The Only Loser is the Public | Crooked Media
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May 23, 2022
Strict Scrutiny
The Only Loser is the Public

In This Episode

Ellen Weintraub, commissioner of the Federal Election Commission since 2002, joins Kate and Leah to break down the Supreme Court’s opinion in FEC v. Ted Cruz, an important campaign finance case [2:07]. (Commissioner Weintraub also joined us to preview the case before oral arguments– go back and listen to that episode if you haven’t!) Kate and Leah also debrief the opinion Patel v. Garland, a major immigration case with a pretty devastating result [32:45]. They also flag a grant of a habeas-related case the Court will hear next term, Jones v. Hendrix [47:23], and then try to bring their blood pressure down by catching up on various statements and speeches Justices Thomas and Alito have given recently [52:01].






Leah Litman: Hello and welcome back to Strict Scrutiny, your podcast about the Supreme Court’s rapid evisceration of government and society as we know it today. We’re going to be focused on the government part though, we’re your hosts for today. I’m Leah Litman.


Kate Shaw: And I’m Kate Shaw. Melissa Murray is away again this week. But don’t worry, she’ll be back with us soon. As our last episode indicated, things at the Supreme Court kind of ground to a halt and were completely taken over by the leaked draft majority. Opinion in Dobbs versus Jackson Women’s Health Organization. Now, as of this week, that’s no longer the case, or at least no longer completely the case. The court released two opinions in argued cases, two pretty major cases last week, and we’re going to cover those opinions as well as a notable grant. And then we have what appears to be a coordinated communications strategy by some members of the court. And let’s just say that strategy does not involve the justices keeping their heads down, letting the marshal investigate and doing the people’s business. That is emphatically not the strategy, but we will get there later in today’s episode.


Leah Litman: So the two opinions that we got this week felt a little bit like, hey, let’s slip some bad boys in there while everyone is focused on Dobbs, at least to me. You know, they’re not the biggest cases in that they’re not likely to seize headlines, but they’re extremely important opinions that very much warrant our attention. But, I mean, I’m getting ahead of things, so why don’t we just dive into the opinions now?


Kate Shaw: Okay, perfect. So the first opinion that we got is in a case called FEC versus Ted Cruz, an important campaign finance case. When we previewed the case, we were lucky enough to be joined by FEC Commissioner Ellen Weintraub. And Commissioner Weintraub was kind enough to agree to come back on the show to debrief the opinion. So, Commissioner Weintraub, welcome back to strict scrutiny. We are delighted to have you, though not delighted at the occasion for your visit.


Ellen Weintraub: Well, it is always a pleasure to speak with you ladies.


Leah Litman: Now, no surprise since the Roberts court hates campaign finance regulation almost as much as they hate abortion, the court invalidated the portion of the campaign finance law, BCRA, at issue in the case, the opinion was 6-3. The Chief Justice, Chief Justice Roberts wrote the opinion. Justice Kagan wrote the dissent. And we will get to that. Just as a reminder, Commissioner Weintraub, what’s the rule that Senator Cruz was arguing was an intolerable encroachment on his First Amendment rights?


Ellen Weintraub: The rule, it’s actually they could only challenge the statute, although an FEC rule was mentioned in the opinion. But the statute prohibited candidates from repaying themselves more than a quarter of $1,000,000 in money that was raised after the election. So if a candidate loans himself money to run, loans his campaign money, he can repay himself a quarter of $1,000,000. But if he loans more than a quarter of $1,000,000, he has to pay that back with pre-election funds. And the point of this, from the perspective of Congress, is that once you’ve won the election, you’re in a you’re in a slightly different status vis a vis your donors. They are no longer funding your campaign message. They are now just putting money back in your pocket that you had loaned to your campaign and that, Congress thought, presented a particular risk of corruption.


Leah Litman: Turns out the Supreme Court disagrees because, you know, this is an argument that everyone I think knew, you know, had a receptive audience in this court. That is the argument the Cruz campaign was making. I mean, this is how the chief justice described the court’s prior campaign finance cases in the Cruz opinion, saying we have denied attempts to reduce the amount of money in politics, see McCUTCHEON. To level electoral opportunities by equalizing candidate resources, see Bennett. And to limit the general influence a contributor may have over an elected official, see Citizens United. It’s like, Aren’t you proud of me, mom? Like, look at all of the ways I have made it harder to reduce the amount of money, influence, the appearance of corruption in politics. Like, let’s just pat ourselves on the back and take a little victory lap here.


Kate Shaw: Yeah, that string cite as though it’s not cause to like hide your head in a bag and actually something to be broadcast is really pretty stunning. But, it certainly establishes that this opinion is of a piece with those earlier cases, which is just like the Roberts court and Roberts in particular has never met with one exception involving a campaign finance regulation applicable to state judicial candidates. With that one exception, the Court has never met a campaign finance regulation that it approves of on First Amendment grounds. So, we knew we would be here. We just didn’t know exactly what route we would take.


Ellen Weintraub: Well, but the good news is they did not take the opportunity to strike down the rest of the bipartisan Campaign Reform Act, which even though it was not at all at issue in this case, some people were advocating that they just, you know, go for it. YOLO.


Leah Litman: Oh, yeah. No, Senator McConnell is just like put it out of its misery. Right? Just do the whole darn thing now.


Ellen Weintraub: Yeah, I was actually oddly relieved to read the opinion when I when I saw that, because that was my biggest fear with any campaign finance case going up before the Supreme Court that they would have this opportunity before them to do even wider damage. So we have preserved some vestiges of the law. I am I am pleased about that.


