In This Episode
Kate and Leah talk to ProPublica’s Justin Elliott about the latest findings in Clarence Thomas and Harlan Crow’s friendship. First luxury vacations, then undisclosed real estate deals. Then, if you’re wondering about the latest in the mifepristone cases, the hosts breakdown the latest news and what it all means for abortion care nationwide. Kate and Leah also preview two court cases that will be argued at the Supreme Court next week, recap an opinion, and highlight a concerning grant.
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- Read ProPublica’s reporting on Justice Clarence Thomas’s home sale to billionaire republican Harlan Crow.
- Here’s a twitter thread from Leah on the consequences of the Mifepristone ruling
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Show Intro Mr. Chief Justice, may it please the court. There’s an old joke that when an argued man argues against two beautiful ladies like this, they’re going to have the last word. She spoke, not elegantly, but with unmistakable clarity. She said, I ask no favor for my sex. All I ask of our brethren is that they take their feet off our necks.
Kate Shaw Hello and welcome back to Strict Scrutiny, your podcast about the Supreme Court and the legal culture, as well as the general insanity that surrounds it. We are your hosts today. I’m Kate Shaw.
Leah Litman And I’m Leah Litman. Melissa, unfortunately, couldn’t be here today, but she’ll be back next week because of all of the fuster clucks happening in and around the Supreme Court and the federal courts. More broadly, we’re going to structure this episode similar to the last episode, meaning, well, first covered news and culture and then get to all of the other stuff the court does, namely hearing and deciding cases.
Kate Shaw But first, a reminder up top that we are going to have our first grab bag episode with listener participation when the court finishes oral arguments. So keep an eye out for a graphic that is already circulating on some of the socials that will allow you to submit questions there. But there is also an option to let us hear your voices. And with that in mind, if you want to ask us a question, you can just send us a voice memo with that question to Strict Scrutiny. Just one word at crooked scum. Please keep those questions to 20 seconds or less. And when you send your memo in, if you are okay with it, we would love to hear your name, what you do, when and where you listen to the podcast, and if you want maybe a favorite episode or two. So once again, send those memos to Strict Scrutiny at Crooked dot com and try to get them in before April 25th or 26th. So we have a chance to listen to them and potentially include them in the show.
Leah Litman So now onto the show. We have some additional information about what it apparently takes to be close personal friends with a Supreme Court justice. You ask listeners, there is more breaking news about Harlan Crow, the Republican megadonor billionaire who’s been bankrolling Clarence, and Ginni Thomas’s luxury vacations and hobnobbing get togethers with other politicians and individuals in the conservative legal movement because things are always worse than they seem with this court. We’ve learned something since our last episode, and for this segment, we are delighted to be joined by one of the phenomenal journalists at ProPublica who broke these stories, Justin Elliott. Justin, welcome to the show.
Justin Elliott Hey, good to be here.
Kate Shaw Justin wrote these stories with Joshua Kaplan and Alex Meyer. Chesky And the reporting, as we mentioned, really is fantastic. So let’s start with the new information about the Crow Thomas financial dealings that has broken since our last episode. And maybe just to lay the groundwork a little bit, on April 6th, Justin and his colleagues published a bombshell piece describing the private jet rides, luxury vacations, super yacht cruises, private resorts, days and more that Harlan Crow lavished on Clarence and Jenny Thomas. Again, we covered that in some depth on a previous episode. But in terms of the latest reporting, Justin, can you give us a brief overview of your latest reporting?
Justin Elliott Sure. So as you mentioned, the original story was about sort of luxury travel. And in response to that story, both Harlan Crow and Justice Thomas had released statements describing their friendship, their close friendship, using the word hospitality. We subsequently found out and wrote a story about actually a real estate deal that happened between the two of them. So the short version is that about a decade ago, Crow or a company, an LLC controlled by Crow, bought several properties that were part owned by Justice Thomas along with his relatives. This was a home that Justice Thomas spent part of his childhood in, along with two nearby vacant lots in Savannah, Georgia. So they actually, you know, we have a deed and a sale document showing money going between the two of them.
Leah Litman And so after Crow’s company bought the Thomas house and the neighboring vacant lots, then kind of what happened to the house.
Justin Elliott Right. So we still don’t fully understand this transaction, frankly. But Crow told us in a statement for the most recent story that his intention is someday to make this this home that he bought into a museum about Clarence Thomas, his life. One of the sort of unusual things about this is that this home is actually where Justice Thomas’s elderly mother still lives. So Harlan Crow may, in fact, be the landlord of Justice Thomas’s mother. Not sure if the word landlord is appropriate if he’s not charging her rent, but we don’t really know what the deal is with that. We were able to establish through local permit records that right after the sale took place in 2014, about $35,000 of improvements were made to this House, including the addition of a carport. Another thing that’s sort of not really doesn’t really fully support the idea of creating a museum at this property is Crow also bought these two vacant lots that that don’t actually have bought the property. They’re on the same block. And he later sold those to another developer who put up new houses. So there’s other real estate transactions that could get into. But that’s sort of what we know right now.
Leah Litman This all sounds like something just as friends do. They, like, buy their friend’s mother’s house. They buy the neighboring vacant lots. They make improvements. They potentially allow them to live there for free. Sounds like great friends.
Justin Elliott And I think the other important thing to say about this story in terms of the legal or disclosure requirements here, I mean, Justice Thomas, like many other federal officials, are required to. File these annual disclosure forms in which you lose your assets and outline transactions. And the sale of this property did not appear anywhere on his 2014 disclosure form or any other disclosure form that we’ve seen. And all of the ethics law experts we’ve talked to say that this just appears to be a clear violation of that law. We haven’t heard from Justice Thomas on this question yet.
Kate Shaw So as to the first story, there were both the kind of first order questions about the appearance of the kind of receipt of this largesse from this billionaire super donor and then these second order questions about the failure to disclose that all the reporting teed up. And I think you have both of those sets of questions with respect to this story, too, but with one important difference, which is as to the yacht trips and the private jet flights and things like that, there was at least a case to be made, I don’t think a persuasive case, but at least a case that personal hospitality is essentially a limitless term and it’s capacious. And all of these gifts and trips fell under the heading of hospitality from a friend. The law is really clear as to the disclosure of income and real estate transactions. And there’s not, I don’t think, a plausible case, although I await with curiosity and some dread how defenders might try to make out such a case. But there’s a federal disclosure law that really clearly includes associate justices of the Supreme Court. That’s in the statute, and it requires the disclosure of the details, again, of income and real estate sales. And as you said, there’s no record of such a disclosure in Justice Thomas’s 2014 report. He did file a report. He just did not include this transaction on the report. And you said you talked to a number of ethics experts. I want to just call out one you quote in the story by name, Jenny Cantor, who to my mind and this is just editorializing, Jenny Cantor is like the gold standard when it comes to ethics law. And she’s very categorical in saying he needed to report his interest in the sale full stop. So if there’s a clear official violation, like what are the enforcement mechanisms that the law contains that we might potentially see or should be thinking about?
