In This Episode
We’re only one week into 2024, and there’s so much news to catch up on! Melissa, Leah, and Kate discuss ProPublica’s reporting about rich guys giving Justice Thomas money when he hinted at retiring because his salary as a justice was too low. Then, they look to the latest in state courts, which are deciding issues such as Donald Trump’s presidential eligibility, women’s access to emergency abortion care, and fairly drawn electoral maps. After some quick previews of the cases the Supreme Court will hear this week, they welcome special guest Ross Rayburn, Peloton instructor and author of Turning Inward: The Practice of Introversion for a Calm, Joyful, Authentic Life. Ross shares advice for staying sane in this election year, and insights on how listening to Strict Scrutiny is actually a form of meditation.
- Read ProPublica’s reporting: “A ‘Delicate Matter’: Clarence Thomas’ Private Complaints About Money Sparked Fears He Would Resign“
- Read Punish Treason, Reward Loyalty: The Forgotten Goals of Constitutional Reform After the Civil War, by Mark A. Graber
- Read the Fifth Circuit’s opinion in the EMTALA case we covered last November
- Get a copy of Ross Rayburn’s book, Turning Inward: The Practice of Introversion for a Calm, Joyful, Authentic Life
- Code STRICT10 gets you 10% off at bookshop.org!
Show Intro Mister Chief Justice. May it please the court. It’s an old joke, but when an argued man argues against two beautiful ladies like this they’re going to have the last word. She spoke not elegantly, but with unmistakable clarity. She said. I ask no favor for my sex. All I ask of our brethren is that they take their feet off our necks.
Melissa Murray Hello, and welcome back to Strict Scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it. We are your hosts. I’m Melissa Murray.
Leah Litman I’m Leah Litman.
Kate Shaw And I’m Kate Shaw. The court has a lot on its plate in the January sitting that starts this week. But because we tried to take a real break over the last couple of weeks, there was also a ton of legal news that we need to catch you up on. So we’re going to cover some of the big legal news and court culture topics first, and we will then move on to a relatively quick preview of the January cases, or at least the cases that will be argued during the first week of the two week January sitting.
Melissa Murray Don’t worry though, we are going to go into all of the January cases in more depth when we recap them after oral arguments and in future episodes, so do not worry, we’re going to get you up to date. But after we do the quick previews of the cases that are being heard this week, we are then going to have a very special additional court culture segment at the end of the episode, and that additional segment is going to help us stay sane and centered for what is shaping up to be another bonkers year at the Supreme Court.
Leah Litman And now for some of that court culture and legal news. So ProPublica gave us a little end of year stocking stuffer the day our Favorite Things episode came out. Great timing guys. Um, the gist of their latest story is that conservative billionaires basically stepped up to create a Go Fund Me for Clarence Thomas, after Thomas complained to Republican officials that his judicial salary was so low he was considering stepping down.
Kate Shaw So in case you didn’t have a chance to read it or you did, but it now seems like it was surely some like eggnog induced holiday fever dream. Let’s walk through some of the reporting in one of the most jaw-dropping episodes in the piece, ProPublica reports that on a flight back from awakening, which is a conservative conference.
Melissa Murray That sounds very much like Eyes Wide Shut, the Stanley Kubrick movie.
Kate Shaw Ironically, made me think of Life Spring, which, if you can’t remember what that is, look it up. Um. But back to the flight and the ProPublica reporting. So to quote the piece, quote, Thomas brought up the prospect of justices resigning to representative Cliff Stearns, the Republican lawmaker. Close quote. According to the reporting, it was clear that these resignation impulses were animated by concerns that the justices salaries were too low. And after the flight, Stearns wrote a letter to Thomas promising to, quote, look into a bill to raise the salaries of members of the Supreme Court. The letter goes on to say, quote, as we agreed, it is worth a lot to Americans to have the Constitution properly interpreted. Close quote.
Leah Litman How much exactly billionaires?
Kate Shaw A lot. Many private jet rides. Many, many, many. So the letter continues. In case this all wasn’t really clear already, we must have the proper incentives here too.
Leah Litman It’s giving Stringer Bell. You taking notes on a motherfucking criminal conspiracy again, you dolts.
Melissa Murray The here to is really interesting. Which suggests like there are other efforts afoot for these incentives.
Kate Shaw Yeah. Yeah.
Melissa Murray And here too, these same kinds of incentives are really critical. So I want to know about these the other efforts. Doesn’t that beg to question and also.
Leah Litman ProPublica.
Melissa Murray Get on it.
Leah Litman That’s on you.
Kate Shaw This just like your 2024 agenda. No. But it really does have this like nice conservative majority you got. There would be a shame if anything happened to it. Quality to it. Yeah. So the story then feels almost like a Rosetta Stone. That kind of unlocks the meaning of all of the rest of the ProPublica, A New York Times and other reporting over the course of the last year, which is that this effort was quite deliberate to provide Justice Thomas in particular, maybe others, who knows. But with the lavish conditions that would ensure that he remain in public office, as opposed to seek something more remunerative in the private sector like that seems to be the story.
Melissa Murray Let’s say it a different way, Kate. Um, these perks, boondoggles, private jet rides, boarding school tuition, refurbishing the house, all of these were just sort of soft money gifts to make it tolerable for Justice Thomas to live on a salary of $276,000 a year. Let that sink in.
Leah Litman Yeah. I mean, like, you know, in his defense, um, it would take a lot more for me to have to sit in a room and have conversations with Sam Alito, like day to day, year to year, than whatever the annual salary for a Supreme Court justice is.
Melissa Murray But, you know, I spent a lot of time watching Love Actually over this break. And I’m like that lady at the end where she’s like, eight is a lot like David, like $276,000 is a lot of money. Yes, it’s a lot of money. And like the fact that he needs a private jet and, like, all this other stuff is bonkers.
Kate Shaw Look, obviously it’s not comparable to what he would make in the private sector, but that’s always been the deal with public service. And there also are a lot of ancillary benefits that attach to government service. You have a staff you have access to, like any fancy piece of artwork you want, you can be driven to and from the court. So I actually think the 275 really understates what it means to live as a court justice. Pretty dramatic.
Melissa Murray You get to write a book that no one otherwise would give a fuck about.
Kate Shaw And maybe make millions of dollars. Yeah. No. So, so. And they can supplement with teaching income and things like that. So you know, I do think I do feel like there were people out there, even on the left who are like, you know, 275 or someone who’s been practicing. Look, it’s obviously a lot of money in objective terms, but in terms of what he would make as a law firm partner, it is way, way less. And yet I don’t think that actually captures what it means. Not even in terms of political and cultural capital and status, but actually like the material conditions of your existence, I think look different than what I $275,000 salary would otherwise afford.
Leah Litman So this sounds bad. Does everyone agree?
Melissa Murray I mean, yeah, let’s leaving aside, like whether or not $276,000 a year is a lot of money or not, if you think this all sounds like weird suspect cronyism, you are obviously mistaken and wrong because it’s not right. So the article explains that, quote, George Priest, a Yale Law School professor who has vacationed with Thomas and Crow, told ProPublica he believes Crow’s generosity was not intended to influence Thomas’s views, but rather to make his life more comfortable. Quote. He views Thomas as a Supreme Court justice as having a limited salary. Priest went on to say, quote, so he provides benefits for him, end quote. And the Tldr of this is kind of what is the big deal? You all are making too much of this. This is just like softening the blow of being a public servant. For someone who’s been a public servant since he was like 41, like, this is all very, very normal. Stop bitching Libs.
Kate Shaw Well, he’s been a public servant for most, right? With the exception of that brief period.
Melissa Murray I’m talking specific time on the bench where it seems not accepting gifts from large donors.
Kate Shaw I’m just saying I’m not sure he was not accepting gifts. Right. I think some of the ProPublica reporting suggests that even back in the EEOC days, he may have already been inclined to accept.
Melissa Murray But maybe it’s actually even more important not to at the time he ascends to the bench.
Kate Shaw It’s probably right.