Kate Shaw: Okay. That’s helpful. I was going to ask and I do want to get into what we can read in some of the tea leaves in terms of what the majority says about other provisions of what remains of BCRA, the Bipartisan Campaign Reform Act. But before we get there. Commissioner Weintraub, you described what the scheme basically does. Justice Kagan does the same in the opening to her dissent. And we thought we would actually just read that opening because she both describes the statute and regulation that you alluded to and what they are designed to do. And I think she sort of brings to life what is animating Congress in passing this limitation. So so let’s just read that here. So here’s what Kagan says. “A candidate for public office extends a $500,000 loan to his campaign organization, hoping to recoup the amount from benefactors post-election contributions. Once elected, he devotes himself assiduously to recovering the money. His personal bank account, after all, now has a gaping half million dollar hole. The politician solicits donations from wealthy individuals and corporate lobbyists, making clear that the money they give will go straight from the campaign to him as repayment for his loan. He’s deeply grateful to those who help as they know he will be more grateful than for ordinary campaign contributions, which do not increase his personal wealth. And as they paid him, so he will pay them. In the coming months and years they receive government benefits, maybe favorable legislation, maybe prized appointments, maybe lucrative contracts. The politician is happy. The donors are happy. The only loser is the public. It inevitably suffers from government corruption.” So she sort of walks us through the logic animating, limiting the amount that this can happen. Right. And we’re saying limiting because that’s what this does. There’s no prohibition that’s categorical on repayment. There’s just a limit to the degree to which candidates who have become elected officials can solicit money that will then go directly into their pockets. And when she spells it out that way, the logic is unmistakably clear. So despite the unmistakable clarity of the logic, I think to my mind, all of our minds, the court with a straight face disagrees with that proposition. So what is the reasoning the court offers, Commissioner Weintraub?


Ellen Weintraub: Well, there is this bizarre disconnect between the world that the majority and the dissent seem to be living in. And I have to say, speaking as somebody with decades worth of experience looking at campaign finance issues, I live in the business world where money can have a corrupting influence, particularly money that goes directly into a candidate’s pocket. But the majority seems to deny that the money actually is going into the candidate’s pocket. They have this odd view where they say, Well, the money originally came out of the candidate’s pocket when he loaned it to the campaign. So you’re just giving him back what he had before, ignoring the fact that it’s no longer there is no longer in his pocket because he took it out of his pocket. And now the donors are the ones who are putting it back in his pocket. And that just does not compute at all for the majority. And I don’t I don’t get it. And and the dissent points out, you know, like everybody in the world understands this except you guys. What is the matter with you guys?


Leah Litman: Yeah, that bit was really astonishing, the idea that if you forgive a loan, you’re not making someone richer. I mean, have these people never had loans before? Do they not understand how they work? And also, as Justice Kagan said, you allow the candidate to turn a tidy profit because you can make the loan and charge interest. And it’s just yeah that bit was astonishing. But I think more broadly, you know, the majority opinion basically insists, well, this isn’t an anti-corruption statute just based on like a mind bendingly narrow definition about what corruption is. And this is very much in keeping with the opinions that the majority proudly, you know, cited Citizens United and McCutcheon basically saying, like, we greet the assertion of an anti-corruption interest here with a measure of skepticism. What are they saying? Like, what is the court’s take on? Like what corruption is and why this statute doesn’t have to deal with anti-corruption?


Ellen Weintraub: Well, this is another place where the majority is just living in a world that I don’t recognize, because democracy, according to the majority, is enhanced by this kind of favor trading. It is an it is a feature. They explicitly say it is a feature. They don’t say it’s not a bug, but that is the implication. It is a feature of democracy, one that that the majority celebrates, that people can get access and influence in return for money. Isn’t that great? That is a cornerstone of democracy. I don’t I you know, you’re asking me to explain the majority’s rationale, and I just. This may be beyond me.


Leah Litman: Yeah.


Kate Shaw: Yeah, we can we can offer a couple of excerpts, but I think we, too, will struggle to actually make it cohere because it really feels disconnected from reality. But the court does basically say, look, the provision burdens First Amendment rights. Right, as the court always says in these campaign finance cases. Right. It reaches for, you know, this kind of hollow invocation of the proposition that the First Amendment has its fullest and most urgent application to campaigns for office. And that debate on public issues should be uninhibited and robust and wide open. And I don’t think anyone disagrees with those propositions in general terms. But then to suggest that those values are advanced by allowing unlimited repayment of personal loans to campaigns, I think is where the profound disconnect.


Ellen Weintraub: After the election, after the election.


Kate Shaw: After the election has already occurred. And right, so they’re not even candidates anymore. They’re the victors. As Kagan, I think, notes very effectively. One of many very effective points she makes. Nothing purports to limit what candidates can do in terms of self-funding their campaigns. Right. So this kind of suggestion that there is actually a limitation on the amount of speech that candidates can themselves fund is simply not borne out by the way the statute works.


Leah Litman: Right. And you’re also not restricting the amount that anyone else can give to a campaign. Right. They can give all they want. This statute has nothing to do with this. All you are doing is limiting their ability to give money directly to the candidate to pay back a well. Like that’s the only restriction they can give to the campaign. The candidate can give to themselves. And still, the court says, well, this like burdens First Amendment rights because it makes it harder to raise money after an election in a way that will affect the ability to, like, pay back this particular person.


Ellen Weintraub: It burdens core political speech according to the majority, again, equating as it has on many, many occasions, money with speech. Which, you know, some people think there actually is a difference.


Kate Shaw: So maybe let’s pivot now to what this opinion signals potentially about the fate of other provisions of what remains of the federal campaign finance law. So the majority says somewhat dismissively, ah, to the extent that there are general anticorruption interest here, look like the law limits the amount that individuals can contribute to campaigns and that in and of itself is sort of enough to advance these anti-corruption interests. And Kagan seems pretty concerned. So in dissent, she basically says the majority’s argument focuses not on the restriction that Section three or four actually imposes, but on the indirect effects the provision might have. But every contribution regulation has some kind of indirect effect on electoral speech. Consider a standard contribution ceiling like that federal 20 $900 corporate like. That’s the limit right now that you can donate directly to a campaign both in the primary and in the general election. Kagan says that limit makes raising money harder and so predictably gives a campaign less money to spend. By the majority’s logic, that downstream effect would mean the contribution cap imposes a significant First Amendment burden. But as noted above, we’ve always held to the contrary. Okay. Did this make you nervous, Commissioner Weintraub? Right. Contribution limits are one of the last remaining pillars of Bechara, along obviously with disclosure, which your agency is responsible for overseeing. But is Kagan highlighting the vulnerability of those limits on the majority’s own logic or risky strategy? Or is any vulnerability already baked in at this point? And so she’s right to kind of just highlight it and sound the alarm.