Justin Elliott Yeah, it’s a great question. Let me say two things before I get to that. I just want to address the whole personal hospitality exemption issue, which a shocking amount of ink has been spilled on at this point. So as you say, the phrase personal hospitality might be a capacious phrase. And if you actually look at the statute and I’m no lawyer, but we talk to a lot of lawyers, the section of the law, which is the Ethics and Government Act, was passed in the late 1970s, and it’s been amended since. But this part is basically unchanged. The section of the law that lays out what you need to put in these annual disclosure filings, they say, you know, you have to list gifts and then there’s some carve outs, too, which gives you have to list the carve out for personal hospitality. It doesn’t say you don’t have to list any personal hospitality. What it says is you don’t have to list food, lodging or entertainment extended as personal hospitality. So going back to the first story, again, the experts we talked to said that some of the travel that we reported on might fall into the noun lodging, but things like private jet flights or cruises on a yacht where there were actually transportation just would not count as food, lodging or hospitality extended as personal hospitality. So at least that’s our view on that issue. The question of enforcement and, you know, potential penalties is a really good one. And one thing that we’ve realized as we’ve dug into this is the entire sort of ethics infrastructure for the Supreme Court and actually just for the judiciary at large is incredibly opaque. I’ve reported on campaign finance and sort of ethics issues and other branches of the government, like the legislative branch and also the executive branch. And in those parts of the federal government, there’s an entire infrastructure of ethics lawyers, people like Jenny Cantor and sort of bureaucrats who process these forms are available for consultation and that sort of thing. And there’s potential penalties like getting fined or fired for your job. And actually the statute itself refers to civil and criminal penalties if you knowingly or willfully falsify these forms. When we started looking into this, the natural question was your question, which is how does this work for the courts? And I’m sad to say that we don’t actually have a good answer for that right now. There is the judicial conference, which is this administrative body that takes in these these financial disclosure forms. But the judiciary, unlike the executive branch, for example, it’s not subject to the Freedom of Information Act. It’s incredibly opaque. You can’t even find the names of the judges who are on the financial disclosure committee of the conference. And so we don’t actually know at this point what happens when Justice Thomas or any other federal judge sends in one of these forms, like whether it just goes into a filing cabinet, whether anyone looks at it, we have been able to find very, very few examples of enforcement of this law for judges basically ever. So we’re very interested in that.
Leah Litman QUESTION just on this. Question about whether the law is violated. I mean, so far the only defense I’ve seen and it’s not a defense at all, to be clear, is that none of this changed his votes. But that just is not responsive to whether he had an obligation to disclose it. And it’s also just kind of beside the point, like if you’re pulled over for speeding, you don’t get to say, but there’s no dead body. Like, I didn’t hit anyone. And part of the problem is, or at least seems to be that, like Justice Thomas pretty sincerely believes that powerful people should be protected from the very little accountability and transparency that disclosure requirements provide. And also seems to think that like bribery or at least financing judicial campaigns to purchase results. Right. And some amount of political corruption is just legal, right? Like, he just believes that.
Justin Elliott Yeah, I mean, it’s interesting and to some extent, the question of influence is a empirical question that we hope to do more reporting on. And I’m contractually obliged to say that if anyone has information, they should reach out to me about that. But I think as a as a non-lawyer, when I started doing this reporting, I was sort of thinking about Supreme Court justices in a kind of binary fashion of liberal or conservative. But what I realized as we started reporting on this is that that’s really obviously not the right way to think about it. And even with Justice Thomas, who’s known for having these sort of stubborn views and writing concurrences on everything and that sort of thing, his views have actually changed on some issues over time. I mean, the most significant recent example of this that we’ve seen was on the Chevron doctrine. He wrote a opinion in early 2020, right before COVID started, totally doing a 180 on or what I’m reading as a 180 on Chevron. You know, he openly criticized his own brand X decision from 2005. And so, yeah, we’ve gotten some kind of pushback, people saying, well, you really believe that a Supreme Court justice and in particular Justice Thomas, would be subject to influence. The man’s like an independent thinker. But when you see like a clear example of a of a just change in his position. I mean, the natural question is to ask, like, how does that happen? I think, again, that’s kind of an empirical question. I don’t know how it happens, but and and and I’m not saying that’s necessarily connected to Harlan Crow, but I would say that Crow is involved in in organizations like the American Enterprise Institute that do advocacy on a whole range of issues, of course. But they published scholarship on, for example, like the Chevron Doctrine and why the law should change on that. So when you again, I’m not saying there’s evidence of a connection on that particular issue, but the idea that Justice Thomas or any other justice is sort of born fully formed like Athena, I think is just wrong. And I’m actually curious what you all think about this question of influence on the Supreme Court justices and how to think about that.
Kate Shaw I’ll just say one thing for our listeners. So Chevron doctrine is one that folks have probably heard of are just a general doctrine of deference to administrative agencies. Brand X is, as Justin just said, A Thomas authored opinion that is a very takes a very, very strong view of Chevron basically to say that agencies can change their mind about what a statute means under some circumstances, even after a federal court has already construed that statute. So it’s viewed as a pretty broad reading of the kind of imperative to defer under lots of circumstances to the views of administrative agencies about what statutes mean. And I think that’s a really, really nice example of genuine evolution by Justice Thomas. And again, I hear you not to be making because you can’t at this point make a strong causal claim about that. But it is something noteworthy and it does happen at the same time as you have this kind of dozen plus years of this real ascent of anti administrative EST sentiment on the court and on the part of forces lobbying the Court. So I think that’s a really, really important point and one that I’m not sure you could sort of trace evolution in the same way, but we’re thinking about Justice Thomas’s jurisprudence and disclosure in particular, and I wonder if we’ll see this defense materialize if we’re thinking about farfetched defenses, which is something like Justice Thomas actually just thinks disclosure requirements are unconstitutional. So Citizens United people probably know is a54 decision in which the court strikes down these limits on corporate spending in federal elections. But in a lesser known part of the opinion, the Supreme Court upholds eight one federal disclosure requirements. But, of course, you know, three guesses as to who the one dissenter was. Justice Thomas So, you know, maybe all we’re seeing here is like principled living of his constitutional values. And he is not disclosing because he thinks the Constitution doesn’t permit these disclosure laws. Is that a defense we’re likely to see?
Justin Elliott Well, it’s really interesting, actually. And this is something that we’re we’re still reporting on. But Chief Justice Roberts actually back in 2011, wrote in his year end report on the on the judiciary, which is this strange document that’s released like 6 p.m. on December 31st every year. So no one ever reads it. But actually this was sort of in the wake of a previous Justice Thomas disclosure, many scandal where he actually had to amend. Number of years of his of the same disclosure filing that we’re talking about because he hadn’t disclosed his wife, Jenny Thomas’s income. But anyways, to the point, Chief Justice Roberts wrote this really interesting essay about the Supreme Court and ethics. And there’s actually a section specifically about this disclosure law that we’re talking so much about in which he says Congress passed this law that requires judges and justices to file these disclosures. And then there’s a line in there, and this is not a verbatim quote, but it essentially says the Supreme Court has never considered the question of whether Congress actually has the power to impose these rules on the Supreme Court. And then the next sentence is something like. But nevertheless, the justices have filed the disclosures or something like that. So I read that, as has him sort of raising the question of of whether this law is constitutional when it comes to justices, which is quite interesting. But at the same time, they file these things every year and they sign them. And the signing page you can very easily find is online or linked in our story. They’re signing a page. It says something about if you falsify this, there are civil and criminal penalties and they’ve been filing these for decades. So I don’t know what to make of that because, you know, if my view was that it was unconstitutional, I think I would just not file it.
