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March 18, 2024
Strict Scrutiny
Welcome to Conservative Grievance Week

In This Episode

  • The Supreme Court will hear arguments this week on two First Amendment cases that ask whether the REAL victims of government coercion today are… conservatives with fringe views! Leah, Melissa, and Kate preview those cases, along with the mifepristone case the Court will hear next week. Plus, they do a deep dive on how SCOTUS uses the shadow docket to clear the way for executions.






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’re your hosts. I’m Melissa Murray.


Kate Shaw I’m Kate Shaw.


Leah Litman And I’m Leah Litman, and we are actually all in the same place right now, which basically never happens outside of live shows.


Melissa Murray Let the rapture begin!


Leah Litman Right? So things might get kind of weird and that might be part of why. Because today we’re going to be looking ahead to the cases that the court is going to be hearing during the March sitting. And it’s a big one, ladies and gentlemen. And Sam Alito, buckle up, because it’s conservative grievance week at the Supreme Court. The court is kicking off the sitting with two First Amendment cases that ask whether the real victims of government coercion today are conservatives with fringe views. So we’re going to cover those cases.


Kate Shaw And then during the second week of the March sitting, the court is going to be hearing the medication abortion case, which we’ve talked about a good amount on this podcast. So we’re going to be doing some previewing of that case to remind everyone of what is at stake. And we’re also going to talk about a recent Fifth Circuit decision restricting access to contraception.


Melissa Murray And after we previewed those cases, we are going to have a court culture segment. So we are going to do something that we’ve been wanting to do for a long time, which is to take a deeper dive on the death penalty and the shadow docket. And we are also going to do a very quick recap of some of the recent decisions that the court has announced, and we will have a very special announcement at the end of the show. So, as they said on Love Actually, do not switch off. I’ve been wanting to say that for like five years.


Leah Litman I could tell.


Kate Shaw This is your moment.


Melissa Murray First up, the preview. So the first week, actually the first day of the march sitting, the Supreme Court is hearing two cases about the role of the First Amendment, where the government may be attempting to influence how private parties treat other private parties. The cases are about identifying the limits on the government’s ability to effectively coerce or pressure private parties to do things that the government could not directly require the private parties to do.


Leah Litman And both cases implicate that principle in a very particular context. So they revolve around the idea that among various interest groups and identity groups that exist in our society today, the group that the government really has it out for, the group that the government expressly targets is Republicans with fringe conservative views.


Kate Shaw And this is actually something that both Melissa and Leah have written about. That is the court’s fixation on the idea that conservatives and conservative Christians in particular, are the minorities most in need of judicial protection. Today, Melissa has an article titled Inverting Animus Masterpiece, Cakeshop and the New Minorities in the 2019 edition of the Supreme Court Review. And that’s a terrific piece about how the court took animus doctrine, basically, the principle that government can’t single out or disadvantage certain groups based on animus toward, or a bare desire to harm members of those groups, and applied that principle to protect religious objectors to marriage equality, insisting that when government acts to protect marriage equality and nondiscrimination, it may also be evincing animus toward religious objectors to marriage equality. She’s followed that up with a forthcoming Duke Law Journal article called Star Decisis and Remedy that elaborates on the themes in the Supreme Court review piece. And Leah also has a terrific piece, this one in the Michigan Law Review, titled Disparate Discrimination, about how the court’s First Amendment cases are built around a theory almost extrapolated from John Her Ely’s democracy and distrust that conservatives today face unfair bias and prejudice, and that courts should therefore more closely scrutinize laws that burden conservatives or are inconsistent with their views. And this is also, as we’ve said before, part of her forthcoming book, lawless. That’ll be out next year. So those articles provide really important framing and context for the two cases that are going to start off the March sitting, and they really kind of put on display those cases do the frameworks that the articles provide.


Melissa Murray So one of those cases that is about all of the ways in which conservatives are actually very beleaguered and very much in need of the court’s solicitude, is called murthy versus Missouri. The case was filed by private parties, who argued that the federal government effectively coerced and strong armed social media companies to block plaintiffs content on social media, and that makes these plaintiffs the modern day incarnation of famed socialist Eugene Debs. At least in the fever dream mind of Sam Alito. The plaintiffs here are individuals who posted or reposted anti-vax, anti-mask and other similarly Covid forward content during the pandemic. The plaintiffs also complain that the federal government’s encouragement that the platforms adopt anti hacked materials policies stifled them from bringing to the fore certain important news stories like Hunter Biden’s laptop and other very very topical stories that would point a light on the vast left wing conspiracy that has truly taken over America.


Leah Litman I just have to say, I think we have a couple cases. Is coming up right now where Sam Alito’s questions could be truly a next level, whether he’s going to be diving into all of the news stories that the Lamestream Media doesn’t want you to hear, or if he’s going to be developing another analogy like it’s no longer Eugene Debs, it’s that these plaintiffs, like anti-mask mandate policies, are basically the modern day equivalent of Martin Luther King’s letter from a Birmingham jail. Like, I feel like that’s going to be on the tip of Sam Alito’s tongue.


Melissa Murray Letter from a Birmingham laptop.


Leah Litman Right. Exactly right. Like, that’s that’s where Sam Alito’s mind is going to go so.


Melissa Murray This is going to be better than Black Santa, isn’t it?


Leah Litman I just think again, we have a lot of potential coming up. I mean between the medication abortion case, these cases, the Trump immunity case, I mean, the tall case, Sam Alito is just going to be ready and raring to go. But anyways, this particular case involves two states led by Republicans. They joined the case arguing that the federal government’s conduct vis a vis the social media companies entered the states as well. And there are a few discreet legal issues in the case that will shape how the court ultimately rules. One is whether the plaintiffs have standing, that is, whether they can show they are likely to be injured by the government conduct they’re challenging, which is here the government’s interactions with social media companies.


Melissa Murray Side note if you take in constitutional law, you know that it can often be very difficult for plaintiffs to establish standing in claims for injunctive relief, because you’re basically asking the court to prevent someone from doing something that may not actually happen. It’s inherently speculative. And the paradigmatic case for this is called Lyons versus City of Los Angeles, where a victim of police violence sought injunctive relief that would prevent the police from using a dangerous chokehold maneuver going forward into the future. The court in Lyons concluded that the plaintiff didn’t have standing because he couldn’t show that he was going to actually be put in a chokehold by the Los Angeles Police Department at some point in the future. The injury that he was trying to prevent hadn’t happened, and it was entirely too speculative to assume that it would actually happen to him. But I don’t know if the court is going to care about Lyons in this instance, because the facts of this case are just too exciting for this particular court.


Kate Shaw My strong suspicion is, no, they are not going to be governed by that.


Leah Litman Again, when you just consider how extensive and pervasive the discrimination against Republicans with unhinged views is, it’s a certainty. It is a lock that they are going to experience discrimination in the future.


Kate Shaw Again and again and again. So again and again.


Leah Litman Exactly.


Kate Shaw The court has to stamp it out before it happens again. We’re getting a little bit ahead of ourselves. So that’s one issue. These cases raised. Should these plaintiffs be in court at all. Another issue that will be big in this case is whether the social media companies effectively became state actors, subject to the First Amendment, because the government made the companies moderate plaintiffs content. So another sort of core principle of constitutional law only state actors, that is, the government, are subject to the First Amendment. So private companies generally aren’t. That means to make out a constitutional claim based on private companies content moderation. The plaintiffs would have to show that the government is causally responsible for the content moderation that they are arguing violates the First Amendment. And then finally, there are questions about the scope of any remedy. So if some parts of the government acted illegally, how should the court write an injunction to respond to that?


Melissa Murray So some procedural history is in order here. So let me give a little sketch of how this case got to the court. First, a Louisiana district court concluded that the government was trying to censor conservative speech and issued a sweeping injunction that largely barred communications between the white House and several other government agencies, and between government and social media platforms about virtually all content. So, again, broad, broad order here. This has enormous consequences, as you might imagine, because lots of parts of the government, including entities involved in law enforcement, national security, public health and other functions routinely communicate with big social media companies. And this district court injunction essentially stopped all of that, blocking it entirely.


Leah Litman So pro free speech, he’s going to prevent any speech between the government and private companies. So, shockingly or not, the Fifth Circuit mostly upheld the injunction. The court accused the government of a, quote, coordinated campaign that jeopardized a fundamental aspect of American life, end quote, namely, being able to see the Hunter Biden laptop story, I guess I don’t know. But the Court of Appeals did limit the district court’s order just to apply just to apply to the white House, the Surgeon General, the centers for Disease Control and Prevention, and the Federal Bureau of Investigation, since Republican courts are now really into, like defunding and disabling the FBI.


Melissa Murray Abolition.


Leah Litman The new abolition.


