whether there is any interaction between these two challenges. And again. You know, if Chevron were. Reinforced were, affirmed, if Chevron were reversed, how does that affect what you are talking about here?


Leah Litman I have to say, I thought Justice Kagan was kind of pissed at the argument this week by, you know, between Ohio versus EPA and Corner Post. It seemed like she was saying, oh, well, now all of a sudden you have these, like, friendly federal courts, like, why even bother to go through the normal processes of litigation? And of course, you all want to invite all of these challenges to agency regulations. And regular listeners know I am always here for zero. Fox Elena Kagan. So hoping you turn it up even more, girl.


Melissa Murray ZFEK.


Kate Shaw In the clip we just played, when she did, she tell us that they’re definitely overruling Chevron in Lower Brightside?


Melissa Murray She kept saying IF, but.


Kate Shaw She explicitly says this is a hypotheticals and if question. But then what she said was kind of weird. She said if the if Chevron were reinforced or were affirmed or if Chevron were reversed and there was a part of me that was like, we reinforce like strengthened, like there’s zero chance everyone is going to be strengthened. Is that what reinforced means here? Obviously that’s not happening.


Melissa Murray I mean, Kate, you’re acting as though this hypothetical hasn’t been asked and answered like, yeah, I’m not holding my breath for the end of the term. And Chevron, like Chevron, we hardly knew you like. Sorry. You’re so like, I love your optimism, but it’s over.


Kate Shaw Yeah, I guess I think I more think that after her question that I thought, yeah, that’s probably right.


Melissa Murray So speaking of done, that was the court last week. But they have a number of big cases on the docket for this week. I’m just going to briefly mention to you that we have covered before. One is Garland versus Cargill. That is the case about bump stocks. It’s being presented as a kind of Second Amendment case by the media. But it’s really a case about the administrative state and regulation. And again, another opportunity for the court to figure out how much they love these two great tastes that taste great together with the overlay that this regulation was passed by the Trump administration. So stay tuned for that. The court is also hearing the net choice of cases, which are challenges to state laws that prevent social media companies from moderating content in particular ways and require companies to post content that they would rather take down or restrict. We have one more very special segment for you with one of our very favorite Strict Scrutiny guests. So stay tuned.




Melissa Murray So listeners, we have a very special court culture segment and we are delighted to welcome back to the pod, one of our absolute sheroes. Sherrilyn Ifill, the former president and director counsel of the NAACP Legal Defense Fund. So welcome back to the show, Sherrilyn.


Sherrilyn Ifill I am thrilled to be with all of you.


Melissa Murray I just want to know that you have been a very busy bee since stepping down from your post at LDF. You have been busy writing briefs and getting appointed to be the inaugural Vernon Jordan Endowed Chair in Civil Rights at Howard University School of Law, where you are also launching a new center on the 14th amendment.


Sherrilyn Ifill Yeah, I thought I was going to be resting a little bit. But it was not meant to be.


Melissa Murray Can’t stop, won’t stop.


Kate Shaw Well, we all need you. And this is an incredibly important and opportune moment to be launching the center that you’ve just launched. When it is clear that a proper understanding of the 14th amendment is an urgent national imperative. And one of the most vivid illustrations of that is just how much discussion there has been in recent weeks about the 14th amendment, and in particular, whether section three of the amendment disqualifies Donald Trump from federal office. And in that discussion, which obviously happened at the United States Supreme Court, it became clear that despite your excellent efforts in public education and also in briefs to the court, not everyone on the court has the proper understanding of the 14th amendment. Shocking, right and shocking.


Melissa Murray We know some folks need some continuing education here.


Sherrilyn Ifill Seriously? I’m there.


Melissa Murray Do not worry, listeners, there’s no pesky code in the middle of this episode to write down. But we did want Sherrilyn to swing by here for a little 14th amendment continuing education. So, Sherrilyn, tell us about this project and the new center that’s going to be focused on the 14th amendment.


Sherrilyn Ifill Yeah. You know, it’s funny. For years I have dreamed of, like, our profession being in a dynamic conversation about the 14th amendment, and it’s happening. I wish the circumstances were not what they are, but I will say that.


Melissa Murray That is the best silver lining of the Donald Trump presidency that anyone has ever offered.


