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April 24, 2023
Strict Scrutiny
What's next for mifepristone?

In This Episode

Kate and Leah explain the Supreme Court’s decision to stay the ban on mifepristone– meaning the medication remains available on the same terms it has been. Then, they recap oral arguments in cases about religious accommodations at work, obstruction of justice in immigration cases, and whether threats are protected by the First Amendment. (Spoiler alert: it’s a real race to the top of Villain of the Week at SCOTUS.) Plus! One rare piece of good news that comes in the form of an opinion that paves the way for a death-row inmate to obtain DNA testing that could prove his innocence.




Jon Favreau [AD]


Leah Litman [AD]


Show Intro Mr. Chief Justice, may it please the court. There’s an old joke 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.


Leah Litman Hello and welcome back to Strict Scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it. We’re your hosts.


Kate Shaw I’m Kate Shaw.


Leah Litman And I’m Leah Litman.


Kate Shaw And we are super bummed to be without Melissa again today. But do not fear she will be back with us soon.


Leah Litman We are midway through the court’s April sitting, which is the last regularly scheduled sitting of the court’s term. But we are going to start today with breaking news, then talk through a few of the cases the court heard last week mentioned a few on deck for this week and end with some general court news and culture.


Kate Shaw Okay. First up, breaking news. A little before 7 p.m. on Friday night, the Supreme Court stayed Judge Matthew Kacsmaryk’s decision that would have made mifepristone an unauthorized drug. This means that for now, mifepristone remains broadly available on the same terms that it has been. But Leah, what does this stay mean in terms of the next stages of this lawsuit?


Leah Litman Yeah. So it just means that the way mifepristone is available now will remain the way it will be available until the Supreme Court reviews or doesn’t review any decision from the Fifth Circuit on appeal. So the Fifth Circuit will review the district court’s order in kind of the normal course of a case. Whoever loses there can ask the Supreme Court for review. And nothing is going to change about medication abortion unless and until the Supreme Court says that it does. So then people might wonder, like, what was this whole round of the case about? So this came up through the courts just as a request for a stay pending appeal. So you mentioned that the Supreme Court stayed the decision. And what the federal government was asking for was a stay pending the appeal, that is whether to let the district court ruling go into effect while that ruling was under review. But that ruling is still under review. That’s what the appeals process is for.


Kate Shaw But again, all of the legal arguments about whether and why this district court opinion was so wrong and decisions that respond to those arguments are going to happen with the backdrop of the status quo intact and of a precedent available on the same terms that it has been so incredibly important consequences. But the Supreme Court on the merits did not say that the district court ruling was wrong. It just said it cannot go into effect until the rest of these proceedings take place. So let’s talk about the vote on this day. So as the group, the shadow docket, Steve Vladeck always reminds us, we don’t always know how people vote in these cases that are seeking stays. What we do know is that it’s likely that this was a72 vote. We don’t know that for sure. We know that there were at least five justices who voted to stay the order. And we know that there were two justices who would not have stayed the order. So both Justice Thomas and Justice Alito would have denied the stay. Justice Thomas didn’t offer any explanation. Justice Alito talked about why he would have denied the stay, but we don’t actually know whether there might have been one or two other justices who also did not want to grant the stay, but who did not write separately to explain that or to note that.


Leah Litman So before we get into the nasty grab, that was Justice Alito’s separate writing, I just wanted to say, you know, when I was on Pod Save America last week, I predicted that the court would grant a stay. And also in the show note that I realized no one except for cable said nullity. And Ashley can see, I also predicted that this was going to happen because of what I interpreted as a pretty chummy exchange between Justice Kagan and Justice Kavanaugh from the oral argument in Groff versus DeJoy last week. So let’s play that clip here.


Clip Can I say, I think that that’s a sorry. Go ahead. No, please. No. You go first. I’m going to take it.


Leah Litman And in addition to this, there were some pretty good Justice Kagan digs at Alito that we’ll play later from the oral argument. And I just felt like after listening to that, there were five votes for a stay.


Kate Shaw This was wild. So I wish the public and our listeners could actually have seen this show, because on Tuesday, you made this kind of cryptic note that was like, Oh, I know how mifepristone is coming out because of this, like a side in the Groff argument. And I was like, okay, And you 100% read this perfectly and you are a soothsayer and know all the things the Supreme Court is going to do. That was pretty amazing.


Leah Litman And I just want to make a comment about why this exchange highlights why Justice Kagan is a good Supreme Court justice. And I wouldn’t be suited to the job because no joke if Coach Kavanaugh walked into my chambers and was like, you know, I’m not so sure about that order reversing the FDA’s approval of mifepristone after it’s been on the market for two decades, totally safely in a case where the plaintiffs don’t have standing, I’d be like, Do you want a fucking cookie, Brett? Like, you goddamn  idiot. Whereas Justice Kagan is probably like, Oh. good little boy. You’re so smart and principled. Like, I’ll give you a pat on the head and look like a part of me has always wanted to see Justice Kagan’s burn book and just like actually hear her unleash on her colleagues. That’s never going to happen. And it’s decisions like these that are kind of why it’s never going to happen. And I’m willing to give that up for the sake of the country. But did just kind of want to point that out.


Kate Shaw I mean, I do think she is definitely playing a bunch of very long games of multi dimensional chess. And like you got just a little glimpse of that during this exchange. Okay. We should talk about the separate Alito writing. So Thomas again said just noted that he would have denied the stay but didn’t give any reasons and kind of interestingly, did not join this writing by Alito. Alito pens this exceptionally petulant in tone, shoddy and reasoning four page statement even for him. This was like there were a few kind of jaw dropping parts of this four page missive. What were you the most struck by, Leah?


Leah Litman You know I’ll just start out with one thing, which is Troll-lito or maybe, but Actual Alito. Really came out in full force in this opinion because he’s like. You libs hate the shadow docket and so like you dissented in all of these cases. So I’m going to adopt the reasoning of your dissents here like you hate when we make law on the shadow docket and it’s. Anyways, so the opening or kind of early part of this dissent said that the court had been criticized for issuing decisions on the shadow docket. And then he cited opinions by the following justices Elena Kagan, Sonia Sotomayor and Amy Barrett. What do these justices have in common? It’s like, how did he manage just to namecheck his female colleagues to criticize in an abortion case? It’s like I could hear the blood curdling screams coming out of his chambers. Like it was the shrill I know it like this is the only mention of women like to any extent. In any place in his opinion.