Kate Shaw So interestingly, the Supreme Court actually halted the injunction, even the modified injunction. So they put that injunction on hold, meaning the government actually wasn’t barred while the case was pending from doing all the things at the district court in the Fifth Circuit said that it was barred from doing at least. Until the Supreme Court has an opportunity to hear and decide the case. So that’s what the court is now going to do. And at that prior stage, we should note that Alito, Thomas and Gorsuch would have actually left the injunction in place because, as always, of course they would. I’m sure they would have liked to revert to the broader district court injunction, but they just wanted to leave in place what the Fifth Circuit had done.


Melissa Murray Like, not only would we have liked to keep the injunction, we also would like to stone Mark Zuckerberg and all of the other owners of social media companies.


Kate Shaw Or whoever is running the CDC and FBI.


Melissa Murray As well as the president’s.


Kate Shaw Maybe all of them together.


Melissa Murray Maybe all of them.


Leah Litman So the first issue in the case is, as we noted, standing, which we know this court takes very seriously. That was the last line that was sorry. Sorry. So the federal government maintains that these private plaintiffs are complaining about content moderation decisions that are not fairly traceable to the government and that even if they were traceable to the government, these past incidents are not enough to supply grounds for standing, that is, that they might be subject to them in the future. As to the states, the federal government argues that they are not injured and have no relevant First Amendment rights anyways here. But it seems like the court is just going to want to get to the merits, so I feel like they will probably steamroll through all of this like no law, just vibes like “look ma, no hands” no law.


Melissa Murray Right?


Kate Shaw I think that’s right. So that means that the real action in this case will likely be on the merits, which will turn on, as we talked about a minute ago, the state action question. So has the government sufficiently injected itself into the platform’s content moderation decisions, such that the platform’s content moderation decisions are attributable to the government, that is, that they’re basically the government’s own decisions.


Melissa Murray This question involves the government’s own speech and its power to persuade, as well as private individuals or the speech of private companies. The federal government’s brief argues that, quote, presidents have long used the bully pulpit to shape private conduct, including by criticizing private speech. Theodore Roosevelt, who coined the term bully pulpit, famously lambasted quote unquote muckraking journalists, end quote. The brief also lists other examples of presidents who have tried to influence various parts of the media. So, for example, there’s discussion of Woodrow Wilson and Ronald Reagan, who said that media executives should, quote, take active steps against drugs or drug use, including through tough reporting on drugs. So this is not unprecedented. The idea of the government having some say in the kinds of media that is disseminated throughout our society and the federal government, again, wants to underscore that this is not unusual. It in fact, it is business as usual.


Leah Litman Yes. And Kate has written a lot about presidential speech, including in her award winning piece, Beyond the Bully Pulpit in the Texas Law Review. As the examples Melissa just listed and Kate’s writing show, there’s a robust tradition of presidents and executive officers using their platforms and positions to call for changes, including to criticize other speech. And the federal government says that’s all the government was doing here, exercising its power to persuade and engage in government speech. The government says it did not cross the line into coercion. You know, yes, the federal government worked with companies, but the federal government emphasizes that there weren’t any specific inducements or threats. The government didn’t say, for example, take this content down or punish you or anything like that.


Kate Shaw Instead, says the government. Look, there were ongoing conversations about federal regulation of social media like that was true. And they included hearings on the topic. But plaintiffs basically point to statements that the government made, such as when, quote, during a July 2021 appearance on a cable news program, the white House communications director was asked whether the president was open to amending section 230 to allow platforms to be sued for spreading false information that causes Americans harm. Close quote. So again, the brief continues. She declined to take a position on section 230, stating, we’re reviewing that, and the plaintiff suggests that all this essentially was tantamount to a set of threats from the federal government that coerced the social media companies into taking down content in ways that injured these plaintiffs. In addition, the federal government was flagging a lot of content for platforms and communicating with the platforms about the kind of content that its agencies determined to undermine public health guidelines or election integrity, the federal government says. Again, this is entirely consistent with historical practice regarding both public communications by government and interactions between government and these kinds of platforms. But what the plaintiffs are arguing is all of this activity by the federal government essentially reduced to coercion and compulsion.


Melissa Murray Now, to be very clear, the federal government isn’t suggesting that it has an unfettered license to communicate with these social media companies. And indeed, it concedes that significant encouragement might be illegal when it effectively compels a party to act in a certain way. But the government here says that significant encouragement does not exist when the government merely urges a private party to act, even if it does so repeatedly or in strong terms. So a lot of this case really seems like it’s going to be a lot of parsing of the record below and examining exactly what the government did here and how often they did it and the terms in which they did it. And I think that just. Portends absolute disaster because we know how poor some of these justices are at one, reading. Two, reading this record below, like they just don’t care most of the time.


Kate Shaw Or they’re very selective in what in the record they are interested in and how to characterize it. Right, that we have seen time and time again. There is also, just as a matter of doctrine, the sub fight in the case about what cases should determine the legal framework for assessing whether there has been significant encouragement. Everyone agrees that Bantam Books versus Sullivan, which is a 1963 case, is an example of government action that effectively did coerce private action. In that case, a state agency identified certain objectionable publications, asked for cooperation in removing them, said the agency had a duty to recommend prosecution of people who provided objectionable publications, and assured that cooperative action will eliminate the necessity of recommending prosecution. The government also relies on other state action cases that are less about threats or coercion, and more about state regulated industries. The plaintiffs say that those cases aren’t at all relevant. So what is going to form the framework that’s going to actually resolve the cases is one of the embedded questions that the case presents.


Melissa Murray There are a number of amicus briefs here supporting the plaintiffs. One comes from turning points Charlie Kirk. There is another from Twitter Files journalist Matt Taibbi. And there are a bunch of briefs that are filed on behalf of neither party. And that basically means that the briefs don’t take a position on whether the government acted unlawfully here. But they do ask the court to keep a bunch of stuff in mind while thinking about this case. And those briefs include a brief from Net choice, one from the Electronic Frontier Foundation, one from the Knight Institute, and one from the United States Chamber of Commerce. And again, the fact that there are so many briefs on behalf of neither party really underscores that. This is a very complicated question, and there are a lot of big questions that this case will implicate, because there are things that the government can do. And sometimes this kind of government action is referred to as jawboning. I think they really need to get a different way to describe this but jawboning is what they call it. And this jawboning is basically when government aims to pressure private actors like the platforms here. But at a certain point, some argue that these jawboning tactics cross the line from permissible to impermissible. Think, for example, about the threats from possible AGS and the Trump administration. So again, there are lots of questions on both sides of this. No idea how this court is going to deal with them. We do know that they are terribly sympathetic to conservatives who want to spread anti-Covid, anti-mask, anti-vax sentiment. And so that may shape all of this. But here, a lot of this record, at least to us, seems like some of this stuff is kind of okay and fine.


Kate Shaw It seems pretty innocuous, but I do think this a little bit like the net choice cases in that there are it’s important that the court not do too, too much because unduly tying the hands of government, when government needs to act in ways that really are critical to the public health and other sort of national interest, would be hugely problematic, but unduly empowering government. If we’re talking about like, yes, maybe a second Trump term and what kinds of overreach might be involved, there would be, I think, really scary too. So I just hope that the court is somewhat modest and narrow. Whatever it does.


Melissa Murray I think they’re always modest and narrow, Kate.


Speaker 3 Yeah, that’s of course. Yeah, okay. Surely. Surely that will happen.


Leah Litman Yeah, that’s definitely their impulse.


Kate Shaw Was a little bit of a well, we’ll get at the end of the episode. We’ll talk about one of the decisions they just issued.


Leah Litman They are sometimes that way in internet cases.


Melissa Murray Acknowledging that they don’t actually know how to program their phones.


Leah Litman Exactly. Exactly.


Melissa Murray Stay back.


Leah Litman Yes. Yeah. Yeah. So on the same day that the court is hearing Murthy, the court is also hearing the case NRA versus Rulo, this is a qualified immunity case. That means the question is not just did the government act unconstitutionally, but whether the government violated clearly established constitutional law. And if there’s one thing the Republican justices think is clearly established, it’s that one, conservatives are the victims. And two, sometimes accurately describing what conservatives are doing and what their views are, is unconstitutional discrimination, like in this very case, that that’s a bit of a parody. It does seem like the state officers here may have messed up, but the justices, I think, will take this case to feed their complex and kind of overexaggerate a problem relative to its actual nature.


Melissa Murray So in this case, the NRA claims that the former superintendent of the New York State Department of Financial Services, DFS, violated the First Amendment by coercing insurance companies and financial institutions to terminate their business relationships with the NRA in an effort to suppress the NRA’s pro-gun advocacy. One thing that may be relevant here is that the NRA and its former CEO, Wayne Lapierre, was recently found liable in New York for corruption and for misappropriating the organization’s funds. A jury found that Lapierre caused over $5.4 million in monetary harm to the NRA, and he’s already paid over $1 million back to the organization. But jurors actually ordered Lapierre. To pay 4.35 million in restitution. So again, this is all lurking in the background of this case.