Sherrilyn Ifill Honestly. Honestly, really. So I think it’s great. And because it’s not just that the court doesn’t know enough about the 14th amendment, it’s that most lawyers don’t. And I think that has been very apparent in the conversations we’ve been having about section three publicly. And I’ve loved the dynamic of, you know, legal scholars going back and forth about it. But the truth is, some of the most prominent voices and most of the most prominent voices in our profession, those who sit at the height of law firms and of, you know, legal punditry, most of them had never read section three before, about six months ago, if we’re being honest. And it’s not their fault, technically speaking, we don’t learn about section three of the 14th amendment in law school. When we learn about the 14th amendment, we learn.


Melissa Murray You do now.


Sherrilyn Ifill Yes, we learned section one, which which contains all the meaty stuff, the rights and, you know, equal protection. And we can talk about that in a minute. And maybe we learn about section five, which is the enforcement clause that gives, you know, Congress authority to be able to pass legislation. And it’s part of, you know, what was kind of the deliberate attempt to not only disempower but diminish the radical nature of this constitutional provision. I happen to think of it as the most important constitutional provision for the lives that we lead as modern Americans, but I think it has fallen victim to political agendas. The 14th amendment is not convenient for the political agendas of people who don’t have a progressive, multiracial vision of this country. And so that makes it not convenient to talk about or to emphasize. It also is a way of not talking about the fact that this country was founded twice, and that we were re founded after the Civil War. The project I’m working on is premised on the idea that, founders and framers are not just the legislators who sit in the room. Right. It’s, you all have had Kate Musser on her book Until Justice Has Done is masterful, and I teach it in my class. Martha Jones birthright Citizenship, you know, talks about the struggles of free blacks in the North and their contribution to dynamic ideas about citizenship. Founders and framers are the people who are struggling over these terms and are struggling over giving these terms meaning long before they ever end up in a constitution. It’s the in the decades before the Civil War, these folks are engaged in this process. Frederick Douglass is a founder. I mean, anyone who thinks he’s not a founder, it’s like insane. You know, this.


Melissa Murray Sherrilyn, the Heritage Foundation right now is like, absolutely not. We’re not doing this.


Sherrilyn Ifill Well, he’s getting.


Leah Litman More and more recognition.


Sherrilyn Ifill He is getting recognized more and more. Yeah. So. But like, Frederick Douglass is a founder and Sojourner Truth is an Elizabeth Cady Stanton is a founder. And like they were having these dynamic discussions about what it means to be a citizen, and about why just simply ending slavery wouldn’t be enough. And, and so they’re all part of the process. And I use that as the platform, as an invitation for us to see ourselves as founders and framers of the new America that this moment is compelling us to create. And the 14th amendment, I don’t see it as a as a prison. I think it’s a platform. You know, it’s a it’s a vision. It’s a radical vision. I’ve actually been talking about doing a 14th amendment project for about a decade. Anybody LDF knows? I talk about it all the time and, decided to do it when I left, not knowing that the section three case would happen. But I think we are in a powerful moment for, attention and conversation about this incredible constitutional provision.


Leah Litman So while a lack of knowledge about the 14th amendment is, as you say, kind of pervasive among the legal profession and community of lawyers more broadly, there has been a particular group of lawyers, namely those on the Supreme Court, who have been not particularly kind to the 14th Amendment and have in many ways undermined its promise and read some parts of it out of the Constitution entirely. And so part of what we wanted to do is situate the Supreme Court’s pending decision in Trump versus Magnuson, the disqualification case, and, more generally, their approach to the argument in that case, against a long and pretty appalling backdrop of the Supreme Court minimizing the 14th Amendment as a general matter. So, I guess, could you provide our listeners with some background about the court’s treatment of the 14th Amendment in cases even before this disqualification matter?