Leah Litman Yeah. A part of me wonders whether we’ve discussed kind of our reactions to the story. I’ve been speculating about some other people’s reactions to the story, in particular Sam Alito’s. And I wonder if he is enraged or at least annoyed at the thought that he’s getting screwed. I mean, he is the guy who allegedly leaked the result of a Supreme Court opinion to his rich couple friends. The rights and all he got was some hospitality, like no private jet, no home purchases that we know of, at least. So just and because we’re relentlessly fair and committed to airing both sides. We wanted to discuss with you some of the responses to the initial story and give you a chance to respond to some of the criticisms of the story. So just to take one, for example, what do you say when people offer such devastating rejoinders as are you saying it’s illegal for a Supreme Court justice to have friends?
Justin Elliott Right. You know, if I were saying, I think the reason that we thought this was significant and newsworthy, there are two reasons. One is that just the scale and the frequency of these gifts of luxury travel and the dollar values are just extraordinary. I mean, I have personally never been on a private jet, but I know deep in the world of private jet travel and I can say that Harlan Crow’s private jet, it turns out to be a particularly nice private jet. It’s a Bombardier global 5000. It’s like a it’s like top of the line. And if you were to charter one of these, which you can do, which is on the open market, you’re talking about like 10 to $15000 per flight hour. So very, very quickly that, you know, adds up to like my annual salary. We’re talking about multiple private jet flights that Justice Thomas took. It’s possible that it’s very possible. We don’t know about all of them because it takes a lot of reporting to prove that somebody is on a plane. And just parenthetically on that, one of the private jet trips we wrote about was absolutely not a family vacation. It was a trip from Washington, D.C. to New Haven, Connecticut, for 3 hours. And then the jet turned around and went back. So the idea that all of the travel that we wrote about were family vacations. I mean, I don’t mean to knock New Haven here, but that’s not.
Kate Shaw You can. This is a safe place to do that.
Justin Elliott Yeah, I don’t think that’s it’s not the normal fact pattern of a vacation. And this yacht that we wrote about, it’s called the Micaela Rose. I mean, it’s not just sort of a pleasure boat, although I guess it is that, but it has a staff of like ten or 15 people, full time workers who are cooking and cleaning and serving you. And we’re talking about multiple cruises on that around the world. Same with this Adirondacks Resort that Harlan Crow owns, which was actually originally built by Marjorie Merriweather Post, the same heiress that built Mar a Lago. It’s not just like a lake house. It’s a it’s essentially like a private hotel that also has a full staff. So seeing these trips like year after year, it’s not a normal friendship where you stay at your friend’s lake house or something like that. And then also the other reason we thought it was noteworthy is that Harlan Crow is not just a guy. Not only does he have a lot of financial interests, he’s been very engaged in spending money on various ideological projects, specifically about the law and the courts. So I think putting those two things together to us made it newsworthy.
Kate Shaw So was The Wall Street Journal’s editorial boards criticism of your initial piece as like a smear of Justice Thomas because of some of your word choices, like super yacht? Was that a fair attack?
Justin Elliott It turns out there’s actually like a technical definition of super yacht. And we actually checked and made sure I mean, this is like a I think it’s like 160 theater or something. I mean, this yacht this yacht, according to the yacht people we talked to, is firmly within the definition of super yacht. So I would say that it’s not fair.
Leah Litman Well, maybe maybe they just needed a trigger warning. When you were using the phrase luxury trip. So.
Justin Elliott Right.
Kate Shaw Justin, while we have you, we have to ask, is it fair to say there could be more shoes to drop in terms of your reporting on this topic?
Justin Elliott It’s definitely possible. I mean, where my colleagues and I are actively reporting, we’ve gotten some really interesting responses and tips in response to these stories. And I should say, I mean, we genuinely are interested in any Supreme Court justice on either side. I welcome that. So that’s sort of all I can say for now.
Leah Litman Justin, thank you so much for joining us. We really appreciate your time and congratulations on all this wonderful reporting. And we look forward to following, you know, additional stories as they may develop.
Justin Elliott Thanks for having me.
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Kate Shaw We also learned some other things about Harlan Crow since our last episode, and we wanted to take a couple of minutes to highlight those here. So the Washingtonian has reported and that reporting has been augmented by a number of firsthand accounts that I’ve seen circulating on social media of people who have spent time in Crow’s many properties. The Crow is an avid collector of Nazi artifacts. Among his private collection are two paintings by Hitler, a signed copy of Mein Kampf and various items of assorted Nazi memorabilia. Crow also evidently owns a garden full of statues of the 20th century’s worst despots. So, wow, where to start with all that?
Leah Litman So I’ll start with a question, which is I would be curious if there are more pictures from Judge James Holmes swearing in like where was the autographed copy of Mein Kampf during that swearing in? Like, was there a Pol Pot statute lurking in the background? These are just some questions I have.
Kate Shaw At least in the reporting so far. ProPublica has not actually addressed all of this, But I mean, I have to imagine, given the enormous sort of universe of individuals who evidently traverse these properties and were present at events like presumably a judge host swearing in, there are other people who have information that really could help enlighten the public about all of this. So I hope that Justin’s as he did and that others come forward, we should say, about Judge Joe an aside, and then we’ll get back to the Nazi memorabilia in a moment, which is that the U.S. News released like a teaser of their law school rankings this past week, just, I guess, the top 14 law schools. There are enormous problems with the U.S. News rankings, but let’s put all of that to one side for just a moment and note the fact that the top ranked schools tied for first this year are Yale and Stanford, and that those schools have something in common, which is that Judge Joe and several other conservative jurists won’t hear from them. It just raises the question, is this causation is a correlation? Hard to know. We’re not empiricist, but just it’s a curious factoid we wanted to bring to our listeners attention.
Leah Litman Anyways, back to the Nazi memorabilia, which is a line I never thought I would have to utter on a Supreme Court podcast, but here we are. In light of this reporting we’ve had to endure for at least a week now, all of the takes of actually collecting Nazi memorabilia is good and very normal. So a representative take comes from Jonah Goldberg, who said on Twitter, It’s not a tribute to evil or something. It’s an attempt to commemorate the horrors of the 20th century in the spirit of never again. Arlen Crow is a deeply honorable, decent and patriotic person.
Kate Shaw As shocking as this all is, we actually didn’t want to lead with it because we think that Harlan Crow’s Nazi collection is actually not the most important and pressing problem here. It’s a horrifying sideshow. But what’s actually most important is the rank appearance of corruption that the Crow Thomas exchanges, including the ones we were just talking about with Justin Ray’s, but still the Nazi memorabilia awards a few minutes of our attention.
Leah Litman Yeah, I mean, like, what the fuck, right? Who collects paintings by Hitler? But also, I think the defenses of Crow’s Nazi memorabilia collection underscore part of the reason why Thomas’s relationship with Crow is problematic, because, as the defenses suggest, like people who knew, Crow leapt to his defense as if they felt some sense of loyalty to him or obligation to him. I mean, it’s no surprise that people feel warmly toward people who give them really nice things. You know, Crow seems like he has basically purchased this army of people around him by carrying their favor and giving them access. And because he was their friend, you know, friend being a capacious term here to me and someone who gives you a bunch of free stuff and access and therefore you socialize with them and feel warmly toward him like they’re normalizing his behavior. And, you know, now they’re saying, like, this thing my friend is doing, owning Nazi paraphernalia is cool. Like normal people do it.
Kate Shaw Yeah, that kind of army of defenders who have sort of leapt forward with this indignation at the sullying of Crow’s name is evidently white. Pointing out his penchant for collecting Nazi memorabilia is I think is right. Like it just drives home that he has this cadre of individuals who are clearly beholden to him. And it’s really problematic to have public officials in that group. We also wanted to draw our listeners attention to a remark from the chief justice during the final week of the march sitting. So this happened before the latest reporting on the Thomas’s ethical and financial entanglements. Right. Remember, Crow gave a lot of money to Liberty Council where Danny Thomas worked and received a salary. But this is an excerpt again from Roberts. Question in Purcell versus IRS, which was argued on March 29. So let’s play that clip here.