Kate Shaw Right. So that’s kind of background atmospherics. But in terms of what’s actually at issue in this case, the case involves investigations into insurance policies that the NRA promoted as part of an affinity insurance program, which just meant insurance that it encouraged its members to use. So DFS concluded that one of these insurance policies, called carry Guard, actually violated New York law, and DFS entered into consent decrees based on insurance law violations associated with carry, guard and other NRA endorsed programs with other companies. And in the consent decrees, three insurance companies admitted that they had provided some unlawful NRA endorsed insurance programs and agreed to no longer provide any NRA endorsed insurance programs, including lawful ones, to New York residents. The companies also agreed to pay fines of $7 million in one case, and a million and 5,000,000 in 2 other cases. And the NRA also reached a settlement with DFS.


Leah Litman And those agreements, that is, the consent decrees are actually part of the plaintiffs case, arguing that the state government bullied private businesses into not doing business with the NRA. And to me, that seems like a big stretch. It can’t possibly be the basis for a constitutional violation. The fact that the government sanctioned parties who concede that they violated the law, there’s always going to be some prophylactic measures on top of a consent decree or a settlement.


Melissa Murray Leah, enforcement can sometimes tip into discrimination.


Leah Litman Yeah.


Melissa Murray I think you have to acknowledge that.


Leah Litman Obviously. And you know that that is the lesson of masterpiece Cakeshop, 303 Creative and all of the Covid cases. So having said that, about the consent decrees, you know, there are other parts of the case where at least I think the NRA has a point. And reading the briefs, I really felt like this was the onion meme. Like when the worst person, you know makes a good point.


Melissa Murray Or Neil Gorsuch. Stopped clock. Right twice a day.


Leah Litman Exactly, exactly. Any of those will do. We’ll come back to our little stop clock, Neil Gorsuch, at the end when we discuss Pulsifer. But just to take an example of where I think the NRA has a point, you know, they say after the shooting at Marjory Stoneman Douglas High School in Parkland, Florida, that DFCs communicated to banks and insurers that they would face regulatory action if they failed to terminate their relationships with the NRA. And they have is an allegation in their complaint that DFCs presented their views on gun control and said they discussed an array of technical regulatory infractions that, you know, these companies might be engaged in and allegedly made it clear that DFS was less interested in pursuing those infractions so long as the business stopped providing insurance to gun groups. And that seems pretty questionable. That’s pretty close to saying, well, look the other way on your legal violations. If you stopped doing business with this organization, whose policies I object to. So that’s what I had in mind.


Melissa Murray So the complaint also identifies as problematic some things that may not actually be that problematic. So for example, there is a guidance letter that points to the social backlash against organizations that promote guns and says that these concerns can no longer be ignored and that society as a whole has a responsibility to act. And the guidance letter approvingly cited the recent actions of a number of financial institutions that severed their ties with the NRA as an example of businesses fulfilling their corporate social responsibility. And it then went on to encourage regulated entities to continue evaluating and managing their risks, including reputational risks that may arise from their dealings with the NRA or similar gun promotion organizations, and to review any relationships they have with the NRA or similar gun promotion organizations, and to take prompt action to manage these risks and promote public health and safety. And again, that kind of guidance letter seems like the sort of anodyne thing that a government agency would do, even in circumstances involving an issue that might be divisive or fraught, like gun control.


Leah Litman Yeah.


Kate Shaw Okay. So because this case arises at the motion to dismiss stage, that means you take everything the plaintiff and that’s the NRA here alleged in the complaint as true. And you ask if that’s all true. Has the plaintiff shown that it experienced a constitutional violation that is clearly established? And as we just talked about, some of the things that are alleged are seem actually quite troubling and some seem much less significant. But it does seem that, at least based on the first allegation, which concerns a state officials saying, like literally, we won’t seek penalties against you if you stop doing business with the NRA, which I don’t like. That seems like maybe a plausible basis for the claim. And then there are other parts of the complaint that just seem like they can’t be like the fact that regulators imposed penalties on companies that were violating the law like that can’t possibly be a constitutional violation, let alone a violation of clearly established law. And we should also say that the damages the NRA received are far from clear, like its difficulty in finding insurance and other companies to deal with. It could have something to do, maybe not just with this sort of state conduct, but potentially repeated violations of the law. Which we alluded to at the beginning of this discussion.


Leah Litman All those school shootings? Maybe that too?


Melissa Murray All of the above.


Kate Shaw But that is not the sort of thing that is to. Going to be litigated that closely at the motion to dismiss stage. So I doubt that’s going to be super relevant.


Leah Litman Yes. And the NRA in this case is actually being represented by the ACLU with David Cole, the head of the ACLU, expected to argue the case. The case also has some amicus briefs in support of neither party, as a previous case did, and that includes one from the federal government who has asked to participate in this argument, and the federal government’s brief, while in support of neither party, I think is pretty friendly to the NRA. It says the complaint, as we were suggesting, plausibly states a First Amendment claim, at least based on some allegations but not others. And a part of me wondered whether the federal government filed this brief in order to bolster its position in murthy to say, look, we recognize governments can’t improperly encourage or significantly induce private action, and we can identify that when it actually happens. But we didn’t do that in our own case.


Kate Shaw Sam Alito is going to be like, so you’re willing to throw New York under the bus, but you’re defending what your officials do, huh? Convenient, isn’t it?


Leah Litman Again, he is just going to be all over so many of these cases. Can’t wait.


Kate Shaw These two and so many more. Yeah.


Melissa Murray That’s just the first day of the sitting, soooo.


Leah Litman First day.


Kate Shaw Yeah.


Melissa Murray Welcome back. How was your spring break? Glad you got to relax.


Leah Litman [AD]


Melissa Murray There’s more, folks. So while the court does some other important cases, it’s hearing in that first week of the march sitting, we wanted to be sure to flag one case that will be heard in the second week of the sitting, and that is the medication abortion case Alliance for Hippocratic. I always want to say hypocritical.


Leah Litman I do too.


Melissa Murray I know. Hmm


Kate Shaw Every time, every single time.


Melissa Murray Every single time. Alliance for Hippocratic Medicine versus FDA. This is the case filed by the organization for Antiabortion Doctors that initially sought to revoke the FDA’s approval of mifepristone, one of the drugs used in the two drug medication abortion protocol. The Supreme Court did not grant the cross petition seeking review of the issues related to the FDA’s initial approval of member Preston. So that issue, whether a person should be declared an unauthorized drug, is mercifully not before the court. Instead, the court is reviewing only the Fifth Circuit’s reinstatement of a bunch of restrictions on a precedent that the FDA deemed medically unwarranted, including restrictions on telemedicine in-person pickup. The timing of them press don’t use, i.e., how late in pregnancy that it can be used, and others. And again, if you have been following this podcast for a while, we covered some of the loosening of these restrictions during the pandemic, like right after the Biden administration came into being. So these are all sort of Biden era policies. Back to the case before the Supreme Court could or should review those claims that are now before it. It would have to find again, against all evidence and reason, that the doctors in this case face a risk of injury because the FDA deemed those restrictions unsound. That’s essentially a standing question. So basically, were the FDA’s specific protocols for how if a question should be used, somehow increasing the risks that these doctors would be called upon to treat patients for complications related to mifepristone? How were they injured by these restrictions? So that’s kind of an obstacle, but don’t worry, we can surpass that obstacle very easily.


Leah Litman Honestly, I think if the court does the right thing here, they are going to say the plaintiffs actually don’t have standing, because I just think this theory is so ridiculous. It rests on the idea that there are complication rates from mifepristone that just do not exist. It rests on the idea that the FDA’s precise restrictions on never on that the plaintiffs are challenging are what injures them. And the idea that there are these complication rates from ever postponed have been debunked. You know, recall that two of the studies the district court relied on in this case have since been retracted, and the doctors would have to show that the specific protocols are challenging. The dosage and timing and tolerance and provisions are what injures them. And I just don’t even think that Kate Middleton’s Photoshop skills could fudge those statistics.


Melissa Murray I feel so, seen.


Leah Litman I know.


Melissa Murray Thank you.


Leah Litman That’s why I paused, I paused, I just wanted to let that sink in.


Melissa Murray Timeout for a minute.


Leah Litman Yeah.


Melissa Murray What a week this has been for me. I mean, like.


Leah Litman And by what, a week, I want to note that Melissa is not primarily referring to the fact that her book was named a New York Times bestseller number one bestseller, but the fact that the mainstream media got hooked onto all of the Kate Middleton theories that Melissa has been immersed in.