Leah Litman Whatever the case, you know, the level of shamelessness of the George Priest quote is, for me, giving. Like the Real Housewives of Salt Lake City level of finale shamelessness like Monica is not who you say she is. You are an internet and troll and cyberbully. Um. Because just a reminder for listeners that George Priest is the same Yale law professor who then theater judge Alex Kozinski called when Kozinski needed a clerk and George Priest recommended his favorite pickup, basketball player Brett Kavanaugh. And this is very consistent, of course, with Republicans position that they are a Workers Party now. And, you know, just to be consistent in pointing out the hypocrisy on both sides, I’d like to note the Democrats say they are a workers party and support raising wages until it’s a Supreme Court justice wanting a bunch of perks above and beyond. They’re guaranteed, you know, 200 plus thousand dollars a year salary for life and various other ancillary benefits like, why do you try to keep the working man down? Democrats?
Melissa Murray What has Joe Biden done to help an unemployed, nonprofessional basketball player in his term? Not one thing. Not one thing.
Kate Shaw I feel like that that that should lead the presidential campaign ads. Absolutely.
Leah Litman And we’re wondering why there’s flagging support for the Biden administration and in.
Melissa Murray Justice for pickup basketball players and clerkships for them to.
Kate Shaw And Supreme Court appointance as well. Ultimately all of it. So back to the specifics of the ProPublica story. It seems like we have reached the point at which possible violations of the law by Supreme Court justices are kind of relegated to the status of parenthetical in these ProPublica stories. So the story includes this line, quote, Thomas reported 11 free trips that year on his annual financial disclosure, mostly to colleges and universities, but did not disclose the conservative conference. That’s the Awakening Conference, an apparent violation of federal disclosure law. We don’t know what went down at that conference, but I have to be fair. And I mean, look, it’s just an aside in the piece, but certainly the facts do suggest strongly. That there was a violation of the federal disclosure law there. And I do hope that congressional Democrats, who do seem to be starting 2024 with a little bit of fire in their bellies, will do something about this, because it’s really important to not allow this stuff to be normalized, including in the form of just like casual asides in bombshell reporting that no one does anything to follow up on follow up.
Melissa Murray So onto other news. In our New Year’s episode, friend of the pod, Jonathan Van Ness asked us to do more on the state courts. A big part of state court dockets right now is basically devoted to deciding whether or not Donald Trump can actually appear on a state’s ballot, either in a presidential primary or in a general election. So boom. Lawyered up, state courts, back in the news.
Kate Shaw And other state actors as well. So there’s been a lot of news since we last recorded. So we’re gonna have to be brief in covering it. But first, the Maine Secretary of State determined pursuant to a state process under which voters can challenge candidate eligibility, that Trump is ineligible to appear on that state’s ballot. But she also said, given the novelty and the importance of the question, that her ruling, that is the state secretary of state’s ruling wouldn’t go into effect until courts had had a chance to review it. Okay, so that’s mean. Also, before the holiday and before the main ruling, the Colorado Supreme Court ruled that Trump was ineligible to appear on that state’s presidential primary ballot. They also stayed their ruling until the day before the ballots would be printed, or until there was Supreme Court review of the decision, provided that Trump asked for Supreme Court review before January 4th, which he then did. So that decision remains stayed. And actually, after we sat down to record this episode, the court granted the petitions asking for review of the Colorado Supreme Court decision. So that is now added to the court’s already loaded docket for this winter and spring.
Melissa Murray So the question whether Trump can appear on a state’s ballot turns on section three of the 14th amendment, which provides, quote, no person shall hold any office, civil or military, under the United States or under any state who, having previously taken an oath as an officer of the United States to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same or given aid or comfort to the enemies thereof. But Congress may, by a vote of two thirds of each House, remove such disability and quote. So on a previous episode, we rattled off all of the legal questions that courts would encounter in trying to determine whether section three of the 14th Amendment disqualified Donald Trump. But some of those questions include one whether the provision applies to the office of the president, to whether courts can disqualify someone absent an act of Congress authorizing such disqualification. Three whether states can disqualify someone absent a similar act of Congress for what actually constitutes a finding that someone was engaged in an insurrection, um, do you have to have a criminal conviction of insurrection? If so, under what criminal statutes would that be plausible? Then you have to decide, number five, whether Trump was engaged in an insurrection and then six, whether the stuff that Trump allegedly did in furtherance of an insurrection was consistent with the First Amendment and protections for free speech, so does he get a get out of jail free card because a free speech, essentially. And then finally, whether the processes that states have set up to resolve these qualification and disqualification questions comply with other constitutional guarantees, like, for example, the Due Process Clause of the 14th Amendment.
Kate Shaw For the most part, Trump would just need to prevail on one of these arguments of the list that Melissa just offered. So either the provision doesn’t apply to presidents or Congress has to pass enabling legislation, or the state proceedings in, say, Colorado weren’t sufficient for making this kind of finding. Put differently, right, the entities trying to keep Trump off the ballot have to run the table to keep him off. So we’re not going to spend time now getting deep into the weeds of each of these arguments. But we cannot resist offering just a few thoughts. And we will start with some big picture thoughts on how to think about all of this.
Leah Litman We didn’t do a Festivus episode. Hindsight’s 2020. Um, so I have a bunch of grievances I would like to level at people for how this issue has been covered, at least in some quarters. One big complaint I have is how some pundits, commentators, scholars have seized on Trump’s argument that enforcing this provision would be undemocratic. And they might mean that in a few different ways. One, it might be undemocratic because doing so limits the options in election two, they might mean it’s undemocratic because courts are enforcing a constitutional provision against elected officials. But if you think about that for even just one second, limiting the options in the political process is how most of constitutional law works. Rowe limited political options it said state legislatures couldn’t force women to become septic in parking lots. And I don’t see the Supreme Court justices saying, oh, we can’t enforce the Second Amendment because that’s undemocratic and hasn’t been understood to confer an individual right to own firearms for 200 years, plus enforcing some things against the political process and limiting political options. The is undemocratic because some things are preconditions for democracy to function like hypothetically or not. So hypothetically, if a legislature said women can’t have health care or autonomy. Invalidating that law wouldn’t be undemocratic. It would be undemocratic in the sense that courts would be overturning a law passed by the political branches. But I’m going to go out on a limb and say that would still be okay for democracy. And this particular provision, section three, is a provision designed to facilitate multiracial democracy, like unlike other requirements like the president, be a natural born citizen of a certain age, which I don’t see people declaring that unenforceable because it would be like on democratically preventing fetuses from becoming commander in chief. You know, to me, like in order to think about this issue or this question, you have to think about stuff like the aftermath of reconstruction and redemption, what happened when you didn’t punish insurrectionists and let them back into power? I don’t think this is an easy question, or that there’s an easy answer as to which way the high politics of democracy cut. Um, you know, I think you’d have to think about, like, where the greater risks to democracy lie and what courts proper role should be. But these arguments about why it’s undemocratic to enforce section three don’t cut it. And to me, they are just part of a larger campaign to neuter the 14th amendment because conservatives don’t like it.
Melissa Murray Well, I think it’s easier to do all of this work if you have no idea what reconstruction or redemption is, because you basically made it illegal to teach any of those things in a public school.
Leah Litman That’s fair. Thank you Ron DeSantis
Melissa Murray Again. That’s that broader question, as you were mentioning. Um, right. So I’ll just say one thing. I think the Supreme Court is going to go in for a very surgical way to kind of get in and out of this. And as you say, Donald Trump only needs to prevail on one of these arguments to win here. And I think the cleanest way to deal with this without ever having to delve into the history. Well, I don’t actually don’t you have to delve into the history somewhat, but you don’t really dig into it too much because there is an existing case. But I think you could say, and I think the court will say, that you actually need enabling legislation in order for this to happen. And since there is none here that wipes the question off the table, not just in Colorado but in every state, and they can get to say they’re following precedent because they’re following Griffin’s case, which is a circuit justice case. But justice what what’s what Leah what?
Leah Litman I hate this argument. I hate the enabling legislation arguement because what it’s says.
Melissa Murray I don’t necessarily like it. I mean.
Leah Litman I know, but like you can summarize it, but then I get like a little rant.
Melissa Murray It’s like wearing polo shirt, I mean, like I don’t love it, but it matches my khakis like I, I’ll put it on. It’s serviceable. Like I think it’s a serviceable argument for them.
