Turning Fan Fiction Into Reality | Crooked Media
November 28, 2022
Strict Scrutiny
Turning Fan Fiction Into Reality

In This Episode

Melissa, Kate, and Leah preview the cases that the Supreme Court will hear in December– from election law shenanigans, to discrimination as protected speech, to making fraud great again.




Leah Litman [AD]


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


Kate Shaw Hello and welcome back to Strict Scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it. We are your hosts. I’m Kate Shaw.


Leah Litman I’m Leah Litman.


Melissa Murray And I’m Melissa Murray. And today we’re going to preview the cases the court will hear in its two week December sitting, which starts on the last week of November. So as well, we’ll also walk through some court culture as always. But first up, case preview. So, Leo, do you want to get us started?


Leah Litman Yes. There are two blockbuster cases in this sitting 303 Creative versus Elenis and Moore versus Harper. And both are going to be heard in the second week of the sitting on December 5th and seventh, respectively. But these cases are monumental. So we are going to spend most of our time covering them and we will touch on the other cases, some of which will plan to return to on future episodes.


Kate Shaw Okay, so let’s start with 303 Creative versus Elenis. We’ve talked about this case previously, including on our turn preview. And 303 Creative is essentially a follow on to the 2018 case Masterpiece Cakeshop. In Masterpiece Cakeshop, the court was asked to consider whether claims of religious freedom trumped the operation of a state level anti-discrimination law that prohibited those doing business in the public sphere from discriminating on the basis of, among other things, sexual orientation. So the back story of Masterpiece Cakeshop involved Jack Phillips, a self-identified Christian baker who refused to provide wedding cakes for same sex weddings or marriage celebrations in violation of the Colorado anti-discrimination law. Phillips argued that the First Amendment precluded the state from applying the anti discrimination law in his case. When the case reached the Supreme Court, the court, in a decision written by Justice Anthony Kennedy, actually never reached the principle question. Instead, the majority basically punted, concluding that the administrative tribunal that first heard the claim against Phillips had exhibited hostility toward Phillips and his religious beliefs. So the court basically took an offramp, never actually answering the question of how to reconcile the First Amendment and state anti-discrimination laws.


Melissa Murray And after punting on this monumental question, Justice Kennedy essentially dropped the mic and passed out announcing his retirement just a few days after the decision in Masterpiece Cakeshop was announced. And as we know, Justice Kennedy was replaced by none other than our favorite justice coach, Brett Kavanaugh, who is now part of a six justice majority that appears incredibly solicitous of religious freedom. Which brings us back to 303 Creative, where this conservative supermajority will certainly decide the issue left undecided in Masterpiece Cakeshop and the facts of 303 Creative strongly recall Masterpiece Cakeshop. So Lorie Smith, who is the petitioner, is a Colorado Web designer, although she’s not actually set up her business. We’ll get to that in a minute. But as an evangelical Christian, Smith says she does not want to design websites for same sex weddings or marriage celebrations because doing so would make her, quote unquote, complicit in a sin, thereby violating her religious beliefs. Moreover, as she begins the process of setting up her business, she wants to include on her website a notice explaining her position on same sex marriages. Under Colorado state level anti-discrimination law, a person doing business in the public sphere may not engage in discrimination on the basis of sexual orientation. They must take all comers. Accordingly, Smith argued in her cert position that compulsory compliance with the civil rights law violates both her free exercise rights and her right to free speech, all under the First Amendment.


Kate Shaw Interestingly, though, although she asserted rights of both free exercise and speech, the court only granted cert as to her speech claim, declining to grant cert on the free exercise claim. You know, I don’t know. Do you guys have theories on why that was?


Melissa Murray Yes.


Leah Litman Yes.


Kate Shaw So let me offer one and then I’m curious to hear yours. So one possibility may be that the justices realize that they have done quite a lot on free exercise already in the last couple of terms in city of Philadelphia versus Fulton and Carson versus Macon and Kennedy versus Bremerton. So that’s one possibility. They’re just taking a breather. Two maybe this.


Melissa Murray Sweet summer child restraint. What is judicial restraint?


Kate Shaw Okay, I am, so low hanging fruit. Probably that’s not it. Maybe a more plausible theory is actually the state of religious exercise claims we are seeing sprouting up around questions of abortion rights has prompted the court to slow its roll on free exercise. Is that a possibility from the other direction?


Melissa Murray Ding ding ding. Tell her what she’s won, Leah. What have you won, Kate?


Leah Litman I think you’ve won a YOLO court shirt. You, you, you’ve got the vibes. So I think that one is definitely plausible. As we’ve talked about on the show, there have been numerous challenges to abortion restrictions couched in terms of free exercise on the ground, that under certain religions and religious faiths, you know, abortion. Is sometimes permitted, sometimes required. And so it’s possible that under the court’s burgeoning free exercise jurisprudence, these are sound claims. That is, it doesn’t matter the fact that these laws don’t target religions, it doesn’t matter that they don’t speak in terms of religion. What matters is that they are affecting someone with religious beliefs and religious beliefs that are inconsistent with what the law prohibits or requires. I did want to float one other possible theory, though, and this is getting ahead a little bit. But I think they took the speech issue or at least they might have taken the speech issue because this case was basically specifically engineered to raise it and it allows them to continue taking bites out of Smith and to continue limiting the reach of civil rights laws without actually having to utter the words we overrule, you know, employment division versus Smith across the board. And again, Smith had said people have to comply with generally applicable laws, laws that apply to everyone, whether they have religious objections or not. And in some related speech cases, the court had said, look, the premise of anti-discrimination law is marketplace transactions regulated by anti-discrimination law, employing someone or providing services to customers or commercial conduct, not First Amendment speech. And that’s in part because American social life is filled with events that can legitimately be characterized as expressive, you know, celebrations with friends that require food or space, making items that will be used in various celebrations or events. You know, I could go on. So saying that anti-discrimination law can’t be applied to, you know, a newly invented category of purely expressive activity or pure speech would again take a bite out of anti-discrimination laws and limit. SMITH You know, without the court having to say and we just formally overrule Smith across the board with another kind of theory that I had.


Melissa Murray That’s I think that’s a very plausible theory, too. Yeah. I think maybe the confluence of all of these things. Yeah. Curious and curious-er, though never a dull moment with the YOLO Court. Anyway, whatever the reasons, the CERT grant focuses on a single issue whether a public accommodation law violates the free speech clause when it requires a business to offer to customers its goods and services, all customers, including customers who have certain protected characteristics. And that this extends even in circumstances where the business provides customized goods and services that are very highly specialized and perhaps even idiosyncratic. There may be some other issues that get attention, particularly from certain wings of the court. So if other oral arguments, including the affirmative action oral argument, are any indication, the three liberal justices are likely to press the advocates on the question of jurisdiction. And the state raised this in their briefs at the cert petition stage. It wasn’t a question presented by the petitioner for cert, but the state did raise it. And specifically the State of Colorado argued that Smith, who had not yet entered the market and had not yet accumulated customers and had not had the law enforced against her, lacked an injury sufficient to confer standing. Now, the Court did nothing with this jurisdictional question when it granted cert on the speech question, but I could imagine that the three Liberals who have in past argument shown an appetite for the whole why the f are we here? Question would be willing to take this up again and to press the advocates on what exactly is the litigants injury if she hasn’t actually entered the market totally.