Clip Well, don’t you normally assume that the financial records of a husband and wife are intertwined?
Kate Shaw Pretty interesting.
Leah Litman It is. I mean, like I guess the enforcement we’re going to see is just like some potentially passive aggressive comments or questions at oral argument. You know, it would be nice to see something more than that from the chief justice. But that’s that’s what we’ve got.
Kate Shaw Roberts could take steps here, like absolutely no matter how or. The workings of the judicial conference are and how unlikely any kind of civil action against a Supreme Court justice, which I do think actually an enforcement provision of the Ethics and Government Act does permit the attorney general to file a civil enforcement action. But whatever the chances that we might see any of that occur, our Roberts could absolutely take any number of steps in response. And if he chooses to stay silent and do nothing. I think he owns an enormous amount of the story.
Leah Litman Oh, yeah. And so that covers the latest entry into the ethical bonanza around the court. We also have some news about the continuing landscape of the post jobs. America first is that Idaho became the first state to pass a law that explicitly and specifically prohibits some out-of-state travel for the purpose of obtaining an abortion. Idaho made it a crime to facilitate minors obtaining abortions out of state. That conduct is now subject to 2 to 5 years in prison, and the legislature labeled it as a trafficking crime. This law just kind of underscores that someone other than in addition to Matt Kacsmaryk, Andy Oldham and Kurt Angle Hart aren’t so sure about the statement and Brett Kavanaugh’s concurrence that overruling Roe would actually get the federal courts out of the business of evaluating abortion restrictions. In his concurrence, Kavanaugh specifically mentioned travel restrictions as impermissible. Ha ha, joke’s on him. And all of the women and girls in the United States, I guess.
Kate Shaw Yeah. And the fact that the law is limited to minors should remind people of early anti-abortion strategies, which also used restrictions on minors as essentially a wedge to begin to take down broad protections for abortion. That is like the first step on the way toward eliminating broader rights to abortion across the board. This is very similar to what is happening right now with respect to transgender rights and care, targeting kids and I think targeting kids with an eye toward eliminating health care for transgender individuals entirely. So kids are just the first step. Irin Carmon had a great piece in New York magazine a week or so ago titled The Shared, Anti-trans and Anti-abortion Playbook that people should really check out. But, of course, that is not all. The breaking news in the post Jobs America in the last week. We also saw the Iowa attorney general announce that that office would stop paying for emergency contraception for rape and sexual assault victims as it previously had. The office said it wouldn’t pay for emergency contraception like Plan B as well as abortion medication or other abortion care. So, again, further evidence of someone other than Matt, because Kacsmaryk isn’t so sure about the statement in Justice Alito’s majority opinion in Dobbs that the case was just about abortion and had nothing to do with other rights like contraception.
Leah Litman How curious and cruel. Additionally, Florida adopted a six week abortion ban, which is essentially just an abortion ban full stop, since most people will not know that they are pregnant six weeks after their last period.
Kate Shaw And any state adopting such a ban is enormously consequential for the individuals in that state. Florida is especially consequential both because it has a very large population and because until the six week ban, it had been the only state really in the Deep South that still permitted abortion later in pregnancy. And so it had a lot of out-of-state individuals seeking abortion care there. So this is going to create just another geographic and other set of obstacles for individuals in the Deep South seeking abortion care. So I think now we will return to where things stand on the mifepristone lawsuit. We are recording this episode on Friday afternoon. So what we’re going to do is explain what is happening as of right now and provide an update if there are additional developments before Monday morning. Judge Kacsmaryk recall basically said that he was staying the FDA’s approval of mifepristone, which would make Mifepristone an unauthorized drug that could not be prescribed or distributed. But he stayed that ruling for seven days, meaning whatever is left of his ruling goes into effect at the end of Friday unless the Supreme Court does something before that.
Leah Litman So late Friday afternoon, Justice Alito, who is the circuit justice for the Fifth Circuit, that just means he oversees applications from that circuit. Anyways, Justice Alito issued an administrative stay of the ruling below. An administrative stay prevents the ruling from going into effect, so it preserves the existing rules with respect to mifepristone, at least the rules that existed before Judge Kacsmaryk and the Fifth Circuit got involved. But an administrative stay is temporary. It does not indicate how the full Supreme Court will rule on the request for a stay. And this administrative stay was issued to be effective until Wednesday. So that means we can expect the Supreme Court to say on or by that day, Wednesday, whether the full court will stay the rulings while the litigation regarding mifepristone remains ongoing or whether it will stay the rulings maybe until the Supreme Court schedules argument on and then decides the stay request. The point is, Judge Kacsmaryk’s ruling and the fifth Circuit’s ruling are not in a. Fact, at least until Wednesday. That’s what the administrative state does.
Kate Shaw So what is the status of Judge Kacsmaryk ruling right now?
Leah Litman So the rest of the clown brigade, or at least the part of it that sits on the U.S. Court of Appeals for the Fifth Circuit got in on the action following a request from both DOJ and the drug manufacturer, Danco. The Fifth Circuit partially stayed. That is put on hold. Judge cast Merck’s ruling. To the extent Judge Casimir. This ruling was about the FDA’s 2000 year 2000 authorization of mifepristone. Because the Court of Appeals said the plaintiffs hadn’t brought a timely challenge to the 2000 authorization since the challenge was brought more than two decades later. As a brief preview of how ludicrous this Fifth Circuit opinion is, the Fifth Circuit described themselves as, quote, unsure about whether this was in fact an error because it was, quote, a close question. My guys, it is not.
Kate Shaw It is not. In terms of what the Fifth Circuit did, so it basically either modified the ruling or upheld the ruling kind of, depending on how you read it, to reimpose various restrictions on a precedent that the agency had applied prior to 2016. And they just kind of thought they’d slap a few more on there because why not? What does the FDA know? These judges were able to uncover things in their five day review of the record that the FDA had somehow missed while overseeing this drug for over two decades.
Leah Litman I think I might call up Andy Oldham and Kurt Englehart and be like, you know, sometimes I get cramps and like the Internet, right? And like, FDA tells me Advil might do the trick. Do you have any recourse? Because I don’t know. These are women’s meds. Just, just curious. Like, what do you guys think? Do you think he’d appreciate.
Kate Shaw That the anti-science anti medicine and just like unbelievable arrogance of these male juries deciding to substitute their apparently superior expertise for those of the expert agency that is the FDA is just so galling. So in their infinite wisdom, what additional restrictions did these federal judges impose? So one, that mifepristone has to be prescribed by a doctor. Two, that it has to be dispensed and prescribed in person? This would mean, I think, three separate in-person visits to obtain medication. Abortion, obviously really difficult for people living in certain areas, in certain states where there are no abortion providers in conditions that make it very difficult for them to take the time off work that would be required to make multiple successive visits. It also includes a directive or guidance for how mifepristone should be used. Limiting it to seven weeks rather than ten weeks after a person’s last period. There are some questions regarding whether off label use beyond the seven week period could continue of Danco, the manufacturer of Mifeprex, the brand name mifepristone was a party to this lawsuit, I think raises real concerns about whether post seven week prescription could be possible under the Fifth Circuit order.