Sherrilyn Ifill Yeah, it’s a pretty, alarming history. And and one I go through with my students. The promise of the 14th amendment was betrayed by essentially three things. One was the Supreme Court, the other was congressional in action in the first half of the 20th century. And the other was violence, which played a very powerful role, role in undermining what the 14th amendment could have been. So let’s talk about the Supreme Court. You know, if I had to pick the Supreme Court’s worst decisions that derailed the promise of the 14th amendment, I would certainly start with the United States versus Cruikshank. This was the 1875 decision in which the court essentially said that, you know, these statutes that were being created to address this concerted violence, these Ku Klux Klan axes, enforcement acts to address concert, concerted violence, were very limited in nature and only could be, addressed to state action. And of course, Cruikshank case involved the Colfax massacre in Louisiana. Which is what I thought of when I saw those people climbing up the Capitol on January 6th. It reminded me of this circumstance in which black Republicans were inside the courthouse. Their candidate had won the election, white vigilantes, then Democrats were the segregationists and the and the, insurrectionists, arrived at the courthouse and attempted to, you know, kill the black people to overturn the election. So this was the case that was supposed to prosecute at least some of the whites who had engaged in that. And the Supreme Court, essentially, took away that power. And what I think it’s important to remember is that, president Grant, in insisting on the passage of enforcement acts, really was concerned about, that the role of violence. And it was largely believed that by 1872, 1873, they had the Klan on the run. There was still violence. But as an organized, organization, they were trying to hide out a little bit more and diffusing. And the Cruikshank case changed all of that. So that’s Cruikshank. Then we have the civil rights cases in 1883, the civil rights cases. This is a case, a set of cases involving, public accommodations and the refusal of black people in services, in public accommodations. This case is most famous for a scholar. Darren Hutchinson said the examination of of racial exhaustion, that is where, the Supreme Court or our society at large becomes exhausted, having a conversation that they’ve never had. And so in the civil rights cases, the Supreme Court essentially says that that kind of discrimination at theaters, at opera houses, on public accommodations is private discrimination and can’t be touched by the 14th Amendment. And Justice Bradley, writing for the court in that case, says there must come a time when the the black man must cease to be this the favorite of the laws. You know, we just have to move on. This is 20 years after slavery ends and he’s exhausted. How long, he says, must the black man be the special favorite of the laws? So that’s the civil rights cases. And think about how long it takes until the Civil Rights Act of 1960. For to end discrimination in public accommodations. After that decision. Plessy versus Ferguson. 1896. Need I say more? Enshrining Jim Crow well into the 20th century? There’s some other ones, that, you know, along the way. But the other one that, even my colleagues don’t like when I talk about. But I will say it because it’s a Warren Court decision is Brown two. You know, Brown versus Board of Education was the wonderful, powerful decision celebrating its 70th anniversary this year. Ending, segregation is violative of the 14th amendment of the Constitution and the Equal Protection Clause. And usually when courts say you have a constitutional right or you don’t have a constitutional right. That decision becomes law like, immediately. And yet the next year, the court, you know, tap the brakes in brown two and said, you know, we’re going to give this to local jurisdictions to decide how to manage desegregation, how to manage, to have time to deal with the local nature and character. And we’ll give it to local judges to try and figure this out. It doesn’t have to happen immediately. Many of you know that this actually opened up the door for a massive resistance, for time, for the creation of white segregation academies, for the closure of schools in Prince Edward County for five years. Thurgood Marshall was so outraged by Brown, too. You know, he said, what other constitutional right? You know, are you not able to receive immediately upon the Supreme Court’s decision? But those who were the people keeping the right from you are given the power to determine the pace and time. I don’t recall any order, suggesting that abortion could continue for years while local jurisdictions figured out what would be the best way to integrate it so as not to cause chaos and change expectations too suddenly. But the court did that in Brown, too. And so every time the court has, shrunk back on the promise of the 14th amendment, it has had catastrophic consequences for our democracy. That’s the reality. And so that’s the context in which this section three case being at the court, right, in which the language of the provision of section three could not be clearer. The concern of the framers about what they call the spirit of insurrection that they believed would exist not just after, the Civil War, but well into the future. Their attempt to address that, their attempt to ensure that those who, were disloyal to the country would not be able to have power, in the electoral halls to to walk away from that, I believe, is yet another, would be another unfortunate, catastrophic, Supreme Court engagement with the 14th Amendment.


Leah Litman Yeah. And I just wanted to highlight something about the first two cases. You mentioned both Cruikshank and the civil rights cases. Those are instances where the Supreme Court basically disabled Congress from attempting to enforce the promises of the 14th amendment. And this is something that the more recent court, of course, has done as well, like in cases like Shelby County versus holder. This really sticks in my craw because of the tenor of the argument in Trump versus Anderson, when you had the chief justice and other justices saying, but of course, the 14th amendment gives primary enforcement power and the primary role in effectuating to Congress when a this Supreme Court and previous Supreme courts have been extremely non deferential to Congress as it has attempted to build out the promise and edifice of the 14th amendment. So I just wanted to note that.


