The pace of opinion releases has accelerated considerably as we speed toward the end of June and the justices’ vacations. Even though last week brought us blockbuster cases about guns and abortions, there are still lots of consequential opinions getting overlooked. Leah, Kate, and Melissa break them down– after a few more thoughts about Dobbs [5:32]. Plus, Melissa gets to finally flex her British Royals Brain in the court culture segment [1:05:28].

Opinions discussed:

Marietta Memorial Hospital v. Davita [20:23]

• A case about a Medicare statute and end-stage renal disease

US v. Taylor [25:24]

• A habeas with a positive outcome!

Carson v. Makin [43:41]

• In which the Supreme Court embiggens free exercise rights

Shoop v. Twyford [1:00:28]

• If you’re seeking relief, the answer is “no” & the only question is “why”

Berger v. NC State Conference of NAACP [1:01:56]

• Involves a challenge to North Carolina’s voter ID law

Becerra v. Empire Health [1:02:52]

• Related to Medicare reimbursement rates, with a really weird 5-4 line-up

Two more things:

1. If you missed our episode “What’s next in a post-Roe world,” you should definitely go back and listen to get a sense of the fight ahead.
2. You’re angry. We’re angry. Let’s do something about it. From directly supporting patients who need abortions right now, to electing pro-choice candidates in 2022 and building a progressive majority over the long term, you can find everything you need to fight back in our Fuck Bans Action Plan hub at votesaveamerica.com/roe.

 

TRANSCRIPT

 

 

Melissa Murray: [AD]

 

CLIP I’m devastated and terrified. And so many women and so many girls are going to die because of this. And I wanted to dedicate this next song to five members of the Supreme Court. Who showed us that at the end of the day, they truly don’t give a shit about freedom. The song goes out to the justices Samuel Alito. Clarence Thomas. Neil Gorsuch. Amy Coney Barrett, and Brett Kavanaugh, we hate you. We hate you.

 

SHOW INTRO

 

Melissa Murray: Hello and welcome back to Strict Scrutiny, your podcast about the Supreme Court and the legal culture and vibes that surround it. We’re your hosts for today. I’m Melissa Murray.

 

Leah Litman: I’m Leah Litman.

 

Kate Shaw: And I’m Kate Shaw. Now, this is another very dense episode, and it also feels a little surreal to be here in the wake of Dobbs, because it’s hard to think or talk about anything other than Dobbs in the end of row and constitutional protections in America.

 

Leah Litman: And constitutional law. Right to the extent that ever existed.

 

Kate Shaw: The end of constitutional law, it does feel like that. But.

 

Melissa Murray: Rest in peace. My syllabus.

 

Leah Litman: Right. Exactly. Exactly.

 

Kate Shaw: Right. We do have to return to teaching what used to be known as constitutional law next school year. But before we get there, we have a lot of other cases to cover. And the court isn’t even done yet. But just other than Dobbs and Brune in the last week, the court actually has been very busy. It almost seems like it has lit a fire under itself. So it is issuing opinions left, right and center,.

 

Melissa Murray: Mostly right.

 

Kate Shaw: Basically. All right. All right. That’s that is correct. But the point is that the pace has accelerated considerably as we raced to the end of June. And, you know, the justices vacations because really that’s the most important thing. But I actually do think there’s a good chance that they will finish the term this week, which did not look likely even a week ago. And I am sure they want to get the hell away from each other. So I suspect they are doing everything possible to get the opinions out and, you know, flee to far, far corners of the earth.

 

Melissa Murray: That feeling when you work at a toxic work place, right?

 

Leah Litman: Exactly. Yeah, exactly. There really is a lot going on at 1 First Street. Not only is the court issuing decisions at a breakneck speed and trying to make Dred Scott great again in the process, but we are or at least I am like still, you know, just on edge. I don’t know if that’s the right word, but just like feeling off after we got the opinion in Dobbs, I mean, on Thursday in Brune, the New York guns case, they were citing Dred Scott as a basis to invalidate gun restrictions. And then on Friday, they’re citing Brown as a basis to overrule Roe and take away rights to bodily autonomy. Like.

 

Melissa Murray: Sine they’re so woke Leah.  Like this is the court for racial justice. This is a racial justice court.

 

Kate Shaw: Both decisions really illustrate that. I think it’s pretty clear.

 

Leah Litman: CRT SCOTUS.

 

Melissa Murray: Super woke CRT SCOTUS.

 

Leah Litman: But you know, these huge decisions that we got as like a12 punch also means that a lot of really important decisions are getting overlooked in the discussion around the court. And that’s unfortunate. You know, these decisions aren’t as high profile as abortion and guns, nor are they as consequential. But they still are consequential. And they make clear just how maximalist this six three conservative super majority really is. And, you know, we did want to cover them. But before we.

 

Melissa Murray: Do, we think some of these decisions are as consequential as abortion and guns. I do. I think Carson versus Macon is very consequential.

 

Leah Litman: I think that’s very consequential. But just like seeing the reports about what is emerging like within 24 hours of Dobbs, I think it’s just hard to to even come close to, you know, how I mean, if.

 

Melissa Murray: You’re going to like if there’s going to be a hierarchy, then yes. DOBBS Is has the has had the most immediate impact.

 

Leah Litman: But that’s all I.

 

Melissa Murray: Just in terms of our like, you know, you know me, I’m thinking about the long game here. And I think Carson versus Megan really is part of this long game. And I’m surprised that more mainstream media isn’t covering it.

 

Leah Litman: It is part of the transition from the Supreme Court of the United States to the Supreme Court of Gilead. So, you know, that is.

 

Melissa Murray: Under his eye.

 

Leah Litman: Exactly. But before we actually covered the decisions that we really do want and intend to cover, did have some additions to our coverage of the opinion in Dobbs, because while, you know, we were all able to read the opinions before we recorded the episode, we recorded that episode within hours of the opinions released. And since that time, we’ve had additional time and space to read the opinions again and process them. And there were two passages from the joint dissent in particular that I wanted to highlight. One sounds a theme that we talked about on our emergency episode about Dobbs, which is whether we should be concerned about where this court is going next. So the joint dissent rights, faced with all of these connections between Roe and Casey and judicial decisions recognizing other constitutional rights, the majority tells everyone not to worry. It can, so it says, neatly extract the right to choose from the constitutional edifice without affecting any associated rights. Parentheses. Think of someone telling you that. The Jenga tower simply will not collapse. I think this is as pointed away for the joint dissenters to tell us to worry right as they can do. You know, likening this to the collapse of the Jenga tower, right to the collapse of constitutional law, saying, look, there are reasons to be concerned about what comes next. Also, this is so clearly Justice Kagan, like. I hear you, Elena. Right you. I got this. The second passage I wanted to highlight, I think was maybe written by another justice. And that was as follows: Closing our eyes to the suffering today’s decision will impose will not make that suffering disappear again. All rank speculation. If I had to guess, I think that’s Justice Sotomayor, right. It’s like so much in keeping with the tenor of her dissents from whole women’s health versus Jackson, the Texas SB eight case and others. And, you know, along those lines, as you know, Melissa and I were just talking about the consequences of the Dobbs decision are already being felt. Texas clinics stopped performing abortions. You know that the limited set of abortions they had been able to perform under Texas SB eight, the only abortion clinic in West Virginia stopped performing abortions. You know, the clinic staff spent Friday canceling appointments of 60, 70 patients and reports were patients broke down, couldn’t speak through that, sobbing. They were stunned. They didn’t know what to say. You know, several other states put their trigger laws into effect, including Arkansas. Injunctions against very restrictive abortion bans like heartbeat bills were lifted in Ohio and Alabama, allowing those laws to go into effect. Some places here in Michigan have stopped providing abortions because here in Michigan, there is a criminal abortion ban that completely bans abortion on the books that had been halted in light of Roe.