Kate Shaw Yeah. So only mention of women. And it’s also there have been cases where Kavanaugh and Roberts have parted ways with them on shadow talking points, but he did feel kind of deliberate. He just singled out. And not just the liberal ladies. Right? He threw in totally gratuitously Amy Coney Barrett as well, just because why not? And he was like, I’m sure he was disappointed. There was no Jackson writing yet that he would include because he just hasn’t been on the court long enough. But it was no, it was really wild. So the opinion is also on the substance, just full of insane, bad faith on the effects of the decision. So let me just read a little bit from the Alito opinion. So as narrowed by the Court of Appeals, he writes, the stay that would apply if we fail to broaden it. So that’s the Fifth Circuit stay would not remove mifepristone from the market. It would simply restore the circumstances that existed and that the government defended from 2000 to 2016 under three presidential administrations. In addition, because the applicant’s Fifth Circuit appeal has been put on a fast track with oral arguments scheduled to take place in 26 days, there is reason to believe they would get the relief they now seek from either the Court of Appeals or this court in the near future. If their arguments on the merits are persuasive. I mean, it’s a few things. One, to say like it was fine from 2000 to 2016. It’s like the expert judgment of the FDA 2016 and then more recently was that these limitations on telemedicine and to seven weeks as opposed to ten or 11 weeks like none of this stuff was required by the best scientific judgment of the experts there. So for him to sort of arbitrarily say it’s fine and no big deal to win the clock back to 2016 is ridiculous. I mean, obviously the Fifth Circuit said the same thing, but Alito doesn’t actually offer any additional justification except like NBD, just go back to 2016. Seems to be his reasoning. Then there’s that it’s on a fast track. So oral arguments scheduled to take place in a month and then of course, the Fifth Circuit would have to decide the case and the collateral damage of the restrictions of never postpone being in place during all of that is completely absent from his assessment of the landscape. It’s just unbelievably dismissive of those effects for individuals who might need a purse, don’t worry, or nine weeks pregnant or aren’t able to physically go three times to a doctor to get it. But like now that comes up.


Leah Litman No.


Kate Shaw Not the ladies that he’s worried about not letting in his in his head rent free.


Leah Litman Exactly. And he seems, you know, we covered what other effects of the decision would be because once the drug is wrongly labeled or mislabeled, you know, it can’t be distributed. It would be a violation of federal law to do that. And Justice Alito just kind of says, well, look, the FDA could just use its enforcement discretion to solve this, ignoring the fact that that exposes the distributors and manufacturers to liability that someone might try to institute, say, after 2024 when there’s an. You administration.


Kate Shaw It is also the idea that Sam Alito would not in one second find a way to invalidate that is preposterous. Right? This guy doesn’t think the president has enforcement discretion when it comes to the immigration laws.


Leah Litman Correction. Democratic presidentsli don’t have discretion when it comes to immigration laws. Let’s try to be fair to his views.


Kate Shaw So Joe Biden gets no discretion in the context of immigration policy. Remember the Remain in Mexico case, but the FDA and the Biden administration to somehow does. He wants us to believe that would be his position. Like. Come on.


Leah Litman And he also, after saying this, has the audacity to accuse the federal government of bad faith, suggesting that their litigation behavior of not appealing the competing Washington district court order. That’s what created the chaos here, which it takes a real mind fuck to actually think that. And on top of that, he suggests the federal government wouldn’t abide by a judicial order in this Texas case. So he says, quote, The government has not dispelled legitimate doubts that it would even obey an unfavorable order in these cases. And it’s like he’s saying, well, unless the federal government has said it promises to enforce this illegal order, I must allow the illegal order to go into effect. I mean, the reasoning is, again, just shocking. And I guess maybe he asked for an extension to finish this bad boy off. Right. Because originally the administrative stay was supposed to expire Wednesday. You know, they got this on Friday and it took them a full week to land on this. I mean, gosh, like, what were the early drafts?


Kate Shaw I know it is it definitely a mysterious aspect of this last week, which is I mean, these justices are used to disposing of cases relatively quickly. Wednesday night would have been plenty of time for this like jam to have been drafted. And and so so I think there maybe are he and Thomas talking about Thomas writing something separate, Thomas joining him. Do they really think they have a chance of peeling off more than one vote? Is someone else thinking about writing but decides not to? I do have a theory for that explains the delay.


Leah Litman I really don’t. You know, I’m sure Sam thought I have a chance at getting some others and was asking for an extension of time or something like that. And that would be my intuition that that’s what precipitated the delay. But hard to know. But that’s not all that this four page Alito banger has, because in what might be the most peak Alito line of the season thus far, Justice Alito insists that he is not saying what he is in fact saying. So he says, and I quote, Contrary to the impression that may be held by many, that disposition, i.e., denying the stay here, would not express any view on the merits of the question whether the FDA acted lawfully.


Kate Shaw I mean, the thinness of his skin. Oh, my God. But you know who’s really oversensitive to stalking victims? They are the really oversensitive parties, college students, you know, mostly stalking victims. But. Okay. So we will get there later in the show.


Leah Litman Yeah, I mean, a free tip, Sam, like those salty tears are going to dry out your skin. That comment is for Melissa. And on top of that, what he says here, that he’s not expressing any disposition on the merits and is only disposing of the stay because the government hasn’t shown irreparable injury is like the exact opposite of what he said in the case where the government. West Virginia sought a stay of a lower court ruling that allowed a transgender student to participate in sports. And there he basically said, well, putting aside all of the reasons why. There’s no emergency here, I grant the application because I think the state is right on the merits and I’m just a bull on turf. But back to this mifepristone case, you know, the fact that he’s saying, well, I’m not saying anything about the merits while making a pretty strong suggestion about the merits. Calls to mind one of the greatest previous peak Alito moments from an oral argument where he said, I’m not saying what I’m saying. And that was this exchange from the oral argument in NFIB versus OSHA, the test vaccine case.


Clip And I don’t want to be misunderstood in making this point because I’m not saying the vaccines are unsafe. The FDA has approved them. It’s found that they’re safe. It’s said that the benefits greatly outweigh the risks and not contesting that in any way. I don’t want to be misunderstood. I’m sure I will be misunderstood. I just want to emphasize I’m not making that point. But is it not the case that this these vaccines and every other vaccine of which I’m aware and many other medical. Patients have benefits and they also have risks, and that some people who are vaccinated and some people who take medication that is highly beneficial will suffer adverse consequences. Is that not true of these vaccines? And if that is true, is that true? That can be true. But of course, there is far, far greater risk from these.


Clip But there are there is.


Clip Orders of magnitude.


Clip There is some risk. Do you dispute that?


Clip There can be a very minimal risk with respect to some individuals. But again, I would emphasize that I think that there would be no basis to think that these FDA approved and authorized vaccines are not safe and effective.


Clip I’m not making that point. I tried to make it as clear as I could. I’m not making that point. I’m not making that point. I’m not making that point.


Kate Shaw The one thing I found kind of satisfying about this, this is true in that oral argument we just played, but also in defensiveness, in the tone of the writing, is that the criticism is somehow getting through to Sam Alito like he knows his public enemy number one somehow. I mean, do I really think he, like hate, listens to our podcast? No, sadly, no, I don’t. But I do think that he knows that a lot of people really fucking hate him and it bothers him. And so he feels the need to defend his honor in moments like this. And to my mind, it just underscores that the criticism matters. And for him, is it ever going to change substantive votes? Absolutely not. But it’s getting through to him in some fashion.