Leah Litman Yeah, so I’m glad you mentioned that because I kind of wanted to make an additional point before we dig in to the minutia of the opinion, which is it feels like people are not as enraged or horrified by this ruling as they should be, in part because the reasoning of the opinion is specious and absurd. Like it’s clear the judges are just like shoving law to the side in order to reach their preferred results. Nationwide abortion restrictions imposed by the judiciary. But I also think people have understated the effects of this, in part by comparing it to the lightning speed Overton Window that Matt Kaczmarek has been pressing. Because, you know, like think about people living in states where abortion isn’t legal. You know, now they have to make three visits out of state. Think about virtual clinics, which are no more with the in-person dispensation requirements. Think about labeling. You know, pharmacists and distributors can’t sell a drug. They cannot distribute a drug with wrong labels. That is a violation of federal law. And so all of that is a huge, huge attack on access to mifepristone because it means the incorrectly label drugs can’t be distributed. And like Danco says, they have to go through a new application process in order to get the new label and get that all manufactured and approved, which could take months. Jen Biro, who’s the maker of the generic version of the medication abortion pill. And if a person says in their application to the Supreme Court that because they are the maker of the generic version, you know, if the Court of Appeals is allowed to just like reinstate the previous regime, like they are not going to be able to allow their pill to be used unless and until an entire process happens. And again, that’s just like part of the delay obstacles and whatnot, that it’s going to create this real gap in access to a medication abortion. If this ruling is allowed to go into effect.
Kate Shaw It’s reminding me of some of the initial reactions to the Supreme Court’s decision in SB eight. Right. Which sort of said, well, maybe there are a couple of defendants who could still be sued, authorities responsible for state doctor licensing, things like that. So it’s not. So this was a mixed ruling that actually did preserve some possibility of challenge to and federal court review of the Texas, you know, bounty law SB eight. And this strikes me as sort of similar like it is unbelievably restrictive. It doesn’t completely go all the way as the District court opinion did. But what it leaves intact is just such a shell of the prior access to it for Mifepristone that it’s much more accurate to say this is basically a reaffirmation of the cosmetic opinion rather than some sort of compromise or interim position. And that’s all sort of. Overton Window shifting. Yeah.
Leah Litman Like, in light of all of the interim obstacles and problems it’s created in order to move to this like preexisting slash alternative regime.
Kate Shaw Just want to remind people there is a competing injunction out of a federal district court in Washington state that forbids the FDA from changing mifepristone access in the I think it’s 17 states that brought the case. But that number doesn’t include a bunch of important states like New York that did not joined the suit. And so presumably, if this Fifth Circuit order went into effect, then all these restrictions that you just identified there would apply in states like New York, California, I think is also on the list. So huge impact on the ground in most of the country. Okay. But back to the Fifth Circuit. So the opinion, as you referenced earlier, is outlandish. It is bizarre, but it is just slightly different in its bizarreness and outlandish ness than the judge mere ruling was. So we’ll walk through it now. We’ll start with standing right. The basic idea that plaintiffs are only supposed to be able to sue and get this kind of relief if they can establish a substantial risk of future injury or future injury, that is certainly impending. And on all of this, if it Circuit’s analysis is like analysis in scare quotes is shockingly lazy and laughable. It rests on a few different steps. We will pick them apart and draw them out. I mean, Leah, you had a great Twitter thread breaking this all down, so why don’t you just, like, walk through some of the highlights of how bad the standing analysis is?
Leah Litman I mean, the overarching tldr of their analysis is the plaintiff organizations are big because they’re big. The Fifth Circuit says it stands to reason that somebody in the organization will be statistically assured to have to provide the kind of care they don’t want to provide to people who experience complications from medication abortion, like that’s the overarching claim. And, you know, start with the threshold conceptual framework they use, which is just not how standing analysis works. In a 2009 opinion by Justice Scalia Summers versus Earth Land Institute. The Supreme Court specifically rejected an argument that an environmental organization with over 700,000 members had standing because it stood to reason and was a statistical certainty that one of their members would go to an area affected by the agency policy they were challenging. Justice Scalia rejected the idea that there could be standing when there is a statistical probability that some of those members are threatened with concrete injury, he said. That would make a hash of the court’s prior cases. Luan versus Defenders of Wildlife, National Wildlife Federation versus Luan, as well as Sierra Club that had analyzed whether individual particular members, identifiable members would likely experience a future injury, but even applied to the specific facts here. That is, even if you assume that you know the law is what it isn’t. Right. The Fifth Circuit’s analysis makes no sense because their chain of causation is women will experience complications. Those complications will send them to emergency rooms and the plaintiff doctors, and that will harm the plaintiff doctors. And at every single step of the analysis, they don’t have any support or any real support for these claims. And the inference is between all of the steps, don’t hold up.
Kate Shaw Okay. So let’s walk through a couple of the logical steps in the reasoning and the evidence that supposedly supports this reasoning the Fifth Circuit offers. So the Fifth Circuit says the warning label from if a person says that for somewhere between two and seven out of 100 women, the medication abortion treatment will not work. And if this happens, the person will talk to their provider about a surgical procedure. The Fifth Circuit then takes this to mean that of at least 100,000 women. So 2% of the 5 million women who have taken medication abortion will talk to their providers about surgical abortion. Okay, fine. But then the Fifth Circuit says that emergency room care is statistically certain in hundreds of thousands of cases. What? And that is so where does that I mean. And they go on to say that these plaintiffs will inevitably have to treat massive complications or be asked to perform surgical abortions that, like none of these things, follows from the other.
Leah Litman No. And, like if medication abortion doesn’t work, you talk to your provider who might recommend another course of medication abortion or surgical or procedural abortion, which doesn’t affect the plaintiffs since they don’t offer abortion care. And nothing, the plaintiffs said, comes close to suggesting that this number of women go to emergency rooms versus talking to their provider when they are still pregnant after taking medication. Abortion, like all they’ve established, is some number of women won’t successfully and their pregnancies. But also the idea that these doctors are harmed in the event that women end up with complications and go to an emergency room requiring emergency care. I mean, some of them are emergency room doctors and they’re apparently harmed because they have to see patients or like patients with severe complications. That is your job. I mean, one doctor said it hurt their feelings, that it was stressful and quote, some of the most emotionally taxing work I have done. Like my. Feelings are hurt by how dumb the Fifth Circuit decision is. So apparently I have standing to appeal it. This is now the law.
Kate Shaw Oh, God. This er part drives me so crazy. I mean, why don’t people present an emergency rooms, you know, facing illness and injury as a result of activities that, you know what er doctors might not approve of. Right. Whether we’re talking about guns or drugs or physical altercations with family members or strangers in bars and the doctors like moral objection to the underlying conduct that resulted in the presenting condition can’t possibly matter in establishing standing for something as far upstream as approving a drug. It’s just insane. But it’s also to my mind, this part of the opinion was especially galling because if we actually are going to take seriously, like the injury to doctors in emergency rooms right now, the real injury for anyone who is following the post ops landscape. Yes, that I think the logic care about is doctors who are prevented by restrictive state laws from providing needed care to pregnant patients in distress until they are literally on death’s door. Like those are the er doctors who are being injured right now, not the ones that the Fifth Circuit is conjuring up in its opinion.
