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April 03, 2023
Strict Scrutiny
The Supreme Importance of Wisconsin's Election

In This Episode

Kate and Leah host Wisconsin Supreme Court Justices Rebecca Dallet and Jill Karofsky in a live show at the University of Wisconsin Law School. On April 4th, Wisconsin voters will decide who will fill an open state Supreme Court seat, which could give liberals a majority on the high court for the first time since 2008. What issues are on the table? Abortion and voter rights, to name a few. The hosts also recap recent Supreme Court arguments.

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Leah Litman [AD]


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


Leah Litman Hi, everyone. So we recorded this episode live from Wisconsin on Thursday in the afternoon, and it just so happened that Thursday evening turned out to be a legal news smorgasbord. As a result, this episode isn’t going to cover all of the things like one A federal judge dismissing Meghan Markle’s sister’s lawsuit against her. Two, Gwyneth Paltrow prevailing in the lawsuit about who was at fault for the ski accident in which she was involved. And three, how Donald Trump finally obtained a majority of the votes of the people in the New York grand jury which indicted him. This is the first time a president or a former president has been indicted. Although President Grant was once arrested for speeding in his horse and buggy, but then released as a great Taylor Swift has said karma is a cat purring in my lap anyways will obviously be returning to these issues later on. Melissa obviously wants to discuss the Meghan Markle lawsuit and she’s got thoughts on GOOP as well, but in part because we don’t actually have the Trump indictment yet. It’s just been reported that he’s been indicted on over 30 counts. Basically, he was indicted very bigly. So we don’t know the precise charges or evidence against him, at least at the time I’m recording this. It’s also been reported that he will be arraigned on Tuesday. Basically, that means he will be appearing in court where he can enter a plea of guilty or not guilty. And the case will proceed from there, although it’s pretty rare for plea offers to be made at this stage in felony cases. And before any of this, that is the indictment and the later arraignment happened, there was likely a pre arraignment conference with the D.A., during which the D.A. probably offered the defendant access to evidence against him. And there may have been some discussions at that point about pleas and whatnot. But, you know, what is also happening on Tuesday, the election that will determine control of the Wisconsin Supreme Court and the future of democracy and so much more, not just in Wisconsin, but in the entire country. So without further ado. Hello and welcome back to Strict Scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it where your hosts today. I’m Leah Litman.


Kate Shaw And I’m Kate Shaw, and we are delighted to be coming to you today live from the University of Wisconsin, Madison Law School. Leah in the flesh, me on the zoom, but they’re in spirit.


Leah Litman Hawaii or rather the Wisconsin of the Pacific Ocean, as it’s sometimes known, was a little rough on Kate. So she had to switch to zoom at the last minute fact check.


Kate Shaw That is true. But we are so happy we were able to make this work. Anyway, thank you so much to our amazing hosts, the law school chapter of the American Constitution Society, too. Chapter President Taylor Gilbertson and the rest of the X Board, two professors, Miriam Cipher and Josh Braver, for making this all happen so smoothly and shout out to the amazing work of Miriam State Democracy Recent initiative in fostering research and dialog on state courts, state constitutions and state public law. And finally, thanks to everyone at the University of Wisconsin Law School who has made this event happen and who are in no way responsible for anything we say on today’s episode.


Leah Litman I just want to underscore that again, no one in this room is responsible for anything we say on today’s episode. We are going to spend the first part of today’s episode talking about something close to home. For our hosts, though, it should really be close to home for all of us. And that is the Wisconsin Supreme Court, where there’s a very important election going on. After that, we’ll turn to our more usual fair cases pending before the U.S. Supreme Court. And we may try for a Wisconsin tie in with the cases, though. We’ll see how we do there.


Kate Shaw But first off, because this show is all about Wisconsin, we wanted to start by highlighting our own Wisconsin ties. And I have a very deep Wisconsin roots. My mom is from Kaukauna, Wisconsin. My parents met in college here in Madison. One of my best friends hails from Milwaukee. Another of my best friends is from Chicago, but resides in Reid’s town, which is near for Rockwell, where she and her husband are making amazing natural wine and ciders at last Morris Farm and Winery. So the future of natural wine and cider is Wisconsin. You can thank me when that comes to pass. You heard it here first. Shout out also to the folks at Iroquois for reproductive justice who have been raising funds for MF Wisconsin, which is an abortion fund that has been serving Wisconsin since 1972.


Leah Litman I think I have pretty decent Wisconsin ties, so I grew up aKarofsky the border in Minnesota, attended the state fair every year, including the Princess K of the Milky Way competition, which is a competition for farmers, daughters, if you’re unfamiliar with it. I submitted to the Arts and Crafts competition every year at the State fair. I went to being down the Apple River growing up and vacationed at the Wisconsin Dells, as everyone cool does, and my closest friends went here for college, University of Wisconsin-Madison. So I’m a big fan of Madtown and Melodie, our wonderful producer, says she once went to a Brewers game. We’re working on it.


Kate Shaw All right. So without further ado, let’s get on with the show.


Leah Litman As we just mentioned, we’re starting the show with a deep dive on the Wisconsin Supreme Court, which is in the spotlight because there is a vacancy on that court and an election happening this week to fill it. FiveThirtyEight has reported that this is now the most expensive state court race in the history of the universe, or at least the planet. We’ve seen long recent pieces in The New Yorker and The New York Times and a great Michelle Goldberg column Thursday morning in The New York Times. Pod Save America was in Wisconsin a couple weeks ago for a special episode with Judge Janet. And that episode, I think, made clear that Judge Janet is like a real cool person who is also funny. Her line about the two owls in Kelly for two losses and the W in protest. DeWitt’s for a win that slap like I would have been really happy with myself if I came up with that for the podcast. So given all of this, it’s likely that you, dear listeners, have heard a lot about the Wisconsin Supreme Court maybe for the first time in recent weeks, but a lot of people may not know that much about it. So we’re going to devote at least the first segment of the show to why the Wisconsin Supreme Court election is so important and to shed some light on the institution that is right now the focus of all of this attention. We have lined up two of the very best guests we could possibly have on the topic, two incredible sitting justices on the Wisconsin Supreme Court Justice Rebecca Dallet, who’s been on the court since 2018, and Justice Jill Karofsky, who’s been on the court since 2020 when she handed Dan Kelly what was hopefully his first loss in a Wisconsin Supreme Court election. Snap’s for Justice Karofsky.


Jill Karofsky Thank you.


Leah Litman Justices. Welcome to the podcast. We are so thrilled to have you with us today.


Jill Karofsky We’re so thrilled to be here, Leah. We are superfans.


Rebecca Dallet Absolutely.