Sherrilyn Ifill You’re you’re absolutely right. And it’s the two things right. It’s it’s suddenly saying we can’t do it. I mean, Congress has the we intrude on Congress’s power. We dare not. Right? I mean, you have this court that’s been making this power grab, that’s been creating whole doctrines, you know, major questions, doctrine and so forth. And now suddenly they are so solicitous of Congress. And, of course, the Voting Rights Act is the perfect, the quintessential example. Shelby, how about creating a whole new test for section two and Brnovich when Congress actually provided the test, right like that, you know, so they have no problem doing that. Then the second piece is, the solicitor, the solicitous ness with which the court has engaged the rights of states, states rights. Right. But here the state of Colorado was saying, listen, we can’t put this guy on the ballot. Right?


Leah Litman Right


Sherrilyn Ifill You know that we can’t do it, right? And we’re a state and we’re in control of who shows up on our ballot. And the Supreme Court is unconcerned with, the state of Colorado’s interest in in that power.


Melissa Murray If you’re saying that the Supreme Court is inconsistent about its commitments to states rights, Sherrilyn, I really think that.


Sherrilyn Ifill Would I say that?


Kate Shaw So we’ve covered a lot of ground. And we have there’s both, of course, the pending Colorado case that the court could act on at any moment. But the center’s work obviously is about something much, much broader than that. So can you give us just a general sense of what is in store for the work that you are planning to do, using the center as a launching pad?


Sherrilyn Ifill I start smiling, as you know, as soon as I’m asked that question because I’m I’m really excited about the approach, that I’m taking to the center, which is, of course, I want to support research and scholarship and practice. But the nugget of it is to really be a place of interdisciplinary collaboration, and that collaboration is focused on a 21st century vision of American democracy, multiracial American democracy, powered by the values and the radical vision of the 14th Amendment. And so the idea is to create a place where we can do what I think this moment compels us to do, which is to do more than just make it through every moment and make it through every case. But to begin to envision, the democracy we really want. It may be that, you know, I’m on the I’m on the, on the tail end of my, more active career. And so this feels important to me now, but I have done my share of compromising. I have done my share of accepting limitation. I have done my share of deference. I have done what I had to do for my clients. And you know, that is first and foremost as an attorney. But, in so doing, I think all of us who represent clients and sometimes I will just say this to you guys, you know, I have clashed with scholars. I have clashed, you know, Melissa and I had a fight about, about, I think the Alabama case.


Melissa Murray Did we have a fight? I don’t think I didn’t think it was a fight.