Melissa Murray I’ve been here forever. Forever.


Leah Litman For, like, four years.


Melissa Murray I mean, it’s so gratifying.


Leah Litman I’m sure.


Melissa Murray Even a worm must turn at last. I’m so gratified. And also, Meghan Markle came back to Instagram.


Kate Shaw I just.


Leah Litman Wow.


Kate Shaw Just, she’s so glorious.


Melissa Murray American Riviera.


Kate Shaw Oh my gosh.


Melissa Murray American Riviera orchard.


Kate Shaw I haven’t looked at that, but I did watch the little excerpt that you could get from the South by Southwest appearance that she made.


Melissa Murray Yeah with Aaron Haynes.


Kate Shaw Yeah.


Melissa Murray And Katie Couric, friend of the pod.


Kate Shaw And Brooke Shields was on there, on that stage too.


Melissa Murray I don’t know if she’s a friend, but I bet she is.


Kate Shaw She could be. Friend potential.


Melissa Murray Aquaintance of the pod.


Kate Shaw She’s glorious. She was glorious on stage.


Melissa Murray Meghan Markle came back with American Riviera Orchard. And I’m here for it. I’m signed up. I’m ready to get an email from Meghan.


Kate Shaw What, what is it?


Melissa Murray I don’t care what it is. I don’t know what it is and I don’t care.


Leah Litman Lifestyle brand.


Kate Shaw Okay?


Melissa Murray Like I don’t know what it is.


Leah Litman Maybe we should get back to mifepristone. Yeah.


Kate Shaw I like this detour, but I guess we should get back to mifepristone.


All right. Apologies for that frolic listeners. Now, obviously, we are going to debrief in depth this oral argument when it actually happens. But for now, we wanted to highlight a few notable amicus briefs that underscore what a big deal this case is for so many aggrieved conservatives. And to underscore, for all of you, the absolutely enormous stakes of the upcoming election for both reproductive justice and the courts that are going to be fielding huge numbers of reproductive rights cases over the next couple of years. So there is an amicus brief for the American Center for Law and Justice. And don’t let that name fool you into thinking that it is actually concerned with law and justice as it is led and represented by. Hello. And in this brief, they argue that the Comstock Act prohibits not just the distribution of medication abortion, but distributing anything that could be used for abortion. And just to refresh, the Comstock Act is an 1873 law that prohibits the distribution in interstate commerce of articles intended for immoral purposes. And although the law is no longer enforced, it’s never actually been repealed. It’s basically lying in wait, like a serial killer or a zombie to be resuscitated by some enterprising Republican president. And it can be used to do lots of things like stop the transmission in interstate commerce of medication, abortion, or any kind of implement that might be used in a surgical abortion.


Leah Litman Yeah. And so that’s in some ways a big part of this brief as well, because the brief is telegraphing where this is going. It urges the resuscitation and interpretation of the law. That would mean not just a ban on medication abortion, but given that medical equipment is made and shipped between the states, a ban on all abortions nationwide. So what specifically notes in the brief that the restrictions in the race words apply to devices or equipment in addition to drugs.


Kate Shaw There is also an amicus brief filed by 145 Republican representatives in Congress that also argues that the Comstock Act prohibits distribution of medication abortion. So that is 145 sitting congresspeople, all Republicans, who are behind the idea that federal law can be used to criminally prosecute distributors of medication abortion. So just to spell this out really clearly, what this means is that if you live in a blue state and in the post Dobbs era, you feel like things are crazy elsewhere, but your repro rights are safe because the laws in your state protect your ability to obtain an abortion should you need one. That’s actually not necessarily going to be the case for long, because if the Republicans gain control of the white House and both houses of Congress, there will almost certainly be a nationwide ban on abortion. And that does not need to mean a new law gets passed that, you know, both houses of Congress approve and the president signs. It could mean they just decide to revive enforcement of the Comstock Act in a way that makes medication abortion impossible, no matter how blue your state. Like everyone.


Melissa Murray They don’t even need to win back Congress to do that.


Kate Shaw That’s right. That’s true too.


Melissa Murray All they need is to win the presidency and then they can just deploy this newly constituted Department of Justice to start enforcing the Comstock Act again.


Kate Shaw Full outright ban, if they have a triumvirate, and even if they just had the executive branch, they could start enforcing the Comstock Act, as these briefs contemplate. So Congress not required at all to make this essentially zombie law spring back to life and do the work of making it impossible to obtain, never pressed own and to have a legal medication abortion anywhere in the United States.


Leah Litman And all of this is important because this Comstock issue is not even before the court, since the court isn’t reviewing whether the FDA’s initial approval violated federal law. And yet you still have this many Republican representatives signaling their support for an abortion ban. And so if you want a big bat signal about the stakes at the 2024 election, this is it. This is what they’re saying they want to do.


Melissa Murray So here’s a question. There are a lot of implements that are used in surgical abortion that are also used in sort of standard gynecological care, like pap smears, for example, that use like a speculum. How are they going to deal with the shipment and interstate commerce of those implements were just standard.


Kate Shaw I think pap smears are probably immoral to.


Leah Litman Exactly no reproductive health care for women. 2024 if they vote Republican. I mean, look, if it could be used for multiple purposes, I don’t see why a Trump administration AG wouldn’t go to court and say, well, this implement could be used for this purpose, and we have reason to suspect that this person was going to use it. And so it’s going to force a law aggressively. And that will make it more difficult to actually distribute health care services and items.


Melissa Murray That was grim. Thank you. Thank you, my lady parts. Thank you. Another highlight in the Amici briefing is an amicus brief filed on behalf of students for life for America. This brief argues that in approving Buffer Preston in the first instance, the FDA violated no wait for it. The Endangered Species Act, that is, the FDA violated the Endangered Species Act by not considering how the approval of member Preston affected endangered species back in 2000, when the drug was first approved. The brief says, quote the current list of endangered species recognized by the services contain nearly 1500 different species. Multiple endangered species may be affected by the approval of member Preston, but the extent is unknown due to the FDA’s failure to consult, as required by section seven of the Endangered Species Act. Now, as far as the species that might possibly be affected, the brief lists the following. The Red Wolf campaign. Ridley sea turtle, the leopard darter fish, the California condor, the whooping crane, and the sockeye salmon.


Kate Shaw There are exhibits of each of these species in the brief, should you choose to pull it up and try and search for the potential environmental impact that the approval of Jennifer Stone could possibly have had. It’s it’s eluded me so far. But maybe maybe I’m not a close enough reader.


Leah Litman Sock eye salmon and deprive women of reproductive health care. Right. Like that’s the country song, right?


Melissa Murray Environmental law is everywhere. This brief literally reads like a Saltburn fever dream. Like like a murder on the dance floor. I loved it, I loved it.


Kate Shaw The good news is that it does seem as though Republicans, or at least this group, has finally found environmental regulation that they are interested in enforcing. So I guess that’s a silver lining. We should all.


Melissa Murray You really dig deep.


Kate Shaw Right. Because it is only when convenient to stop women from controlling their bodies. So but at least under those circumstances, environmental law comes to the fore.


Leah Litman So this case is going to be argued the second week, and we will focus on it more when we do the recap. But we want to link what is now unfolding in the medication abortion case to a recent decision from the Fifth Circuit, in a case we covered in a special segment after the argument before the Fifth Circuit. And that is the case about whether the title ten Family Planning program can provide access to funding for contraception to minors whose parents oppose contraception. So we’re going to play our recap of that argument in the Fifth Circuit, because it was a scene. It was a big scene.


Kate Shaw One case, the Fifth Circuit heard oral argument in was the contraception case, DNA versus Becerra. This is a case we have previously talked about. It’s Judge Kacsmaryk’s contraception case, in which the court said that the title ten program was unconstitutional because it violated parents rights, and particularly a regulation that allows minors access to contraception.


Melissa Murray When the government’s lawyer pointed out that the parent challenging the program didn’t identify his daughter’s age, the judge suggested that it doesn’t matter.


Clip Before they’re 18, more than likely they’re going to be old enough and in a position to get pregnant. They’re also going to be in a position where, people are wanting to have sex with them. Okay.


Leah Litman Whoa.


Melissa Murray Yikes. Okay. Very, very normal. Not at all.


Leah Litman And speaking of not very normal, we also got more than one invocation of Robert Bork. Since Robert Bork is apparently treated as governing legal authority in the Fifth Circuit. So Robert Bork was Ronald Reagan’s nominee for the Supreme Court. He was a judge on the D.C. circuit and former solicitor general during the Nixon administration, during which he became acting attorney general after other officials refused to fire the special prosecutor investigating Nixon. But Bork was like, sure, I’ll do it. Bork had previously been an academic where he had criticized, among other things, Roe versus Wade and the Supreme Court’s decision in Griswold protecting the right to contraception and Marbury versus Madison. And the Senate decided not to confirm him. And this is the guy the Fifth Circuit is invoking.


