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Melissa, Leah, and Kate kick off by discussing the functional suspension of the Constitution in Minneapolis and Trump’s targeting of Federal Reserve Chair Jerome Powell. Then they dissect the arguments in a pair of cases that came before the Court last week about whether state laws barring trans girls and women from their schools’ sports teams violate the Constitution or Title IX. Finally, they break down new opinions from SCOTUS involving criminal law, the Fourth Amendment, and mail-in ballots.

Favorite things:

• Kate: You’ve heard about who ICE is recruiting. The truth is far worse. I’m the proof., Laura Jedeed (Slate); Remarkably Bright Creatures, Shelby Van Pelt; God of the Woods, Liz Moore; Ulysses at the Public Theater 
• Leah: They Were Ordinary Germans. We Are Ordinary Americans., Shalom Auslander (NYT); What to know about the Insurrection Act, Steve Vladeck & Allison Gill (One First); Can Trump Actually Use the Insurrection Act? Steve Vladeck and Jennifer Rubin (The Contrarian)
• Melissa: Nuremberg; Ammel vs. Sinema; This guy

 

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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 man argues against two beautiful ladies like this, they’re going to have the last word. She spoke, not elegantly, but with unmistakable clarity. She said, I ask no favor for my sex. All I ask of our brethren is that they take their feet off our necks.

 

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

 

Leah Litman I’m Leah Litman.

 

Melissa Murray And I’m Melissa Murray. And we are going to start today’s episode with some breaking news. We’ll then debrief last week’s arguments at the court, in particular the pair of challenges by transgender student athletes to state bans on their participation in school sports. And then we will wrap up with assorted legal news.

 

Kate Shaw Okay, on the breaking news front, we wanted to start by talking for a few minutes about the images and video that we are all seeing from Minneapolis right now. And we are a, you know, Supreme Court and legal podcast. We talk a lot and think a lot about the Constitution. And I don’t think it’s an exaggeration to say that the administration, the Trump administration has functionally suspended the Constitution in the city of Minneapolis. ICE is entering homes without warrants. And it’s not clear under the circumstances that any of the exception to the warrant requirement apply. They are brutalizing people for constitutionally protected speech and protest. They are engaging in obvious racial profiling. And in a pretty kind of amazing way, the people of Minneapolis are refusing to accede to this effort to unilaterally rescind the protections of the Constitution.

 

Leah Litman I’d say the people of Minnesota, because they are not just limiting themselves to Minneapolis. It is extending way beyond the city. And it just seems like the entire state is unwilling to let this happen. Very Minnesota nice or Minnesota noise, as I’ve been saying, like N-O-I-C-E.

 

Kate Shaw And for listeners who are newer and don’t know, that is, Leah does originally hail from Minnesota, so she knows whereof she speaks.

 

Leah Litman Exactly. Related, it has been reported that six federal prosecutors resigned Tuesday over a refusal to open an investigation into Jonathan Ross, the ICE officer who shot and killed Renee Good three times and the push to investigate. Instead, Good’s widow for ties to groups engaged in protests against the administration. Truly beyond ghoulish, the individuals who resigned include Trump’s hand-picked acting US attorney who was heading the investigation into public benefits fraud. That is part of what instigated the whole imbroglio in Minnesota. And of course, after we finished recording, news broke that these goons are launching investigations into other people who also aren’t the ICE officer who shot and killed a woman. The New York Times broke the story that Trump’s Department of Justice has launched a criminal investigation into Minnesota Governor Tim Walz and Minneapolis Mayor Jacob Frey for allegedly interfering with the enforcement of immigration law. How? Have they supposedly interfered with the enforcement of immigration law? Who the eff knows? I just want to say three quick things about this before getting you back to our regularly recorded program. One, if the federal government’s theory is the state is obstructing enforcement of immigration law because the state isn’t actively assisting our efforts to enforce immigration law, that doesn’t fly. Under the 10th Amendment to the Constitution, the federal governments cannot require state executives like a governor or a mayor. To enforce federal law. Now, state officers can’t obstruct federal law enforcement, but merely declining to participate in federal law is something states can do. You know who wrote the opinion that said that? No one less than the great man himself, Antonin Prince versus United States. These guys are targeting the governor and mayor. Make it clear, this is about political retribution. It is essentially a vindictive, malicious prosecution and investigation directed at an entire state, a political entity that is part of our constitutional system, a state that chose to elect people that Trump doesn’t like, and who have stood up to the ice goons. It really seems like the federal government is essentially attempting to force a regime change in Minnesota. I hate to admit it, I kind of joked, not joked but alluded to this possibility when I spoke to Beck Ingber after the president’s invasion of Venezuela. That is, whether they might try to engage in regime change elsewhere, including domestically. Let’s play that tape. At this point in the presser, he shifted to talking about D.C., Memphis, Chicago, New Orleans, leaving me wondering, like, given how quickly the goalposts are moving here, right? Hours ago, Mike Lee was saying, we’re in and out now, no, we are going to be running Venezuela. Like, are they also thinking about regime change in D. C., Memphis Chicago, new Orleans? Oof. Did not mean to manifest that. Three. The idea that you are criminalizing your political opposition is, of course, a hallmark of authoritarian autocratic regimes. Because we are a Supreme Court podcast, I can’t resist pointing out that it was the Supreme Court’s egregious decision in the immunity case that told the president, you have complete and total power over investigations and prosecutions. Does it matter if they’re shams? Does it matters if they are for improper purposes? You can do them anyways. Go at it, guy. And speaking of things, the Supreme Court is at fault for, back to our regularly recorded It is also because of the Supreme Court that federal officers think they are essentially beyond accountability in their tactics. The court has made it incredibly difficult to sue federal officials, even when they violate constitutional rights. I actually talked with Alex Wagner about this on Sunday’s Pod Save America. And the court bears a huge amount of responsibility for how.

 

Melissa Murray This playing out. And as all of this is playing out, the president of the United States decided to truth through it, his own version of the truth. He posted on Truth Social a threat to invoke the Insurrection Act, a possibility that we previously noted in our discussion of the National Guard case. It hasn’t happened yet, but it’s so rare that presidents invoke the Dissurrection Act that there’s so little case law on it and there’s not much. To say about the legal guardrails here. As Marty Liederman noted in our last episode, existing DOJ memos say that the application of the Insurrection Act is appropriate if the federal courts can’t function. That is not the case in Minnesota. Alternatively, it is appropriate in situations where, quote, those engaging in violence are either acting with the approval of state authorities or have, like the Klan in the 1870s, taken over effective control of the area involved. Again, not clear that that’s what’s going on here either.

 

Leah Litman Are pretty clear, pretty clear that it’s not. Like the predicates are not true, right? That was all understatement, jeez. Minnesota is not actively participating in any violence. Just the understatements. Which is, by the way, is non-existent, and also the state and local authorities have this under control. Sorry, I’m very triggered by this. Appropriately. Okay.

 

Melissa Murray This is a hot dish moment for sure. And if you want some more insight into this area of law, even though there is very little law here, Steve Vladek, a friend of the pod, Commander Steve Vlaadek did a great breakdown on Substaklev. Alison Gill, Mueller, she wrote. And we will post a link in the show notes. And of course, we will cover all of this if and when it comes to pass. The second piece of news we wanted to flag for you involves developments around the Federal Reserve. As we previewed last week and the second week of the January sitting, that is this week, the court is going to hear oral arguments in Trump versus Cook. That’s the case about whether the president has the power to fire Federal Reserve Governor Lisa Cook. And more broadly, it is a case about the future of Fed independence. Well, independent schmendence. Last Sunday, the New York Times broke the news that the Department of Justice had decided to serve several grand jury subpoenas on the Fed. And that the DC US Attorney’s Office has opened an investigation into Fed Chair Jerome Powell based on Powell’s Senate testimony regarding renovations to the Fed building. Y’all, we know what’s up here. It’s pretty clear that the president has been looking to go after Powell for a while. Powell has refused to literally drop interest rates to sub-zero levels so that the housing market can rebound in fine form. And the president is taking that personally. Wants lower interest rates to make the economy look better. And he wants to get back at Jerome Powell, I will say, for making him look like an absolute schmuck in a hard hat photo after the tour of the renovations took place. Sir, it’s not his fault you put the hat on. You did that. You did. But again, vengeance, thy name is POTUS.

 

Leah Litman Um, and also doing this literally on the eve of the Supreme Court argument absolute recklessness

 

Kate Shaw Regardless or performance art. Well, there’s more to say about that, but it’s either reckless or it just is clear evidence that like he wants it known that he is going that he knows no constraints and he is not cowed by the possibility of Supreme Court might.

 

Leah Litman Two things can be true at once. It can be reckless. On that note, Kate, it’s like doing it out in the open. And so people then say, well, he has the power because he is acting like it. And the court isn’t doing anything about it anyways. Unlike so many of Trump’s targets, Powell immediately fired back, posting a video Sunday night acknowledging that he’s been told he is under investigation and saying, in no uncertain terms. What the tea is, so we’ll just play that clip here.