 

Melissa Murray: It’s a zombie law now coming back to life.

 

Leah Litman: It’s a zombie law. It is coming back. Now there is an injunction in place. A trial court enjoined the law, but that’s not the final say. And so some providers have opted to refuse to continue performing abortions.

 

Kate Shaw: Yeah. So in terms of immediate impact, right. So we are now less than 24 hours after the decision was issued. And by my count, it’s at least seven states that have completely or in large part already stopped providing abortion care. So incredibly widespread, immediate consequences.

 

Melissa Murray: So I’m actually not surprised by any of those developments. I mean, they’ve telegraphed that that’s what they would do. What did surprise me about this opinion, and I think it took a minute for it to sink in. For me, it was just there are very few women’s voices that are explicit in any of these opinions. And I know I know, Kate, you mentioned that the dissenters wrote together and there’s no sort of principle author. They all joined this. And there is, you know, power in that kind of, you know, vocalism, you know. But I wonder if that power is kind of muted when there are only three of you. And on an issue like this, where I think it would have been really powerful on its own for Justices Sotomayor and Kagan to write this dissent, to be named as the authors of this dissent, and then to have Justice Breyer as his swansong just join them, as opposed to being a named member of the trio.

 

Kate Shaw: So it would be captioned as the two authors, as Kagan and Sotomayor and then that.

 

Melissa Murray: That would have been more powerful.

 

Kate Shaw: Yeah. I mean, I understood, as I’ve also thought, a little bit more about it in light of the substantive critique of the dissent, that it’s really just about, you know, the proclivities and individuals in the majority that have changed that. That is the reason that we are getting the opinion we are getting in. DOBBS That I can see them wanting to depersonalize the dissent and right to say it is not about like the individual views of justices, because all of this should be about like higher principles and values. And so I understand the approach from that place. But what you’re suggesting wouldn’t be like, oh, there would be three separate dissents each, you know, under the name of one of the justices, but something sort of distinct. And I think that would have been a really good approach.

 

Melissa Murray: As it stands, there is not one

 

Kate Shaw: No women writing.

 

Melissa Murray: Woman solo voice here.

 

Leah Litman: Yeah.

 

Melissa Murray: Which is bonkers.

 

Kate Shaw: Yeah. I still do wonder whether Barrett had the opportunity, like was offered the opinion and turned it down

 

Melissa Murray: You do it, you got this. I’ll just join

 

Leah Litman: Jungle book, it’s a jungle book. And that’s a reference to Kate McKinnon’s delightful skit. If you have not seen it, look up Kate McKinnon’s impersonation of Justice Barrett after the draft opinion leaked. And you won’t regret it, Leroy Jenkins.

 

Kate Shaw: But not here, right? She’s silent. She’s she’s just unbelievably important pivotal vote player. All we can see is her unmistakable touch on the lady safe haven. You know, discussion in.

 

Melissa Murray: The light touch.

 

Leah Litman: Yeah.

 

Kate Shaw: Yeah. But that’s one of the thing, actually, sort of in a similar vein, just because I also in the 24 hours since we recorded have thought and read, we mention how largely unchanged the Alito final opinion was from the draft opinion that we all saw at the beginning of May. I don’t think I appreciate it because I haven’t seen a red line that it is basically verbatim the same opinion. And that is like that’s a move just to be like everyone has read this opinion. Tons of criticism.

 

Melissa Murray: Editing it’s for suckers. Revisions are for suckers.

 

Leah Litman: Right and also it like it really does give lie to this conceit about how the justices listen to counter arguments and how dissents improve opinions. And Sam is like, yeah, whatever. Right like.

 

Kate Shaw: Nope. Now he does respond, right? Both to the dissent and to the concurrences. But that’s essentially.

 

Leah Litman: In a nasty ad hominem way just by reiterating his arguments. But yes, he did add those those responsive passages.

 

Kate Shaw: But not to like any of the other identified shortcomings in the opinion. And one that was particularly conspicuous that we didn’t mention in our emergency episode was that.

 

Melissa Murray: Because it was a shameful event for me.

 

Kate Shaw: Well, there’s no shame on you. It’s shame. The shame is on Alito. But basically he retains the citation to the excellent brief that Melissa filed, along with Riva SIEGEL and Serena Mary, basically articulating the equal protection grounding for the abortion. Right, which is distinct from the grounding of the right in both Rowe and in Casey, although there is more of it in Casey than in Roe. And it’s a great brief, which we have mentioned previously. And so the site stays in, but the thinness of the rejection of the argument is not changed from the original draft. So there’s a citation to the brief. And then Alito just basically says the sex equality argument is foreclosed by our precedents and cites only good old EG, which we’ve talked about previously. And it’s just like in an opinion that takes a hatchet to precedent the way this opinion does, to say with a straight face, we decline to consider this other argument because it is foreclosed by president. They mean a side to it.

 

Melissa Murray: Because you can legitimately write in an opinion. This argument is squarely foreclosed by the fact that the people writing it have vaginas. But you can’t say that. I mean.

 

Leah Litman: This is what I mean. By the end of constitutional law.

 

Melissa Murray: This is literally like that feeling when you’re cited in a Supreme Court opinion, but by someone you hate.

 

Leah Litman: Yes.

 

Kate Shaw: It’s complicated. But I mean.

 

Leah Litman: Very complicated.

 

Kate Shaw: I mean and then again, there’s one short, extremely unsatisfying paragraph. And he says, Alito says, with this new theory addressed, we turn to Casey. And I mean, like, that’s it. But he never addressed anything.

 

Melissa Murray: No law, just vibes.

 

Leah Litman: Nailed it.

 

Kate Shaw: So he cited your brief and do you add that to your CV Melissa.

 

Melissa Murray: I mean, I actually I don’t know that I will add this to my CV. I mean, like literally I’m just sort of like I feel some kind of way about it.