Ellen Weintraub: Well, I, I think in this case and in others that we have seen recently and that we anticipate do you have to worry about the downstream effects and what’s coming next, particularly when the court writes with such bold words, she’s not saying anything that hasn’t occurred to them already. The the contribution limits have been the thing that’s been threatened to be on the chopping block for for a long time. And a lot of people are are justifiably worried about it. I’m sure she didn’t put any ideas into the other justices said that they weren’t already thinking about as they went through the litany of cases that they’ve already as as Leon pointed out, used to strike down one one provision after another in in 2000 to the Bipartisan Campaign Reform Act, sometimes known as the McCain-Feingold law, was really seen as the first real attempt in a generation to impose some limits on campaign financing in a way that would reflect the broad public concern with the potential for corruption and money in politics. With this kind of wheeling and dealing and what is being given and what is being received and what’s being promised in return for all of this money that’s being raised because which, by the way, in the last election was in the vicinity of $14 billion for which was. Literally double what was raised in spend in the preceding presidential election in 2016. We’ve never seen an increase like that. It literally doubled and who knows how much will be spent in 2024. So we’re talking about vast, vast sums of money now. The good news is that a lot of that is coming in and small donations. But there is also an enormous amount of money that is being raised in very large denominations from millionaires and billionaires. A lot of that is going through super PACs. You know, one of the side issues not raised here, but perhaps suggested by their reference to Citizens United, is that one of the issues going on on the side of this decision when we talk about, okay, they preserve the contribution limits, but in Citizens United, they open the door to these super PACs. And the way that these super PACs have evolved is causing a lot of people to feel like the contribution limits are have been largely eviscerated anyway because of all the interconnections that have been allowed to flourish between the super PACs and the principle campaign committees. And I have to say that is partially on us on the FEC, because in the 12 years since Citizens United and since super PACs have really come to play such an enormous role in our politics, I have not been able to persuade my colleagues to undertake any rulemaking to address super PACs at all at all in any way, shape or form. And and one of the aspects that I am currently very concerned about, and that has been the subject of, again, repeated degradation of of any kind of limits, has been the ways that candidates and these super PACs coordinate. So, yes, that the contribution limits to candidates are still technically on the books, but the role of millionaires and billionaires and funding super PACs and in playing enormous roles in particularly the closely contested election, really cannot be disputed at this point. So, yes, we still have contribution limits for now. Kinda. And and I guess that is something to be happy about on this bright sunny day. We can be happy for the sunshine and contribution limits still existing.


Kate Shaw: No, but it’s such a great point. And I think that the critique that you just offered is one that I have heard actually made in a fairly kind of cross ideological way, which is that it is actually I have heard Democrats and progressives make the point as well that actually with the contribution limits at this point, in a world in which so much outside money is raised and spent on elections actually are a kind of problematic vestige of a different kind of campaign finance scheme. And it would be better if more money went directly into candidate coffers rather than to these outside forces in some marginal way. Now, I don’t actually agree with that proposition, but I do think that it’s one that I have heard voice quite a bit. But for the moment, symbolically and practically, it is both important that these contribution limits, I think, remain, but also it does feel to me like some of the kind of Robert’s breadcrumbs in this. Well, I don’t know if they’re bread crumbs exactly. But there it has the feel. Some of the discussion of the contribution limits has the feel of like the first step in this deregulatory two step that the court often uses in these kind of law of democracy, not just campaign finance cases. Don’t worry, we’re not going to adjudicate challenges to partizan gerrymanders. But these independent commissions are out there and like, who knows what the court is going to do with independent commissions? Yes, we’re going to strike down the coverage formula in the Voting Rights Act. Don’t worry, section two is out there, but we’re going to eviscerate Section two in BRNOVICH. It does feel like contribution limits are out there, so don’t worry, we don’t need this, you know, repayment limitation. And then who knows what happens with contribution limits. So I think that it is a two step that is now all too familiar in this area of law, and it feels like this is that’s where this is headed. But the calculus as you just walk through so effectively, Commissioner, is somewhat complicated because Citizens United has so totally changed the finance landscape.


Ellen Weintraub: And of course, Citizens United was was a case that was not a two step at all. That was one where they reached out and seized an issue that wasn’t even before the court in order to overturn, in some respects, decades worth of precedents. So actually, it was about 100 years worth of precedents that they overturned in Citizens United on corporate direct corporate spending. So they had sometimes been very bold and sometimes I wouldn’t quite call it a two step in this area. It’s now it’s got to be at least a six step in terms of the just steady whittling away and whittling away of one provision after another. So that what was seen as this landmark law in 2002 to address the potential for corrupting money in politics has there’s now very little left of it.


Leah Litman: And one of the, I think other aspects of this opinion that has broader implications or parallels with the court’s lived democracy cases is the level of scrutiny that the court applied to the government’s justifications for the statute. So we mentioned in the opening and explaining what the statute does, it’s designed to reduce corruption, you know, the ability of people to give money that goes directly into a candidate’s pockets. And the court said the government is unable to identify a single case of. Quid pro quo corruption in this context, basically, you know, you can’t identify a specific example of that. So minimizing the risk of it or reducing the appearance of corruption just doesn’t cut it. And I think that that was notable. Like this is something we pointed out last term when the court decided, you know, Bonta, where again, the court faulted California for not being able to come up with like a specific example about where their regulation was actually needed in a particular case. And they’re doing the same thing here, but that’s like a pretty different level of scrutiny that the court applies. And like other law of democracy cases like, say, voting rights.


Ellen Weintraub: Now, I absolutely agree with that. They are the court has substituted its own judgment for that of not only the record in this case, but the lived experience of members of Congress who are, in fact, practicing politicians, who do raise funds and know a little something about what goes on behind closed doors when those funds are being raised. You know, this this demand, for the example of the quid pro quo corruption, you know, that kind of a conversation is not going to take place out loud in front of a crowd. It’s going to be a very private conversation and perhaps a little bit of implication will be involved. It might not be a direct I will give you this bag of money, if you will, then do this thing for me. You know, it’s probably going to be a little bit more subtle than that, but there are obviously going to be problems in an acquiring proof of that kind of a transaction. But the court nevertheless substituted its own judgment for, as I said, the lived experience of members of Congress who know how this world works, perhaps better than members of the judiciary do, none of whom at the moment have any political experience. It is it is not a surprise that the court took a turn toward the deregulatory after Sandra Day O’Connor, the last practicing politician who was on the court, left the court. She she had that feel for what this world is like. And I don’t think any of these justices really do. And they do require an extraordinarily high level of proof in order to justify any kind of limit on money in politics, which they do not seem to require in the voting context. As as Lia pointed out there, the hypothetical at this point, completely unproven myth about voter fraud was enough for the court to justify saying that that state legislatures could and of course, impose restrictions that would make it harder for people to vote. The the core of democracy for this court appears to be this transactional spending of money and getting influence and access with politicians and not the actual act of citizens voting.