Leah Litman It’s not actually serviceable because the rest of the 14th amendment like section one, which guarantees equal protection of the law.
Melissa Murray We don’t care about that when this is perfectly serviceable? Yes.
Leah Litman Even if Congress doesn’t pass the statute enabling it and like section three of the 14th Amendment is an essential component of reconstruction.
Melissa Murray It’s all dicta. It’s all dicta, Leah.
Leah Litman I know, I know. Um, but I don’t know if you all read Mark Gravor’s book, Punish Treason, reward Loyalty, but it really makes, I think, just an overwhelmingly persuasive case that these kinds of provisions were understood as integral to reconstruction and and the idea that those parts would be unenforceable to me is just so silly.
Melissa Murray Well. So again, I think just thinking about what is an expedient and practical way because, I mean, just as a practical matter, I don’t think there is any way that this court is going to allow the Colorado decision to stand because it would create a patchwork quilt before the election. And I think they just don’t want that.
Leah Litman Predictively 100% with you.
Melissa Murray I think, and this is not my own thought, but this is something that I’m cribbing from Darrell Miller of Duke Law School. This is kind of like a ticket to ride like this one. Good for one trip only. Like this issue.
Leah Litman Bush versus gore.
Melissa Murray I mean, I don’t know that this question is going to come up over and over and over again in the future. It seems like very specific, very idiosyncratic for this particular candidate. And, you know, the way you decide it for this particular candidate will have real repercussions for the incentives that other people have to use this provision going forward. And I think they just want to cut it off at the knees.
Kate Shaw But also the enabling. The enabling went to Leah’s point, enabling legislation as a basis for like taking an off ramp. Does that call into question like the actual enforceability of other provisions, the Constitution’s, including of the Fourth Amendment, like maybe it all requires enabling legislation?
Melissa Murray I mean, that’s a twofer, right?
Leah Litman Exactly.
Melissa Murray Super two-fer.
Kate Shaw Where is the problem?
Leah Litman Two birds. One stone What’s the problem?
Kate Shaw Yeah, yeah, I agree, like with the predictive claim, Melissa, that that seems very likely. And I also agree with Lee. And I think you agree too, Melissa, that it’s a I don’t think that’s a good argument. Um, so I find this all really hard, not because that argument is hard or really on the merits. Like, honestly, I think that if you take the Constitution seriously and that means like it’s words in context, it’s values, the consequences of different potential rulings like Trump should be ineligible. Like, I actually don’t think it’s hard on the merits, but I do think the kind of question of sort of constitutional politics are hard. I don’t know what the court should do here. I just like, I know how bothered I am by some of the arguments that I have heard made. And there is this. Kind of general chorus that has been, I think, kind of bipartisan, cross ideological, which is just like the Supreme Court must decide this and.
Leah Litman Eww. Those guys? Really?.
Kate Shaw Exactly. It’s like the uniformity argument is powerful. That makes sense. Like a patchwork where ballots look totally different from the perspective of the major party candidate across the country seems intolerable, on the other hand. Right. It just is so uncritically accepting of this notion that only the Supreme Court can decide the most important questions in our democracy. Like, that’s something that I feel like we have been working very, very hard to resist, you know, in the podcast and elsewhere for a long time. And so like that as the kind of precondition to all of those arguments to the court must still be in, I think, revives this notion of the Supreme Court as the ultimate and only arbiter of the meaning of the Constitution. And even if that might practically be the case here, like, I don’t want to uncritically accept that. And so I think a lot of people, no matter what they think the right answer, is, like all seem to agree that the court has to answer the question. And I am really troubled by that assumption.
Leah Litman Yes. I mean, like me too, because like, ordinary politics are also happening, right? Like people tried to convince the Republican Party to let Trump go with the January 6th hearings and opportunities to disavow Trump. And they are still happening now. And like I’m also concerned about giving the court and courts outsized role in our democracy. But at least some of these cases, like Maine, arose in the context of another institution. Unofficial. Yeah. Concluding Trump is disqualified. So courts like, hypothetically could say our role is just to decide whether that determination falls within the bounds of some zone of reasonableness, of like, constitutional democracy. But of course, that’s not what they’re going to do. But I did hear you.
Kate Shaw Another sort of strain of commentary that has also just driven me bonkers is this suggestion that, you know, people invoking the 14th amendment, section three are like doing this in some sort of, you know, in the hopes that it will serve as this deus ex machina and like, it’ll be this easy out that will let us avoid the messy and difficult work of like, politics and democracy. And like that is, I think, wildly unfounded, in part because of what you just alluded to, like the messy and hard work of politics and electoral democracy happened in 2020. It resulted in the resounding defeat of an incumbent, which is not a super common event historically, and that defeated incumbent attempted to cling to power using multiple lawless means in ways that should disqualify him from future office holding. Like that’s the argument. I think it’s a sound one. And so this is not about avoiding politics. This is about, you know, meting out constitutional consequences for an effort to completely usurp politics and democracy. So I think that that argument gets it basically exactly backwards.
Leah Litman Yeah. And if I could just say one thing about Griffin’s case, which is the case, Melissa, that you noted that the justices like might rely on to say that enabling legislation is required to enforce section three. And that was, as you said, a case that a Supreme Court justice sitting as a circuit judge decided. But the case is pretty thin because the specific issue in the case was basically whether to invalidate all of the acts of these provisional governments set up in the former Confederacy. And that’s a very different question than deciding ex-ante whether someone is qualified to run for office versus whether you are going to say, actually, this government that’s been doing all of these things to set things up in the wake of the Civil War, we’re actually going to say everything they did is unlawful, right? There are doctrines like de facto officer and whatnot that basically say even if someone is might be like illegally appointed or whatnot, you still can invalidate everything they do. And so the idea that that case resolves it also like is not exactly the firm support the Supreme Court might suggested it. Well.
Melissa Murray That’s the the last part is, I think, really important because I think a lot of the people who have been harping on and on about Griffin’s case are taking a very a nuanced view of it. And I think the court’s likely to pare it back that very a nuanced view. Um, speaking of nuanced views, though, a very wise man once said that there are no Trump judges or Obama judges, there are just federal judges doing their level best. I bring this up because Donald Trump’s lawyers seem to be feeling pretty confident that, in fact, there are some Trump Justices that they have gone so far as to suggest that one Brett Kavanaugh, uh, formerly unemployed pickup basketball player come law clerk, will fight for Donald Trump in much the same way Donald Trump fought for Brett Kavanaugh, resulting in him having a lifetime appointment to the highest court in the land. So let’s play this clip. I think it should be a slam dunk in the Supreme Court. I have faith in them. You know, people like, um, Kavanaugh, who the president fought for, who the president went through hell to get into place. He’ll step up. I like that she used basketball analogies to chef’s kiss.
Kate Shaw Like giving a little like the ref Stearns on the plane. Like you do something for me and I’ll do something for you is sort of like the Thomas conversation with ProPublica reporting.
Melissa Murray You scratch my back, I’ll scratch yours. All right, so we’re joking a little bit about, you know, the idea that Donald Trump thinks some of the justices are in the bag for him, but I will. Also make clear that there are some people who are becoming literally unhinged about the prospect of the court taking on these cases, and the threat of political violence here is actually quite real. So the Maine Secretary of State has been the victim of a swatting attempt after her decision to disqualify Donald Trump from that state’s ballot. And there have been threats against the justices of the Colorado Supreme Court, as well as that state’s secretary of state. CNN reported that someone allegedly broke into the Colorado Supreme Court building and opened fire while holding a guard hostage. So again, all of this is in response to that state court’s decision to disqualify Donald Trump from the ballot in Colorado.
Kate Shaw So in other Trump related news, since we last recorded, the Supreme Court denied cert before judgment in Special Counsel Jack Smith’s case against Trump related to January 6th. Recall that Trump is arguing here that he is immune from prosecution. He is basically saying that if the president does it, it is not illegal, and he’s making a couple of other similar claims. And Jack Smith asked the Supreme Court to quickly resolve these questions so that a trial could proceed as scheduled this spring. He was seeking what’s called cert before judgment, asking the court essentially to agree to bypass the Court of Appeals and to directly hear the appeal from the district court. I thought there was a decent chance the court actually would grant cert before judgment, because I thought it would look so bad not to. But I think the petition was undermined by the D.C. Circuit’s decision to set a very fast argument in the appeal from the district court. So I think that the Supreme Court could be understood to have denied cert before judgment in order to let that court take a quick first pass. And I do hope and I expect that the D.C. circuit will decide the case very quickly. So Scotus will again have the question whether to take it up and to decide it swiftly so the trial can happen or not, like it’ll really be in the Supreme Court’s hands at that point.