 

Kate Shaw: Yeah, Shadow does too. I don’t if you can hear her, but she’s got this composition on this. Add it. Add it.

 

Leah Litman: And Shadow. I mean Shadow doesn’t even have a uterus and she is not happy with this. I was looking at my dog this morning and she was just like peacefully napping belly up. And I was like, That’s what it must feel like to not have a uterus right now.

 

Kate Shaw: Just bliss.

 

Leah Litman: Also, just quick and you know, as we’re ticking through the list of people I hold responsible and blame for this development and others to come. Did want to add Jim Comey to the list. You think back to 2016 election like I remember seeing the results and thinking, okay, this is Roe, this is contraception, here go, all of those things. And of course, Mitch McConnell blockading the appointment of Merrick Garland to the Supreme Court. These were precipitating events that got us to where we are today. Can I add to that?

 

Melissa Murray: All of the people who are like Hillary Clinton is a cop. Like, there’s no difference between her and Donald Trump. Like those people are on the list, too.

 

Leah Litman: Oh, yeah, definitely. Definitely. The “but her emails” crowd.

 

Melissa Murray: This all happened on November 8th, 2016. Yeah, that got dark really fast. Don’t worry though, listeners, we are going to do our best to lighten things up. There’s sure to be a little gin and tonic cocktail segment, but we don’t have that much to say about Gin herself this week. But it’s only Saturday morning, so who knows? But we definitely got some new and tantalizing details about all of the machinations around January six. So in the background of all of this. Dobbs For cocktail Michiganders, we also had the January 6th hearing dropping bombs left and right in one of the bombs that was dropped is that some members of Congress are not just representing the people but maybe seeking parties while they do it. So MAGA -Making Attorneys, Get Attorneys. Awesome.

 

Leah Litman: I mean, look, if if this court is basically allowing and encouraging governments to criminalize women for exercising their constitutional rights, like, should I be asking for a pardon? Like, should I be like, if there is a pardon list in the works, I’d like to be on it. I mean, it’s a question. It’s a question.

 

Kate Shaw: Yeah, it’s possible. We all need to be on that list.

 

Melissa Murray: Let’s tweet to the White House. Yes, if there’s a pardon list the ladies would like to be on it. Criming while podcasting.

 

Leah Litman: Podcasting is criming, right? We are speaking.

 

Kate Shaw: We’re speaking while possessing uteruses.

 

Leah Litman: Right.

 

Melissa Murray: Without the permission of our our commanders.

 

Melissa Murray: [AD].

 

Melissa Murray: All right. So let’s get into the cases. Kate, what’s the first one? Like, let’s.

 

Kate Shaw: This is hard, but, yes, we’re going to shift gears and walk through some of the non-Dobbs cases that we got last week. Okay. So head in the game. We’re going to begin with Marietta Memorial Hospital versus DaVita, which is a case about Medicare. So the Medicare statute says that a health insurance plan may not differentiate in the benefits it provides between individuals having stage renal disease and other individuals covered by such a plan on the basis of the existence of end stage renal disease, the need for renal dialysis or in any other manner. Here, a hospital insurance plan offered limited coverage for outpatient dialysis treatment. And the question in the case was whether the Medicare statute provided for disparate impact liability, which we will explain in a second. And if it did not, whether the plan provision unlawfully differentiated between people based on end stage renal disease.

 

Melissa Murray: We previewed this case earlier. So but let me just reiterate the first question here is whether the statute prohibits policies that have a, quote unquote, disparate impact on people with end stage renal disease. So policies whose result is to disadvantage people with end stage renal disease, even though there’s no specific language in the statute that actually calls out or in the policy that calls out people with end stage renal disease. So again, the text or purpose of the policy is not necessarily to disadvantage people with end stage renal disease, but it in fact has that impact nonetheless. And the court unanimously agreed that the statute did not provide for disparate impact liability. But it did divide 7 to 2 over whether the health care plan limiting coverage for outpatient dialysis treatment differentiated between people based on their having end stage renal disease. So Coach CAVANAUGH wrote for the majority and he said it did not because the plan treated everyone, whether you have renal disease or not equally and no one can get outpatient dialysis treatment. That seems like a really good outcome.

 

Leah Litman: I mean as Melissa’s laughter suggests. The dissent by Justice Kagan, joined by Justice Sotomayor, reacted like. But needing outpatient dialysis treatment is a pretty good proxy for having end stage renal disease. That is like there’s a.

 

Melissa Murray: Because you don’t get dialysis unless your kidneys are failing.

 

Leah Litman: Right.

 

Melissa Murray: As they do when you have end stage renal disease.

 

Leah Litman: Right. So the group that is affected by this plan provision is the group with end stage renal disease. And so Justice Kagan and Justice Sotomayor were like, okay, that means the plan does differentiate between people based on whether they have end stage renal disease. So this dispute and some remarkable passages in Justice Kagan’s dissent, which will highlight relates to something we talked about on our Pride episode with Chase Strangio and Joshua Matz, which is states and occasionally the federal government have made arguments along the lines that while these laws don’t discriminate on the basis of sexual orientation or gender identity, they just prohibit everyone from marrying a person of the same sex, or they just prohibit everyone from undergoing gender affirmation therapy. Ignoring, of course, the very close correlation between the things the statute prohibits and the very groups affected by them. So the fact that the Supreme Court embraced a version of this argument, albeit in a specific statutory context regarding Medicare, is concerning. You know, they’re not necessarily going to go to the point of embracing these specious distinctions. You know, in other anti-discrimination contexts, this decision certainly doesn’t alter the status of precedents like Obergefell on marriage equality, but it does make you wonder where this court might go. And Justice Kagan’s dissent includes a passage drawing these parallels. She notes outpatient dialysis is an almost perfect proxy for end stage renal disease because that is so common sense suggests we should not care whether a health plan differentiates on that basis. And then she cites decisions like Lawrence versus Texas that have explained that a penalty this is her writing that a penalty for homosexual conduct is a penalty for homosexual persons. She also quotes a line from the court’s prior cases which she had brought up at oral argument that attacks on wearing yarmulkes is a tax on Jews. So this majority opinion by Justice Kavanaugh, drawing a distinction between outpatient dialysis treatment and end stage renal disease, might be limited to this specific statutory context. The first footnote in the opinion suggests that it was significant in the court’s analysis that the statute was about differentiation in the context of health care benefits. But, you know, it’s hard to know how to take this given the chaotic energy coming out of the court. Justice Kagan’s closing line in the dissent was now Congress will have to fix a statute this. Court has broken.

 

Kate Shaw: So the next case we wanted to talk about was United States versus Taylor. This is an AQA case. That’s the Armed Career Criminal Act and it has a good outcome. And so the element is in her happy place discussing it. Let me describe the statutes that are involved in this case. So first is the Hobbs Act, which criminalizes robberies or attempted robberies with an interstate component. Then there is a provision of the Armed Career Criminal Act, or AHCA, which is a statute that authorizes enhanced penalties for individuals convicted of other crimes. And the provision at issue authorizes additional punishment for people who use a firearm in connection with a crime of violence.