Leah Litman Yeah, And maybe one of the ways it’s getting through to him is he couldn’t even bring himself to say anything to defend the ruling on the merits. And how embarrassing does that have to be for Judge Kacsmaryk and the Fifth Circuit panel? Like, not only has Judge Kacsmaryk lost the op ed page of The Wall Street Journal, he’s also now lost Sam Alito, who was willing to say, I left this judicially ordered ban on medication abortion, go forward. But I’m just not going to associate myself with its reasoning.


Kate Shaw That actually is a maybe another possible explanation for the delay, which is he wanted to write something substantively, approving of it. And actually even Sam Alito couldn’t do it.


Leah Litman That can’t be right. That can’t be right. I’ve read some of the things that guy’s written. Umm. No


Kate Shaw Floating is a theory.


Leah Litman I reject it. Sorry. You know, the TLDR on the Alito writing is of course, that the author of Dobbs the decision overruling Roe didn’t actually want issues of abortion, access and abortion care to be resolved in the democratic process.


Kate Shaw Do you want to just briefly run through what comes next.


Leah Litman Sure. So there will be arguments in the Fifth Circuit on appeal from the Kacsmaryk order in May. Those arguments will not be heard by the same panel that addressed the motion for a stay pending appeal. And then we’ll await a decision on appeal. But no matter what the Fifth Circuit does in that case is actually going to alter the conditions under which mifepristone is available unless the Supreme Court, the U.S. Supreme Court says it does, because the Supreme Court wrote the stay to continue even after the Fifth Circuit’s disposition of the appeal. Now, of course, mifepristone is already limited in states with restrictive abortion laws. The point is this decision this case is not poised to limit mifepristone access in states that don’t have those restrictive abortion laws. I do wonder whether the Supreme Court’s disposition of this stay pending appeal might affect what the Fifth Circuit will do, since it’s a pretty strong signal that there aren’t five votes for anything Judge Kacsmaryk did or the Fifth Circuit.


Kate Shaw So obviously, we will continue to monitor this case. Before we leave, a topic that we did want to remind our listeners of something that the great Melissa Murray said when we discussed the possibility that this that is a stay from the Supreme Court would happen. So let us play that clip here.


Melissa Murray So I wonder if we could get a 5-4 decision overruling Kacsmaryk or even a 6-3 overruling Kacsmaryk. And I wonder and I actually. I’m on the fence as to whether that’s a good thing. Like, obviously it’s good and that mifepristone will be available, but I don’t want anyone to be anesthetized as to the idea that we have a normal Supreme Court, like the fact that they respond appropriately in this case does not mean that these ghouls are normal.


Leah Litman Melissa’s always right.


Kate Shaw Amen. Okay. So moving on to more Justice Thomas news, because, of course, there is more Justice Thomas news. This will be a briefer update on Thomas Watch. But Harlan Crow gave an interview to the Dallas Morning News that has a couple of pretty interesting nuggets in it. And because the interview is behind a paywall, but it is totally fascinating. We wanted to highlight just a couple of exchanges. In it, he defends his friendship with Thomas. He calls ProPublica’s reporting factually incorrect and being written with a strong political agenda. But and I read the piece like three times did not identify a single specific factual error in reporting. So that was curious. But Crow does reveal a few additional nuggets about the friendship, including its origins. So here’s how they meet. Crow’s in Washington, D.C., talking with executives at the National Center for Policy Analysis. Those executives tell him that Thomas is doing a speaking engagement for the same organization in Dallas. And Crow offers to fly Thomas to Texas on his plane because he and the plane are headed home from speaking engagements. So this is just on the conservative speaking circuit. Crow offers Thomas a ride on the jet. That’s the origin. It’s not a friendship where jets are just an ancillary part of it. The whole thing starts on the jet. So I don’t know.


Leah Litman It’s almost like giving out PJ rides buys you access to powerful government officials. The piece also had this fascinating exchange where Crow was asked, you know, would you be friends with Thomas if he wasn’t a Supreme Court justice? And Crow says, quote, It’s an interesting good question. I don’t know how to answer that. Maybe not. Maybe, yes. I don’t know. Okay. Just pause on that one for a second. He’s also asked, did he ever consider his friendship as a ticket to quid pro quo? To which he says, quote, Every single relationship, a baby’s relationship to his mom has some kind of reciprocity. And to be clear, that’s definitely not a no to to the quid pro quo question.


Kate Shaw Not even really a soft no, it’s kind of a yes, but. So that was also a useful rejoinder, I think, to the two critics out there of the ProPublica reporting. Leah, you had a Twitter thread last week because Twitter was still a real and useful thing last week. We will see if it still is next week. But last week when it was, it connects some of the why is this a big deal? Objections to the reporting on Thomas to Thomas’s own jurisprudence. And you know, as we’ve already started to talk about a little bit, there could well be specific jurisprudential connections to draw that matter right. Justin Elliott from ProPublica, we had him on the show last week, talked about Justice Thomas’s evolving views on Chevron and deference to administrative agencies as maybe, maybe, who knows, connected to some of the relationships and social circles in which Thomas moves. Thomas defenders this week have also been explicitly taking aim at New York Times versus Sullivan, right. The Supreme Court case that provides robust First Amendment protections to media defendants when they’re writing about public figures. Thomas has been increasingly vocal about his interest in revisiting Sullivan and rolling back protections for the media totally unrelated to this kind of media scrutiny of, say, his relationships. I don’t know, but doesn’t seem crazy that there might be connections. And then there is the question of kind of rank hypocrisy when you consider that Thomas appears to have been at the very least careless in failing to report this real estate sale of family property to Crow in 2014. So again, back to your Twitter thread, you mentioned examples of recent cases in which Thomas has been singularly unforgiving when it comes to errors and omissions on the part of, say, criminal defendants. I want to just highlight a few of those.


Leah Litman Yeah. So the one that I immediately flagged, because it is often top of mind is Shinde versus Ramirez, which is an opinion authored by Justice Thomas. That said, when your state appointed lawyer fails to introduce evidence of your innocence in state court, that’s your fault, the defendant’s fault. And it’s actually illegal for a federal court to consider the evidence even in a capital case. Then there’s Patel versus Garland last term, where he joined an opinion by Justice Barrett, concluding that federal courts couldn’t review factual claims underlying immigration judges denial of relief from removal with the effect of leaving in place a deportation order for a 30 year residence error on a driver’s license application. In the words of noted liberal squish Neil Gorsuch, the majority was willing to assign to this, quote, bureaucratic mistake life changing consequences, even though nothing in the statute required it.


Kate Shaw And one other case that Nick Bagley, your colleague, Leah, flagged on Twitter is Bulls versus Russell, which is a 2007 case in which a federal court basically told a petitioner that his notice of appeal was due on February 27th. So, okay, he filed his notice of appeal a day early February 26th, only to be told that he was too late because the judge had gotten it wrong. The deadline had actually been February 24th. This was the judge’s fault. And Justice Thomas for the court said tough. So singularly unforgiving of even good faith errors in very, very high stakes contexts. But I just have a feeling that he would not apply the same kind of standard to his own failure to report in 2014.