Kate Shaw And it does seem to me as though this kind of complete willingness to just bulldoze right past these threshold jurisdictional questions on the part of the conservative super majority is emerging as a major theme of this term already. I mean, think about Rebecca Nagel’s really excellent points in our discussion of breaking the ICWA case about how these plaintiffs really shouldn’t be before the court at all. Think about the very shaky standing that Michelle Adams highlighted with respect to the plaintiffs in the in Harvard cases think last term two West Virginia versus EPA. The lack of, you know, either standing or injury mutinous however you want to characterize that there were huge jurisdictional flaws in that case. And I think that probably the court is going to go ahead and just get to the merits because it wants a particular result in all these cases. But I do hope that the Liberals on the court make the Conservatives squirm a little bit in pressing this question of, as you phrased it, Melissa, why the fuck are we here?


Melissa Murray So one thing I will say, apparently she has now set up a website and she has some clients. But I think the question the state had is when this was initially filed, she hadn’t done any of this. And so this is sort of an open question.


Kate Shaw I guess she’s saying she can’t place the banner she wants to on her website, but she has not. You know, at the time that this suit was initiated, she had not provided any website services to any individual. And she has not been asked to provide website services to a same sex couple wishing to announce via its website using her web design services their marriage. So it seems to me those are not resolved. Okay. But back to the kind of merits questions. So because the court did not grant cert on the religious freedom claim. Exactly as Leah. Was just describing. The court doesn’t have to consider squarely whether it should overrule Employment Division versus Smith, which just as a reminder, is the 1990 case in which a majority of the court, in a decision authored by noted liberal squish Antonin Scalia, held that the state could deny unemployment benefits to a person fired for violating a state prohibition on the use of peyote, even though the use of the drug was part of a religious ritual. So according to the majority, because the law was a neutral one of general applicability, not a law that specifically targeted religion or religious exercise, its application against the Native Americans who sought to use peyote in religious rituals was fine.


Melissa Murray Now again, Smith was a Scalia opinion in which all of the court’s Republican nominees joined. Yet despite this sterling conservative provenance in recent years, Smith has come under fire from conservatives who argue that it subordinates religious interests and makes it harder to grant religious accommodations to neutral and generally applicable laws like the state anti-discrimination law. At issue here in three or three creative now, Smith narrowly avoided being explicitly overruled in City of Philadelphia versus Fulton two terms ago. And it’s not a formal question that the court is required to decide in three or three creative. But it is worth remembering that overruling Roe and Casey were not, at least initially, formally on the court’s docket in Dobbs. So, you know, anything could change here. And I imagine we will get some questions from the conservative wing of the court about why Smith applies, whether Smith should apply, and whether Smith should be a viable precedent moving forward.


Kate Shaw So obviously, three or three creative will have an enormous impact on LGBTQ plus civil rights. Many commentators, including us, have focused on Justice Thomas’s concurrence in Dobbs and what that portends for same sex marriage. But this case is actually a more immediate threat, right? If the court reaches the merits here. I think it’s almost certain that it will decide in favor of Larry Smith offering broader grounds for exemptions from civil rights laws and public accommodations laws. And that will have enormous effects on the lives of same sex couples who will have to grapple with the prospect of receiving different treatment in certain aspects of their public and commercial lives, then different sex couples or then the law permitted prior to. I think what our prediction for this opinion looks like. So that is just a huge change.


Melissa Murray And a decision that would prioritize religious exercise or speech, if you will, over antidiscrimination norms would surely have broader repercussions for civil rights more generally, which is why a number of civil rights groups, not just LGBTQ civil rights groups, have filed amicus briefs in this case. So among those who have filed as a mickey are the Lawyers Committee for Civil Rights, the NAACP Legal Defense Fund, the National Women’s Law Center, the ACLU, a bunch of law professors as well, including a group of First Amendment scholars, including Yale Law School’s Robert Post and Berkeley Law’s Erwin Chemerinsky, as well as Penn Law Professor Tobias Barrington Wolf, who was also filed a brief on his own. All of which are in support of the state. On the other side, there is a group of law professors which include Helen Alvaro A of Antonin Scalia Law School and Michael McConnell, Stanford Law School, and Richard Epstein, my colleague at NYU, who are filing in support of the petitioner, Laurie Smith.


Leah Litman I was glad to hear that you’ve linked this to kind of the broader attack on LGBTQ civil rights, because I think, you know, some people have wrongfully fixated on whether the court is going to overrule decisions like Bostock versus Clayton County, which said that Title seven prohibited discrimination on the basis of sexual orientation or, you know, overruling Obergefell versus Hodges. But there are so many different ways in which the court can curb LGBTQ rights. And the likelihood of that happening is part of what I think commentators like us were trying to identify in Justice Thomas’s concurrence, you know, in Dobbs, as well as prior writings by several of the justices that have indicated real hostility to LGBTQ civil rights as well as, you know, solicitous as for ways of limiting them. And if I could here, just make a quick plug for a forthcoming article I have in the Michigan Law Review, disbarred discrimination, in which I compare and contrast how the court treats claims of religious discrimination under the First Amendment with how it treats claims of racial discrimination under the Equal Protection Clause. You know, I kind of argue the court has become increasingly solicitous of claims of expansive interpretations of the First Amendment, but seemingly on the ground that it or you know, some number of the justices think conservative Christian groups are a persecuted minority who lack power and face societal prejudice and discrimination. And one reason why the court thinks those groups face prejudice and discrimination is because their views no longer command majority support, which is partially exemplified by recent protections against discrimination for the LGBTQ community. And so the court then turns around and says, Well, these groups, you know, have fallen out of favor or have lost majority support because their practices are regarded as forms of discrimination. And therefore, we Supreme Court will protect those groups and in the process limit and really cannibalize anti-discrimination. Protections for the LGBTQ community. And this decision feels of a piece with this trend whereby the First Amendment just continues to steadily devour equality and advances in anti-discrimination law and civil rights. It’s almost like Justice.


Melissa Murray Scalia laid the seeds for this in his dissent in Romer, where he talks about the political power of LGBTQ groups, and then also the embattled religious observers who are forced to sort of comply with these new mandates for anti-discrimination. I mean, this is really interesting. I do want to read this. Can you send it to me?


Leah Litman Yeah, yeah, yeah. No I can. It cites your animus piece and the Supreme Court review. Yeah, liberally.


Melissa Murray Which no one ever reads, because no one can ever get that journal. It’s like, well.


Leah Litman I read it and I have lots of quotes from it in the footnotes.


Melissa Murray Thank you.


Leah Litman But but the, the, the other opinion that I think really highlights this trend where it was kind of laying the seeds for this idea is Justice Alito’s dissent in Obergefell was basically that like this decision exactly. Is going to, you know, label people opposed to same sex marriage as bigots. And that was the basis that he kind of planted for potentially overruling or limiting the decision or LGBTQ rights, you know, more broadly in the future.


Melissa Murray Scalito.


Kate Shaw God.


Leah Litman [AD].