 

Clip The threat of criminal charges is a consequence of the Federal Reserve setting interest rates based on our best assessment of what will serve the public, rather than following the preferences of the President. This is about whether the Fed will be able to continue to set interest rates, based on evidence and economic conditions, or whether instead monetary policy will be directed by political pressure or intimidation.

 

Kate Shaw I mean that was a pretty extraordinary video and I really do wonder whether and how it will color or maybe like even come up during Wednesday’s arguments in this case. Like you were just saying, Leah, it is so striking that Trump decides to go after Powell now, both like on the eve of the arguments and with Powell already scheduled to depart the chairmanship in May. Like it’s almost February like now, you know, in terms of the pending argument, like if the justices were inclined to say. We cannot probe the president’s motives. If he says he’s firing someone for mortgage fraud, we have to credit that. I do think that gets a lot harder, and this is the recklessness point, in the face of Powell just calling B.S. On the eve, essentially, of the argument. But I really do think that he had to realize that this could be potentially counterproductive to his legal chances before the court. And his having decided to do it anyway and to do now just feels like a pretty extraordinary acknowledgement. That his goal is sweeping away any and all constraints, and I just think this development very much ratchets up the already very high stakes and drama of the Cook argument this week.

 

Melissa Murray It’s so weird that he thinks that this court would be receptive to completely unfettering him. You know, it’s just weird.

 

Leah Litman Where do you get that idea? I don’t know.

 

Melissa Murray I don’t know. It’s so weird. The one thing I will say about Jerome Powell, did not know this guy had it in him. And I will just say, this was his love, actually, Hugh Grant moment. You know that scene in Love, Actually, when Billy Bob Thornton, as the president of the United States, hits on the catering manager that Hugh Grant, as The Prime Minister, is kind of liking, thirsting for? Crushing. Crushing is better. It’s a little more wholesome. Anyway, this is like when Hugh Grant’s like, You know, we’re a small country, but we are a mighty one. That we’re the home of David Beckham’s left foot and David Beckhams right foot like all of like that was Jerome Powell He’s like bring it like I’m Jerome Powell bitch.

 

Leah Litman Exactly.

 

Melissa Murray [AD]

 

Leah Litman So with that bit of news out of the way, we wanted to turn to last week’s oral arguments. The first case we’re going to discuss, first group of cases, is Little versus Hecox and West Virginia versus BPJ. This is a pair of cases about whether state laws, barring trans girls and women from their school sports teams, violate the Constitution or the federal Title IX statute, which prohibits discrimination in institutions of education and educational programs. Opening observations wanting to offer.

 

Kate Shaw So, it’s going to get grim, so I’m going to start with actually kind of a highlight, which is that I thought Kathleen Hartnett for Lindsay Hecox and Josh Bloch for BPJ were both excellent, like truly excellent. And they made a strategic choice to make clear that the asks that they were making were pretty modest, right? Neither. They were very explicit that they weren’t challenging the existence of sex-segregated sports teams writ large. They’re not even, and we’ll get to some clips that sort of, I think, explain this, but they’re not even really suggesting that schools must respect identity and self-determination of students. They’re just largely saying that for people like their clients who have transitioned, the arguments that states are offering about athletic advantage and unfairness are simply not powerful enough to justify a law that would prohibit these students from playing sports. Okay, so that’s like, you know, starting like on a high note. I also thought making the opposite point Hash Mooppan, who represented the federal government in both of the cases, I thought made some of the most offensive statements I’ve ever heard from the SCOTUS lectern, and we will get into those.

 

Leah Litman I agree with both of those observations. Remarkable achievements on both sides. Kathleen Hartnett and Josh Block maintaining poise and having answers to all questions in the face of a hostile bench. And I think potentially making some headway and warding off some possible ways this opinion might go. And then on the other side, HashMooppan managing to be, I think, the most transphobic person in a courtroom where Sam Alito had the floor for almost four full hours. We have to salute it. It’s really.

 

Kate Shaw An accomplishment I did not think could be done.

 

Melissa Murray So I will just note that, as predicted last week, they went straight out of the gate with an effort to recast Title IX as requiring discrimination against trans people in order to secure equality for women. And that’s the new sex equality. I think we have to sort of think about it in those terms. So we are undergoing a real shift in how we think about constitutional sex equality, statutory sex equality, and Part of it, I think, requires the inequality of other groups in order to assert women’s equality. And I’ll say more about that in a minute. This is, I thing, more of an observation about just the tenor of the argument and trying to draw connections with other kinds of fights that we’ve seen over the last couple of years. There are no new ideas. So the conservative legal movement has worked for years to undo the civil rights gains of the last half century. And affirmative action is sort of a perfect case in point. For years, they pressed and pressed this idea that affirmative action was really about reverse discrimination against white people. And the court resisted that, not mightily, not strenuously, but enough that it permitted the limited use of race in college admissions for about 50 years or so. But then the conservative legal movement got a better idea. Don’t focus on the harms to white people, find some third group, another minority group, and transform the fight into one that actually fractures. The social justice coalition of minorities by creating a wedge. So in this case, a front of action, Asian-Americans become the third group and they are pitted against black and brown people in the fight over race-conscious admissions that had originally been about white people getting discriminated against. So it becomes like a third way. The same kind of thing is happening here. They haven’t been able to roll back the gains that the women’s rights movement have made. And that’s not surprising since The whole idea that men are being discriminated against when they literally control almost everything doesn’t seem to really be a good argument. Does Josh Hawley know this? At least not a persuasive one. Give it time, I guess. But instead, what they’re doing is finding a third group to fracture the feminist coalition. And the group is trans people. I don’t even know how to say this in a way that is entirely coherent. I hear all of the brickbats that have been fired against people who argue that these arguments about women’s protection are really problematic. I got a ton of these mentions on social media last week. If you think this is just about quote unquote protecting women and there are no costs to sex equality, like you’re delusional. When you start protecting women, like you are back in 1908 and Mueller versus Oregon and there’s just going to be a raft of laws all predicated on the idea that women have to be protected from everything, from work, from school, from having a job, everything. And that’s not sex equality. And so if you think our fates are not intertwined here, you’re really missing the boat.

 

Kate Shaw Yeah, no, it’s totally coherent and I think it’s just like an incredibly compelling linked fates argument, right? Like it is, the strategy is to fracture the coalition. It is imperative for women’s rights, trans rights, repro rights communities to sort of knit our fates together because I do think that they are trying very hard to drive between those groups and those rights claims.

 

Melissa Murray Well, it’s working.

 

Kate Shaw Okay, so I guess on that we should probably turn to the substance of the oral argument. And there were a bunch of themes that we wanted to highlight. The first is a little bit technical, but I do think it’s important to spend a couple of minutes on it, which is sort of what about as applied challenges? This is something that came up a lot if you listen to the oral arguments. So there was a good deal of discussion about like, what is the nature of the constitutional challenge that these students are bringing? Like how should we conceptualize it? And what does that mean for the proper standard of review? So how courts should actually assess these state laws. The plaintiffs describe the case as essentially an as-applied equal protection challenge. And as I said kind of at the outset, right, everyone agreed that in general terms the existence of sex-segregated teams doesn’t violate the equal protection clause, and you know, separating girls and boys into separate teams does satisfy the intermediate scrutiny that applies to any sex classification. But the plaintiff’s argument is that the reasons for keeping teams segregated by sex just cannot justify excluding individuals like the plaintiffs in these cases.

 

Leah Litman Maybe just a quick primer on as applied versus facial challenges. When you challenge a law on its face, you are saying the law can’t be constitutionally applied to anyone. A statute that bars speech annoying the president can’t constitutionally be applied to anyone because the standard it adopts is an invalid one. Whereas in an as applied challenge, you’re saying the lock could be constitutionly applied to some people, but not others. You and others similarly situated. Just as an example, a lot of courts have entertained as applied Second Amendment challenges to laws prohibiting firearm possession by people who are convicted of felonies. If you were convicted of a felony that doesn’t make you dangerous in the court’s eyes or a greater risk with a firearm, the law might not be constitutional as applied to you, courts have said. But if you were connected of attempted murder with a fire arm, then it’s probably OK to prohibit you and people like you from possessing a firearm.

 

Kate Shaw Leah describes this data the law accurately and actually like that explanation was I think actually very clear and accessible I will say sometimes the distinction is more slippery than that and frankly It does not ever make perfect sense to me. So if you find the distinction in general terms confusing I’ll just say you’re definitely not alone

 

Melissa Murray You’re not alone. I will note, though, that I’m old enough to remember when the conservative majority was absolutely fine with as applied challenges, like say in 303 Creative versus Alenis, when it framed the challenge in 302 Creative as an as applied challenge in order to insulate a website designer from the force of Colorado’s anti-discrimination law without actually having to say that, in fact, what they were doing was granting a broad license to everyone to discriminate against LGBTQ. Plus people. The dissent in 303 Creative basically said this is not an as applied challenge. You’re basically making a facial rule and facial determination. But the court was really into it on that particular ground. So again, they’ve been good on as applied challenges in the past.