Leah Litman Yeah, I have that feeling too. And we will get to read versus Gertz in the Opinion Recap section. Spoiler alert. Not exactly an understanding of different procedural choices there either. But you know who thinks that Chief Justice is doing a great job addressing all of this ethics stuff? Mitch McConnell.


Clip I have total confidence in the chief justice of the United States to deal with these court internal issues.


Leah Litman On the heels of the Supreme Court’s the postpone order, which again, Justice Thomas would have allowed the lower court’s decision to go into effect. Former President Donald Trump promised to appoint.


Clip Rock Solid constitutional conservative judges in the mold of Justice Antonin Scalia and the great Justice Clarence Thomas, who is under siege right now. He’s under siege right now for doing nothing.


Leah Litman And we know he certainly will have some options from his pool of judges on the Fifth Circuit, as well as district courts in Texas. I mean, seriously, think about the appointments in a second Trump administration.


Kate Shaw I feel like Melody might need to cut that. That’s just too that’s got too dark, too early in this episode.


Leah Litman Sorry. Please, please, please listen on.


Kate Shaw Oh, my God.


Leah Litman [AD]


Kate Shaw So let’s move on to the argument recaps.


Leah Litman So first up is Pugin versus Garland and Garland versus Cordero Garcia. This is the pair of cases we previewed last week about the meaning of obstruction of justice for purposes of the definition of aggravated felony under the immigration laws. An offense relating to the obstruction of justice is one of different kinds of convictions that subjects non-citizens to mandatory removal from the United States because it is an aggravated felony. So it matters a lot whether the types of convictions at issue in these cases, like accessory after the fact and witness dissuasion are in fact related to obstruction of justice. The argument in the case didn’t reveal a ton of clarity or consensus. Again, the big question was whether to obstruct justice. A proceeding or investigation needs to already be ongoing. The two lawyers for the noncitizens in the consolidated cases, Mark Fleming and Mattie Houghton, said basically, yes, the solicitor general’s office said no.


Kate Shaw And the argument devolved all I thought it did at least. And it feels increasingly common to me that this happens into increasingly outlandish hypotheticals. So let’s just play one example from Justice Alito.


Clip What if it’s well, what if it’s pretty clear that the wheels are going to start turning pretty soon? Let’s say that a new district attorney is elected and the county and the district attorney says, I’m going to crack down on organized crime in this in this place. And it’s known that the detectives in the DA’s office are questioning a particular person. And it’s also known that a grand jury is going to begin to set on Monday. So if someone who fears that he or she is going to be indicted by that grand jury approaches this witness on Sunday and says, here’s $10,000 in a ticket to a place where there’s no extradition treaty, be on that flight and stay there until we let you know we’re going to wipe out your family. So that’s not obstruction of justice as you see it. But if the person waits until Tuesday, it’s too late.


Leah Litman I mean, look. Count your blessings. Black Santa did not enter the chapter.


Kate Shaw No that kind of outlandish. That’s true. You’re right.


Leah Litman But just like totally divorced from reality and it’s like they don’t really have a great sense of the relative risks on both sides or possible implications of the parties positions. You know, few additional observations. Justice Thomas just sounded pretty chill, like disconcertingly unconcerned during the sitting. You know, this is not someone who sounds like he is stressing even the slightest bit about the media storm swirling around him.


Kate Shaw I know I was listening to to sort of see it’s going to be quieter than usual. Is he going to sound chastened in some way? Absolutely not. Not one hint of that.


Leah Litman Donald Trump says he’s doing great.


Kate Shaw That’s right. That’s right. But back to these two cases in particular. So when the court took them, it seemed like they contained both statutory interpretation questions. And then there was a question, I guess not granted, but certainly in the background of the case, regardless about Chevron deference, just a deference to agency interpretations. And they didn’t again, take the Chevron question, but the silence around the fact that this was an agency interpretation being debated was kind of. Listening to me, you know, So you have in these cases the interpretation of the Board of Immigration Appeals. And the lawyer for the solicitor general’s office made just a few references to the CIA, but it was mostly just like jurists and lawyers arguing about the meaning of obstruction of justice and various other terms without a clear indication that it might matter or how it might matter that an agency has interpreted a statute. I mean, maybe it doesn’t matter here, but maybe we should get a sense of why it just like feels increasingly clear to me that they want to basically ghost Chevron. They don’t want to deal with overruling a directly. They want to ignore it and pretend it doesn’t exist. But that just seems wildly irresponsible. In view of how important Chevron and deference to agencies is in the lower courts. Like what are court supposed to do Chevron right now? I genuinely don’t know.


Leah Litman I mean, it’s abandoned. Just like Lemmon was. They clarify that one. But more generally, it really does feel like they are treating Chevron like Voldemort, where you’re just like not allowed to say his name and that it’s it’s super weird. You know, I don’t know what lower courts are supposed to do. I think the rational thing would basically just to do alternative holdings like, you know, if I was interpreting this statute without any deference for the agency, here’s what I would say. If I gave deference to the agency, like, here’s what I would say, because, I mean, otherwise it just feels like you are walking into a completely different decision tree and decision game.


Kate Shaw I’m sure that’s right tactically. But I just wonder whether that’s not just like forcing judges to engage in bad faith because, like, maybe they just don’t, you know? And that’s like that’s what the courts just like irresponsibility is requiring here. I think I think you’re right. That’s what the court should do. But they’re going to then say, here’s what I would have concluded regardless if, like, maybe they wouldn’t have. But the point of Chevron is like, so long as it was reasonable, that’s fine. That’s enough. And so if they’re layering on alternative grounds or holdings because they understand this like weird liminal state of Chevron is on the way out but hasn’t been overruled until Neil Gorsuch or Kavanaugh or somebody else like condescendingly scolds like litigants in lower courts for not having recognized the abandonment of Chevron or somewhere between Chevron being the law and that end point. But like, I don’t know how long we’re going to be in this interim space. But anyway, that I thought was something kind of striking about that argument.


Leah Litman I mean, it’s almost like having a chaotic Supreme Court isn’t good. For judicial decision making and judicial administration and all of the other federal courts. Go figure.


Kate Shaw Turns out it is not okay. Next case up is Groff versus DeJoy. That’s a case we previewed last week, and it’s about what sorts of accommodations an employer has to offer. When an employee says that some aspect of their job is inconsistent with their religious beliefs and practices. So the plaintiff in this case, Groff, was a rural postal worker who did not want to work on Sundays for religious reasons. And he didn’t work in like a big post office where ship swaps might be no big deal. This was a small rural post office, and at points there were only two other employees in that office. One of them eventually quit, one tried to transfer. And this is all, at least in part in response to having been required to cover Groff’s shifts.