Kate Shaw So Moore versus Harper, the next case we’re going to preview is a huge and incredibly important law of democracy. Or, you know, whether a democracy case that the court will hear also during the second week of the December sitting more versus Harper implicates the so-called independent state legislature theory or as Leo would say thing independent state legislature thing or as Melissa calls it, fanfic. I think those are both great. So, you know, pick your pick your title. In this case, the North Carolina legislature is asking a majority of the court to embrace that theory, think fanfic for the first time.


Melissa Murray Generally speaking, the theory maintains that the election clause of Article one, Section four, confers exclusive authority on state legislatures and no other organ of state government to set the rules for federal elections.


Leah Litman So the text of that elections clause is, quote, The times, places and manners of holding elections for senators and representatives shall be prescribed in each state by the legislature thereof. But the Congress may, at any time by law, make or alter such regulations except as to the places of choosing senators, unquote. So this case is specifically about congressional elections and whether that elections clause requires the state legislature and state legislature alone to set the rules for those elections. And it asks whether state courts may enforce their state constitutions in cases regarding the conduct of federal congressional elections.


Kate Shaw In this case, the North Carolina Supreme Court invalidated a map that had been drawn by the state legislature, and the court invalidated that map on the ground, that the map was an extreme partizan gerrymander that violated the state constitutional guarantees of free and fair elections. Sort of. Quick sidebar. This is like just complete like legal, legal realism. Note But I just wanted to flag something, which is that during the midterms, the North Carolina Supreme Court actually flipped so that it is now under GOP control. It had been controlled by Democratic justices. It now has a majority of GOP justices. And I think a couple of things. One, this could or maybe, you know, clearly will have consequences for whether that court invalidates another GOP gerrymander in the future. There has also been a little chatter over whether this might somehow moot more versus Harper, the flipping of the North Carolina Supreme Court that I don’t see. But I do think the midterms, you know, the results in North Carolina and in a number of other battleground states actually could impact the appetite of the conservative justices here, since in a number of battleground states, you had these you previously had GOP legislatures and Democratically controlled courts. But the midterms have changed the equation, right? They have given the Democrats control of the legislatures in Michigan and in Minnesota. Pennsylvania is at the time that we are recording still counting ballots, but has a good chance of flipping, at least in part a potentially totally to democratic control. So I actually can see these legislative shifts somewhat muting the justices enthusiasm for handing this unfettered control to state legislatures, which had previously been under Republican control. The picture looks different now. So again, really legal realists note, but I actually think it might impact how the justices understand the kind of ideological valence of this case.


Leah Litman That might be possible. But two reasons lead me to think it might not move them that much. One is just if you’re thinking about which organ of the state, you know, Republicans have a greater shot at controlling. It seems like state legislatures relative to state courts are that organ. So the question is, right, who do you empower? And you think Republicans are more likely to control state legislatures than state courts? Then that’s it. And just one piece of evidence for that is, for example, Michigan, you know, Michigan, the legislature flipped kind of by a bare majority of votes. So over 50% of people voted for Michigan State senators are Michigan State representatives, whereas the governor and the attorney general and the secretary of state won by huge margins statewide. So that’s one thing. And then second is, I feel like if you just ask from a realpolitik perspective like which party is going to engage in more extreme gerrymanders, it’s going to be Republican. So even if the court gives, you know, this unfettered control over elections to legislatures and some of those legislatures are controlled by Democrats, I just don’t think based on past practice, it seems as though Democrats are going to engage in the kind of gerrymandering that will be as disadvantageous to Republicans as the kind of gerrymandering that Republicans engage in.


Kate Shaw So I think that’s really true. And actually, when it comes to restrictive voting laws, right? Because if legislatures have this authority, it’s not just over district drawing, but also the regulation of elections writ large. And of course, it’s also true that Republican legislators have been incredibly aggressive in curtailing access to the ballot in all kinds of ways. So I think you’re right. If the justices take the long view, those trends and dynamics certainly would tilt in favor of they’re empowering legislatures. But but I do wonder if this election, being fresh in their mind, might have some bearing.


Leah Litman On it for sure. Okay. So again, the question here in this case is whether it violates the federal constitution for a state court to interpret and enforce their state constitution. And specifically to do so to protect voting rights and make elections more democratic and representative. Just to briefly recap some of what makes this independent state legislature thingamajig so outlandish. First, it rests on the thinnest of textual reads. Like this entire house of cards hangs on the word legislature in the elections clause. Yet the framers understood that the state legislature would be a product of state constitutions and understood that the state legislature was not the only body authorized to interpret state constitutions, and yet it just fixates on this word divorces it from context, divorces it from the historical period in which it was used, divorces it from the political thinking of the time, so on and so forth. Second, the theory is utterly inconsistent with foundational principles of constitutional law and federalism. You know, the framers were skeptical of state legislatures. They wouldn’t have given them this huge power to literally decide how federal elections are run to the exclusion of all other state offices. And yet, this is what this theory maintains.


Kate Shaw Okay. So another reason that we think this theory is so misguided. So states are supposed to have considerable autonomy in terms of how they structure their governmental systems. But what this theory would do would be to commandeer states to essentially configure their internal affairs in a particular way, namely to have a legislature that is divorced from and unconstrained by a state constitution that’s enforced by state courts. And I should highlight that Lisa and I talk quite a bit about this particular deficiency in the theory in a symposium essay that will be out in the Wisconsin Law Review. But it just feels to me like a fatal flaw with the entire theory on which this case rests.


Melissa Murray Another reason why the independent state legislature thingamajig theory fanfic is also kind of baseless is that there really is zero evidence that people understood the Constitution to prohibit other state offices from setting rules regarding federal elections. So, you know, the framers understood that state legislatures were creatures of state constitutions. Legislatures are not some sort of pre constitutional entity that just exists and precedes the formation of the state. They actually come into being through these charters that their power comes from the people in these state constitutions, and the people made the state legislatures limited by the terms of those state constitutions. So the contrary theory, this independent state legislature fanfiction really challenges the whole understanding of state legislatures as being bound and tethered by state constitutions, which state courts are charged with and authorized to interpret.


Leah Litman And on the specific point about the constitutional understanding at the time of ratification, Mark Press’s paper, which is titled Debunking the Non Delegation Doctrine for State Regulation of Federal Elections Paper that’s forthcoming in the Virginia Law Review. That paper shows how at the time of the founding state offices, other than the state legislature, made rules regarding federal elections. And the punch line is basically originalism, bitches, right? Like watch us do it and, you know, see if you care.


Melissa Murray Don’t sweat the technique. Anyway, there is also been a consistent historical practice that other state offices and officers can set the rules regarding federal elections, which the independent state legislature theory slash fanfic slash thingamajig doesn’t actually acknowledge or appreciate in full. And so that’s another reason why it’s kind of a drag and sort of stupid. But embracing the independent state legislature theory slash thingamajig and turning this fan fiction into reality has some real practical consequences, like basically generating chaos in the entire electoral system. So just imagine the Supreme Court as lowkey like your general chaos agent. So under this theory, every dispute regarding the conduct of federal elections at the state level, so the location of polling places, voting requirements, all of this would effectively become federal constitutional issues, which means there will be a raft of new litigation in the federal courts and perhaps even percolating all the way up to the Supreme Court. And more problematically, it could actually lead to two different sets of rules regarding the conduct of state elections versus the conduct of federal elections, because state courts could still enforce their state constitutions with regard to state elections, even if they could not do so under the independent state legislature theory for federal elections.