Leah Litman So Justice Karofsky is a graduate of the fine law school here at the University of Wisconsin, and she was part of the election that was the previous record holder for the most expensive jury. The actual election before becoming a judge. And then Justice. Justice Karofsky was a deputy D.A. for Dane County and assistant attorney general in the Wisconsin Department of Justice. Justice Dallet is another superstar of the Midwest before becoming a circuit judge and then justice. Justice Dallet served as a law clerk for a magistrate judge and then an assistant U.S. attorney and assistant district attorney and adjunct professor. So I’m going to try really hard not to bring down this lineup. So let’s start with the basics. Could you tell us a little bit about the Wisconsin Supreme Court? Like the composition of the court, the terms of the justices and how they’re selected?


Jill Karofsky Sure. I will take that on. I’d be happy to. There are seven justices on the Wisconsin Supreme Court and we are elected to ten year terms. Only one justice at a time can be up for election in any calendar year. So change on the Wisconsin Supreme Court can be very, very slow. In Wisconsin, as this roomful knows, and anyone who has been in Wisconsin for 20 seconds in the last several months will know that we elect our justices. We also elect all of our judges. And so we are in the middle of an election right now. It is unusual to have an open seat on the Supreme Court, which is why there is so much attention to this race. The other reason there is so much attention to this race is that currently today there is a43 conservative majority on the court. One of the conservative justices is retiring, which makes the court three three. And this race is for control, if you will, of the of the court, of the ideology of the court.


Leah Litman And the open seat just means that, you know, a sitting justice is not running for election or reelection. So the candidates in the race are not themselves current justices of the Wisconsin Supreme Court. Okay. So how about the court’s docket, like the kinds of cases you hear and the work you do?


Rebecca Dallet Yes. So we have a three tiered system in Wisconsin. We have our circuit courts, which are in the counties. Then if you want to appeal, you have an appeal as of right to our court of appeals. But after that, you have to petition our court, the highest court, for review and to for us to take the case. We take about 10% of the cases that we review. So it is a small number. We typically take cases that work its way through the system that way, all the way from the lower courts. But we also take cases through bypass of the Court of Appeals and through original jurisdiction cases. And we’ve been getting a lot of those in the past couple of years. Lastly, we also have a shadow docket similar to the U.S. Supreme Court’s shadow docket only, maybe a little shadow here. And if you want to read more about that, there’s a wonderful article in the UW Law Review written by myself and my law clerk, Matt MALESKY, who is here. And that can give you a little more information about state shadow dockets.


Leah Litman And it’s really astonishing. Like, for example, you might not even receive the orders of the court on a public website like that is how shadowy some of these shadow docket, you know, stuff works.


Rebecca Dallet We do not make our orders widely available.


Leah Litman So Justice Dallet mentioned the original petitions that are filed in the Wisconsin Supreme Court, and that refers to the category of cases that are filed in the first instance that is to begin with in the Wisconsin Supreme Court. And that’s how state Supreme courts hear some of the most important cases they hear. So in Michigan, for example, one of the original jurisdiction cases in the Michigan Supreme Court was the case that ultimately guaranteed that our reproductive justice ballot initiative actually appeared on the ballot. So we had a chance to vote on the constitutional amendment in the 2022 midterms. And Wisconsin is similar in that a lot of really important issues are filed in the first instance in the Wisconsin Supreme Court, including a major election law voting rights case involving district ing that we will talk about, you know, a little bit later in the show and a website that collects data on this has actually shown that the number of original petitions or original filings in the Wisconsin Supreme Court has actually increased, actually almost doubled over the last decade. So justices, how often does the Wisconsin Supreme Court divide on the cases that they hear?


Jill Karofsky It varies from year to year, but a43 split last year in 54% of our cases were decided four three. The year before that, it was 37%. Last year was, I think, the high watermark for four three decisions, which means really that one person’s vote is deciding what the law is in Wisconsin, because a lot of the cases we’re getting our because we’ve got a Republican legislature and a Democratic governor and they are at an impasse. And so the issue will come to to us to to decide as far as the original action petitions are concerned. Part of the reason we’ve seen so many of those is because sometimes we’ll see those cases when time is of the essence. So if you think about. Two situations. We have had a pandemic where we need to decide what the law is very, very quickly, or an election where we also need to figure out what the law is very, very quickly, because there are course deadlines for elections. And that’s the reason that you’ve seen a rise in some of those. You’ve seen a rise in original action cases and you’ve seen a rise in four, three decisions.


Rebecca Dallet It’s also self-perpetuating because the more original action cases we take, the more people ask us to take original action petitions.


Leah Litman So what will this Supreme Court election affect?


Jill Karofsky Everything. I mean, I really think it’s true. It will impact whether people in the state have access to abortion. It’s going to impact whether or not we have clean air, clean water and clean land. It’s going to impact what our legislative and congressional districts look like. It could very well impact the outcome of the 2024 senatorial race because Tammy Baldwin will be on the ballot and the 2024 presidential election. I don’t think it’s an overstatement to say that democracy itself for the state of Wisconsin and for the United States is on the line in this election.


Rebecca Dallet For everyone to remember. Three justices on our court after the 2020 election. Not only were we the only state in the country to even hear the Trump challenge to votes just in Milwaukee and Madison, but three justices on our court were willing to throw out almost a quarter million ballots, which would have potentially changed the outcome of certainly our electoral votes and perhaps the nation.


Leah Litman So we’re going to unpack several of the topics you just kind of ran through. Just to remind listeners about, you know, reproductive justice and access to abortion. Wisconsin is one of the states that has a pre-roll criminal abortion ban on the books, a law that was passed in 1849. Yes, you heard that right. 1849 that prohibits abortion without exceptions. You know, local news stories have estimated since Dobbs abortion networks have received something like on average, 200 calls a week asking for help from women in Wisconsin to help them find abortion care out of state. And we know this. And we also know that this election is going to affect abortion access, in part because of how Dan Kelly has been campaigning and the groups that have been supporting him. So Wisconsin, Right to Life, their political action committee, endorsed Kelly when they did so. They said they are only endorsing candidates who, quote, have pledge to champion pro-life values and stand with Wisconsin right to life legislative strategy. And that legislative strategy thus far has been to keep the 1849 criminal abortion ban on the books. Kelly also appeared at an event, a campaign event with Matthew True Heller, who called the murder of an abortion provider justifiable homicide and supported the creation of an anti-abortion focused militia. More on Matt True a little bit later in the show. But I think Justice Karofsky is completely right when she says this election is going to affect everything. You had a really wonderful quote in the Michelle Goldberg Times op ed that ran Thursday morning, the morning of this show where you said, In my election, we worked really hard to try to explain to people why the court matters. And I think that the U.S. Supreme Court in Dobbs made that crystal clear for everyone. You know, this is an issue, the state Supreme Court election that is going to affect, you know, people’s lives in Wisconsin and elsewhere. But as you say, this election is also about other aspects of democracy. Just a personal issue of mine and of I think the other co-hosts as well, don’t know, don’t want to speak for them. You know, reproductive justice is a democracy issue for us. It’s about self-determination, among other things. And for interested listeners who want to learn more about this, Melissa and Kate actually have a forthcoming article in the Harvard Law Review called Jobs and Democracy that expands on this. It’s not yet available on the Internets, but it is sure to be amazing.