Leah Litman So the key law here is a provision of the Civil Rights Act of 1964 that prohibits discrimination against workers on the basis of their race, color, religion, sex or national origin. And in 1972, Congress amended the act to include even greater protections for workers. It required companies to reasonably accommodate all religious practices by employees that can be achieved without undue hardship on the business. Then in 1977, the Supreme Court decided Transworld Airlines versus Hardison, interpreting the term undue hardship to mean that religious employees beliefs need not be accommodated if doing so would require business to, quote, bear more than a de minimis cost. As Solicitor General Perry Locher made clear at the oral argument, Partizan, in addition to articulating this standard, provided a general framework that the EEOC, the Equal Employment Opportunity Commission and courts have been using for almost a half century to figure out how to balance religious accommodation requests by employees with the business needs to employers. And the Federal Government says it’s all worked pretty well. But the challenger here was denied a religious accommodation and in response has launched an attack on that law governing standard in Hardison, basically asking the court to overrule the case because it is insufficiently protective of religious liberty. And given this court’s general solicitude toward claims of religious liberty, it’s not hard to see why. And still a majority of the court, even this highly adventuresome court, seemed a little less interested in radically overhauling the law of workplace accommodations for religion than at least I perhaps expected going in.


Kate Shaw I totally agree with that. So let’s start with a clip from Justice Kagan, who is basically reminding both cross lawyer and all of us that in statutory cases, that is cases in which the court has just interpreted the statute, they’re supposed to be an incredibly high bar to overruling a prior case. So the logic is there’s a statute. The Supreme Court has interpreted that statute, if that’s not the right interpretation. Congress can fix the statute if the court got it wrong. And if Congress doesn’t do anything to respond, the court is not supposed to revisit and overrule its statutory holding. So that is a longstanding principle. There’s supposed to be a super strong presumption of starry decisis and statutory cases. So here is Kagan making this point.


Clip I mean, this is a statutory stare decisis case. And we’ve said over and over that when there’s a statute involved, rather than the Constitution, stare decisis is at its peak. And this has been, you know, for decades, this has been the rule. Congress has had that opportunity to change it. Congress has not done so. You can count on like a finger how many times we have overruled a statutory ruling in that context.


Leah Litman But then Justice Alito jumped in to basically argue that even though this partizan was a statutory case, the Supreme Court has so radically transformed the law, a free exercise in the meantime that all of that upheaval justifies more upheaval. This really feels like he is trying to channel like, Look what you made me do or something. You know, basically chaos supplies an excuse for more chaos. I think that’s the argument. So here he is on this.


Clip Mr. Street, do you think that a change in this court’s understanding of the meaning of the religion clauses of the First Amendment is a relevant factor in determining whether the statutory interpretation in PARTIZAN should be revisited? It’s really hard to understand the decision in the partizan, except as an exercise in constitutional avoidance, although the court didn’t mention that concept in its opinion. That was very prominent in the briefs and in the oral arguments in Hardison and a way to understand the adoption of the de minimis test was the view that the establishment clause as interpreted in Lemon, which talked about anything that advances religion would be violated by any departure from strict neutrality between employees who wanted a secular exemption and those who wanted a religious exemption. But Abercrombie and some of our later cases do make it clear that that is an incorrect interpretation of the establishment clause. So even though constitutional avoidance is not mentioned there, do you think that is a relevant factor?


Kate Shaw And Justice Kagan did not let this either. The question that Justice Alito posed that we just played, and the answer, which was basically that everyone so the Partizan court and Congress was operating under what we now see was an incorrect understanding of the First Amendment. And for that reason, that prior case is now up for grabs. So Kagan was not going to let any of that stand unchallenged. So let’s play that clip now. And that’s the clip that we played part of earlier, which some have set off, Leah’s spider sense on the mifepristone case. But we’ll play the whole exchange here.


Clip Can I say, I think that that’s a. Sorry, go ahead. No, please.


Clip No, you go first. I mean, I.


Clip Think that’s an unusual theory. It’s good that Justice Kavanaugh interrupted me because I would have used a different world than unusual. I mean, you know, we’re now we’re guessing as to what the court may have thought in Partizan, which it never said, and Partizan or what Congress might have thought, even though it never said it, you know, that maybe we they everybody was motivated by an erroneous view of the Constitution, even though that erroneous view of the Constitution, you know, doesn’t appear in any part of Partizan and doesn’t appear in anything that we can point to in the Congressional Record. And that’s why we’re going to overrule statutory precedent, because it might be using our sort of fortuneteller apparatus that, you know, or, you know, soothsayer apparatus that that might have been what was in people’s minds.


Leah Litman So this is what I was referring to earlier when I also mentioned the Kagan digs at Alito during this argument. I was just like they basically telegraph like what’s happening behind the scenes.


Kate Shaw A different word than unusual. What word Leah do you think she would have used?


Leah Litman Fucked up. Dumb as shit. Again. I want to see that burn book. I know I never will. But yeah.


Kate Shaw Those might be in there. So it is clear where Justice Kagan is. It’s clear where Alito is. Roberts was basically right in line with Alito here. What was much more surprising was that Kavanaugh and Barrett and maybe Gorsuch all seemed more sympathetic to the solicitor general and the post office than I had anticipated. But then maybe again, because, like, chaos finds its level. ROBERTS Because the other conservatives seem to be kind of reasoned. In this case was migrating toward Alito. And as we will discuss when we get to the counterman argument, Roberts was actually making a pretty strong play for the biggest villain at SCOTUS this week, I thought. Anyway, so here is not actually making a play for that. At least This week, Kavanaugh, who was still focused on religious liberty as the lodestar but here, seemed to suggest that maybe the seeker of this accommodation could end up or with the granting of an accommodation, could end up burdening other people’s religious liberties. So that, I think, gave him some hesitation. So let’s play that here.


Clip One thing about this case that I think makes it a little more difficult is that there can be religious interests on both sides. And I just pick up on Justice Kagan’s questions. So you have a group of employees who are all religious, let’s say, but the Catholic and the Baptist don’t get it. Don’t get Sunday off because they’re told you’re the wrong religion or you have the wrong religious beliefs versus the person who has the right religious beliefs to get the sun off that matter. If I’m understanding the hypothetical correctly, you have one employee who has a strong objection to working on Sunday and others who do, one who has a religious say your client, okay? And then you have a Catholic who says, Well, I would prefer not to work on Sun either, but if my religion doesn’t compel me not to work on Sunday in a Baptist church, the same thing, and a Jewish employee says the same thing, you know, on Saturday. And but that’s not good enough. So your your religion’s not good enough. So there’s a religious interest, arguably, in that sense, too. And some of the amicus briefs point that out. I just wanted study irrelevant. Should we think about that at all? It seems concerning that you’re told, in effect, you don’t get Sunday off even though you’re religious. The other guy next to you gets Sunday off because he’s religious, but his religion gives him a little more one more benefit there.


