In This Episode
It’s the start of a new Supreme Court term… and the start of Strict Scrutiny’s fifth season! While the cases ahead may seem technical and boring, they’re actually quite significant. Melissa, Kate, and Leah preview the first oral arguments the Court will hear in October Term 2023.
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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.
Kate Shaw 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 we are here for the first week of oral arguments for October term 2023. And so before we get started, I just want to know, ladies, how was your second summer without rights? Are you getting used to being a handmaid?
Kate Shaw Turns out I like having rights and so it was not the best.
Melissa Murray Leah?
Leah Litman Yeah, I kind of echo Kate. And the world just feels very different now. Like some guy named Travis Kelce has like the number one podcast in the country, and Republicans are like coming after Taylor Swift. And I just don’t know exactly like what is happening, at least the MAGA ones are. And it’s just, it’s an odd world. It’s an odd world.
Melissa Murray So you didn’t find that Barbie and Renaissance and Taylor help make up for the lack of rights, like just buying all the friendship bracelets and all the silver clothes, like, made up for not having any rights?
Kate Shaw They did their parts. They are all amazing. And it turns out there’s only so far they can go.
Melissa Murray Yeah, there’s no substitute for constitutional rights and it’s. Yeah, it is really even.
Leah Litman Taylor No, like it is cathartic and it is like energizing to continue to, like, fight for the rights we should have. But yeah, not substitutes.
Melissa Murray Props to Taylor for getting 35,000 people to register to vote. So good for her.
Kate Shaw I call that a good start.
Melissa Murray And props to Beyonce for giving me my whole life back. Like I went to Renaissance and I was cleansed and.
Leah Litman Who inspired you to get that ticket to that L.A. show, Melissa?
Melissa Murray You did. You’re like, Just do it. And I was like, Should I do it? Should I fly to L.A.? And you’re like, Girl, just go. And I did. And I wore silver clothes because it was Virgo season. And like Beyoncé, I’m a Virgo. And it was just absolutely amazing.
Leah Litman Like, Taylor, I’m a Sagittarius.
Melissa Murray We just got to find someone for Kate. Kate’s got to find a superstar Zodiac partner. And then we’re in business.
Kate Shaw I barely know my own Zodiac sign, so I’m not even sure. I think. I think this is going to go out.
Melissa Murray When’s your birthday?
Kate Shaw I’m a Taurus. I do know that, actually. But I don’t know who. I have no idea who else in Celeb World is a tourist. We did it with Blue Ivy on stage at the L.A. show. Did you see?
Melissa Murray She was. She was. I did see I was very close. I mean, I was on the stage risers in L.A. and.
Kate Shaw Wow.
Melissa Murray I was very, very close. I could see that she was wearing fishnets at one point. And I was.
Kate Shaw Wait Blue Ivy was wearing fishnets? No.
Melissa Murray No Beyonce was wearing fish nets.
Kate Shaw I mean, it’s possible, I suppose now.
Melissa Murray Blue Ivy is a child.
Kate Shaw Yeah, I know. She’s wearing, like, suits. She’s well coverage. Yes.
Melissa Murray She was like, wearing like I wore a track, but it was like DJ Khalid was there. It was. It was great. It was great. I saw lots of celebrities in the audience and I Meghan Markle was there at the same time that I was. And if I had known that the other mom was in the stadium, I would have left the stage writers and I would have found her and we would have become.
Leah Litman Karlie Kloss was at the stadium while I was there. I really feel like we had just parallel experiences.
Melissa Murray We really did.
Kate Shaw So we did find ways to source some joy this summer, internally.
Leah Litman Internally, that was kind of.
Melissa Murray External and internally. And we brought the squish. We definitely brought the squish.
Kate Shaw Okay. So we should probably turn to business. Here is the rundown for today’s show. We are going to start with some breaking news. We will then preview the three cases the court is hearing this week. It’s a pretty light week in terms of just the sheer number of cases the court is hearing. But all of them are kind of a big deal. And so we’re actually really glad to have some time for them. And we will then at the end of the show, turn to some court culture.
Melissa Murray And since it’s the start of another season, we thought we’d just explain. For those of you who are new to the pod welcome, we thought we’d explain how we work while the court is hearing cases. So during the court’s term, our weekly episodes will preview cases that are going to be argued in a given week. And we may also recap oral arguments in cases that were argued the previous week. So we have a kind of rhythm preview, recap, preview, recap. And then for episodes that air in between the court’s monthly sittings, we cover other things related to the court in court culture, like, for example, whatever latest insanity regarding the justices ethical lapses that ProPublica has uncovered, or we might take a deep dive into some things that are on the court’s docket, or we might even delve into another court’s docket. And yes, that is a Fifth Circuit sub tweet.
Leah Litman So this episode airs on Monday, but tomorrow is October 3rd, which is Aaron Samuels Day. So happy early, Aaron Samuels day to those who celebrate.
Kate Shaw Find someone cute, ask them what the date is.
Melissa Murray What is Erin Samuels say. Don’t don’t.
Leah Litman Mean girls. On October 3rd, he asked me what day it was and I said, it’s October 3rd.
Melissa Murray I forgotten about that. I love when you remind me of these things.
Kate Shaw Well, first, let’s do some breaking news, because we have what counts as good news out of the court. This broke last week, and that was the court’s refusal to bless Alabama’s defiance of the court’s June 2023 opinion in Allen versus Milligan. So listeners will remember Alan was. The case that held that Alabama violated the Voting Rights Act by drawing a racially gerrymandered map and that it needed to draw map with a second majority black district. Alabama, of course, stayed on its because it drew another map, but it still did not include the required second majority minority district. That map was also challenged. Predictably, Alabama lost and Alabama then went running to the Supreme Court, asking for another bite at the apple. And the court denied Alabama’s stay request with no noted dissents.
Melissa Murray To be very clear, none of this changes the fact that Alabama continues to be truly outrageous in its efforts to dilute the voting power of black Alabamians, who make up about 27% of the state’s population. Nor should the court get any cookies for doing the right thing here. The court’s institutional self-interest and legitimacy just happened to align with the interest in democracy and the rule of law. So it’s great when you have that interest convergence. But I’m never going to forget that the court allowed this stupid map to go into effect in the first place back in February of 2022. Nor am I going to forget that this was literally the least that they could do. But I will take this as a win for both the rule of law and what it means for Alabama and for other states who are going to have to use genuinely representative legislative maps going forward. So huge sigh of relief.