 

Kate Shaw Until next time!

 

Melissa Murray In any event, the state and the federal government in this case seemed to be making an argument that the plaintiffs could not bring a claim of this sort under the Equal Protection Clause. And there was a bunch of debate about how to understand some of the court’s equal protection cases. And even Justice Kagan at one point mused about this describing the, quote, surprisingly unanswered in my mind equal protection question about what an as applied equal production challenge is and whether they exist. Although she also said it would be very wrong to craft some sort of bar as to as applied challenges in the context of equal protection, but she definitely floated the idea that it was a little sort of tenuous that it could exist.

 

Kate Shaw Well, or that the court’s cases just haven’t been that clear about, like, what kind of they are, you know, spend most of their time talking about the substantive constitutional question. And when you sort of go back to them, you can make arguments like we should understand this as an as applied or we should it as a facial challenge. I mean, Josh Block, who was BPJ’s lawyer, suggested actually that this facial versus as applied distinction needed to be rethought in the wake of the CASA case, the one that dramatically limited the ability of federal courts to issue nationwide injunctions. I don’t know that needs to be totally rethought, but I do think that the question, the fact that there was as much airtime given to this sort of first order question of whether as applied equal protection challenges even exist, was very concerning to me. Maybe they just exist for the First Amendment challenges against equal protection law. And men, yeah. The law as applied to men. Well, I mean, don’t say that though, because they do say overbred is okay in the First amendment context, but not elsewhere. Yeah

 

Leah Litman So I think it would be helpful for courts to clarify what facial challenges mean in a post-casa world. But the idea that they are going to say you can’t do as-applied challenges here or as- applied challenges are somehow disfavored and more limited than facial challenges is deranged, like a total about face. The law until now has been that facial challenges are disfavor because they result in the total invalidation of a law. And the idea that they’re going to carve out an exception for equal protection claims on sex discrimination because they really think discrimination against trans people is OK is, I think, so damning. Just an additional note on the whole as applied challenge thing, the states of federal government and the plaintiffs seem to want to cohere around a principle along the lines of you can raise as applied sex discrimination claims as long as you are doing so on the basis of a sufficiently large group. That is, you can’t say this law is only unconstitutional as applied to me. You’d have to say this laws unconstitution as applied to this. Sufficiently large group I’m part of. Now, the plaintiffs obviously say trans women and trans girls are such a group, whereas the state and federal governments say they are not. To which I say, how can it be that trans women and girls are a such a big group that it’s super unfair to cis women to allow them to play sports, but not so big that they can raise as-applied equal protection challenges? Riddle me this. Also, like the conceptual flaw they identify in as- applied equal protection challenge applies to literally every area of the law, Because their beef is that Sex discrimination claims are reviewed for intermediate scrutiny, which means the law doesn’t have to be a perfect fit to absolutely everyone. It’s only problematic if it doesn’t fit with a sufficient number of people. You know what other challenges are reviewed under intermediate scrutiny? Some First Amendment challenges. Also, I didn’t realize the wedding website designer in 303 Creative was part of this like vast group of people that like really don’t want to design websites for like same sex weddings, like- Or all the parents of my m-

 

Kate Shaw All the parents of Mahmoud versus Taylor who are just fine with the storybooks. Like the list is so long and it’s just very hard to see any other explanation. But the, you know, the claims that they’re sympathetic to get to go forward. The ones they’re hostile to don’t. It’s like that actually that’s that’s called law. Yes.

 

Leah Litman Yeah, and because these guys like nothing more than slamming doors to possible constitutional claims they don’t like, maybe they will say you can’t bring these as applied equal protection claims at all. Again, all fates intertwined. Don’t manifest, yes. Oh, I’m not manifesting that. They were making that clear.

 

Melissa Murray Well, don’t encourage it. So another theme that was very evident at oral arguments is that the Democratic nominees know they’re losing this case, and they were scrambling to contain the blast radius of whatever this decision is going to be. And they were very explicit about it, more so than usual, especially Justice Kagan. At one point, she asked the government’s lawyers to help them think through. What the limiting principles would be so that the athlete’s loss in this case would not reverberate more broadly than was necessary. So here’s a clip of that.

 

Clip So, if we didn’t want to prevent a different state from making a different choice from West Virginia, what should we not say or what should we say to prevent that from happening?

 

Melissa Murray And let’s use that Kagan clip to take us to a closely related theme. And that theme is, what happens next here? If the states win, obviously that’s awful news for trans student athletes and basic principles of equality. But what else does it mean in terms of real world consequences?

 

Leah Litman As Justice Sotomayor suggested, it would seem that by upholding these laws, the court would be watering down the standard applicable to sex discrimination, essentially allowing states to engage in some sex discrimination that might strike the justices as reasonable or rooted in biology, or not so bad, as some of the justizes in dissent had previously suggested. You can hear that here.

 

Clip You’re asking the court to adopt views expressed by two minority dissenting judges in this case. We’ve been doing an awful lot of that lately. You’re smiling because it’s true.

 

Melissa Murray So basically, what this would mean is that constitutional scrutiny and sex discrimination cases would not change as a formal matter. It would remain nominally intermediate scrutiny. And the intermediate scrutiny standard requires that a sex-based classification can be upheld if it is substantially related to an important governmental interest. But the question would be, would courts accept justifications rooted in stereotypes or assumptions that claim to be rooted in biology? So that’s kind of a complete reworking of the extant doctrine, and I think one that is very complementary to what the court did in scrimmety when it completely reframed what it means to have a sex-based discrimination or not. So this is all of a piece, and, I think, part of a bigger. Project and trajectory to completely unwind sex equality constitutionalism. Absolutely.

 

Kate Shaw And kind of on this sort of what comes next point, there is very much the possibility, in addition to kind of this potential doctrinal overhaul, but the specific kind of litigation possibility, which Melissa, you referenced on our last episode and at the beginning of the conversation today. That the lower courts and ultimately the Supreme Court will be quickly faced with the argument that Title IX and or the Equal Protection Clause of the Constitution not only doesn’t require, but actually forbids states from allowing trans girls and women to play girls and women’s sports. This is something Kavanaugh asked about a lot. And, you know, actually not in the kind of let’s hurry up and decide the kind maximalist, yes, Title IX requires exclusion. In all cases, spirit. So let’s play his question of the Idaho lawyer and then that lawyer’s response.

 

Clip And those states who do allow it, are they, is your position that they are violating the Constitution, the Equal Protection Clause, rights of biological girls and women by allowing that or do you say that’s up to each state to decide and that the Constitution gives discretion to the state whether to allow it or not to allow?

 

Clip I have not yet been persuaded by a constitutional theory that would let us use the Equal Protection Clause to impose our policy on other states in this matter.

 

Melissa Murray All right, that was Idaho’s lawyer. West Virginia’s lawyer also gave a similar answer. Then the federal government’s lawyer, Hashim Mooppan, made clear that they in fact already are seeking to bar states from allowing trans athletes to play. So let’s roll that tape.

 

Clip Mr. Mooppan, you talked about you are litigating this case the opposite way among states that do not prohibit trans women and girls from participating in sports teams, is that correct? Yes.

 

Melissa Murray So note here that the lawyers for the states of Idaho and West Virginia are saying, we are not taking a position that California has to bar trans athletes. But the federal government is signaling pretty clearly, hold my beer folks, once we win this case, we’re coming for all of the 23 states that still allow these athletes to play. So that’s one end game. It’s called federalism.

 

Melissa Murray The new federalism, our federalism.

 

Kate Shaw There was this moment which was like, I wonder, I couldn’t, I don’t want to like too charitably read those state SG responses, but they actually did kind of seem to be channeling a little like genuine, not sarcastic, but real federalism to say like, but maybe that’s me being too charitable. No, no, I think it’s because like-

 

Melissa Murray They’re not in court every day for this administration.

 

Melissa Murray Administration are going for the maximalist position. They’re still in like real law land where you’re trying to convince courts to like do something modest and incremental.

 

Leah Litman Federal government not they don’t litigate frequently enough before the Supreme Court.

 

Kate Shaw Understand that the game has changed. Totally, that might be right. Yeah, those were surprisingly normal answers that both gave.

 

Melissa Murray And Hashim Mooppan was like…

 

Kate Shaw No, no, that’s not. Let me show you how it’s done now. Go bigger, YOLO. Yes, okay. So also in the realm of the next case, not the next case out of California, but just kind of the next case in sort of more general terms, Justice Barrett had an interesting exchange with the West Virginia Solicitor General, which kind of reminded me of colloquy she had in both Bernovich, the Voting Rights Act case, and 303 Creative, which we’ve already talked about. So much so that I think this is actually now kind of a move of hers, although I think not deliberate. Which is she gets an advocate on the side that she is likely to vote with to say some pretty crazy and unhelpful, if I think unhelpfully, things. So here she is posing a question about sex-segregated math class, and Kagan then jumps in to bring in chess. So first let’s play this kind of puzzling, at least puzzling in the responses exchange.