Leah Litman This is just like a totally sane and reasonable way to view this case. As we suggested in our preview. You know, it’s not like the other employees are just saying, look, this other employees religious exercise or religious beliefs or practices are giving me a sad right. It’s actually materially altering their working conditions and imposing burdens on them that are both prohibited by the collective bargaining agreement, but also burdens that other employees don’t have. And so anyways, and then again, you know, Justice Kavanaugh expressed a concern about the impact on business.


Clip So if those employees say this is unfair and morale starts going down, they make complain, someone leaves. That’s the kind of thing that you agree can be effect on the conduct of the business and therefore the employer can take that into account. At that point. It can be evidence of effect on the conduct of the business, but morale or threats to quit or whatever the case may be needs to have a concrete effect on the operations of the business. And I hate to belabor this, but what exactly does that mean? So I think it’s going to be context specific. Okay. What does that mean? What is what does that mean? So I think it means the exact same thing. It means in the ADA context, we cite the guidelines that pages 43 to 44. I mean, anyone running a business in America knows that morale of the employees is critical to the success of the operation.


Kate Shaw And Justice Barrett got into this sort of made similar points. Let’s play her here.


Leah Litman I mean, I have some of those same concerns because it seems to me in the ADA context, unlike this context, you may have fewer accommodation requests. I mean, you might have many religious people in a workplace seeking the same accommodation for sundaes off or other kinds of accommodations. And I guess it seems to me, as Justice Kavanaugh said, morale can be very important. It kind of seems to me that you’re defining conduct of the business as the bottom line, like you want a dollar amount on it. So if you lose efficiency and you want to measure like, well, we’re not able to deliver as many Amazon packages. So it’s costing us some of our contract. We’re not as able to sell as many groceries. We have to close early on Sundays because we can’t cover it and we’re losing the sales. And that part of the shift, I mean, what if, you know, what if it’s just it’s morale, You know, maybe employees aren’t, I mean, and things that might be very difficult to prove and put a dollar amount on employees aren’t as productive because they’re grumbling. They’re not willing to go the extra mile, put their best foot forward. Those might be very difficult things to put a dollar amount on or the dollar amount might be small. But why wouldn’t they be? Things that affected the conduct of the business? Even Neil Lowkey Gorsuch seemed less inclined to blow things up than I expected. So let’s play first a really impressive riff by Solicitor General Perry Lugar and then we’ll discuss Neil. Our concern with that is if the court were to announce a new standard, I think it would come with all the costs of destabilizing this area of the law and unsettling whether the court means to overrule Hardison on its backs, for example, or potentially call into question all of the established areas of law that have developed that we think have drawn the right lines here. And if I could, there are really only three categories where religious accommodation requests come up again and again. And I think it might be helpful to the Court if I provide a really quick summary of those three categories, because I think it shows how the law is developed in this area. The first category is scheduling changes that can include things like Sabbath observance, obviously, but also things like midday prayer breaks or wanting to come in later on a Sunday to permit church service. And in that area, courts regularly are requiring employers to provide flexible work schedules. If the work can be shifted to a different time of day. So you take your midday prayer break, but then you make it up on the back end. That is what courts are doing today. Also, you can facilitate voluntary shift swaps. That is a common way to deal with Sabbath observance. And if those fail, you can consider lateral job transfer to a different position where there’s not the Sabbath conflict for that accommodation. In the second category, it’s dress and grooming policies. And there today, courts are regularly granting accommodations and rejecting undue hardship defenses. The narrow category of cases where that’s not happening is when there’s a legitimate safety concern. Like you work in a steel mill and you can’t modify the dress code because wearing a skirt will interfere with operating the machinery, for example. The third category involves religious expression in the workplace. This can include displaying a religious symbol or potentially needing an exemption from employer sponsored religious speech at a meeting. Their two courts are regularly granting accommodations, and it’s only in the circumstances, for example, where the religious speech would amount to harassment of coworkers or customers that the undue hardship defense is credited.


Leah Litman Okay, so now here’s Neal being both kind of a jerk, but also trying to compliment her at the same time. She’s trying to fight this type, I guess.


Clip But in those I’m sorry to interrupt, but in those three buckets, I think there’s common ground that the law would require those kinds of accommodations you just outlined.


Clip So I’m not so sure. For example, let’s take the facts of this case. Petitioner obviously thinks that he was entitled to an accommodation, even.


Clip Though I don’t want to take the facts of this case, I want to take your three buckets. I like them. Okay?


Kate Shaw I mean, as I think that opening clip makes clear, like she was just really masterful in this oral argument, like she was so clear and seemed really, you know, if this is a case where she has a few votes from unexpected quarters, I think that will largely be on the strength of this argument. So maybe one more exchange, again, longer followed by Gorsuch. Also, you know, Gorsuch seeming to concede that Preloger is pretty good at what she does.


Clip So I think I might be anticipating your next question, but I just want to clarify that I wouldn’t call it a substantial cost test because we do have a concern with the court articulating some new verbal formulation if that calls into question the way that the commission and the lower courts have been applying partizan for the past 46 years, we think that those results are consistent with the facts of Partizan and the Court’s observation there that it’s substantial cost to cross the line. So I don’t want to resist that at all. That is common ground. But I do have concern with the court overruling Hardison, or at least suggesting that there’s a brand new standard with all of the details having to be filled in a new because we think that already that case law is drawing the right lines.


Clip I think you are anticipating my next question, as you usually do.


Leah Litman Should I order a wellness check on Neil? I just I.


Kate Shaw I’m sure he will return to type including actually in the next argument.


Leah Litman Right. There you go. There you go.


Kate Shaw It was it was is a short lived.


Leah Litman Things always revert to the mean.


Kate Shaw They really do.


Leah Litman [AD]


Kate Shaw This was very much on display. In the next case, we’re going to talk about counterman versus Colorado, which we also previewed and which involves a First Amendment challenge by an individual convicted under a Colorado law for basically a campaign of stalking and harassment of a singer who ended up being so terrified and traumatized after these thousands of messages over years after having blocked this individual, she ends up moving out of state for a while, kind of abandoning her music career because of it. COUNTERMAN, who was convicted here, basically argues that this speech was protected by the First Amendment, that the First Amendment will only allow conviction under these circumstances for an individual who acted with specific intent and that some sort of objective test under which you would just need to show that like a reasonable person would have understood the communications as threats would open the door to criminalizing misunderstandings. Like that’s really the argument that he’s making.


Leah Litman So let’s turn to the argument. As we said, the guy making a play for biggest villain of the week, although obviously Santa did him in the first own case, but the biggest villain at oral argument this week, John Roberts, wanted us to know that much of this supposedly threatening rhetoric actually isn’t a big deal. Ladies, you hysterical ladies.