Leah Litman You did know there were no noted dissents, which makes me wonder whether someone needs to do a wellness check on Sam and or Clarence.
Melissa Murray Like check the RV first.
Kate Shaw I was actually like, maybe this is one of these things where very occasionally you get not at the Supreme Court really, but in lower courts, a dissent that follows after the issuance of either the order or the opinion. This is something that normal one having Supreme Court Justice Rebecca Bradley has done. Right. Follow up with the dissent a couple of days later as she, you know, whatever polishes her prose. So it was like ask maybe they’re just, you know, working on their dissent and the order came out. But Thomas was the one who referred the request to the court. So, no, they just decided to hold their fire. So what’s the theory, Melissa? You said check the RV. What, like they’re being held hostage in there.
Melissa Murray And maybe they’re just chilling out, like getting ready for the term, just relaxing, doing some masks. You know, they could get exorcized about this, but why get exercised about this when you could get prep to take down the administrative state?
Leah Litman Exactly.
Melissa Murray I mean.
Leah Litman Exactly. But the entire episode drives home, at least for me, how Brett Kavanaugh has attacked her skill of a large mammal whose head and brain are like, quite small because, I don’t know, like the horses the patriarchy is all about. Because, you know, remember his, like, totally weird concurrence. And Alan, which is partially how we got here with Alabama once again trying to defy the court and picking up the cues he left them. And it seemed to me in hindsight, like Brett was trying to pull a chief justice from, say, June Medical or NFIB or Sebelius or Northwest Austin Municipal District or other cases where the chief justice planted some seed that could be used later on to move the law in the way he wanted to and escape public notice while making the law bend toward conservative aims. But unlike the chief who Coach Kavanaugh fanboys over like Brett just doesn’t have the brainpower and skill to pull it off. So he did it in a really ham handed way and didn’t mean for Alabama to try to do so. Like literally in this case, the Alabama attorney general issued a statement after, you know, the Supreme Court said, Alabama, you know, this lower court decision actually would stand the Alabama AG like in the decision that struck down a map that diluted the voting power of black Alabamians and a decision that will ensure black Alabamians are represented to quote, a separate but equal set of congressional districts and a racial quota system.
Melissa Murray They love to quote Brown.
Kate Shaw They re appropriating the language of racial.
Melissa Murray They really do.
Kate Shaw Alive and well in Alabama. They are the true racial justice Warriors.
Melissa Murray Woke Warriors! Woke warriors. So we preview some cases then. I mean, like this is such a bonkers term that I feel like we need to just spend as much time as possible going over this stuff. Let’s do it. Yes. Okay. All right. So, again, this term, we just want to reiterate, seems like it’s pretty anodyne and technical, but there are some really big cases here. So we want you to be prepared so that you can tell your friends and family like don’t be lulled into an Anasta sized opiate sleep. This is actually a really big deal. All right. So the first case we’re going to preview is Atchison Hotels versus Laufer. This is a case that concerns Tester standing and Liam mentioned it on our Turn preview, but we didn’t have time to go deep in that preview. So we are now going to spend a lot of time digging into Atchison Hotels. So first up, Kate, tell me what tester standing is.
Kate Shaw Yeah, we thought we’d start with some kind of definitional work. So tester standing is basically just a way of enforcing civil rights statutes by identifying discrimination. So maybe we’ll talk about a little bit of the earlier precedent on this issue. The court decided some early tester standing cases, including Haven’s Realty, which involved the Fair Housing Act. So that act prohibits discrimination in housing, says landlords and sellers cannot discriminate on the basis of. Race, among other characteristics.
Melissa Murray But how do you know whether a landlord or agent or someone else is discriminating on the basis of race in defiance of the Fair Housing Act? Well, one easy way that you could establish discrimination is if you could show that the landlord treats white and black tenants or white and black prospective buyers differently. So testers might go out and seek information about a real estate listing. So some white testers would ask for the info and then some black testers would ask for the info. And if they got different information, like if the landlord gave the white testers information but didn’t give that information to the black testers, or if a seller offered a more favorable deal to the white testers or offered to sell to the white testers but not the black testers, then the testers could say that they were discriminated against. And that kind of process helps enforce anti discrimination statutes which otherwise would have to be enforced in real time with every single episode of discrimination. And again, individuals might not know they were being discriminated against without the sort of control of the other tester. And so because otherwise it might be harder to identify this kind of discrimination and therefore stop it. We use testers to try and identify it.
Leah Litman And when these testers standing cases arose, the defendants tried to argue that the plaintiffs did not have standing because the plaintiff testers might not have intended to actually buy or actually rent the property they were inquiring about. And therefore, the defendants argued because the plaintiffs never intended to buy the property they were asking about. They weren’t injured when, you know, they didn’t receive the right information about it or received a worse deal. And the Supreme Court, back in the good old days, rejected those arguments and said that testers did have standing if testers had been discriminated against in violation of a statute. And the court reasoned that whether or not you intend to buy the property, if you are discriminated against on the basis of race or other protected status in violation of federal law, then you are injured and have standing to sue.
Kate Shaw And there’s an amicus brief we wanted to highlight by the ECP, LDF and a number of other civil rights organizations that described the dignitary harm and injury that result from discrimination. Whether or not there is a separate injury related to the denial of a specific good or service that someone wants to buy or rent, and they invoke the history of black plaintiffs who sued to desegregate privately operated transportation hubs in Jackson, Mississippi. And they emphasize, look, these plaintiffs didn’t allege a risk of criminal consequences. They didn’t allege any tangible reason why they would personally need to access specific whites only areas like terminals they were passing through. The court didn’t require that, right. It held they had standing to enforce their right to non segregated treatment. And that is what the plaintiffs here are asking for.
Melissa Murray Public Citizen also submitted an amicus brief here that describes how the denial of information by itself can be sufficient to confer standing in other contexts as well.
Leah Litman And these cases and the general theory is what this case is about, whether testers can sometimes have standing.
Kate Shaw This particular case, which is about tester standing broadly, is specifically about the Americans with Disabilities Act, or ADA, a federal law that guarantees accessible services and accommodations for persons with disabilities. And testers might, for example, identify a facility or business that does not offer such accommodations and challenge the failure to offer accommodations before the failure to offer, you know, services or accommodations actually prevents a person with disabilities from being able to access that facility or that business.