 

Clip I just wanted to ask if on your understanding of Title IX, you could have separated bisects classrooms in biology or a math based on some evidence that you have that say men are better at math and science. What are the limits to your Title IX theory?

 

Clip So I think your instinct there, in part, arises from the fact that we’re skeptical of any notion that there are inherent differences. I want to kind of acknowledge the real reality of this. Well, you’re whole.

 

Clip Well, your whole position in this case depends on there being inherent differences, right?

 

Clip It does.

 

Kate Shaw Okay, maybe he just flipped what he meant to say. I’m not positive. Anyway, let’s now play this clip, which was Kagan jumping in to follow up.

 

Clip A chess distinction, I think, again, might fail because there’s an actual lack of evidence of meaningful physiological differences that are reflected in the existence of the express regulations in the athletics kind.

 

Clip I mean, I think a lot of people would say, you know, if you look at the ranks of chess grand masters, there are not a whole lot of women there. And, you know, what does that mean? Well, well, I, you know, I I think that there’s a sort of intuitive, I think there are a lot of chess grand masters who would tell you that women just like, for whatever reason, they’re, you know, they don’t, they not very, they are not as good as this.

 

Clip I think chess is an interestingly closer question.

 

Leah Litman Neil Gorsuch tried to step in and do damage control, which deprived me of one of my few joys in listening to Supreme Court arguments, which is hearing Elena Kagan just absolutely flay some dumbass who’s like, yeah, sex discrimination is cool, unclear if his damage control worked. So ladies, maybe pack up your chessboard. States might be telling you, you’re out of luck.

 

Kate Shaw Queen’s Gambit was such good fiction back when it, back when we last did, isn’t that great?

 

Leah Litman Speaking of Neil Gorsuch interventions, more Neil Gorsich interventions, he came back to one of his pet projects, the spending clause. So Gorsach seemed to be interested in exploring whether the court could decide this case by finding that because Title IX is spending clause legislation, that is, it’s essentially a condition attached to money from the federal government, that a special clear statement rule applies, and states would have to be on super clear notice that they couldn’t bar trans girls and women, and that here. Title IX doesn’t give that sort of notice. So last term in Planned Parenthood versus Medina, the court, in an opinion by Neil Gorsuch, did some real work to make the spending clause great again, by which I mean make it very difficult for plaintiffs to successfully challenge government action when spending clause legislation is in the mix and the basis for the plaintiff’s claim. That was the case involving the Medicaid statute. The court seems poised to escalate that even further in a case that’s pending this term, Landor versus Louisiana Department of Corrections, case involving Arlupa, the Religious Land Use and Institutionalized Persons Act. That’s a federal law against spending clause legislation that governs, among other things, religious rights of institutionalized persons in states.

 

Kate Shaw But kind of interestingly here, in part because the federal government really kind of tried to dissuade the court from going down that path, didn’t seem likely that there was much interest in the spending clause theory. Possible Gorsuch writes separately about it, but I didn’t think anybody else seemed particularly interested.

 

Melissa Murray [AD].

 

Melissa Murray Let’s take up another theme. I’m going to call this one, who’s the biggest transphobe in the room? And I’m gonna say it was a tough competition. Obviously, one contender was front of the pod Sam Alito. Going in, I think the smart money was on him as the winner of this particular contest. I’m to play one clip where he is serving up what I think he thinks is a gotcha question for Kathleen. Hartnett about all the many boys who announce that they are trans purely to get on the girls team as one does.

 

Clip All right, suppose this school that has a boy’s, let’s say, track team and a girl’s track team, the school has that. And a student who has the genes and the reproductive system of a male and had those at birth and has never taken puberty blockers, never taken female hormones, never had any gender-altering or affirming surgery, says, nevertheless, I am a woman, that’s who I am. Quick, can the school say no, you cannot participate on the girls’ team?

 

Clip Sorry, so you’re just a birth sex male who has all the advantages of birth sex male hormones and can the school bar him from the woman’s team? Yes, they can.

 

Clip But that person, is that person not a woman in your understanding? The person says, I sincerely believe I am a woman. I am, in fact, a woman, that person is not a women.

 

Clip And here’s Hartnett’s response. I would respect their self-identity in addressing the person. But in terms of the statute, I think the question is, does that person have a sex-based biological advantage that’s going to make it unfair for that person to be part of the women’s team? And that’s the rationale for the regulation. And so that’s why we would be testing that. Well.

 

Leah Litman This is an example of the excellent advocacy. It reminded me of the moment where, or many moments, honestly, where he thought he had a gotcha for Biden Solicitor General Elizabeth Prelogar, like when he asked her, is a raw egg and a green pepper and some ham and omelet? And she was like, no, bitch, it’s not, because it could be other things. She didn’t actually say that. But anyways, Kathleen Hartnett’s response, she just sounded to me in the same register. Another possible contender for many. Um is Clarence Thomas, who also piped in with a hypothetical about the individual male who is not a good athlete, maybe a lousy tennis player and doesn’t make the team. And then he says, how is that different from what you’re being required to do here?

 

Melissa Murray Another theme in all of this, I think, was more subtle. And again, it reminded me of the way the court used to talk about same-sex marriage before Obergefell, this idea of kind of counterfeiting and fraud, which is really interesting in the way the administration is now talking about fraud in the context of DEI and civil rights, what is happening in Minnesota. But there was this real undercurrent in the oral argument that. Effectively, everyone who is transgender is perpetrating a kind of gender identity fraud. And we are here to call them out on it. And it was just like really striking and deeply concerning.

 

Kate Shaw Such a good point. And also, there were a couple of explicit moments, I think, when both Kathleen and Josh said something along these lines. But it’s all predicated on this idea that there’s the good teams and the bad teams. And the good team are the boy teams. And if you can’t get onto the boy team, then maybe you take a run at getting onto the girl teams. And obviously, there are fraught questions about athletic advantage. But that’s also just not true with respect to every sport. There are different rules with respect of the sports, like there’s not. You know, a team for girls and boys in every sport. It was just like the predicate was also just wildly often and pretty offensive. But obviously, when does that stop them? OK, but let’s cut to the chase. In terms of the award, I think, as I said at the outset, it has to go to Mooppan, who argued on behalf of the federal government. I, you know lost track of how many times he used the phrase biological males. It felt like he was kind of dripping with contempt at a number of moments during the argument. Maybe the kind of real lowlight was his reference to gender-affirming care as, quote, performance-altering drugs, as in this clip.

 

Clip And yes, we don’t think a man taking performance-altering drugs is similarly situated to a woman.

 

Kate Shaw That’s the whole counterfeiting thing. Yeah, no, the fraud point and connecting to all these other fraud narratives, I think is really profound. And also like- Also, who the fuck takes estrogen?

 

Leah Litman As a performance-enhancing drug.

 

Melissa Murray Better tennis.

 

Kate Shaw Literally, as Melody said in a text team, we were all, as she was like, right, estrogen famously performance enhancing. Like these are people who are literally blocking testosterone and sometimes taking estrogen. That’s the performance enhancer. Which on the logic of these guys, if testosterone is the thing that gives you this enormous advantage, like how does this even cohere in their own minds? I could not tell you.

 

Melissa Murray Maha, make America happy again. Exactly. Exactly.

 

Leah Litman Another moment that triggered my gag reflex was when Mooppan decided to debate whether girls do develop faster than boys, as you can hear in these clips.

 

Clip What about the hypothetical I posed earlier, that… When it comes to high school performance, girls are sure a lot better than boys, and so we’re only gonna have remedial classes for boys and girls who aren’t free to attend.

 

Clip So I don’t think those differences are based on inherent biological differences. I don’t think the sort of pseudoscience you’re suggesting has been baked in. Well, it’s not pseudo, it is good science.

 

Clip That’s pseudoscience to say boys’ brain development happens at a different stage than girls’

 

Clip Well, with all respect, I don’t think there’s any science anywhere that has suggested that these sort of intellectual differences are traceable to biological differences.

 

Melissa Murray I’m going to call someone out for the Herculean efforts that he made during this oral argument to not be in the pool of those considered the most transphobic person in the room. And that is our boy, Coach Kavanaugh, a father of daughters. Not surprisingly, he did not want to be the most transphobic person in that room. And he did his part here to stay off that list by reminding us of his. Ardent love for sports and by making sure we knew that although he’s very definitely going to vote against trans athletes, he’s very, very torn up about it. Let’s roll the tape.

 

Clip I asked a question on the law on Title IX. I mean, I hate that a kid who wants to play sports might not be able to play a sports. Hate that. But it’s kind of a zero-sum game for a lot of teams. And someone who tries out and makes it, who is a transgender girl, will bomb. From the starting lineup, from playing time, from the team, from the all-league. And those things matter to people big time. We’ll bump someone else.

 

Melissa Murray There’s so much more along these lines. Like, this is really tough for me, guys. He hates it. But.

 

Kate Shaw It kills him.

 

Leah Litman I did so tough quit, right? Like, come on, stop whining. You’re making-

 

Melissa Murray making me do this.