Clip As well, saying it doesn’t come close to protected speech. Here’s one of the statements for which he was convicted. Staying in cyber life is going to kill you. Come out for coffee. You have my number. In which in what way is that threatening? Almost regardless of the tone when it’s put into the context. Mr. Chief Justice, what is being said here is if you don’t come out for coffee with me, bad things are going to happen to you. There’s this is I’m sorry, this isn’t remotely like that. It says staying in cyber life is going to kill you. I can’t promise. I haven’t said that. Come out, Come, come out, Come out for coffee. You have my number.


Leah Litman Gorsuch isn’t quite saying this is nothing, but he is saying people are just so easily offended these days. Seems like you just can’t stop someone without the woke mob coming for you.


Clip We live in a world in which people are sensitive and may be increasingly sensitive. As a professor, you might have issued a trigger warning from time to time when you had to discuss a bit of history. That’s difficult or a case that’s difficult. What do we do in a world in which reasonable people may deem things harmful, hurtful, threatening, and we’re going to hold people liable willy nilly for that? I mean, again, the solicitor general says a statement that’s based on its content and context, putting aside its intentions, I suppose that’s threatening to a reasonable person is inherently harmful. But how do we talk about history?


Kate Shaw I mean, and just to go back to the Roberts clip for one second, it’s both like just the kind of weirdly humorous tone he seems to be trying to take. It’s so dismissive and the audience sort of laughs in response to his suggestion that he has made comments like the ones that are actually like in some of the messages at issue in this case, like it was just so GROSS But then Gorsuch right. Sort of turns from you know, he’s not quite as dismissive as Roberts was, but does seem to suggest that, again, like the real problem here is how sensitive individuals are. And Barrett then chimes in on the same point that, like make it way weirder.


Clip Can look at a college classroom, say, or a law school classroom. And I can say if Justice Gorsuch or I were sitting in that context, let’s imagine a professor who wants people to understand just how vicious it was to be in the Jim Crow South and puts up behind them on a screen a picture of a burning cross and reads aloud some threats of lynching that were made at the time. Purely educational purpose and the teachers mind. But students feel physically threatened. They fear for their safety because they don’t understand it. Whereas if Justice Gorsuch and I are looking at that situation, we’d say, well, a reasonable person would understand the educational context of that. So how could the student think of it? So I think context doesn’t get you all the way there. I think it’s who is the reasonable person? So who is it?


Clip It’s a reasonable person in this situation. But in that situation, an educational setting where there really is no threat of direct physical violence to a person, it would be objectively unreasonable for anyone to see.


Clip Black students sItting in the classroom.


Clip If it’s not a threat of violence, that the person is worried about their safety.


Clip But the person is reading in the first person an account of what was said and threats of lynching. So they’re using the first person and saying it.


Clip I understand how it makes them uncomfortable, but unless that person can again reasonably perceive it as a threat to their safety in that situation, it wouldn’t be a true threat.


Kate Shaw I mean, I don’t even really know about Barrett here.


Leah Litman This is veering into black Santa’s territory. It’s almost like she is trying to attach the attacks on teaching the racial history of the country and CRT to black students. I mean, what world? What closed universe is lady safe haven occupying? Sometimes you just get flashes of it in these questions. And this was one of those times.


Kate Shaw This question came close to just like, can’t a good professor just, like, use the N-word in classes anymore? Like that really felt like that was a tldr of this long hypo that she was setting up. So that’s where Barry’s mind went. And, you know, Alito, an amateur of his own hypos yet again and gets a little reaction from the audience.


Clip But isn’t it inevitable that speaker intent is going to be important regardless of the mens rea that is applied to the other element that we were talking about earlier? Know somebody stood up here and spoke as fast as an auctioneer and I couldn’t understand what they were saying. And I kept saying, would you please speak a little more slowly? Speak more slowly so I could understand what you’re saying. And the person just continued to do it. And I said, you know, if you continue to speak that fast, I’m going to have a fit. And nobody would think I was actually threatening to have a fit. It depends on my intent. And in the context of this, in the context, I mean, maybe some people would.


Leah Litman You know, just in general, there was something super odd to me about the justices like pooh poohing a case involving stalking and the idea that any of these statements would rise to the level of stalking or threats, kind of saying, look, suck it up, ladies, and portraying themselves as these real free speech warriors with tough backbones and everyone else is the weak snowflakes. When I mean Sam Alito bitches publicly about amicus briefs and blog posts and says that they’re threatening and intimidating the court. Like he’s literally said, when, you know, Senator Sheldon Whitehouse and others file amicus briefs and a Harvard law professor writes a blog about the ideological composition of the court. That’s intimidation. It’s just astonishing.


Kate Shaw I know. And there was a brief reference in the argument to an amicus brief that we wanted to highlight. It was filed by Professors Genevieve Lakier, Evelyn Dweck and Eugene Volokh. And it basically this case was framed as and I think really discussed and argued as a case about threats and a true threats doctrine. But their point is that this is actually a stalking case. And a stalking case is different from other kinds of threat cases, actually, including Elonis, that sort of predecessor case we talked about in the last podcast that the court didn’t resolve as a First Amendment case, just took, you know, issued a statutory opinion. But again, that wasn’t a stalking case. This is a stalking case. And there is a separate body of law in the lower courts about how the First Amendment relates to stalking. And that’s distinct from threats as the amicus brief details and some examples of this are, you know, stalking laws require courses of conduct, right? So if we’re talking about stalking, that does involve speech, there are going to be lots of instances of some prohibited speech directly to the person being stalked, you know, proof that the speech was both reasonably likely to and did, in fact, cause significant emotional distress. Like here, for example, you know, this is an individual who was prosecuted for sending a ton of messages after the victim or the stalking victim blocked him. So it wasn’t about things posted on social media, which again, was the case in Elonis, the previous true threats case. So there are all of these reasons that stalking is distinct, but it was frustrating that it didn’t feel like that the justices had really understood that and they were casting this case in much broader terms in a way that could be really problematic.


Leah Litman It’s so weird. I thought they could have taken the time to understand this case, and they gave themselves two days for Justice Alito to push out that four page temper tantrum, alas, didn’t seem to do the trick. Also, during this argument, we seem to learn that Justice Ketanji Brown Jackson has a dog, so she was participating remotely at oral argument and there seemed to be a moment that captured, I’ll call it a bark, but after the clip I’ll say what I’m going to call it from here on out.


Clip If your standard, the reasonable person in that situation would have perceived the statements as a threat. Is that what you’re saying about the reasonable person?


Leah Litman This is the new board game at the court. You heard it here first.


Kate Shaw No, I want details about this dog. What breed?


Leah Litman I do too!


Kate Shaw How long, what name she needs to give it out to someone. Maybe she needs to come on a podcast.


Leah Litman I agree.


Kate Shaw Maybe a podcast that’s preoccupied with dogs and the many joys of them. All right. Standing invitation, obviously. Okay. So we will spend time in our next episode debriefing the second week of oral arguments of the April term. Maybe we’ll just briefly mention two cases that we have an eye on. Lac du Flambeau Band versus Coughlin, which is a question regarding whether the bankruptcy code expresses unequivocally Congress’s intent to abrogate the sovereign immunity of Indian tribes. It’s a very big term for various India questions, and this case is on the list of important cases. And then second tier versus Hennepin County, which is an important takings clause case. So we will have a full rundown on both of those cases after the arguments.