Sherrilyn Ifill It was a little bit of a fight. No, no, you know what I mean? I mean, I just have these clashes with people I agree with. Right. Fundamentally, on an issue. But within the confines of litigation, there are certain different drivers, right? There’s the drivers of your client, there’s the drivers of thinking about this case, and then the next case, like, you’ve got to survive this thing and you have an obligation to people that you represent. And particularly as a civil rights lawyer, when you’re working with civil rights statutes, I always felt this keenly and still do the obligation to protect the statutes that were created at the cost of people’s lives, you know, and if I can hold on to it for one more day, you know, I’m going to try to do it right. So but that is limiting to my democratic imagination in some ways, you know, and so part of this, project is an opportunity for not just me, but for all of us to invite in those who want to engage in a process of democratic reimagination. And the part that’s most exciting is that it’s not just going to be lawyers. It really is about an interdisciplinary conversation. I think we’ve got to have a conversation about the business community and what their responsibilities are to democracy within the context of thinking about the 14th amendment, I think. A business leaders have a responsibility to our democracy. And I feel like I can say so. I can say so because they have benefited from the 14th amendment, because first of all, corporations are state created entities, so they are part of our democratic infrastructure. Secondly, the Supreme Court was kind enough not really explicitly in a decision, but recorded in a head note. And then sustained decided that corporations are persons, for purposes of or have personhood for purposes of the 14th amendment. So businesses are getting this corporations get this benefit from the 14th amendment. And yet somehow they don’t have any responsibilities that when I call them up about the Georgia voter suppression law, and you’re a corporation in that state, you’re like, we don’t do politics. So I want to have a conversation with business leaders. And I, you know, I’ve been engaging with folks at Harvard, at the business school and Harvard Law School. You know, I think that there’s a dynamic conversation to be had, with the journalism community. And I think we should be extending beyond where the 14th amendment has been traditionally used. Melissa’s work around, reproductive rights and the 14th amendment, I think is like so critical, so center. And I’m, you know, very hopeful that we will be in collaboration with Melissa and with NYU on that set of subjects. And every time I bring it up, my students like, yeah, yeah, yeah, like, that’s what they want. And I will just say the last thing is the project that I have been engaged in that’s been really exciting is, a collaboration with the Museum of Modern Art in New York. I’m a I’m a fellow at MoMA. And, stick with me for a second. When I first say this, people are like, what does that have to do with this? Well, like I asked my students in the last class to do a project with me. I ask us to think about the things that shaped our ideas about what American democracy is, or what we had hoped democracy would be. And I asked them to, go back in their minds and select something that they encountered before they were 12 years old. I decided I wanted to be a civil rights lawyer when I was eight. I saw Barbara Jordan right at the at the Watergate hearing. I saw documentaries about the civil rights movement. I saw Shirley, there were all these things that that, I encountered. I also was a huge watcher of American musicals, which, you know, we can talk about another time, but like, very much shaped my idea about, like, what this country was supposed to be or what the aspiration was supposed to be in those days. We indoctrinated students with songs freedom isn’t free and give us your tired, your poor. And so in Blue Glee Club, we sang all of these songs and they got in there, you know. And that long before I ever read a statute or provision of the Constitution, I had an idea about what this country was supposed to be, and I asked my students to do the same thing some cultural form of cultural expression, artistic expression. And, you know, I taught it, taught the course at Harvard last semester. And it’s just amazing what they came back with, you know, murals that their grandmother took them to see. You know, for one student, it was, Avatar The Last Airbender, not the movie, the comic. Right. And that made her think that young people were supposed to save the world. Right? For others, it was songs that their parents played when they were stationed abroad. It was all about art and music. And I think one of the conceits of being a lawyer, even a civil rights lawyer, is, to, to to believe that we can be successful in this work without in engaging the imagination of Americans in the project of creating this democracy that we believe is compelled by the 14th amendment. And I’m humble enough to accept that the people who are experts at imagination are not lawyers, the people who are experts at imagination, who dream worlds, who are fearless, who, create out of abstractions stories, and whose stock and trade is imagination. Our artists. And so I think we need to be in conversation with filmmakers, with visual artists, with, dance makers, you know, with, singers with with all who, help us think about what we want, what we strive for in this country. And so all of that is a way of helping us understand that the process of reimagining American democracy is an interdisciplinary one, that the 14th amendment is so rich and provides such a wonderful framework and template for us to think about doing this work together.


Melissa Murray Well, that is an amazing vision, Sherrilyn. And I love it when we fight, but I’m even more excited for the points of agreement that will be sure to come going forward from this fantastic project. So thank you so much. Sherrilyn Ifill, the inaugural Vernon Jordan Endowed Chair in Civil Rights at Howard University School of Law. Always a pleasure to have you here on the Pod.


Sherrilyn Ifill Thanks so much, I appreciate this.


Kate Shaw So now let’s shift to some final court culture. And I want to start with a quick errata on a state court issue from our last episode. So unlike the Supreme Court, we are neither final nor infallible. Sometimes we make errors. And last week we talked about an excellent opinion out of the Pennsylvania Supreme Court in a case involving a challenge to the state’s ban on Medicaid funding for abortion. And we misspelled in two ways. And we’re very grateful to a friend of the show, David Cohen, a law professor at Drexel, who also argued part of the case for bringing them to our attention. First, as we mentioned, only five of the court’s seven justices participated in the case, and here’s why. One justice was recused and one, justice McCaffery, joined the court after the case was argued. So McCaffery may not have participated in this case, but his election last fall was a hard fought one that got a lot of deserved national attention. He’s a Democrat. They have Partizan elections in Pennsylvania, and he made clear during the campaign that he does believe the state constitution protects the right to abortion. So his addition to the court is really important for future cases in which he will be able to participate. And it’s worth making one other note about the composition of the court, which is that the three justices in the majority of this five member court in the Medicaid case were all elected during a very similar push back in 2015, when a lot of attention was kind of, for the first time, really focused on the election to the Pennsylvania Supreme Court. So those three were all elected. They were all in the majority opinion in this case, and they are all up for retention elections in 2025. So important to keep our eye on those races when they come around. And then second, and this is important in Pennsylvania, a 3 to 2 decision for a seven member court is considered an opinion of the court in Pennsylvania again. So the portion of the opinion about the state Equal Rights Amendment, which held that the state constitutions era does apply to laws that burden one sex, that is, functionally a majority opinion of the court right now, which is a very big deal both on remand in this case and more broadly.