Kate Shaw It really is a sign of the times. You have conservative jurists disavowing Justice Scalia and embracing Robert Bork. I think that’s actually a hugely important data point.


Melissa Murray Yes. It’s like the fantasy Scotus, like the one where Robert Bork was Chief Justice.


Kate Shaw Yep. Yeah. Yeah, I think that’s that’s that’s the court the Fifth Circuit thinks it lives under. And they’re just deciding cases as though that’s the state of the world. Okay. So we also wanted to play two clips of some of the judges summarizing the claim that Judge Kacsmaryk ruled for, and that the Fifth Circuit is definitely open to ruling for. So here’s one.


Clip It’s my understanding periods can start pretty young, not five, but some even I think 8 or 9 year olds get their periods. So it’s not 15. Ten is pretty common. So it is not that old that these young girls need to be to be old enough to get pregnant. Should they have this interaction with this other guy that they’re trying to, again, get medicine, get advice, deal with the fact that they had the sex and address that whatever it is. And he’s trying to avoid that pathway because once she’s gone and had sex with someone, she’s not a virgin when she gets married. And again, I’m not myself judging that and simply saying he would on his religion and I respect that.


Kate Shaw And here’s another.


Clip If she did receive contraceptives without my knowledge, that interferes in a dramatic way with my ability to parent, because the child now has a means of engaging in sexual activity and avoiding certain consequences of an in that.


Melissa Murray Are you there, God? It’s me, the fifth Circuit. Like, why don’t why doesn’t anyone know how menstruation works?


Leah Litman Also like why don’t they know how consent works? Like if you are 8 or 9, you cannot legally consent to sex. If you are a minor right? In some cases you cannot like. Or even if you’re a woman who just like has sex, right? You are not or shouldn’t be thought of as just being like, okay, like and therefore you can become pregnant, right? Like that is not just like accepting the consequence of having sex.


Melissa Murray I just can’t get over just sort of the general like I heard a thing about periods once. Like, I mean, that’s just like what? Just like go ask a physician. Like, go to like but that is the thing. They don’t trust experts. I think those clips show that we’re basically always right. Correct.


Kate Shaw Soothsayers even.


Melissa Murray Soothsayers, even. So guess what, listeners, we got a decision in the case and surprise, the ruling, as we predicted, was for the challenger. And again, surprise, the Fifth Circuit’s decision invokes Robert Bork in the process. We really did call it.


Leah Litman Yes.


Melissa Murray We sure did.


Leah Litman Yeah.


Melissa Murray The Fifth Circuit said that. Title ten, the federal Family Planning Program, does not prevent Texas from enforcing a law that gives parents the right to consent to their children under 18, obtaining contraception. This effectively allows parents the ability to refuse and to block efforts to provide contraception. Now, to be very clear, the case, which is called Deandra versus the Sarah, involves a question of federal preemption. That is, whether the law that authorizes title ten, the Federal Family Planning Program, preempts a Texas state law that would require minors to secure parental consent for contraception. And it’s a very similar issue as that presented in the Idaho Am Tala case that the court is going to hear in April. So all to say that we’re going to be hearing a lot about the conflict between federal laws and batshit crazy state laws going forward. Yes?


Kate Shaw Definitely.


Melissa Murray Moving forward


Kate Shaw Yes. But for today, we wanted to highlight some of the Fifth Circuit’s reasoning in this decision, which goes beyond contraception, as the oral argument questions that we were just talking about suggested that the court would. So the Fifth Circuit reasoned, quote, the parent alleges injuries to his religious exercise and parental rights that have perennially been honored by American courts. For example, he claims the Secretary’s policy burdens his right to exercise his Christian belief that his minor children should abstain from premarital sex. Such rights are, as the Supreme Court has explained, part of our enduring American tradition.


Melissa Murray The right to chastity.


Leah Litman Yes.


Kate Shaw Deeply rooted the opinion as expected and, as we noted, cites Robert Bork. I’ll quote that here. Judge Bork’s opinion sheds more light on the issue before us. I and the opinion I don’t think we’ve said this was written by Stuart Kyle Duncan, who is a Trump appointee.


Melissa Murray And a fan of Stanford Law School.


Leah Litman Yes. Huge fan, big fan.


Kate Shaw Yeah. And they and they have him.


Leah Litman So just to underscore how this is linked to the medication abortion case, like they are telling you what they are working toward. It is not just enacting a federal abortion ban. It is using existing law to enforce a federal abortion ban without having to enact one. It is not just a medication abortion ban. It is a federal ban on abortions. It is not just abortion, it is contraception. They are challenging programs that provide access to contraception. And their reasoning suggests it’s not just about contraception, it is about premarital sex. The Fifth Circuit modified some parts of the Kacsmaryk District Court opinion. The Kacsmaryk District Court opinion had vacated the rule under the APA, even though the plaintiffs had not sought review under the APA. It was just completely wild. But the Fifth Circuit, what they did is they held that this Texas law isn’t preempted, essentially preserving the effect of the opinion in Texas and still moving the law to the right. And I just think this is the exact same dynamic as some if a precedent case and so many others cases filed, you know, in Kacsmaryk District Court, right, in order to get him to do something totally wild, he does it. The Fifth Circuit modifies it slightly in a way that is still in, say, in moderating the insanity while still being insane and that potentially teeing it up for the Supreme Court.


Kate Shaw That’s the playbook.


Melissa Murray Moderating insanity while still being insane is like the greatest T-shirt ever.


Leah Litman I’m not sure. I want to walk around with that, plastered on my shirt, but you know.


Melissa Murray I think you should try it


Kate Shaw Stuart Cal Duncan might like to. Potentially.


Leah Litman That’s true.


Melissa Murray I love that you just called it finding a Kacsmaryk court. Like that’s now a thing.


Leah Litman It is.


Melissa Murray It’s like a kangaroo court.


Leah Litman It, right? It’s now a legal practice among the conservative legal.


Melissa Murray Well, not anymore.


Leah Litman True true.


Kate Shaw We’ll get there. But before we do, we’ll just mention that during the march sitting, the court is also going to be hearing some important cases about the rules of evidence and the. Right to a jury trial. We’re not going to cover those cases in this preview, but we will spend time talking about them after the march sitting when we sit down to recap all of those cases.


Leah Litman And as we were just alluding to before we get to our main court culture segment, we have a development that’s related to the procedural history of both the medication abortion case and title ten contraception case. So as we were just saying, both cases were filed in a particular division in the Southern District of Texas, all to ensure that they would be heard by the country’s leading scientists and now foremost, abstinence advocate, Judge Matthew Kazmierczak. So to combat this kind of judge, shopping, the Judicial Conference, which is the national policymaking body for the federal courts, announced a policy change. They didn’t release the actual policy, but their announcement says the new policy is that in cases seeking injunctions and declarations, the cases will be assigned on a district basis. That’s eliminating the opportunity to handpick your judge by filing a complaint in a single judge division. So we wanted to give a hat tip to a law professor with a Twitter account and friend of the pod, Steve Vladeck, who has really been on the forefront of highlighting this issue and drawing attention to how it is really difficult to square it with the rule of law. And Steve, for those of you who may not have heard it moving to Georgetown Law School in the fall. So.


Melissa Murray All Texas courts breathe a sigh of relief. This guy is out of here.


Leah Litman Like, is he going to be less ugh breathing down our necks? And I think the answer is no, sir. He’s just going to be doing.


Kate Shaw Also, though, maybe when it comes to Amarillo, his work is done so he can decamp.


Leah Litman That’s true. I won bitches. Vladick out, commander out.


Kate Shaw Yup, yup.


Melissa Murray All right. I’m also going to note that this has got to be a real blow to the Amarillo Chamber of Commerce and Tourism Board, because there were so many litigants flocking to Amarillo. Like.


Leah Litman There were organizations incorporating in Amarillo.


Melissa Murray Like the Alliance for Hippocratic Medicine.


Leah Litman Exactly.


Melissa Murray Again, Amarillo really had a boom because of the Kacsmaryk court, like people booking hotel rooms, eating at Amarillo restaurants and cafes, all for the chance to have Judge Matthew Kacsmaryk confirm their legal views. And I really hope this does not spell economic doom for. Amarillo. You know, maybe Chip and Joanna Gaines can be called in to revitalize the downtown area.


Leah Litman You know, we’ll see. We’ll see.


Melissa Murray All right. Just to be very clear, it’s not just the Amarillo Chamber of Commerce that is put out by this development. You know who else is also hopping mad that the litigants can no longer pick their judges and assure their preferred outcome by filing at a particular court? Well. Two of the most esteemed judges of the most esteemed Fifth circuit are very, very unhappy about this new policy change. Any guesses, ladies, as to who the two aggrieved judges are?