Leah Litman: Yeah, and I think that that is also important to situate this case inside the larger debate we are having right now about while in the context of row like we’re just returning a right to the democratic process crowd. You know, Sherrilyn Ifill had a wonderful piece in the New York Review of Books about how Justice Alito statement that, like you have political power ladies and just use the democratic processes, you know, rang a little hollow given how the court has dismantled protections against voter discrimination and voter suppression in Shelby County, BRNOVICH and quite possibly Merrell versus Milligan. You know the district in case the court is set to hear next term again, just based on this entirely unfounded speculation that voter fraud might exist and uses that to say, and states can enact restrictive voting laws. And, you know, Justice Kagan’s dissent, I think, made this point in several places. You know, you read in the opening, Kate, you know, where she said the only loser is the public. It inevitably suffers from government corruption. And then in the closure of her dissent, you know, she says democracy works only if people have faith in those who govern. And the people cannot have faith in representatives who trade official acts for financial gain, she says. In discarding the statute, the court fuels non public serving, self-interested governance. It injures the integrity, both actual and apparent of the political process. And then the intro was this like angry but still resigned? Note where she says In allowing those payments to go forward unrestrained, today’s decision can only bring this country’s political system into further disrepute. And it’s just it’s sad to think about it was sad to read and to, again, like acknowledge how this case is happening together with all the others that have made our system like so skewed and unrepresentative.


Ellen Weintraub: And it is a hugely serious problem. We are really undergoing a crisis of trust in government, trust in democracy. And as Justice Kagan said, the system can’t hold if people don’t trust it. We. We are living in a world where I think, you know, a third of the population is convinced that the last election was fraudulent, although there is no evidence to back that up. Multiple lawsuits tried to assert those claims and they pretty much all got tossed out of court. The the lack of evidence just doesn’t seem to matter. And this has real world consequences. It has real world consequences when people become so disheartened that they don’t even bother to vote. Forget about the obstacles that are affirmatively placed in their way. People just give up and say, Why should I bother? Why should I bother to spend the time to go to the polling place when the system is rigged against me? And you hear this kind of language from both the left and the right? There’s concern that the system is rigged and they’re not going to be able to have an impact. And what you end up with as voter turnout declines is a less representative government, a government that that is not animated by the consent of the governed, because the governed have just, you know, given up, turned away and think that none of it matters. And this has consequences in other matters. You know, if people think the law of democracy is too esoteric. I was reading just the other day that in Australia they had 1/10 of the per capita deaths from COVID that we had in the United States. And one of the facts that people point to as to how they managed to keep it under control was that people trusted their government. They trusted it to do the right thing. And when the government said we have to do this to keep ourselves safe, they said, okay, we’re in, we’re going to do that. And it has real world consequences, life and death consequences when people lose faith in government to do the right thing for the populace. So I think this really could not be more serious.


Kate Shaw: I think that’s such a great point. And we should say we were recording this episode the night after the Pennsylvania primary in which the Republican candidate for governor will be someone who has publicly taken the position that Donald Trump was the rightful winner of the 2020 election. That’s concerning on its own. It’s concerning doubly because in Pennsylvania, the governor appoints the secretary of state who runs the state’s elections. But I think that all the points that you were just making, Commissioner, that this is not an esoteric question of campaign finance law. If the Supreme Court disables the representative institutions of government from doing even this minimal work, that will try to minimize corruption and advance, you know, public trust in government if the court won’t allow that. That is not isolated from the rest of the kind of dynamics that you are describing. That erosion of trust in government leads people to accept outlandish claims, makes governance around all manner of issues, including pandemic response much, much more difficult, causes disengagement and, you know, reduction in participation. So these things are all connected. So this isn’t just a case about Senator Ted Cruz, a.k.a. Snowflake Human wanting his name on the Supreme Court opinion because Mitch McConnell had his name on a big one. This connects in a really direct way to a lot of other kind of profound challenges to our democracy in this moment.


Leah Litman: Commissioner Weintraub, thank you again so much for joining us and for your work in this area. We always appreciate your time and we hope to have you back on what might be could be like happier occasions someday.


Ellen Weintraub: Yeah, I’d like to come back when they haven’t struck down a portion of the law that I administer. That would be good.


Leah Litman: Let’s do that. Let’s mark our calendars. Let’s mark our calendars.


Kate Shaw: Thank you so much, Commissioner.


Ellen Weintraub: Thank you.


Kate Shaw: We’ll be right back.


Leah Litman: [AD].


Kate Shaw: So let’s pivot to the next case. We wanted to debrief Patel versus Garland. Sound good?


Leah Litman: Yes. So the court also decided a major immigration case that is about the federal court’s ability to review factual issues that affect decisions involving so-called discretionary relief in immigration cases. Basically, the way the immigration system works is that there are a lot of people who are formally eligible for removal or deportation proceedings. But federal law authorizes the attorney general to grant various forms of relief from removal or deportation, like something called cancelation of removal or withholding of removal. And there are many other forms of relief available to people who might be, again, formally by law, eligible for removal or exclusion.


Kate Shaw: So those forms of relief are available to different groups of people, like people who have citizen children or people for whom removal would be a substantial hardship. And the forms of relief are not available to other groups of people. They’re not available, for example, to people with certain criminal convictions or who pose a national security threat. So the question in this case is what if an immigration judge makes a factual mistake, like just messes up the facts and uses that factual mistake to deny you discretionary relief? Can a federal court review that factual determination here? The federal government, that is, the Biden administration and the immigrant agreed that the answer is yes. A federal court can review that clear factual error. And the 11th Circuit said no. So the court appointed an amicus to defend the position that federal courts lack the authority to review these kinds of factual determinations. And by a 5-4 vote, the Supreme Court said federal courts may not review any factual determinations that relate to a denial of discretionary relief that is cited with the 11th Circuit and the amicus and against the position of both the immigrant here and the federal government. Justice Barrett wrote the majority opinion. Justice Gorsuch wrote the dissent, which was joined by the three Democratic appointees.