Leah Litman So we also wanted to cover some opinions as well as other assorted news and culture. The court is finally issuing opinions and they are back to announcing them from the bench, although those announcements are not being included in the live stream of the audio, although they were mistakenly included this week on Wednesday when the court just didn’t cut the audio feed. The audio was later removed from the C-SPAN recording, but it’s so annoying. Like they could obviously broadcast these. There’s no reason not to.


Kate Shaw It doesn’t matter that much. It’s just like their reflexive desire to be dodgy and nontransparent whenever they can is maddening. Even if the stakes, as in this instance, are low, the consequences in other contexts can be really significant. So anyway, one opinion that we wanted to highlight is Turkey Halk Bankasi versus United States case. The case involved efforts by the Turkish state owned bank, Halkbank, to evade U.S. sanctions against Iran. The federal government indicted Halkbank and Halkbank challenged the prosecution on a number of grounds, and here the court ruled against the bank, concluding the district court did have jurisdiction over the prosecution and that the Foreign Sovereign Immunities Act, or FCA, did not provide immunity from criminal prosecution. The bank had also raised a common law immunity argument, and here the court remanded for the lower courts to consider that argument in the first instance.


Leah Litman So we also got an opinion in Reed versus Gertz, which was a rare piece of good news from the court. This is the case involving Rodney Reed, who was on death row for a 1996 murder he has long insisted he did not commit. And where there is very real and compelling evidence of his innocence, you know, his case has attracted tons of attention.


Kate Shaw I was reminded when this happened that my husband, who’s a journalist, interviewed Mr. Reed actually on death row and broadcast the interview in 2015. So there have been there’s been a lot of attention for quite some time.


Leah Litman Yeah. So a Texas appeals court initially blocked Reed’s execution in 2019, and Reed has been working to prove his innocence since. And part of that involves seeking access to post-conviction DNA testing of several items. Post-Conviction just means, you know, after he was convicted. And the question in the case is whether he will be able to get that testing again, testing that might conclusively prove his innocence. The technical legal issue is when the statute of limitations, the period of time for actually seeking, you know, the DNA testing under section 1983, which is the general federal civil rights statute, when that statute of limitations, the time to bring this lawsuit started, whether it’s the end of state court litigation denying Reed’s request for DNA testing or much earlier when the state trial court first denied it, you know, rather than after subsequent appeals affirmed that decision, The Supreme Court, in an opinion by Justice Kavanaugh, ruled for Mr. Reed, finding that the window to file started at the end of the state court litigation. And so Reed’s filing was timely. This was a short six page, straightforward and really sensible opinion by Justice Kavanaugh, joined by the Democratic appointees, as well as the Chief and Justice Barrett. And, you know, again, credit where credit’s due. This was a good opinion. It’s the only opinion that makes sense conceptually, right? You don’t know whether you’ve been denied due process, which is what Reed has said, you know, denying post-conviction DNA testing would do. You don’t know whether you’ve been denied due process until you know what the process and procedures are that are available to you. And you don’t know that until the end of the appeals process. It’s also the only sensible result for federalism, right. And the distribution of cases between federal and state courts. Because had Reed lost then after the trial court ruled, Reed would have both had to appeal the decision in the state appellate courts and also immediately gone to federal trial court, which just makes no sense. And it also has a welcome effect of reviving Reed’s efforts to finally get the evidence tested and possibly prove his innocence. Naturally, Justice Thomas dissented, deploying several Thomas trademarks, graphic and gratuitous description of the crime in the case, a pathological disinterest in the injustice of the result of his interpretation and insistence on reading every legal doctrine and statute in as hostile a fashion to the criminal defendant or a death row inmate as possible. He also seems to invite the Texas officials to maybe just go ahead and execute Mr. Reed while the testing is pending. So he says, quote, If there is a mitigating factor to today’s decision, the court misguidedly allows to proceed is no barrier to the prompt execution of Reed’s lawful sentence.


Kate Shaw That’s a death sentence. He’s literally saying the court is wrong. That. Is not a barrier to Texas moving promptly to execute him while the DNA testing is ongoing. Like, that’s a monstrous thing to write.


Leah Litman Yeah. And he also suggested that Reed didn’t have standing to challenge the decision, even though Justice Thomas allowed the misoprostol in order to go into effect, despite the fact that that case was brought by a group of doctors who definitely had no standing or likelihood of future injury, whereas Reed could possibly be executed for a crime he didn’t commit. And Justice Thomas is like, Yup, no injury here.


Kate Shaw I’m sure in the Thomas opinion that he did not see fit to share with us. He had done very careful analysis and concluded that the doctors in question actually did satisfy Article three standard requirements. I’m sure.


Leah Litman I’m sure it was technically Thomas that in Reed’s case, his injury wasn’t addressable by a judicial decision, which is also just wrong. But anyways, Justice Alito wrote a separate dissent that was joined by Justice Gorsuch in Reed.


Kate Shaw And we did want to flag something in a pending case that is actually a few weeks old, But we haven’t had a chance to mention because of all of the breaking news. And that’s a case that we’ve talked about a lot on the show, more versus Harper, the so-called independent state legislature theory case. So basically, last month, the parties to this big case filed briefs in response to the court’s Swiss bond order that they give the court their views on whether the North Carolina Supreme Court’s decision to rehear the underlying case deprived the US Supreme Court of jurisdiction. So basically, whether that state court development meant the US Supreme Court no longer had the authority to decide this case that had been argued late last year. North Carolina basically agree says yes. Nope, there’s no jurisdiction dismissed the case, but the other parties say no impact. Please go ahead and decide the case. And the fact that this was last month that these briefs came in and the court has not dismissed the case yet, does not conclusively establish anything, but certainly does, to my mind, suggest there’s a, you know, maybe better than even chance the court does go ahead and decide the case, notwithstanding its having been revived in the state court. What did you make of it?


Leah Litman Yeah, no, I agree. I just think that the extent of the delay together with the fact that parties are asking the court to continue to the decision and basically most are just saying, well, it doesn’t require you to do anything, makes me think they’re going to say something, but who knows?


Kate Shaw We’ll see. All right. So we will leave it there for now. Don’t forget to follow us at Crooked Media on Instagram and Twitter for more original content post takeovers and other community events. And if you are as opinionated as we are, consider dropping us a review.


Leah Litman Strict Scrutiny is a Crooked Media production hosted and executive produced by me, Leah Litman, Melissa Murray, and Kate Shaw. Produced and edited by Melody Rowell. Audio Engineering by Kyle Seglin. Music by Eddie Cooper. Production Support from Ashley Mizuo, Michael Martinez and Ari Schwartz. And Digital Support from Amelia Montooth.