Leah and Kate recap recent opinions and arguments from the Supreme Court, including cases about tax exemptions for religious organizations and the future of Planned Parenthood. Along the way they celebrate Susan Crawford’s election to the Wisconsin Supreme Court and Cory Booker’s 25-hour speech on the Senate floor, touch on potential legal challenges to Trump’s ruinous tariffs, and discuss the latest in the ongoing right-wing effort to challenge Allison Riggs’ election to the Supreme Court of North Carolina.

Hosts’ favorite things this week:

• Kate: Unmarked Vans. Secret Lists. Public Denunciations. Our Police State Has Arrived, M. Gessen; Setting the Record Straight on the Anti-Trump Injunctions, Steve Vladek; The Battle for the Bros, Andrew Marantz; Museum of Now, This American Life; The Senate and the Edward Martin Nomination, Jack Goldsmith; Isola, Allegra Goodman; How the Trump Administration Learned to Obscure the Truth in Court, Leah Litman
  

• Leah: Eternal Sunshine Deluxe: Brighter Days Ahead, Ariana Grande; Hate Won’t Win: Find Your Power and Leave This Place Better Than You Found It, Mallory McMorrow; Why Trans People Must Prove a History of Discrimination Before the Supreme Court, Chase Strangio; Remarkable Things in the Government’s Alien Enemies Act Briefs to the Supreme Court, Marty Lederman

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TRANSCRIPT

Melissa Murray [AD]

Show Intro Mr. Chief Justice, may it please the court. It’s an old joke, but when a 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 today. I’m Leah Litman.

Kate Shaw And I’m Kate Shaw. And we are without Melissa today because she is spending the week as the Hess Scholar in Residence at Brooklyn College. Both Leah and I got to participate in some of the fantastic events that are part of Hess Week, aka Melissa Fest. So shout out to the great team at Brooklyn College, including students Robert Echavaria and Diana Reyes, who helped put the events together, and Professor Gaston Alonso, who really was the mastermind of the entire wonderful week celebrating our extraordinary co-host.

Leah Litman Yes, Brooklyn College is definitely a super special place, and I absolutely loved it. And we wanted to give you all a small taste of the programming. So we’re just going to play a very, very short excerpt from Professor Corey Robbins’ intro to the Hess Memorial Lecture, which Melissa gave last Thursday. I’m not sure Melissa would have let us play this if she were here. So this is kind of a bonus, and we are going to take full advantage of her absence to let Corey sing her very well-deserved praises.

Corey Robbins Clip I’ve been reading and watching and listening to Professor Murray for years. Every comment on television or a podcast sounds like a perfectly constructed, heavily footnoted paragraph from one of her law review articles. And every one of those perfectly constructed heavily footnoting paragraphs in one of our law review articles sounds as alert and alive as her performances on television. I used to think of that as a skill. I’ve come to think of it as an ethos, a reflection of how a person, a scholar thinks about their world. For Murray, there’s only one audience. It doesn’t matter if it’s in law school, on television, in the New York Times, or Brooklyn College. Murray speaks to us, all of us, as intelligent readers, students, and citizens. That requires a deep and firm commitment to egalitarianism, and a deep, and enduring faith in democracy.

Kate Shaw Ugh, that was great. Cory’s whole introduction, which was much longer than that, is on YouTube, and I was really happy to hear it.

Leah Litman As is the lecture.

Kate Shaw In person, and the whole lecture is on Youtube. I am sorry that Melissa is not with us for this episode, but the silver lining is that we got to bring all of you a little bit of that speech. You may have noticed that the three of us have not been together on the show very We’ve been pulled in a lot of different directions in the last few weeks, but next week, for at least part of the show, we do expect to all be back together. for the first time in a minute. And we were actually all together in person last week in Brooklyn, which was really wonderful. But just Leah and I today, and here’s what we have in store for you. We are going to begin by taking just a couple of minutes to talk about the great state of Wisconsin.

Leah Litman With Kate back, we are leading with optimism, including some optimism from article one, Unlikely Place. I mean, kind of, right? And then we will get to the bad and the ugly, meaning some of the latest unhinged, self-destructive shit out of article two and article three will recap recent opinions and arguments, including in the major religion case or a major religion the court heard and the case about the future of Planned Parenthood. And as always, we’ll tie what’s happening at one first street to some of the other wild shit happening in article two. But first up, Kate’s Hot Takes.

Kate Shaw The opening hot take, I think, is one that even if I were not on today’s show, you guys would basically share, which is, of course, Wisconsin. So I don’t think we need to tell people that it is bleak out there, that there is a full-scale assault on the law, the Constitution, our values. Also now the economy. That’s true. We’ve really, really just ratcheted things up this past week. So institutions are collapsing, and they are caving left and right, and democratic leadership at the national level has not exactly risen to the occasion. So it has quite frankly been hard even for me to find bright spots, but this week we really truly had one, which was a blowout victory by Judge Susan Crawford in the race to fill the open seat on the Wisconsin Supreme Court. And you know, electing judges is a choice that not everyone thinks is wise, and that is totally fair, but Wisconsin, like lots of states, does hold elections for its Supreme Court, and this election was really like nothing we have ever seen. Dogebro-in-chief slash co-president slash Dark Lord Elon Musk went all in to support the conservative candidate Brad Schimel, who was running against Judge Crawford. In the end, Musk spent an obscene $25 million on the race. He devised sketchy, and in the eyes of at least some Wisconsin officials, unlawful schemes to pay people for voting. Although because everything in that world is just so grifty sketchy it’s not even The winners were randomly selected, but None of this worked. So Crawford, Beechamal, and Musk by over eight points. And this was a state where Donald Trump’s win last fall and Tammy Baldwin’s reelection to the Senate, that same election, were both by margins in the tens of thousands. And that really does tell you how closely divided Wisconsin ordinarily is, which makes the result in this race all the more extraordinary. And it is just a huge testament to the people in Wisconsin and from all over who rolled up their sleeves and did the work. Um, and I- want to suggest it’s possible that Lovett is personally responsible for a point or two of Crawford’s win. Oh for sure, for sure. If he comes to your door, you listen. And then you make a thousand of your friends vote too, so yes. And a lot of other people were door knocking and doing all of the things. So it’s definitely not the case that we’re going to win all of these, but it is a reminder that people are angry, they are exercised about what is happening in DC, and there are things that can be done with that energy.

Leah Litman Yeah, and one person who is feeling things about the outcome of the election that might be different or definitely different from the things we are feeling is Rebecca Bradley, Justice Rebecca Bradley aka Becky with a bad attitude. So let’s hear what she had to say.

Clip I’m really personally and professionally disappointed that Judge Schimel lost to Judge Crawford. I think it’s going to result in terrible consequences for the state of Wisconsin. I also think the way Judge Crawfor ran her race was disgusting. She slandered a good man, Judge Schimmel. We saw this last time against Justice Kelly. It’s really sickening, and I hope next time the people will see through the lies. that are that misportray good people in these ads it’s it’s a terrible thing to happen to the state why do you think shimmo lost at the end of the day i think that we saw a ridiculous amount of money come in to this election and i always defend the right of anybody to participate in speaking in elections and of course that takes money to do it but when you a hundred million dollars plus. being spent on one state Supreme Court race. That is telling you that the Democratic Party is buying another justice, just like they did with Justice Protasewicz. How are you feeling about working with Susan Crawford on the Wisconsin Supreme Court? I’m not looking forward to working with her because I think she’s… As they have accused us of and it’s simply not true. She has bought and paid for it by the Democratic party But having said that I will work with her like i’ve worked with all of my other colleagues and get get the work done

Leah Litman An additional highlight or reason to celebrate the Wisconsin victory is not just how important it is for law, democracy, and a billion other things. It is also that the worst people are having a really bad week because of it. Like Elon Musk basically tried to say, well, I knew I was going to lose. It was like a strategic loss the day after the election, which is insane. And so I just took some additional joy out of that, personally.

Kate Shaw Indeed. So that was the good news from the great state of Wisconsin. There was also, as you mentioned, Leah, some surprisingly decent news out of Article 1 of the Constitution, the first branch of government, Congress. And I guess we should start by talking about Cory fucking Booker.