Leah Litman Yeah. Like if you don’t want to treat women experiencing life threatening severe complications, don’t fucking litigate to restrict access to abortion. It’s not that hard. So as we mentioned, like that was a Fifth Circuit’s analysis, slightly different than some aspects of Judge Kacsmaryk’s ruling, which was so bad he lost the op ed pages of The Wall Street Journal. Like, do you know how hard that is to do and how embarrassing that must be for him, the editorial board said, Clarence Thomas on the personal jet. That’s fine. Right. Call the ProPublica piece of smear. But Matty cosplaying as scientist, that goes too far for them. Right? But don’t worry. The National Review came to his defense. As did basically the Fifth Circuit,.
Kate Shaw Right? No, they did, definitely. So let’s turn to merits, like the court’s assessment of the legal claims in this case. And that, too, is beyond redemption. So the court says that the FDA’s 2016 decision to loosen restrictions on mifepristone was arbitrary and capricious because the FDA based the decision on studies where mifepristone was used with restrictions and a couple of responses to that one. So nothing requires the agency to study medication under the exact same conditions. The point is that in addition to the studies on which it based the loosening of the restrictions, 15 plus years of evidence that misoprostol was safe. And so that’s response one. But it’s also, of course, because there’s so many untrue claims in this opinion, it’s just untrue on the facts. The FDA looked at a bunch of different studies, including studies with different restrictions relaxed in reaching its decision. The court also says the agency decision was arbitrary because it stopped requiring the reporting of adverse but non-fatal events. But again, it did this after six years of observing the safety of mifepristone. And I would say the larger point here is that all of this involves second guessing the court, second guessing the FDA’s determination and substituting the court’s judgment for the experts. And, you know, this part of the Fifth Circuit’s opinion is enormously problematic in all the same ways that the district court opinion was.
Leah Litman Yeah, it reminds me of the scene from Knives Out, where one of the characters says, It’s so dumb, it’s brilliant. And Ben Wallbank responds, No, it’s just dumb. So, you know, if this are good decision on the merits or I guess, you know, part of the stay analysis is also Comstock Act curious, you know, suggesting it might, in fact, be a federal crime to distribute medication, abortion through the mail. All of this insanity crept into the irreparable injury analysis where the Fifth Circuit said the federal government somehow couldn’t show an irreparable injury because the Fifth Circuit was just returning things to the way they were in 2016. I mean, the way things were, it could be worse than the way they are now, right. Which would be some irreparable injury. And in any case, pre 2016 was before. DOBBS So like also different conditions also. This just misunderstands the effects of their ruling as we kind of surveyed because it might prevent marketing distribution prescription of Mr. Mifepristone while this ruling is in effect.
Kate Shaw So we highlighted many of the shortcomings of the various parts of the opinion. Adam Yuna Koski, who’s a partner at Jenner and BLOCK, also a frequent SCOTUS litigator and a former Scalia clerk, has several phenomenal posts on his substack and also on Slate, just eviscerating this ruling. And for those who want a breakdown of all of the individual shortcomings of both the District Court and the Fifth Circuit, opinion cannot recommend those post highly enough.
Leah Litman Other random assorted thoughts. I mean, one is both the Fifth Circuit’s ruling and Judge Kacsmaryk ruling display what I would describe as anti-abortion exceptionalism, basically crafting exceptions to various principles of law for cases involving trying to restrict abortion further. And just getting back to the projection that was the Supreme Court’s decision. And. DOBBS You know, one reason Dobbs gave for overruling Ron Casey was because of something the court called abortion exceptionalism, this false idea that somehow in the name of protecting abortion rights, the Supreme Court twisted other areas of law to do so. And it’s like part of a cut all to show you. And yeah, you know, I also wanted to say a little bit more about why, like even if the Supreme Court and does this ruling like that’s not going to fix the problem like. Anti-abortion advocates know Kacsmaryk. And now, you know, several members of the Fifth Circuit are basically going to give them a lot of what they want. And changing the Overton Window reduces pressure on both the Supreme Court and the Court of Appeals to give the anti-abortion litigants something, even if not everything. All right. On the march toward a national abortion ban or national abortion ban, a particular procedures and the fact that the Fifth Circuit join this insanity. This is not a problem of one lone judge. This is now a systemic problem in light of the appointments of the prior administration and probably other ones before that. So the administrative state gives us really no indication about what the court might do after that. And so we wait.
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Kate Shaw Okay. So we are going to briefly preview some of the big cases the court is going to be hearing in the April sitting. But maybe let’s flag one thing before we do that, which is that the Senate right now seems to be in a judicial confirmation holding pattern. I think at last count, there were 18 judicial nominees awaiting floor votes, and that has been the case for a bunch of weeks. So they’re out of committee. They are on the floor. They are ready to be confirmed. There are enough Democrats to support them, at least in the abstract. But the Democrats right now have a numbers problem, which is that Senator Fetterman was in the hospital but is expected to return and resume voting next week. But also, Senator Dianne Feinstein has been out for quite some time and we don’t have a clear return date for her, which is super concerning. And there are increasing calls. I think, you know, sort of Democrats seem kind of divided on this question, but there are definitely increasingly loud calls for the senator to retire, clearing the way for the appointment of somebody who could take votes on these really important judges who are, again, ready and willing to serve. But just there are not enough votes. And I don’t know if we’re waiting for Feinstein to return when that’s going to change.
Leah Litman Yeah, I mean, look, if she’s unable to return, I’d say like within a week, like I am clearly on the side of like she needs to resign immediately. I mean, you think about it, we’re basically one year out from the summer recess before an election during which senators will not be available to do judicial confirmation. You need to be there for votes. This is the thing a Democratic Senate can do. In a world of a divided Congress, you cannot leave these vacancies like you need to be clearing the decks. And it’s just it’s appalling. Okay. Now on to the other things that the Supreme Court does when it’s justices aren’t private jetting and super yachting and white Lotus saying and bohemian grooving around the world, the Supreme Court has a busy final argument session. First few sessions were pretty light. Court packed a bunch of cases in for April because it is such a jam packed sitting. We’re just going to preview three of the cases that the court is going to be hearing this week. One of them is Pugin versus Garland, an immigration case where the issue seems somewhat relevant to current events. So this is a case about the meaning of the provision in immigration law that defines an aggravated felony. People who are convicted of aggravated felonies are not eligible for certain forms of immigration relief. They’re also subject to immigration enforcement proceedings like deportation and exclusion. And one kind of aggravated felony is, quote, an offense relating to obstruction of justice. The legal question in the case is whether an offense relating to obstruction of justice requires the offense to have some nexus or connection to an ongoing investigation or judicial proceeding, or whether an offense relating to obstruction can be anything that might make it more difficult to investigate, uncover or prosecute a crime. Some listeners might think this issue sounds familiar. It kind of came up before and continues to surface in some of the debates about whether former President Trump and members of his circle committed obstruction of justice on different occasions, like firing former FBI director and communications with possible witnesses during special counsel investigations and January six hearings and again in the classified documents probe. This case is actually two cases, one involving Mr. Pugin and the other involving Mr. Cordero Garcia that had been consolidated for purposes of argument.