Melissa Murray So there was a lot of discussion on cable news and elsewhere about whether this was an unalloyed victory for Donald Trump or, you know, this is just a very minor delay, given that the D.C. circuit will hear oral arguments on Tuesday, January 9th, which is tomorrow. But but I guess I just want to say, I do think it is kind of a tactical victory for him, because I think at this point in time, given the limited amount of time for a trial, like any delay is really a problem. And, you know, there’s going to be an argument before judges Henderson, Pan and Chiles, we don’t know if there might be an en banc review of any decision from that panel. And then it goes to the court. We don’t know how long the court will take to take up a petition for review. So, I mean. I think this is a tactical victory for him because it adds more time to the clock, and there just isn’t that much cushion here for all of this to happen in time for the election. And so, you know, it’s possible we could get a quick panel decision with a limited stay in order to push this along. But again, all of the other things that I mentioned, I think are in the offing and are real possibilities, and we’ll just have to see. But it seems clear that the Supreme Court is definitely not willing, in this case, to do the kinds of things that we have seen the Supreme Court do in other issues, where it has been very happy to grant cert before judgment. See, for example, all of the times they did it for the Trump administration. Um, all of the times they did it with affirmative action, for example. So, uh. It feels a little inconsistent, but I’m not surprised. Right. So this is another kill surprise moment, and we’ll just have to wait and see if there is going to be a trial before the summer and before the election.
Leah Litman I think we’ve heard a rumor about what might happen, or someone who might be present at this DC circuit oral arguement.
Melissa Murray That’s what happens when you hang out in Washington, DC, which I don’t do that often, but I like was just hanging out in an elevator and I heard a little hot tip, and that hot tip was that one DJT might be in the audience at the DC circuit on January 9th, when his case is literally pled before that three judge panel. So .
Leah Litman How do you think that’s going to go?
Melissa Murray I mean, this is this is not a man who’s a repeat player in the appellate audience. Um, like, does he know how to behave? There? I mean, this is not a place where, you know, it’s not like a district court or a trial court.
Kate Shaw He has been pretty docile when he’s appeared in courtrooms. I would say today it’s like when he is the defendant in court. So I think he’s like, now he’s had a lot of practice in the last few weeks.
Melissa Murray I mean, that’s true. That’s that’s that he had been a repeat player in court.
Kate Shaw I accept him not to disrupt the proceedings. I will say from in terms of him in the audience he was at, I was in the Supreme Court for the Gorsuch investiture, and he was there. I’m pretty sure that’s when it was. And he was sitting in the front row of like the justices benches. And if you been inside the Supreme Court courtroom, like everything is really small, like the benches are small, the seats are small. And Donald Trump is a very tall and large man. And like, he kind of looked like like Will Ferrell in those scenes in Elf.
Melissa Murray Elf on the shelf.
Kate Shaw He’s like sitting on where, you know, what he’s like sitting on the elf sized, you know, like toilet and table and stuff. And he just like his knees or like in his nose. It was sort of like what Donald Trump in the Supreme Court looked like to me. I don’t know the dimensions of the D.C. circuit court room, so I don’t know if he’s going to look similar there.
Leah Litman I’m kind of hoping there will be some, like live tweeting or live posting on social from the arguments, but who knows?
Melissa Murray I’m really interested to find out what happens during that oral argument. Um, I do love that Kaid is the one that everyone thinks is the nice one, and she never snarks, and she literally just dropped Donald Trump. Look like Will Ferrell sitting on an elf toilet.
Kate Shaw And not allegedly. I saw him with my eyes.
Leah Litman New year. New Kate. She’s getting real, getting curious.
Kate Shaw I as also a full minute early to start our recording. Um. Ooh, that’s a good segue, though because per JVN we need to spend more time talking about state courts. And on our Favorite Things episode, we discuss the oral arguments in the Wisconsin Supreme Court challenging the state’s heavily gerrymandered state legislative maps, and that court delivered an early Christmas present for democracy by invalidating those maps not on the ground that there are Partizan gerrymander. But the four three opinion, written by Justice Karen Ski, concluded the maps violated the state constitutional requirement that districts be contiguous.
Leah Litman And on the merits. The opinion is like a super straightforward application of the text of the state constitution, which requires districts to be constructed from contiguous territories. But in some ways the most interesting part of this case were the dissents, which were practically feral. Um, not all that surprising, uh, given the practically feral participation by the dissenters during the oral argument in the case. So I’m just going to start with, um, the first sentence from Justice Rebecca Bradlee’s dissent, quote, riding a Trojan horse named contiguity, the majority breaches the lines of demarcation separating the judiciary from the political branches in order to transfer power from one political party to another bracket. Just the horrific writing girl. Read the fucking Iliad. Like, read the fucking Iliad. Do you know how a Trojan horse works? You can’t ride a Trojan horse. It doesn’t work if you do. The whole point is that you hide in it so as not to appear.
Kate Shaw Details.
Melissa Murray The fourth sentence of the opening paragraph explains that quote. These handmaidens of the Democratic Party trample the rule of law, dishonor the institution of the judiciary, and undermine democracy, end quote. And somebody obviously got a book of the Month Club membership last year, because not only is she not reading the Iliad, she might also not be reading The Handmaid’s Tale. She’s just like ordering these books, and they’re on her shelf and she just occasionally quotes them. But I just want to explain to Justice Bradley that the political party that is actually associated with forced childbirth and the denigration of women is not the party of the majority in this decision. Like wrong party, wrong book. Wrong horse.
Leah Litman She did, uh, cite a book that she does seem to understand, and that is Robert Bork’s The Tempting of America. Um, that factored into, uh, Justice Bradley’s dissent and Chief Justice Ziegler’s dissent. For her part, not much better. Um, she noted that she was vociferously dissenting, which I think is like the strenuously object equivalent for judicial. Dissents. Um, and yeah, that’s that’s gives you a little taste of what was going on in the Wisconsin Supreme Court. But the Wisconsin Supreme Court told the legislature, you can submit new proposed maps. We’re not going to allow a Partizan gerrymander because we court have to maintain political neutrality. And the court said, because timing is of the essence, given the forthcoming election, we will proceed with considering our own remedial maps in the event you fuck this up and don’t give us anything workable.
Kate Shaw This is a state constitutional law decision on the contiguity requirement in the state constitution. It feels on the merits like air tight, insulated from potential Supreme Court mischief and review. The dissenters make some suggestion there’s like some federal due process issue related to Justice Janet’s participation. That seems totally wrong to me. So I think this stands and there will be new maps. And before we leave this topic, can I just show you guys what I’m drinking my tea out of.
Leah Litman Supreme Court of Wisconsin mug. Nice.
Kate Shaw I got this mug. We got it when we were in Madison conference. And, uh, feel like it’s good for the segment. All right. Onward. We got the Fifth Circuit’s ruling in the Taylor case. We talked about this case in our November recap episode when the Fifth Circuit heard oral argument. And this is the case where the state of Texas is challenging guidance the Biden administration issued on whether a federal law I’m Tala, which stands for the Emergency Medical Treatment and Active Labor Act, allows states to enforce abortion bans where an abortion is, in a hospital’s professional judgment, necessary for stabilizing care.
Melissa Murray A district court said that the Biden administration could not enforce its guidance to prevent Texas from enforcing its abortion ban, even in circumstances where hospital providers believe an abortion is necessary for stabilizing care and, surprise, shocking. The Fifth Circuit with a panel of two Trump judges agreed. The Fifth Circuit’s ruling means that if an emergency room concludes that an abortion is necessary for stabilizing care, it it doesn’t matter because Texas law governs and Texas could still prosecute the provider. If Texas disagrees with the e.R. Providers judgment or thinks that an abortion isn’t permitted under the exceptions to Texas’s law. And as we know from the state courts in the Amanda Zukowski cases, it’s not entirely clear what Texas law means in terms of what exemptions are permitted and what circumstances are not sufficiently exigent to warrant the invocation of the exemption law. So all of this, again, continues to be utterly terrifying. But, you know. That’s Texas.