Leah Litman: Here’s how Justice Gorsuch described the issue in that dissent. Quote, “Today the court holds that a federal bureaucracy can make an obvious factual error, one that will result in an individual’s removal from this country. And nothing can be done about it. No court may even hear the case. It is a bold claim, promising dire consequences for countless lawful immigrants. And it is such an unlikely assertion of raw administrative power that not even the agency that allegedly aired nor any other arm of the executive branch endorses it.” So in order to make clear, again, like how this plays out, I think it’s helpful to understand the facts of this case. So the petitioner here, the immigrant, Mr. Patel, has lived in the United States for nearly three decades. He and his wife have three sons, one who is already a United States citizen, and two of whom are lawful permanent residents and spouses of United States citizens. Mr. Patel entered the country illegally when he was quite young, but in 2007 he applied for an adjustment of his immigration status to that of a lawful permanent resident. That’s what we commonly know as having a green card, but green cards are discretionary. So a few months after Mr. Patel filed the application for his green card, he sought to renew his Georgia driver’s license. There was a question on the application. Are you a U.S. citizen? And he checked, yes. But that was an error. Georgia charged him with willfully falsifying his driver’s license application, but they dropped the charges. They decided not to prosecute after concluding they lacked sufficient evidence to prove a crime. That’s partially because Mr. Patel has consistently claimed that he never intended to deceive anyone and he simply ticked the wrong box by mistake. And that’s further kind of backed up by the fact that under Georgia law, Mr. Patel was eligible to receive a driver’s license without being a citizen because he had a pending application seeking lawful permanent residence and a valid employment authorization document.


Kate Shaw: So DHS denied his green card application, saying that he had falsely represented himself to be a citizen of the United States to obtain a benefit under state law. And that’s one of the categories of individuals not eligible for a green card. Then the government decided to attempt to remove Mr. Patel, and Mr. Patel wanted the Federal Court to determine whether the Government had made a mistake in concluding that he had falsely represented himself to be a citizen in order to get a driver’s license. The immigration judge said, no, you did. You falsely represented yourself in order to get a driver’s license. But the judge was just wrong in a lot of ways. The judge said that Mr. Patel could not have obtained a Georgia driver’s license if he had disclosed that he was neither a citizen nor a lawful permanent resident, and that that was a reason to conclude that Mr. Patel intended to deceive Georgia. But that was wrong. That was not true. Mr. Patel was eligible for a driver’s license because he had a pending application. So there was an obvious error committed by the immigration judge.


Leah Litman: And again, you know, the implications of this case on these particular facts are already, you know, consequential, bad enough. But the reality is this is going to have implications in many other thousands of cases as well. You know, as Justice Gorsuch noted in the dissent, the majority’s interpretation has the consequence of denying any chance to correct agency errors in processing green card applications. And he notes, in the last three months alone, customs denied more than 13,000 green card applications and there are almost 800,000 still pending. And, you know, I guess this is what it means to be a country with due process of law where the federal agency just gets to make a mistake of fact in denying you the ability to stay here and there is nothing you can do to challenge it. In addition to just again, that bleakness. This opinion again brought home to me just how bleak the state of affairs is. I mean, the progressives, the immigrant, they won Gorsuch. They got his vote in an immigration case and still lost. And they lost to a position that even the federal government wasn’t pressing. And it’s just so, so bleak.


Kate Shaw: It’s bleak. And I think that there were a lot of people who were holding out hope that because Barrett had such a limited record as an appeals court judge, we didn’t totally knew how she stood on questions like that. So she might be, say, gettable in a case where, you know, you got Gorsuch. And I think that the accumulating evidence is that she is not credible in these kinds of cases, and that is just profoundly disheartening. On the Gorsuch point, you know, I do think it’s right that, you know, you get Gorsuch and still lose the case. Really, really bleak conclusion, although Gorsuch, I think, is in the right here. I could have done without. And I am sure that his fellow travelers in dissent in particular, like Justices Kagan and Breyer could have done without some of the like anti agency rhetoric that infused the opinion. Right. The opinion is in part about the importance of courts as a bulwark against errors that could have incredibly serious consequences for innocent individuals, but also who cannot resist taking swipes at mistakes by foolish bureaucrats like why is courts should be able to correct and the importance of checking raw administrative power. So I presume that the others in the Senate had to just like bite their tongues and join those portions of the opinion. But I am sure it was painful.


Leah Litman: I’m imagining Elena Kagan sitting at her chambers, holding her nose, like taking two shots of vodka and being like, join me Neil, like, you know, like, I’ll do this, but like, oh, you know, because like, obviously like, you don’t have like a lot of negotiating room and like negotiating power and so, like, you just do it, but oh, yikes.


Kate Shaw: But it’s like so aggressive that I almost feel like he was doing it on purpose because he knows they, like, lose their votes. And also like late in the term, they are obviously working through a bunch of incredibly important cases and sometimes you just, I guess, keep your powder dry and say, I’m going to I’m going to join those portions of the opinion. Like, for example, to revert back for a moment to our Ted Cruz conversation. It was a little weird that the chief justice like casually cites these two floor statements by individuals who voted against Bechara. Now he’s doing that in order to counter some of the legislative history relied upon by the government. But Gorsuch also didn’t notice, held his nose actually like is fine with the occasional legislative history invocation if it’s like, you know, then-Senator Sessions. I don’t know. It was really weird, but but but maybe, you know, like he had to join some stuff he didn’t agree with either. But I definitely felt for Kagan in particular in some of those portions of the opinion. One other point I wanted to make about the opinion is that it is just kind of such a puzzle to me how selective Gorsuch in particular is in his receptiveness to understanding the harm that government policy can visit upon people. Right. Like he sees it here, he sees how arbitrary and unfair it is to potentially subject this couple who’s been in the United States for decades, to removal on the basis of this innocent mistake that was fundamentally misunderstood by an immigration official. And there is just not any indication of any receptivity to harm if we’re talking about things like individuals having their votes thrown out because they were cast in the wrong precinct or who can’t get an abortion in Texas, even if they are, say, a rape victim, if they’re seven weeks pregnant, like he is able so comfortably to invoke abstract principles in those cases. Now, of course, he doesn’t write Brnovich. He joins it. But he does write the opinion in the Texas six week abortion ban case. And I just find it a puzzle I find it so difficult to understand how he is so able to kind of appreciate harm in some context and not others.