 

Melissa Murray Anyway, Josh Block had some great responses to this, so we’re going to play two of them here.

 

Clip I completely understand that many parts of sports are zero-sum, but this law isn’t limited to zero-some opportunities. So BPJ played on the cross-country team where there were no cuts. She came in near the back. I just want to say that there still are some areas where there are win-win solutions. I think even being able to be on practices with a team consistent with your gender identity instead of your sex assigned at birth can be enormously important. So, I think… Some scenarios are zero sum, but not everything having to do with sports is. And I do think that one of the vices of this law is that it sweeps so broadly that even win-win solutions are taken off the table.

 

Melissa Murray One other thing to flag in all of this is, what did we make of Justice Gorsuch surfacing the argument that transgender individuals constitute a discreet and insular minority so some sort of heightened scrutiny is appropriate here? Because obviously, we didn’t have visual of the courtroom. We only heard audio. But don’t you think that Sam Alito and Amy Coney Barrett were like, excuse me, we’ve already decided this? You did this in Skrmetti. Like, where were you? Silent again?

 

Leah Litman The sea witch had his tongue, as you all want to say. So here’s one theory, which is in the preceding clips with Mooppan debating whether girls do develop faster, that caused Neil Gorsuch to interject, that’s not pseudoscience. And a part of me wondered if Mooppans was so offensive. He was potentially like turning Neil Gorsuch, our literal stop clock, into like transitory moments of sanity. Well, let’s play a clip. Please, no, but he was saying in the- No, I don’t.

 

Kate Shaw He was saying in the opening with the Idaho lawyer, which was before Muppet’s argument. So I’m sorry. I know. I don’t think that’s…

 

Melissa Murray Can I play the clip?

 

Melissa Murray Seriously, I have genuinely been noodling on this because I thought the conservative block was all sewn up on this question. So here’s Justice Gorsuch.

 

Clip There’s another way to think about the case that your friends on the other side posit, and that is that transgender status should be conceived of as a discreet and insular class subject to scrutiny, heightened scrutiny, in and of itself, given the history of de jure discrimination against transgender individuals in this country over history in immigration and family law, cross-dressing statutes. They give a long laundry list and I’d like you to respond to that.

 

Melissa Murray Did you hear that? I mean, it almost feels like it’s like, let’s rethink this whole suspect class.

 

Leah Litman Or, or it’s a just tell me what to say, right? Like I’m teeing you up a softball and you just tell me why, you know, this won’t matter. I don’t know. That’s kind of how I honestly read it.

 

Kate Shaw And we don’t have, we’re not gonna play this clip, but you know, there was a concession, the Idaho lawyer, like again, like these are tiny little, I suppose, slivers of sanity, but did concede that there is a history of discrimination against transgender people. So I guess.

 

Melissa Murray And Amy Coney Barrett was like.

 

Kate Shaw Was it by law? Was it law? Hartner was, you know, didn’t address her directly on this, but definitely was, like, came to the receipts about actual immigration exclusions, state and local laws criminalizing cross-dressing. I mean, she had the actual laws ready to cite to them. Um

 

Leah Litman closing thoughts. So it seems like, at a minimum, they’re going to say Title IX doesn’t prohibit state laws that ban trans women and trans girls from sports. Because sports, that will be their reasoning that Title IX allows sex differentiation in sports and restrooms under more lenient standards than elsewhere. I think there’s a small, maybe, outside chance that the excellent lawyering and advocacy by Josh Block and Kathleen Hartnett and the really strategic, in my view, interventions by the Democratic appointees. Might, and again, might be wish casting here, might lead the court to say, we’re not going to address the Equal Protection Clause issue now and instead send it back down for more fact finding, which is what the Fourth Circuit did in the non-moot case, West Virginia versus BPJ. So there’s, unfortunately, another Kavanaugh moment I wanted to flag. It’s OK, Leah. This is your podcast. You can do that. One last clip.

 

Clip And I think one of the themes of your arguments, Ben, the more people learn, the more they’ll agree with you. At least I’ve detected that theme in your argument. So why would we get involved at this point in constitutionalized?

 

Leah Litman He is basically saying to the plaintiffs, so it sounds like you think you’re right. Why isn’t that a reason you lose? Since people will be persuaded, except us. I honestly, I’m listening to this argue.

 

Kate Shaw And he’s like, I didn’t get a chance to dissent in Obergefell, and so this is my chance to really do it. Exactly. Exactly. Let’s not give the rights because maybe at some point states might decide to do it. It’s sort of a TLDR.

 

Melissa Murray Can I offer a hot take? Yes. I think this might actually be even bigger. I think they may go bigger with this case. I do. Part of it is the way what he said and how he said it. But also, I think you can’t understand this case without also thinking about what is happening in tandem with the executive orders, like protecting and defending women and girls, the stuff about gender-affirming care. It just seems like the road is wide open, and they are not going to be constrained by public opinion, whether it’s with what the executive branch is doing or what might come out of the courts. And so they could genuinely go big here. All of those executive orders that have been issued, they’ve been challenged, but mostly on procedural grounds, not on the substance. It’s a lot of APA challenges. Right. Not on the substances, like the sex equality questions. They’re all inconsistent with. What has been extant sex equality jurisprudence. And so I just think there is a wide open lane for them to really begin the project of dismantling sex equality. And this is a very good vehicle for doing that.

 

Kate Shaw And they think that sports is safer than other domains.

 

Leah Litman Yeah, that could be. So I just wanted to touch on a piece of news that underscores the anti-trans fervor we are living through, which is right-wingers seem to have preemptively ousted the recently announced dean designate of the University of Arkansas Law School. So after announcing Professor Emily Susky as the next dean, the school announced that after receiving feedback from key external stakeholders, Thank you to all of you. Thank you again. Thank you everyone. Bye! The university decided to go in a different direction. Well, the Arkansas Times reports that the disagreement arose from right-wingers opposition to Suski’s signing amicus briefs in support of trans athletes’ sex discrimination claims. And an adjunct at the university said conservative elected officials had threatened to withhold funding if Suski became dean. Academic freedom. But those poor men, am I right? Freedom, F-R-E-E, D-U-M-B.

 

Melissa Murray Strict scrutiny is brought to you by Fatty 15. Listeners, as you know, I’m an older person on this podcast, but I got to hang with these young people. And so I have to be in optimal form. I can’t suffer from poor sleep. I can have a lack of energy. I can not have stiff joints, abnormal blood work, or anything else. I really want to be and feel my best. That is why I’m excited to share with you C15 from Fatty15, the first emerging essential fatty acid to be discovered in more than 90 years. It is an incredible scientific breakthrough to support our long-term health and wellness, and you guessed it, healthy aging. Based on over 100 studies, we know that C15 strengthens our cells and is a key healthy aging nutrient, which helps to slow down biological aging at the cellular level. In fact, when our cells don’t have enough C15, they become fragile and age faster. And when our cell’s age, our bodies age too. Thankfully, FATI-15 repairs age-related damage to cells, it protects them from future breakdown, and it activates pathways in the body that help regulate our sleep, cognitive health, and natural repair mechanisms to support overall health. FATi-15 is a science-backed, award-winning, patented 100% pure C15 supplement. It’s vegan-friendly, free of flavors, allergens, or preservatives. By replenishing our cells with the crucial C15 nutrient, FAT15 effectively repairs cells reverses aging at the cellular level and restores our longterm health and wellness. Fatty15 is on a mission to optimize your C15 levels to help support your longterm and wellness, especially as you age. And you can get an additional 15% off their 90-day subscription starter kit by going to fatty15.com forward slash strict and using code strict at checkout. OK, let’s briefly mention the other two cases that the court heard from last week. They heard oral arguments in what was a pretty interesting interstate sovereign immunity case, Gallet versus New Jersey. This involved whether the New Jersey transit is an arm of the state of New Jersey, in which case it would be immune from suits in other states, Or whether it is a corporation separate from the state and thus can be sued in other states’ courts. This is actually two consolidated cases both brought by individuals who were struck by New Jersey transit busses, one in Manhattan and another in Philadelphia. The New York Court of Appeals, which is the court of last resort in New York state, despite its name, it’s not an intermediate court, it’s actually New York’s version of the high court. And it allowed the case to go forward in New York on the grounds that New Jersey transit is not an arm of the state. The Pennsylvania Supreme Court, by contrast, went the other way and said it was an arm in the state, so it’s a sort of a split between these two different state high courts.

 

Kate Shaw And the argument was quite interesting. The truth is there are a lot of threads supportive of each side in the court’s cases. And it’s like a pretty complex factor heavy test that the earlier cases have announced. So I honestly don’t know which way this case will come out. But I did want to play one short clip from Justice Kagan. So there was some debate about the relevance of a case that we have talked about a lot on this show, Biden versus Nebraska, in which the Supreme Court struck down the Biden administration’s student loan forgiveness plan, but only after finding that a group of red states headstanding to challenge that plan. And the way they did that was by concluding that a Missouri loan processing agency called Mohila had standing. Anyway, Kagan wrote one of her fiercest dissents ever in that case. She accused the majority of violating the Constitution and then the Chief Justice basically accused her of bringing the court into public disrepute. And anyway, I thought all of that really was like important backstory for understanding this like little aside in an exchange about Biden versus Nebraska. So let’s.