Kate Shaw The decision was basically expected based on the oral argument. And in this case, remember, we highlighted the way the challenger’s lawyer likened this guidance and requiring stabilizing care for abortions to organ transplants, where doctors go out and take someone’s organ if a patient needs an organ transplant, and that would stabilize them. So let’s remind folks of that exchange with this clip.
Clip The organ donation example, I think, makes it very, very clear that physicians are not authorized or required by Ayatollah to act outside the law. There could be a circumstance where a patient comes into the E.R. and the only way to stabilize them is an organ transplant. No one would think that the hospital has violated them, Tala, by failing to go and unlawfully steal an organ or somehow acquire an organ outside of the governing law.
Leah Litman Um. Despite being expected, the Fifth Circuit opinion is not persuasive. It boils down to a few fallacies we wanted to highlight. One is, as Melissa noted, that Texas law contains a real exemption that, in effect, does what an tala would do, namely allows abortions that are medically necessary. Um, this is belied by just about everything we know. We have the entire Zurawski case, which documents how doctors are not able to provide abortions they deem medically necessary. Texas insisted in that case that Texas law was somehow not responsible for denying women the abortions, because Texas Attorney General Ken Paxton had personally threatened them with liability if they got an abortion. But then, in the Kate Cox case, when Texas Attorney General Ken Paxton did threaten hospitals with liability if they provide the Cox with an abortion, the Texas Supreme Court still said if doctors can provide an abortion if they want to. And that, of course, is a load of hogwash like this exemption isn’t available like medically necessary abortions in Texas are not happening.
Kate Shaw Yeah. So that is enormous error number one. Error number two is the Fifth Circuit’s basically eliding the difference between and tala not requiring any particular care. And and Tala not barring state laws that prohibit care that doctors provide. So the Fifth Circuit repeatedly insists that I’m tala doesn’t require any particular form of health care. Okay, fine. Stipulated. But here we are talking about instances where doctors, in their professional judgment, believe an abortion is necessary for stabilizing care. They want to they believe they need to in order to care for their patients, perform abortions. And the Fifth Circuit is saying, and Tala doesn’t permit them to do so by blocking the enforcement of a state law that prohibits doctors from providing care that doctors conclude is necessary stabilizing care.
Melissa Murray We would also be remiss if we did not point out all of the ways in which this case and this opinion are, as we often put it, fetal personhood, curious fetal personhood forward, if you will, which is to say that it flirts with the idea that fetuses are people with rights. So here’s a clip from the oral argument.
Clip Yes, Your Honor but congress. Person is sort of antithetical to the unborn child’s well-being, right?
Melissa Murray So basically, fetal personhood is being bandied about to support the idea that the Constitution treats the fetus as a person for purposes of rights, and therefore requires abortion to be criminally prescribed. It’s essentially flirting with the prospect of a judicially ordered nationwide ban on abortion. I mean, like, isn’t that where this is going? Am I making this up?
Kate Shaw Laying the rhetorical ground. Obviously, that’s not the actual explicit claim in this case, but it is very much laying the both rhetorical and legal and cultural groundwork for ultimately making that ask. I think it’s, you know, we’ve talked about seeing this coming, but I think it’s coming at least just.
Melissa Murray In some ways, that I think it’s a counter to what the Zurawski and Cox cases do, which which I think is like not only playing to a court of law, but also the court of public opinion, where it’s like informing the public, like everything you thought about abortion is like completely wrong. It’s actually women like you with wanted pregnancies who have health problems, who are going to be denied abortions in ways that may threaten your future health. And that’s shifting the social meaning of what it means to seek abortion care. And I think in the same way, the sort of casual use of the sort of fetal personhood curious forward rhetoric is attempting to counteract what the Zurawski and Cox cases are doing and shift the Overton Window toward thinking about the fetus as an entity imbued with constitutional rights that courts are obliged to protect.
Leah Litman And this issue, though not this case, is now headed to the Supreme Court. Late Friday, the court decided to hear an emergency application from the state of Idaho that sought permission to enforce that state’s near-total abortion ban. The Ninth Circuit had let stand an injunction that prevented the state from enforcing its abortion ban, to the extent the ban conflicted with the Biden administration’s guidance that EMTALA required hospitals to be able to perform abortions, that the hospitals, in their professional judgment, determined were necessary for stabilizing care. So now the Supreme Court is going to wade into whether women are entitled to life saving, health saving medical care. And apparently that was only the first week of January. It’s already time for some bad decisions at the Supreme Court, because the court said Idaho could enforce its near-total abortion ban, while the court decides this very case, putting the lower court injunction on hold. So now this important issue, whether women can get abortions necessary for stabilizing care and the disqualification issue are on the Supreme Court’s docket. The case will be argued in April and disqualification at a special session in February. So, taking some more of JVN’s notes for us in the new year and carrying them forward, we also wanted to highlight a related story that is about the stakes of the upcoming 2024 election, with a focus on issues we talk a lot about on the show, including reproductive rights and effective government, specifically the administrative state. So The Washington Post has a very deeply reported piece about how the anti-abortion movement is once again coalescing around the presumptive Republican nominee, Donald Trump, because of his plans for ending reproductive rights. Even more so, the piece highlights several different tools a new Republican administration could use to further restrict reproductive freedom and women’s health care, most of which we’ve talked about on the show before but wanted to underscore here.
Melissa Murray So one is reviving and enforcing the Comstock Act. The Comstock Act is a Victorian era anti-virus law, and the idea here is that you could use this law, which has been in a state of desperate sued for years and years, but you could again start using it in order to impose criminal penalties on medication abortion providers and individuals who distribute medication abortion materials like the two pill protocols through the mails or through other forms of interstate commerce. And this is one of the theories in the medication abortion case that a future GOP administration could ask the Supreme Court to adopt in order to further limit abortion access.
Kate Shaw And another tactic if you’re not able to prevail in these arguments in the courts and you know this, that they might not and the, you know, Comstock Act is not pending before the court now. And there’s obviously the if oppressed own challenge pending, but that could lose. So if you can’t get the courts to endorse this vision, another tactic would be to use agencies like the FDA and Health and Human Services to crack down on medication abortion and have those agencies themselves ban or restrict medication to. And while we know the Fifth Circuit and district judges in that circuit and lots of other places love nothing more than second guessing administrative agencies when they act to protect women’s health care. We are, I think, comfortable going out on a limb and saying that they might be okay with having agencies restrict those same things, I don’t know, is that crazy? Could they be that inconsistent?
Leah Litman Uh, I think it’s possible.
Kate Shaw I think it’s possible. But look, these are all the things, whether we’re talking about judicial or administrative, that could happen without any need to federally pass a nationwide abortion ban, which, of course, is also a possibility with a Republican trifecta. But there’s lots of other things that could happen that would have largely or functionally the same effect as such a nationwide ban.
Leah Litman Indeed.
Melissa Murray [AD].
Leah Litman Now onto the bad court.
Melissa Murray Okay. The preview. So this week the court will be hearing a number of cases, among them FBI versus Fikre. This is a case about the court’s power to hear challenges to the no fly list. And Leah, can you explain what the no fly list is? I mean, I think we all know sort of have an idea, but this is actually more complicated.
Leah Litman Well, it’s difficult to describe because there isn’t actually a law authorizing the no fly list, which some people might say means the government’s ability to bar people from flying is a major question that shouldn’t be lightly inferred from statute. So I’m eagerly awaiting the Chief Justice and Brett Kavanaugh using the major questions doctrine to invalidate it. But I won’t hold my breath.
Melissa Murray Keep waiting.