Leah Litman [AD].


Leah Litman Now to more traditional democracy issues. And I wanted to focus a little bit here on gerrymandering. And this relates to one of the original petition cases filed in the Wisconsin Supreme Court. Before we get to that case, just a quick explainer about gerrymandering. We’ve talked about partizan gerrymandering on the show before, but to ensure people can follow along this as a stand alone discussion, I’ll just give some quick explainer. Partizan Gerrymandering is where legislators draw districts in ways that make sure or make it easier for one political party to win or to retain power, even where a majority of voters want them out. And they can do this in part by packing a bunch of voters into a few districts and then cracking. That is spreading out the remaining voters from that party into other districts and essentially diluting their votes. And this has happened in Wisconsin. You know, the United States Supreme Court wrote in one of their decisions that in 2012, Republicans in Wisconsin won 60 assembly seats out of 99 with 48% less than 50% of the statewide vote. They almost secured a two thirds majority, even though they won less than 50% of the votes. That’s what gerrymandering does. And since those maps were drawn, the GOP has never won less than 60 seats in the assembly. This is partially why, you know, journalist David Daley has called Wisconsin a democracy dessert. And Ben Wikler, chair of the Wisconsin Dems, called it an undemocratic doom loop. So with that long wind up justices, can you walk us through the litigation in your core that eventually resulted in the map that you have today in Wisconsin that is still producing these results?


Rebecca Dallet Yes. So every ten years our legislature needs to draw maps, and in this case, because of population shifts, the current maps were no longer constitutional. So the legislature drew maps and the governor did not sign those maps into law. So they were at a deadlock. And we knew that the maps were unconstitutional because of the population shifts. So the case came to our court. So at the beginning of this case, a majority of the court, four justices voted to take the case. Meanwhile, the federal court already had a case, the case, and could have easily resolved the issue. Yet we voted to take it. Then the question was, well, how are we going to do this? Were seven people right? How are we going to do fact finding? That’s what we use trial courts for, Right? But here we are with this case. We have a statute that allows for the fact finding. It allows us to appoint circuit court judges to or even appellate court judges to handle the fact finding. But we didn’t follow that statute. And we also could have at that point done what other states do and commissioned someone to help us to draw the maps. Right. Someone like Stanford Professor Nate Persily, who has done this in numerous states. But instead, we decided that we would treat this like we were ordering off of a menu and we were going to ask everyone to submit their maps. And then we were just going to choose from the menu of maps where we going to choose the legislature’s maps or the governor’s maps, or the citizen mathematicians and scientists and others. And what the majority could not accept is that we could actually be the. We could actually have those maps drawn in a way that was fair.


Leah Litman So you’re saying like redistricting, it’s like going to an Olive Garden, right? That’s how we should be.


Rebecca Dallet In Wisconsin, apparently. Yes.


Leah Litman That sounds awesome. I once got food poisoning at an Olive Garden, so hence that analogy.


Jill Karofsky Instead, what we did was and when we say we, we’re talking about the majority of our court and we’re not including the two of us and our good friend Justice and Josh Bradley, who’s in the back of the room, a majority of our court, instead of doing any sort of fact finding or getting a special special master involved or, I don’t know, following a statute that our state has for just this particular reason, we decided or they decided to make something up and they made something up. They invented something called the lease change criteria. And you can go and try to search it in the statutes. Good luck. It’s not there. And what the least changed criteria did, was it baked in the 2011 maps that were the first maps that were rigged? So now we’ve baked in the 2011 rigged maps with the least changed. It’s not in the Constitution. It was justice made to perpetuate maps by a legislature that was no longer in power because our legislature, the assembly, and they’re up for election every two years and by a governor the voters had since rejected. Those are the maps that we baked in. So we look at all the maps from the parties. And it turns out that the maps that were submitted by Governor Evers were at least change by every metric. And when we when everyone understood at the beginning of this litigation that these change meant the fewest people moving from one district to another. Right. That seems like pretty common sense if you’re going to do lease change. Right. But all of a sudden, during the course of the litigation, this change took on a new meaning. And it started to mean different things to different justices. Population deviation, splitting up local governments, municipalities. And basically, they tried to change the rules in the middle of the game. And the the analogy that many people were using during the the hearing we had in the case was you guys are probably too young to know what peanuts is, but it’s a cartoon and there’s a girl in the cartoon named Lucy. And sometimes Lucy holds a football for this dude named Charlie Brown. And Charlie Brown will come and try to kick the football and Lucy will move the football out of the way. That’s kind of what Lee’s change was. Lee’s change was the football couldn’t kick it if you wanted to. At the end of the litigation, the hearing that we had in our court, we had four members of our court who realized that these changed meant the fewer fewest number of people being moved out of a district. And four of us voted for the governor’s maps because the governor’s maps hit those metrics.


Rebecca Dallet So at this point, we thought, well, all right, we’re done. And we could not have anticipated what would have come next. It was shocking, although after listening to strict scrutiny for long enough, I guess we should all assume that what the U.S. Supreme Court does is no longer shocking. But this was shocking. And as Justice Sotomayor said in her dissent, unprecedented. And what happened at this point was that there was a shadow docket. So basically a decision coming down from the Supreme Court that had been on equal protection challenge to the governor’s maps. Now, mind you, equal protection was never raised. There was no challenge in front of us. And we were all assuming there was an assumption made that the VRA, the Voting Rights Act, applied. So this came out of the blue where now the Supreme Court said, sorry, this your maps, the governor’s maps violate the equal protection clause, and they reversed and remanded to us again on the shadow docket. And in an unprecedented way in that we had actually looked into this. We had followed Supreme Court precedent at the time, which is Cooper V Harris, which said in terms of equal protection at this stage of the map drawing, all you needed was sufficient evidence to show that these districts drawn to comply with the Voting Rights Act, and this was specifically majority minority districts in Milwaukee. All the governor needed to do was show sufficient evidence at this point. And we had said, well, they they have, and that’s the standard. So here we are. And we’re weeks away, literally weeks away from when circulation for nomination papers is going to start, that the Supreme Court hands down this travel docket decision. And all I can say is I’ve read it numerous times. I don’t understand it analytically. And the only thing that I can think of is it’s an indicator by the U.S. Supreme Court that Merrell versus Mulligan, how that’s going to come down, that the Voting Rights Act is not going to mean what they used to say. It meant I have no other way of explaining what happened.


Leah Litman Yeah, no, I mean, the Voting Rights Act is kind of in this Schrödinger’s position where it continues to exist. But the U.S. Supreme Court has basically suspended its operation because they kind of know what they’re going to do with it, which is reduce it having any teeth whatsoever, especially when it comes to redistricting. And the case that Justice D’alerte and Justice Karofsky you’re talking about is the original petition case that I was referring to earlier. You know, the redistricting case that is determining the maps in Wisconsin that exist. And, you know, just another word about how I think unprincipled the U.S. Supreme Court’s decision was typically the way redistricting works is first you draw the districts, then after the districts are drawn, there is a separate new challenge. To the extent that anyone thinks the districts violate either the federal statute, the Voting Rights Act, or the U.S. Constitution. But instead the U.S. Supreme Court said, But actually, we just like to fold it all into one because we really don’t want to insure the existence of a multiracial democracy, which is what the Voting Rights Act was there to do. So, anyway, sorry I interrupted your discussion about this case.