Kate Shaw And we should say, Carolyn Shapiro in her article about the result, has a very good section on just what chaos it would create for states which just run one election to have different sets of rules that they must follow for state races on the one hand and federal.


Melissa Murray What could go wrong? What could go wrong?


Kate Shaw It’s almost like they want to sow chaos isn’t it?


Leah Litman Exactly.


Melissa Murray What. What if instead of democracy, we just had chaos?


Leah Litman Exactly chaos that allowed state legislatures to just throw the results of an election to whoever they want? What if?


Melissa Murray Hey. Wait a minute. You’re on to something.


Kate Shaw Oh, yes. So. All right, so that’s the general theory and its many shortcomings. But it’s honestly even worse than that because this particular case turns out to be a horrible vehicle for the theory. In this case, the North Carolina legislature actually authorized state courts to draw maps. So the North Carolina Supreme Court was not actually acting independently at all. It was acting pursuant to specific instructions from the legislature, which is the body that this theory says has to basically run the show when it comes to federal elections. So that kind of actually was here. So the North Carolina legislature authorized a courts to hear challenges to maps. And so all of this here’s the state court enforcing the state constitution in this redistricting case is actually authorized by the legislature. So the fact that the Supreme Court could still be primed to say that the state legislature can’t do this, I think completely exposes how this theory doesn’t even elevate state legislatures as it purports to do. It constrains them and it constrains the states more generally. It literally is the opposite of what it claims or pretends to be.


Leah Litman So there are different versions of the theory that could be adapted in this case. One version is a maximalist take. That legislature means legislature. So state courts and state constitutions just have no role to play in constraining state legislatures with regard to federal elections. Another possibility, however, would be that state courts and state constitutions might have some role to play, but maybe not in cases involving vague or general state constitutional provisions. The state constitutional provision in this case was a guarantee of free and fair elections. So were you saying?


Melissa Murray I was like, how is that even going to be determined? Like, what constitutes a general?


Leah Litman You cannot write like this is an utterly un administer by line to draw. Like when is a state constitution?


Kate Shaw Sam Alito.


Melissa Murray He had some ideas, some idea.


Kate Shaw Of a principled line.


Leah Litman Right. Yeah. No. And the principled line is right. Any time a state constitutional provision expands voting rights, it is too vague and general right. But when it restricts voting rights, then it’s specific. Okay, I got it.


Kate Shaw That sounds principled.


Leah Litman Galaxy brain here.


Melissa Murray Its like the major questions doctrine.


Leah Litman Yes, it would be. And, you know, this theory would involve the federal courts having to hear a ton of cases, you know, sifting through different provisions in the 50 different state constitutions, asking which ones are specifically enforceable and which ones aren’t. And we don’t usually think about the federal constitution and federal courts as having a role in sifting through state constitutional provisions and asking, like, do you get to enforce this one because it’s specific enough or not that one because it’s too general. It’s just ridiculous.


Melissa Murray Federalism.


Kate Shaw Yeah, right. Exactly.


Leah Litman Federalism, bitches.


Kate Shaw It’s like that butterfly meme. Is this federalism? Okay, so maybe because this entire theory is just a big F-you to state courts and state constitutionalism, it generated, you know, a few briefs that I think are worth highlighting. But maybe first, a pretty unusual amicus brief by the conference of Chief Justices in which those chief justices actually don’t formally take a position in the case. It’s a brief in support of neither party, but they are telling the court, look, you can’t and shouldn’t say that state courts don’t get to enforce state constitutions, even vague state constitutional provisions in cases regarding the conduct of federal elections. So this is pretty extraordinary. All 50 chief justices, right, all 50 state high courts signed on to that proposition. And the attorneys on the brief were Carter Phillips and Virginia Seitz of Sidley Austin, who were also the team that filed the really important amicus brief in Grutter versus Bollinger on behalf of retired military officials. That really did make a difference in that case. And also on this brief was Leah’s colleague, Evan Camerer at the University of Michigan.


Melissa Murray It’s so interesting, like this has no formal position, but it seems to have a formal position.


Kate Shaw Yeah, right.


Leah Litman The implicit position is, are you fucking kidding me?


Kate Shaw Yes.


Melissa Murray It’s just think it’s just it’s just kind of giving Federalist Society, like, completely nonpartisan non-ideological, right.


Kate Shaw A little bit. But you’re look, they I think they want to stay above the fray and say we are not taking a position about who should win. But the theory here is banana is. And that does mean that, you know, this North Carolina legislature should lose. They just like leave that last piece.


Melissa Murray We don’t care who wins or loses in this case. But the idea that we have nothing to say about the Constitution of our own state is like bananas and completely. Stay in your lane. We’ll stay in our lane.


Kate Shaw Yeah, completely. A couple of other great amicus briefs to highlight. One, a brief opposed to the assault. I don’t think this one claims to be in support of neither party was filed by Arnold Schwarzenegger who has a standard invitation to come on the.


Melissa Murray Go do it again and say it the right way. Arnold Schwartzenegger.  Do it the right way.


Kate Shaw The Terminator. I don’t know how it whats the right way. Arnold So go ahead, Melissa. You intro this brief.


Melissa Murray There are also some other fantastic amicus briefs. And as a Californian, I feel obliged to mention one brief that is opposed to the independent state legislature theory filed by none other than The Governator, Arnold. Schwarzenegger. Is that good?


Kate Shaw I mean, the question it will give him whatever title he wants if he comes on the podcast to discuss his brief. I don’t know. I don’t know if he still likes the governorship. He definitely was.


Melissa Murray He was well, I mean, not only was he the Governator when people graduated from the University of California, from any of the campuses during his governorship, not only were there diplomas signed by the dean of their school and the chancellor of their campus, but also by Arnold Schwarzenegger, which is like, wow, chef’s love is amazing.


Leah Litman Yeah, great.


Kate Shaw He’s great on a lot of issues now, including things like redistricting, which has been a huge passion project of his and I imagine why he got involved in this case. Okay, so that brief is worth checking out. There are also a bunch of briefs by like genuine GOP luminaries like Ben Ginsberg, longtime sort of leading GOP election lawyer who is opposed to the Islah. Mike Luttig. Steve Calabrese, who, as we mentioned, filed a brief along with Akhil and Vikram Amar, opposed to the assault. That’s what I think got him blacklisted from at least publicly identifying himself with the Federalist Society. There’s also a great brief by our friends at the State Democracy Research Initiative at the University of Wisconsin, Madison. That’s Miriam Sifter and Rob Kaplan, who filed a really excellent brief on behalf of state constitutional law scholars. There’s a brief that Caroline SHAPIRO and Nick STEPHANOPOULOS and others.


Leah Litman Basically, every person with standards. Every respectable academic was like, Wow, this looks like bullshit to me.


Kate Shaw That’s a good summation.