Kate Shaw Don’t hold your breath for that. In terms of what we are talking about when we talk about this, a textual no fly list, there is a center that is overseen by the FBI that maintains a terrorism watch list. And one part of that watch list is what is known as the no fly list, essentially a list of names of individuals who can’t fly into or out of, or within, or I think even over the United States. And some people on the list may also be required to undergo enhanced security screening. So the respondent is a US citizen who says that while he was in Sudan in April of 2010, FBI officials questioned him about his ties to a mosque and then told him he was on this no fly list and could not return to the US, and then offered to remove his name from the no fly list if he became an informant. He refused. He moved to the UAE. He says that he was then abducted, and says his abductors told him the FBI had requested his detention. He subsequently flew to Sweden. Sweden denied him asylum and deported him back to the United States.
Melissa Murray He filed suit challenging the no fly list while he was in Sweden. In May of 2013, the government moved to dismiss his complaint because he hadn’t exhausted his administrative remedies by filing a request with the Department for Homeland Security to review his placement on the no fly list. So he did that, and then the government kept him on the no fly list for a few years afterwards, but then removed him from the list in May of 2016. So the question arose because there’s a broader issue about whether or not this case is moot, that is, whether there is actually a live case or controversy for the court to decide, since the suit challenging his placement on the no fly list is about that question, and he’s no longer on the no fly list. So this is a question about whether there still exists a case or controversy for the court to weigh in on.
Kate Shaw The district court concluded that the case was moot and so dismissed it. The court said the case couldn’t be heard under the so-called voluntary cessation doctrine, which provides that even if a case is technically moot, the court can still hear it if the defendant voluntarily ceased the illegal conduct, but did that in a way that suggests the illegal conduct would or might recur after a court dismissed the case. Basically, the doctrine exists to prevent gamesmanship, so to to prevent defendants from stopping engaging in the offensive or illegal conduct, thereby muting the case and then resuming the offensive or illegal conduct.
Melissa Murray And for all of those reasons, the bar for invoking voluntary cessation is very high. So those seeking to mute a case on the ground that the offender stopped doing the offensive conduct have to actually show that there’s almost no likelihood that the offender will subsequently resume the conduct. And with that high standard in mind, the Court of Appeals here reversed the district court’s decision, moving the case, saying that it wasn’t absolutely clear the allegedly wrongful behavior could not reasonably be expected to recur. End quote.
Leah Litman And the question in this case is whether a challenge, the no fly list becomes moot when the person challenging the no fly list is removed from the list, and the federal government provides a sworn declaration that says they won’t be placed on the no fly list in the future based on currently available information. The case has important implications, not just for no fly list challenges, which of course are important themselves, but also for other civil rights challenges which the government can sometimes try to move by stopping, perhaps temporarily, the conduct that’s being challenged.
Melissa Murray All right. So one of the things I’m really going to be looking forward to in that oral argument is how to actually pronounce the litigants name. Is it Fikre? Fikre? Like, I had lots of different options, but I am actually very interested. I hope the guy who did Jarkesy is there who can help us out. Um, in any event, it also happens to be takings month at Scotus and the court is apparently ready to start the new year off right by thinking about hobbling not only the administrative state, but also state and local government. So buckle up, America, at least as long as we have roads to drive on. So first up for Takings week is a case called Sheetz versus County of El Dorado, California. And this case is about whether you can challenge certain kinds of permit exactions under the court’s takings jurisprudence. And for those of you who are not familiar with it, the Takings Clause of the Fifth Amendment provides that private property shall not be taken for public use without just compensation, and the 14th Amendment incorporates that provision by preventing the states from depriving individuals of life, liberty and property without due process of law.
Kate Shaw Permit action is just a condition the government puts on obtaining a permit. The permit exemption here was enacted by the California Legislature. It imposes fees on property owners who propose and develop new projects that increase traffic on public roads. And the fee schedule is based on the kind of development involved, whether it’s single family or commercial.
Melissa Murray The petitioner here challenged this fee schedule, saying that it was an unconstitutional condition on his property and was effectively a taking of his property, i.e. by extracting this kind of permit requirement, the government effectively took away his property or limited its value in some way. Since there wasn’t a nexus and proportionality between the permit condition, the fee he owed, and the public impact. The fee was designed to address the increased traffic or the burdens on the public roads, and the fee in this case was sizable was about $23,000. And so he says that is a taking of his property.
Leah Litman And the California court said the fee could not be challenged under the Supreme Court cases requiring a nexus and rough proportionality between fees and the public impact they’re designed to address, because this particular fee was generally applicable. It was enacted by the legislature and applied to everyone according to the terms set by that law, and was not applied to an individual on an ad hoc discretionary basis.
Melissa Murray Right. So with some real can’t stop, won’t stop energy. The court is also going to hear another takings case next week. That one is called Devillier versus Texas. I mean is it Devillier? I hope so. That sounds really fun. Devillier versus Texas or Devillier versus Texas? Either way, this case is about whether a person can bring suit, specifically whether they are authorized to bring suit when their property has been taken without compensation. If the legislature has not provided them with a cause of action to do so. So just a reminder, a cause of action is some provision of law that authorizes an individual to bring suit. It might be in a statute, it might be implied by the Constitution or.
Leah Litman Or not, because the court has in recent years been extremely hostile to implied rights of action under either statutes or the Constitution. The Supreme Court has cut back on Bivens the cause of action, allowing you to sue federal officers who violate your constitutional right for damages. It’s cut back on ex parte Yang, which allows you to sue officers for injunctions to stop them from violating constitutional rights. It’s cut back on implied rights of action under statutes in cases like Alexander versus Sandoval. Gonzaga versus Doe, Armstrong versus Exceptional childcare center and the a circuit session, we’ve talked about that said, private parties can’t bring suit to enforce. The Voting Rights Act is a part of this trend. But and here’s the bud the court loves, loves the takings clause. So I think they are going to find a private right of action here somehow, someway.
Kate Shaw So the case here arose out of a Texas highway project that cause flooding allegedly caused intentional flooding. A group of local landowners filed suit in state court. Texas removed the case to federal court, and Texas said the owners did not have a cause of action for their suit. The federal civil rights statute, section 1983, doesn’t allow you to sue the state. Only state officials who enforce state law. And Texas said they didn’t have a cause of action under the takings class.
Leah Litman To me, you know, this case calls to mind and relates to the SB eight case. You know, the bounty hunter law that Texas enacted to nullify abortion there. The court said it’s no big deal. Texas can write a law to get around our cases that allow private parties to sue state officials who violate the Constitution. And who cares if that means a right is nullified? And here, I think the court might be, I don’t know, troubled by the fact that Texas has affected taking in a way that might not give these plaintiffs someone to sue in order to get a remedy. And so I think the court is just going to say the Constitution allows them to sue in those circumstances, which, of course, will be very consistent and judicial, by which I mean not especially judicious at all.
Melissa Murray All right. Stepping back from the takings clause for a minute, the court is also going to hear a major case on the Confrontation Clause. This case is called Smith versus Arizona. The Confrontation Clause is a provision of the Sixth Amendment that says that in all criminal prosecutions, the accused enjoys the right to be confronted by the witnesses against him.
Kate Shaw The question here is whether the Confrontation Clause allows the government to present testimony by a substitute expert who relays the testimony of a non testifying forensic analyst. So imagine the state puts on a stand a lab technician who performed a drug test. But part of their conclusion relied on things that other lab techs did or said. And those other lab techs aren’t put on the stand. The state argued that was permissible because the testifying expert offered some independent opinion, and the non testifying analyst statements were not offered for their truth, but just to explain the expert’s opinion.
Leah Litman So some background to explain this case and the issues in it. In a previous case Melendez Diaz versus Massachusetts, the Supreme Court said the Confrontation Clause applies to testimony about drug analysis. That is, the government can’t just introduce an evidence certificate or lab report that says this substance tested positive for cocaine and they have to put on the stand a witness, a lab technician, to testify about the results. Then in Williams versus Illinois, the court said the Confrontation Clause does not prohibit testifying experts from relying on the findings of non testifying experts to reach their conclusions. There, the non testifying expert had identified forensic evidence on the victim and a separate sample from the accused and then matched the results, i.e. had to rely on some things other lab technicians did. But technically in that case, it was just a plurality of four justices who made that broad rule that testifying experts, you know, could not rely on findings or opinions of non testifying experts. Justice Thomas concurred, writing only for himself, saying that the particular statements did not trigger the Confrontation Clause because he has somewhat idiosyncratic views. Shocking. I know about the Confrontation Clause and what it means.