Kate Shaw So a little bit about each of the cases. So Pugin has lived in the United States since 1985. The government says that he is removable because of a misdemeanor conviction for being an accessory after the fact to a non-homicide felony, for which he served three months in prison. And the government now says that being an accessory after the fact is obstruction of justice because it involves helping someone to elude punishment. Again, even though there may not be any investigation or a judicial proceeding. Mr. Cordero Garcia is 80 years old, was lawfully admitted to the United States 60 years ago, was a lawful permanent resident beginning in 1965, and his wife of 45 years, five adult children, are all U.S. citizens. He was convicted of witness dissuasion, which basically provides that anyone who attempts to dissuade a crime victim or witness from making any report is subject to punishment. Up to a year, Cordero Garcia has actually been removed to Mexico, where he has been for over a decade, and he was convicted of other crimes. But the removal here was based on the witness dissuasion charge. So again, the question in these cases, does obstruction of justice refer to crimes kind of broadly involving a pending investigation or a judicial proceeding, or is it narrower in its scope? Okay. Let’s move on to Groff versus DeJoy, which is a huge case about religious accommodations. The basic issue in the case is what an employer has to offer. When an employee says that some aspect of their job is inconsistent with their religion and requires some sort of accommodation. Until now, the test has technically been if the accommodation imposes more than a de minimis cost on the employer, and that cost can be to the employer themselves or to coworkers or to other things that affect the work environment, the employer does not have to offer the accommodation, so more than de minimis cost not required. And I think it’s pretty clear that there are five votes on the court to say an employer has to show more than a de minimis cost in order to get out of providing an accommodation. What is less clear to my mind is what the court will say. The employer does have to show. The federal government says, look, it’s right that the court has used this de minimis formulation in the past, but in reality, the law, properly understood, has always offered religious employees more protection than that language would suggest. And it really requires employers to show something like costs similar to the regular payment of premium wages, which is language used in EEOC regulations, and that the law also requires taking into account the size and operating cost of the employer and the number of individuals who might ask for an accommodation.
Leah Litman So the plaintiff here was a rural carrier associate for the Postal Service. In 2013, the Postal Service agreed to deliver packages on Sundays, and the plaintiff requested a religious accommodation not to deliver on Sundays. Part of the case involves the fact that there’s a collective bargaining agreement and memorandum of understanding between the Postal Service and union, and the accommodation would be inconsistent with that since it, you know, required work Sundays, you know, along certain criteria and among everyone. And so that was part of the hardship that the courts identified the employer would face, you know, essentially breaching or violating, you know, a term of this collective bargaining agreement. I’m sure Sam Alito, champion of the working man, class justice, Proletariat, Alito, Dust Capital, Ito is going to be very sympathetic to this concern. There’s an yeah, there’s an amicus brief from AFL-CIO that kind of focuses on that aspect of the case. But I think people are thinking about, you know, the possible implications of a ruling in favor of the plaintiff employee here. You know, think about medical or health care employees who won’t offer certain kinds of care or won’t serve certain people, like do employers have to hire them and make accommodations for their beliefs? So think about service providers, people who won’t serve or sell to certain customers or more generally, think about how the accommodation here imposes burdens and hardships on other employees. You know, we talk about how the court is refashioning the law to allow conservative Christians, for the most part, to assert their religion and their religious beliefs in ways that impose costs on others. Like this is one such example of that. And it’s things like this that the establishment clause used to be a safeguard against. It used to prevent forcing other people to expend costs or incur burdens to support your religious beliefs and exercise. But the court has basically read that out of the Constitution.
Kate Shaw I mean, you think about the potential combined effects of this case and three or three creative, which we’ve talked about extensively on the podcast, about the wedding website designer, I mean, just could fundamentally reshape a lot of aspects of our collective public life from one in which one of the core features of pluralism is that people don’t get to just object on the basis of identity characteristics to participating in providing commercial services to other individuals. And all of that could be thrown out the window by the court in this term. Yeah.
Leah Litman Cool. Cool, Right? Yeah. No, I’m really looking forward to this one.
Kate Shaw Wow. All right. So the last case that we wanted to mention is Counterman versus Colorado, also a First Amendment case. But it’s a very different kind of First Amendment case. An issue in this case is what kinds of statements constitute true threats that are not protected by the First Amendment. So does a true threat entail only those statements where the speaker subjectively knew or intended the threatening nature of the statement? Or does it also include statements where a reasonable person would regard the statement as a threat of violence regardless of what the speaker intended or knew? So the statements at issue here were directed at Coles Whalen, a singer songwriter who over the course of several years was subjected to increasingly hostile online messages. The man behind the statements, somebody named Billy Raymond COUNTERMAN, was charged with stalking and served more than four years in prison. The papers in the case say that he suffers from mental illness.
Leah Litman And the statements began when COUNTERMAN posed as a promoter, inviting Whalen to an event. Over two years. He would end up sending her around a thousand messages. That’s what the police estimate and the statements comment on Whalen’s looks. Others are kind of familiar and falsely implied that they had a personal relationship like, I’m going to the store, would you like anything? And then there are those that, you know, sound more creepy and threatening, which is stuff like I’m currently unsupervised. I know it freaks me out too, but the possibilities are endless. Or, you know, die-don’t need you. Or like, how can I take your interest in me seriously if you keep going back to my rejected existence or staying in cyber life is going to kill you In response to messages like these, Whalen blocked him. He would create new accounts to keep sending her messages. COUNTERMAN had actually previously been convicted of making threats in one case where he said, you know to someone, quote, I’m coming back to New York, by the way, I will rip your throat out on sight.
Kate Shaw So when the police approached him, as The Washington Post reports, COUNTERMAN maintained that the two had a tumultuous relationship. And although she had never responded to his Facebook messages, he said she covertly communicated with him through websites such as Radio One Lebanon and Sarcastic Bad Bitches. He said that she also left notes for him in books at the library. She started having panic attacks. She canceled shows in response.
Leah Litman So this is not the first time that the Supreme Court has asked, you know, what the category of true threats means in a case the court heard several years ago, Elonis versus United States, the defendant posted online about how he wanted to see his wife’s, quote, head on a stick and also made allusions to a school shooting, quote, Hell. Hath no fury like a crazy man in a kindergarten class. Elonis said these posts were therapeutic rants, and the court ended up reversing his conviction in a 7 to 1 to 1 opinion.
Kate Shaw But actually, that decision in Elonis did not reverse the conviction on First Amendment grounds, rather rested on an interpretation of the federal law at issue. Basically, it said that the statute under which Elonis was charged required the government to prove the defendant intended the post to be threats. But because the court concluded in that case that the statute had this requirement, it didn’t have to answer the constitutional question of whether the government could criminalize threats, even where the defendant did not intend for them to be threatening, but where a reasonable person would understand them to be threatening, or perhaps that the defendant was reckless and should have known that the statements would be threatening.
Leah Litman So I have kind of competing intuitions about this case. You know, on one hand, I think about the case is the lens of gender violence and how misogyny and misogynistic threats are warning signs for subsequent physical violence and how even on their own, there are real barriers to women’s ability to fully live their lives and participate in online for on social media. You know, there’s a brief by the National Family Violence Law Center that discusses the practice of civil protective orders and how requiring proof of a defendant’s intent to threaten would really curb the availability of civil protection orders in domestic violence and family violence cases. That brief also notes statistics about how threats and harassment are important predictors of physical attacks. You know, setting one study that found of women killed by their abusers, you know, 41% to 50% had previously been threatened with death. On the other hand, is the reality that race plays an important role in people’s perceptions and assessments of violence, likely violence. And, you know, whether conduct or statements is threatening. And that creates a real risk that, you know, racial minorities will be subject to more policing and disparate policing, that their statements will be wrongly perceived as more threatening. On the other hand, the Lawyers Committee for Civil Rights points to the risk of threats that minorities are subject to racial discrimination and racial harassment experience and how numerous civil rights statutes prohibit threats without requiring the defendant’s intent to create a threat.