Leah Litman So in another dynamic that feels emblematic of things we have seen before in the conservative legal movement, you know, amidst as I was saying, basically every academic who has looked closely at these issues saying, gosh, this iocl fanfic doesn’t seem totally on the up and up to me. We had some, you know, conservative Republican legal academics put forward what they presented as a something of a middle ground position that they thought was like a reasonable approach to the independent state legislature thingamajig. So this idea was written up in The Atlantic, and they called it the constitutional state legislature theory rather than the independent state legislature theory. And, you know, not totally clear to me, but I take it that under their theory, state legislatures still have to be the ones to do certain things regarding federal elections, including drawing maps. But watching this happen was like watching in real time an example of how the laundering of bad ideas to make them more respectable happens. You know, this essay does not offer any specific or serious evidence that this idea that state courts can’t draw maps if they have invalidated the legislatures is reflected in the constitutional history or practice. It just kind of says, well, hey, the Constitution says legislature, so got to mean something. Here’s an idea. And it seems emblematic of this really, I think, horrible, toxic idea that is an important problem within academia, which is this idea that it’s a serious take on an issue. If you look at both sides and say the reasonable position is in the middle, but, you know, if the position on one side is utterly lawless and baseless, then you are effectively adopting a version of an argument that doesn’t make your position reasonable. And again, this article just completely overlooks and does not even engage with the fact that the legislature, the North Carolina legislature here authorized courts to review maps. But, you know, I guess we’re just free bonnett here with our democracy. No democracy, just vibes.


Melissa Murray Whatever the court does here more versus Harper is obviously hugely important, but there are limitations on what the court will decide in this case. So as we said, this case involves the conduct of congressional elections. So it doesn’t involve state legislatures power to appoint presidential electors, which is where the coup adjacent version of this theory has received the most attention. And the coup adjacent version, of course, is the theory promoted by our favorite cocktail aficionado, one Ginny Thomas. That theory maintains that state legislatures could just throw out the votes and decide to award all of the presidential electors allocated to a state to whomever they wanted.


Leah Litman Cuckoo Ca Choo.


Kate Shaw But Cuckoo Ca Choo is not directly presented in this case for two reasons. So one is that formally the presidential electors clause, which also contains the word legislature and, you know, is advanced on the same theory as the theory underlying more. But that clause of Article two is not directly implicated in this case. That being said, it is likely that the two clauses, the elections clause, on the one hand regarding congressional elections and the electors clause on the other hand, which has to do with presidential electors, travel together because of that word legislature that appears in both. So it’s pretty clear to me that anything that happened in this case will undoubtedly have ripple effects for questions surrounding the selection of presidential electors.


Leah Litman But this case also doesn’t concern a scenario where the legislature is trying to throw out votes that have already been cast and undo the voting that was done under previous rules that were set by the legislature. As we discussed in our summer episode, that too would be a different case. But of course, it is possible that whatever the court does in this case could embolden a state legislature to try something funny in a future case.


Leah Litman [AD]


Melissa Murray So those are the two big blockbuster cases, one that could potentially undermine broader rights for LGBTQ persons. One that could undermine the prospect of democracy going forward. And now we’re going to pivot and look to the other cases on the docket. And all of these are sort of broadly clustered under a single idea making fraud. Great again. So let’s talk about what else is on the docket for the December sitting. Kate, you want to get us started? Okay.


Kate Shaw So those cases Melissa just alluded to are a pair of cases that may be part of a trend of the court narrowing the federal criminal prohibitions against fraud that is making cases of fraud harder to prosecute, and specifically making it harder to target political corruption as a species of fraud. So maybe let’s recap some of the history of the federal fraud statutes and their relationship to corruption.


Leah Litman Some of these cases sound familiar. It’s maybe because of some of the similarities to The New York Times story about the coordinated campaign by conservative activists to use money and connections to influence, access and lobby the court.


Melissa Murray First up, in the Mafia to make fraud great again. Quartet is McNally versus the United States, which was decided in 1987. There the court interpreted the federal fraud statutes to be limited in scope to deprivations of property rather than, say, good government. So Congress, again, in response to the courts, very limited understanding of the fraud statutes, amended the statutes to prohibit schemes that deprive individuals of, quote unquote, honest services. But why let Congress, the people’s representatives, get in the way of a good time when you’re making fraud? Great again. The court narrowly interpreted those newly enacted provisions as well. So we are. What is the next step in this trajectory toward making fraud great again?


Leah Litman So there was Skilling versus United States, a 2010 decision that said the statute prohibited only those schemes involving bribes or kickbacks and not, say, undisclosed self-dealing. Then subsequently, the courts decided McDonnell versus United States in 2016, that decision narrowly interpreted another statute, the federal bribery statute, that makes it a crime for a public official to receive or accept anything of value in exchange for being influenced in the performance of an official act. In that case, the court held that former Virginia Governor Bob McDonnell was setting up a meeting talking to another official and organizing an event did not constitute an official act for purposes of the bribery statute. That is, even if he received things of value for organizing meetings or for organizing events or for talking to other officials, that wasn’t actually prohibited by the bribery statute.


Kate Shaw Finally, in the sequence, is Kelly versus United States a 2020 case that we actually talked about a lot in the early days of strict scrutiny. That was the case that held that aides to former New Jersey Governor Chris Christie couldn’t be prosecuted under several federal statutes for participating in Bridgegate. Right. For folks who don’t remember it, this was the alteration of traffic patterns from Fort Lee, New Jersey, onto the GW Bridge in order to punish the mayor of Fort Lee for refusing to endorse Christie’s bid for reelection.


Melissa Murray So New Jersey, in that case, New Jersey.


Leah Litman GTL fuck shit up on the George Washington Bridge?


Kate Shaw Yeah. If New Jersey were Supreme Court opinion, this would be that opinion. So in that case, the court adopted this very narrow definition of what constitutes property under the federal statutes at issue and the realignment of the traffic lanes, even if done, even if dangerous, even if ill advised, even if done for crass political reasons, did not constitute the taking of property under the relevant statutes. So, you know, the court expressed this concern that the government’s argument would allow the federal government to use the criminal law to enforce its view of integrity in broad swaths of state and local policymaking.


Melissa Murray Imagine that.


Kate Shaw Right. So all these cases, you know, taken together, make it much harder to prosecute cases of political corruption or self-dealing. And the two cases that the court is poised to hear this sitting could very well continue that trend.


Melissa Murray So first up on the docket is Seminole versus the United States, which is about the right to control theory of fraud under the federal wire fraud statute. The wire fraud statute prohibits fraudulent schemes for obtaining money or property under the right to control theory. Depriving someone of complete and accurate information that bears on a person’s economic decision can be a kind of fraud. This particular case involves a nonprofit corporation that had authority under state law to award contracts for development projects. One of the board members intentionally drafted selection criteria to favor the petitioner, Louis Simonelli Company. The board awarded the company a $750 million project, and Simonelli was subsequently charged with wire fraud for his role in allegedly rigging the bidding process so that it worked. In his favor.


Leah Litman So the Court of Appeals said this can be a kind of wire fraud because, as Melissa noted, the right to control assets is a protected property interest. And a defendant can deprive a victim of that property interest if they deprive the victim of potentially valuable economic information that affects a victim’s decision about how to use their assets. The petitioner, by contrast, argues that information isn’t a kind of property interest that’s protected by the statute and that a victim still has control over their property or assets, even if they are given faulty information that leads them to decide how to control or dispose of their property.