 

Clip I’ve been a bit surprised you haven’t mentioned Biden v. Nebraska. Do you not think it helps you? The key question in the, in the part of course of Biden v Nebraska that had to deal with standing, uh, the key question was whether Mahela was a part of Missouri. And I would have think it’s, I would think it was pretty, uh clearly on point there, right? It’s a sue and be sued agency, which had exactly the same kind of insulation from liability as, as, this does. And what the court looked to was intangible aspects of control and directive, who appointed, the board of directors, what kinds of functions were they serving, all the kinds of things that you want us to look at, was what the Court said. There was, of course, a dissent. But what the Courts said was critical in understanding Mihella as a part of the state. So, I just…

 

Kate Shaw There was, of course, a dissent. Might need to be on T-shirts slash might be, I don’t know, an epigraph for this era.

 

Leah Litman I hear what you are signaling, Kate. She’s picking up what you’re putting down. Yeah. So finally, the court heard Chevron versus Plaquemines Parrish. Plaqueminus. Plaquiminus. We received feedback. And I am just reading an Instagram message to Instagram messages. Well, I’m just reporting, there seems to be some differences of opinions. So I love that they didn’t send it to me because I was like bitches. I said, I don’t want the feedback. OK.

 

Kate Shaw Okay, or it was the show account, which Leah’s the only one who checks.

 

Leah Litman Yeah, I can’t remember which one it was. I literally asked three people from Louisiana how to say this word. Well, anyways, this, however you pronounce it, is a case brought by some Louisiana parishes against oil and gas companies. They say it damaged the Louisiana coast many, many years ago during the production of crude oil during World War II. The argument is they didn’t get proper permits, violated the terms, and they engaged in other legal violations. And the parishes want the companies on the hook to clean up the coast.

 

Melissa Murray Chevron, who is the petitioner here, wants the case to be heard in federal court. And it’s arguing that it gets to be in federal court because its predecessor was a federal contractor. The federal government agrees that the case should be in Federal Court. Louisiana, which is usually aligned with the federal government these days, however, is here on the other side of the case because sometimes federalism is still a thing.

 

Kate Shaw Yeah, this was sort of a theme of the week. West Virginia, Louisiana, Idaho, sometimes breaking with the federal government. Anyway, there’s some interesting debate in the case about different provisions of the federal officer removal statute, a few other federal laws, there were like waiver and forfeiture questions, and there were some sort of interesting state dynamics regarding the division of authority between the parishes who initiated this litigation, and then the state who was actually before the court arguing, and they were kind of like co-counsel below. Anyway, I do think Paul Clement for Chevron is likely to get a win here, but we’ll keep our eyes peeled for the decision in that case. Okay, so let’s now turn to opinions. We got three pretty unanimous opinions from the court. So even though, as we have mentioned, they bucked the tradition of starting the kind of opinion season with a unanimous opinion of some sort, they did get there with the

 

Leah Litman So the first was Barrett versus United States. It’s a mostly unanimous opinion by Justice Jackson, siding with a criminal defendant who had been convicted and sentenced under two separate provisions. One is 924C1A, little i, which criminalizes using, carrying, or possessing a firearm in connection with a crime of violence or drug trafficking crime. And the second, 924J, contains different penalties if the violation of subsection C causes death. And the court agreed with the defendant that someone who commits a single act that violates both the provisions may be convicted only under The bottom line conclusion was unanimous. A short final portion of the opinion discussing legislative history, the horror, was joined only by Justices Sotomayor and Kagan and the chief. And Justice Gorsuch concurred in part to highlight some ambiguity or tension between the court’s cases and the Double Jeopardy Clause, things the court might end up having to address.

 

Melissa Murray Down the road. The second decision in which we got an opinion was case versus Montana. That issue here is what standard applies to police officers when they make a decision to enter a home because they think someone inside is in need of emergency assistance. Though you would not know this from the things that ICE is doing in Minneapolis right now, as a general matter the fourth amendment prevents officers from entering homes without warrants and generally to get a warrant. You must convince a judge that there is probable cause to believe that someone has committed a crime and that evidence of that crime will be found in the home. But there are, of course, exceptions to the warrant requirement. Among other things, the court has allowed warrantless entries of homes when officers have an objectively reasonable basis for believing that an occupant is seriously injured or imminently threatened with such injury and is inside the house. So the question in this case is, in order to enter a home. Without a warrant to provide emergency aid, what showing do the officers have to make?

 

Kate Shaw At issue here was an entry into a home of an individual who was threatening suicide and who was known to police as someone who had a history of mental health issues and had threatened suicide before. So under those circumstances, the court concluded the officers had an objectively reasonable basis for believing that the occupant of the house was in serious danger, and that’s really all the law requires. The opinion by Justice Kagan was unanimous. Justice Odomayor wrote a separate and I thought really thoughtful concurrence highlighting just how frequent police killings that involve suspects in some kind of mental-health crisis are. And also to highlight considerations that law enforcement should bear in mind when they’re assessing whether there is, in fact, an objectively reasonable basis to believe that a person experiencing a mental health crisis needs law enforcement to render emergency assistance, they might not always.

 

Leah Litman And the third opinion we got was in Bost versus Illinois State Board of Elections. This is a case primarily about standing. It has the potential for having significant consequences for the conduct of elections. The question at issue is whether candidates for office, so here a member of Congress and two presidential electors, have standing to challenge a state law governing mail-in ballots. So these candidates claim that Illinois law, which, like many other states, allow the counting of mail- in ballots, so long as they are postmarked by election day. Violates federal law, but they can only make that argument if they have standing to do so. That is, they have to show they are injured by this requirement. And the court here, in a 7-2 opinion authored by Chief Justice Roberts, concludes that they do have standing. This law authorizing the counting of ballots, postmarked by Election Day, injures them.

 

Melissa Murray We should also note that, as we’ve discussed in prior episodes, this court is also, I think, doing a reassessment, a renegotiation of the entire rules around standing. So we can include this decision in that broader oeuvre, if you will. I will just note that the Chief Justice essentially reduced the entire standing analysis to what some might call a throwaway line in a 1983 Law Review article written by Justice Scalia in the Suffolk University Law Review. Essentially, the Chief Justice quoted this line from the Scalia article. A plaintiff asserting an injury must, quote, in other words, be able to answer a basic question. What’s it to you? And Chief Justice Roberts determined that what’s it the Illinois congressman who brought this suit? Well, quote he has an obvious answer. He is a candidate for office, and a candidate has a personal stake in the rules that govern the counting of votes in his election, end quote. Just going to say it’s pretty broad statement of how you get to stand it.

 

Kate Shaw What’s it to you is what is what you one else just write that that is right that down rule now. Yeah, what’s The great man said it, so that’s long. Yeah, it has to be right.

 

Melissa Murray I’m just going to note this is not something the court has really said before. Lujan had nothing to say about what’s it to you. And it effectively opens up the possibility of candidates for office being able to challenge just about every aspect of election law going forward. Because what’s to you? I have a stake in this election. I’m a candidate.

 

Leah Litman So in addition to just being this throwaway line, not law, just so, I don’t know, cavalier, it was also just offensive to me to frame this as a standard for standing when the court has rejected standing for the parents of black children who challenged the IRS’s support for segregated schools, a black man who had been placed in a chokehold by the LAPD, who sought to block the LPD’s reckless chokehold policy. Like, what’s it to you? And I guess the court thinks the answer was

 

Melissa Murray Well, not everyone on the court. So you know who else found all of this offensive, Leah, you weren’t alone? Justice Jackson. So she spent a considerable amount of time on the facts of Lyons versus. Nothing but respect for my chief justice. Anyway, sorry, continue. In your heart. Lyons is the case that Leah was just alluding to, Lyons vs. The LAPD. In that case, the court said that the plaintiff didn’t have standing because there wasn’t a sufficiently real and immediate threat of future harm. As Jackson explains, quote, it did not matter, for instance, that Lyons had almost died from an illegal chokehold only five months prior to his filing his complaint, nor did it matter that no less than 16 persons had died following the use of a chokehold by an LAPD police officer in the preceding decade, end quote. All facts didn’t matter at all. But back to the majority. In rhetoric that is, I guess, a little hard to square with the court’s general disdain for, I don’t know, democracy, but is also equally hard to square with its reluctance to recognize other injuries it deems speculative in cases like Clapper, the court had this to say, quote, an unlawful election rule can injure a candidate in several ways. It might cause him to lose the election. It might require him to expend additional resources. Or it might decrease his vote share and damage his reputation. Candidates also have an interest in fair process. Candidate are not common competitors in the economic marketplace. They seek to represent the people. And their interest in that prize cannot be severed from their interest and the electoral process, a process of the most fundamental significance under our constitutional structure. All of this, according to the chief, is more than enough to satisfy the requirements of Article.