Rebecca Dallet No, no. And you do it much better than me.


Jill Karofsky You’re going to explain it all to us. Yeah.


Rebecca Dallet Yeah. Thank you. No, but really, what this what they really seem to be telling us is that somehow it was supposed to be race neutral when we drew the maps, which makes no sense if you’re drawing maps to comply with the Voting Rights Act. That’s where we were.


Leah Litman Famously race neutral Voting Rights Act. Right.


Rebecca Dallet Exactly. That that that’s exactly where we left off.


Leah Litman Yeah.


Jill Karofsky So the case came back to us and in a very, very short time frame, we needed to figure out what we were going to do. And I laid out the predicament we were in and the dissent, and we never should have taken this case in the first place. It should have gone to the federal courts. We never should have adopted least changed since it was unmoored from any legal requirement for redistricting. And we should have engaged, in fact, finding from the beginning because it’s really difficult to make these decisions that both Becky and Lee are talking about when it comes to the threading the needle of the VRA and the equal protection clause. You know, really the issue came down to this. It was whether or not we were going to recognize the history of racial segregation and disparity. And Milwaukee, which had restricted the African-American community from fully participating in the political process. Where are we going to recognize that? Or were we going to turn a blind eye to it, that the problem was that we hadn’t engaged in any fact finding? So it made it impossible, like I said, to figure out how to apply the VRA and the equal protection clause. And once the U.S. Supreme Court told us we had done it wrong and sent it back to us, we had some choices, but we didn’t have a lot of time. And and Justice Dowd has just alluded to that. The reason we didn’t have a lot of time is because the 2022 midterms were looming and people need to know if they’re going to run for office, what their districts are so they can get their nomination papers signed so they can get on the ballot. Remember that the primary in those elections is in is in August. So we were running up against a primary nomination paper deadline. We had choices. We were running up against the deadline. And the problem was that some of the choices that we could have engaged in would have been possible had we engaged in any sort of fact finding, had we had any evidence whatsoever. But but we didn’t. And what happened was that one of the justices flipped. He flipped his vote, which meant that a majority of our court, four justices adopted the maps that the legislature preferred, the maps that the legislature couldn’t get signed into law because Governor Evers vetoed them. The maps that showed evidence of packing and cracking minority voters. And in the end, our colleagues adopted the most gerrymandered maps in the country. Statewide elections in this case are often won by a percentage point or less. Not ours. We can 1111 we went ours by over ten points.


Rebecca Dallet Just saying, look, you.


Jill Karofsky But a lot of other people win elections by far, far narrower margins. And yet, if you look at our legislature, our legislature is 70% Republican and 30% Democrat. To say our maps are rigged is just it’s an understatement. It’s just it’s an incredible, incredible understatement.


Leah Litman And those initially gerrymandered maps that the current maps, you know, are now based on, guess who those maps were defended by Dan Kelly. You know, those maps were drawn in secret, in part with the help of the group Redknapp, which as its name suggests, was trying to draw districts in ways that secured Republican control. And Kelly was appointed to the bench by former Governor Scott Walker, probably in part to recognize the fact that he defended the gerrymandered maps, hence his nickname ANTI-democracy Dan, which I’m now trying to make happen. Anyway, so maybe we can shift to some actual election winners. Now the two of you, and maybe you can tell us, you know, how you decided to run for judicial office. You know what that decision is like and how you made it.


Rebecca Dallet All right, I’ll go first. So I decided to run for judicial office. I actually challenged Michael Gabelman. I had been a circuit court judge for ten years, watched what was going on at our Supreme Court, saw Michael Gabelman run a Willie Horton style ad to defeat my good friend Louis Butler, and decided to run against him, and he promptly left the race. So I was left with two other two other opponents. But really it was for looking at our state, looking at democracy, and looking at making a change on our Wisconsin Supreme Court. That motivated me.


Jill Karofsky I never thought about running for Supreme Court. Becky came to was in Madison more after she was elected in 2018. I was a circuit court judge here in Dane County, and we would run a lot, a lot and lunch time over the lunch hour. And we were running one day in the spring of 2019. And it was kind of like a spring day like today where it’s not really spring, it feels more like winter. And she said, Do you ever think about running for the Supreme Court? And I said, You ever think about jumping into that half frozen lake?


Rebecca Dallet But all I had to do was issue a challenge to my good friend Jill, who is a ultramarathon two three time Iron Woman finished twice. Okay. All I’m saying is that she a challenge issued. Challenge accepted.


Jill Karofsky And in the end, you know, I realized that that Dan Kelly was on the court, that he had been put on the court. You’re absolutely right. He was put on the court as a thank you for rigging the maps. And in 2011, he was an extremist on the court. Every opportunity had to rule in favor of the right wing special interests. He did so, and I thought I could give him a good run for his money. It’s not easy to unseat an incumbent. Between the time that Anne Walsh Bradley won in 1995 and Justice Rebecca Dallet won in 2018, and that 23 year period, Wisconsin did not elect a liberal justice to the Supreme Court. They reelected, of course, Justice and Walsh, Bradley and Justice Shirley Abrahamson. But they didn’t elect a liberal justice until that time. And there had only been two incumbents who had been defeated until I ran in my lifetime.


Leah Litman Wow.


Jill Karofsky So I didn’t know that statistic until the morning after the election. I’m glad I did.


Rebecca Dallet We we kept that from her on purpose.


Jill Karofsky I kept asking, doesn’t Google know?


Leah Litman So, Bibi, next, could you tell us a little bit about what it’s like to run for judicial office statewide? You know, maybe particularly as women.


Rebecca Dallet It’s not easy. I’m just going to say that I think running for statewide office in general is challenging. I think running as a woman is even more challenging. It is incredible to me the amount of comments that women get about their appearance. I had a campaign consultant who was well known in the Wisconsin markets basically say I couldn’t win because my skirt was too short and I wore pearls. And I noticed that the questions that we were asked by when we were interviewed were different than our male opponents. And that was in my race. I was able to watch Jill’s race and others and see the same dynamic.


Jill Karofsky It’s it’s a real challenge. I can’t talk about this without getting a little emotional. I’m a single mom and I was a single mom as I was running. I also was on the circuit court here in Dane County. I had I was on the criminal rotation. I was getting five new cases a day or 1700 cases a year. So I was trying to balance that. My kids, Daphne and Danny, were just warriors. I mean, they went through an awful lot in that election. I cannot tell you the number of times people said to me, Oh my God, But if you get elected, there are going to be six women on the Wisconsin Supreme Court. Six out of seven of you are going to be women and all. It’s just unbelievable. There’s there are no words except to, you know, to go back and think about what Justice Ruth Bader Ginsburg said when someone said to her, when will there be enough women on the U.S. Supreme Court? And she said, one, there are nine because there were zero, there were zero women, and no one had a problem with that. So when there are seven.