Kate Shaw So this case is a follow on to the two cases. Leah just mentioned Melendez, Diaz and Williams, and it’s really about the future of the confrontation Clause. So all of the recent appointments and changes in the court’s personnel raise the possibility that the court’s Confrontation Clause jurisprudence might fundamentally change.
Melissa Murray Why is that Kate? Because this is about law, not people.
Kate Shaw I mean, this is an interesting area actually, because here it’s not just that you have more conservative justices, you have previously had more liberal justices. And so things like the right to abortion are all of a sudden gone here. It’s actually some of these conservative four conservative substitutions might change. So I think it is interestingly different from some of the other doctrinal changes we have seen in, you know, recent terms. And that’s because, Justice Scalia, in addition to Justice Ginsburg, but, you know, sort of notably among the conservatives, Justice Scalia was very protective of the Confrontation Clause. So Scalia and Ginsburg get replaced by Gorsuch and Barrett, respectively. And then Kennedy and Pryor were not that protective of the confrontation Clause in the right to confront witnesses. They were replaced by Kavanaugh and Jackson. Williams was A414 opinion. So there could be movement between that decision. And now it may be that. Gorsuch is aligned with Scalia on Confrontation Clause. I think we just don’t know yet. I do think it.
Leah Litman You think it will take them more than ten minutes to decide?
Melissa Murray He doesn’t want to actually confront time.
Kate Shaw This is a far more important question. This is. This is an important question, like a takings clause case would involve. I see. Yeah. It’ll it’ll it’ll take hours. Yeah, yeah.
Melissa Murray All right. So we’re going to learn something about the future of the confrontation Clause. In this case we also may learn something about whether different justices make for different jurisprudence. I am honestly befuddled by that possibility, since I think it’s more normal and wants to normalize that whole thing. Good for her. But all to say that this is a super important issue in criminal prosecution. So we’ll be watching this avidly.
Kate Shaw And in more. You know, huge change could be in the offing. News. We’re going to have to be brief on this, but we do have, during the second week of this sitting, another pair of cases that are part of the general 2024 as the end of the administrative state year. That pair of cases is low, bright versus Raimondo and relentless versus Department of Commerce.
Melissa Murray Relentless is exactly the right caption.
Kate Shaw We waited. We waited. We got the right court and now we’re taking the shot. Yeah. So these are the cases that represent this full frontal attack on Chevron and deference to administrative agencies.
Melissa Murray Do not worry. We are going to cover these cases in more depth in future episodes. We’re also going to try and find out if the conservative legal movement literally found a litigant named relentless in much the same way the Lovings came to the court, because they’re trolling us at this point. But we will we will try and figure that out. This is all to say that these cases are about the future of the administrative state, and whether we are going to literally give the authority to interpret federal statutes to federal courts alone, or whether there will be some role for independent agencies and the experts who are housed within them to make some of these determinations about the millions of questions that agencies now decide.
Leah Litman I know we’re going to do a preview next time, and we will get into the stakes more, but just to get some of the stakes up front, this is about who decides, as between courts and agencies, questions that inevitably arise in the course of interpreting statutes, like all of the laws that govern all of our lives, like what counts as a new stationary source, emitting pollution that has to be regulated, or who will bear the costs of certain monitoring devices as required by federal law. And at least for me personally, I do not want Neil ten minute Gorsuch to be the one deciding this stuff.
Kate Shaw Amen. And now for our special end of episode court segment we are delighted to have with us Ross Rayburn, Peloton yoga and meditation instructor extraordinaire and author of the new book, Turning Inward The Practice of Introversion for a calm, joyful, Authentic Life. Welcome to Strict Scrutiny, Ross.
Ross Rayburn Hi everyone. Thank you. It’s such an honor to be with you all.
Leah Litman We are so excited to have you and we were hoping Ross, you could help us with a few things we don’t want to over promise, but at least talk us through one. How to help stay focused amidst the careening out of control. Caught especially as it’s about to be time for some bad decisions. Like some really bad ones.
Melissa Murray Also, Ross, we’re really hoping you will give us some advice on how to stay focused so we’re able to put in the work we need to do on the upcoming election, which has such enormous stakes for so many of the issues that we talk about on the podcast, like reproductive rights, democracy, whether or not we will be careening toward authoritarianism, all of these things. So again, guidance.
Kate Shaw And finally, maybe this will be the most challenging, but we had hoped you could help some of the justices on the Supreme Court slow their roll and calm the F down as well. So with that opening, Ross, can you talk to us about the goal of the book and, you know, help us break down what introversion is and what you’re kind of trying to achieve with your intended audience with the book?
Ross Rayburn Absolutely. I mean, one of my main goals is I when I started teaching meditation, I hated it. When I closed my eyes, I, my brain would go wild. And it wasn’t until I met my teacher that she said, listen, you’re already meditating. You know, when you exercise. Even now, like when I scroll through on my phone, I think a lot of people don’t call it meditation, but anything that takes you out of the kind of the binary navigation mind especially, you know, with 2024 coming up and all the complexities and with the things going on with the court, it’s so easy for us to get stuck in the muck of specifics and complexities. The reason why I called the book Turning Inward was it costs nothing to basically just take a deep breath. Now, the rub is, of course, remembering to take a deep breath, but when you turn in and take a deep breath, or when you pause before you speak. There can be a magical amount of strategizing, even shifting of your perspective to where you back off from maybe what you were going to say, and maybe see a little bit of what is a shared agenda. And that can be really powerful. And so the idea was to write a book that said, you’re probably already doing it. You just don’t call it meditation. You don’t need to sit still. Really, all of this stuff that people think is meditation. A lot of it is best for most of us. We just need that ability to not get stuck to, to just get unstuck.
Leah Litman Definitely. I like the analogy of exercise as meditation, because for me, that has always been the most helpful method where, you know, I go, I exercise really hard, it clears and focuses my mind, and then that’s oftentimes when I get my best ideas and after I step off the bike or out of the pool, I’ll take out my phone and just like record a few thoughts of like, me talking to myself. And those will be, you know, some again of like the clear thoughts that I will end up having. Um, so, you know, for us, as a preview for what I think is a must read book with great tips, that’s tips. You know, turning in practices. Um, could you help us with some quick guidance to help our listeners and us stay sane in what is shaping up to be, you know, another absolute nightmare of a Supreme Court term. You know, don’t give it all away, but maybe just a little taste of some tips or thoughts that, you know, they could read more about in the book.
Ross Rayburn Yeah. And to be honest, too, I do think it’s important to realize that, especially depending upon your your level of privilege, depending upon where you are in your life, I never want to get so woowoo about like saying a deep breath in that it doesn’t actually, even my belief in that. It’s important to step back from panic and like to use your word, the nightmare situation. I never want us to be cavalier about. Sometimes we need to be in a fight position. We need to be ready. That said, there is so much value. Like any any great strategist will tell you, like you just said, to have a moment where you pause and give kind of a nebulous space where you don’t have to know the idea. You don’t have to. You aren’t grasping for the for the answer, but that kind of open space to where the strategy, the answer, the solution arises organically like that is, again, that’s so valuable. And it’s definitely harder to do when you’re the one who’s more like when it’s an existential question. However, recognizing that it’s possible, just knowing that it is within our capacity, especially when, you know, we have, you know, a moment in the day, say, after exercise or in the morning when you’re brushing your teeth to just say like like the title of the first, the intro chapter is called You’ll be okay. And that that is a big statement. Again, not to be cavalier, but that ultimately realizing, like we do have a lot of power within. We do have a lot of power as a community. And that to me, alone gives me a lot of peace and calm. It doesn’t fix everything. And turning inward is not meant to be a panacea. It is, however, an opportunity to just do it a little bit better, to maybe just navigate it a little bit more intelligently and mindfully.
Leah Litman I have to say, I really liked how the book was not a cavalier mantra of just calm down and it will be okay, but instead, you know, there were passages where you said, go to bed angry is not necessarily a bad thing. Um, and in some way, you know, the breathing exercises that were sprinkled throughout the book reminded me of what has been my absolute favorite fiction read recently. And that’s the Court of Silver Flames. I don’t know if any of our listeners or you have read, but they’re the warrior Nesta Archer on learns breathing exercises to become one of the fiercest kind of warriors ever. And so I just, I, I really appreciated that kind of battle.