 

Leah Litman Justice Barrett concurred only in the judgment joined by Justice Kagan. That means they agree with the conclusion, but not the reasoning. So they agree that the congressman has standing. But say the standing is grounded in a traditional pocketbook injury. That is, the specific law being challenged imposes concrete costs. Here, the congressmen says the state’s allowance for late arriving ballots means his campaign has to spend time and resources after the election monitoring the arrival of ballots, having poll watchers present for counting. And she accuses the majority rule of being unmoored from precedent as well as unnecessary.

 

Kate Shaw Okay, so but let’s get to the most important writing in this case, which Melissa already alluded to in her discussion of lions, the dissent by Justice Jackson joined by Justice Sotomayor. So she accuses the majority of crafting this bespoke standing rule for candidates for office alone among the population, parents of children excluded from genuinely integrated public education, individuals being wiretapped by the federal authorities, individuals previously actually placed in chokeholds and almost killed by the police department. No, those people don’t get special rules, but you know who does? Candidates for office. And so she writes, quote, the court subtly shifts from our longstanding actual injury rule to a presumption that certain kinds of plaintiffs are sufficiently aggrieved to satisfy Article 3 standing, regardless of whether they will experience any particularized harm. In my view, this dubious departure from settled law disregards both the equal treatment of litigants and judicial restraint. She also accuses the court in pretty sharp terms of inverting basic principles of democracy and representation. So I know this is kind of long, but I do want to read it. I’m pretty obsessed with this dissent actually. So she says, quote, the court insists that a candidate’s interest is undeniably different from that of a voter’s because it is the candidate and not the voter who competes in an election. That assessment gets the significance of the relative interests exactly backward. A public office is a public trust and an election for that office is the ultimate expression of the will of the people. Not a mere competition to be won or lost. And the court’s telling elections are a glorified national pastime and the competitors’ success is the main objective. Voters are mere bystanders who simply lend their support. This depiction drastically devalues the role elections play in democratic society.

 

Melissa Murray Can I just say, one way you might understand this is just sort of the difference in the way prosecutors and defenders often talk about their jobs. Not all prosecutors. I don’t want to paint with a broad brush here. But I remember once when I was at Berkeley, we had a local prosecutor come in and talk. And he talked about winning. And then. He was debated by a public defender who was like, I never think about my job as winning or losing. I’m here to ensure that justice prevails. That’s not my job. My job is to make sure that justice is done. And I think when she made this point about the elections, it’s like, this isn’t just an ordinary competition. You’re trying to gain. A position where you’re working on behalf of the public. And that’s the point. It’s not just about winning or losing like in sports. It’s kind of like-

 

Leah Litman It’s not a gladiator thing where it’s like, are you not entertained? Right.

 

Kate Shaw It’s not a great thing, but also like back to Melissa’s point about their disdain for democracy elsewhere. It’s just like, you’re totally wrong actually about who the real actor party and interest is here. It’s the voter and like all you have done is completely denigrate the role of the voter in like meaningful access to participation and representation. And yet you pretend to glorify these representatives who actually just are vessels, not the actual sovereign actors. It was just a very profound meditation, I thought.

 

Melissa Murray Well, the other thing that I think is interesting is that if you pair this with her writing in Snyder, I think she’s also shading her colleagues. Like a public office is a public trust. She still hasn’t forgotten about the emotional support billionaires. Same girl, me neither. Yeah, neither should we.

 

Leah Litman And I have to say, the passage, you read Kate that long excerpt. So I gave the underlying facts in this case to my fed court students. And she really put her finger on what I suggested was the key countervailing principle. Because I think Justices Barrett and Kagan are right in the sense that these particular rules do generate expenses because they potentially prolong the period in which campaigns might be active. But then there’s still this question of, is the plaintiff’s injury legally cognizable? Is this something the law recognizes as an injury to this person or entity? And the idea that a candidate or elector is injured by rules that allow more people to vote and more votes to be counted is antithetical to democracy. It’s just anti-democratic. And it’s like, when we preview the case, I think I said, could Donald Trump argue that the due process clause injures him because it would be cheaper and faster for him just to summarily execute people he doesn’t like? No. And I think we said not to give them any ideas when you…

 

Kate Shaw I said that last time and I say it again today.

 

Melissa Murray Back to Jackson, as we mentioned, she invokes Lyons and says, quote, if only the Lyons court had seen fit to create the sort of harm-free, status-based standing rule that the majority adopts today, end quote, which is kind of a banger, like, f you guys. She ends by saying she is all for simplifying standing doctrine, but not this way, not by fashioning these, quote unquote, status based rules. And it seems clear that. She means to include not only candidates for office, but the kind of corporate actors she referenced in her dissent in Diamond Alternative Energy last term. I mean, again, I think she’s also making the point, like this court is kind of in the bag for certain kinds of plaintiffs. I thought it was really interesting the way the chief justice framed the Illinois congressman, like the injury to his dignity, to his reputation, like seriously, who gives a fuck? He decided to run for office. Like Like, let the votes be counted. Like, who cares if, like, it’s, you know, your feelings are hurt because someone might think you lost because there were mail-in ballots? Like, Who cares? But this is a court that really cares about corporations and people’s fee fees, not all people.

 

Leah Litman Not all people, yeah. Going a bit more on the Justice Jackson dissent, she had another terrific footnote in this opinion in which she cites. Brett Kavanaugh’s opinion justifying Kavanaagh stops, right? Like after he attempted to walk it back. I can do footnotes too, bitch. Right, right. Like as evidence that the law of standing seems to favor some plaintiffs, but not others, the end of the footnote was, quote, gnome versus Vasquez-Prodomo, Kavanauget concurring, concluding that under Lyons, Latino plaintiffs who were, quote, stopped for immigration questioning allegedly without reasonable suspicion of unlawful presence, end, quote lack standing to seek an injunction. Don’t let him off the hook for those Kavanauggs stops, girl. I love it!

 

Melissa Murray I love the energy. She’s like, you can write all the footnotes in the world. I just won’t read them and I won’t forget them.

 

Kate Shaw Or I will just footnote back and not remind everyone.

 

Melissa Murray A footnote to a footnote. Yeah.

 

Kate Shaw Okay, so let’s just briefly tick through some assorted legal news before we go. I wanted to mention quickly that the court granted, vacated, and remanded G.V. Aard in a case called Zelinsky v. United States involving the International Parental Kidnapping Act, so the rare piece of good news from the Supreme Court. So this case involved a woman who fled with her son to Mexico on her account because she believed her four-year-old son was being abused by her ex-husband. They returned to the U.S. She was charged with international parental kidnapping in violation of a federal statute. The statute provides an affirmative defense if the defendant is fleeing domestic violence, but the lower courts concluded that this only applies if the parent is personally the victim of the domestic violence. She was convicted and sentenced to three years in prison. She then filed a cert petition arguing that this was an error and the federal government actually agreed that the lower court’s were wrong to read the statute as only allowing this affirmative defense. If you’re the personal victim of the domestic violence. Anyway, maybe in light of that concession, the court did grant and vacate and remand, so she gets another shot below. It’s an incredibly tragic case, and I’m happy that she has another chance to prevail.

 

Leah Litman Yeah, I wanted to quickly note that Democracy Forward won and got a favorable decision in their case on behalf of the American Academy of Pediatrics, which was challenging the Department of Health and Human Services rescission of their federal funds, largely in retaliation for the American Academy of pediatrics questioning and criticizing HHS’s pro-death, anti-children policies. So I wanted you to note that decision since it was ongoing when I talked about it with Sky Perryman.

 

Melissa Murray OK, we should also note that we got a decision in that California redistricting case. This is the challenge to Proposition 50. This was California’s response to Texas’s effort to engage in mid-cycle redistricting. In this case, which was heard before a three-judge panel of the Central District of California, we got two-to-one decision. The Trump nominee who was on the panel was in dissent. The author of the opinion, Judge Josephine Staten, wrote as follows. Quote, the evidence presented reflects that Proposition 50 was exactly what it was billed as, a political gerrymander designed to flip five Republican health seats to the Democrats. Judge Lee, who is of the Ninth Circuit, dissented in this case. But just to make it very clear, the California GOP and the Trump administration will likely make another last ditch effort to get the Supreme Court to help them out on this particular case. So I think we ought to stay tuned to see what happens and whether or not this will be appealed.

 

Leah Litman And just on the judgely descent, wanted to acknowledge a New York Times study on the breakdown in votes among Trump appointees versus other judges. They found, looking at Trump’s appeals court judges, that they had voted for the administration in more than 100 cases and against them in less than 15, basically voting for the Administration in more the 90% of cases, and that that skew was significantly, you know, more. Skewed and disparate than the breakdown among judges appointed by Republican presidents or Democratic presidents.