Leah Litman: I mean, it just goes to this point. It matters the justices background, it matters their life experience. It matters, you know, their circle of friends. I mean, Justice Gorsuch’s wife is a naturalized citizen. You know, he’s spoken about how that has influenced his assessment of immigration cases and obviously his background coming from the West and, you know, issues of Native American affairs that has obviously affected his view of that area of law as well. These are just kind of like basic realities about what being a judge is and what you do as a judge that people still try to deny. But, you know, it’s just, like inescapable.


Kate Shaw: Absolutely.


Leah Litman: Now. We’ll take a quick break.




Leah Litman: Okay. So we mentioned there was a notable grant. And I want to start talking about this grant now because it just has the makings of an utter disaster written all over it. So that case that the court is going to hear next term, so this is the term starting in October 2022 is Jones versus Hendrix, in which the court appears likely to make habeas law even worse than it already is. So they agreed to hear a case involving the so-called savings clause. This is going to sound a little bit technical, but we’ll explain the stakes in a second. The savings clause is a provision of federal law that allows you to file a federal habeas petition that is like challenging your conviction or confinement if the alternative remedy for challenging that federal conviction is inadequate or ineffective to do so. The question in this case is whether someone who was convicted of something that wasn’t a crime can challenge their conviction in a habeas proceeding when the alternative remedy doesn’t allow them to bring that challenge. Again, the question in this case is whether if someone is in jail for something that is determined not to have been a crime, they must stay in jail anyways. I am going to say that again. The issue is whether after the Supreme Court says you were convicted under a statute that was wrongly interpreted so we have determined that under the statute, what you did is not a crime. Can you challenge your conviction or like we determined the statute under which you were convicted is unconstitutional and therefore no valid statute criminalize your conduct. You are in jail for something that was determined not to be a crime. And the question is, can you get out?


Kate Shaw: Now look, I am no habeas expert, as you earlier. But if you ask me or like basically a billion non-lawyers that question, the answer is clearly the person obviously should not stay in jail for conduct that’s not a crime. Right? That seems clear and yet, surprise.


Leah Litman: And yet. And yet!


Kate Shaw: As your intro made clear, it seems like pretty clear that the court is going to say they do have to stay in jail. How could that be?


Leah Litman: I mean, as a court of appeals judge, none other than famed libertarian hero Neil Gorsuch pioneered that view, that, yes, you have to stay in jail when you are convicting of something that is determined not to be a crime. All of the other courts had said, well, duh, the person who was convicted of something and is sitting in jail for something that isn’t a crime can challenge their conviction. And then Neil Gorsuch comes along and is like, well, actually textualism. I am just dreading this. Like, this issue is basically the issue. I wrote my very first short law review article about and have been writing about various different ways and like shorter pieces and long pieces just because the idea that, again, you cannot challenge your federal conviction if you were convicted of something that isn’t a crime, that like no statute prohibited, it’s just wild to me. Like welcome to the freest country in the world, ladies and gentlemen, where the Supreme Court is going to rule you have to stay in jail for something that was determined to be not a crime. Stay tuned. Stay tuned.


Kate Shaw: Those two are going to get so lawyered, get so boom lawyered.


Leah Litman: Oh yeah.


Kate Shaw: Umm. Yeah, okay. So we will reserve a lot of time on the podcast next fall for this abomination, because we’re. I have a lot feelings to work out.


Leah Litman: Oh, yeah. Add this case together with the Court of Appeals case we discussed last week where, you know, police officers can arrest you for a satirical Facebook post and you can’t sue them for qualified immunity. And I guess, like, you can’t challenge a conviction for a non-existent crime either. Like, this is what we.


Kate Shaw: We overuse the term Kafkaesque, but that is literally what we were describing in both of these instances.


Leah Litman: And it’s these kinds of cases that just get under my skin when people try to say, Neil Gorsuch is great for criminal defendants because on these issues that is like what you can do when your rights have been violated. He has been horrible like so bad and again, like he is now poised to make the law worse for everybody.


Kate Shaw: And whatever does activate his sense of decency and empathy just is not present in these cases, no matter how egregious the facts.


Leah Litman: Yeah.


Kate Shaw: There we are. Okay. All right. To get our blood pressure down, to be pivot to the speaking circuit the justices Thomas and Alito have been on since last we podcasted.


Leah Litman: Let’s do it. So Justice Thomas decided to bring back the Troll World Tour for Let’s Do It Again, ladies and gentlemen, that’s what we call the justices. The court isn’t political speaking tours that they did in the wake of their decision allowing Texas’s SB eight to go into effect. And Justice Thomas, after we recorded our last episode, spoke at a conference sponsored by several GOP affiliated groups the American Enterprise Institute, the Hoover Institution, the Manhattan Institute. And he made some remarks as part of a conversation with one of his former law clerks, none other than John Yoo. So let’s dig into a few of his remarks. You know, he starts out talking about the leak.


Kate Shaw: He addressed it. He was not you know, Alito we’ll get to in a minute, was coy but revealing.


Leah Litman: Yeah.


Kate Shaw: Thomas just was happy to talk about it because he doesn’t care like “who gonna check me boo” I guess is to channel Melissa a little bit here. He doesn’t care. So he’s like, yeah, let me let’s talk about the leak. Yeah. What happened was tremendously bad. I wonder how long we’re going to have these institutions, he says, at the rate we are undermining them. He says the leak of the opinion was like kind of an infidelity. Look where we are, he says, where that trust or that belief is gone forever. And when you lose that trust, especially in the institution that I’m in, it changes the institution fundamentally. You begin to look over your shoulder. So, wow, the infidelity comparison, like there was a lot there.


Leah Litman: There is a lot there. You know, to me, this I don’t even know what to say about this part of it. You know, the infidelity part was interesting in part because, you know, there, of course, has been speculation, you know, about like whether and to what extent a justice’s spouse might be involved in this entire debacle. But honestly, like, it somehow got crazier from there.