Melissa Murray I appreciate this idea because I do think there are times when, you know, our students talk to us about this, like everything feels really overwhelming. It can be very difficult to understand how one person can make an intervention that is meaningful against what feels like just a rising tide of crap, and you turning inward, recognizing that you can only manage yourself in this situation and do what you do, I think is incredibly liberating. You know, it doesn’t have to be disempowering. Like, actually it can be incredibly empowering to sort of I can get my side of the street correct and figure out how to work with other people who are also trying to get their side of the street correct. And maybe together we can clean up a lot of different streets. And, you know, I thought that was a very powerful part of the book, like you’re responsible for yourself, but all of those people are responsible for themselves. Working in concert can actually be quite forceful.
Ross Rayburn Yeah. Thank you. I appreciate that so much. I mean, this does kind of border a little. A bit on the woowoo side of what you find when you turn inside, especially when you do it somewhat habitually is a kind of agency. Um, I mean, one of my favorite words is perspicacity and the ability to rise above and see an aerial view of a situation and to where everybody else in the room is just describing the chaos. Um, to actually see the pattern that maybe someone, no one else is realizing, that kind of aerial view actually happens when you go inside. Don’t try to shut your thoughts off your your thoughts are supposed to be fast. Don’t try to be still. All the stuff that you think let that happen. But just kind of going in and trusting that there is wisdom, there is creativity. There is so much inside for you to even sometimes mysteriously realize. Like, wow, that’s a pattern that I don’t think anyone else is seeing. That feels not only like you’re just taking care of yourself. That actually is agency that actually is empowering. And then all of a sudden, you you literally might be the one person that sees something that no one else sees.
Melissa Murray When you say that, that reminds me so much of what we thought we were doing when we started this podcast. Like there was this like, you know, chaos around the court and they were doing all of these different decisions. And our whole goal was literally to survey the entire landscape, draw together seemingly disparate threads to show that, no, there actually is a pattern to this madness. And you’re not wrong to be scared. It’s actually incredibly alarming what they’re doing and being able to call it out, link them together, and ratify the feelings that other people are having that something is desperately, desperately wrong can by itself be empowering, even if it is alarming to recognize how completely off the rails it is.
Kate Shaw I also love until you said that, Melissa, I hadn’t had to stop it. The book has this, like, wonderfully capacious approach to meditation, like it is not. You don’t have to have special mat. You have to sit in a full lotus position. You don’t have to listen to security. It’s like there are many know it or it can be it for us doing it and listening to it can be a form of meditation.
Melissa Murray Why doesn’t my Peloton dot show up every time I show up in this room? Where is my red dot?
Kate Shaw Make that happen? That’s the collab we need. I love that.
Ross Rayburn Yeah, I listen, I think I love all of that and and not to blow smoke, but that is what you do. That’s what you do for me. You know, I remember Kate when you were on, uh, Ezra Klein show, I believe. And you do it on this. You all three do it on this podcast all the time. The concision and the clarity that you all bring to these incredibly complex topics. For people like myself, you’re absolutely doing what meditation is meant to do. It’s, you know, allowing us a gateway to a feel a little bit better because we’re human beings love to feel a little bit of control, a little bit of orientation. So absolutely, you’re you are doing that. And how do you maybe do it a little bit more? How does anyone do it a little bit more? Kate, to your point. I think for me it’s as simple as, say, scrolling through Instagram takes you out of your head and that’s what you need to escape. Or a glass of wine or or running on a treadmill doing a Peloton yoga class. I think if someone says, look, I am doing this for the purpose of feeling better. I’m doing this intentionally to get out of my head so that when I finish per this point earlier, so that I’m assuming that my ideas are going to be a little bit more crystalline and useful. Have utility when I get done, then it is absolutely meditation.
Melissa Murray With that in mind, we have a challenge for you. We have some folks on the Supreme Court who are a little in their heads, as it were, maybe overwhelmed by the weight of the conservative legal movement of their billionaire patrons. I don’t know, I don’t want to speculate, but do you have any advice for people like, say, Samuel Alito, Clarence Thomas, Neil Gorsuch to me, help them calm down? Um, how could they use these introversion techniques for healing and empathy and patience and relaxation as opposed to facilitating authoritarianism? Um, how might that work?
Ross Rayburn Um, what’s the phrase? This is above my pay grade. Ha.
Melissa Murray Is it? Well, it depends on who’s paying you. If it’s the people of the United States its $276,000.
Leah Litman Exactly, maybe we should start about for billionaires to step up and make this part of your pay grade, to get them to behave.
Melissa Murray Mindfulness For justices.
Ross Rayburn Listen, I believe that. And this is a philosophical belief that. Everyone deep down that there is a kind of spirit, there’s a kind of goodness that is sometimes shrouded so much that maybe they’re not going to be able to find it or or reveal it, or ever express it. There may be no answer to someone who’s not going to see the light. See the light. However, I think of I remember reading stories about when Anthony Kennedy would lecture overseas and just being around the European systems and, you know, different environments that that actually ameliorated some of his views, um, or softened even. And I like to think, you know, that Justice Jackson and, and you know, that there’s there’s probably a lot of really incredible, like, much greater than me abilities to tap into behind the scenes things that are shared to values, especially now with some of the interesting, um, like with the cases coming up, how strict constructionism is now kind of counter to what conservative thought would be. And I just think there’s a lot of potential for other people on the court to help them maybe see some shared space. I guess I’m a just an eternal optimist when it comes to stuff like this.
Leah Litman Help me help you, Sam. Right. That that’s my offer to him.
Kate Shaw It reminded me when you were talking just now. Ross. It reminded me of the way you talk in the book about beginner’s mind. Like cultivating beginner’s mind. You know, maybe you want to talk about that a little bit. Is that part of what you were driving at it for? If there was a single prescription for, say, the ever certain Neil Gorsuch, maybe practicing or cultivating beginner’s mind might be that prescription?
Ross Rayburn Yeah. Listen, it’s I mean, I, I feel so blessed with, like, my mom used to, my grandfather passed away before I was born. He and my grandmother were both actually pilots in the 1950s. And, um, they were in a plane crash before I was born. And, um, my mom actually had an 11 year old sister to raise, and she spoke about my grandfather in such glowing terms of that at his at his funeral, the the janitor and the mayor were both there. And and she always said and says to this day, you know, that humility is one of the highest virtues that we can attain or we can possess. And, you know, it’s not my place to say that that’s not going to happen with some people on the court. But I do believe that there is a a strong link between humility and beginner’s mind. I bet all the justices, especially if you said to them, you know, in a private or, you know, kind of safe space, if you will, like humble in the face of history, humble in the face of the Constitution. And what is it that they see themselves in service of that is they are willing to say, you know what, I don’t know everything I do want to I do want to have a beginner’s mind. If it makes America, if it makes this country that we all love, a better place, a more perfect union, some avenue with that to get to beginner’s mind. So it’s not just this kind of axiomatic thing that they’ll dismiss.
Leah Litman Alrighty.. Um, well, maybe with that beginner’s tip for beginner’s mind for some of the justices. Um, we should thank you, Ross, so much for joining us. Um, and recommend once again to our listeners. Ross is fantastic new book, Turning Inward, as well as some of our non listeners like, say, sam, Neil, Clarence etc. might be good for you too.
Melissa Murray I don’t know if they’re non-listeners. Sometimes you hate listening.
Leah Litman That’s fair. That’s fair.
Melissa Murray That’s that’s meditation too.
Leah Litman Thank you again Ross so much for joining.
Melissa Murray Thank you Ross.
Kate Shaw Such a pleasure to have you Ross. Thank you.
Ross Rayburn Thank you all so much. Thank you so much.
Melissa Murray [AD]
Kate Shaw Strict Scrutiny is a crooked media production hosted and executive produced by Leah Litman. Melissa Murray and Kate Shaw. Produced and edited by Melody Rowell. Our associate producer is Ashley Mizuho. Audio support from Kyle Seglin and Charlotte Landes. Music by Eddie Cooper. Production support from Madeline Henninger and Ari Schwartz.
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