 

Melissa Murray OK, we also got a Third Circuit ruling in the case of Mahmoud Khalil, the Columbia graduate student who was arrested and detained for months because of his advocacy for Palestinian rights. The opinion did not address the First Amendment argument, but ruled that the district court below lacked jurisdiction in the cases. Khalil is represented by the ACLU, which has said that it has yet to decide on next steps, but those next steps may include seeking on-bonk review.

 

Kate Shaw While that consideration is ongoing, he does remain free and with his family. And finally, as we sat down to record, the Times reported another slew of just odious Trump pardons. I haven’t had a chance to really dig into them. I don’t know if you guys have, but like, I just saw the double fraud. I mean, it’s not crazy to think you can fraud again if you got pardoned for convicted for frauding the first time. And that is what one of the recipients of the pardons seems to have done. There was also a pardon for someone whose daughter gave millions to a Trump-backed super PAC, former governor of Puerto Rico, a former FBI agent who pleaded guilty to political corruption. Seems like a great list. Congrats to all. And let’s end with things that we read and enjoyed in the last week. I’ve just got a couple. One, I’m sure you guys both saw and I hope our listeners saw and if not, please, please read this ASAP. Laura Jadeed had a piece in Slate that was titled, You’ve heard about who ICE is recruiting. The truth is far worse. I am the proof. And I don’t really want any spoilers. The headline does capture the tale that she unfolds, but it is incredibly well on end. Stunning and terrifying. Um, yeah, so, um, I Just read I didn’t read it a few years ago when a lot of people did but um remarkably bright creatures Which is a very delightful quick read. Um Oh, Shelby Pelt. Yeah, it was did you read it?

 

Melissa Murray No, I want to. Will I love it?

 

Kate Shaw I think you’ll love it. I read it like so fast. And it was just like, yeah, it was it was, it was really delightful. So recommend that. And I’m reading now God of the Woods, which I am enjoying. It’s stressful. Anyway, so yeah. And last night, I saw at the Public Theater Ulysses, a staging of the James Joyce novel that I cannot recommend highly enough. It was completely deranged ecstatic in one of these theatrical experiences where you were like kind of vibrating the entire time it was that insane and incredible um and I’m not even like you were vibrating the whole time I was I love portrait of the artist as a young man I confess I actually have never finished you Lizzy’s although this made me want to give it another shot um but I truly loved it it’s running for maybe um February through sometime in March not a hugely long run but there are some tickets left for some of the later shows So highly highly encourage people to check it out

 

Leah Litman I would plus one Dora Jadid’s piece. And Slate, you have to read it. In a different register, Shlom Auslander had a piece in the New York Times. They were ordinary Germans. We are ordinary Americans. It just very powerfully conveys the extent to which people engaged in atrocities, still carried on normal-ish aspects of their lives and the ease with which they slipped into the Nazi regime. As we noted up top, our friend Professor Steve Vladeck has a few kind of interviews about the Insurrection Act. If you’re looking to learn more about that now, would recommend his conversation with Alison Gill, which we mentioned up top. He also did a conversation at the Contrarian. So again, if you’re to learn more definitely check those out. Finally, whole other register.

 

Melissa Murray Don’t. This is mine. I put it in the door first. I listed it first. This is family law. This

 

Kate Shaw This is your domain, Melissa.

 

Melissa Murray This is my domain. This is super cool. But it involved a Taylor Swift concert. So I’ve actually been waiting to talk with you about this. I held my fire. I did not text you about. So here are my favorite things for the week. I didn’t read anything this week, in part because I was reviewing copy edits of a project that I will be willing to discuss with our listeners maybe in the next episode. So stay tuned. But my favorite thing of the week We’re one, running into. John Slattery, AKA Roger Sterling of Mad Men in the green room at MS Now. And I literally have seen almost everybody at MS Now at some point. I saw Hillary Clinton. I saw Zoran Mondani. I’ve never been tongue-tied. But I literally walked out of makeup and ran into John Slatery. And I think I said something like, I’m from Florida. I was like, insane. And he was like it’s great to meet you. And then I had to sit with him in the green room for 30 minutes. And he is so nice. He was there to promote his movie Nuremberg, which is out. And I actually have wanted to see Nuremburg. It’s based on a book about the psychiatrist who interviewed all of the Nuremberg people to figure out how do people become genuinely evil like this. And Russell Crowe plays one of the Germans. I think he plays Goering. On. It’s supposed to be fantastic. John Slattery plays a commandant in the prison that is holding the Germans who are being tried at Nuremberg. And Rami Malik is in it. It’s suppose to be a fantastic. And it is now streaming on pay-per-view so you can see it at home. I think it had a very limited release in theaters, but I think its now going for all kinds of awards consideration. It’s was to be it fantastic. So I actually have it teed up to watch. I… Was absolutely gobsmacked, not because I saw this person, but because I read about Kristin Senema’s alienation of affections lawsuit, not the one she filed, but the one that was filed against her. And this is my Super Bowl. So many of you don’t know about this, but there used to be a time when you literally could sue someone for being a thirst trap for your spouse, like just even enticing them. It’s called alienation of affection. There are a bunch of these kind of heart bomb torts. They’ve mostly receded. But I think they’re still in… Roughly five jurisdictions in the United States. North Carolina is one of them. They’re mostly in a state of destitute, but occasionally a very aggrieved spouse will sue another spouse’s paramour for enticing their former partner. And that is what has happened with Kristin Sinema. She apparently got friendly with another lady’s husband. And I have to say, her wiles, her techniques are Truly interesting how she does it in Trapman. Yeah, yeah, yeah. I mean, so she wooed this man with Taylor Swift tickets. Suggesting he bring MDMA to work. Yes. She wanted him to have a psychedelic experience. She bought him some clothes. I mean like basically, Leah, she’s a third of the way to seducing you.

 

Kate Shaw Um…

 

Melissa Murray Strong.

 

Leah Litman Strong, strong disagree.

 

Melissa Murray One of three.

 

Leah Litman Strong disagree you wouldn’t you wouldn’t fall for that game won’t play.

 

Melissa Murray You need more? OK. But I just I love that this came out, literally. And then people were just like, another thing I have to hate Kristin Sinema for. And the

 

Leah Litman Like, specific things that are, like, in the complaint are just incredible. Like, it includes a detail. Like, her former security chief quit and on the way out said, she’s sleeping with a bunch of the security team. Right? Like, OK, why is that in the complain? I don’t know, but I was glad it was. Just so many things like that.

 

Melissa Murray I’m actually just here for the family law. I’m so going to use this in my family law class next year. Like, I have the complaint. Get ready. It’s going to be amazing. Finally, my last favorite thing of the week is something that I saw on social media in response to what is happening in Minnesota. And I know everyone is talking about Minnesota nice. My man in this video was not Minnesota nice, but he was nicely dressed. A gentleman, he is a Vietnam veteran, decided to tell ICE what he thought of what they were doing. And he came dressed for the revolution. He is wearing a half-length fur, a hat that denominates him as a Vietnam veteran, and my favorite, a pair of lemon pepper stepper gators. If you don’t know what I’m talking about, look them up. And he basically tells ICE where they can go. So roll that tape.

 

Clip You’re here to terrorize this city. A bunch of bitches if I’ve ever seen a bunch. And I’m telling you to your face, and if you don’t like it, fuck you.

 

Melissa Murray Couldn’t have said it better myself. Sounds great.

 

Kate Shaw All right, so some housekeeping before we go, starting with Runaway Country this week. So since an ICE agent shot and killed Renée Good in Minneapolis, President Trump and MAGA have labeled her a domestic terrorist. They have come up with one reason after another to justify her death. And on the latest episode of Runaways Country, Alex Wagner takes a look into how law enforcement is interpreting the event by interviewing Michael Moore, the former chief of police for the Los Angeles Police Department. Then Tim Miller joins to question the parallel realities Americans seem to be living in, despite ample video footage and even in cases of life and death. Tune into Runway Country wherever you get your podcasts or watch on YouTube.

 

Melissa Murray And guess what, folks? We’re running away across the country because we’re headed to the West Coast, where we are going to be seeing all of our favorite West Coast stricties in beautiful Los Angeles on March 7 at the Palace Theater. You can join us as we dissect the opinions and analyze the cases that have the potential to reshape our daily lives. We also are making a stop in San Francisco. We will be joined there by California Attorney General Rob Bonta. The San Francisco show is sold out, But! You can still grab your tickets to the LA show before they’re gone. You can get them at crooked.com forward slash event.

 

Kate Shaw Strict Scrutiny is a Crooked Media production, hosted and executive produced by Leah Litman, Melissa Murray, and me, Kate Shaw. Our senior producer and editor is Melody Rowell, Michael Goldsmith is our producer, Jordan Thomas is our intern, music by Eddie Cooper, production support from Katie Long and Adriene Hill. Matt DeGroot is our head of production, thanks to our video team, Ben Hethcoat and Johanna Case. Our production staff is proudly unionized with the Writers Guild of America East. If you haven’t already, be sure to subscribe to Strictscrutiny in your favorite podcast app and on YouTube, at StrictScrutinyPodcast, so you never miss an episode. And if you wanna help other people find the show, please rate and review us, it really helps.