 

Melissa Murray: The question in this case is whether an attempted Hobbs Act robbery qualifies as a crime of violence for purpose of the statute because it has, as an element, the attempted use of physical force against the person or property of another. And the court held that it is not a crime of violence in a typically overwrought opinion on statutory interpretation by your favorite proponent of the rights of criminal defendants, Neil Gorsuch, who wrote for a 7 to 2 court. So Leah, can you break down this amuse brush? Fantastic opinion for AKA defendants.

 

Leah Litman: So the court relies on something called the categorical approach, which we’ve talked about before. And if you are clerking is something you should know about because you will be using. Basically, it means that when courts are asking if a prior conviction qualifies as a crime of violence, they don’t ask. They can’t ask how any particular defendant committed the crime. That is the actual facts of the crime. The only relevant question is whether the crime at issue always requires the government to prove beyond a reasonable doubt as an element of its case. The relevant elements of the Armed Career Criminal Act here using, attempting to use or threatening to use force. And because Hobbs Act attempts only require the government to show a substantial step and an intent to unlawfully take her obtain property that doesn’t have, as an element, the use of force. Okay. So to explain this, Justice Gorsuch worked in a hypothetical from argument that was actually started by Justice Breyer and later picked up by Justice Barrett. And I personally appreciated Byers questioning, getting a nod and an opinion. So the quote, slight hypo that Justice Gorsuch discusses is suppose Adam tells a friend that he is planning to rob a particular store on a particular date. He drops a note your money or your life that he plans to pass to the cashier. When the day finally comes and Adam crosses the threshold into the store. The police immediately arrest him. The point is, he hasn’t actually threatened anyone since the person doesn’t know about it. That actually draws on a question from oral argument from Justice Breyer. So we’ll play that clip here.

 

Justice Breyer CLIP: I’m not answering the concrete. I mean, I probably am being overly imaginative. But my my, my, my experience suggests that there are quite a few cases where people might go into a bank, you know, and they’re going to rob it and they use a wooden gun or they use something that looks like a gun and they have something in their pocket that looks like, okay, so somebody goes and does go through enormous effort to get the right shape and the right guy, but is made out of wood, you know, and he walks into the bank and just is about to presented to the teller and say, Give me your money or your life or something. Before the policeman walks by, the teller turns the other way. And before the teller turns back, the policeman walks by goodbye. And to that.

 

Leah Litman: End, here is Justice Barrett picking up on that question.

 

CLIP I just want to be clear about what you’re conceding. So you’re saying, you know, if Justice Alito is right, I think the government has to answer whether. Such a thing as an attempt to threaten to use force. You’re saying that if someone is in the parking lot of a convenience store that they’ve cased out. Has in their pocket a note that is going to pass to the cashier saying your money or your life and also has a loaded gun on them, gets out of the car and starts walking towards the convenience store and then is intercepted. Because maybe, as the chief had posited, he’s confided his plans to a Confederate. And so there’s a way to prove intent. You’re saying that the government could not prosecute that as an attempt to threaten?

 

Kate Shaw: Yeah. It is nice that Gorsuch referenced the Breyer question. They got you got to give it him. Neil Gorsuch more gracious than Sam Alito. Feel like that’s sort of.

 

Melissa Murray: The bar is so low.

 

Leah Litman: I was about to say. Can you think offhand of someone less gracious than Sam Alito.

 

Kate Shaw: It is hard. I cannot.

 

Melissa Murray: This is sort of like, do you want a cookie for those? I mean, so you referenced a hypothetical that Breyer mentioned.

 

Kate Shaw: Without disparaging his elderly colleague who’s literally one foot out the door.

 

Melissa Murray: It is a nice gesture. I mean, it is the sort of things that ostensibly colleagues do for. Each other, especially as one of them is leaving.

 

Kate Shaw: The pickings are slim is my point here. And so.

 

Melissa Murray: Look at you with your Silver Linings Playbook, like who are you Bradley Cooper Jennifer Lawrence.

 

Kate Shaw: But it also. It also is a good, you know, the bottom line outcome good in this case. Right. So the Supreme Court rejects the idea that anyone who takes a substantial step has objectively threatened anyone. And it, you know, like, of course, and annoyingly relies on a slew of dictionary definitions in a footnote, right? Definitions of threat,.

 

Melissa Murray: Kels. Surprise.

 

Kate Shaw: I know.

 

Leah Litman: So they also reject the syllogism that if a crime would constitute a crime of violence and any attempt to commit the crime does as well a potentially important limit on ACCA. They also reject the idea that the Government can show a prior conviction is a crime of violence. Unless the defendant provides evidence about how his crime of conviction is normally committed or prosecuted, which again like.

 

Melissa Murray: Best practices for robbery. Robbery. Best practices.

 

Leah Litman: Yeah. I mean, that just would have been like a really tall ask of defendants and potentially greatly expanded the scope of the Armed Career Criminal Act, basically saying, you know, sure, the crime could hypothetically be committed in a way that didn’t include an element of force, but it usually is. And therefore, that’s good enough for an additional five to 10 to 15 years in prison.

 

Melissa Murray: So you know who objects to all of this?

 

Leah Litman: Let me guess.

 

Melissa Murray: This is a 7-2 decision. Who do you think are the two who are like “put them all in jail?’

 

Kate Shaw: If you’re John Eastman and you’re like, I’m pretty sure we wouldn’t get two votes. For Donald. Trump’s theory that he’s the king for life. Who do you think those two are?

 

Melissa Murray: I mean. I think, you know, so Justices Thomas and Alito dissented here. And they’re basically. The TLDR of the dissent is since the defendant would likely win under our precedents let’s throw the precedents out and abandon the categorical approach all together because say it with me. Stare decisis is for suckers.

 

Leah Litman: Yep.

 

Melissa Murray: Yeah. So anyway. The majority again, sort of shows a little bit of the internecine warfare that’s going on in the conservative bloc, which I love to see.

 

Kate Shaw: Right. Neil was nice to Steve Breyer, less nice to Thomas and Alito here.

 

Melissa Murray: Like, I mean, I think again, what you’re qualifying as nice is really extensive Kate but he does get in some choice digs at Thomas and Alito. So there is footnote one where he notes and this is Gorsuch speaking. Justice Thomas concedes that the foregoing analysis is correct under our categorical approach precedents. He contends only that we should overrule 30 years worth of our categorical approach precedents in order to relieve that, quote unquote, bind they place on prosecutors. But not even the prosecutors for whom Justice Thomas professes concern. Seek anything like that.

 

Leah Litman: Overruling 30 years worth of precedents. Well, that sounds bad. I mean.

 

Melissa Murray: I mean, heal thyself, right? But really, it’s really snarky.