Leah Litman: Because it’s like I think that that was like the least insane part of this conversation. And then he started talking as Adam Liptak of The New York Times reported, he drew a contrast with the court that sat for 11 years without a change in personnel before the arrival of Chief Justice Roberts. Thomas said, quote, This is not the court of that era. We actually trusted each other. We may have been a dysfunctional family, but we were a family. I mean, he is a member of the Supreme Court speaking publicly on the record, throwing shade at the chief justice. Like it’s not even shade. It’s just it’s just like a straight up read.


Kate Shaw: And especially given the unsourced but like close-to-conservative-sources at the court reporting that we’ve seen in places like The Post and The Wall Street Journal all about the kind of fundamental betrayal committed by Chief Justice Roberts in the Obamacare case. You now have somebody who is publicly taking the position that Roberts ruined the court. I think that’s basically what Thomas said. We had a good thing going for, you know, 220 years and then this guy shows up. I think that’s that’s basically what he said. Like, I could not believe he did that publicly.


Leah Litman: I couldn’t believe it either. I mean, again, you know, the previous leaks were like people close to the conservative justices have been saying there is a price to be paid for what the chief justice did. And now Justice Thomas is just coming out and saying like, that guy sucks the chief justice. I hate him. And it’s.


Kate Shaw: It has gotten ugly in there. It’s so obvious every time you see any of these glimpses, just like I cannot imagine what is happening inside the walls of 1/1 rate right now. And he addressed as well, because, again, he was happy to talk, but not. Right, not the protest at the justices houses. And he says, you would say, I’m going to quote him here, you would never visit Supreme Court justices houses when things didn’t go our way. He said we didn’t throw temper tantrums. It’s incumbent on us to always act appropriately and not to repay tit for tat. So I just want like pause on like the kind of pronouns in the, the piece of the us, them, we, they, it’s the protesters outside that we are not embodying. And so the we here is like a combination of it is like a total elision of the distinction between the conservative appointees on the court and kind of the conservative activist base. Like our activist don’t show up at homes, at least historically, and their activists do show up at homes. And it just like is a pretty explicit collapsing of the distinction between the jurists on the bench and their extensions in kind of movement politics in a way that is kind of, you know, mask removing, like, yeah, we are on a team and they are on a team. I mean, there was something almost. Maybe this is weird, but kind of like refreshing about how explicit that was in the way he identified him selves with protesters and against protesters. Like that’s it that there are two teams. We are on one. They’re on the other.


Leah Litman: Yes. No, it was extremely revealing. Also revealing the fact that he apparently doesn’t think it’s like a temper tantrum to try to throw a coup after an election whose results you are dissatisfied with. He’s like, well, we don’t go to Supreme Court justices houses, but what we do do is stormed the Capitol.


Kate Shaw: And blow up the chief of staff’s phones with insane conspiracy theories.


Leah Litman: Yes. And which we are suggesting that the former vice president and president elect should be facing a military tribunal off of Gitmo for sedition.


Kate Shaw: That’s not temper tantrums, that’s reasoned discourse. That’s what we do.


Leah Litman: Yeah.


Kate Shaw: Chanting and signs. That’s temper tantrums, accusations of sedition.


Leah Litman: Reasoned discourse.


Kate Shaw: Cool. Got it. Alright.


Leah Litman: That’s the rule of law. That’s free speech. Again, not to leave anything off the table. Justice Thomas also decided to share some thoughts on Republicans blockade of President Obama’s third nominee to the Supreme Court, Merrick Garland. He added that conservatives had never trashed a Supreme Court nominee. He said, You know, well, of course, Garland did not get a hearing, but he wasn’t trashed. You won’t see the utter destruction of a single nominee and then again, like it somehow gets crazier. Justice Thomas also said the Senate Republicans who blockaded the nomination were following a rule that President Biden had established, which is you get no hearing in the last year of an administration. I mean, like he’s just repeating Republican.


Kate Shaw: The Fox News talking point.


Leah Litman: Yes. Yes.


Kate Shaw: And I yeah. I mean, it’s you know, he he says publicly he doesn’t like take in cable news or.


Leah Litman: Right. Sure Jan. Sure Jan.


Kate Shaw: It’s literally just parroting a Fox News talking point. So, you know, again, very revealing that that’s the media ecosystem in which he resides, which of course we knew anyway. But it is just further proof of that fact.


Leah Litman: Yeah. Also indicating other media that he consumes ie. this podcast, he decided to make clear his views on story decisis, the doctrine under which courts are supposed to respect and adhere to prior precedents, saying, and I quote, “I always say that when someone uses stare decisis, that means they’re out of arguments. Now they’re just waving the white flag. And I just keep going.”


Kate Shaw: I think it’s it’s actually finally time for us to send them a stare decisis is for suckers shirt, Leah. We’ve held off.


Leah Litman: Yeah.


Kate Shaw: I think.


Leah Litman: Right.


Kate Shaw: You know to be honest, it was a little bit like us them protest or talk to me because it’s just like, you know, stare decisis is not the only thing that separates what judges do from what politicians do, but like it’s one thing that distinguishes them. And for him to say that’s not a thing that guides us, all we are doing is just enacting our preferences into law. And again, like we don’t need at this point because, you know, when you have the votes, you can do anything to pretend otherwise. So yeah, he just kind of said it.


Leah Litman: Yeah. He also took some shots at the press. We actually have a clip of the statement, so we’ll just play that clip here.


CLIP: One of the things I’d say in response to the media is when they talk about, especially early on, about the way I did my job, I said, I will absolutely leave the court when I do my job is purely as you do yours. And that was meant as a compliment, really.


Leah Litman: And that’s Justice Thomas, ladies and gentlemen, ladies and gentlemen, the aristocrats, I mean, like it was just it was quite the show, quite the show.


Kate Shaw: Justice Alito returned somewhat to the speaking circuit after turning tail and opting in the immediate wake of the leak not to attend the Fifth Circuit Conference. So he’s back. He’s showing his face is showing his youthful visage, this time to a group of people at the Antonin Scalia Law School at George Mason. He took some questions from the audience, I am sure prescreened. Right. One of them did seek to kind of elicit some comment on the dynamics inside the court right now. So the question was, I think it would be helpful for all of us to hear personally, are you all doing okay in these very challenging times? This at least as to how the question was reported by Bob Barnes at The Washington Post. Alito seems to have taken this moment to really introspect a little bit on what’s happening inside the court. And he said, and again, we don’t have video or audio of this, so I don’t exactly know the tone in which it was delivered. But he responded by saying, this is a subject I told myself I wasn’t going to talk about today regarding, you know, given all the circumstances. Okay. So then he pauses and then he says. The Court Right now we had our conference this morning. We’re doing our work. We’re taking new cases. We’re headed toward the end of the term, which is always a frenetic time as we get our opinions out.