Leah Litman He stepped up and I think did more to meet the moment than most Democratic officials have been. And of course, we’re talking about his 25-hour speech on the Senate floor, and he broke the record that was previously held by segregationist Strom Thurmond for the amount of time, you know, spent speaking nonstop on the senate floor. Booker stopped drinking water so that he wouldn’t have to take a bathroom. break he was literally cramping up at the end and I don’t want to pretend or suggest that this is somehow enough for Democratic officials or that this is somehow a fix that is going to change a bunch of things that need fixing right now but he met the energy that the Democratic base and so many people are feeling right now and he was willing to put something on the line You know, make himself uncomfortable. and take a stand to reinforce that not everything is normal. What is happening is deeply wrong, deeply unlawful, so destructive for the future of the country. And that’s what I want, right? Like when you are in this fight and working so hard, you want to see that energy from political leaders and you want them to reaffirm what you’re doing.

Kate Shaw I agree with all of that, and I think it was, it represented a willingness to just try things, including, right, to sort of like, meet the unprecedented nature of this moment by doing like weird and unprecedented shit, and that actually has to happen more often. And part of it is about the kind of attentional ecosystem and economy that we are in, like doing things that will grab people’s attention, that will make people focus on what is happening. by focusing on you and what you are doing. I don’t think he was doing this because he was dying to have eyeballs on him for 25 hours. He was trying to make a point and to draw attention to what the Trump administration is doing, but you have to get people’s attention before you can persuade them and make them care. And I do think that he kind of gets that and democratic leadership largely has not. And this will, I think, be a huge determinant of how, if at all successful the democratic party is in responding to the overreach. frankly, horrors of this administration. So kudos to him for trying it. And I do think that an important thing about trying weird stuff is that not everybody’s going to like it. Some people will find it dramatic or cringe or whatever. It doesn’t matter. You have to try. And maybe some people who are initially skeptical will kind of come around. Because I do you think that actually happened over the course of the 25 hours. So maybe for the people who were aware that this happened but didn’t actually have a chance to listen in, we thought we might play just a couple of short excerpts from the 25 Hours. So let’s do that now.

Clip What’s happened in the last 71 days is a patent demonstration of a time where John Lewis’s call to everyone has, I think, become more urgent and more pressing. And if I think it’s a call for our country, I have to ask myself how I’m living these words. So tonight, I rise with the intention of getting in some good trouble. I rise the intention of disrupting normal business of the United States Senate. for as long as I am physically able. I rise tonight because I believe sincerely that our country is in crisis. And I believe that not in a partisan sense because so many of the people that have been reaching out to my office in pain, in fear, having their lives upended, so many them identify themselves as Republicans. I can’t allow this body to continue without doing something different, speaking out. The threats to American people and American democracy are grave and urgent, and we all must do more. We all must more against them. But those 10 words, if it is to be, it is up to me. All of us have to think of those 10 two-letter words, if it’s to be if it up to be because I believe generations from now will look back at this moment and have a single question. Where were you? Where were? when our country was in crisis, and when American people were asking for help, help me, help me. Did we speak up?

Leah Litman The one I wanted to specifically flag that was meaningful to me is where he kind of acknowledged that thus far Democrats have not met the moment and that they have made mistakes.

Clip I confess that I’ve been inadequate to the moment. I confess that the Democratic Party has made terrible mistakes that have given lane to this demagogue. I confess we all must look in the mirror and say we will do better.

Leah Litman I just found that very powerful and also it was just insane that he was able to continuously say profound and coherent things while doing this for 20 years.

Kate Shaw Let’s play the very last moment of his speech because to your point, he was like still totally like eloquent then, 25 hours in, so here’s how he landed the plane.

Clip When our founder said we must mutually pledge, pledge to each other, our lives, our fortunes and our sacred honor. We need that now from all Americans. This is a moral moment. It’s not left or right, it’s right or wrong. It’s getting good trouble. My friend, Madam President. I yield the floor.

Kate Shaw So that was, I think, a big moment last week. On the same day that Booker was in the midst of this historic speech, there was something I thought really satisfying that went down in the House, which was that Speaker Mike Johnson tried and failed to kill a measure, just a procedural rule change, that would have allowed proxy voting for new parents. And this, of course, is the party of families. So basically, there is a bipartisan effort to change House rules to let new parents vote by proxy, meaning you know give their vote. not have to show up in person to vote for 12 weeks after having or adopting a child. Seems pretty reasonable. But Speaker Mike Johnson decided not just to oppose but to go totally nuclear on the process. So instead of just letting members vote on this rule change, he tried to block the entire thing by essentially moving to shut down one of the only tools that rank and file members have for getting around leadership, which is this thing called a discharge petition. So Johnson tried to cut this off entirely, even floated like raising the threshold from a majority to a two-thirds vote in the House to make this kind of rule change. Maneuver totally backfired, alienated even people who are ordinarily allies with Johnson, and enough Republicans broke with their party to vote with Democrats to keep this proposal for new parents alive that they basically caused Mike Johnson to throw a temper tantrum and canceled the rest of the week’s votes. Because he was so incensed at having lost this procedural maneuver men are too emotional to lead Yeah, they he got really worked up and yeah and decided to essentially bring the entire body to a halt Because he wasn’t you know in his feels about it, and it was pretty wild. I was so I also testified Last week in the house on the same day that this vote happened And so I testified in the morning it was a hearing on judicial overreach was what it was called And then there was a break in the middle of the day to go vote on this measure. And then when the members came back, the staffers were just like, oh my God, there’s no more votes this week? Like what happened? No one was expecting him to decide to throw the temper tantrum. So it was really satisfying that the vote went down and it was satisfying that he took it as hard as he did. Sort of to your point, it’s not just that the right outcome was reached, but also that the worst people were really mad about it. So that was kind of great. And yeah, so it was, you know, I have testified a handful of times in Congress, I’m not sure you always end up feeling like this is a body where there’s like real energy that you can feel, not always my reaction to being on the Hill, but I actually felt like there was a lot of really productive energy last week, so not predicting that that’s going to remain the case. But, but, I do think the combination of that vote and the Booker’s speech suggested maybe some possibility that some parts of article one are going to be stir themselves to respond to this moment.

Leah Litman [AD]

Leah Litman Now on to article two. So the White House proclaimed last week Liberation Week. And during Liberation week, they proceeded to liberate us by imposing a set of tariffs that are estimated to cost the country somewhere between six and eight trillion dollars. Basically a six to eight trillion dollar tax hike. We all knew the administration didn’t have any real economic plan, right? This is all just vibes. It’s unclear how they pick the targets of the tariff. A lot of it is definitely revenge, like he is doing with law firms. It’s extortion. But one target is the herd and McDonald Islands, which are exclusively inhabited by penguins. Like, what the fuck did the penguins ever do to you? Are they too woke? You know, I have read things that suggest- Famously. Gay penguins raise baby penguins together.

Kate Shaw That can happen, that’s probably it.

Leah Litman Right? Like, I guess that’s it. Also unclear how they selected the tariff rates. Again, no real economic policy, no real math, just vibes. And we are already, you know, we’re recording Friday, seeing the stock market crash, the global economy melt. Because, I don’t know, like Donald Trump wanted to do what? Like crash the economy? It’s It’s very strange, obviously. I’m not sure it’s going to help the price of eggs. And he posted something on True Social that was a video insinuating he was purposefully crashing the economy so as to lower interest rates. Oh, I missed this. It’s just completely unhinged. And yeah, this is the leader of the free world and his economic policy.