 

Kate Shaw: I like the snarky voice you’re doing. I’m wondering whether whether we need to cast this part at all, because, you know, for a while, like I was trying to recruit Regé-Jean to who I guess is maybe coming back to Bridgerton have you guys.

 

Leah Litman: I did read that.

 

Melissa Murray: Intern Regé-Jean page like he’s oh I mean he’s been I mean I’m just going to say this between us, like he’s been falling down on the job lately, so obviously something else has been going.

 

Kate Shaw: You have stepped up and you were and I think you’re delivery of Gorsuch. I mean, this is like Gorsuch on statutes or this is just Gorsuch doing Gorsuch. But but it was going like I like there’s more stuff that you’re channeling now. Okay, sorry go on.

 

Melissa Murray: So let me like. So then there’s also footnote three where he really sticks it to Justice Alito. Justice Alito offers still another argument on the government’s behalf. Justice Alito acknowledges that his “some is good enough” approach defies this court’s precedents.

 

Leah Litman: Oh, yeah, most, most definitely.

 

Melissa Murray: He’s a Virgo. Just going to say this is big Virgo energy.

 

Leah Litman: But like as as I feel like we said one episode two episodes ago, it’s all a blur. It’s hard to keep track. Yeah, right. Like Neil Gorsuch, this is the only register in which Neil Gorsuch writes and speaks.

 

Melissa Murray: Basically, a broke clock is right twice a day. Right. This is Neil’s time.

 

Leah Litman: And footnotes one and three were those times.

 

Melissa Murray: That’s right? Twice. Twice.

 

Leah Litman: So this Taylor is a great outcome. But I, you know, per usual, need to be a bit of a wet blanket on the opinion for a second. Other people, unlike Mr. Taylor, will not be able to file what are called second or successive 20 to 55 motions. Based on this opinion in Taylor, you can only file second or successive motions based on new facts or new rules of constitutional law. But Taylor is an opinion that interprets a statute not invalidating it and after next term, a case we’ve. Alluded to. You won’t be able to file habeas petitions asking a court to correct your sentence either. That case is Jones versus Hendrix, where the court is going to say, if you were wrongly convicted or sentenced because of an error of statutory interpretation, no habeas for you. Even though these cases could result in people having received 120 additional months in prison that they shouldn’t have. The Armed Career Criminal Act mandates at least an additional five years for the enhancement. So just to come back to this, like without Johnson, other people after this opinion who were similarly incorrectly sentenced would not be able to get their sentences corrected if they are trying to file second or successive petitions, even though they were sentenced to an additional extra ten years in prison mistakenly. So again, like this is going to be great for defendants who have yet to be sentence or defendants who were just sentenced. But unclear if the court will allow courts to actually correct errors in prior cases. Also, I’m going to channel Neil and redirect it at Neil. In a passage of this opinion, Justice Gorsuch rights leader Mr. Taylor filed a federal habeas petition. Except he did not. Mr. Taylor filed a second successive 2255 motion. That is a motion to correct your sentence as part of your criminal case. It’s filed against the United States. You don’t file it against a detainer. It’s not a civil action. It’s like Neil. Do you even know what a federal he is? Petitioners even though you are about to just destroy habeas and I guess the answer is maybe not.

 

Kate Shaw: Wow. That was a very satisfying boom lawyered, Leah. Very satisfying.

 

Well, I mean, this goes back to a different point. You know, do you remember a couple of terms ago he had to issue an errata in an opinion like there was a lot. I don’t don’t you remember this? We talked about this on an earlier episode.

 

Kate Shaw: I’m remembering him his first like week or two on the bench, interrupting the chief to suggest that he really meant Interstate 80 as opposed to interstate 90.

 

Leah Litman: I remember that one.

 

Kate Shaw: And then had to walk back 10 minutes later after having requested an atlas to be like, Oh, sorry chief do you remember when I interrupted you and obnoxiously corrected you? You were actually right. And she was like, Why are you still talking? Yeah, I remember that.

 

Melissa Murray: So. So there’s that. But I mean I do actually think he has had to issue like formally issue errata and opinions because they messed up some sort of like weird facts from the record. Like,.

 

Kate Shaw: I’m thinking of Kavanaugh in a voting case.

 

Leah Litman: I remember Kavanaugh having to do that. Was Wisconsin or no Vermont. Vermont.

 

Kate Shaw: In the Wisconsin case.

 

Leah Litman: In the Wisconsin case, he had to do it.

 

Melissa Murray: Some clerks are going to get in trouble, I think is the point of all of this. Anyway. I’m not mad about it.

 

Kate Shaw: It’s still, important. Leah, I’m glad you corrected that record.

 

Melissa Murray: [AD].

 

Melissa Murray: The court also decided a major First Amendment case in Carson versus Macon. And as we previewed when we talked about this case earlier in our episode about the oral argument, we expected that the court would. Essentially read the establishment clause out of the Constitution and broadly refashion its free exercise jurisprudence. So at issue here was Maine’s tuition assistance voucher program. So Maine has this program because certain jurisdictions in Maine are too small or perhaps too rural to actually field a high school. And so in those particular jurisdictions, parents have the option to send their children to private schools, and the state will give them a voucher to defray the cost of doing so. The limit, though, on the voucher program was that the schools had to be nonsectarian, and Maine did that specifically because it was trying to avoid the problem of the establishment clause as dictated by the court’s earlier precedents on the establishment clause. So there shall be no establishment of religion. The state didn’t want to be seen as perhaps endorsing a particular religion, and so they only offered this tuition assistance to nonsectarian schools. The court in this particular case steps in and says that Maine, if they are going to have this tuition assistance program and they offer this benefit to those going to secular schools, they must also provide the benefit to parents who want to send their children to religious schools. So the idea here is that there has to be equality between those going to religious schools and those going to secular schools. And this development really, I think, is a continuation of an ongoing trend of picketing free exercise rights, at least for certain groups. And we’ll touch on that in a minute. And perhaps in embiggening free exercise rights, diminishing the scope and substance of the establishment clause, because we are essentially here requiring states, if they support nonsectarian schools, they must also affirmatively support religious schools.

 

Kate Shaw: Yeah, and not just religious schools, schools that are doing affirmative religious instruction. Right. So this case very much continues a trend that we have seen grow over the last couple of years, in a couple of cases, first, Trinity Lutheran, a case in which the court held that a program that would have provided funds for resurfacing playgrounds had to be available to religious schools. I mean, that was a decision in which Justice Breyer and Justice Kagan joined the conservatives. Then a couple of years later, Espinosa’s case we’ve covered on this podcast the court this time in a54 traditional conservative liberal split, held that the state of Montana couldn’t deny funds to religious schools just because they were religious, although in that case there was not a suggestion that these schools were putting the funds to religious instructional use. And in each of those two cases, the court was at pains to suggest it was deciding very limited questions, not throwing into question more broadly, the courts either free exercise or establishment clause jurisprudence, and then all of a sudden we get to Carson versus Macon. And the court basically says, even though we said we were making very limited moves in those previous cases, all our earlier cases have undermined the foundations of the precedents we have distinguished. And so we have no choice but to find this pretty dramatic thing, which is basically that where once states like Maine understood the Constitution to mean the establishment clause actually prohibited them from funding religious instruction with state dollars. The court has now not only said the establishment clause permits them to use state funds for religious instruction, but requires it. And that is a radical, radical transformation in a few decades.