Leah Litman And this is a very real concern for the ADA. An event this summer kind of underscored why Tester standing is important to remedy ADA violations before they end up excluding persons living with disabilities. So Senator Tammy Duckworth, the senator from Illinois who lost her legs in combat, tried to take her two daughters to the Barbie movie. You know, she said they all get dressed up, you know, and her children put on their sparkly shoes. But it turned out the elevator was broken at the theater. They went to and the theater hadn’t posted any information about that. So Duckworth, who uses a wheelchair, couldn’t access the theater or go to the movie with her family.
Melissa Murray Another reason why tests are standing is so important is that it’s actually very inefficient and even unrealistic to enforce the ADA by addressing complaints as they occur in real time. So Claudia Center, who is the legal director for the Disability Rights Education and Defense Fund, explains it this way. Quote, There are thousands upon thousands of complaints. There’s no way for the Department of Justice at its current level of staffing to respond to them all. You have to find a lawyer, one who will work on some kind of contingency fee because most people with disabilities don’t have the money to pay out of pocket. There’s a filing fee to even file a complaint. Everything is very expensive. There are also no damages that can be awarded in a case like this. So there’s no promise payout for a lawyer later, as there might be in a personal injury case. And so all of these sort of interesting procedural and structural inequities make it much harder for individuals with disabilities to enforce their rights under the ADA. And so Tester cases like this one are areas where they can preemptively challenge some of these violations of the ADA. Without actually having to mount the litigation themselves.
Kate Shaw So again, the case, broadly speaking, about whether a tester or someone who identifies an ADA violation in the wild, even though they may not themselves be planning to use a particular facility, has standing to sue under the ADA. And this particular challenge is to a hotel’s failure to provide information about accessibility on the hotel’s website.
Melissa Murray Now, there’s a procedural wrinkle here that we should identify. So in its brief, the United States notes the case may actually be moot because the hotel added accessibility information to its website later. And the plaintiff in this case, Ms.. Laufer, filed a notice of the voluntary dismissal of her claims in the district court. Now, this happened after her counsel in the Supreme Court learned that her other counsel, the counsel that had represented her in other district court proceedings, had been disciplined in another district court for their conduct. In 88 cases that had been filed on Lauper’s behalf, including failing to keep clients like Laufer informed of the progress on their cases. And Laufer SCOTUS counsel says that her plaintiff, quote, recognizes that the allegations of misconduct against her original lawyer could distract from the merits of her ADA claims and everything she has sought to achieve for persons with disabilities like herself. And accordingly, she has decided to dismiss all of her pending cases with prejudice. So plaintiff’s counsel who filed the complaint in this case has also been recently suspended from the practice of law relating to mortgage assistance relief work that did not concern this plaintiff or the ADA. So there’s a lot of stuff going on here and Ms.. Laufer recognizing that some of this could be a distraction from the very real merits of this case has decided to dismiss her claims with prejudice.
Leah Litman But I think these developments are also part of a trend in what’s become after the Supreme Court grants certiorari. In your case, efforts to get the Supreme Court to dismiss the case and not actually decide it, basically trying to get what’s called a dig a dismissal as inappropriately granted, which would mean the court, you know, ultimately doesn’t hear the case at all. And I think this has developed that practice since the specter of this court deciding anything in a civil rights case is usually horrifying. And so like this phenomena arguing that the court should dismiss a case or pursuing some action that could get your case dismissed has actually happened a bunch. So this happened in some previous Fair Housing Act cases about whether the Fair Housing Act provided for disparate impact liability and disparate impact liability is just like when a policy results in disadvantages or discrimination on the basis of race, whether that violates federal law. So first, the Supreme Court took up that issue in Magner versus Gallagher 2012. That settled, then Mount Holly versus Mount Holly Garden citizens in 2013, that also settled. And finally, the Supreme Court got a case out of a Republican controlled state, you know, that wouldn’t settle. And they decided the issue in Texas, Department of Housing, Community Affairs versus Inclusive Community Affairs project. And that wasn’t the only example like the post grant effort to get a dig also happened in one of the precursors to their fair share or public sector union cases. Janice That was in the case of Knox. So after the Supreme Court granted cert in Knox, the union sent a notice offering a refund, a fair share of fees to people who objected to them. It also happened in a previous gun case, you know, that the court was going to decide before Brown also captioned i cerpa there the city repealed its gun licensing scheme and the state, you know, enacted a law after the court granted cert. And before that there was fisher versus university of Texas, an earlier affirmative action case where there were reports that Texas had actually offered to refund the application fees paid by the applicant who sued to challenge the school’s affirmative action program. So, yeah, this just seems to be part of the pattern now.
Kate Shaw So those efforts, there’s a lot of precedent for not always successful. So we will see if the court decides to take that offramp or actually get to the merits of the case. If the case does get to the merits, the defendant in this case. So actually the petitioner, the one asking the Supreme Court to take the case, actually isn’t totally asking the court to jettison, test or standing in its entirety, which I think wasn’t totally clear going into this case. But having looked at the briefs is now clear. The argument seems to be a much narrower one. Just wrote that the ADA regulation in this case cannot confer test or standing, although a statute presumably could create standing for testers. They also seem to argue that access to information under the ADA in particular is about facilitating access to hotels. And so they say under the statute, a plaintiff needs to have some plans or desire to access a hotel or, you know, to travel there in order to have standing.
Melissa Murray The defendant Hotel also says that acts of individual discrimination result in stigmatic injuries in a way that doesn’t happen in ADA cases. And I’m not really sure that’s accurate or right or even fair. But it does signal, as Kate is suggesting, that the defendant isn’t asking the court to overrule all test or standing cases, but rather to distinguish them on possibly artificial grounds, but to distinguish them nonetheless. So, you know, one question here will be whether the court will do what it did in the affirmative action cases where it wasn’t being asked to jettison. Affirmative action entirely, but rather to address the specific claims that Asian-American applicants were raising. But instead the court sort of bypassed that and took the more extreme path. That’s a question here, too. Will the court be narrow, as the defendant is suggesting, or will it be broader and get rid of Chester standing entirely?