Leah Litman Well, I mean, one, I think is.


Kate Shaw Is there are a library. Is there a portrait?


Leah Litman Exactly. Was this person sworn in at Harlan Crow’s library?


Melissa Murray Ding ding ding. Tell her what she’s won.. You’re right. Leah. Jim Ho has communicated his happiness about this particular development by wait for it, giving a statement to a conspiracy blogger about his discontent as one does. Do you want to wager a guess, Kate, as to the second one?


Melissa Murray Well, it’s not Duncan, right?


Melissa Murray Very good guess. Like, always a good wager. And, Leah, do you want to go two for oh.


Leah Litman You know, it is the judge that I think walked so Justice Rebecca Bradley could run. And that is Judge Edith Jones of the Fifth Circuit.


Melissa Murray Absolutely correct.


Kate Shaw Although I wonder has anyone ask Bradley for her take on this because she she probably mad about it too.


Leah Litman I’m sure she’d be happy to post something on Volokh, honestly. Like, she also wants Judge Cassidy to be able to set nationwide health care policy so I can only I can only assume. Volokh Conspiracy. For those of you who might not know, is.


Melissa Murray Fanfiction.


Leah Litman Fanfiction? It is a blog that is run by several libertarian and conservative law professors. That has been at it for a while.




Kate Shaw All right. So we are now going to shift some chord culture. And the first thing we wanted to do is not a lighthearted chord culture topic. We actually wanted to take some time to discuss developments on the court’s death penalty docket. And we have been thinking about doing the segment for a while. But given the firehose of Trump related and just general Scotus news, we haven’t had an episode with sufficient time to dig in. And so we’re going to try to do that now. So regular listeners know that the court continues to use the shadow docket to clear the way for executions. This happened in January in Smith versus Ham when the court denied a stay of execution to Kenneth Smith. Smith had been convicted of murder, but the jury in his case voted 11 to 1 to sentence him to life imprisonment as opposed to to sentence him to death. But the judge overrode the jury’s recommendation and imposed a death sentence.


Leah Litman And after that, the state set an execution date, and Smith challenged the execution protocol that is, the cocktail of drugs the state was going to use to kill him. And he sought a stay of execution, which the U.S. Supreme Court denied. And what followed was horrific. The state botched the execution. At the time, the state was experimenting with lethal injection protocols, which resulted in three failed executions in a row over five months, and Smith had specifically sought to stay on the ground that the state’s new protocol was untested and didn’t have a reliable method. And he was right.


Melissa Murray So that was last time the state tried to execute Smith and failed. The next time the state scheduled an execution date and announced that they would try to kill Smith with nitrogen gas, and Smith once again sought to challenge the state’s method of execution and sought a stay of execution, i.e. to hold off on the execution until he could raise his challenge to the execution protocol and a court could review it, and the United States Supreme Court once again denied that stay.


Kate Shaw As Justice Sotomayor wrote in her dissent from the court’s denial of Smith’s request for a stay quote, the details are hazy because Alabama released its heavily redacted protocol under five months ago. Close quote and when the state went to carry out its execution, according to CNN, Smith appeared conscious for several minutes into the execution, and for two minutes after that, he shook. He writhed on a gurney. The nitrogen gas ran for 15 minutes. Smith struggled against the restraints. He could be heard gasping for breath.


Melissa Murray This cycle repeated itself once again in the case of Thomas Creech, who challenged Idaho’s method of execution protocol. Creech requested a stay, which the court denied.


Leah Litman And then at the end of February, Idaho failed in its attempt to execute Thomas Creech. They failed eight times to establish an IV line, and creatures sought petition, had asked the court to take his case because Idaho had, quote, one of the, if not the most stringent execution secrecy regimes in the country and quote, and thereby he didn’t actually know how he was going to be executed. And we wanted to connect what the court is doing in these capital cases to how at least some justices view what is happening in death penalty litigation more broadly.


Kate Shaw So quick overview of developments over the last decade and a half in this area. So the first of these was Baze versus Reese, a 2008 case in which the court rejected a constitutional challenge to a method of execution of a particular lethal injection protocol, then in 2015, and Glossip versus gross, that’s Glossip, as in Richard Glossip, who may very well be innocent and whose case the Supreme Court is actually going to hear next term. But a previous case involving Mr. Glossip was before the court in 2015. And there the court said that not only if you’re going to successfully challenge a method of execution, not only do you have to identify a substantial risk of pain, but you also have to show a reasonable alternative method of execution with a lower risk of pain. So placing an enormous and almost impossible to satisfy burden on individuals, challenging the constitutionality of methods of execution. And then in Buckley versus precise in 2019, the court made it even harder for litigants to satisfy the Eighth Amendment test that they had initially in base and then later in Glossip developed.


Leah Litman And part of what is going on in the background of all of these cases is a movement for death penalty abolition. But it seems in the court’s eyes that’s like a movement for bad abolition, not good abolition. Like the court thinks and murthy and maybe NRA versus Bulow. But as part of that movement, you know, people have been pressing companies not to allow their drugs to be used in executions. And some companies have refused to sell drugs for use in execution. You know, some might call that an aspect of popular democracy movements, lobbying and whatnot, but that’s not how this court has viewed it. Or at least that’s not how all of the justices on the court have viewed it.


Kate Shaw Surprising no one. Right. Sam Alito has been at the forefront of this deep skepticism about the legitimacy of efforts to engage in advocacy that is opposed to the death penalty. So we wanted to play a clip from the oral argument in gloss versus gross. I was in the courtroom for this argument. And Alito in particular. I mean, I remember just being so shocked that he was suggesting that this back story was relevant to the court’s decision in the Glossip case. So I’m not going to prove it anymore. Let’s just play the clip here.


Clip Yeah. I mean, let’s be honest about what’s going on here. Executions could be carried. Out painlessly. There are many jurisdictions. There are jurisdictions in this country, their jurisdictions abroad, that allow assisted suicide, and I assume that those are carried out with little, if any, pain. Oklahoma and other states could carry out executions painlessly. Now, this court has held that the death penalty is constitutional. It’s controversial as a constitutional matter. It certainly is controversial as a policy matter. Those who oppose the death penalty are free to try to persuade legislatures to abolish the death penalty. Some of those efforts have been successful. They’re free to ask this court to overrule the death penalty. But until that occurs, is it appropriate for the judiciary to countenance what amounts to a guerrilla war against the death penalty, which consists of efforts to make it impossible for the states to obtain drugs that could be used to carry out capital punishment with little, if any, pain? And so the states are reduced to using drugs like this one, which give rise to disputes about whether, in fact, every possibility of pain is eliminated. Now, what is your response to that?


Leah Litman He is basically saying, I think people who are opposed to the death penalty are fighting dirty. So I’m going to fight back here from my position on the court and the justices, or at least some of them, you know, just come out and say they should take this into account. Their view, the death penalty abolition is too successful or somehow untoward in their account and how they treat capital cases. And it’s not just Sam Alito. Here is Justice Scalia expressing a similar sentiment.


Clip I guess I would be more inclined to find that it was intolerable if there was even some doubt about this drug when there was a perfectly safe other drug available. But the state had gone through two different drugs, and those drugs have been rendered unavailable by the abolitionist movement, putting pressure on the companies that manufacture them so that the states cannot obtain those two other drugs. And now you want to come before the court and say, well, this third drug is not 100% sure. The reason it isn’t 100% sure is because the abolitionists have rendered it impossible to get the 100% sure drugs. And you think we should not view that as as relevant to the decision that you’re putting before us?


Leah Litman And it’s not just Scalia and Alito. Here is Justice Kennedy.


Clip That doesn’t answer Justice Scalia and Justice Alito’s question. The question is what bearing, if any, should we put on the fact that there isn’t a a method but that it’s not available because of because of opposition to the death penalty? What relevance does that have? None.


Melissa Murray So again, we just want to make sure that people were aware that this is something that justices want to say matters to their analysis of death penalty and method of execution claims that it’s somehow the fault of the death penalty abolition movement, that companies don’t want their drugs to be used for executions, and therefore the state must use cruel or methods that are more likely to cause pain and subject people to torture. That seems to be the.


Kate Shaw Narrative that is the fault of abolitionists, that individuals are suffering in the way that we just described, of course, in states that are continuing to move forward with.


Leah Litman It’s definitely not the fault of the states I hearing them. And I think this is linked to the conservative grievance narrative, you know, that we identified in the first cases from the sitting because it presupposes that as groups successfully organized to block the death penalty and persuade company is not to facilitate it, it must be that those groups are doing something untoward and unfair that courts must counterbalance, to allow states to pursue their preferred agenda.