 

Leah Litman: The establishment clause also for suckers.

 

Melissa Murray: The methodology, though, I think, is really worth highlighting here, because the Roberts courts does this constantly, like this is the way they basically dismantled public unions. You know, it started with, you know, one case, like we’re just sort of chipping away at this. Are there some problems with public unions in the First Amendment? I don’t know. Maybe. The next case. So I think there definitely some problems with public unions later. Like, you know, we’re not doing anything. And then like by the time they get to Janice, they’re like, we told you that there are all of these problems with public unions. So now we’re just doing away with all of these protections.

 

Kate Shaw: A fact way that I don’t think we noted when we previewed the case is that Justice Souter, who’s retired from the Supreme Court but still occasionally sits by designation on maybe just the First Circuit, maybe other courts of appeals occasionally. But primarily the First Circuit was actually on the panel that upheld this main scheme that the court has now struck down.

 

Melissa Murray: Noted liberals squish. No more suitors.

 

Kate Shaw: He got some love in the dissent in Dobbs, as we described in that emergency episode. Yeah, but, you know, they were like, Oh, this dinosaur.

 

Leah Litman: So as it kind of summarized, the court says the distinction between status and use for purposes. Is that the free exercise clause isn’t relevant. That is, not only can you not differentiate between entities based on their status as religious institutions, you also can’t distinguish between them based on whether they are using the funds for religious purposes either. Which I think is interesting to put alongside, you know, the Marietta opinion that we just highlighted and possible distinctions the court might embrace between conduct and status in the context of LGBTQ discrimination or, you know, in the context of Marietta discrimination in health care. And again, to see the court is embracing the idea that there is no such distinction in the free exercise clause, but maybe there is elsewhere. So Justice Breyer wrote the dissent that was joined by Justice Kagan and in part by Justice Sotomayor. And this was kind of the main principled dissent. There was a telling passage in the dissent that I think foreshadows or presages the Supreme Court’s forthcoming opinion in the Coach Kavanaugh prayer at religious football case Kennedy versus Bremerton. So in the passage in the dissent, Justice Breyer is listing off, you know, the court’s prior establishment clause jurisprudence and in a long string site in which he lists all of the ways in which the court used to say the establishment clause doesn’t allow state sponsored or state supported religion. He describes the court’s prior decision in Santa Fe Independent School District versus Doe as holding no prayers during public school football games.

 

Melissa Murray: We’ll see Steve.

 

Leah Litman: Exactly.

 

Melissa Murray: Justice Sotomayor dissented here. And this is a very fiery dissent that I think, again, reference the sort of trajectory and was calling attention to this trajectory. So she opens with this court, continues to dismantle the wall of separation between church and state that the framers fought to build. So, hey, we can do originalism, too.

 

Leah Litman: Yeah.

 

Melissa Murray: She then closes with what a difference five years makes. In 2017, I feared that the court in Trinity Lutheran was leading us to a place where separation of church and state is a constitutional slogan, not a constitutional commitment. Today, the court leads us to a place where separation of church and state becomes a constitutional violation, with growing concern for where this court will lead us next. I respectfully dissent. I mean, I think it’s a very good point. Like if you as a state are at all trying to avoid liability for violating the establishment clause based on this opinion, you have violated the free exercise clause.

 

Leah Litman: Yeah. Like they have made the establishment clause unconstitutional. Kind of.

 

Melissa Murray: I mean but they didn’t overrule it. So. I mean props to them.

 

Leah Litman: No exactly. They just extinguished it. It’s never relevant.

 

Melissa Murray: It’s like Miranda, it’s a right, but you can’t enforce it.

 

Leah Litman: Exactly.

 

Melissa Murray: Right.

 

Leah Litman: You can only trammel it. I do think it is interesting to think about, you know, the impact of Carson versus Macon alongside, you know, a disturbing trend over the last several decades of hollowing out public education. You know, we see today calls to pull books from public schools. We see trends of going after and attacking teachers. We discussed the don’t say gay law in the pride episode with Joshua Matz, or have also been horrific stories emerging out of jurisdictions that have limited the teaching of CRT in which they are going after teachers who attempt to discuss race in public schools. You know.

 

Melissa Murray: See also Ketanji Brown Jackson confirmation and the invocation of anti-racist baby.

 

Leah Litman: Yes, senator from Cancun always making great points. And, you know, there have been substantial limits and cutbacks on public school funding at the same time that the Supreme Court has permitted de facto segregation to increase in public schools. I wanted to give a shout out to the work of Caitlin Millot, a Clement fellow at Harvard Law School, who has a wonderful forthcoming paper on this topic called Education Democracy Nexus. It’s forthcoming in the Georgetown Law Journal. It is about how, rather than bolstering the project of public education, the court has worked over the past century to hobble the common school enterprise. And I think it’s interesting to consider or think about Carson as part of that larger phenomenon.

 

Kate Shaw: Okay. So we should note some guessing about opinion assignments. We know now that Kagan and Breyer didn’t get an opinion in December, even though there were nine cases in that sitting. So did an opinion flip. Do you guys think like maybe Cummings or do they literally just not evenly allocate majority opinions to Democratic appointees anymore?

 

Leah Litman: Democratic appointees are not allowed majority opinions anymore. This is a63 court.

 

Kate Shaw: I think that that. Be right, I guess, to be seen.

 

Melissa Murray: Right.

 

Leah Litman: So as we were suggesting, or as Melissa noted, while Carson is part of the beginning of the free exercise clause, there are questions about who exactly will benefit from those free exercise rights. And lest you think that this very religious protective court will recognize free exercise claims made by other religions, there was a post on the conservative libertarian blog, The Volokh Conspiracy, suggesting that at least when it comes to one religion, Judaism, no free exercise claim could or should ever succeed and.

 

Well, at least Reform Judaism. right?

 

Leah Litman: And conservative Judaism.

 

Kate Shaw: But Orthodox Judaism, he might be willing to suggest, does.

 

Melissa Murray: They seem committed, they seem committed.

 

Kate Shaw: Reformer, conservative.

 

Melissa Murray: Not sincere

 

Kate Shaw: Sorry to jump in, Leah.

 

Leah Litman: No, no, no. That that is an important distinction. And look, I don’t particularly like giving air time or oxygen to like off the wall offensive, anti-social, deranged anti-Semitic ideas. But I think it is important to note ideas bubbling up in the conservative legal movement so we can assess, like where the doctrine might be going and take necessary precautions and organize accordingly.