Leah Litman And the United States is also participating in the case, also pushing kind of a narrow ground for the courts to resolve the case, saying the plaintiff doesn’t have standing because the specific ADA regulations and statute don’t provide a right to information for people who don’t seek to use the hotel’s reservation service. And the reason why these are narrower arguments is that they just turn on the meaning of a statute and regulation and maintain that this particular statute or regulation does not allow testers to sue without resolving whether testers could ever sue consistent with, you know, the U.S. Constitution if Congress were to authorize them, as opposed to cert grant developments highlighted by Matt Lauer, Lauer’s attorney suggest, and I worry that some of the justices, specifically Alito and Gorsuch, will seize on them to argue that they are somehow representative of abusive litigation practices in tester standing and anti-discrimination cases and use that as kind of like a cudgel to attack Tester’s standing.
Kate Shaw And just progressive litigation in general. Yeah, I mean, I feel like that’s there’s no way that opportunity, death penalty, litigation, all of it.
Melissa Murray Any time you’re enforcing your rights, it is abusive.
Kate Shaw It’s abusive definitional. Yeah. So they will definitely not hesitate to point that out. So the next case the court will hear this week is Pulsifer versus United States, which is an important case about the meaning of the first Step Act. That’s the law that amended federal sentencing laws and various ways to basically make federal sentencing more humane. Leah mentioned this case in the term preview as a case that she was cautiously optimistic about.
Melissa Murray So the specific question in this case is which people are eligible for the safety valve provision of the First Step Act. That provision says that in certain cases, people should not be sentenced under the very harsh mandatory minimums that Congress previously enacted, but rather should be sentenced under the discretionary guidelines regime. And the safety valve provision applies to people who have been convicted of certain nonviolent drug offenses, so long as those individuals can meet certain criteria. Specifically, the statute says a person will be sentenced under discretionary guidelines rather than the mandatory minimums. If the person, quote, does not have a more than four criminal history points, excluding any criminal history points resulting from a one point offense as determined under the sentencing guidelines. The prior three point offense as determined under the sentencing guidelines and see a prior two point violent offense as determined under the sentencing guidelines, end quote. And the question here is whether the end that precedes part C means or for purposes of the statute. So the defendant says the safety valve applies so long as you don’t have four criminal history points, a prior three point offense and a prior two point violent offense. The government says the safety valve applies so long as you don’t have four criminal history points or a prior three point offense or a prior to point offense. And there’s a circuit split on this question. So the fourth, ninth and 11th circuits say that and means and and then the fifth, sixth, seventh and eighth circuits say that and means or very normal.
Leah Litman And I just kind of feel like you know textualist on the court like do your thing. I hoping they will do their thing I think they should do their thing and say and means And I know that Sam Alito is like furiously pounding down energy drinks while he keeps rerunning corpus linguistic searches to figure out instances where and actually means or. But I just don’t think that’s probably going to carry the day at the core of the table of contents for the defendant’s brief, which is by Jones Day is kind of funny if like the and means and the plain meaning of and is and context confirms that and means and you know it’s just.
Melissa Murray Textualism the textualism.
Kate Shaw We rarely say a kind word about a Jones day brief so we do have to get into their table of contents. This was well done.
Leah Litman And I just think like Gorsuch is going to be all over this. He’s going to think it’s fantastico because his métier is textualism. References to that style BS will continue until morale improves. But I don’t think the argument for the defendant in this case is just like a mindless textualist thing where like and means and means and and and in the end and, and like there’s a great dissent by Judge Diane Wood on the Seventh Circuit that talks about the structure and design of the first step back and how it was to shift focus from the length of prior sentences to the substance of an offense, as well as a broader purpose of the First Step Act, which was to make discretionary sentencing available to more people with low level nonviolent offenses.
Kate Shaw So the federal government and the circuits that have adopted the government’s interpretation rely heavily on the canons against surplus age and absurdity. Here the can and again, surplus edge means because the government lawyers get kind of confused means a literal cannon where they blow up Congress’s efforts to make federal sentencing slightly, only slightly, but meaningfully more humane and less insane. I saw what you did. That was my effort as a cannon. How to get a joke.
Melissa Murray Cannon fodder is really good. Great. Good.
Kate Shaw That’s all I got. The cannon against surplus Edge does mean the idea that a statute should not be interpreted in a way that, you know, makes parts of the statute superfluous, right? Like makes parts of them not do any work, but it ends up resulting in this reading that I think would clearly undermine the overall goal structure, all of it of the statute.
Leah Litman And I am kind of salivating at the prospect of Justice Jackson just unloading on this. You know, she did something similar in Laura where she pointed out that just because someone is eligible for discretionary sentencing does not mean they will actually get a lower sentence. It just means the judge has discretion to tailor the sentence that is appropriate to the actual offense and the actual defendant. You know, for example, like the government in its previous hypothesizes, like, well, what about someone who has like a million criminal history points from all of their offenses with four points? You know, they would still be eligible for this discretionary sentencing because they don’t have a two point offense. And it’s like, okay, if this person has ten prior convictions for murder, then the judge will just send them to a long term of imprisonment. You know, the first step act just doesn’t impose a mandatory minimum. And the National Association for Criminal Defense Lawyers amicus brief, you know, identify circumstances where judges exercise their discretion to impose sentences where longer than the mandatory minimum. So why don’t we just play the clip from Justice Jackson in Laura Kind. Unloading on the government’s invocation of absurdity, which I hope she will be repeating in this case.
Clip All right. What if we agree that the reason why they don’t create an anomaly is first, because that’s the text obviously says doesn’t say they’re read in. But setting that aside, they don’t create an anomaly because Jay is still broad enough to allow for the greater penalty because the government sets this up as a catch 22, that that and that’s really underlying your BlackBerry concern. You said earlier, you know, the government would have to leave on the shelf the mandatory minimums in C if it picks. JAY But I guess I don’t understand why they’re not why the government perceives itself to be losing the opportunity for a higher penalty if it picks. JAY You still go to court and you still say a killing happened in the context of this carry carrying in a sense. And so, Your Honor, in your discretion to impose the death penalty or the term of years or whatever, we argue that you should give this person more than a person who just would have gotten five years under the mandatory minimum. And as Justice Kavanaugh pointed out, nine times out of ten, you would get it because the court sees a death in this situation. And Jay permits the court to impose a higher penalty for that. So it’s not a situation in which by picking Jay, you somehow are relegated to smaller or lesser penalties in a way that might implicate your blockburger concern.