Kate Shaw And the court’s insistence that conservatives are the real true victims here, including of government coercion, is all the more galling when you think about some of the cases the court could hear, but has not yet decided to. One of those we wanted to highlight involves a petition from Brenda Andrew.


Leah Litman And we don’t usually cover petitions, but we do occasionally make exceptions, and we’re doing so here for reasons that will probably become apparent when we say what’s happening in this case. So Brenda Andrew was convicted and sentenced to death and is seeking a writ of habeas corpus based on several problems with her trial. Andrew was convicted of murdering her husband, who she was separated from at the time of the murder. She was the person who called 911 to report the shooting and was shot herself. At trial, the prosecution called to the stand Andrew’s former sexual partners and asked them details about their sexual relationships, even though she hadn’t seen one of them in four years. In the prosecution’s closing argument, he read from the Murder Victims Journal describing a sexual relationship his wife, Brenda Andrew, had had in college. They elicited testimony about what she wore, including about her, quote, short skirt, low cut tops, just sexy outfits. The prosecution directly questioned a witness about her clothing and the witness said, quote, Miss Andrew wasn’t wearing attire that I would consider appropriate and quote. So they essentially secured a jury verdict by playing to sexist stereotypes, which is a constitutional problem on top of all the others in the trial. Like she was brought into police questioning while still in a hospital gown after being shot in the state, said she wasn’t in custody. Just a name one. I mean, Brenda Andrew was literally convicted and sentenced based on shocking instances of gender bias and sex shame potentially to death. And, you know, since, as we are aware, Sam Alito is very concerned about unconstitutional discrimination in juries specifically, we’re sure he will be inclined to hear Brenda Andrew’s case. But to my mind, this case reads to me kind of like Buck versus Davis. But for sex or gender discrimination, buck versus Davis was the horrific Texas capital case in which Texas put on expert witnesses who testified that black defendants were more likely to commit crimes in the future and were more dangerous. And the court said, you can’t engage in that racist stereotyping and granted habeas petitions, even though the court is not inclined to do so. And this case, I think, is extremely important. And part of, again, like a broader pattern of state violence to reinforce gender hierarchies to the detriment of women. And if you want to learn more about Brenda’s case, you can go to save BrendaAndrew.org.


Kate Shaw Have they conference the petition yet? No. So it’s going to be up for it’s first?


Leah Litman  I think it’ll be conference this week.


Kate Shaw This week okay. Yeah. So just like an incredibly important case, the justices should take it up.


Leah Litman I just want to say one thing. Part of the horrific thing about the distribution of the current court is the Democratic appointees don’t actually have the authority to put a case on the court’s agenda. If there were four of them, they could vote to grant and say, of course, this case may. The court’s attention, but they need one of their Republican appointed colleagues to joined and put on their agenda.


Kate Shaw And Provence wrote Buck v Davis right?


Leah Litman Yes.


Kate Shaw Like he he actually this case is egregious in a way that is related for sure. And maybe this is one where he would see the light. I don’t know, but he certainly should. But yeah, the difference between 3 and 4 is not just in outcomes in cases that are being argued, but in the ability to get something on the agenda in the first place. There is another case that the court tried to get off of its docket before, but looks like it could be headed back. That’s another death penalty case that we wanted to mention. That’s a case of a rally. Escobar, who was convicted and sentenced to death on the basis of DNA evidence that the prosecution concedes was false. So the testing was done at a lab that had such serious deficiencies that the state of Texas ended up closing the lab. And the state court found that the evidence used to convict him was false and misleading and unreliable, and the prosecutor’s office conceded that the petition should be granted. But the Texas Court of Criminal Appeals refused. The Supreme Court vacated the decision and told the Texas Court of Criminal Appeals to take another look. And that was back in January of 2023.


Melissa Murray Well, the Texas CCA took another look and decided, yeah, the state of Texas should kill someone convicted on the basis of evidence it now concedes was false and concedes involved a constitutional error. Very, very, very legal and legitimate. Ladies and gentlemen, just want to make clear to you, the courts will always save us.


Leah Litman Indeed, indeed. You can always count on them.


Melissa Murray Yeah. The Texas CCA is more extreme on rights of criminal defendants than the Texas prosecutor’s office. So no other words.


Leah Litman So the Texas CCA said the defendant, quote, had not shown certain evidence to be false. And other evidence that has been shown to be false is not material. And quote, they literally say the state’s articulated special concern about the possibility of contamination does not support the false evidence claim. And so this case seems like it is teed up to go back to the US Supreme Court.


Melissa Murray And lest you think it’s just the state courts in Texas, they’re absolutely off the rails. It’s also the federal courts who are staying busy vindicating rights, not, let’s talk about a Texas district court and indeed one specific Texas district judge.


Leah Litman And it’s not Matthew Kacsmaryk.


Melissa Murray It’s not Matthew Kacsmaryk.


Kate Shaw Everything I want to say is that there it’s also not the good Judge Pittman this is confusing. And there are two Judge Pittmans.


Melissa Murray There’s Robert Pittman.


Kate Shaw Yeah, who is good.


Leah Litman Who is delightful.


Kate Shaw He’s great. We just want to say, I don’t want any of our listeners to be confused about which Judge Pittman is responsible for what Melissa is about to say. It is the bad judge. Pittman. Yeah. Sorry. Melissa.


Melissa Murray Exactly. You know, the difference between the Duchess of Sussex and the Duchess of something else, right? Like Judge Pittman. The good.


Kate Shaw Ugh huh


Melissa Murray Judge Pittman, the not so great.


Melissa Murray Judge Dale ho. Judge Jim Ho.


Kate Shaw Yeah.


Leah Litman Exactly, exactly.


Melissa Murray Okay, so the Judge Pittman to whom we are referring is judge Mark Pittman. Judge Mark Pittman invalidated the Department of Commerce’s Minority Business Development Agency, and that agency has actually been around for 55 years. It assists minority owned businesses in accessing capital and government contracts. And interestingly, noted liberal squish Richard Milhous Nixon founded the agency. And in the opinion in which he invalidates this program, Judge Pittman writes, if courts mean what they say when they ascribe supreme importance to constitutional rights, the federal government may not flagrantly violate such rights with impunity. The media has done so for years. Time’s up.


Leah Litman I don’t think that’s what Time’s Up was meant for. But, you know, an interesting poll, Judge Pittman.


Melissa Murray We can always repurpose the rhetoric of the left.


Leah Litman This is, as Melissa repeatedly refers to, the “woke warriors”, right? The inversion of all of these tropes and repurposed for regressive ends. So the MBDa statute directs the agency to serve socially or economically disadvantaged individuals, which is statute and regulations defined to include certain groups, including black people, Latinos, Native Americans, Native Hawaiians, and more. And now the agency will help everyone because all resumes matter. All businesses hashtag, all small businesses mattering federal agencies. So.


Kate Shaw Yeah. And I mean, this is at when students for Fair Admissions came down. I think, you know, there was a lot of debate about how expansive the reasoning in the opinion was. And there are many, many race conscious programs across state and local and federal government and the Pittman vision. And, you know, I think the Thomas vision as well, and his students for fair admissions writing is that all of that is constitutionally defective, fatally so and so. It’s just a matter of sort of how exactly and when all these chips fall. But that, I think, is the path that we are on, at least if this opinion is any indication. So, Pittman, it’s I guess, not surprising is the one taking us down this path. He’s a Trump appointee, and you may remember him from such hits as comparing President Biden’s student debt relief program to wait for it, the Nuremberg Laws in Nazi Germany. That’s right. That happened in an oral argument, in the initial challenge to the loan relief. Program. And so that is again the pitman not to be confused with the good Pittman responsible for this really expansive race blind vision of all state, federal, local laws.


Melissa Murray I’m really going to need them to stop doing these Holocaust comparisons.


Leah Litman I that would also increase my utiles. I would say.


Melissa Murray Okay. In addition to judge Mark Pittman, we also wanted to situate recent reporting about the fallout from the Supreme Court’s work to systematically dismantle the Voting Rights Act. So very recently, the Brennan Center, which is a nonpartisan think tank housed at NYU. Full disclosure I’m a board member put together a very important report on the aftermath of the Supreme Court’s decision in 2013. Shelby County versus holder. The report focused on racial disparities and voter turnout in the wake of Shelby County versus holder. And again, that decision struck down the preclearance formula of the VRA. The report found that since Shelby County versus holder, the gap in minority voter turnout has grown and is growing most quickly in parts of the country that were previously covered under the preclearance regime of the Voting Rights Act, which was suspended by the court in Shelby County.