Melissa Murray It’s so wild for us to think of equal rights applying that we just totally bungled the vote count here. So our apologies, but we have to say Scotus made us do it.


Leah Litman Yeah, exactly. And we also got an additional opinion of the Pennsylvania Supreme Court that underscores the importance of the upcoming retention elections that we talked about on the last episode. And so we wanted to highlight that recent decision of the Pennsylvania Supreme Court. This one upheld a Pennsylvania zoning restriction that limits where a shooting ranges can be located. The closing of the majority opinion written by Justice Doherty, said as follows. Quote. We close by adding our voice to the ever growing chorus of courts across the country that have implored the High Court to answer some of the many questions Bruen both created and left unresolved and, quote. Bruen is the court’s most recent Second Amendment decision. Then the opinion restarts. Quote, our nation is gripped by a level of deadly gun violence our founders never could have conceived. And respectfully, some of the court’s actions in recent years have done little to quell the legitimate fears of the people and, quote, so just a story. The author of that opinion is one of the three justices who is up for the retention election in 2025. One other note so for those of you who didn’t catch it, Melissa and Kate appeared on The Daily Show with Jon Stewart to discuss the cases involving Donald Trump, so be sure to check that out if you haven’t yet done so.


Kate Shaw And we should say John said this on air at the beginning of the episode, but there was really only space at the table for two of us. And Leah’s in California and and Melissa is in town. And we had to figure out sort of logistically what made the most sense. So the table configuration plus geography is why Leah was absent.


Melissa Murray We did suggest that John get up and Leah could have his seat, but he didn’t seem interested in that. I don’t know why.


Leah Litman I appreciate your faith in me, girls.


Melissa Murray And importantly, our appearance on The Daily Show came just a day after John Oliver did a segment on Last Week Tonight, which many of our listeners brought to our attention. During that segment, John Oliver offered Justice Clarence Thomas $1 million a year, and he pimped out RV worth more than $2 million if he, quote unquote, got the F off the Supreme Court. If you haven’t watched it, it was kind of hilarious. And this is where I want to insert the gif of Janet Jackson eating chips. It’s funny because it’s true, though, right?


Leah Litman Yes, exactly.


Melissa Murray He do like a tricked out Winnebago.


Leah Litman Right?


Melissa Murray Anyway.


Kate Shaw I have to say there’s definitely some conlaw listserv. Like conlaw, professor. Listserv chatter about because John Oliver says, you know, my lawyers approved this, and he holds up a purports to be a real contract. And then some law professor chatter has been like, well, I don’t know, is this legal? Is it bribery? And to that, I just have to say, if we’re debating the nature of bribery and Supreme Court influence, I think Oliver is making his point. I think of the public. Exactly. I think it’s working as intended. And so anything I mean, anything John Oliver and others with platforms like that can do to bring attention both to Scotus generally and to some of the appalling conduct of some of the members of that court, like is just a wonderful, wonderful use of of voice and reach. And I commend John Oliver for returning to the air with this as his first segment.


Leah Litman Yeah. And John Oliver himself asked, you know, how is any of this legal? To which we say it’s the vibes sir it’s the vibes.


Melissa Murray So if y’all didn’t get enough of me today and let’s just say a little extra, Melissa never hurt anyone. You can head over to the Pod Save America feed tomorrow, where I will be stopping by to talk about my new book with my NYU colleague Andrew Weissman. It’s called The Trump Indictments The Historic Charging Documents with Commentary. It comes out tomorrow, February 27th. And to learn more about the book, or if you just want a no bullshit conversation about politics, make sure you subscribe to Pod Save America on their YouTube channel or wherever you pod. Strict Scrutiny is a crooked media production hosted and executive produced by Leah Litman, me, Melissa Murray and Kate Shaw. It’s produced and edited by Melody Rowell with audio support from Kyle Seglin and Charlotte Landes. There’s music by Eddie Cooper and production support from Madeline Herringer and Ari Schwartz. And if you haven’t already, be sure to subscribe to Strict Scrutiny on your favorite podcast app so you never miss an episode. And if you want to help other people find the show, offer them $1 million and a tricked out Winnebago. It really helps. Kidding. Please rate and reviews.


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