Kate Shaw See, the first term, I think it was often and correctly said that the incompetence tempered the malevolence. And I feel like they’re kind of like multiplied. I think they’re just kind of somehow they’re amplifying one another as opposed to one tempering the other this time around. It is truly stunning. So the president has a lot of unwisely conferred statutory authority over tariffs, but not boundless authority over tariff. So, I think the question… on at least a lot of kind of legal minds was, will there be lawsuits filed? And very quickly, the answer seems to be yes. Yes. At least one. Multiple, including by some conservative groups, which I was heartened by. So there’s another, I mean, again, these are crumbs, obviously, um, but, but that prefer not to live through a recession or another Great Depression. Oh, God. No, no, no. And I mean, I can’t imagine that even if a few of these lawsuits succeed, I think it’s an uphill battle, given how much authority presidents have. And litigation is slow and reactive, and there’s no way anything could happen in time to actually blunt much of the actual damage. But I guess the fact that at least one conservative group or group of several conservative groups have filed this initial lawsuit also kind of like the defections on the proxy vote suggest to me that there are at least cracks in that coalition forming, and the worse the economic pain gets, the faster I think the defections will come, which is of course not too rude for widespread economic pain, but just to make a predictive judgment, there’s no way that we won’t all suffer a lot of economic pain because of these tariffs. There’s just no way around it.

Leah Litman Yeah, and the litigation argues, you know, partially that the delegations to the president might be unconstitutional delegations. It also argues that the statutes giving the president authority to respond to international emergencies doesn’t actually confer the authority to do these widespread tariffs. There are also challenges that say the statute requires the precedent to create policy that has some connection to the national emergency that he is addressing. And here, right, putting tariffs on penguins does not seem to be related at all to addressing the fentanyl crisis. Not really sure how tariffs on China do either, but I’m curiously awaiting the explanation for how they do. Speaking of, I don’t know, the right-wing reaction to these tariffs, not everyone seem to be anti-recession. So there was this one tweet by Matt Forney that said, I don’t care about your fake and gay stock market collapsing boomers. Apparently the stock market is also gay. Didn’t realize this. And then there was a story in the Financial Times that interviewed some people about whatever is happening. And there was quote that said quote, I feel liberated, said a top banker. quote, we can say retard and pussy without the fear of getting canceled, end quote. And I guess I didn’t realize that using sexist, homophobic, ableist slurs was worth six to eight trillion dollars that you would pay that much. But those are apparently people’s revealed preferences. And I just want to know, as always, are the men’s okay? Because that’s a lot of money. You know, on the Men’s Watch, just wanted to briefly note that a law professor at Yale, who was surprisingly not Jed Rubenfeld, decided to take to the pages of the Washington Post to encourage Democrats to be open to, wait for this, a third Trump term. This was literally his advice. Were you persuaded, Kate? Is this what we should be asking of our Democratic leaders?

Kate Shaw I mean, one is tempted. Okay, so of course, like if you’re disposed to be charitable, you sort of might think, well, surely the headline writers did a disservice to Ian Ayers, the law professor who wrote this. And, you know, there is an argument here, which is that the electoral college is a disaster and should be abandoned, and that’s true, but that somehow we could trade eliminating the electoral College for a third Trump term is the non sequitur of all non sequitors. I mean, there are so many deep pathologies in academia. I think we could obviously spend an hour talking about this. But if you want to make an argument against the Electoral College, absolutely. And it’s an atrocious institution. And I guess the problem is, the problem, if you’re a law professor who wants to make a novel point, is like, well, there’s nothing edgy and interesting about just arguing against the electoral college. And so you must connect it to something provocative. Democrats should be open to making Trump president again for a third time. I’m sorry.

Leah Litman Why not do the trade is get rid of the Electoral College and make Donald Trump king? Right? I mean there’s just.

Kate Shaw Yeah, I think that’s right. And then just king for life. And then we can have some sort of a sane and sensible method of selecting the president or something. It saddened me as a member of the legal professoriate that it feels like that’s what this has come to. But there we are. All right, so I love that we have sequentially proceeded through Article 1, Article 2, and now arriving at Article 3, the judicial branch. And actually, one thing we should note about this coming week is that it baby one. in which the kind of storylines collide. So we’ve been talking a lot in this podcast, obviously since January 20th, about Article II, the executive branch, and the insanity that is emanating from it. And we have talked some about Article III, the courts, and the Supreme Court in particular, but the court hasn’t had before it, or hasn’t decided, more than a couple of sort of minor matters regarding the administration’s actions. But we might be facing, in the coming week, a real collision between the court and some of these sweeping Trump initiatives. So first, three of the cases involving challenges to the president’s birthright citizenship executive order, which the lower courts found unconstitutional and enjoined in each of those cases, are now pending before the Supreme Court. The federal government is asking the Supreme court to limit the temporary injunctions that were issued in each case to either the individual plaintiffs or members of groups or, like, at least the individual plaintiff states. rather than allowing these injunctions to stand nationwide. Basically, you know, it’s pretty clear the administration is looking to use this case as a vehicle to get the court to weigh in on, you know and weigh in against the use of nationwide injunctions, which is something that some justices have been agitating for the court to limit for quite some time. And the Biden administration, you know, the Solicitor General also took the position that, you know, there were too many nationwide injuntions and that there were problems and the court should consider. taking up the issue. So this is not, you know, this is something that has been percolating for a while. This is a point that Steve Vladeck has made that I think is a really good one. It would be truly preposterous, I think, for the court to use this case as a vehicle to limit the use of nationwide injunctions. Can you imagine every pregnant person whose child would be a citizen under long-standing understandings of birthright citizenship but would not under this executive would have to separately litigate, are you out of your mind?

Leah Litman Well, also carving it up on a state by state basis would be not administrable.

Kate Shaw State by state, individual by individual, like truly preposterous, and it’s obviously cynical, right? Like they just are sort of want to use this as a vehicle because nationwide injunctions in general have been an enormous problem for this administration so far and correctly so. So I don’t know. I don’ actually have a good sense yet of what the court is likely to do with respect to that issue, but I do think that the court seems in no rush to do anything with respect to these three petitions. They asked for a response by April 4th, which was a pretty long timeline, given that the petitions were in like March 15th. My guess is that we’re looking at something maybe next term in these cases.

Leah Litman But the court also has other applications involving other cases on the administration’s policies. One of those is an application by the federal government in the litigation growing out of the administration’s rendering of Venezuelans to a prison in El Salvador on the basis of the 1798 Alien Enemies Act and the dodgy claim that the Tren de Aragua gang has engaged in insurrection or predatory incursion. We’ve talked about this case before. It’s the one in which Judge Boesberg of the District Court for the District of Columbia issued two temporary restraining orders against the administration, prompting both President Trump and Co-President Elon Musk to tweet about impeaching Boesburg, which led to the rebuke by Chief Justice Roberts. So in that case, the filing by the acting Solicitor General asked the court to stay Judge Boasberg’s temporary restrainting orders and claims that these plaintiffs can only get relief through. habeas corpus petitions. I also thought the brief by the Solicitor General was particularly misleading, because it suggested that habeas Corpus would somehow be available to individuals in the event the court actually eliminates the temporary restraining orders. But if the TROs are no longer in effect, the government is immediately going to move to. summarily and quickly put as many people on planes to El Salvador as they can, the individuals might not know that they are being summarily expelled and rendered to El Salvatore rather than a country of origin. And the forms that these individuals are giving, in fact, suggest they have no right to judicial review. So it is just, I think, one of the worst briefs I have seen from this administration and as far as how. misleading it is.

Kate Shaw It’s also laughable in some of the claims it makes about the process by which these people were identified. So the brief claims, with a straight face, that the administration officials who were planning bombings using signal, quote, detain designated TDA members through a rigorous process. Like, come on. So on its face, it’s an absurd characterization of the kind of internal rigor. of the mechanisms by which these individuals were identified, and not surprisingly, given who we are talking about, seems really clear from reporting that the administration definitely made some errors here. Oh yeah. Errors that we know about, and I am sure errors that we don’t. So one of the errors we do know about involves an individual who was on one of these flights and is now in El Salvador and isn’t even Venezuelan, remember the invocation of the members of this TDA gang and justified the use of this extraordinary statute through this strained notion that the Venezuelan government and the TDA Gang were like a hybrid state actor. This person is not even Venezuelans, definitely not at all affiliated with TDA, has a US citizen spouse and child and an order protecting him from removal. The administration is actually admitting that he was on the plane as the result of an administrative error. basically saying there is nothing it will do about it, right? They’ve started offering some justification. Maybe he was a member of MS-13, an entirely different gang, unrelated to the Alien Enemies Act authority under which these planes were loaded up and sent to El Salvador. So entirely irrelevant to the legal question here, but designed to sow confusion, I think, and like erode sympathy for this individual in a truly Kafkaesque, horrifying situation and his family. There’s another individual who, according to reporting, was a 31-year-old gay makeup artist with zero gang affiliation, but some tattoos that led authorities to incorrectly conclude that he was a TDA member. Even some on the right, including Joe Rogan, have raised concerns about this individual’s inclusion in the Plains. So, you know, truly horrifying stuff.