Leah Litman I am also in a judicial campaign myself. Right now I am campaigning to be a judge on RuPaul’s Drag Race. So I’m on my drag Race judge era. Okay, Well, thank you. Thank you. Cool. Zero progress made, but challenge accepted, as they say. So can you talk to us about how you relate to your colleagues? You know, especially during turbulent times like these, you know, when you’re in the middle of a huge election?


Rebecca Dallet Well, I have to say, having Jill on the court has been wonderful for all kinds of reasons, but a lot of it is her sense of humor. I think I think getting people to relate on a level that is not talking about work. We just had a march Madness poll. I won. But but really just bringing people to a level of talking about something other than work and laughing, you know, even though sometimes we don’t feel so much like laughing.


Jill Karofsky But I think it’s I think it would be really interesting if there are any budding sociologists out there to do some research on multi-member courts, because if you think about our court or any any Supreme Court around the country, including the U.S. Supreme Court, you know, for us, we have seven members. U.S. Supreme Court obviously has nine. But you’re pulling together in our instance, it’s it’s seven people who are crazy enough to run for statewide office who then had the good fortune and the fortitude and the temerity to win that office. And everyone is has has the equal amount of power in that room. And my first year, I wasn’t really sure what my job was when the seven of us were together. I didn’t know if my job was to make a case like I had done as an attorney, or whether my job was to just sit and listen and try to be persuaded by what my colleagues were doing. But it was it was frustrating for me not to be able to figure out what I was supposed to do. And after my first term, it occurred to me that my job was to be curious. My job was to be curious, especially when I disagreed with someone else on the court that I knew I had done my job. If I could listen to them and understand them. I didn’t have to agree with them, but I had to understand them enough to be able to go back into my chambers and explain to my clerks, Liz and Katie, who’s here today. This is this is what the justices I don’t agree with had to say. And this is their analysis and this is their reasoning.


Rebecca Dallet And I think that’s helpful, too. When you ask questions of our colleagues and that’s something also that I’ve learned as we’ve gone along, because then it puts it to them to try to explain and perhaps they start to question. We’re not going to persuade people necessarily, but maybe they question how how to reason through it. And maybe our questions cause them to think a little bit harder, maybe write it a little bit clearer and it’s not. Well, we can just dissent.


Jill Karofsky On that by asking questions like, I’m trying to understand where you’re coming from, or I understood point A and point B, I just don’t see how point C plays into your analysis. And I’ve also learned to say I’m going to push back. Now. Can I push back? Can I ask you a question so that they know that it’s going to come? And I’m not trying to trying to blindside them because I really do want to understand where it is that they’re coming from. And that’s my job.


Leah Litman So I just wanted to highlight two things that are happening, you know, in the midst of this election that is happening, you know, while the state Supreme Court is still doing its business, you know, as we mentioned, this is an open seat. And the justice who is retiring, Justice Rogan, sat her daughter, Judge Ellen Brostrom, is also a judge and is a judge on the Milwaukee County Circuit Court. And she Judge Brostrom recently endorsed judge proceedings, saying that Dan Kelly was unfit to hold a seat on the Wisconsin Supreme Court because Judge Bergstrom wrote, Kelley helped the conspiracy related to the 2020 election, you know, working to overturn the 2020 election. By contrast, another one of the currently sitting justices, Justice Rebecca Bradley, has been out stumping for Dan Kelly. I’ve actually read some of Justice Bradley’s work on this show before. But just to remind listeners, she is the author of Tie in versus Wisconsin Election Commission, which is the decision that in addition to representing some pretty tortured statutory interpretation, declared ballot drop boxes, illegal and ballot return assistance illegal as well. This is also the opinion that compared the 2020 presidential election to elections conducted by Saddam Hussein, Kim Jong UN and Kim Jong Il and North Korea and Bashar al Assad in Syria and Raul Castro in Cuba, just like for good measure. This is very normal shit, as they say. But these are the people stumping for Dan Kelly or, you know, as I like to call him, anti-democracy Dan. And you know, this in part helps to underscore the stakes of the election because, as Justice Dallet noted, three of the four justices on the Wisconsin Supreme Court would have thrown out almost 200,000 votes in the 2020 election in Dane County and Milwaukee. They did want to highlight a few just additional smattering of things related to this ongoing election, as I noted previously. Dan Kelly has been appearing at campaign events with Matt Truesdell, who, in addition to calling for some sort of anti-abortion militia, has likened mask mandates to the Holocaust. He’s also done a radio interview who asked him why conservatives and right wingers should support him and whether they should be concerned that he’d rule in their favor. To which he responded, I don’t think you have to worry about that with me, you know, stares back in judicial ethics and impartiality. There was also a piece just Thursday morning in the Milwaukee Journal Sentinel about an ad that was released by a superPAC supporting Kelly. The ad had criticized Judge Gannett for a sentence she handed down in a sexual assault case, which the ad suggested was too lenient. Part of the narrative that Judge Janet is somehow soft on crime. Melody maybe you can insert a dog whistle noise here, but the victim in the case told the paper that she had no problem with the sentence in the case and was 100% fine with it, that the ad contained inaccuracies and that she felt retraumatized by the ad, which has caused her to readjust her life. So pretty grody anyways. Justices.


Jill Karofsky Thank you so.


Leah Litman Very much for appearing on the show with us. This has really been an honor to have you on.


Jill Karofsky Thanks, Lee. It’s been great.


Rebecca Dallet Thanks for having us, Leah.


Leah Litman [AD].


Leah Litman We are going to pivot now to some of the cases that the court is considering. And we will bring Kate back in for this portion of the episode. The Supreme Court heard a bunch of federal criminal cases that I’m very passionate about, the fact that I was still willing to spend half the show, likely more than half the show talking about the Wisconsin Supreme Court election should tell you something about how important that election is.


Kate Shaw That election is so important and those justices are so amazing. That segment is difficult to follow, but we will do our best. So first up, in terms of cases that the court recently heard, is United States versus Hanson, a case we previewed a couple of episodes ago about a federal law that criminalizes encouraging unlawful immigration and whether that law violates the First Amendment. This issue was previously before the court in 2020 in a case called Sentencing. SMITH But the court didn’t decide it then. It’s not clear the justices have achieved any additional clarity on how the matter should be resolved since then, although I’m not sure they’ll be able to avoid it entirely here, because there’s no obvious off ramp as there was Ensign and Smith.


Leah Litman Okay. So do you want to share what the Wisconsin hook to United States versus Hanson is?