Kate Shaw And with that fresh in our ears, I want to return briefly to our KBJ Appreciation episode. Remember, we were sort of reaching for some moniker for her in statutory cases and we didn’t really have one at the ready. And a listener, Spencer Waller from Loyola, wrote us to suggest the Countess of Context as an apt descriptor of Justice Jackson in statutory cases. And, you know, I want to take it out for a spin, and I think it works pretty well.
Leah Litman Yeah, I like it.
Melissa Murray Ready for her to drag them for filth and context?
Kate Shaw Yes.
Leah Litman Right. With lots of context. So, Kate, you mentioned that, you know, the government’s absurdity argument would really undermine the entire scheme. It really would take a lot of the wind out of the sails of the first Step act, because under the sentencing guidelines, a defendant gets two points for any prior sentence of 60 days or more. That includes four misdemeanors. And, you know, they would receive more criminal history points for offenses where sentences are longer than 13 months. And those kinds of sentences are quite frequent. Like in 2022, over 23,000 people convicted in the federal system, nearly 40%, you know, had been convicted of these offenses. So the government’s interpretation would really wipe away the sentencing fix and just a huge number of cases.
Melissa Murray And the government’s interpretation has other super harsh consequences. So consider how it might have worked in the case of Eric Lopez, who was convicted of a low level nonviolent drug offense. He had a prior conviction from ten years earlier for spray painting a building, and this earlier conviction resulted in at least 2 to 3 criminal history points being added in the sentencing calculus. So under the government’s theory, Lopez would not be eligible for the safety valve relief and would require a five year mandatory minimum sentence.
Kate Shaw So we are you’re feeling still cautiously optimistic.
Leah Litman About that from year? Yeah.
Kate Shaw I mean, I just like I want to know if Alito and Gorsuch of the three Texas wing of the court are really just going to pull these words out of context because it is not crazy. That word sometimes mean unexpected things depending on their context and so and means or is not actually in every context, as insane as it sounds in the abstract or in the Jones Day Table of contents. Like right, if you say like we’re doing a group project and I’m like, Professor, please don’t put me with Leah and Melissa, because the three of us just like have a really bad dynamic. I’m saying, you know, the three of us are a toxic combination. For example.
Melissa Murray That’s quite a hypothetical. You just pulled out of your mind. Amazing.
Kate Shaw Okay, how about this, Professor? Please don’t put me with Leah and Melissa because we have too much fun, the three of us. And the combination of the three of us is going to make it impossible for us to do any work. We’ll never get the assignment done. I am actually arguably maybe saying I could get work done with just Leah and some rando or just Melissa and some rando, the three of us together. Again, we are just going to get too distracted. And so when I say Don’t put me with Leah and Melissa, I could mean or like you can sub in a third. I’m just saying in the abstract, it is not crazy that sometimes words mean unexpected things in context. It is crazy what the government is arguing.
Melissa Murray They’re the only thing I got from that hypothetical is that you are so kind that when you present a hypothetical that is vaguely insulting to me in Leah, your attempt to clean it up is to create a hypothetical where it’s actually flattering to us because my first instinct would be instead to substitute me and Leah’s name for people. I actually hate.
Leah Litman Exactly that was my instinct as well.
Melissa Murray I was going to say, like, Oh, she’s going in a different direction.
Leah Litman Sam and Neil.
Melissa Murray So my prediction here is that this is going to be a kind of Voltron moment for Neil Gorsuch. Where his textual healing bent and his civil libertarian. I hate the criminal justice system more generally, or may actually come together with really winning results. So maybe this is a place where he and Justice Jackson can vibe a little. She can be the countess of contacts. He can be like, I’m I’m just a civil libertarian. Do you want to keep your republic or not? That kind of guy. What do you think?
Leah Litman Yeah.
Kate Shaw All right. So last case is kind of a doozy. So maybe let’s turn to it now. So we have plenty of time to cover it. And that last case is CFP, the Consumer Financial Protection Bureau versus Community Financial Services. And it is one of the major administrative law cases. Slash is government constitutional cases. That’s on the court’s dock at this term. And we also mentioned it in our term preview. So they really are starting out this term with a bang.
Melissa Murray I just also want to note that it involves the CFP. It also involves community financial services, which despite its name, may not actually be for the community. It’s a payday lender.
Leah Litman Yes.
Melissa Murray Great branding hell of a job on branding, but I just want to point that out. In any event.
Kate Shaw This Liberty Financial Services was taken. So.
Leah Litman These are. It’s just another iteration of Woke Warrior, right? And the like gaslighting inversion trope, right? Where you insist you are the exact opposite of what you actually are.
Kate Shaw Yeah.
Melissa Murray This case involves an absolutely deranged challenge to the CFP board’s funding structure. And again, it is not the first time the CFP structure has been challenged. It is the first time its funding structure has been challenged. So they’ve definitely moved on a little bit. But the theory that’s being advanced in this case could cast doubt on the funding structure for other government entities, including the FDIC, the Federal Deposit Insurance Corporation, or the Office of the Comptroller of the Currency and the Federal Reserve. It could even call into question the funding mechanisms for government programs like Medicaid and Medicare. So again, it’s just really broad here.
Leah Litman And that’s partially why when the Fifth Circuit decided this case, like we referred to it as presenting the originalist case for a recession and a panic of 2023, like make the 1920s stock market collapse.
Melissa Murray Great again, make Black Monday great again.
Leah Litman Yeah.
Melissa Murray So the theory being presented is that the way that Congress chose to fund the CFP violates the Constitution and specifically the appropriations clause, which is Article one, Section nine, clause seven. And it reads, quote, No money shall be drawn from the Treasury, but in consequence of appropriations made by law and a regular statement and account of the receipts and expenditures of all public money shall be published from time to time.
Kate Shaw Again, just to be clear, the CFP is the agency founded in response to the 2008 financial crisis. The idea was to address predatory lending and other practices that had hurt consumers and that led to the greatest financial crisis since the Great Depression. And Congress passed a law that created the funding structure when it made the CFP. And that structure allows the CFP to use funds from the Federal Reserve. So that is an appropriation made by law. The law has appropriated Federal Reserve money to the CFP. That’s how the CFP is funded. It should be the end of the case. And yet here we are.