Leah Litman In one interview, J.D. Vance, in defending what the administration was doing, suggested that one of the individuals who had been rendered to El Salvador was a bad father because they had traffic tickets. Like, it’s truly grotesque and obscene. Right as we were recording, the Texas Monthly released a story about a teenager who was disappeared to El Salvador. This is an 18 year old and it is Again, like we know these individuals did not receive any process. We know there are errors. And so the fact that the federal government is continuing to insist otherwise is horrifying. And while the Supreme Court is considering that aspect of the case, you know, whether the temporary restraining orders should stand, Judge Boesberg in the district court has another aspect of case still before him. And so he held a hearing about whether the administration defied. his initial order in the case. It seems, at least from the hearing, quite likely that he will find that they did. And then the big question is what he will do about it. I think a ruling on that is expected sometime this week. But during the hearing Judge Boasberg was basically asking the federal government, like, OK, so who would be the contemnors that I would identify as being in contempt? And early on in the hearing. The lawyer for the federal government said this thing that is just so wild. I had to put it here. He said, quote, to the extent that the administration statements are contrary to things that are true, they would be false. When the judge is asking you, who should I hold in contempt, and you are deigning to acknowledge that things that aren’t true would be false, not a great sign. Not a great side, my guys.

Kate Shaw After we wrapped up this recording on Friday morning, we got two major pieces of breaking news that we wanted to bring you up to speed on. First, we got a ruling out of the North Carolina Appeals Court in favor of unsuccessful North Carolina Supreme Court candidate Jefferson Griffin, who has refused to accept his loss to Allison Riggs and, at least at the moment, has seen that insane refusal vindicated. OK, briefly, the opinion is a travesty. it turns election law on its head. This is a case that should never have gotten off the ground. It seeks to disqualify voters after the fact, even though they complied with all of the requirements to vote in place at the time of the election. There’s a good reason courts have never before allowed claims like this to proceed. They should not have allowed this case to proceed here. But if they were going to allow it, It was Jefferson Griffin’s burden to show that ineligible voters participated in the 2024 election and he has not done that. Nevertheless, this appeals court has now presumptively disenfranchised over 60,000 voters telling them that their votes will not count unless they can re-prove their eligibility. It is madness. The process by which they are supposed to re-proof their eligibility is to be managed by county election officials. Those offices no longer have the staffing support that were in place during the election period. It’s basically a massive unfunded mandate upon North Carolina taxpayers. And the period for reproving eligibility is like 15 days. What if a voter is a deployed service member? What if they’re sick and in the hospital? The court doesn’t seem to care. No one is disputing the hoops that this court is now demanding that voters jump through. We’re not the ones in place at the time of the election. We are changing the rules of the game after the game has been played because the Republican candidate lost using the original rules. And Riggs has said that she will appeal this decision. She is speaking out. She has said, that if we let this kind of anti-democratic effort stand, we will not be able to contain it. It is basically a playbook for the worst kind of anti-democratic efforts by unsuccessful candidates. So I think next steps involve appeal to the North Carolina Supreme Court and likely a lawsuit in federal court. But the bottom line is this is outrageous. Okay, the next piece of news is not going to lower your blood pressure. So I’ll just briefly describe that. Also late on Friday afternoon, by a five to four vote, the US Supreme Court stayed a district court order that had required the federal government to continue paying $65 million in teacher training grants, the administration had unilaterally asserted the authority to stop paying. This 5-4 opinion was per curiam, so no identified author. I think it’s pretty clear that Justice Alito actually drafted the order. And the order did a couple of things. One, it said, even though this is a temporary restraining order, which is not supposed to be appealable. we are going to treat it like an injunction, which is appealable. That’s not the first time this has happened in Trump litigation, but this is the first Time SCOTUS is doing it. It also said there was a good chance the government would win in its argument that the district court in Massachusetts did not have jurisdiction in the case. That is, didn’t have the power to hear it, because the Administrative Procedure Act doesn’t let parties sue the government to enforce contractual obligations the way it Let’s party-sue the government. based on other kinds of government actions. So the Supreme Court said there’s a possibility this case should have been brought in the court of federal claims rather than in a federal district court. As I said, the opinion was five-four. Roberts noted his disagreement, but didn’t write. Kagan wrote a short dissent. Jackson, joined by Sotomayor, wrote a longer dissent, as Steve Vladeck has already noted, it is quite interesting that Barrett decided this case. She joined the Democratic appointees and the Chief Justice. in not disrupting District Judge Ali’s order in the USAID funding case, but she crossed over to join the Republican appointees here. So this is really significant and it is absolutely a big boost and win for the administration. But it says nothing about the ultimate lawfulness of this or any other cancelation. It’s really a case about where and how the challenge was brought. so you know, important, possibly predictive in terms of where the court is gonna come down in the many other petitions it has pending, but I think it’s a little too early to tell.

Leah Litman [AD]

Leah Litman We should turn now to the two opinions we got this week. The Supreme Court released its opinion in medical marijuana versus horn. There it found that plaintiffs who sue for violations of the Racketeer Influenced and Corrupt Organizations Act, RICO, can seek trouble damages for injuries resulting to their business or property, even if the loss to that business or property resulted from personal injury. So this is a case involving the truck driver who took a product that was marketed as THC-free. but then tested positive for marijuana and lost his job. The case had a super interesting 5-4 lineup. Justices Barrett and Gorsuch were in the majority with the three Democratic appointees. Justice Thomas wrote a dissent for himself. And then Justice Kavanaugh wrote a descent joined by the chief and Justice Alito. To me, this was kind of like the chamber of commerce split, right, like the justices who are most kind of affiliated with the chamber were in dissent. So I thought that was interesting. This is a case argued by Isha Anand of the Stanford Supreme Court Litigation Clinic. She did a terrific job. Congratulations to her and to her clients.

Kate Shaw The court issued another opinion, this one actually unanimous and get this, the court vacated and remanded a decision of the Fifth Circuit. Actually, they did that a lot less. I mean, but still this is our good news. This is our Good News. And it’s also a case in which the agency wins, right? So that is pretty wild. So the case is FDA versus Wages and White Lion Investments about whether the FDA’s denial of authorization to market certain e-cigarette flavors was arbitrary and capricious. As a reminder, the FDA had denied permission to market these particular products on the ground that these really sugary sweet flavors were especially likely to appeal to children. And the challengers and successfully in the Fifth Circuit had argued that the FDA had engaged in a bait and switch or a surprise switcheroo in the criteria that it used to assess these applications. And the Supreme Court in a unanimous opinion authored by Sam Alito said, actually not so much. So Justice Alito explained that the FDA’s guidance had consistently required robust scientific evidence to show that flavored products would benefit public health, like for example, evidence that these products would help adult smokers switch from cigarettes to these e-cigarettes without unduly encouraging youth to use these cigarettes. And the court found the FDA never promised to accept less rigorous scientific evidence and didn’t improperly change its stance regarding studies or analysis or the significance of device types. and that it had permissibly denied the applications based on the absence of sufficient data. Opinion also emphasized that the FDA had a good amount of discretion under the Tobacco Control Act to require robust scientific proof.

Leah Litman The court also addressed but did not fully resolve whether the FDA committed harmless error by failing to review the manufacturer’s marketing plans, which the agency had previously deemed critical to applications. So the court held that the Fifth Circuit’s rejection of the harmless error argument read the Supreme Court’s prior decision in Calcutt versus FDIC too narrowly. The court noted the tension between the Administrative Procedure Act’s harmless error rule and the longstanding Chenery principle, under which courts review agency decisions based on what they say, and vacated and remanded for the Fifth Circuit to reconsider the harmless error issue. Shout out to my Michigan law colleagues, Nick Bagley and Chris Walker, whose work was cited on this harmless error issues. Justice Sotomayor concurred separately to emphasize that, contrary to Justice Alito’s you know, kind of swipes at the FBDA and the suggestion that it was feeling its way toward a final stance, the record actually showed that the agency reasonably offered manufacturers flexibility regarding the kinds of evidence they could submit while consistently adhering to its statutory obligations to, you know focus on products that would be appropriate for the protection of public health.