Kate Shaw Okay, so the second case in the pair is Percoco versus United States, another case that seeks to limit the extent to which the federal fraud statutes prohibit political corruption. The specific question here is whether private individuals who at the moment that they commit an allegedly fraudulent act do not hold an elected office or government employment, can still be convicted of honest services fraud when they control some aspect of government business.


Melissa Murray And Percoco has a little bit of Bridgegate flavor to it, at least in its facts. So Joseph Percoco, just.


Kate Shaw On the other side of the bridge.


Melissa Murray Just crossed the bridge and we’re going to get to Percoco territory.


Kate Shaw Exactly. Exactly.


Melissa Murray And Percoco involves Joseph Percoco, who is a former aide to disgraced former New York Governor Andrew Cuomo. He left the role of aide to Governor Cuomo, however, to serve as Cuomo’s reelection campaign manager. And while working on the reelection campaign, he received $35,000 from a developer to pressure a state agency to award funding to the development that the developer was advancing. When he ultimately made the call to the agency, Percoco had access to his old government office and told people he intended to return to government service. But he actually wasn’t at the time, formerly an aide to the governor. He was his reelection campaign manager. So this is not a government position.


Leah Litman This just seems like a gigantic potential loophole to the political corruption and fraud statutes. Let’s call.


Melissa Murray This the Steve Bannon Rule.


Leah Litman Right? Exactly. Exactly. The raise the money for the wall while not technically in government, I mean, or honestly, like even the like Trump children kind of loophole. Right. Because it’s not always clear like what formal government office all of them had and when. And yet under this theory, they could be basically soliciting grift from whoever they wanted and promising access to a government official, you know, their sibling, their father, whoever, without running afoul of these fraud statutes. Anyways, the Court of Appeals said this just cannot be the case. They said private individuals who aren’t government officials or employees can be convicted of honest services, fraud or other types of fraud when they’re relied on by the government and control some aspect of government business. Percoco of Note is represented by the law firm Jones. De Jones Day had previously represented Virginia Governor McDonnell and has been on, how shall we say this, the forefront of ensuring that public corruption remains legal. These cases, you know, you line up all of them and the trend and it’s really stunning. And I think it’s just part of the Roberts court view of politics as unseemly and dirty. And their view is in some ways like making it so. That is they are making it possible for officials to engage in this kind of corruption. Right. That delegitimizes our politics and undermines people’s faith in the system. And it’s just so cynical and bad and yucky.


Kate Shaw I totally agree with that lawyer. And the case is actually don’t cite Citizens United and the other campaign finance cases, but the deep logic and this sort of view of politics that I think underlies them is the same. And I think the kind of self-fulfilling quality of their understanding of how politics sort of are kind of inherently this, you know, characterized by quid pro quo exchanges and self-dealing, like kind of links those cases. And even though they are ostensibly in different kind of doctrinal silos.


Melissa Murray So Kate is being very modest here, but she has this terrific paper called Partizanship Creep, where she canvasses all of these disparate cases, including these fraud cases, as well as the campaign finance cases, and sort of notes that there is a turning away from this principle of nonpartizanship in government service and instead a kind of embrace of the inevitable introduction of partizanship into ordinary politics that Kate argues has been quite nicely facilitated by the Supreme Court in these sets of cases that aren’t necessarily all on the same point. But if taken together kind of events, this broader interest in making it safe to be completely political and partizan again.


Kate Shaw And that’s if you’re not even sort of considering cases like this show partizan gerrymandering and then. The unitary executive cases. We’re talking about federal government employment anyway. Like it actually gets, I think pretty alarming when you consider these things if you line them up together. But Melissa, thank you for the plug. I appreciate it.


Melissa Murray No worries. I heard that Texas is back on the docket.


Kate Shaw Always got how many terms have been. It’s been two, three, four Texas cases, but this one is no different. So. Next up is United States versus Texas, this particular U.S. v Texas. There are a lot. So it’s easy to get confused. But this one will consider whether President Biden’s announced immigration enforcement priorities are lawful. So the guidelines identify three groups of noncitizens as priorities for apprehension or removal. One, those who pose a danger to national security. So, for example, suspected terrorists to those who pose a threat to public safety, typically because of serious criminal conduct. And three, those who pose a threat to border security, i.e., non-citizens who arrived in the United States after November 1st, 2020. The guidelines also provide a framework for determining whether a non-citizen threatens public safety, and they include a list of aggravating factors weighing in favor of enforcement action. And those factors include the gravity of the offense and the use of a firearm. The list also includes mitigating factors such as things like youth and military service. And the guidelines again are only about removal apprehension.


Melissa Murray But in addition to the lawfulness of the guidance, the case involves two incredibly important procedural questions that could determine the future of immigration litigation, and specifically litigation against federal government immigration policies. And those procedural issues may end up eclipsing the importance of the substantive question here about the legality of the Biden administration’s enforcement guidance memo. So the first procedural issue is that old chestnut standing, standing as the majority here will recall or maybe they won’t, is the doctrine that requires a plaintiff to show that they’ve been injured by the policy that is being challenged. And this is yet another case against a Democratic administration brought by Texas, where Texas is essentially arguing that the mere fact of the policy is the injury. So Texas is essentially arguing that it is injured by the fact of the enforcement guidance memo itself. So paper cuts as jurisdiction discuss.


Leah Litman So the specific theory for how they’re actually injured by the guidance is the theory adopted by the district court, which is the guidelines. This guidance memo injures Texas because the guidelines increase the number of noncitizens in Texas, you know, leading the state to spend more money on things. The court also found that the guidelines harm Texas parents patriotic interest, essentially the interest that allows Texas to protect its citizens because the guidelines make it more difficult to protect their citizens from criminal activity. I just I would like to note that the theory of standing and the theory of injury here is reminding me very strongly of the micro slash micro-aggressions from the equal argument during which the justices were basically reenacting the anti native biases that equal was designed to address and to prevent judges from acting on to the detriment of native communities.


Melissa Murray Just like on a more basic level, all of this seems entirely speculative.


Leah Litman Well, yes, of course it is like utterly speculative. You know, on some level you’re not required to prove your case at standing. On the other hand, there’s got to be some air of possibility, right, that the challenged policy is actually contributing to these harms. And the idea, again, that the removal policy is what’s doing this, rather than say like the discretion exercised by line immigration officers over whether to arrest someone or whatnot is just a little bit wild. You know, there is a circuit split on this issue. The Court of Appeals for the Sixth Circuit said states didn’t have standing to challenge this guidance memo, in part because it doesn’t regulate the states, it doesn’t tell them command them to do anything or not. It doesn’t prevent them from enacting any kinds of laws. It just imposes some indirect costs on them. But basically, all laws or regulations will impose some indirect costs on the states. And so it’s just a really wild theory of standing.