Leah Litman Because some geniuses at the Fifth Circuit were like, Well, actually the Federal Reserve money doesn’t come from the appropriations process the Congress goes through every year and therefore any CFIB action relying on money from the Fed is unconstitutional. Ergo all CFB action is unconstitutional.
Kate Shaw Yeah, so and not only are the limitations that these challengers are asking the court to impose nowhere to be found in the text of the Constitution, they’re also completely inconsistent with historical practice, not just with respect to our current institutions of financial governance. As an amicus brief by the Constitutional Accountability Center for some professors illustrates. But the argument itself would doom tons of congressional action and the structures of tons of agencies, both today and throughout our history.
Melissa Murray That seems purposeful. Kate.
Kate Shaw Sure does.
Leah Litman I know I said this when we talked about the Fifth Circuit’s decision, but the Fifth Circuit’s theory and the challengers theory boils down to the notion that Congress’s appropriations power is so exclusive that federal judges get to tell Congress how Congress is allowed to make appropriations like they are respecting and honoring the appropriations power so hard by invalidating and second guessing Congress’s choice about how to exercise it. Very similar to the like, Jim. So I’m respecting the FDA scientists by yanking their approval for a drug that’s been on the market for 20 plus years.
Melissa Murray Energy All right. So the Fifth Circuit distinguish the funding structure for the CFP from the funding structure for the Federal Reserve Board. On the ground, the CFP is, quote, double insulated from Congress, whereas the Fed is singularly insulated. But the Federal Reserve Board still doesn’t get money from the normal appropriations process. So I don’t take that to be a limit on the bank, the sort of mono insulation versus double insulation. And I’m not really understanding that logic. But whatever the Fed, like the CFP, gets its money from assessments from Federal Reserve banks and the CFP is money is a capped amount of that. Funding. The Federal Reserve Board gives the CFP money from the combined earnings of the Federal Reserve System, and so that’s how the board gets funded. So this distinction between double insulated and singularly insulated is a little weird to me because it’s all coming from the Federal Reserve Board and the Federal Reserve assessments.
Kate Shaw And even if in the sort of abstract there is like some daylight between the double insulation of the CFP as these challengers frame it and like single insulation of the Fed. The way the case is framed like that theory definitely calls to mind the kind of two step that the court sometimes uses and administrative law cases. And here I’m thinking particularly about the removal cases like, you know, presidential power to remove. So there was one case free enterprise fund, which people sometimes call peekaboo. In that case, the court said two layers of insulation from presidential removal aren’t okay. The details are probably would take us too far afield. But basically the president was limited at two different stages from being able to summarily remove individuals on this public accounting oversight board. Of course, that that’s a problem. Then in, say, the law which involved this very agency, the CFP, the court said, well, actually one layer of removal also isn’t okay. So it is not at all hard to imagine the argument succeeding in this case, with the court ostensibly drawing a distinction between the CFP and the Fed, and then in the next case, an appropriations challenge to the Fed directly. And I mean, the kind of global instability that a successful challenge to the Federal Reserve would create is almost unfathomable. And yet it may well be that this case is laying the foundation for doing just that.
Melissa Murray Well, that’s a great point, Kate, because the reason why Congress structured the CFP in this way with its appropriations coming from the Federal Reserve is because it wanted to ensure that the CFP had stable funding to prevent the kinds of regulatory failures that had led to the financial crisis of 2008 in the first place. And there’s a terrific amicus brief by Deutsche Hunt that details all of this. So the linking of the CFP and the Federal Reserve was purposeful because they wanted stability. And so all of this seems to be pointing toward greater instability, which seems very weird.
Kate Shaw Or maybe the point. Okay, so who is challenging the CFP? Jones Day?
Melissa Murray This feels more familiar.
Kate Shaw We have to restore balance in the universe. And specifically former Trump Solicitor General No Francisco, an attorney at Jones Day. So this is the former solicitor general who is arguing to the Supreme Court with a straight face that the way to respect the legislative supremacy, right, the supremacy of Congress, which is the key goal of the appropriations clause, is to hand courts a vast new set of powers, including the power in the guise of protecting and respecting Congress to second guess congressional spending choices along the way, wounding agencies, some fatally. If those agencies funding schemes don’t align with what the court, in its infinite wisdom, thinks the Constitution should be understood to require. I think it’s an insanely audacious ask.
Melissa Murray I think this is a winning argument. Did you hear what you just said? Like, this is a theory.
Kate Shaw Neil Gorsuch is like, yes, sign, join me.
Melissa Murray Yeah, it airigates power to the court. This is the four major questions doctrine. Like all of it. Like this is a winning argument, Kate. So.
Kate Shaw But it’s just a vastly new set of powers, like major questions is crazy, but it builds on non delegation foundations, right? So it doesn’t just spring from nowhere. This appropriations challenge really feels to me like even crazier in that it’s not even rooted in other kind of conservative fever dream idea.
Leah Litman Like it would be like a quicker shift, right? In that it would like come out of nowhere. But I think they are similarly unhinged in their lack of foundation in say, law. Similar in effect, interrogating power to the court, unilaterally disarming the administrative state and just nuking it in.
Kate Shaw This bad faith guise of we’re doing this for Congress, like.
Leah Litman That’s also what they also do in major questions.
Kate Shaw I’m saying as you’re linking them, I’m saying in that to like very much links them, it is just so facially bad faith. And yet they’re going to say it. If they if they do this, it’s going to be all about why.
Melissa Murray It’s perfect, more power for us. And we nuke administrative agencies and Congress thinks we’re doing them a solid. Amazing.
Kate Shaw Well, we’re not going to let them get away with that story.
Melissa Murray No.
Leah Litman But in light of the court context, we opened our term preview episode with namely Clarence Thomas appearing at Coke Network Donor event.
Melissa Murray Very normal, very nice.
Leah Litman By Leonard Leo, also also very normal in law like and the Koch network’s push against the administrative state. We did just want to flag some Coke affiliated slash LEO affiliated amicus briefs in the case. So there is Americans for Prosperity. There is Washington Legal Foundation, Landmark Legal Foundation, New Civil Liberties Alliance, Chamber of Commerce, Foundation for Government Accountability, all of which have been linked to industry funded efforts to. Undermine government regulation. There’s also an amicus brief by several states, including West Virginia. And while West Virginia is ostensibly not a core organization of the Koch network.