Kate Shaw Again, the court ruled for the FDA, which was honestly a little bittersweet because it happened the same week that the administration gutted parts of the FDA including its public records team. And also, according to Rolling Stone, reportedly laid off more than 7,000 workers at the Centers for Disease Control and Prevention, the National Institutes of Health, the Food and Drug Administration, and the Centers for Medicare and Medicaid Services. Among those laid off was the FDA’s chief regulator of tobacco. ABC reports that these layoffs mean that the HHS headcount overall goes from like 82,000 to 62,000, so a full fourth of its workforce. I mean, I feel like a broken record here, but also you can’t typically just fire civil service employees without some cause. And there are some very limited abilities to do reductions in force, but I can’t imagine that they authorize what the administration has done here. So many of these people may have been laid off unlawfully and so after lots of litigation, maybe they will be restored. But in the interim, we’re without key players who protect all of our health and safety.

Leah Litman OK, so those were the opinions. We’re now going to shift to argument recaps. And we are going to go deep on two of the arguments the court heard last week. One is on tax exemptions for religious organizations, and the other on the future of Planned Parenthood. So first up is Catholic Charities Bureau versus Wisconsin Labor Commission. This was the first religion case of the term, but definitely not the last. I describe this case as kind of an appetizer, maybe an amused bouche before the blockbuster and mean. Of course, religion cases are on deck for later this term. One of those is Mahmoud versus Taylor about whether parents can raise religiously grounded objections to their children even being exposed to LGBTQ content in public schools, basically given parents the right to direct what public schools can teach. And the other one is Oklahoma Charter School Board versus Drummond, a case about whether state must include. religious charter schools in its charter program, basically whether the Constitution requires states to set up religious public schools. Both of those cases will be argued at the end of April. But an issue in this case that the court just heard was a Wisconsin state unemployment insurance program that employers in the state are required to pay into. The program exempts both houses of worship and also church-run nonprofits that are, quote, operated primarily for religious purposes. The Wisconsin Supreme Court a.k.a. the best state Supreme Court, although I don’t want to give short shrift to Michigan. That’s also a pretty awesome state Supreme court, so co-best. That court construed the exemption to apply to nonprofits that engage in religious worship and similar activities, but not to nonprofits, that provide secular services, such as feeding the poor, even if such charitable activities are in some sense motivated or compelled by tenets of and the entities describe them as… part of their religious practices and faith.

Kate Shaw So it seems pretty clear that what motivated both the Wisconsin lawmakers that passed this exemption and also the Wisconsin Supreme Court justices who construed the law this way was like the effort was to try to create an exemption that would keep the state out of personnel issues related to termination and unemployment benefits when it came to organizations engaged in religious activities. So if someone is providing a blessing when they are serving soup at a soup kitchen. and they say the blessing wrong. This was a hypo that came up in the oral argument, whether a termination for that botched blessing gets you access to state unemployment insurance or not is not something state officials wanna have anything to do with. That’s sort of an internal religious question that state authorities don’t wanna touch. So they wanted to create an exemption that would leave those sorts of things outside of the reach of the state, but not that would create this enormous carve out from the state unemployment-insurance scheme. for every nonprofit. So this is where they decided to draw the line. And here the Catholic Charities Bureau, the plaintiff in the case operates as a standalone nonprofit. So it’s not part of the Catholic diocese or it would definitely be exempt from the unemployment insurance program. And it provides lots of charitable services including the entities at issue here for individuals with developmental disabilities. So people of any faith can work for these nonprofits. People of any face can get services from these nonprofits And there’s definitely no effort through the provision of these services to do any inculcating of the Catholic faith. So when it asked for an exemption, it was denied. So it’s sued and the Wisconsin Supreme Court took a look at this exemption and found that as applied to Catholic charities, this provision was not unconstitutional beyond a reasonable doubt. So this didn’t come up at the argument, but I was reminded of it when I pulled the the Wisconsin Supreme Court opinion that that is the standard in Wisconsin. In a constitutional challenge, is it unconstitutional? Beyond a reasonable doubt, here, the majority found, no, it wasn’t.

Leah Litman Yeah, so this court loves to see hostility to religion everywhere. Brief tangent, in one chapter of the book, I describe the court as going on the hunt for the very rampant discrimination against religious and social conservatives that they know exists. And therefore, are committed to find. If you are watching us on YouTube, you can see that Kate is gesturing toward. I’m Vanna Whiting with your… Kate is vanquishing my book, which you can pre-order now. It’s called Lawless, How the Supreme Court Runs, Unconservative Grievance, Fringe Theories, and Bad Vibes. Also, if you are watching us on YouTube, you might note that Kate and I are in somewhat odd or different locations and have different unexpected backdrops, so just a little Easter egg for those of you who catch us on Youtube. Wait, should we explain briefly?

Kate Shaw No, okay, Easter egg would be figured out. But yes, we are in Brooklyn. And so Leah is at my house, we’re recording. And so she is in my little podcast closet in the basement. It’s awesome. I thought she would be cozy. I let her pick the pink, like a lighting behind her. And then I am upstairs with a Wallace poster behind me. So yeah, we’ll just kind of mixing it up.

Leah Litman Exactly, exactly. And when I came to Brooklyn, I was late arriving at Kate’s place. So apparently I became or become late. When I am in Brooklyn, when in Brooklyn do do as Brooklynites do I love this. I love it.

Kate Shaw I am, for listeners who are not aware, I am typically the one running only, in my mind only a very little bit, but Leah, who is yours in being the most punctual person of all time, I think thinks it’s maybe more than a little sometimes, it’s sometimes in the two to five minute range. But anyway, I think Leah was like a full seven minutes late and that has definitely never happened. So it’s great. I’m just, I’m going to just, I’m going to bank that credit.

Leah Litman Yeah, but a pin in it. But back to this Wisconsin Charities case, you know, because the court loves to see hostility to religion everywhere, they were all over Wisconsin, like a cat with a mouse, maybe like a mouse with a piece of cheese, suggesting that Wisconsin’s test involved impossible line drawing problems and that the lines they were drawing privileged some religions over others. one real through line was that the test advantaged religions that proselytize or evangelize over those that typically do not, such as Judaism or Catholicism.

Kate Shaw So we’re gonna play a couple of clips that give you the flavor of that line of questions. But first, if you will indulge me, I just wanna know, Leah, whether this clip also made you think John Roberts was not familiar with the term vegetarian or vegan. So let’s play that clip now.

Clip What if you have a religion that thinks it’s a sin to eat meat, and they, to promote the eating of non-meat dinners, they open a restaurant, but it’s only vegetables and, you know, non- meat. Do they have a claim to be exempt from State taxes, food taxes, everything else, because that’s a sincerely held belief?

Kate Shaw That was weird.

Leah Litman Non-meat?

Kate Shaw Non-Meat, non-meat, and non-meat came up again, and a couple of the Democratic appointees were like, okay, vegan restaurant or vegetarian restaurant, like that’s the way a normal person talks about the thing he’s talking about, but meat, nonmeat, and vegetables was all he was able to muster. Anyway, that was weird, okay.

Leah Litman So, yeah, piling on, right, them piling on Wisconsin because they think this test singles out some religions for unfair treatment. Here is Justice Kagan actually kind of leading the charge there.

Clip What’s problematic about this, I mean, there are lots of hard questions in this area, vegan restaurants, hospitals, lots of heart questions. But I thought it was pretty fundamental that we don’t treat some religions better than other religions, and we certainly don’t do it based on the content of the religious doctrine that those religions preach. And if you, this opinion sets up two things. This one is the co-religionist service. You’ve run away from that and the other is the proselytization. Some religions proselyitize, other religions don’t. Why are we treating some religions better than others based on that element of religious doctrine?

Kate Shaw So there, you hear her say vegan restaurants like a normal person. So yeah, so she was doing that, Roberts was, Gorsuch, maybe let’s play a clip from him here.