Melissa Murray This case basically has the potential to limit states ability to challenge the policy of administrations with which they disagree. And that may be an issue that some members of this court will take issue with. So I think there’ll be a lot to see there. It’s not quite the blockbuster that three or three creative or any of these other cases brought. But again, I think it’ll be a really significant oral argument. The second procedural issue, though, that we should highlight here is again about something that is probably much bigger than just this case. And that question is whether you can get injunctions against immigration enforcement policies. And so a provision of the innate USC. 1252 F-1 provides that lower courts lack jurisdictions to. EnJoin or restrain the operation of statutes governing removal, including sections 1226 and 1231. And one question here in United States versus Texas is how this relates to an Administrative Procedures Act provision that allows courts to set aside unlawful agency actions. The federal government says that the APA provision means courts don’t have to give effect to agency actions, but it doesn’t allow them to vacate or undo them or enjoin them. And as they argue, even if it does allow for a vacant sheriff or other agency actions, the Ayana doesn’t allow that remedy here because the case challenges how it administration is implementing provisions of federal immigration law.


Leah Litman So this case really has a potential to transform the extent to which states are able to challenge immigration policies of the federal government. But just stepping back, I wanted to highlight an amicus brief by actual friend of the pod commander, Professor Steve Vladeck. The brief argues that Texas has brought this action as part of an intentional strategy of shopping for its preferred judges to enjoin federal action nationwide, and that the court should consider that strategy in deciding whether equitable relief and effective injunction is warranted here. And the commander, as he is wanted to do, brought the receipts. So the brief notes that Texas has filed at least 28 lawsuits against the Biden administration, including 20 cases in Texas district courts. But of those 20 lawsuits, judges appointed during Republican presidencies are presiding in all but one. And that is because Texas has intentionally filed cases in a manner designed to foreclose, having to appear before democratically appointed judges, including not filing a single case where the Texas state government is actually located. So Texas has filed just five of the 20 cases in courthouses with more than two judges.


Kate Shaw So that’s mostly about procedure, right before even reaching the merits. But on the merits, like we should say, that presidents get to have enforcement priorities, especially in immigration. We want leadership in federal agencies and including up to and including potentially the White House. But here we’re just talking about an agency is to give guidance to the field so that immigration, like field agents, are not acting completely on their own discretion to decide against whom to prioritize enforcement of the immigration laws. And that’s kind of all this is like setting forth clear priorities.


Leah Litman But I guess this case raises the question, you know, what about Democratic presidents? Did they get to have enforcement priorities, too? You know.


Melissa Murray No.


Leah Litman No. Right. Do Democratic presidents get to set immigration policy or just Republican presidents and Republican appointed judges? Well, I guess I guess we’ll see. Melissa has some prediction.


Melissa Murray I was just channeling the conservative super majority. There are a lot of other cases on the docket for this sitting, and we’re not going to be able to go into all of them in detail. There is one case, Wilkins versus United States, about whether the 12 year statute of limitations to bring a lawsuit under the federal quite title Act is jurisdictional and cannot be waived, or whether it’s just a claims processing rule that can be waived. So that’s going to be an interesting one for jurisdictional questions around that particular statute. There are also two bankruptcy cases, Monarch Mall Holdings versus Transform Holdco and Barton Warfare versus Buckley. So we’ll highlight those later in the recaps. And then finally, there is another kind of fraud question. We probably could have left this in with our two other major fraud cases, but it seems a little more ancillary. But USC’s Roe Polansky versus executive health resources involves whether when an individual brings a lawsuit on behalf of the federal government alleging fraud on the United States, the government has the power to dismiss the lawsuit after initially declining to take over the case. So, again, question about private enforcement of these kinds of statutes. So we will cover those in more detail on the recap. So if you’re burning for bankruptcy, just stay tuned for a couple weeks.


Kate Shaw Yeah, we’re we’re sorry to the bankruptcy stans that we’re over time, but we will come back to these cases of we’re able to. But let’s turn now to some news and additional developments. So first piece of news we wanted to highlight.


Melissa Murray Wait wait can we talk about Tiffany, will we be able to talk about Tiffany Trump’s wedding and how she got something old, her dad something new, her wedding dress, something borrowed, a whole family and something blue the Senate.


Kate Shaw I love that is not in the show note, but obviously yes.


Leah Litman This is going to be a


Melissa Murray Okay. All right. Maybe that’s all that’s all we need to say.


Leah Litman How about that’s our discussion.


Kate Shaw Okay. So before we go, let’s just hit a couple of other kind of pieces of breaking news and court culture. And the first is a brief update in our kind of recurring series, but his emails and that update, of course, relates to emails concerning or discussing Justice Clarence Thomas. So several news outlets reported on some emails among Donald Trump’s lawyers in the aftermath of the 2020 election as obviously attempts to overturn the results of that election were underway. And one of Trump’s lawyers wrote in this email, We want to frame this. So that Thomas could be the one to issue some sort of stay or other circuit justice opinion, saying Georgia is in legitimate doubt. And the email also argued that Thomas would be our only chance to get a favorable opinion by January 6th, which might hold up the Georgia count in Congress. Wow.


Leah Litman That is Sam Alito erasure.


Kate Shaw To be clear, I think that because Thomas is the circuit justice for the 11th Circuit in which Georgia sits, that was the reason that they were pegging their hopes to Thomas alone, I think otherwise they would have been very happy to peg their hopes to Alito.


Melissa Murray Well, Amy, again, no one is saying that he’s in cahoots with them, but I do think it’s notable here that there is a high predictive element here, that if someone’s going to be on board with them, it’s likely to be him and they’re happy to send their petitions his way.


Kate Shaw So another thing I do think that we need to highlight is the latest destruction to follow from the Supreme Court’s decision. Last term in I served versus Bruyn the case that you know really in big and the scope of the second amendment. So here in this case, a Trump appointed judge in the western district of Texas, Judge David Counts, invalidated the provision of federal law that makes it unlawful for someone subject to a domestic violence restraining order to possess a firearm. So like a good originalist following Bruin would do, Judge Counts reviewed the historical record and found glaringly absent from colonial times until 1994. Consistent examples of the government removing firearms from someone accused or even convicted of domestic violence. Wow. Why would this be?


Leah Litman Let’s pause for a second here. Let’s think big, deep historical thoughts.


Melissa Murray Why wouldn’t the framers have noted domestic violence laws?


Kate Shaw So one theory just spitballing here is that domestic violence wasn’t even a crime at the time of the founding. That might have something to do with it.


Melissa Murray Wasn’t even a crime until like 1989.


Kate Shaw Okay. So I think in most states by the twenties, it was technically a crime, but taken seriously and actually like interest in the criminal laws like the 1780s. Absolutely.


Melissa Murray But in some jurisdictions, it was not a specific crime until the 1980s. It was just sort of lumped into general assault.


Leah Litman Yeah, right. Domestic abusers possessing firearms is deeply rooted in our nation’s history and tradition. Terrorizing women. Right. That’s deeply rooted in our history and tradition. See dogs.


Kate Shaw Right? And fun. Melissa, family, law and criminal law scholar is alluding to. Right. Like in many jurisdictions, the rule that you could not inflict upon your wife. Right. An injury larger or wider than your thought might literally.


Melissa Murray Use it using using an implement. That’s a little apocryphal, but the idea it’s apocryphal. But I mean, the idea still stands. Reverse eagles. The rule of law talks about this in great detail, like just incredible state solicitude for the prospect of women being terrorized by their partners.