Leah Litman: So warm, so reassuring.


Kate Shaw: So I think we can take from this that no one has put a horse’s head on anyone’s pillow. Right. Like there’s been no overt violence or intimidation, one justice to the next. But that’s kind of all we can rule out. Like it sounded pretty bad.


Leah Litman: Yeah. So Bob Barnes at The Washington Post who reported on this, wrote, quote, Alito skipped the usual boilerplate that justices tend to employ about disagreeing about the law, but remaining respectful and friendly, opting to conclude his speech with this instead, quote “So that’s where we are.”.


*Laughs *.


Leah Litman: Oh subtlety


Kate Shaw: The number of shot. Yeah. I mean, you referenced Justice Kagan taking shots to get through, signing on to the Gorsuch opinion in the Patel case. Like the number of shots that I wonder whether they’re all either taking or contemplating taking as as they make it through these like last few weeks of the term. I just.


Leah Litman: Obviously, the court recesses for the summer. You know, the justices travel. And historically, that has been a way, you know, to like decompress, hit, reset, be able to join a new, you know, kind of leaving aside what happened last term. But are three months going to be enough to get over this? Because, I mean, again, from the statements in the press, it’s clear that several members of the court haven’t gotten over how the chief justice voted in NFIB versus Sebelius when he declined to invalidate all of the Affordable Care Act. And that was ten years ago. So.


Kate Shaw: The only solution here is to cancel the term that is set to begin October 2022. Just take the year off. Let them really rest. reset..


Leah Litman: Yes. Honestly, the fate of the country. Yes, exactly. Everyone should just go on a retreat to somewhere where they like don’t have


Kate Shaw: No, no. Separate. Nott together.


Leah Litman: Oh, no, no, no, no. Yeah. Retreats to, like, different corners of the earth. But Thomas and Alito should go somewhere where there’s, like, no Internet. So they, like, can’t be talking to the press. Because that’s like, that’s not helping things.


Kate Shaw: But speaking of the press, right back to Alito speech, we actually should mention a couple of the substantive points that were raised. I think the speech mostly focused on how the court’s decision in Bostock was wrong and how Justice Scalia wouldn’t have been with the majority. Remember, like the opinions in the case, Gorsuch is majority leader’s dissent. Kavanaugh In a separate dissent, each tried to kind of claim the mantle of We are the rightful heir of Justice Scalia, like we are doing the true and correct textualism. And Alito was like, No, no, I was really I was Gorsuch is a friend, a colleague and friend, he said. So he did say something somewhat more about one member of the court. So there is that. But the decision, he continued, was, in my view, indefensible. Like he basically use this opportunity to relitigate his unsuccessful dissenting position in the Boston case. Right. Holding that that prohibition on sex discrimination in Title seven encompasses discrimination on the basis of sexual orientation and gender identity. And, you know, it’s just that passage from Alito’s speech is just like a helpful rejoinder to all of the myriad suggestions that precedents are safe in this court right now. Bostock is a statutory case like we have mostly in the kind of wake of the Dobbs leak, been talking about the constitutional precedents, which are, I think, quite explicitly imperiled by the logic of that opinion. And there is supposed to be. But see, Thomas, a rule that story decisis is super strong in statutory cases because if the court gets the interpretation of a statute wrong, the logic goes Congress can always just correct to the court and amend the statute so the court’s not really supposed to overturn itself in statutory cases. So that’s an additional hurdle to like the court ever potentially revisiting Bostock but as you can hear from these remarks, like Alito’s all in on that project if there were the votes to do it.


Leah Litman: Oh, yeah fucking Grudge Judy over here. I stole that one from Cody Rigsby people. When he said that, I was like, I love you so much, Cody. I mean, I need to get him on the podcast.


Kate Shaw: Are we working on this? We need to be working on this.


Leah Litman: You know, I want to work on this. I don’t know how to work on this, frankly, other than like liking all of his posts and like buying all of his XO, XO, Cody Peloton gear. But you know, on Twitter, I offered to send my dog Stevie, who’s adorable and the best to the Kagan, Sotomayor and Breyer Chambers to help them get through like the last few weeks. And now that I think about it more, I feel like what Justice Kagan and Justice Sotomayor and maybe Justice Breyer need, although he’s probably fine because he just like lives in his own world, what they need is like they need Cody Rigsby as like their private cheerleader, just telling them like a slay girl, slay! Like, you are that bitch.


Kate Shaw: I’m sure they consume his content and it does feel like it’s directed to you personally when you’re taking his classes. But actually you’re right. Something that is specifically customized for getting them through the next few weeks of the term, I feel like would be really welcome right now.


Leah Litman: Yeah, yeah.


Kate Shaw: The Peloton folks are doing Fleetwood Mac content right now. And I don’t know. Are you. I mean, I presume you’re.


Leah Litman: Yes.


Kate Shaw: Because Stevie Nicks.


Leah Litman: I’m a Fleetwood person.


Kate Shaw: Back then. Okay. I figured it. Did he do any of the Fleetwood Mac?


Leah Litman: He has not.


Kate Shaw: Any rides?  I did a short run yesterday. Yeah. Susie Chan run. That was good. All right, well, maybe that’s something to hope for in these dark times.


Leah Litman: Yeah.


Kate Shaw: Okay. Well, I think I’m glad we ended on on Cody. That was a light, an uplifting note to end an otherwise extremely difficult episode.


Leah Litman: Fix the wig, find your light.


Kate Shaw: Amen. All right, so we’ll leave it there. Strict Scrutiny is a Crooked Media production hosted and executive produced by Leah Litman, Melissa Murray and me, Kate Shaw produced and edited by Melody Rowell, Audio Engineering by Kyle Seglin, music by Eddie Cooper, production support from Michael Martinez, Sandy Girard and Ari Schwartz with digital support from Amelia Montooth. We’ll see you next time.