Clip Isn’t it a fundamental premise of our First Amendment that the State shouldn’t be picking and choosing between religions, between certain evangelical sects and Judaism and Catholicism on the other, for example? And doesn’t it entangle the State tremendously when it has to go into a soup kitchen, send an inspector in, to see how much prayer is going on?

Kate Shaw So Barrett actually, interestingly, wasn’t quite as gung-ho as some of the others were. She seemed as though she was less doing the hunting for the most uncharitable reading of the Wisconsin motivations as conceivable. She seemed like she was maybe looking for some kind of a narrow holding. And I actually do think it matters a lot how narrow or broad the opinion in this case is, because. If we’re talking about the application of not just this Wisconsin unemployment insurance law, but lots of other anti-discrimination and other personnel-related matters, depending on what they say about what the First Amendment requires, we could be talking about an enormous swath of civil rights laws that are unenforceable as to lots of employers, including, of course, hospitals, I feel like, are the big question in this area, because they’re such huge employers. But I thought maybe she was looking for something that was going to be fairly tied to the specifics of this scheme.

Leah Litman Yeah. And Justice Thomas, for his part, couldn’t stop himself from just dripping with contempt for the Establishment Clause of the Constitution.

Clip So what do you mean by an anti-entanglement statute?

Leah Litman We should also take this moment to note just, again, how the court was insanely irresponsible in the way they disavowed Lemmon, the court’s establishment clause test, in their earlier decision in Kennedy v. Bramerton’s school district. Even these guys don’t know its status. They claimed it was abandoned. But they think that should be clear to everyone else, as you can hear here.

Clip I know, but when I think of entanglement, I think of the hopefully defunct lemon test.

Kate Shaw I know, I mean, hopefully defunct. It’s like, my guys, this is, you could say this is overruled and it’s done. You didn’t, you didn’t say that. You said like this court long ago abandoned Lemon and its endorsement test offshoot, which is not I should say the same thing as entanglement. But they’re happy to leave chaos and confusion and then just scold the lower courts and state officials who might be under a degree of understandable confusion because the establishment clause, The last I opened my constitution is still in there, and they’re still trying to comply with it, even though Thomas thinks they shouldn’t. Jackson was the only one who I thought was at least likely on Wisconsin’s side, as in clip where she uses a parallel provision of federal law to illustrate what the state kind of might have been trying to do here.

Clip I’m wondering if the exemption was actually designed to work that way and whether Wisconsin may be at least, I mean obviously they have the right to say whatever they want about their state statute, but to the extent that they’re following the federal law, I wonder whether for religious purposes isn’t really about the motivation, that instead it is about the kinds of activities that the organization… undertakes. And so when we look, for example, at the legislative history of the federal provision, they’re very clear in terms of making the line be between a college devoted to preparing students for the ministry, novitiate, which I understand is sort of a place for people, nuns and the like, to decide whether or not they’re meant for the faith. or a, quote, a house of study training candidates to become members of religious orders. They put that on one side of the line. Congress does. And then it says, on the other hand, a church-related, separately-incorporated, charitable organization, such as an orphanage or home for the aged, would not be considered. So it seems to me that the line, at least in the federal statute, is not between charitable organizations that proselytize versus charitable organizations that don’t. Instead, it’s all charitable organizations on one side that are run by the church, and organizations run by church that are like training programs for priests, that are religious in that way.”

Leah Litman But it seemed like this was likely going to be a 7 to 2 or 8 to 1 win for Catholic charities. Justice Jackson and maybe Justice Sotomayor would be the holdouts. But if it’s narrow, it could even end up being 9 to nothing.

Kate Shaw Professor Michael Schwartzman at UVA, I know, was at the argument with his students in an upper level seminar. And I am just reminded, I mean, I just couldn’t figure out what was driving Kagan in sort of leading the charge the way she has. I mean she, Micah, and Nelson Tebby, his co-author, have written about what they think is a pretty misguided strategy of appeasement and establishment clause cases. So if what some of the Democratic appointees are trying to do here is to bank some capital for later in the term when there are higher stakes religion cases on deck. I don’t think that’s, I mean, they’re gonna strategize the way they’re going to strategize, but to my mind, that is not a successful strategy.

Leah Litman [AD]

Leah Litman So the next case we wanted to talk about is Medina versus Planned Parenthood, South Atlantic. This is a case about whether patients and providers can sue to challenge a state’s decision to exclude Planned Plannedhood from the Medicaid program, i.e. a state saying that Medicaid money cannot be used to reimburse patients for any care that they receive at a Plannedplannedhood. This is partially what people are talking about when they talk about defunding PlannedParenthood. So under the federal Medicaid act, states are required to adhere to a variety of rules if they receive money from the federal government to provide Medicaid insurance. Among the rules is that a state plan for medical assistance must quote provide that any individual eligible for medical assistance may obtain such assistance from any provider qualified to perform the service or services required who undertakes to provide him such services.

Kate Shaw If patients or providers are not able to sue when a state prohibits Planned Parenthood from participating in Medicaid, as South Carolina purported to do here, then there almost certainly is no remedy at all. The other remedy, in theory, is that the federal government could deny a state their Medicaid funds, but that has never happened in cases where states don’t allow patients to see qualified providers, and it sure as hell not gonna happen right now. The other option is to challenge the exclusion in a state administrative process if a state has set such a process up. So the big fight, or at least one of the big fights in this case, is whether Congress is required to use what are sometimes called magic words in order to authorize private parties, in this case, patients and providers, to sue for a violation of a spending clause statute like Medicaid. So Kavanaugh wants to provide guidance, doesn’t think courts could figure out what rights creating language means without a list that the court provides. Basically like Congress has to say X, Y, or Z. or no ability to sue to enforce these provisions, the state’s lawyer kind of seemed to respond to that request for a list and offered a list that basically said a statute has to say rights, privileges, entitlements, or immunities would do. Which sidebar, immunities? That’s, here, it makes no sense. Well, that’s the language in 1983. I know, but here, but it just doesn’t make any sense, I don’t think, in terms of suing here. No, of course not. But in any event, so. The federal government lawyer kind of, the federal government was on the side of South Carolina here and basically agreed with that despite in their brief disavowing endorsement of so-called magic words.

Leah Litman The court’s previous cases make quite clear that no magic words, no specific words are required and the Democratic appointees were pretty quick to get the lawyers to admit that they were asking for magic words which should have been the end of the case, alas. Another big fight that was happening throughout the argument was whether there is confusion among the lower courts about the meaning of the court’s cases on whether private parties can sue. There is no confusion to be clear, you know, one Trump appointee in the case below. still agree that the law provided authorization to sue, kind of asked the court, you know, can you pretty please say that some of your earlier cases Wilder and Blessing are no longer the governing approach, even though that is perfectly clear, no court, no one is confused about this, no one uses those cases as the governing framework, and everyone understands what the Supreme Court said in Tolesky, that affirmed what the current approach is. And there were just these. totally wild moments during the argument for me where the lawyer for South Carolina, who was John Bursch at Alliance Defending Freedom, was like, I don’t know, I think Judge Wilkinson on the Fourth Circuit doesn’t really get the whole Supreme Court case law thing. It was like oh yeah.

You know a guy who who doesn’t know the law? Wilkinson. No idea. Clueless.

Leah Litman Right. Come the fuck on. Just sidebar. I do think it’s kind of weird that states are hiring and using ADF as their lawyers. That was a little odd.

Kate Shaw Was he the actual Michigan SG when he argued in?

Leah Litman Yes.

Kate Shaw Okay, he was. So yeah, so that’s not to say it’s not super weird, it is. So in my mind, he’s still a state Solicitor General, but he’s not, he is at ADF. So he was the Michigan Soliciter General. He actually argued in defense of a marriage restriction in Obergefell, but is now at Alliance Defending Freedom, but stepping back into this weird role as a state lawyer. You’re right, it’s really strange.