Kate Shaw Absolutely. So as we previously noted, there’s this important question in the case about chilling. This is what’s known as an over breath challenge. You know, you can’t normally challenge a law that could constitutionally be applied to you just because there are other people out there at the law can’t be constitutionally used against. But in First Amendment cases, it’s possible to challenge a law as facially overbroad if it sweeps any substantial amount of protected speech. And so that was a really important theme in this case and a place where the justices in the oral argument seemed to take submissions in amicus briefs about who else might be chilled in their speech and conduct by a ruling that permitted this really broad law to stand. So Hanssen’s lawyer very effectively pointed out a brief filed by the Reporters Committee for Freedom of the Press, which highlighted the press freedom implications of the statute, describing the government’s expansive use of the statute to justify monitoring journalists covering immigration at the southern border. And here is the Wisconsin hook. There was an amicus brief filed by some cities and states filed by the San Francisco City Attorney’s office, but with a bunch of other cities and states on the brief. That brief notes that the statute poses a real threat to state and local government programs that assist immigrants. And so this law being out there with the possibility of enforcement, even if it hasn’t resulted in any of these prosecutions, really could show the willingness of such entities to provide services to unlawful immigrants. And guess who? Two of the signatories on the brief were the city attorney’s office in both Madison and Milwaukee. So there we didn’t really even have to stretch to find Wisconsin hook in this case.


Leah Litman This is going to be the only non stretch just about.


Kate Shaw The rest our stretches. We really tried. As I said, it wasn’t that clear to me that the justices have achieved additional clarity since an announcement. I mean, the court could try to again duck the issue or narrow the opinion because the defendant here was charged not just with inducing or encouraging unlawful immigration, but with doing so for financial gain. Right. We should say this was an individual not like the very sympathetic hypos involving aid organizations or state and local governments, but an individual who engaged in a fraudulent scheme, basically convincing undocumented immigrants that he had a path to citizenship for them and defrauding them. And he was convicted on several fraud counts and sentenced to 20 years. So whatever the court does with this statute isn’t going to impact those underlying sentences.


Leah Litman At the argument, Justice Gorsuch also pose questions that seem to take issue with the concept of over breath and chilling of speech. That is the very idea that a statute could be unconstitutional because it criminalizes more constitutionally protected speech than necessary or relative to the amount of non constitutionally protected speech that it prohibits. Yeah.


Kate Shaw Justice Thomas also seemed like he might be interested in using this case as a vehicle to at least suggest some rolling back of the idea of over breath challenges in general.


Leah Litman So Justice Sotomayor and Justice Kagan had really interesting questions that situated this case hands in in the broader context of other criminal law matters that are also on the Supreme Court’s docket. Justice Sotomayor asked the government.


Clip It was an intent requirement task force. Here. You say it was broader than you think it should have been given, but we’ve had a number of cases this term criminally. Percoco Dubin Now, this case where the government is conceding that the statute read by its planes terms is too broad and you come back to us and say, read it more narrowly, but you won at a jury trial on a broader charge. If we keep doing as you ask us to, which is to rewriting statutes, are we encouraging the government to continue this practice?


Kate Shaw So what she’s asking basically is, are we encouraging the government to basically reach for the moon? If it can always say when it gets to the court, actually, the jury should just have been instructed more narrowly, which is basically what they are now saying here. And, you know, the other case that she brought up from just this term, where that is also happening were Simonelli and Percoco to political corruption cases we’ve talked about on the podcast as well as Dubin, which is an identity theft case we’ve discussed.


Leah Litman And Justice Kagan wanted to know why the government’s. Sanitation, that it wouldn’t go after cases where, say, a doctor or lawyer or religious group said to someone, you know, I hope you stay here, made it okay to potentially rule for the government in this case, even though the government was ultimately conceding that that conduct was, in fact prohibited by the statute, because in other cases, the you know, trust us reassurances from the government don’t typically work, and yet there’s some possibility that they will work here.


Clip And how is that argument? Because it’s a strong argument. How is it different? Sometimes the government comes in and says says essentially, don’t worry, we’re never going to apply the statute in these circumstances. And we always say back, it’s like, well, that’s very nice. You can stand up there and say, but we’re not taking your word from it. How is this different from that?


Kate Shaw Justice Alito also asked a question that, you know, maybe relates in interesting ways to current political developments and maybe could even have a Wisconsin hook.


Clip I understood your second point to be that the First Amendment prohibits the criminalization of the solicitation of conduct that is unlawful but not criminal. Is that your second point? That is correct. And you think that’s true aKarofsky the board in all circumstances.


Leah Litman And it makes me wonder whether he is citing a First Amendment defense for Donald Trump. Should any cases relating to January six make their way to the Supreme Court? Because one application of this question would be, would the First Amendment prohibit criminalization of, you know, Trump soliciting Mike Pence to violate the Electoral Count Act or the federal Constitution, which would be unlawful acts, but not necessarily criminal?


Kate Shaw Right. Because the special counsel, as far as we know, is looking at all aspects of former President Trump’s involvement in January 6th. And a lot of attention has been focused on the speech that Trump gave on the Ellipse prior to the storming of the Capitol and whether that might constitute, you know, provable incitement. Now, there much of what happened after the speech was itself criminal. Obviously, many people have been prosecuted and convicted or pled guilty for their involvement in attacking the Capitol. But if the inquiry were to also include Trump’s efforts to induce or coerce conduct that is unlawful but not criminal, that might be the sort of thing that Justice Alito’s question contemplates.


Leah Litman So the bottom line is, I think they’ll probably uphold this statute maybe with a narrowing construction, but not invalidate the entire thing.


Kate Shaw And I actually wasn’t so sure. I thought they seemed more skeptical about the statute. And I wanted to throw in one totally gratuitous additional Wisconsin hook, which was that the case was argued on Monday. It was the second argument of the day. The first case of the day was when we won’t talk about Amgen. But it was argued by Paul Clement, who is from Wisconsin.


Leah Litman And again, that wraps up any plausible Wisconsin looks that we might have. Okay. So we are going to go extremely short on the next case, which really pains my heart because it is an armed career criminal act case. And that’s Laura versus the United States. And it involves the proper interpretation of the so called stacking provisions of the act, which are about when federal sentences have to run consecutively. That is back to back rather than concurrently at the same time. And basically, the gist of the case is there’s a particular provision in the that says any sentences that are imposed for convictions under subsection C have to run consecutively. But the government says, well, this guy, Laura was convicted under subsection J and subsection J is basically the same crime as subsection C, So that’s good enough, right? C equals J, Like, that’s actually the government’s argument. This is obviously not a super textual argument, but we will see whether it nonetheless manages to persuade this textual ish Supreme Court. But that’s Laura.


Kate Shaw Yeah, maybe. Let’s just highlight one thing from the oral argument, which is that Justice Alito pretty much came out and said this at the oral arguments. So he said.


Clip The text of the provision dooms the government’s position. But they do have an and that’s a question I we can talk about, but they do have this argument about what Congress had in mind.


Kate Shaw Right. Like maybe the text is squarely against the government, but wink, wink, I know what Congress really wanted. They’re just as punitive and carceral as me, which, you know, we haven’t used textual Alito in a while, and I feel like that question warrants bringing the moniker back.