Leah Litman Right, Exactly. They are trying to make it one by donating a ton of money to state attorney general campaigns, you know, and other statewide officials in order to push back against state efforts to regulate, to prevent a climate disaster and regulate more broadly. And this just feels like a real elite strike Force legal team they have assembled here against the administrative state.
Kate Shaw Well, I hope that they have as much success as the actual elite Strike Force legal team working.
Leah Litman A real conspiracy ship beam down from the motherboard or whatever.
Kate Shaw So that’s what this mothership that. Is what this appropriation clause theory is. Yeah. Conspiracy should beam down from the mothership. I think that’s the that’s how we’re going to henceforth refer to this case.
Leah Litman Great.
Melissa Murray Definitely was dreamed up at the Bohemian Grove in between,.
Kate Shaw Which is the mothership.
Melissa Murray Yeah. Between naked jaunts in the woods. Like, they’re like, you know, it would be great.
Leah Litman In their breaks from conversations about Chevron deference, they switched to the appropriations clause. Just in the interest of noting the connections between, you know, the courts cases and court culture we have covered. We should also note that Paul Singer, who, of course, is the billionaire who flew Sam Alito to Alaska on a private jet and went fishing with him. Singer, his company owns millions of dollars in stakes in companies that are subject to the CFP. Just kind of underscoring, like what a small world this is and how these mega billionaires kind of have interests in these cases while they are cavorting.
Melissa Murray Yeah, it’s a coincidence like this. It’s a community payday lending shop. It has nothing to do with Paul Singer.
Leah Litman Alito was not present for any conversations about the appropriation clause or so I am told.
Melissa Murray That’s what you’re told.
Melissa Murray It feels like we have been doing court culture even as we’ve unpacked this first sitting. So maybe we should just keep going and do more of this quiet culture. What do you think? Yeah. Yeah. Okay, good, good, good. So in addition to all of that stuff involving the Coke Network and Bohemian Grove and the interaction between these conservative legal interest and the court’s upcoming term, where the question on the docket really is, is government as we know it constitutional? There’s some other stuff that’s going on that we should talk about. So we wanted to at least acknowledge or briefly touch on for the moment the recent focus and litigation over Section three of the 14th Amendment. So there have been some suits that have been filed seeking to disqualify Donald Trump. Perhaps you’ve heard of him from the 2024 presidential election on the basis of Section three of the 14th Amendment. That provision reads as follows quote, No person shall be a senator or representative in Congress or elector of president and vice president or hold any office, civil or military, under the United States or under any state who, having previously taken an oath as a member of Congress or as an officer of the United States or as a member of any state legislature or as an executive or judicial officer of any state to support the Constitution of the United States, shall have engaged insurrection or rebellion against the same or given aid or comfort to the enemies thereof. But Congress may, by a vote of two thirds of each House, remove such disability, end quote. So even apart from these suits, it is possible that a secretary of state in some of these states could invoke the 14th Amendment to decline to put Trump on the ballot in that state or otherwise to certify electoral votes for him. So this is kind of a live question right now.
Kate Shaw It’s a live question and received potentially some unexpected support in a recent Law Review article by Will Bode and Michael Stokes Paulson, two prominent conservative law professors who argue both that Section three retains vitality. It’s part of the Constitution, like it’s not in some state of Deseret Tude, where you you know, it’s not actually a meaningful, viable provision anymore.
Melissa Murray Like the Ninth Amendment.
Kate Shaw Well, yeah, I’m sure. I’m sure. I’m sure. You know, Michael Jackson ultimately stands on that and don’t know about Bode. But yes, it’s not like the Ninth Amendment. In fact, still a provision that has some teeth and that under sort of the text, the history structure of the Constitution, all of it, Trump is 100% clearly disqualified. Now, I will confess here it is a very long paper. It’s like 160 pages long. And I have read some, but not all of it. But it’s an incredibly convincing piece. And if you don’t have time to read the full paper or listen to it, I have been listening to papers using this voice reader apparatus like an old British lady read me things, and so she’s reading me this paper now, but it’s taking a long time, so we’re not through it yet.
Leah Litman But is Regé-jean Page.
Kate Shaw Oh yeah.
Leah Litman For that as well.
Kate Shaw I don’t know what he’s doing right now, but I think that would be a great between gigs. I’m also listening to Meryl Streep read me a novel which is also really good. So like there are definitely actors residual Meryl Streep who are in this business. I just don’t know about reading law review articles anyway. So that I think is great and David French had a good column about it. If you don’t have time to read or listen to 160 pages that basically agrees this is an incredibly convincing story and summarizes it much more succinctly. Of course, there has been a response by a different elite legal strike force, Josh Blackman and Senator Tillman basically arguing that no, Trump is not disqualified by Section three of the 14th Amendment.
Leah Litman So the debate about, you know, the 14th Amendment revolves around several questions. One is whether Section three of the 14th Amendment is what’s called self-executing or whether it instead requires Congress to pass a law implementing it. Also, whether it supersedes other constitutional provisions or limitations like guarantees of due process, which might otherwise require a trial before disqualification, or the provision against bills of attainder that apply to particular individuals. Also, whether amnesty statutes that Congress passed in the aftermath of the Civil War or somehow modify the provision, does a provision apply outside of the Civil War? Probably doesn’t reach so on and so forth. So those are just some of the arguments on which these questions turn. There’s an October 30th hearing and a Colorado case and a November hearing in a minnesota one. And I guess we all just kind of see how these play out.
Kate Shaw Rick Hassett had a piece in The Atlantic just a couple of days ago just suggesting that there is a real national interest in this question being resolved by the Supreme Court, which on the one hand. If they’d revolt correctly, this is.
Melissa Murray This Supreme court or just a Supreme Court.
Kate Shaw Right. Maybe the answer to those two questions is quite different.
Melissa Murray By the California Supreme Court, 100%. By this Supreme Court, maybe not.
Kate Shaw Okay, So let’s do that Up at the California Supreme Court should resolve the question of whether Trump can run for president. Perfect.