Leah Litman Yeah, another odd moment was when the federal government told the court with a straight face that the court’s opinion in Talevski caused the federal governments to change their position to say there is no right of action, whereas previously the federal Government said private parties, patients and providers could sue. That is wild of course, because Talevski said that private individuals could sue to enforce that statute and Justice Jackson, the author of that opinion was just incredulous. when the federal government was like, oh, yeah, we changed our view because of your opinion upholding a cause of action to sue for a spending clause statute. It was just it was wild. There was a clip I wanted to highlight, which was this week’s ASMR for me. And it’s from Justice Kagan

Clip The State has an obligation to provide this particular thing, right, which is the State has an application to ensure that a person, I don’t even know how to say this without saying right, has a right to choose their doctor. That’s what this provision is. It’s impossible to even say the thing without using the word right. Has a benefit to choose the doctor? The State to ensure individuals have a benefit to choose The state has to ensure that individuals have a right to choose their doctor, that’s what this provision is.

Clip Well, the language that you’re focused on may obtain is not clear rights creating language for four reasons.

Clip I want you to answer my question. The obligation is to ensure that individuals can choose their doctor. And when we speak of that, the obligation is, I mean, there’s a correlative right. There’s an obligation. There’s a right. And the right is the right to choose your doctor.

Leah Litman I love Elena Kagan dog walking, just lawyers, like the strong hand of Elena Kagen is, yeah, I enjoy those clips. That’s great.

Kate Shaw Actually, as to the discussion of the earlier cases that Leah mentioned, Wilder and Blessing, in light of that lemon discussion that we were just having in the Catholic Charities case, I kind of wanted to play this one, so let’s play it here.

Clip I didn’t think you did after Talevski, but when this case was GVR’d and Judge Richardson says what are we supposed to do as lower court judges when the court doesn’t say explicitly don’t file a wilder or blessing or right anymore, I think you do need to be more If you really want to put a stake in those cases, you’re going to have to do it writing just like you did with lemon.

Kate Shaw So first of all, as Leah was saying, the court has a spending clause case from what, three years ago? Talevski that everybody understands is a governing standard. This is a weird distraction. You need to write an opinion that says a whole bunch of stuff about Wilder and Blessing, but also do what in writing like you just did with Lemon because they actually weren’t at all clear in Kennedy about the status of Lemon. And so I’m not quite sure what Birch is asking for here apart from changing the subject from Talevski. He just doesn’t like it. That seems to be the problem. Okay, so that was the argument on the side of the state and then the federal government on the same side. Nicole Saharsky represented Planned Parenthood, did a fantastic job, so maybe let’s play a little bit from her opening.

Clip Mister Chief Justice, and may it please the court. As this case comes to the court, it is established that South Carolina violated the statute by denying Julie Edwards her choice of a qualified and willing provider. The only question is whether she can do something about it to sue under Section 1983. She can for four reasons. First, look at the text. It refers to individuals, any individual eligible for medical assistance. It gives them a right to choose their own doctor. They, quote, may obtain such assistance from any qualified and willing provider. and it’s mandatory, the state must do it as part of the federal state bargain. This language satisfies the standard that the court set out in Gonzaga and Talevski. It uses mandatory, individual-centric, rights-creating language. The only thing it doesn’t do is use the word right, and this court has repeatedly said that magic words aren’t required. Second, look at the context. Congress took this language from Medicare, which uses the same operative text. That text makes clear that it gives an individual the right to choose a provider. where it’s titled. free choice by patient guaranteed. The family planning provision, which comes right after the language at issue, confirms that this is a protected choice. The state, quote, shall not restrict the choice. Three, there’s no doubt about what Congress was trying to do here. It enacted this statute because states were artificially limiting the providers in Medicaid. And that’s the same thing that the state is doing now. And Congress made this an individual right because it recognized that when the state does that, it hurts individual patients. It is the individual’s right. It is not the provider’s right. And fourth, there is no alternative federal remedy.

Kate Shaw And then there was one more clip of hers I wanted to play which was there’s a lot of discussion about again what Congress has to say in a statute in order to create a right to sue and I thought she had a nice response about the term May in the Medicaid statute here.

Clip Well, I was just going to say, you know, there’s a suggestion I think from the state that like May is not strong enough language, but May is used in a lot of contexts to reflect like a protected choice or a right. There are a lot judicial review provisions, for example, like of the Federal Trade Commission orders or the SEC orders that say any person may obtain judicial review of such order by filing in a court of appeals.

Kate Shaw So I don’t know, I want to be optimistic about this one. I just actually couldn’t tell. I am somewhat heartened by the fact that I remember after the Talevski argument, we were so freaked out the court had taken the case at all. We were so worried coming out of the oral argument. And then the case is a 7-2 Jackson opinion. So I am taking some hope from that. But I’m not sure that the timeline is so much darker now than it was. I’m sure that is going to be that predictive. What did you think?

Leah Litman Yeah, I did not have a great sense coming out of the argument where it was going to go. And so we will see. And the court’s possible project of dismantling access to reproductive health care in a variety of states is related to some of the goings on in Article 2 that we had wanted to note. I wanted to play this super creepy clip of Trump at a presser Like, he continues to talk about fertilization and pro-fertilization, and it just gives me the heebie-jeebies every single time.

Kate Shaw That’s a good trigger warning for our listeners for what you’re about to play because it is one of the creepier things he said in quite some time and that’s, you know, that’s really saying something.

Leah Litman Yes. Yeah.

Clip We’re going to have tremendous, tremendous goodies in the bag for women, too. The women between the fertilization and all of the other things that we’re talking about. It’s going to be, it’s going be great. We’re joined today. I’m still very proud of it. I don’t care. I’ll be known as the Fertilization President, that that’s okay. That’s not bad.

Kate Shaw Let’s just move right on.

Leah Litman Yes, no.

Kate Shaw That’s not labor on it.

Kate Shaw Okay, the Senate last week confirmed Martin Makary, sorry I’m not sure if that’s the right pronunciation, to lead the FDA in which there is, you know, no chief tobacco regulator anymore, but who cares because we’re probably not going to do any regulating of tobacco anyway. So, as Mother Jones reported, after Dobbs, Makary went on air and described false information about fetus’s ability to feel pain in utero. He also peddled misinformation on abortion pills during his Senate confirmation hearing. and the group Catholic Vote celebrated Makary as a pro-life pick who would reverse FDA approval of Mifepristone. So this is an incredibly alarming confirmation.

Leah Litman Yeah, and there was another. The Senate confirmed Aaron Reitz to be assistant attorney general. During his confirmation hearing process, Reitz was asked about the Comstock Act, the 1873 Victorian-era law, and specifically about whether he thought the law could function or be enforced as a nationwide abortion ban or contraception ban. So on his questionnaire, he was asked, quote, Do you believe that those who mail abortifacients or birth control via the United States Postal Service, such as doctors, should be prosecuted? And he responded only, quote, I am committed to carefully reviewing these issues in consultation with other department attorneys and government agencies. Not a no.

Kate Shaw No, definitely not a no. And this is one of these things where the dog has not barked yet, two months and change into the administration, but now with these people in place, I don’t know if that’s gonna last. So in addition, the White House has announced enormous cuts to family planning funds, $35 million to the federal Title X program. As Jessica Valenti noted on her essential abortion everyday substat. Starting April 1st, California, Hawaii, Maine, Missouri, Mississippi, Montana, Tennessee, and Utah will receive zero Title X dollars. That’s also true of parts of other states. It is just a crushing blow to organizations to provide essential family planning care to low-income individuals.

Leah Litman Yeah, and this is another example about how this administration is also affecting access to abortion and health care in blue states, states that want to protect abortion, because the funding decisions are resulting in clinic closures in some states that protect abortion in their state constitutions or state law. So we have some other scattered developments in the world of law, law schools, law firms, just to briefly note. So the committee or a house committee sent a threatening letter to a clinic at Northwestern University’s law school, basically saying that their choice of clients was suspect and the committee wanted to investigate slash look into this and that that might be a threat to withdraw federal funds on that basis. Law firms, schools, media, unions, these are all sites of possible resistance and collective action that are being targeted. The administration had previously announced they are going to try to expand the exception from collective bargaining for more federal employees, basically prohibiting federal workers from having a union. Also recent reporting, we learned that it’s not just signal that Mike Waltz uses to conduct national security business. also apparently doing it on Gmail, you know, but his Gmail’s, I guess. Again, some positive news out of this. It not everyone is holding. So the president of Princeton, Chris Eisgruber doubled down on fighting the unlawful pressure campaign against higher education saying Princeton was not going to cave even though the administration announced it’s freezing some funds to Princeton. The university floated the prospect of actually issuing bonds to raise money and You know, we started out the top of the episode talking about trying things, you know, that might not work and being innovative. And I have really appreciated what he and Princeton are trying to do.