Leah Litman Oh, most definitely. So here’s what we came up with for Wisconsin Hook for this case, which is another issue that’s relevant in this race is gun control. And De-Anne Kelly was endorsed by the NRA in 2020. And in 2020, when he was running for reelection, he held a political fundraiser, adding shooting range the day after a mass shooting in Milwaukee, Wisconsin, and advertised the event with the hashtag to A for the second time. He also authored a decision that prohibited the city of Madison from banning guns on public transportation.


Kate Shaw There also is the fact that this case involves a circuit split in which the seventh Circuit has not weighed in so many Wisconsin links and non links that we have found.


Leah Litman We are in our cheesehead era on the pod. Thank you, Mistress Isabel Brooks. That’s for you, RuPaul’s Drag Race fans out there. All right.


Kate Shaw So on to the next case. Samia versus United States is an important confrontation clause case. The confrontation clause of the Sixth Amendment provides that in all criminal prosecutions, the accused shall enjoy the right to be confronted with the witnesses against him. Since the Supreme Court’s major confrontation clause case, Crawford versus Washington, the court has held that all testimonial hearsay is subject to the requirements of the confrontation clause.


Leah Litman And the question in SIMI is whether admitting a co-defendants redacted out of court confession violates the right to confrontation, where the context of the out of court confession immediately suggests that the defendant is guilty. So the court has had a series of cases about when redacted or non redacted confessions can be used without violating the confrontation clause. And the cases on redacted confessions suggest that where a jury is likely to infer that the confession identifies the non confessing defendant as an accomplice that implicates the defendant’s confrontation clause rights and the redacted confession here, just use the phrase another person.


Kate Shaw So Mr. Zamir was tried along with two co-defendants for the murder of a real estate agent in the Philippines. Neither of his co-defendants disputed that they had participated in the murder. They contested only that the government had jurisdiction over the crime. Only Mr. Salmiya said that he was innocent. So the district court denied Mr. Sami as motion to sever his trial, that is to separate his trial from the trial of his co-defendants. And during the course of the joint trial, the court allowed the prosecution to introduce the out-of-court confession of one of the co-defendants who had named Samir as the person who pulled the trigger. Now, in the confession, the prosecution replaced Mr. Sami, his name, with references to the other person or similar phrases. But the prosecution in its opening statements, referred to the confession as the most crucial piece of evidence. And in introducing the confession, the prosecution elicited testimony about the other person, details like that the other person had lived together with the codefendant that pretty clearly identified Mr. Samir as the other person referenced in the confession. The court instructed the jury that this evidence wasn’t admissible as to the defendant, but it’s pretty hard to swallow that the jury was able to do that.


Leah Litman Yeah, and the case seems to turn in part on whether you can look at the confession just in isolation or whether you can consider, you know, the other testimony that was elicited that seems to identify, you know, the codefendant as the person who is being described in the confession.


Kate Shaw Now, Justice Jackson stepped in at one point to basically serve as co-counsel for the defendant when she felt the defendant’s argument wasn’t getting the reception that it deserved. So she pointed out that ruling for the government in this case would really gut the court’s earlier decisions in cases like Brewton and Gray. That said pretty clearly that an insufficiently redacted confession or an unredacted confession that’s admitted at trial can’t be fixed by just telling the jury, you know, ignore that little thing right there. As to that one guy.


Leah Litman Justice Alito, of course, seemed to want to declare open season on those fairly inconvenient precedents. And further, as he did in Dobbs, the decision overruling Roe, he tried to chalk up any decision, overruling those precedents to the lawyer, relying on those precedents like he straight up, ask the defendant’s lawyer.


Clip You want us to examine the question whether Brewton was consistent with the original meaning of the Sixth Amendment?


Leah Litman What is up with that guy? I don’t know.


Kate Shaw And Justice Thomas’s ears really perked up when Justice Alito said this.


Clip Miss Flynn, much of your argument sounds like Justice White’s to sentence Bruton. And there’s been some suggestion that if the court if we rule your way, we are, in effect, overruling or undercutting. Bruton Do you think it would be more straightforward to do precisely that? And are you asking us to do that?


Leah Litman He’s like, don’t threaten me with a good time, Right?


Kate Shaw Right. Because he jumped in. He basically said, Hey, wouldn’t it just be easier to overrule those cases than to distinguish them?


Leah Litman And again, you know, stairs in Dobbs overruling Roe versus Wade and Planned Parenthood versus Casey, rather than distinguishing that they just cannot get enough of that.


Kate Shaw So Justice Sotomayor hit back on this, correcting the record to make clear that no one other than I guess Justices Alito and Thomas were asking the court to overrule any cases. So she basically said, look, you’re not asking us to overrule Bruton, Gray or Richardson. Correct. And it was assured that, you know, she was not. But I’m not sure that’s enough to stand in the way of a determined Justice Alito or Justice Thomas.


Leah Litman So I thought it kind of hard to predict this case. You know, Justice Kavanaugh seemed hostile to the defendant. Maybe it was a little bit hard for me to read Justice. It. Obviously, Justice Alito is going to vote against the confrontation clause claim because to him, the confrontation clause means judges have the right to confront students who are rude to them and nothing more. I think Justices Jackson and Sotomayor are with the defendant in this case. Couldn’t really get a read on Neal. Justice Kagan had what I thought was like a really killer, you know, Siri Adam series of questions. I’m going to recap it for you. So you’re unfortunately not going to get the Kagan. Aha. I got you voice. When she gets to the punch line. But basically the sequence went like this, you know, Bruton says you can’t admit John’s confession against Mary. If the confession says Mary and I robbed the store. And then Gray says, You can’t admit John’s confession if it’s just redacted. And I robbed the store, and now the government comes along and says, Well, but you can admit the confession if you alter it to say, the woman and I robbed the store or she and I robbed the store. And that, of course, just makes zero sense. And this hypo, I think, might have been enough to get Neil’s vote or at least attention possible. You know the chief as well. But this really made me think of those Taylor lyrics. You know, I can make the bad guys good for a weekend, which is like the constant Justice Kagan meme. Or, you know, maybe she don’t start shit, but she can tell you how it ends. This is not me as Justice Kagan Anger translator It’s me as Justice Kagan. 911. I’d like to report the murder I just did. And he advocates dead body at the lectern. Translator So there you go.


Kate Shaw The Wisconsin hook in this case, really a stretch. This case also implicates a split in which the court of appeals for the seventh Circuit is involved. And there was also an amicus brief by retired federal judges and former federal prosecutors supporting the petitioner. Unfortunately, none of those officials is from Wisconsin. But Judge Janet was a former prosecutor. So there’s that.


Leah Litman There you go. The court also heard two other cases. It’s the first time the court has actually heard two cases every day during a four week sitting. We’re not going to cover those. We’ll just note that in one of them possibly versus IRAs, the justices continued their favorite pastime of beating up on Yale Law School.