Melissa Murray All right. In other legal news, we wanted to note on a more solemn note that the Nebraska mother who obtained abortion pills for her teenage daughter was sentenced to two years in prison. And these events arose before the court overruled Roe in DOBBS. But they are, of course, indicative of where things are headed in the aftermath of Roe, as policing and monitoring of pregnant people has accelerated since Roe was overruled. And in that case, the prosecutors relied on data from Facebook Messenger to prosecute their case and establish that the mother had indeed obtained the abortion pills for her daughter. And incidentally, the daughter was also sentenced, I think, just to 90 days in jail. But again, this is sort of very far afield from the we’re not punishing women for abortions. We’re just punishing providers. Apparently, we’re punishing the women and we’re punishing the mothers who helped them. So there we are in ongoing.
Kate Shaw Matthew has Merrick Watch. We wanted to note that has Merrick, who’s district judge who sits in Amarillo, Texas, wrote an opinion since we last recorded that upheld a restriction on drag performances, citing because of course, he did. Christopher Rufo, the organization Gays Against Groomers. This called to mind for me how in the medication abortion case, remember, he cited a blog that called anonymous posts in order to arrive at some statistics about complication rates for medication abortion. It was basically like, remember this website that was like voluntary posters who went to the. Yeah, it was like, I regret my last boy statistic.
Kate Shaw Yes. Yeah. Yeah. So, so this is what counts as serious legal research in the chambers of one judge, Matthew Kaczmarek. And stay tuned. We’re going to be discussing his opinion in a forthcoming episode that will air after the sitting. We already recorded that episode at the University of Texas, but we’re going to go deep on all things Texas in the Fifth Circuit. So stay tuned for that.
Melissa Murray And since we last recorded, Justice Kagan has been out and about. She recently gave a speech at Notre Dame’s law school for a scheduled event. And this speech had some interesting tea that she spilled. So, for example, Justice Kagan spoke about the need for an ethics code. She said.
Clip I think it would be a good thing for the court to do that.
Melissa Murray But she said there were some hold ups or holdouts, and I would just like her to go a little further and identify who the holdouts holdups are.
Leah Litman Very curious.
Kate Shaw I have some guesses.
Leah Litman Yeah.
Kate Shaw My suspicions.
Leah Litman She also had some remarks that I appreciated on polarization and division in the court. So the dean of Notre Dame apparently asked whether the justices commitment to adhering to earlier decisions had split the justices along ideological lines. And importantly, I thought Justice Kagan did not dispute the premise of the question. Instead, she said.
Clip You are right that there have been times recently where there have been ideological divides with one side overturning precedent. I’m hopeful that it won’t have that year after year, case after case, at least it shouldn’t.
Leah Litman And then in response to another question about whether news and commentary focuses too much on Supreme Court cases where the justices split six three along partizan lines, Justice Kagan basically pointedly refused to say that was a bad thing. So she acknowledged that the court is sometimes and maybe even often unanimous or has weird voting breakdowns and alignments. But she also said the recent run of 63 cases was significant. She said,
Clip To be completely honest, I mean, it has to be said that some of the more important cases do fall along pretty predictable lines.
Leah Litman And she listed cases on affirmative action, student loans, LGBTQ rights, abortion and climate change. And then she said.
Clip When all of these are falling 6 to 3, it doesn’t strike me as surprising that people would talk about that.
Melissa Murray I love how she is, just like I’m not here for this three, three, three moderate court bullshit,.
Leah Litman No. I’m not going to give you a weird soundbite, right? That like papers over this.
Kate Shaw We all get along. Most of them. We have an unexpectedly high number of unanimous opinions, like those are talking points that a lot of them in the past have trotted out. And it was refreshing to see her not try to do that. Yes, she also commented on the exchanges between her and the chief in their respective opinions in the student debt case. From the end of the last term, you might recall, the chief really chastised her dissent for adopting a tone that suggested the court had exceeded its role and was doing something dangerous because it was. And she said it and he didn’t like it. She had a bunch of great lines in that dissent, and we won’t rehash all of them. But a couple of people have asked us on Twitter to reread this one. So I’m going to do that right now. She’s responding to the court’s complete disregard to ordinary standing limitations, just the requirement that there be an actual live case or controversy. Elena Kagan says without that requirement, courts become forums for the ventilation of public grievances, for settlement of ideological and political disputes. The kind of forum this court has become today. Is there a person in America who thinks Missouri is here because it is worried about Ohio’s loss of loan servicing fees? I would like to meet him. The chief had said it has become a disturbing feature of some recent opinions to criticize the decisions with which they disagree as going beyond the proper role of the judiciary. It is important that the public not be misled either. Any such misperception would be harmful to this institution and our country.
Leah Litman And about that rating or statement from the chief. In her speech at Notre Dame, Justice Kagan said.
Clip I don’t think that that’s disturbing at all. As I said, I think it would be disturbing if a dissent that thought that the court had gone beyond the proper role of the judiciary. It would be disturbing if you didn’t say that if you pulled your punches.
Melissa Murray Basically saying, just shut up, snowflake, it’s going to be okay. Might be one. Shut up.
Leah Litman Yeah, like one. First Street is not a safe space for your fucking bullshit.
Melissa Murray Yeah. Dissenter is going to decide that. That’s how that works. Anyway, so again, lots going on at one first street and just the first week of the term. Don’t let the technical nature of these cases lull you into an anesthetized sleep. This court stays on its hustle, and so do we. But before you go this week, we want to give you a heads up that October 1st, the seventh is banned book Week and Crooked is using this as an occasion to say how fucked up is it that we need to have something called Banned Book Week? It’s pretty fucked up so you can show your support for authors and librarians by shopping new merchandise from the crooked store they’ve got. Are you afraid of books teas that are perfect for spooky season? They have kids tees and baby onesies that say Read me a bad book and newly refreshed. Free the books merch. So whether you’re a bookworm or just someone with a personal antipathy for Ron DeSantis, we’ve got you now. Book it out over to the crooked dot com for its our store to shop your hearts out. Strict Scrutiny is a Crooked Media production hosted and executive produced by Leah Litman, me Melissa Murray and Kate Shaw. It’s produced and edited by Melody Rowell. Ashley Mizuho is our associate producer. We have audio engineering by Kyle Seglin, Music by Eddie Cooper, and production support from Michael Martinez and Ari Schwartz, and digital support from Amelia Montooth. We get no support from Samuel Alito.