Kate Shaw Yeah, like he has really led and been a really important voice and I feel grateful for it. I don’t know whether this is what kind of news this last item is, it’s a mixed bag. The best we could hope for. I think that’s, I guess that’s right. So Judge Dale Ho, the good Judge Ho in the Southern District of New York, dismissed the charges against New York City Mayor Eric Adams with prejudice. So, these are the federal charges for corruption against our mayor. that the administration sought to dismiss without prejudice, meaning they could be refiled at any time, meaning they would hang out there like this sword of Damocles over the mayor’s head, inducing the mayor is cooperation with the federal immigration law enforcement and whatever other matters the federal government might want the mayor cooperation on. That’s what the federal Government tried to do. Judge Ho did not let them do that. So he did dismiss the charges. He basically found he could not. require the federal government to continue a prosecution. It no longer wished to pursue, which seems clearly right. But he did exercise his authority to direct the dismissal with prejudice. So he accompanied that dismissal with a 78-page opinion that is well worth reading. So we thought we would just offer a few choice excerpts. Maybe I’ll do a couple and then you do a few. I wish Melissa were here because she’s very good at dramatic readings of this kind of thing. So we will do our best to channel her. So, quote. If, in fact, DOJ’s immigration enforcement rationale amounts to a quid pro quo to extract policy concessions from the mayor, then it is difficult to imagine a more egregious example of the kind of prosecutorial harassment that this rule that, you know, requires judges to approve dismissals is intended to guard against. Such an arrangement will be bad for Mayor Adams, and it would be bad for the people of New York City, and the court cannot be complicit in it. You wanna do the next?

Leah Litman Yeah, so I thought Judge Ho described what the purpose of this ruling and the court’s process was. So quote, part of this court’s limited role is to shine a light on the reasons that DOJ has decided to dismiss this case, leaving the most important judgment to the public. He also debunked several of the. Arguments that DOJ was making here noting that the first rationale that there was somehow appearances of impropriety, quote, is unsupported by any objective evidence. Also writing about the U.S. Attorney’s Office decision to indict Adams said, quote there’s no evidence, zero, that they had any improper motives. And then finally noted, quote DOJ’s assertion that it has virtually unreviewable license to dismiss charges on this basis is disturbing in its breast. implying that public officials may receive special dispensation if they are compliant with the incumbent administration’s policy priorities. That suggestion is fundamentally incompatible with the basic promise of equal justice under law. So.

Kate Shaw He did, I think he did really important work, even though he was limited in what he could do under these circumstances.

Leah Litman Yeah, back to closing with optimism slash positive notes. So wanted to celebrate the fact that our terrific producer, Melody Rowell, has been nominated for not one, but two Webby Awards for a side hustle, a documentary series podcast she worked on last year in her spare time. That podcast limited series is called Less Radical, and it is about Dr. Bernie Fisher, the surgeon scientist who. revolutionize breast cancer treatment and fundamentally change the way we understand all cancers. So Dr. Fisher overcame anti-Semitic quotas to get into med school, and then later in life became embroiled in this performative misguided congressional hearing that destroyed his reputation and haunted him until his death. So Less Radical has been nominated for two Webbies. One is for best indie podcast, Limited Run. The second is for Best Podcast Documentary. And if you’re up for it, maybe consider listening to and then voting for the series in the Webby Awards. Again, this is less radical, nominated for Webby awards for best indie podcast, limited run and best podcast documentary.

Kate Shaw So listen to the podcast, vote for the podcast, and actually, going to the Webby Nominees website, I found really a cool way to learn about a lot of podcasts that I didn’t know about. And so it’s actually like an enormously awesome, but you can only get to the website if you register so that you can vote. So do that so you can vote for Melody, but also learn about a lot other terrific podcasts out there. Okay, last item. What did we read slash listen to in the last week we want to share? First, our friend Steve Vladek did a terrific kind of compilation of The track record in the courts of the Trump administration since January 20th, I relied heavily on it in the testimony I gave last week. Steve then testified before Senate judiciary the next day and he relied heavily it. It is just an incredible, indispensable public resource. And it also makes clear that the losses have spanned geography, they have spammed, you know, party of appointing president, like the administration is losing in court badly and consistently because it is doing lawless things, not because Judges are fundamentally hostile to the administration or overreaching. OK, second, Andrew Marantz has a great piece in The New Yorker called The Battle for the Bros. That’s largely about spending a couple of days with Hassan Pike, the streamer, who’s like the one dem voice in that space. And it was disheartening, but also lots of glimmers of kind of optimism piece that I really highly recommend. Two more quick things, Jack Goldsmith has a piece on executive functions, his substack with Bob Bauer. about Ed Martin, USA Dick, who I am happy to know there is actually pretty cross-ideological consensus about the unfitness of Ed Martin to be confirmed to be the US attorney in DC. Finally, Allegra Goodman’s novel, Isola, was the best escapist fiction I could possibly have imagined in the last couple of weeks. I read it for my book club. I highly, highly recommend it. It’s honestly, next time you’re going to travel, Leah, or even like to escape this Timeline. Really, it’s excellent. It’s historical fiction, which is, yeah. Okay, good. I think you’ll like this one. Um, actually, can I throw in one more? The most recent episode of this American life is has a bunch of excellent, excellent segments. One which involves like a dramatic reading of the hearing before Judge Reyes against the trans ban executive order by some actors. It’s great. Actually, the whole episode is great. It is called like the museum of now. Anyway, highly recommend that. So sorry, that was like five things, but all worthwhile.

Leah Litman So last week, I listened to and enjoyed Ariana Grande releasing Eternal Sunshine’s Deluxe edition. It’s called Brighter Days Ahead, kind of matches the optimistic energy of this podcast. I am obsessed with the song Dandelion. I also read Mallory McMorrow’s book, Hate Won’t Win. So Mallory is a state senator in Michigan. She just announced her candidacy for United States Senator. She is terrific, super exciting, loved the book, and again, like very optimistic. So look at me recommending optimistic things. Two other pieces, one is by Chase Strangio in Time called Why Trans People Must Prove a History of Discrimination Before the Supreme Court. I just thought interesting, important piece kind of drawing attention to how the court is approaching cases involving the trans community and transgender rights. The other piece is Marty Liederman at Just Security wrote a piece called Remarkable Things in the Government’s Alien Enemies Act briefs to the Supreme Court. I mentioned just one quick note about how misleading and troubling the Solicitor General’s brief in that case was. And I just thought this was a really thorough job doing important work showing just how fast and loose the administration is being with facts and law on these matters now before the Supreme court.

Kate Shaw Let me throw one more thing in, which is Leah’s piece last week in the Atlantic, how the Trump administration learned to obscure the truth in court. Like we lived through the first travel ban, the first Trump administration, but for listeners who didn’t follow this stuff that closely or were young then and are sort of getting read in for the first time, I thought that was a really, really useful and great piece, so highly recommend it.

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Kate Shaw Strict Scrutiny is a Crooked Media production, hosted and executive produced by Leah Litman, Melissa Murray, and me, Kate Shaw. Produced and edited by Melody Rowell, Michael Goldsmith is our associate producer, audio support from Kyle Seglin and Charlotte Landes, music by Eddie Cooper, production support from Madeleine Herringer, Katie Long, and Ari Schwartz, Matt DeGroot is our head of production, and thanks to our digital team, Ben Hethcote and Joe Matoski. Our production staff is proudly unionized with the Writers Guild of America East. Subscribe to Strict Scrutiny on YouTube to catch full episodes. Find us at youtube.com slash at Strict Scrutiny podcast. If you haven’t already, be sure to subscribe to Strict Scrutiny in your favorite podcast app so you never miss an episode. And if you wanna help other people find the show, please rate and review us, it really helps.

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