Kate Shaw And so but all of this is what the method of both Bruin and Dobbs honestly demand. Right? So. So just to, like, pause for 1/2 on this. So our elected representatives today, when more of us do get to participate in our democracy, although many, you know, way too many still don’t, we decide we want to say limit gun ownership by individuals convicted of domestic violence or as in this case, under a DV protective order. And the fact that this vastly narrower political community of yore made a different choice. Right, not to criminalize or not to prohibit gun ownership. All of that dooms our laws today, literally. That’s what the method of Bruin requires. And it is madness when you put it that way.


Leah Litman Lest you think this decision comes out of nowhere. It is worth remembering, as Sherrilyn Ifill, former president and director, counsel of the NAACP, LDF and former guest on the show, as Sherrilyn pointed out that after Justice Thomas didn’t speak at oral arguments for over a decade, the first question Justice Thomas asked, the question that broke a more than ten year period of silence on the bench was about whether it is constitutional to prohibit people who are convicted of domestic violence, misdemeanors from possessing a firearm. This decision that is the district court decision and Justice Thomas’s line of questioning really are all the more troubling after yet another set of mass shootings where the shooter or a shooter had prior encounters with law enforcement related to domestic crimes. But here is Justice Thomas. In 2016, in a case called Racine, questioning whether the Second Amendment prohibits the government from barring people who are convicted of domestic violence offenses from possessing a firearm.


Clip Can you give me this is a misdemeanor violation. It suspends a constitutional right. Can you give me another area where a misdemeanor violation suspends the constitutional right? Well, I’m looking at the you’re saying that recklessness is sufficient to trigger a violation, misdemeanor violation of domestic court conduct. That results in a lifetime ban on possession of a gun. Which at least as of now is still a constitutional right. I think of another constitutional right. It can be suspended based upon a misdemeanor violation of a state law.


Leah Litman So one other piece of, I don’t know, court culture related to the blue of Tiffany Trump’s wedding. So in the blue Senate, something I wanted to flag is the blue slips. So, you know, Democrats have retained control of the Senate. But as we said, there are a bunch of judicial vacancies and there haven’t been nominations or confirmations in a lot of states with Republican senators, especially states with two Republican senators. And that is, I think, in large part because the administration and the Senate are honoring the blue slips for district court nominee. Is blue slips are the idea that the home state senator must consent to a nominee. And, you know, news flash, Republican senators are not giving their okay. They’re not returning blue slips for basically any nominees or at least any nominees that are even plausible for a Democratic administration with a Democratic Senate. So Mark Lemley, a professor at Stanford Law, has a paper Red Courts, Blue Courts, in which he kind of gives some of the current statistics related to this. So of President Biden’s 58 district court appointments as of September 20, 22, 46 have been in blue states. So that’s almost 80%. Seven in purple are swing states and only five in red states. And that’s, you know, isn’t because of where all the vacancies are. So the actual vacancies are much more balanced. You know, of the 96 district court vacancies, 47. So just about half are in blue states, 35 or 36% are in red states, and 14 or 15% are in purple states. And I just wonder if this will change if Democrats win Georgia and maybe get a more comfortable margin in the Senate? I’m not sure, but I hope so. There is just no reason to leave this many vacancies in the face of what is just pure obstructionism. Right? Democrats control the Senate and you need to be able to fill vacancies.


Kate Shaw Yeah. And I mean, the blue slips are such a Senate institution. And here is where I worry that Joe Biden, being a creature of the Senate for so much of his professional life, is an enormous obstacle to just saying we have to discard that tradition. It’s not it’s not being deployed in a reasonable or symmetrical fashion. And it is keeping you from filling literally dozens of district court and court of appeals vacancies. And like, I’m sorry, like blue slips have to be a thing of the past.


Leah Litman So one other piece of follow up, which is just on the district court opinion out of Texas that set aside President Biden’s student debt cancelation. This was the opinion by Judge Mark Pittman. So a listener drew our attention to an excerpt from the transcript of a hearing in that case, which included Judge Pittman comparing the authority that the Heroes Act gives the president to cancel debt. To quote, this is an actual, quote, the authority given to Hitler after the Reichstag fire. This is normal stuff and apparently modern conservative legal thought. You know, a few listeners have asked for kind of updates on the student debt loan cancelation. You know, it’s a little bit difficult to know exactly. There are so many different cases. The main challenge in all of these cases is whether the plaintiffs actually have standing, whether they have been injured. And there are different kinds of plaintiffs. The circuit entered what they called an administrative stay on October 24th that prevented the Biden administration from carrying out its program to cancel student debts. Now, administrative stays are supposed to be temporary orders that put a lower court decision on hold while the appellate court here, the circuit figures out what to do here. The circuit took over three weeks. They waited until after the midterms to issue a six page order entering an emergency injunction against the administration student debt plan. Part of what makes this even crazier, you know, besides the fact that it took them three weeks to write a six page order, is that the circuit put this massive presidential program that touches so many people’s lives on hold without even concluding it was likely illegal. Without even concluding it was illegal. The extent of the court’s analysis of whether the program was legal was its statement that the program, quote, raised substantial questions of law. Now, the Biden administration has now asked the Supreme Court to vacate the circuit’s bizarre emergency injunction. And in the meantime, the administration has further paused, collecting student debt rather than canceling it. So basically, the administration is saying there won’t be collections on debt until they get a court to tell them whether they can cancel the debt. And that’s a good move, since courts are basically holding up the administration’s ability to forgive debt that the Biden administration thinks should no longer exist. And so the administration therefore shouldn’t allow that debt that they are trying to cancel and forgive to be collected. But we’ll see what the Supreme Court does, I say, with deep seated dread and terror. The bigger point? However, is that there are many different cases challenging the student debt cancelation involving different plaintiff. In all of these cases raise questions about whether the particular plaintiffs in a case have standing to challenge the program. So the fact that the Supreme Court didn’t block the debt cancelation program in one case with one set of plaintiffs doesn’t really tell us what might happen in another case with a different set of plaintiffs.


Kate Shaw Yeah. And I think we don’t have time to really get into the many, many deficiencies in the reasoning of the district court opinion. But I do think that quote that I just read from the actual hearing is basically representative of the quality of the logic on display in the opinion. Like it’s really laughable and yet it is what is keeping on hold that plus the eighth circuit are keeping the administration at this point from beginning actually to process the forgiveness and on the very thinnest of legal bases. But I think you’re right, the Supreme Court is almost certain to weigh in on this before long.


Melissa Murray I’m just like, how did you decide that was where you’re going to deploy your Nazi metaphor and not January 6th beer belly pushed?


Kate Shaw Great question.


Melissa Murray I mean seriously. Anyway.


Leah Litman [AD]


Melissa Murray Strict Scrutiny is a Crooked Media production hosted and executive produced by Leah Litman, Kate Shaw, and me, Melissa Murray. It’s produced and edited by Melody Rowell with audio engineering by Kyle Seglin Music by Eddie Cooper, and production support from Michael Martinez, Sandy Girard and Ari Schwartz with digital support from Amelia Montooth. See you next time.