 

Melissa Murray: With that in mind, I think it’s worth noting a number of people, including I have talked about the prospect of the free exercise clause being used as a challenge to some of these abortion restrictions, because there are certain religions that require that the life of the pregnant person be prioritized over the fetus. And if an abortion is necessary to save that person’s life under religious law, then you have to proceed. And it’s a tenet of religion. So this seems to be animated by an interest in closing down free exercise as a restriction on state limits on abortion. But it also, as you’re suggesting, has more wide ranging consequences as to who gets the benefit of the free exercise clause.

 

Leah Litman: Yes. No, that’s absolutely right. So the specific post was actually written about the religious claims being brought by individuals of Jewish faith challenging Florida restrictions on abortions. And the gist of the post was, well, Jews, or at least reformed Jews and conservative Jews can’t make a free exercise claim because they’re not sincere about their religion and they don’t actually hold any religious obligations or commitments. I am not joking. These are quotes from The Post quote the legal concept of a substantial burden, which was developed in the context of Christian faith, does not neatly map onto a Jewish faith that does not actually impose any requirements on congregants. I continue. For Christians, perhaps quantifying the consequences of committing a sin is easier for Jews. However, the issue is far more complicated. Judaism is not a centralized religion. There is no Jewish equivalent of a pope. We often speak of orthodox, conservative and reformed Jews, but even within these categories there is no official or standardized set of teachings. I need to continue here. Moreover, every Jew can look to faith in his own fashion, and there is no obligation to be consistent. A Jew could hold one opinion in the morning and then change his mind over lunch and go back to the original position after dinner. The old saw two Jews. Three opinions is apt.

 

Melissa Murray: How did you read that? And not like have your head explode?

 

Leah Litman: I believe we have an obligation to inform people about what might be coming. Like what is counting as conservative legal thought these days? I mean, like this post is authored by the same person who spent like weeks and months after Dobbs saying if the Supreme Court doesn’t overrule Roe, it will be the end of the conservative legal movement. You know, it’s not that I value these statements, nor do I think they are legally sensible, accurate, coherent or defensible. But it is important to know what might be happening on the ground of their being legally indefensible. Michael Schwartzman, a professor at the University of Virginia, did a fantastic thread on Twitter about this post and how it is an assault on free exercise rights of liberal believers more generally and also legally wrong. He also has a coauthor piece with Dahlia Lithwick in Slate about it.

 

Kate Shaw: And we should also say that the argument that he’s making sort of seemed to sweep in just about every religion other than maybe Catholicism. And like some strains of Protestantism, like there are many, many religions, not just Judaism, are decentralized and come in many flavors and varieties. And it literally sounds like a couple of very sort of orthodox strains of Christianity are the only things that would qualify as religion in this formulation. And that is I mean, it’s a it feels incredibly both specific and anti-Semitic and offensive in that way. But somehow such an incredibly narrow sort of coverage range for free exercise claims in general.

 

Melissa Murray: Well, I’m just remembering Masterpiece Cakeshop and just Randy saying, like, you can’t actually state facts about the use of religion to defend particular views, because doing so would be to suggest that religion was instrumental and religious belief was insincere. Like what? I mean.

 

Leah Litman: It attacks some of what I at least personally think are like some of the most wonderful things about Reform Judaism. Not claiming to know all the answers, encouraging people to try to figure them out for themselves. Humility.

 

Melissa Murray: Humility is for suckers.

 

Kate Shaw: Right.

 

Melissa Murray: All right. Moving right along. And we’re going to fly through some of these other ones. Up next is United States versus Washington. This was a unanimous opinion written by Justice Breyer in which the court concluded that the Washington State Workers Compensation Scheme unconstitutionally discriminated against the federal government in violation of the supremacy clause. The case, which we previewed, involved a Washington workers compensation scheme that made it easier to establish causation in workers compensation cases and thus made it easier to get workers compensation where there were contracts at a federal nuclear facility in Washington. So under the court’s inter-governmental immunity cases, states can’t single out federal workers or federal property for less favorable treatment. And the court concluded here that Congress had not authorized the state to discriminate against the federal government in this way. So easy, breezy, consensus driven court.

 

Leah Litman: Another case we wanted to tick through is Shoup versus Twyford, a case that continues the trend of how in habeas cases, if you’re seeking relief, the answer is no. The only question is why. That being said, you know, the opinion is more minimalist than it could have been. It didn’t hold that the habeas statute stripped courts of jurisdiction under the All Writs Act, for example. The case.

 

Melissa Murray: The restraint. The restraint,.

 

Leah Litman: Such restraint. The case is a technical one. It holds that courts don’t have authority under the All Writs Act, a statute allowing them to issue various writs in aid of, you know, their jurisdiction over other matters, that they can’t use the All Writs Act to order a prisoner transported for medical testing unless the prisoner can offer a plausible explanation for how the procedure would produce evidence admissible in a habeas proceeding. However, in light of the court’s recent opinion in Shinn versus Martinez Ramirez, evidence is almost never going to be admissible in habeas proceedings. And the opinion here by Chief Justice Roberts definitely trades on the principles animating Martinez Ramirez and the notion that claimants all do fact development and investigation and state court proceedings. But of course, like sometimes you don’t know what claims you’re going to present until you gather evidence. And that just makes it hard to do here. Justice Breyer, Justice Sotomayor and Justice Kagan joined one dissent and Justice Gorsuch writer dissent for himself. All of them would have held, or at least declined to hear the case because they weren’t sure that the court had jurisdiction.

 

Melissa Murray: All right. Another case to highlight, this one a little more consequential, although this is a procedural question, is Burger versus North Carolina state conference of ACP. And this was a challenge. To or it involved a challenge, rather, to North Carolina’s voter ID law, which the Democratic AG was defending. But the Republican legislature in North Carolina did not think the Democratic AG was doing a good enough job of defending, or at least not defending it in the way that they would have done. So they asked the court to intervene. And so it’s really a procedural question. But the court held that, in fact, the Republican legislature could intervene, largely noting that under North Carolina’s statutory law, the legislature has the authority to intervene in cases where state law is called into question. So this was an 8 to 1 opinion by Gorsuch, not on the merits, just on this procedural issue. The merits issue will obviously be an interesting case, and we’ll see how that plays out below.

 

Kate Shaw: So the next case is Becerra versus Empire Health. This case is about reimbursements under Medicare Part A, and it produced a quite unusual five four lineup. Okay. So the case is about Medicare reimbursement rates. And just by way of brief background, people 65 and older are entitled to benefits under part A of Medicare. Medicare pays hospitals a fixed rate for inpatient hospital treatment, but the rate is subject to certain adjustments, including what’s called the disproportionate share hospital adjustment, which basically provides higher rates to hospitals that serve higher than usual percentages of low income patients. The question in this case was whether to count for purposes of determining whether a hospital would receive this adjustment. People who are eligible for Medicare, but for whom Medicare may not have paid either part or all of their hospital stay. So in this case, the court upheld an age regulation that counted these individuals for purposes of the disproportionate share hospital adjustment.