Clip You might say that I wrote this introduction in aid of presenting this argument today. You wouldn’t say that I went to law school in aid of presenting this argument today. You wouldn’t say that. Not only because I went to Yale Law School, but. But you also wouldn’t.


Kate Shaw All right. So we are going to pivot now to some news and court culture. We’re going to go relatively short on all of this because we are short on time. But we have a few things we wanted to hit before we wrap. So first, The Washington Post has reported that a group led by Ginni Thomas.


Leah Litman That’s your cue to drink.


Kate Shaw The Post has reported that Ginni Thomas collected nearly $600,000 in anonymous donations to, in the Post’s words, quote, wage a cultural battle against the left. So the group is called CrowdSource for Culture and Liberty. The donations were channeled through a right wing think tank in Washington that we have talked about before the Capitol Research Center. The Post also reported that the majority of the money, so $400,000, was routed through. Still another organization we have talked about on the show and that Senator Sheldon White board, White House has repeatedly talked about Donors Trust, which is a fund that receives money from anonymous wealthy donors and puts the money toward conservative causes.


Leah Litman And now we get to the Ginni quotes. There’s nothing that’s quite on the same level as, you know, barges off Guantanamo Bay Military trials for treason. Ginni Jenny texts. That one is probably in a category of its own, but we did get some goodies. So the Post reported that Ginni told donors and activists about crowd sources in a private meeting during which she said the left was pushing, quote, cultural Marxism and eroding the pillars of our country. And she claimed conservatives and Republicans are tired of being the oppressed minority. Here, I just need to put in a plug for a law review article I published in the fall in the Michigan Law Review. Desperate Discrimination, which argued that a series of the Supreme Court’s recent decisions and doctrinal changes were actually driven by this idea that conservatives and Republicans are an oppressed minority, and therefore that the federal courts and the Supreme Court needed to protect them. And when I read this, I was like, she just tweeted it out and I wrote like 30,000 words trying to prove that they believe this anyways.


Kate Shaw And I have to interject here to say that those 30,000 words and many other articles of lawyers are the reason that Leah was just this week recognized by the American Law Institute or ally with its early Career Scholars Medal. So singing his praises while she sits alone on a stage may be it might be nightmare fodder, too. But I’m doing it. Are to make you sit there. So she was recognized with the. Early Career Scholars Medal together with Harvard’s Crystal Yang. This is a very big deal. And there is a definite Wisconsin hook here, which is that Judge Diane Wood, who chairs the selection committee that chose Leah, is on the Seventh Circuit in which Wisconsin sits. So there you have it. But back to Jenny, was there, Wisconsin hook for that story. It’s now well-reported that there is an enormous amount of out-of-state money from conservative billionaires and PACs flowing into this race to support Dan Kelly. And to be clear, there is a lot of out-of-state money flowing to both candidates in this race. But in terms of individual donors, Illinois billionaire Richard, you line is, I think, in a category of his own, because according to The New Yorker, he spent $3 million in the primary to support Kelly and at the time of The New Yorker piece had already spent 5 million in the general election. And, you know, the ad we talked about earlier in the episode is a dark money ad as well.


Leah Litman When judges take their constitutional oath, it says they will, quote, do equal right to the poor and to the rich. And obviously, this means that the poor and the rich have an equal right to try and spend at least $8 million to install their preferred candidate on the state Supreme Court and a right to buy their way to favorable rulings. The majesty of the law, ladies and gentlemen. But seriously, it does say a lot about what people think they can get with Dan Kelly. And you know what they think this election is worth.


Kate Shaw Okay. A couple more things to flag. First, as we await Judge Matthew Cosmetics ruling in the mifepristone lawsuit that we’ve talked about a number of times on the show, we think that judge evidently decided he was unhappy about keeping a low profile these last few weeks and decided to pick a fight with Steve Vladeck. To which I ask, are you out of your mind with Steve Vladeck? But the context here is that the government filed a motion to transfer a case out of Judge Cosmetics court in a suit involving a challenge not to mifepristone, a separate case involving Labor Department guidance. The motion relied in part on Steve’s extensive research on the increase in strategic forum shopping on steroids that Texas in particular is engaging in filing suits not just in favorable jurisdictions, but where they know they will get a specific judge. The federal government also cited a Supreme Court brief that Steve had filed in an unrelated case, but on the same issue. And the judge clearly got offended and in denying the government’s request, went out of his way to take what seemed designed as a nasty swipe at Steve, referring to the evidence the DOJ cited as the work of a law professor with a Twitter account and invoking the late federal Court scholar Charles Alan, right, whose chair Steve holds. So while Judge Kazmir evidently meant this as a dig, I actually think Steve should be delighted. We have been very hard on Sam Alito for literally years on this podcast, And the fact that he has never publicly disparaged us is a source of some sorrow.


Leah Litman The second development is The Washington Post is reporting that the justices have adopted secret new ethics rules. They adopted some new rules, but didn’t let anyone know this until the tireless Senator Whitehouse shook this information loose. We’re going to reserve judgment right now on how big a deal these new rules are. But the fact that the court seems to have tried to hide its new disclosure rules seems like a bit of an oxymoron and maybe not the best start.


Kate Shaw Third development to flag. The federal government has filed a petition in Brahimi, a case we’ve talked about in which the Fifth Circuit struck down a federal law disarming individuals under domestic violence, orders of protection. There’s a great Linda Greenhouse column in The Times about it, but I think the Supreme Court is going to have to take this case. I mean, so we’re going to have another very big Second Amendment ruling very soon that’s going to tell us just how far this court is willing to go.


Leah Litman All the way to the dark ages. So finally, a few hours before this recording, Judge Reed O’Connor, also a district judge in Texas, because it’s always a district judge in Texas, issued a bombshell of a ruling in a case called Braidwood versus Sarah. Judge O’Connor sided with a challenge brought to the structure of a body created by the Affordable Care Act, the Preventative Services Task Force. And the opinion purports to vacate all of the actions taken by that body to enforce preventative care requirements, which includes everything from HIV prevention, drugs to cancer screening to smoking cessation to various forms of pregnancy care.


Kate Shaw So we will keep an eye on that case. All right. So I guess we’re ready for the closer. Don’t forget to follow us at Crooked Media on Instagram and Twitter for more original content host takeovers and other community events. And if you are as opinionated as we are, consider dropping us a review.


Leah Litman A special thanks to our hosts at the University of Wisconsin Law School, including Daryl and his tech assistant, Calvin, for making things run smoothly. Our terrific guests, the Wisconsin Supreme Court justices Becky Dallet and Jill Karofsky. And as always, Sam Alito, who we had to bump because we ran out of time. Strict Scrutiny is a Crooked Media production. Hosted and executive produced by me, Leah Litman. Melissa Murray, and Kate Shaw. Produced and edited by Melody Rowell. Audio Engineering by Kyle Seglin. Music by Eddie Cooper. Production Support from Ashley Mizuo, Michael Martinez, Sandy Girard and Ari Schwartz. And digital support from Amelia Montooth. Thanks everyone.