Kate Shaw And I think as an illustration of these sort of cross-currents in the case you have counterman supported with amicus briefs by fire and the ACLU and Cato and then Colorado, supported by the Lawyers Committee for Civil Rights, different groups of First Amendment scholars, the federal government, the National Family Violence Law Center and a diverse group of state, Amichai. So I think there are there are, you know, kind of powerful, weighty interest actually on both sides of this case. And I agree it’s really, really hard to know how they should shake out. So what do you think? Like what what what do you think is likely to happen here if you have a sense at this point?
Leah Litman I mean, I really don’t know. You know, as we said, the court heard this before and aloneness, you know, in that case, there were questions about how could the government prove a defendant’s subjective intent and could a jury or the government just rely on the fact that a statement appeared threatening as sometimes sufficient to show that the defendant intended it to be threatening or create fear? So here’s a question kind of along those lines.
Clip How does one prove what’s in somebody else’s mind that this case, the standard, was what a reasonable person think, that the words would put someone in fear? And reasonable people can make that judgment. But how will the government prove whether this threat in the mind of the threat is genuine?
Leah Litman There’s also a separate question of, well, what does the Constitution actually require? Is it that someone purposefully intended a statement to be threatened? Is it that they, you know, knowingly made the statement knowing that it would be threatening or that they recklessly caused fear? You know, it’s a little bit unclear what the standard would be.
Kate Shaw Yeah, And the justices also asked questions in the Elonis argument about kind of hypotheticals that involve informing someone about a threat to them. So a friend tells an ex-wife, your husband wants you dead. That will cause fear. They might know it’ll cause fear. But those kinds of statements are generally thought to be beyond prosecution.
Leah Litman And there are also questions about who the reasonable person would be if the standard turned on. Would a reasonable person feel threatened? Here’s one exchange along those lines.
Clip Well, but in context is right. What is it is a reasonable person. And the examples that were given that, you know, teenagers on the Internet or is it a reasonable teenager on the Internet if there is such a thing? Sorry, Mr. Chief Justice.
Leah Litman This argument also featured an Eminem reference.
Clip What about the language at pages 54 to 55 of the petitioner’s brief? That’d make a nice mitt for bed for mommy at the bottom leg. Tie a rope around Iraq. This is during the context of a domestic dispute between a husband and wife. There goes mom splashing in the water. No more fighting with dad. You know all that stuff. Now, under your test. Could that be prosecuted? No, because if you look at the context of these statements, because Eminem said it instead of somebody else? Because Eminem said it at a concert where people are going to be entertained.
Leah Litman So we have that to look forward to.
Kate Shaw All right. So finally, the court is issuing opinions, although at a very slow pace. And we got one opinion last week in Exxon versus FTC in which the Supreme Court held in a unanimous opinion by Justice Kagan that challenges to the constitutionality of the structure of agencies like the Securities and Exchange Commission or the Federal Trade Commission can be brought in. The first instance in federal district court. Don’t have to be exhausted first inside the federal agency whose structure is being challenged. And I thought there were a couple of sort of asides by Justice Kagan. Maybe I was reading too much into them. But so she writes, Our task today is not to resolve these challenges. And the challenges are basically that the administrative law, judges or ALJ is in these agencies are unconstitutionally insulated from presidential control. And you could just sort of feel the sigh of relief in her saying that today, at least we don’t have to go there because it’s very concerning what the court, the Federal Trade Commission, the Securities Exchange Commission. These are agencies that are certainly some members of this court. Neil Gorsuch, first and foremost, but others, too, I think, would love nothing more than to declare it unconstitutional, at least in terms of the scheme around appointments of the leadership.
Leah Litman Well, also in terms of like whether they are allowed to adjudicate cases, Justice Thomas basically wrote separately in Jackson being like, Well, yeah, this is obviously unconstitutional, right? As is like most of the administrative state.
Kate Shaw Right? Because he thinks agencies can’t adjudicate and he says this really clearly in his separate concurrence and that would just be enormously destabilizing in terms of all of the work that these agencies do, the bulk of which for many agencies is adjudication. So they would basically have to just kind of close up shop if in fact Thomas’s views ever carry the day. But luckily, this is just a procedural ruling about how what makes these incredibly dangerous arguments, not if they win. So we’ll have to await another opinion for that. One thing we wanted to highlight was an opinion that the court issued actually last month, but we haven’t gotten to it. It’s important and we did want to at least touch on this opinion now. And that was the opinion in Perez versus Sturgis Public Schools, which was a unanimous opinion by Justice Gorsuch. This is the case that we discussed on our episode that we recorded live at Penn with Penn law professor Jasmine Harris on to preview the case. This is a case about this Sturgis School district’s total failure to provide appropriate services to a deaf student, Miguel Perez, whose parents spoke only Spanish. The district did not provide Miguel with qualified assistance. They were not truthful with his parents about his progress. They inflated his grades, insisted he was on track to graduate until as graduation was approaching. They, for the first time informed them that he would not be receiving a diploma as they had been expecting.
Leah Litman And so Miguel’s parents brought suit under the idea the Individuals with Disabilities and Education Act that resulted in the school district agreeing to provide Miguel with equitable remedies, including continuing schooling at the Michigan School for the Deaf. Miguel’s parents also sued for monetary damages under the ADA, the Americans with Disabilities Act. And the question in the case was whether their ADA sued for damages could go forward or whether instead the parents had to pursue that remedy through the IDB, a administrative process, even though damages can’t be awarded under the idea, and even though that may have required the parents to reject the settlement that the school district offered them that provided compensatory education to Miguel.
Kate Shaw So the court concluded that the idea did not require these parents to exhaust that is to try to obtain through the idea administrative process claims for damages that you aren’t even actually allowed to get under the A.D.A.. So what these parents ADA claim for damages could proceed.
Leah Litman This is the only sensible, sane result in the case, which makes it a pleasant surprise that it is the one that the court reached. This is the case where, as we discussed, Justice Kagan asked the lawyer for the school district, You know, what did you want the parents to do? Pound the tables harder and at argument acknowledge, you know, that parents are often without counsel and representation, meaning they are proceeding pro se. And they’re just trying to get help for their kids. So this is a really good result and just kind of a sigh of relief.
Kate Shaw In less good, more potentially quite concerning news. Also from a couple of weeks ago, the court granted cert in a so-called Tester case.
Leah Litman Tester case refers to instances where the plaintiff in the case is what’s known as a tester, and a tester is someone who kind of goes around looking to see whether there are violations of civil rights statutes and then is in a position to bring suit if there is, even though they might not ultimately be seeking, let’s say, the underlying good or service that they are trying to determine whether it’s being offered to them on equal terms to. Other individuals. So, for example, in fair housing cases involving race discrimination. You might have some testers who are white and testers who are racial minorities making inquiries at the same housing facility to see whether the landlord or seller would rent or sell the place to both white testers and testers who are racial minorities. And if not, then the testers might sue, saying they were discriminated against again, even though they might not ultimately want to buy the house. And here is a test or case involving compliance with the Americans with Disabilities Act, and testers and Tester standing are so important for a number of civil rights laws that it’s really hard to uncover violations without having private individuals and individuals going out to see whether these statutes are being complied with. And the grant makes me really nervous because it’s an early test about how broadly and aggressively and crazily the Supreme Court might read their earlier opinion in TransUnion versus Ramirez, which is the first instance where the court struck down a statute authorizing particular individuals to sue on the ground, that Congress didn’t have the authority to authorize those kinds of suits in federal court.
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Leah Litman 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 and Ari Schwartz. And Digital support from Amelia Montooth.