 

Leah Litman: So the case is another statutory interpretation case about the lawfulness of an agency’s regulation that fails to cite the Supreme Court’s decision in Chevron that had said agencies get deference when interpreting the statutes they administer. It also doesn’t really talk about the standard under which courts review agency regulations interpreting the statutes. This opinion is by Justice Kagan, a pretty staunch defender of the administrative state, and the opinion says, quote, HHS, the Department of Health and Human Services correctly construed the statute in its regulation. That formulation basically saying we court agree that this is how the statute should be interpreted, may have been necessary to keep the five justice majority, which consisted of three Democratic appointees and justices Thomas and Barrett, which is one of the stranger five, four lineups in a while. There was a dissent by Justice Kavanaugh for the four remaining Republican appointed justices.

 

Kate Shaw: Okay. Now I want to take a moment to briefly shout out Cardozo graduate Amanda Beck, who won the strict scrutiny swag bag. And Amanda, those are now collector’s items in there. Those are discontinued lines. I have not a whole lot left. So you’ve got some really good ones. Amanda was the winner of the Cardozo Public Service Auction in April. And I also want to shout out the graduates of 2021 to 2022 Cardozo Criminal Defense Clinic, with whom Amanda worked. The students were supervised by the fantastic Jonathan Oberman and Kathryn Miller.

 

Leah Litman: Katie Miller.

 

Kate Shaw: Yeah. Katie Miller And they spent the last two years doing incredibly important work with individuals in custody in inhumane and inexcusable conditions at Rikers Correctional Center. The clinic recently wrote a letter to the New York governor and mayor protesting those conditions and urging them to take action. Amanda, thank you for the great work. Good luck on the bar. You got this.

 

Melissa Murray: Now let’s shift into court culture. And, you know, we can talk a little bit about the January six developments. I mean, I don’t really know what more to say other than like members of Congress asking for pardons like WTA. Amazing. So let’s just sit with that for a minute. There are some other court culture that we’d like to call your attention to, and it brings together some of my favorite things not only the federal courts, but also the British royal family and of course, my particular favorite, and Meghan, the Duchess of Sussex. So perhaps, you know, listeners that the Duchess of Sussex has a half sister, Samantha Markle, who basically trolls her incessantly and just seems to be really jealous that the Duchess of Sussex is married to a very hot royal and is living her very best life in Montecito in a massive mansion with, I believe, 14 bathrooms, according to the Daily Mail. So she has filed a lawsuit against the Duchess of Sussex, alleging that the Duchess of Sussex has defamed her in various ways. And she particularly cites the publication of Omid Scobie and Carolyn Durant’s book, Finding Freedom, which, as you know, is not written by the Duchess of Sussex, but actually discusses her and her husband’s decision to leave the royal family. But I digress. Leaving aside the absolutely if cocked defamation claim, there were a number of procedural motions in this case. Among them, Samantha Markle, actually requested that the district court judge who was assigned to this case, that’s Judge Charlene E Honeywell, be recused because she was appointed by President Obama and as Samantha Markle alleged. In her request to disqualify the judge from presiding over the case. The Obamas, Prince Harry and the duchess have a very close relationship. And because President Obama appointed this Judge to serve on the federal judiciary in 2009, she should be recused from hearing the case because she has this close personal relationship with President Obama. Judge Honeywell, to her credit, took this as seriously as one could, given the circumstances, and made sure that Samantha Markle understood that her claim had been heard. So this is what Judge Honeywell writes. President Obama’s appointment of the undersigned without more does not serve as a basis for recusal, honey. She did not say honey, but, you know, an objective, disinterested lay observer, fully informed of these facts, would not entertain significant doubt about the undersides impartiality. Boom lawyered. This order denying the disqualification motion comes three weeks after Samantha Markle had filed an amended complaint against the Duchess of Sussex, again seeking damages for defamation and injurious falsehood which the Duchess of Sussex has asked to be dismissed entirely. So we will definitely cover this breathlessly as more becomes available. But, props to you Judge Honeywell, for taking this seriously and giving it perhaps more respect and airtime than it deserved.

 

Leah Litman: I am so glad we found a way to incorporate Meghan Markle into the podcast. Melissa.

 

Melissa Murray: I feel slightly better. Thank you. Thank you for letting me do this.

 

Kate Shaw: I think we should end there rather than talk about January six.

 

Leah Litman: Yeah.

 

Kate Shaw: Right.

 

Leah Litman: Right.

 

Kate Shaw: Let’s like.

 

Leah Litman: Yeah, let’s not go back down.

 

Kate Shaw: Leave everyone with a little a little light dessert. Yeah. No, I mean, we got some pretty stunning revelations in the last week of hearings that we do need to talk about on a future episode. But let’s not do that today.

 

Melissa Murray: I mean, I still can’t get over, like, congressmen needing pardons.

 

Kate Shaw: MmmHmm. Or, like, the stuff inside DOJ which was so much crazier than we had realized.

 

Leah Litman: Oh, my God.

 

Melissa Murray:  The best is like, as all of that’s dropping, Jeff Clark is basically getting raided.

 

Leah Litman: Yes.

 

Melissa Murray: All right. So let’s end.

 

Kate Shaw: We’re leaving leaving our listeners in suspense. I think good. Narratively.

 

Melissa Murray: More to come. More to come as always. Hey there, listeners, you’re angry. We’re angry. Let’s go do something about it. From directly supporting patients who need abortions right now to electing pro-choice candidates in 2022 and building a progressive majority over the long term, you’ll find everything you need to fight back in our fuck bands action plan hub at Vote Save America dot com forward slash ROE. Strict Scrutiny is a Crooked Media production hosted and executive produced by Leah Litman, Melissa Murray, and Kate Shaw. It’s produced and edited by Melanie Rowell, Audio Engineering by Kyle Seglin with Music by Eddie Cooper and production support from Michael Martinez, Sandy Girard and Ari Schwartz and digital support from Amelia Montooth. And this summer we have intern support from Anoushka Chander. Thanks for listening. In order to support our show, we need the help of some great advertisers, and we want to make sure those advertisers are ones you will actually want to hear about. So go to POD Survey Dot com forward slash  Scrutiny and take a quick anonymous survey that will help us get to know you better. That way we can bring on advertisers you don’t want to skip. Once you’ve completed the Quick Survey, you can also enter for a chance to win a $100 Amazon gift card. Terms and conditions apply. But again, that’s pod survey dot com slash scrutiny P-O-D-S-U-R-V-E-Y dot com slash scrutiny S-C-R-U-T-I-N-Y. Thanks so much for your help.