Kate Shaw The report continues to say that, quote, while the gap is growing virtually everywhere, Shelby County had an independent causal impact in regions that were formerly covered under section five. By 2022, the black white turnout gap in these regions was about five percentage points greater than it would have been if the Voting Rights Act were still in full force, and the white nonwhite gap was about four points higher. And also, quote, the turnout gap grew almost twice as quickly in formerly covered jurisdictions as in other parts of the country, with similar demographic and socioeconomic profiles. And all of this you have anecdotally, obviously seen on the ground, but it’s really stark to see the actual data compiled the way the Brennan Center did.


Melissa Murray So there have been some folks who are like Pooh poohing the report on the view that of course, things are going to go down in terms of voter turnout because Barack Obama wasn’t on the ballot. To which I say, the same logic could be applied to Justice John Roberts rationale in Shelby County versus holder, which talked about the uptick in minority voting in recent years. So, yes, that’s the thing about statistics. They can actually be applied in multiple directions.


Leah Litman Yeah, they’re not all sociological gobbledygook. As John Roberts himself has suggested. So, but what the report shows is that the destruction of part of the Voting Rights Act is kind of working as intended because as I know, as Justice Ginsburg warned in her dissent in Shelby County, you know, she said, throwing out the Voting Rights Act because it was successfully stopping voter discrimination is, quote, like throwing out your umbrella in a rainstorm because you’re not getting wet. And she warned about second generation barriers to voting that states had begun to implement.


Kate Shaw Okay. So we are going to do a lightning round and quickly note a few opinions the court has issued in cases that we have talked about. First up, Murray versus UBS. That’s a case in which the court recently handed whistleblower plaintiff Trevor Murray no relation to Melissa and his attorney. Strict scrutiny super guest Isha Anand a unanimous win, reversing a second circuit opinion that had required Murray to show not only that he was retaliated against for protected activity, but also that his employer acted with retaliatory intent. That that was wrong. And that’s really no surprise. After the oral argument, we really felt like we called that one and correctly. But it is still a great result in Nisha’s first Scotus argument.


Melissa Murray Congratulations Eesha and Clan Murray. It’s the first time Clan Murray’s won at the court in a long time.


Kate Shaw Not the last.


Melissa Murray We also got an opinion in McGrath versus Georgia. The court, in a unanimous opinion by Justice Jackson, ruled for the defendant in this double jeopardy challenge. In this case, a jury had convicted a defendant of some charges and acquitted him on others, and the state Supreme Court concluded those verdicts were so incompatible and inconsistent that they were repugnant and therefore the defendant could be retried. The Supreme Court said that guess what, folks, that’s not how double jeopardy works. If you were tried and the jury acquitted you, even if the state thinks that the jury was inconsistent in its treatment of other charges, you cannot be retried. You cannot be put in jeopardy twice for the same offense. Hence the term double jeopardy. The actual doctrine, not principle of double jeopardy.


Kate Shaw All right. And last week we got an opinion in Lindke versus Freed and the other social media block in case which is O’Connor Ratcliff. These two cases were sort of a pair of cases. They were about when the First Amendment limits government officials ability to block citizens from seeing or engaging with their social media accounts on things like Twitter and Facebook. So the court, in a unanimous and pretty narrow opinion, written by Justice Barrett, said that government officials accounts on social media constitute state action that is subject to the First Amendment and therefore limited in, you know, its ability to penalize people for the content or viewpoint of their speech by doing things like blocking them only when the account purports to post on the state’s behalf, while possessing actual authority to speak on the state’s behalf.


Leah Litman It’s a pretty sensible rule, and the court smartly doesn’t say a ton about how exactly the rule applies to particular cases. Leaving details to be worked out by the lower courts and potentially down the road, which is a smart call given the evolving face of social media. The court just emphasizes that the authority need not come from state law, but can come from custom or consistent usage, but also that the mere appearance of an account doesn’t mean the account is on behalf of the government.


Kate Shaw So the generality and sort of under specification, I think, is a virtue in many ways. I found it a little frustrating, and I was a little surprised that Kagan didn’t write separately, because she seemed sort of troubled by the kind of like arm waving sort of generality of like, what are you authorized to do under law? And she was like, well, that’s officials. Part of their job is talking like, I’m not sure. Like that seems that’s not really enough of a test, but this might just be an occasion where doing something minimal was more important than being super clear. And the lower courts just know that sometimes you actually can violate the Constitution as a public official. Even if you’re on, you know what you say is a private account. If you are doing the work of government on there, that it converts it to kind of government action and the Constitution applies. And so I do think that’s actually a really important principle to have preserved coming out of this case.


Melissa Murray And we also got an opinion in a much anticipated case, Pulsipher versus United States. This was the First Step Act case about who is eligible for resentencing under the First Step Act. The First Step Act, as a law that sought to reduce the incredibly harsh, severe mandatory minimums around federal drug laws. And in this case, and at 6 to 3 opinion by Justice Kagan, the court adopted the government’s interpretation of the law that made those sentencings available to fewer people. Basically, the statute lists three conditions and says that a defendant is eligible for resentencing only if a defendant does not have a one type of conviction, be another type of conviction and see some other attribute, the court said. That meant that a defendant couldn’t have any of those individual conditions, and the defendant had argued that a defendant wasn’t eligible only if they had all of those conditions met since the statute used the term and as opposed to or.


Kate Shaw As Justice Gorsuch noted in dissent for himself, along with Justices Sotomayor and Jackson, the court kind of rewrote the statute so that the phrase, quote does not have was no longer before. And m dash that preceded conditions A, B, and C that Melissa just mentioned, but instead was included in all of the conditions. So the statute actually read something like A defendant is eligible for sentencing only if the defendant does not have type conviction, does not have type conviction, does not have type C. That’s not what the statute says, but that’s essentially what the majority did.


Leah Litman And this too seems like a case where the worst person that you know has a point, because, you know, as, as Gorsuch noted, like, yes, the government’s implicit distribution theory requires a reader to delete words before the M draft. Yes, it requires a reader to reinsert them in three different places where they do not appear. And, you know, the result in the case makes sense, and that a policy justification for the defendant’s interpretation might not leap off the page or seem as plausible as the government’s. But that’s not supposed to be the lodestar for interpreting statutes.


Kate Shaw So this was a very disappointing result, and in particular, because this is one of the rare cases where Leah thought, based on the arguments coming out of the case, you were optimistic about how the court’s affinity. But.


Leah Litman Not the argument. I think like in the preview, before all the argument was that.


Kate Shaw Yeah, that’s okay.


Melissa Murray I don’t see how anyone on this court can say that they are a textualist with a straight face after this. I mean, like what they are is pro government. Any time there is a criminal involved or someone who’s alleged to be a criminal. Disappointing.


Kate Shaw They intone it so often, we are all textualist, that like you begin to take it seriously. But maybe that was just like our mistake and like we shouldn’t make it again.


Leah Litman Sometims they stick to it, right? But it’s just difficult to get a sense for when.


Kate Shaw Yeah, yeah. Okay. One final point, which is that it is an election year. And so we are watching a lot of litigation involving the ballot across the country. And we wanted to flag an issue and a lawsuit in new Jersey that involves this quirky issue of the design of the ballot. So basically, in new Jersey, as I have recently learned, where you appear on the ballot is largely determined by whether you get the county party’s endorsement. If you get the endorsement, you get the super preferential placement on the ballot, which is an enormous advantage. And this matters a lot because there is an important primary election happening for the Senate in June in New Jersey. So people will recall that Senator Menendez, under indictment, has refused to step down. So there is this heated primary race involving Congressman Andy Kim and New Jersey First Lady Tammy Murphy. And the lawsuit basically says it is messed up for these county parties to have this role that will maybe determine who the Democratic candidate in the general election for Senate is. And the Senate is going to be close, and it’s going to matter a lot. So there a hearing in this case next week and we’re going to keep our eye on it.


Leah Litman So that is all we have time for this week if you are still listening to us. Well first of all thank you. That means you’re a super fan.


Melissa Murray And super awesome.


Leah Litman And super awesome. And second, you deserve first access to our pre-sale tickets for our newly announced DC show. We are going to be headed to the nation’s Capitol on June 22nd and DC at the Howard Theater to host Strict Scrutiny Live, so grab your pre-sale tickets now with the code Scrutiny head to crooked.com/events to snag them now.


Melissa Murray Strict Scrutiny is a Crooked Media production hosted and executive produced by Leah Litman, Melissa Murray and Kate Shaw. It’s produced and edited by Melody Rowell, audio support from Kyle Seglin and Charlotte Landes. Music by Eddie Cooper, whom I recently met. Production support from Madeline Herringer and Ari Schwartz. And if you haven’t already, be sure to subscribe to Strict Scrutiny in your favorite podcast app so you never miss an episode. And if you want to help other people find the show or find Kate Middleton, please rate and review us. It really helps.


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